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Gerber v. Eastman

January 20, 2004

ROY E. GERBER, RESPONDENT,
v.
PHYLLIS EASTMAN, APPELLANT.



Beltrami County District Court File No. F7-01-1139

Considered and decided by Schumacher, Presiding Judge; Randall, Judge; and Shumaker, Judge.

SYLLABUS BY THE COURT

The Indian Child Welfare Act does not apply where a non-Indian father seeks permanent sole legal and physical custody of his biological child after the state district court has granted permanent sole legal and physical custody to the child's Indian maternal grandmother who resides with the child on the reservation.

The opinion of the court was delivered by: Gordon W. Shumaker, Judge

Affirmed

OPINION

On appeal in this custody dispute between appellant-Indian-custodial-grandmother and respondent-non-Indian-father, grandmother challenges the district court's determinations that (1) the Indian Child Welfare Act does not apply where a non-Indian father seeks permanent custody of his biological child; (2) the district court has continuing, exclusive jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act where the district court initially granted custody to grandmother; and (3) the child's mother is not an indispensable party who must be joined in this proceeding.

FACTS

The parties do not dispute the underlying facts in this case, which arise out of a proceeding in state district court for a child in need of protective services (CHIPS). The minor child, I.E., was born in 1999 to Joy Eastman, an Indian member of the Red Lake Band of Chippewa Indians, and respondent Roy Gerber, a non-Indian. I.E. lived with her mother when she was born, but was placed in foster care in February 2000 because of Joy Eastman's mental illness and her inability to care for the child. After reunification efforts failed, the county placed I.E., in September 2000, with her maternal grandmother, appellant Phyllis Eastman, who is a member of the Red Lake Band of Chippewa Indians and who lives on the reservation. Joy Eastman now resides in a traumatic brain injury group home in Duluth.

After I.E. was placed in foster care, the county contacted respondent, who first became involved in I.E.'s life in March 2001. On appellant's motion in state district court for permanent custody of I.E., the court, in July 2001, granted permanent sole legal and physical custody of I.E., an Indian child, to appellant.

In March 2003, respondent filed a motion in district court for a modification of custody, seeking sole legal and physical custody of I.E. The court granted respondent an evidentiary hearing, at which appellant did not appear, and granted respondent some parenting time with I.E. Appellant did not allow respondent to exercise his parenting time, and the police on the reservation declined to enforce the district court's order. Ultimately, the county sheriff's office assisted respondent in obtaining I.E. one time during his specified parenting time when appellant took I.E. off of the reservation.

The Red Lake Tribal Court issued an order noting that appellant had custody under the district court's July 2003 order and recognizing the permanent custody placement, stating that the order had been entered when I.E. was living outside of the reservation. But the tribal court then determined that it had current exclusive jurisdiction over all present and future issues relating to I.E.'s custody, care, and visitation because the child has been living on the reservation with her grandmother since September 2000.

The state district court determined that the Federal Indian Child Welfare Act (ICWA) does not apply where a non-Indian biological father seeks custody of his own child and the state district court exercised continuing exclusive jurisdiction under Minnesota's Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Appellant now challenges the district court's ...


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