This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2012).
STATE OF MINNESOTA
IN COURT OF APPEALS
A14-0336
A14-0385
In the Matter of the Welfare of the Children of: J. J. and C. F., Parents
Filed August 18, 2014
Affirmed
Connolly, Judge
St. Louis County District Court
File Nos. 69DU-JV-13-227, 69DU-FA-11-910, 69DU-JV-13-851
Amy E. Lukasavitz, Duluth, Minnesota (for appellant-mother J.J.)
Terri Port Wright, Cloquet, Minnesota; and
Keith Shaw, Duluth, Minnesota (for appellant-father C.F.)
Mark Rubin, St. Louis County Attorney, Benjamin M. Stromberg, Assistant County
Attorney, Duluth, Minnesota; and
Laura Vedder, Sara Marie Westrum, Leech Lake Band of Ojibwe, Cass Lake, Minnesota
(for respondent Leech Lake Band of Ojibwe)
Susan Love, Duluth, Minnesota (guardian ad litem)
Considered and decided by Connolly, Presiding Judge; Johnson, Judge; and
Hooten, Judge.
UNPUBLISHED OPINION
CONNOLLY, Judge
In these consolidated appeals, appellants challenge the district court’s termination
of their parental rights. Appellant-mother argues that the district court abused its
discretion in finding that respondent county made active efforts to prevent the breakup of
their Indian family and in concluding that termination of her parental rights was in the
children’s best interests. Appellant-father argues that his court-appointed attorney did not
adequately represent him. Because we see no abuse of discretion and no ineffective
assistance of counsel, we affirm.
FACTS
C., born July 19, 2007, and D., born July 25, 2008 are the biological children of
appellant-mother, J.J., and appellant-father, C.F. C. and D. are members of, or are
eligible for membership in, an American Indian Tribe, namely the Leech Lake Band of
Ojibwe.
On February 25, 2013, respondent St. Louis County received a report that, on
February 22, C. and D. had been dropped off at a relative’s home without clothing or
other basic provisions. At that time, C.F. was incarcerated and J.J.’s whereabouts were
unknown. The report stated that both C.F. and J.J. were homeless and had a history of
dropping the children off with anyone who would take them.
On February 28, 2013, the county petitioned for C. and D. to be found children in
need of protection or services (CHIPS). At an emergency protective-care hearing,
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custody of C. and D. was granted to the county for continued out-of-home placement.
Neither C.F. nor J.J. attended the hearing.
On May 29, 2013, the children were adjudicated CHIPS and a case plan was
ordered. J.J. attended only two of approximately 11 hearings during the year that the case
was pending before the district court, and she did not appear until nearly eight months
after C. and D. were removed from her care. The social worker explained to J.J. what she
needed to do to get started on the case plan, but J.J. did not follow the instructions or
attempt to visit the children. Although C.F., at first, participated in visitation, and he and
the children enjoyed their time together, he did not work on any other part of the case
plan; as of October 2013, his progress on the plan had regressed.
On October 16, 2013, J.J. appeared for the first time at a hearing and asked to
voluntarily terminate her parental rights. The district court wanted her to consult with
counsel before terminating her rights, and J.J. applied for counsel. After J.J. failed to
appear at subsequent hearings, or to work on any part of the case plan, the district court
terminated J.J.’s parental rights by default.
On February 4, 2014, C.F. appeared for trial on the termination-of-parental-rights
(TPR) petition with his attorney. C.F. requested that the trial be continued because he
had recently entered chemical-dependency treatment following a probation violation and
wanted a continuance in order to prove his sobriety. The district court denied the request,
noting that the CHIPS matter had been before the court for nearly a year and that a
continuance was not consistent with achieving permanency for the children. C.F. then
asked to voluntarily terminate his parental rights rather than proceed to trial, in part
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because C.F.’s girlfriend was then pregnant and he did not want to jeopardize his parental
rights to her unborn child.1
Both J.J. and C.F. appealed; their appeals were consolidated. J.J. challenges the
district court’s finding that the county made active efforts to reunite the family and the
conclusion that terminating her parental rights was in her children’s best interests; C.F.
challenges the adequacy of his legal representation.
DECISION
“[Appellate courts] review the termination of parental rights to determine whether
the district court’s findings address the statutory criteria and . . . are supported by
substantial evidence and . . . not clearly erroneous.” In re Welfare of Children of S.E.P.,
744 N.W.2d 381, 385 (Minn. 2008). “[O]n appeal from a district court’s decision to
terminate parental rights, we will review the district court’s findings of the underlying or
basic facts for clear error, but we review its determination of whether a particular
statutory basis for involuntarily terminating parental rights is present for an abuse of
discretion.” In re Welfare of Children of J.R.B., 805 N.W.2d 895, 901 (Minn. App.
2011), review denied (Minn. Jan. 6, 2012). “Pursuant to the Indian Child Welfare Act, 25
U.S.C. § 1912(f), in a termination of parental rights matter involving an Indian child, the
standard of proof is beyond a reasonable doubt.” Minn. R. Juv. Prot. P. 39.04, subd. 2(b).
1
See Minn. Stat. § 260C.503 subd. 2(4) (2012) (noting that the social services agency
must ask the county attorney to immediately file a petition for termination of parental
rights when a parent has lost parental rights to another child through an order
involuntarily terminating that parent’s rights).
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I. Active Efforts to Reunite the Family
The Indian Child Welfare Act (the ICWA) requires the petitioning party in a
proceeding to terminate parental rights to an Indian child to show beyond a reasonable
doubt that “active efforts” were made to provide remedial services and rehabilitative
programs designed to prevent the breakup of the Indian family and that those efforts were
unsuccessful. 25 U.S.C. § 1912(d) (2012) (requiring active efforts); In re Welfare of
M.S.S., 465 N.W.2d 412, 418 (Minn. App. 1991) (requiring proof of active efforts beyond
reasonable doubt). The ICWA does not define active efforts, but the Minnesota
Tribal/State Agreement defines active efforts as
a rigorous and concerted level of case work that uses the
prevailing social and cultural values, conditions and way of
life of the Indian child’s tribe to preserve the child’s family
and to prevent placement of an Indian child and, if placement
occurs, to return the child to the child’s family at the earliest
time possible.
Minn. Dep’t of Human Serv’s, 2007 Tribal/State Agreement 9 (2007), available at
http://edocs.dhs.state.mn.us/lfserver/Legacy/DHS-5022-ENG. Active efforts have been
found where a parent refused to participate in the proceedings in a timely fashion and
placed unreasonable restrictions on his receipt of services. See, e.g., In re Welfare of
Children of J.B., 698 N.W.2d 160, 170 (Minn. App. 2005).
J.J. argues that there was no evidence beyond a reasonable doubt showing that
active and reasonable efforts had been provided to prevent the children’s out-of-home
placement; specifically, she argues that no evidence indicates that she was given a written
copy of the reunification plan or that anyone explained it to her. But the record shows
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that: (1) J.J. was given proper notice of the proceedings, (2) she attended only two of
approximately 11 hearings, (3) she did not visit the children while they were out of her
care, and (4) she did not follow through with the social worker’s instructions on how to
start the case plan. Thus, J.J. refused to avail herself of any rehabilitative services; this
does not equate to such services not being provided to her.
II. The Best Interests of the Children
An appellate court reviews “a district court’s ultimate determination that
termination is in a child’s best interest for an abuse of discretion.” J.R.B., 805 N.W.2d at
905. The law leaves “scant if any room for an appellate court to question the [district]
court’s best-interests considerations.” In re Child of Evenson, 729 N.W.2d 632, 635
(Minn. App. 2007), review denied (Minn. June 19, 2007).
Parental rights may be terminated for any one of nine statutory reasons. Minn.
Stat. § 260C.301, subd. 1(b) (2012). The paramount consideration in determining
whether parental rights will be terminated is the best interests of the child. Minn. Stat.
§ 260C.301, subd. 7 (2012); In re Tanghe, 672 N.W.2d 623, 625 (Minn. App. 2003).
“Where the interests of the parent and the child conflict, the interests of the child are
paramount.” Minn. Stat. § 260C.301, subd. 7.
The district court found that five of the nine criteria existed here: (1) J.J.
abandoned C. and D. (Minn. Stat. § 260C.301, subd. 1(b)(1)); (2) J.J. refused or
neglected to comply with her parental duties to provide for the children’s basic needs;
active and reasonable efforts have failed; and further efforts would be futile (Minn. Stat.
§ 260C.301, subd. 1(b)(2)); (3) J.J. is palpably unfit to be a party to the parent-child
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relationship (Minn. Stat. § 260C.301, subd. 1(b)(4)); (4) following the out-of-home
placement, reasonable and active efforts have failed to correct the conditions that led to
placement (Minn. Stat. § 260C.301, subd. 1(b)(5)); and (5) the children are neglected and
in foster care (Minn. Stat. § 260C.301, subd. 1(b)(8)). The district court also found:
Given the fact that [J.J.] has not had any recent contact nor
shown any interest in the children, any interests in preserving
the [parent-child] relationships are nominal at best. By
contrast, the children are currently placed with siblings in the
home of a relative who is committed to being an adoptive
resource. Based on this, termination of parental rights is
clearly in the children’s best interests.
J.J. argues that the district court failed to make adequate findings that there was
proof beyond a reasonable doubt that the children’s best interests would be served by
terminating the parent-child relationship. See Matter of Welfare of D.T.J., 554 N.W.2d
104, 110 (Minn. App. 1996) (“An order for the termination of parental rights must
explain the district court’s rationale for concluding why the termination is in the best
interests of the children.”)
But the district court describes the “best interest” factors throughout the TPR
order, noting that: (1) J.J. did not cooperate with her case plan, (2) her living
arrangements and whereabouts were unknown, (3) she willfully failed to visit her
children and abandoned them, (4) she had multiple warrants out for her arrest, and (5) she
had been incarcerated. An expert witness stated in an affidavit that J.J.’s and C.F.’s
custody of their children was likely to result in serious physical and/or emotional damage
to the children and that termination of their parents’ rights was in their best interests.
Because the finding that termination of J.J.’s parental rights is in the children’s best
7
interests is supported by the record, any of the five statutory criteria would be a sufficient
basis for the termination of J.J.’s parental rights. Minn. Stat. § 260C.301, subd. 1(b).
J.J. relies upon Tanghe to argue that the district court did not sufficiently address
the “best interest” factors. But Tanghe is distinguishable: in that case, the district court
made no findings about the children’s best interests. 672 N.W.2d at 625. Here, the
district court made specific findings on the best-interests factors, and its findings are
reflected throughout the order.
The district court did not abuse its discretion by terminating J.J.’s parental rights.
III. Adequacy of C.F.’s Representation
C.F. argues that his trial counsel was ineffective. The standard for ineffective
assistance of counsel is well established. A complainant must show that “trial counsel
was not reasonably effective and that ‘there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.’”
In re the Welfare of L.B., 404 N.W.2d 341, 345 (Minn. App. 1987) (quoting Strickland v.
Washington, 566 U.S. 668, 104 S. Ct. 2052 (1984)). There is a strong presumption that
counsel’s representation was reasonable. State v. Pearson, 775 N.W.2d 155, 165 (Minn.
2009).
C.F. argues first that his counsel was ineffective because the attorney was not yet
registered on the Minnesota CHIPS Parent Attorney Registry (the registry) as required by
Minn. Stat. § 260C.163, subd. 3 (f), (g) (2012) (providing that counsel appointed by the
district court to represent parents in juvenile court proceedings must either (1) have at
least two years of experience in handling child-protection cases or (2) have taken an
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approved course in handling child-protection cases or (3) be supervised by an attorney
who meets either (1) or (2)).2 However, if a district court cannot access an attorney who
meets these qualifications and finds none is available, it may appoint another attorney
whom it determines to be otherwise competent. Minn. Stat. § 260C.163 subd. 3; see also
Minnesota Judicial Branch Policy 604, “Qualifications for Attorneys Appointed by the
Court to Represent Parents, Guardians, and Legal Custodians in Juvenile Protection
Matters,” (Minn. Judicial Council, June 1, 2013).
C.F. provides no legal authority for his implied view that legal assistance provided
by any attorney not on the registry is ineffective. This court does not address allegations
unsupported by legal analysis or citation. Ganguli v. Univ. of Minnesota, 512 N.W.2d
918, 919 n.1 (Minn. App. 1994). Therefore, the issue is not properly before us.
Moreover, nothing in the record supports C.F.’s assertion that his counsel was not on the
registry, and “[a]n appellate court may not base its decision on matters outside the record
on appeal.” Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn. 1988).
C.F. also asserts ineffective assistance because he was inadequately informed of
his trial rights. Again, he cites no authority to support his contention that the waiver of
his trial rights was uninformed, nor does he give any explanation of how he was
prejudiced by this error. See L.B., 404 N.W.2d at 345 (one criterion of ineffective-
assistance claim is showing that “but for counsel’s unprofessional errors, the result of the
proceeding would have been different”).
2
C.F. acknowledges that “in late April, 2014” his attorney was added to the roster of
qualified attorneys.
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Finally, C.F. argues that his counsel was ineffective because he failed to raise
issues with various provisions of the ICWA, 25 U.S.C. §§ 1901-1963, and to inform C.F.
of the correct standard of proof. While C.F.’s counsel misspoke at the voluntary
termination hearing and referred to both the proof-beyond-a-reasonable-doubt standard
and the clear-and-convincing standard when questioning C.F. on his waiver of trial rights,
there was no prejudice to C.F. because counsel for the Leech Lake Band of Ojibwe
clarified that the burden of proof standard is beyond-a-reasonable-doubt, not clear-and-
convincing. The district court commented, “I know I heard beyond a reasonable doubt,
so if I misspoke or somebody else misspoke, I think everybody is on the same page for
that.” Any misstatement of the evidentiary standard did not constitute ineffective
assistance of counsel.
C.F. also argues that his counsel was ineffective because the ICWA requires
testimony of a qualified expert witness that “continued custody of the child by the parent
… is likely to result in serious emotional or physical damage to the child,” see 25 U.S.C.
§ 1912(f), and no such testimony was provided. This argument fails for two reasons.
First, 25 U.S.C. § 1912(f) does not apply because C.F. was a noncustodial parent and is
therefore not protected by the provisions of 25 U.S.C. § 1912(f). Adoptive Couple v.
Baby Girl, U.S. , 133 S. Ct. 2552, 2559-2562 (2013) (holding that ICWA’s
requirement that qualified expert testimony be provided that continued custody by the
parent will be damaging to the child does not apply to a parent who has never had
custody). Second, the appropriate testimony was provided by affidavit prior to the trial
and is referenced in the court’s TPR order, and the ICWA does not require qualified
10
expert-witness testimony at each hearing but rather before the court orders termination of
parental rights. See 25 U.S.C. § 1912(f).
C.F. also argues that his counsel was ineffective because the ICWA requires the
court to certify that the parent understands the terms and consequences of the consent in
English or that the consent be interpreted into a language the parent understands, see 25
U.S.C. § 1913(a), and C.F.’s attorney did not confirm that C.F. understands the English
language. But C.F. testified by affidavit that he understands the English language, so this
argument lacks merit.
Finally, C.F. argues that counsel was ineffective by not informing C.F. of his right
to withdraw his consent to the voluntary termination of his parental rights prior to the
entry of the final order for termination. See 25 U.S.C. § 1913(c). Again, this argument is
defeated by C.F.’s affidavit, which states that he understood this provision of the ICWA.
Because there were no violations of the provisions of the ICWA and C.F. was informed
of his trial rights and his rights under the ICWA, he does not have a claim for ineffective
assistance of counsel.
Affirmed.
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