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(Cite as: 2003 WL 21266612 (Minn.App.))

NOTICE: THIS OPINION IS DESIGNATED AS UNPUBLISHED AND MAY NOT BE CITED EXCEPT AS PROVIDED BY MINN. ST. SEC. 480A.08(3).

Court of Appeals of Minnesota.

In the Matter of the WELFARE OF THE CHILD OF Roberta Lorraine WILSON, Parent.

No. C6-02-1940.

June 3, 2003.

Hennepin County District Court, File No. F80181.

Heidi Drobnick, Phyllis Tousey Frederick, Minneapolis, MN, for appellant Roberta Wilson.

Amy Klobuchar, Hennepin County Attorney, Mary M. Lynch, Assistant County Attorney, Minneapolis, MN, for respondent Hennepin County Children, Family and Adult Services Department.

Joseph Plumer, Tribal Attorney, Red Lake Legal Department, Red Lake, MN, for respondent Red Lake Band of Chippewa Indians.

Lianne Knych, Bridget Kearns, Minneapolis, MN; and Alan Thiel, Minneapolis, MN, for respondent guardian ad litem Kelley Leaf.

Considered and decided by LANSING, Presiding Judge, PETERSON, Judge, and WRIGHT, Judge.

UNPUBLISHED OPINION

PETERSON, Judge.

*1 In this termination of parental rights proceeding involving the Indian Child Welfare Act (ICWA), appellant-mother Roberta Wilson argues that the failure of respondent Hennepin County Children, Family and Adult Services Department to transfer legal custody of her child to a tribe member shows that the county failed to make the "active efforts" to avoid the breakup of the family that are required by ICWA. Mother also argues that the termination of her parental rights is defective because the department failed to follow ICWA's adoptive-placement preferences. We affirm.

FACTS

On February 22, 2001, mother's child was placed in a shelter because of mother's chemical-dependency problems. The child is eligible for membership in respondent Red Lake Band of Chippewa Indians. On March 19, the child was placed with a foster mother who was not a tribe member. The foster mother later indicated that she would like to adopt the child. In the subsequent termination-ofparental-rights proceeding, mother moved the court to transfer the child's legal custody to a tribe member. The district court denied mother's motion and terminated mother's parental rights. Mother appeals, arguing that inadequate efforts were made to reunite the family and that the district court misapplied the custodial preferences for Indian children.

DECISION

It is undisputed that, for purposes of ICWA, this proceeding involves an Indian child. Because the case involves an Indian child, the proceeding must satisfy ICWA. Minn.Stat. §§ 260C.001, subd. 3, 260C.301, subd. 7 (2002). Mother did not seek a new trial under Minn. R. Juv. P. 80.03, which allows new trials in juvenile protection matters not involving disposition of a child. See Minn. R. Juv. P. 80.01, subd. 1 (rule 80 "does not apply to matters concerning disposition"). Because the order from which mother appeals does not involve a disposition of the child, our scope of review is limited to whether the evidence supports the findings of fact and whether the findings of fact support the conclusions of law. See In re Welfare of S.R.A., 527 N.W.2d 835, 837 (Minn.App.1995) (reciting narrow scope of review and citing Minn. R. Civ.App. P. 103.04 as basis for exceeding that scope of review), review denied (Minn. Mar. 29, 1995); see also In re Welfare of D.D.G., 558 N.W.2d 481, 485 (Minn.1997) ("[t]he gravity of termination proceedings in general is not a sufficient reason to abandon our established rules of appellate argument").

I

On appeal, mother initially challenged the determination that the county provided the expert testimony required by ICWA to terminate parental rights regarding an Indian child. In her reply brief, however, mother withdrew the challenge. Therefore, we do not address it. We note, however, that because mother did not seek a new trial, the question is not properly before us. See Larson v. Indep. Sch. Dist. No. 314, 289 N.W.2d 112, 118 n. 12 (Minn.1979) (refusing to address challenge to expert's qualifications where new trial motion was made, but objection to expert's qualifications not raised in the motion).

II

*2 To terminate parental rights regarding an Indian child, the petitioning party

shall satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.

25 U.S.C. § 1912(d) (2000). That "active efforts" were made must be shown by proof beyond a reasonable doubt. In re Welfare of M.S.S., 465 N.W.2d 412, 418 (Minn.App.1991). Mother argues that, under M.S.S., "active efforts" were not made because the district court did not require the county to consider mother's request to transfer legal custody of the child to the member of the tribe. See id. at 419 (concluding that reasonable-doubt standard was not satisfied when district court failed to consider father's proposed placement plan). But M.S.S. is distinguishable because, here, unlike M.S.S. (a) in district court, the tribe argued against mother's proposed placement; (b) the district court actually addressed (and rejected) mother's proposed placement; and (c) the tribe is participating in this appeal and continues to oppose mother's proposed placement.

Also, while the guidelines of the Bureau of Indian Affairs state that "active efforts" include using caregivers who are members of the tribe as well as caregivers who are Indians but are not members of the tribe, the guidelines and comments addressing "active efforts" assume significant judicial deference to determinations of the relevant social-service agencies regarding whether "active efforts" have been made. See Minn. Dep't of Human Servs., Social Services Manual XIII 3559 (June 18, 1999) [hereinafter DHS manual ] (stating tribe's prevailing standards "shall guide all services and decisions on a case"); Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed.Reg. 67, 592, D.2 & Commentary (Nov. 26, 1979) (noting that recommendation that "detailed procedures and criteria" be used to address whether family- support efforts were adequate was not incorporated into ICWA, that ICWA "does not contemplate" a role for courts that would require "second-guessing" the "professional judgment of social service agencies[,]" and that courts "generally lack the expertise to make such judgments"). Here, (a) by resolution, the tribe had precluded placements with foster parents licensed by the agency that licensed the person to whom mother wanted legal custody transferred; (b) this prohibition was lifted less than a week before mother's child was placed; (c) at the time of trial, the tribe still viewed placements with foster parents licensed by the agency in question with suspicion; (d) the tribe and its ICWA commission opposed (and still oppose) the placement sought by mother; and (e) the district court's denial of mother's motion was partially based on the court's deference to the tribe's position. This record, and the fact that M.S.S. is distinguishable, show that not transferring or extensively investigating a transfer of the child's legal custody to the custodian proposed by mother was not fatal to the determination that the department made the "active efforts" to avoid the break up of the family required by ICWA [FN1].

FN1. Mother also argues that filing the TPR petition without investigating her proposed transfer of legal custody violated the portion of the DHS Manual stating that the prerequisites for seeking to terminate parental rights to an Indian child include exploring "all potential alternative dispositions which may be preferable to a termination." DHS Manual XIII-3632.3. As noted, however, in addressing "active efforts," the DHS Manual states that "[t]he prevailing standards of the tribe shall guide all services and decisions on a case." DHS Manual XIII 3559. Here, the tribe has consistently opposed mother's request that legal custody of the child be transferred. Mother's argument that the county should have explained why it did not follow the portion of the DHS Manual requiring investigation of all options before seeking to terminate parental rights, is answered by the deference to tribe wishes required by the DHS Manual and the fact that it is undisputed that the department and the tribe agreed that the proper course of action was to seek to terminate mother's parental rights.

*3 Mother also argues that the finding that her proposed custodian lacked familiarity with the child is defective because the county's failure to investigate mother's proposed custodian meant the proposed custodian lacked the ability to have contact with the child or others involved in the case. Because the department was not required to investigate mother's proposed custodian, we need not address this question.

III

ICWA creates different placement preferences for out-of-home placement of Indian children in the adoptive context and the foster-care (or preadoptive) context. 25 U.S.C. § 1915(a), (b) (2000) [FN2]. Mother alleges that the termination of her parental rights is defective because while the child's March 2001 placement (made seven months before the filing of the petition to terminate mother's parental rights) satisfied the foster-care placement preferences, it did not satisfy the adoptive placement preferences. Questions of statutory construction are reviewed de novo. In re Paternity of J.A.V., 547 N.W.2d 374, 376 (Minn.1996).

FN2. A tribe may alter the statutory preferences by passing a resolution setting other preferences. 25 U.S.C. § 1915(c) (2000). This record does not indicate that a resolution altering the statutory preferences has been passed.

The adoptive placement preferences are applicable "[i]n any adoptive placement of an Indian child under State law. " 25 U.S.C. § 1915(a) (emphasis added). Under Minnesota law, when the child was initially placed, the child could not be adopted because mother still had parental rights and had not consented to adoption. See Minn.Stat. § 259.24, subd. 1 (2002) (stating, with exceptions not applicable here, child cannot be adopted without parent's consent). Thus, at the time of the child's initial placement, an adoptive placement was not possible and the adoptive placement preferences were inapplicable [FN3].

FN3. The fact that an adoptive placement cannot be made before termination proceedings addresses mother's argument that the county's policy of not changing placements that are going well for a child violates the concurrent permanency planning requirements of Minn.Stat. § 260C.213 (2002), which require a county to make reasonable efforts to reunite the family while simultaneously creating an alternative plan for the child's permanent placement outside the home in the event reunification fails or is not required. Because adoptive placement cannot occur before parental rights are terminated, that placements may not be changed after termination (when adoptive placement becomes possible) is not relevant to the termination proceeding.

Mother notes that ICWA defines "adoptive placement" to include " any action resulting in a final decree of adoption." 25 U.S.C. § 1903(1)(iv) (2000) (emphasis added). She then argues that where a placement occurring before the filing of a petition to terminate parental rights is later intended by the county to become permanent (as mother alleges is the case here), that placement must satisfy the adoptive placement preferences. This argument is defective for at least two reasons. First, the statute defines "adoptive placement" to "mean the permanent placement of an Indian child for adoption, including any action resulting in a final decree of adoption." Id. Here, until after the trial on the petition to terminate mother's parental rights, no placement could be permanent because it was still possible that mother could get her child back. Therefore, there could be no "adoptive placement." Second, if the adoptive-placement preferences must be followed whenever an initial placement is intended (at the time of the initial placement or later) to be permanent, the wrong preferences would be used in cases where the parent rehabilitates before a petition to terminate parental rights is filed or where the petition is denied (i.e., in cases where adoption is impossible because the parent retains parental rights). Thus, we reject mother's argument that ICWA's definition of "adoptive placement" required use of the adoptive placement preferences here.

*4 Because we conclude that the adoptive placement preferences were inapplicable here, we need not address mother's argument that there was no "good cause" under 25 U.S.C. § 1915(a) for deviating from those preferences. We note, however, that the record supports the district court's findings that the child has "extraordinary emotional needs" and that the child's current caretaker is addressing those needs. Finally, we note that, under the placement preferences of 25 U.S.C. § 1915(a), (b), it is not at all clear that the custodian proposed by mother would necessarily be preferred to the child's current custodian.

Affirmed.

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