In the Matter of the Welfare of the Children of: S.R.K. and O.A.K., Parents.
of Appeals Office of Appellate Courts
P. Toay, Wold Johnson, P.C., Fargo, North Dakota, for
J. Melton, Clay County Attorney, Steven E. Beitelspacher,
Assistant Clay County Attorney, Moorhead, Minnesota, for
1. In a
proceeding to terminate parental rights that is governed by
the Indian Child Welfare Act and the Minnesota Indian Family
Preservation Act, a district court cannot terminate parental
rights unless it determines that evidence shows, beyond a
reasonable doubt, that continued custody of the child is
likely to result in serious emotional or physical damage to
the child. Such determination must be supported by qualified
expert witness testimony.
There was sufficient evidence, including qualified expert
witness testimony, to support the district court's
determination that continued custody of the children by the
mother would likely result in serious emotional or physical
damage to her children.
There was insufficient qualified expert witness testimony to
support the district court's determination that continued
custody of the children by the father would likely result in
serious emotional or physical damage to his children.
April 2016, Clay County Social Services filed petitions to
terminate the parental rights of S.R.K. and O.A.K. Following
a trial governed by the Indian Child Welfare Act (ICWA) and
the Minnesota Indian Family Preservation Act (MIFPA), the
district court terminated parental rights. We granted review
to determine what evidence is required by ICWA and MIFPA for
a district court to terminate parental rights, and whether
the district court properly determined that the evidence was
sufficient here. Because ICWA and MIFPA require qualified
expert witness testimony to support the court's
determination that "continued custody of the child by
the parent . . . is likely to result in serious emotional or
physical damage to the child, " 25 U.S.C. § 1912(f)
(2012), we affirm the court of appeals in part and reverse in
S.R.K. and O.A.K. ("the parents") married in July
2012 and divorced in December 2016. S.R.K. ("the
mother") is the biological mother of 5 children-M.G.B.,
A.B., L.B., K.K., and A.K.K. She is an enrolled member of
Spirit Lake Nation ("the Tribe"), and her children
are all enrolled members or eligible for membership in the
Tribe. O.A.K. ("the father) is the father of three of
those children-L.B., K.K., and A.K.K-and is not a member of
any Indian tribe.
Clay County Social Services (CCSS) has been involved with the
parents for several years, responding to verbal domestic
incidents, drug and alcohol use, chronic homelessness and
instability, and alleged criminal activity. This case began
in June 2015, after CCSS received a report from Prairie St.
Johns, a psychiatric hospital, that hospital staff were
unable to reach the mother to plan for her eldest child's
discharge from the hospital. A social worker was assigned to
the case. One month later, the children were removed from the
home following a violent incident, witnessed by the eldest
child, that resulted in the mother being hospitalized with a
stab wound. The children were placed in emergency
foster care, and CCSS brought CHIPS petitions seeking
out-of-home placement for the children.
December 2015, the district court found the children to be in
need of protection or services, granted legal custody of the
children to CCSS, and ordered out-of-home placement. Three
court-ordered case plans were prepared for the parents,
"each with the primary goal of reunification."
Under these plans, the parents were ordered to complete
chemical dependency and parental capacity evaluations, follow
all recommendations from these evaluations, maintain
sobriety, attend all scheduled visits with the children,
participate in services for the children, have safe
interactions with the children, and remain law abiding. The
father was additionally required to establish safe and stable
housing, follow probation guidelines, and put his
children's needs first. The mother was additionally
required to establish stable housing and ensure that only
"safe, sober adults" interacted with her children.
The court found that these plans were "designed to
address chronic issues related to chemical dependency,
domestic violence, chaos, instability and mental health
April 2016, CCSS filed three permanency petitions seeking to
terminate the parental rights of mother and
father. The petitions raised three grounds for
termination: (1) "that the parent has substantially,
continuously, or repeatedly refused or neglected to comply
with the duties imposed upon that parent by the parent and
child relationship, " Minn. Stat. § 260C.301, subd.
1(b)(2) (2016); (2) "that following the child's
placement out of the home, reasonable efforts, under the
direction of the court, have failed to correct the conditions
leading to the child's placement, " id.,
subd. 1(b)(5) (2016); and (3) "that the child is
neglected and in foster care, " id., subd.
trial was held in October and November 2016. Twelve people
testified at the trial, including the parents, the guardian
ad litem (GAL), the qualified expert witness (QEW), CCSS
workers, the parental capacity evaluator, and an ICWA
coordinator employed by Spirit Lake. Apart from the parents
themselves, no one testified in favor of either parent
retaining parental rights.
ICWA coordinator testified that the mother "wasn't
completing any of the services requested of her to obtain her
children back, " and that the Tribe supported
termination. The GAL testified that the best interests of the
children required permanency, the parents were unable to
provide that permanency, and that she supported termination
of parental rights.
trial, the QEW signed notarized affidavits stating that: (1)
"It is in the children's best interests that they be
granted permanency in a home approved by the Spirit Lake
Tribe, " (2) "The parent(s) have failed to
adequately address the issues leading to the original CHIPS
adjudication, " (3) "Appropriate services were
provided to the family to prevent the out-of-home placement,
" (4) "Continued custody of the children by the
parent(s) is likely to result in serious physical and/or
emotional damage to the child, " and (5) "The
Spirit Lake Tribe has determined that the child cannot be
returned to the parent(s) and supports permanency for this
child." The affidavits were admitted into evidence.
trial, the QEW testified in favor of terminating parental
rights. Then, when asked whether she had "an opinion
about whether the children can be returned to the parents,
" she responded, "[n]o, I don't have an opinion
about it." The QEW was then presented with her
affidavits, and asked if "the opinions that are in [the
affidavits] . . . remain your opinions today?" She
responded: "Yes." When pushed further, and asked
whether the father was "honestly considered . . . when
[she] prepared the affidavits, " she responded:
"When I prepared the affidavit, no, because [the mother
was] the enrolled member and [she's] the one that I
looked at more." Based on this testimony, the district
court found that the QEW "stands by the information in
her [a]ffidavits . . . . [and] supports termination of
December 2016, the district court terminated the parental
rights of both parents. The court first concluded that ICWA
and MIFPA applied to the proceedings and that the laws'
requirements had been satisfied. The court terminated the
mother's parental rights because it concluded: (1)
"[Mother] is palpably unfit to be a party to the parent
and child relationship because of a consistent pattern of
specific conduct . . . of a duration or nature that renders
[her] unable, for the reasonably foreseeable future, to care
appropriately for the ongoing physical, mental, or emotional
needs of the child"; (2) "active efforts . . . have
failed to correct the conditions leading to the
[c]hildren's [out-of-home] placement"; (3) "the
[c]hildren are neglected and in foster care"; and (4)
"it is in the best interests of the [c]hildren."
These same conclusions of law were made as the grounds to
terminate the father's parental rights.
parents appealed, and the court of appeals affirmed the
district court in part, reversed in part, and remanded for
additional findings. In re the Welfare of the Children
of: S.R.K. & O.A.K. (S.R.K. I), Nos. 14-JV-16-1365,
14-JV-16-1367, 14-JV-16-1371, 2017 WL 2062137, at *1
(Minn.App. May 15, 2017). As relevant to this appeal, the
court held that the district court erred by failing to
expressly find, under ICWA and MIFPA, that "continued
custody of the child by the parent . . . is likely to result
in serious emotional or physical damage to the child, "
and it remanded for that finding. Id. at *4-5.
remand, the district court issued a one-sentence addendum to
its findings of fact and conclusions of law, stating that
"[c]ontinued custody of [the children] . . . by [the
mother] and/or [the father] is likely to result in serious
emotional or physical damage to the [c]hildren." The
court provided no additional explanation.
parents again appealed, arguing that "the evidence does
not support beyond a reasonable doubt the district
court's finding that [the parents'] continued custody
of the children is likely to result in serious emotional or
physical damage to the children." In re the Welfare
of the Children of: S.R.K. & O.A.K. (S.R.K. II),
Nos. 14-JV-16-1365, 14-JV-16-1367, 14-JV-16-1371, 2017 WL
6273152, at *1 (Minn.App. Dec. 11, 2017). The court of
appeals first addressed what ICWA and MIFPA require from a
QEW to make the determination regarding the likelihood of
serious emotional or physical damage to the children, noting
that "[a] court need not rely solely on the testimony of
the qualified expert witness." Id. at *2.
Because the court deferred to the district court's
finding that the QEW "affirmed her affidavit"
during her testimony, it was satisfied that "evidence
beyond a reasonable doubt support[ed] the district
court's finding that the parents' continued custody
of the children [would] likely . . . result in serious
emotional or physical damage to the children."
Id. at *2-3. Accordingly, the court affirmed the
district court's termination decision. Id. at
granted the parents' ...