Interest of K.B. , 2021 ND 163 ( 2021 )


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  •                                                                               FILED
    IN THE OFFICE OF THE
    CLERK OF SUPREME COURT
    SEPTEMBER 9, 2021
    STATE OF NORTH DAKOTA
    IN THE SUPREME COURT
    STATE OF NORTH DAKOTA
    
    2021 ND 163
    In the Interest of K.B., a child
    Megan Dahl, L.B.S.W., Cass
    County Human Services Zone,                           Petitioner and Appellee
    v.
    K.B., child; M.N., possible
    father; John Doe,                                                Respondents
    and
    J.B., mother,                                      Respondent and Appellant
    No. 20210109
    In the Interest of K.B., a child
    Megan Dahl, L.B.S.W., Cass
    County Human Services Zone,                           Petitioner and Appellee
    v.
    K.E.B., child; M.N., possible
    father; John Doe,                                                Respondents
    and
    J.B., mother,                                      Respondent and Appellant
    No. 20210110
    Appeal from the Juvenile Court of Cass County, East Central Judicial District,
    the Honorable Scott A. Griffeth, Judicial Referee.
    AFFIRMED.
    Opinion of the Court by Tufte, Justice, in which Justices Crothers and McEvers
    joined, and Justice VandeWalle concurred in the result. Chief Justice Jensen
    filed a concurring opinion.
    Constance L. Cleveland, Assistant State’s Attorney, Fargo, N.D., for petitioner
    and appellee.
    Daniel E. Gast, Fargo, N.D., for respondent and appellant.
    Interest of K.B.
    Nos. 20210109 & 20210110
    Tufte, Justice.
    [¶1] J.B. appealed from a juvenile court order terminating her parental rights
    to her two children. She argued there was not evidence beyond a reasonable
    doubt to support the court’s determination under the Indian Child Welfare Act
    (ICWA) that continued custody by J.B. was likely to result in serious emotional
    or physical damage to the children. Retaining jurisdiction under N.D.R.App.P.
    35(a)(3), we remanded to the juvenile court for detailed findings under ICWA,
    allowing for additional testimony from the qualified expert witness if necessary
    to make the required findings. Interest of K.B., 
    2021 ND 106
    , ¶ 11, 
    961 N.W.2d 293
    . After receiving additional testimony, the district court made additional
    findings, denied the petition to terminate J.B.’s parental rights, and ordered
    the children be removed from J.B.’s custody for nine months. No party
    requested additional briefing or argument following the order on remand. We
    affirm the juvenile court order.
    [¶2] Our prior decision sets forth the relevant facts and history, which we will
    not repeat here. Interest of K.B., 
    2021 ND 106
    , ¶¶ 2-3, 7-8.
    [¶3] On remand, the juvenile court heard additional testimony from Marilyn
    Poitra, a qualified expert witness for the Turtle Mountain Band of Chippewa
    Indians under ICWA. Poitra testified that the tribe did not support
    termination of parental rights and answered “No” when asked if continued
    custody by J.B. was likely to result in serious emotional or physical damage to
    the children.
    [¶4] Considering the evidence as a whole, the juvenile court made the
    following findings. The testimony and behavior of the parents during trial
    established that the parenting practices of the parents are “not consistent with
    Native American parenting practices.” The failure of the parents to abide by
    the no-contact order during trial demonstrated an intent to continue their
    violent and dysfunctional relationship. Poitra testified that if the father were
    not involved, J.B. could remedy the situation within approximately six months
    1
    after her release from incarceration and following treatment. Despite
    acknowledging that she was not aware of the parents’ behavior and
    communication with each other during trial, Poitra maintained her opinion
    that she did not feel the continued custody of the children by J.B. would be
    likely to result in serious emotional or physical damage to the children.
    Although the juvenile court said it “may not agree with Ms. Poitra’s
    assessment of the situation,” its ultimate finding was that the evidence before
    it did not establish the ICWA requirements beyond a reasonable doubt.
    [¶5] That ultimate finding is for the juvenile court as finder of fact, only to be
    set aside on appeal if clearly erroneous. N.D.R.Civ.P. 52(a)(6). There is
    evidence on which the juvenile court could have found the ICWA requirements
    satisfied, and there is also evidence on which it could have found that the high
    burden of proof beyond a reasonable doubt had not been met. A finding relating
    to a likelihood of future harm requires some prognostic evidence providing “the
    basis for a reasonable prediction as to future action.” Interest of J.S., 
    351 N.W.2d 440
    , 442 (N.D. 1984) (affirming finding that deprivation was likely to
    continue despite lack of expert opinion “expressly predict[ing] that kind of
    future”). On this record, we defer to the juvenile court’s finding that, although
    there was room for disagreement with Poitra, her expert testimony was
    sufficient to raise a reasonable doubt about whether J.B.’s continued custody
    would create a likelihood of future emotional or physical damage to the
    children.
    [¶6] We affirm the juvenile court order removing the children from the care,
    custody, and control of their parents for a period of nine months.
    [¶7] Daniel J. Crothers
    Lisa Fair McEvers
    Jerod E. Tufte
    I concur in the result.
    Gerald W. VandeWalle
    2
    Jensen, Chief Justice, concurring.
    [¶8] I concur in the result for the reasons stated in the prior concurring
    opinion in this case. Interest of K.B., 
    2021 ND 106
    , 
    961 N.W.2d 293
    . I write
    separately following the return from our prior remand to note my disagreement
    with paragraphs 4 and 5 of the majority opinion above.
    [¶9] Termination of parental rights for a child protected by the provisions of
    the Indian Child Welfare Act must be supported by testimony from a qualified
    expert “that the continued custody of the child by the parent or Indian
    custodian is likely to result in serious emotional or physical damage to the
    child” as required by 25 U.S.C. § 1912(f). The statutory provision at issue reads
    as follows:
    No termination of parental rights may be ordered in such
    proceeding in the absence of a determination, supported by
    evidence beyond a reasonable doubt, including testimony of
    qualified expert witnesses, that the continued custody of the child
    by the parent or Indian custodian is likely to result in serious
    emotional or physical damage to the child.
    25 U.S.C. § 1912(f).
    [¶10] Paragraphs 4 and 5, consistent with the prior majority opinion in Interest
    of K.B., 
    2021 ND 106
    , 
    961 N.W.2d 293
    , suggest that a district court could find,
    beyond a reasonable doubt, the continued custody of a child by the parent or
    Indian custodian is likely to result in serious emotional or physical damage to
    the child in cases where the only qualified expert witness provides testimony
    that continued custody of the child by the parent or Indian custodian is not
    likely to result in serious emotional or physical damage to the child. That
    position is inconsistent with other state courts and unsupported by any other
    judicial decisions. See Interest of K.B., 
    2021 ND 106
    , 
    961 N.W.2d 293
     (Jensen,
    C.J., concurring specially). It is also inconsistent with this Court’s prior
    decision drawing a bright line on the qualified expert requirement, and
    mandating the reversal of any termination lacking a qualified expert witness.
    Interest of K.S.D., 
    2017 ND 289
    , ¶ 28, 
    904 N.W.2d 479
    .
    3
    [¶11] The majority’s position is, apparently, that the statute can be read to
    prohibit termination in the absence of a qualified expert testifying, but allow
    termination in the face of a qualified expert testifying there is not likely to be
    serious emotional or physical harm. How can 25 U.S.C. § 1912(f) be read to
    prohibit termination in the absence of a qualified expert but allow termination
    in the face of a qualified expert testifying there is not likely to be serious
    emotional or physical harm? I cannot reconcile such a reading of the statute,
    nor has any other jurisdiction read the statute with that construction. The
    majority’s reading of the statute renders the expert requirement illusory.
    [¶12] I concur in affirming the district court decision on remand. On remand,
    the district court received additional testimony from the qualified expert that
    continued custody of the child by the parent or Indian custodian was not likely
    to result in serious emotional or physical damage to the children. In light of
    that testimony, the district court was compelled to deny the termination of
    parental rights.
    [¶13] Jon J. Jensen, C.J.
    4
    

Document Info

Docket Number: 20210109

Citation Numbers: 2021 ND 163

Judges: Tufte, Jerod E.

Filed Date: 9/9/2021

Precedential Status: Precedential

Modified Date: 9/9/2021