This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-922

 

 

In the Matter of the

Welfare of the Child of T.L.C., Parent.

 

 

Filed November 22, 2005

Affirmed

Lansing, Judge

 

Hennepin County District Court

File No. J1-04-058638, Family No. 240893

 

Leonardo Castro, Chief Fourth District Public Defender, Peter W. Gorman, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN 55401 (for appellant T.L.C.)

 

Amy Klobuchar, Hennepin County Attorney, Mary M. Lynch, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent Hennepin County)

 

Jacqueline Beaulieu, Indian Child Welfare Law Center, 1113 East Franklin Avenue, Suite 600, Minneapolis, MN 55404 (for respondent K.M.C.)

 

Mary Jo Brooks Hunter, 1536 Hewitt Avenue, St. Paul, MN 55104 (for guardian ad litem)

 

Mary Shoulderblade, ICWA Department, Northern Cheyenne Tribe, P.O. Box 128, Lame Deer, MT 59043

 

            Considered and decided by Lansing, Presiding Judge; Hudson, Judge; and Huspeni, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            In a permanency proceeding under Minn. Stat. § 260C (2004), the district court transferred legal and physical custody of SC to a family member who was SC’s primary caretaker for eight months preceding the hearing.  SC’s mother supported the petition, and SC’s father, TLC, failed to appear or to participate in the proceedings leading up to the hearing.  In this appeal, TLC challenges the burden of proof and the adequacy of the district court’s findings.  Because clear-and-convincing evidence supports the district court’s transfer of custody, which is subject to the parents’ visitation and attendant rights, we affirm.

F A C T S

TLC is the presumptive father of SC, who was seven years old at the time of the permanency hearing.  In April 2002, when SC was five years old, Hennepin County filed a child-in-need-of-protection-or-services (CHIPS) petition for SC.  Following the CHIPS determination, SC was removed from her mother’s home and temporarily placed in a nonrelative foster home.  In June 2004, SC and the mother’s second child, by a different father, were placed with CJ-H.  CJ-H is a foster-care provider related to both children through their fathers. 

Hennepin County petitioned for termination of parental rights or permanent transfer to CJ-H of legal and physical custody of both SC and her sibling.  SC’s mother acknowledged that she was unable to parent the children and testified in support of the petition.  SC and her mother are members of the Northern Cheyenne Tribe; the tribe also

supported the petition for transfer of custody to CJ-H.  TLC opposed the petition but failed to appear for the hearing or participate in the permanency proceeding.  On his behalf, TLC’s attorney filed a petition for legal and physical custody, but the district court denied it as untimely. 

The district court granted Hennepin County’s petition to transfer permanent custody to CJ-H.  The court, applying Minnesota law and the requirements of the Indian Child Welfare Act (ICWA), concluded that it was in SC’s best interests to be placed in the custody of CJ-H.  The court explicitly reserved the rights of both parents to have reasonable parenting time with approved supervision. 

TLC moved for a new trial, disputing whether the burden of proof should be clear and convincing or beyond a reasonable doubt.  The district court denied the motion, and TLC appeals from the transfer-of-custody order but does not challenge the district court’s denial of his custody petition.

D E C I S I O N

I

Under Minnesota child-protection statutes, the district court is required to make a permanency determination for a child following a specified period of time in out-of-home placement.  Minn. Stat. § 260C.201, subd. 11(d) (2004).  If a child is under eight, a permanency review must take place within six months.  Id., subd. 11a(a) (2004).  A transfer of legal and physical custody to a relative is a preferred option if a child cannot be returned to the home.  Id., subd. 11(c), (d) (2004).  It is undisputed that SC cannot be returned to the home.  Because SC and her mother are members of the Northern Cheyenne Tribe, the district court also made findings under ICWA.  

ICWA generally applies to any “child custody proceeding” involving an Indian child.  25 U.S.C. § 1903 (2000).  Specifically, it applies to proceedings for foster-care placement, the termination of parental rights, preadoptive placement, and adoptive placement.  Id. § 1903(1).  ICWA provides for different burdens of proof, depending on the nature of the proceeding.  25 U.S.C. § 1912(e), (f) (2000).  For foster-care placement, the court must make a determination, supported by clear-and-convincing evidence, that the “continued custody of the child by the parent . . . is likely to result in serious emotional or physical damage to the child.”  Id. § 1912(e).  For termination-of-parental-rights cases, ICWA requires that the determination be supported by evidence beyond a reasonable doubt.  Id. § 1912(f).

In transferring legal and physical custody to CJ-H, the district court applied the clear-and-convincing burden of proof.  By making this determination, the court rejected TLC’s argument that the transfer of legal and physical custody to CJ-H amounted to a de facto termination of parental rights.  See A.H. v. State, 779 P.2d 1229, 1234 (Alaska 1989) (determining that out-of-home placement is not de facto termination of parental rights absent extreme facts that essentially divest parents of visitation rights).

We conclude that the district court did not err by determining that the appropriate burden of proof was clear and convincing.  The transfer of SC’s custody is distinct from a termination of parental rights in three significant respects.  First, TLC retains his right to reasonable parenting time.  CJ-H, who is his cousin, has not only expressed her support for TLC’s visitation, but has affirmatively attempted to encourage his visitation.  TLC has visited SC only seven times in the past four years and has presented no evidence that his visitation rights were restricted.  Furthermore, the court explicitly reserved his parenting rights.  Second, TLC preserves his right to return to court to regain custody of SC because he has not lost his rights as a parent.  Third, TLC may request a modification of his parenting time or the custody arrangement.  Because TLC’s parental rights were not terminated, the district court properly applied the clear-and-convincing burden of proof.

II

At the conclusion of a permanent-placement hearing for a child who cannot return home, the district court must “order a permanent placement in the child’s best interests.”  Minn. Stat. § 260C.201, subd. 11(c) (2004).  For a child who, like SC, cannot return home, the court may, as one of its permanency options, transfer permanent legal and physical custody to a relative if it is in the child’s best interests.  Id., subd. 11(d)(1).  For transfer-of-custody cases, Minnesota law requires the district court to review the suitability of the prospective custodian, maintain jurisdiction over the child, and specify that the transfer of custody includes the responsibility for caring for the child and the right to make decisions for the child.  Id.  Subdivision 11(e) further provides that when the court orders a “permanent placement of a child, the court must be governed by the best interests of the child, including a review of the relationship between the child and relatives and the child and other important persons with whom the child has resided or had significant contact.”  Id., subd. 11(e) (2004). 

TLC contends that ICWA must be read in conjunction with the statutory criteria that govern termination of parental rights.  See Minn. Stat. § 260C.301, subd. 1 (2004) (listing statutory conditions for termination of parental rights).  Because the transfer of custody did not terminate parental rights, we conclude that the district court did not err by rejecting TLC’s request to incorporate the standards for termination of parental rights.  The district court properly applied the requirements imposed by the transfer-of-custody statute, and its findings of fact are supported by the record.  The district court considered the suitability of CJ-H as a custodian, finding that she is capable of providing for the child’s needs, that she has the capacity and disposition to give SC the necessary love and affection, that she will continue SC’s education, and that she has cooperated with the appropriate county agencies.  The district court found that transfer of custody to CJ-H was in the best interests of SC because SC has lived with CJ-H for a number of months in a stable and satisfactory environment, has a close and intimate relationship with CJ-H, has adjusted well to her school and community, and will be able to maintain a relationship with her relatives.

The district court also considered SC’s relationship with each of her parents and the tribe.  Both her mother and the tribe support the transfer of custody.  The district court made specific findings about the mother’s inability to care for SC due to the continued presence of domestic violence in her home and her chemical-dependency problems.  SC’s mother does not dispute these findings.  In considering the child’s relationship with TLC, the court noted TLC’s convictions for domestic violence, that TLC does not provide any financial support, that he has not participated fully in his case plan, that he has seldom visited his child, and that he has not attempted to establish a relationship with the child despite CJ-H’s efforts to involve him in the child’s life.  These determinations are supported by the record and satisfy the explicit requirements of Minn. Stat. § 260C.201.

            Affirmed.