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In re Welfare of the Children of J.B.

March 11, 2005

IN THE MATTER OF THE WELFARE OF THE CHILDREN OF J.B. AND G.A.C., AND T.F.H., PARENTS


Hennepin County District Court File No. J6-01-053467.

Considered and decided by Toussaint, Chief Judge; Hudson, Judge; and Poritsky, Judge.

SYLLABUS BY THE COURT

1. In a proceeding to terminate parental rights under the Indian Child Welfare Act (ICWA), 25 U.S.C. §§ 1901-63 (2000), if an Indian child who has not been shown to be previously enrolled in an Indian tribe is enrolled during the course of the proceeding, the district court must treat the child as a member of the tribe into which the child becomes enrolled.

2. In a termination of parental rights proceeding involving an Indian child, a witness who is a member of a child's Indian tribe, who is recognized by that tribe as knowledgeable regarding the tribe's child-rearing practices, and who is authorized by the tribe to speak for the tribe, qualifies as an expert witness for purposes of the ICWA and may offer opinion evidence as contemplated by Minn. R. Evid. 702. But a tribally-designated expert witness may be cross-examined as provided by Minn. R. Evid. 611, and the weight to be given testimony of that witness is within the province of the trial judge as fact-finder.

3. An expert witness may form opinions based on facts not admissible in evidence if such facts are of the type on which experts in the particular field reasonably rely.

4. In a proceeding to terminate parental rights under the ICWA, if a parent of an Indian child has refused to participate in the proceeding in a timely fashion and has placed unreasonable restrictions on his receipt of appropriate services offered by the petitioner, the parent cannot successfully assert that the petitioner has failed to make the active efforts required by 25 U.S.C. § 1912(d) to avoid the breakup of the Indian family.

5. A parent whose parental rights are at issue in a termination-of-parental-rights proceeding cannot complain that he was deprived of his right to participate in the proceeding by an order of the district court granting separate termination trials to that parent and to the child's other parent, when the reason for the separate trials is that the complaining parent made himself unavailable to participate in the trial to terminate the other parent's parental rights.

6. Service by registered mail on an Indian tribe with notice of a proceeding to terminate parental rights to an Indian child satisfies 25 U.S.C. § 1912(a).

7. Challenges to evidentiary rulings do not merit reversal of a district court's decision unless the party challenging the rulings shows both that the rulings were an abuse of the district court's discretion and that the rulings prejudiced the complaining party.

8. In a proceeding to terminate parental rights, a district court does not abuse its discretion by denying motions for continuances where the continuances are sought because of an allegedly insufficient time to complete a case plan, but the party seeking the continuances refused to participate in the proceeding in a timely fashion and failed to take advantage of the services offered to assist him in satisfying his case plan.

The opinion of the court was delivered by: Poritsky, Judge

Affirmed

Poritsky, Judge*fn1

OPINION

Appellant-father T.F.H. challenges the termination of his parental rights, making various arguments regarding the Indian Child Welfare Act (ICWA), 25 U.S.C. §§ 1901-63 (2000), procedural matters, evidentiary rulings, and appointment of counsel. Because the district court did not misapply the law, make findings unsupported by the record, or otherwise abuse its discretion, we affirm.

FACTS

J.B. (mother) is the mother of the three children who were the subject of this proceeding in district court. She is an Indian parent within the meaning of the Indian Child Welfare Act (ICWA). At the start of the proceeding, mother had custody of the three children. The youngest child (L.B.), who is the subject of this appeal, was born in February 1998. At some point during the proceedings, L.B. was formally enrolled as a member of the mother's tribe.

L.B.'s father (father) is also an Indian parent within the meaning of the ICWA, but belongs to a different tribe than mother. Father was adjudicated to be L.B.'s father in May 2000 and is the appellant in this proceeding. He has extensive histories in both the child-protection and criminal systems. The father of the two older children (G.A.C.) is not a party to this appeal.

In March 2001, the Hennepin County Department of Children and Family Services (the county) removed the children from mother's home because of her chemical-dependency and mental-health problems. The county also filed a petition alleging that all three children were children in need of protection or services (CHIPS). Mother admitted that the children were CHIPS in July 2001.

In October 2001, the county petitioned to terminate mother's parental rights due to her failure to substantially comply with her case plan. Notices were sent by registered mail to father, his tribe, and mother's tribe. Mother's tribe intervened, but the notice to father was returned "unclaimed," and, despite proof of service in the file, no response was received from father's tribe. Because mother had some success with her case plan, her termination trial was continued, but in July 2002 she relapsed. Mother's continued termination trial was then set for March 24, 2003.

On March 21, 2003, the county petitioned to terminate the parental rights of both fathers. Notices were again sent to father, his tribe, and mother's tribe. Both fathers first appeared in court on March 24, 2003, the first day of mother's termination trial. Mother then moved to continue her trial based on the fact that the fathers had appeared, but the district court denied the motion and instead separated the proceedings so each of the three parents was to have a separate trial. Because mother admitted the allegations in the petition seeking to terminate her parental rights, the bulk of her trial addressed ...


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