Date: 06-08-2022

Case Style:

State of North Dakota v. A.C., Child; L.C., Mother, and A.L., Father

Case Number: 20220081

Judge:

Jon J. Jensen

Stephanie R. Hayden

Court:

IN THE SUPREME COURT STATE OF NORTH DAKOTA

On appeal from The District Court of Cass County, East Central Judicial District

Plaintiff's Attorney: Diane K. Davies-Luger, Assistant State’s Attorney

Defendant's Attorney:

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Description:

Bismarck, ND - Parental Rights lawyer represented defendant with appealing from an order terminating his parental rights.

Although paternity testing established A.L. is the most likely father of
A.C., A.L.’s paternity of A.C. has never been formally established. A.L. is a
member of the Turtle Mountain Band of Chippewa Indians. According to an
affidavit of a Turtle Mountain representative, A.C. is eligible for tribal
enrollment through A.L.
[¶3] In August 2021, Cass County petitioned for termination of A.L.’s
parental rights over A.C. The juvenile court found A.C. was a child in need of
protection under N.D.C.C. § 27-20.3-20. The court further found that ICWA
applied to this case and active efforts had been made to prevent the breakup
of the Indian family. The court concluded that it is in A.C.’s best interests for
A.L.’s parental rights to be terminated.
II
[¶4] A.L. argues the juvenile court clearly erred in finding Cass County
engaged in active efforts to prevent the breakup of the Indian family and in
failing to provide a finding that absent termination of A.L.’s parental rights
there would be serious damage to the Indian child. Both are required findings
under ICWA and the corresponding codification of ICWA in North Dakota
statutory law. Although the finding of whether ICWA applies to A.C. has not
2
been challenged on appeal, we find it necessary to consider the issue given the
inconsistencies in the court’s order.
[¶5] When a juvenile court makes factual findings in a termination of
parental rights proceeding, this Court reviews those findings using a clearly
erroneous standard of review. Interest of A.L.E., 2018 ND 257, ¶ 4, 920 N.W.2d
461. “Under the clearly erroneous standard of review, we affirm the decision of
the juvenile court unless it is induced by an erroneous view of the law, if there
is no evidence to support it, or if, on the entire record, we are left with a definite
and firm conviction a mistake has been made.” Id.
[¶6] The juvenile court analyzed this termination of parental rights under
N.D.C.C. § 27-20.3-20. Under section 27-20.3-20, N.D.C.C., a court may
terminate the rights of a parent if:
a. The parent has abandoned the child;
b. The child is subjected to aggravated circumstances;
c. The child is in need of protection and the court finds: . . . .
[¶7] In termination of parental rights proceedings initiated under N.D.C.C. §
27-20.3-20, the agency must prove the statutory requirements by clear and
convincing evidence. Interest of C.R., 1999 ND 221, ¶ 4, 602 N.W.2d 520;
N.D.C.C. § 27-20.3-20(2).
[¶8] We have previously considered the interplay of ICWA and state law in
termination of parental rights cases stating, “In addition to state law
requirements, the requirements of the Indian Child Welfare Act, 25 U.S.C. §
1912, must be met in cases involving an Indian child as defined by the Act.”
Interest of K.B., 2021 ND 106, ¶ 4, 961 N.W.2d 293 (citing 25 U.S.C. § 1903(4)
and Interest of K.S.D., 2017 ND 289, ¶ 17, 904 N.W.2d 479).
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.
3
K.B., at ¶ 4 (quoting 25 U.S.C. § 1912(f)). “When Indian children are involved
in proceedings such as this, state and federal law create a dual burden of proof
for the party seeking termination of parental rights.” K.S.D., at ¶ 6. “The party
seeking termination of parental rights must prove all elements by clear and
convincing evidence.” K.B., at ¶ 4 (citing K.S.D., at ¶ 7).
[¶9] The North Dakota Legislature recently enacted state law standards for
termination of parental rights when the child is Indian, codifying and
consistent with the federal ICWA standards. N.D.C.C. § 27-20.3-19. While the
parties in this case frame the issues under the federal ICWA standards, we
note that N.D.C.C. § 27-20.3-19 was effective in July 2021 and when this
termination proceeding was initiated.
[¶10] North Dakota’s law and ICWA provide definitions of “parent” and “child”
when considering the termination of parental rights involving Indian families.
N.D.C.C. § 27-20.3-19(1)(d) and (h). North Dakota’s law provides that a
“‘Parent’ means any biological parent or parents of an Indian child or any
Indian individual who has lawfully adopted an Indian child, including
adoptions under tribal law or custom. The term does not include the unwed
father if paternity has not been acknowledged or established.” N.D.C.C. § 27-
20.3-19(1)(h). “‘Indian child’ means any unmarried individual who is under the
age of eighteen and is either a member of an Indian tribe or is eligible for
membership in an Indian tribe and is the biological child of a member of an
Indian tribe.” N.D.C.C. § 27-20.3-19(1)(d).
[¶11] The federal statutory requirements are nearly identical to the state law
requirements. “‘[P]arent’ means any biological parent or parents of an Indian
child or any Indian person who has lawfully adopted an Indian child, including
adoptions under tribal law or custom. It does not include the unwed father
where paternity has not been acknowledged or established[.]” 25 U.S.C. §
1903(9). “‘Indian child’ means any unmarried person who is under age eighteen
and is either (a) a member of an Indian tribe or (b) is eligible for membership
in an Indian tribe and is the biological child of a member of an Indian tribe[.]”
25 U.S.C. § 1903(4).
4
[¶12] We have previously reviewed the meaning of an Indian child under the
federal framework:
For ICWA to apply, the child must qualify as an “Indian child.” See
[25 U.S.C. § 1903(1)]. The mother concedes the children are not
members of an Indian tribe under 25 U.S.C. § 1903(4)(a). As a
result, application of ICWA to this case hinges upon whether the
mother or father is a member of an Indian tribe and whether the
children are eligible for membership in an Indian tribe.
….
Whether the father is a member of the Round Valley Indian Tribes
in California involves findings of fact and questions of
law. See Adoption of C.D., 2008 ND 128, ¶ 19, 751 N.W.2d 236 (“[I]t
is for the state court to . . . make the legal determination whether
the child is an Indian child . . . thereby triggering application of
ICWA. Thus, the court must initially determine whether a tribe
has concluded that the child or parent is a member or is eligible for
membership in the tribe, and that determination by the trial court
is a finding of fact.”). When presented with a mixed question of law
and fact, we review the questions of law subject to the de novo
standard of review and the findings of fact subject to the clearly
erroneous standard of review. See Schirado v. Foote, 2010 ND 136,
¶ 7, 785 N.W.2d 235.
Interest of R.L.-P., 2014 ND 28, ¶¶ 41, 43, 842 N.W.2d 889.
[¶13] The juvenile court found ICWA applies to A.C. A representative of the
Turtle Mountain Band of Chippewa Indians provided an affidavit that was
accepted into evidence by the court stating that A.C. is an Indian child through
A.L. and would be eligible to enroll for membership in the tribe. We have
previously deferred to the tribe’s determinations of its own membership and
eligibility in ICWA proceedings:
An Indian tribe’s determinations of its own membership and
eligibility for membership are binding and conclusive in an ICWA
proceeding. The rule is premised upon a tribe’s inherent power to
define and determine its own membership, which is central to its
existence as an independent political community. Therefore, in
determining whether ICWA applies, state courts may not second-
5
guess the internal decision-making processes of the tribe in regard
to its membership determination.
Interest of R.L.-P., 2014 ND 28, ¶ 44 (quoting Adoption of C.D., 2008 ND 128,
¶ 23, 751 N.W.2d 236). We defer to the tribe’s determination A.C. is an Indian
child through A.L. and would be eligible to enroll for membership in the tribe.
[¶14] Consistent with the tribe’s determination, the juvenile court found that
A.C. is an Indian child. Having found A.C. to be an Indian child, the court
applied the heightened ICWA standards. However, the juvenile court also
found A.L. has not established paternity over A.C. Both North Dakota law and
ICWA exclude from the definition of Indian parent an “unwed father if
paternity has not been acknowledged or established.” Under North Dakota’s
new statutory provisions and under ICWA, there cannot be an “Indian child”
without an Indian “Parent” and without an “Indian child” neither ICWA nor
the heightened review under North Dakota law apply to this case. The
inconsistent findings that A.C. is an Indian child and paternity has not been
established with respect to A.L. represent a misapplication of the law and are
therefore clearly erroneous.

Outcome: Without consistent and clear factual findings supporting the application
of ICWA and North Dakota heightened review for Indian families we are
unable to determine the remaining issues raised by A.L. Whether Cass County
engaged in active efforts to prevent the breakup of an Indian family and
whether the State failed to prove beyond a reasonable doubt that continued
custody of A.C. by A.L. would likely result in serious harm to A.C. are both
dependent upon whether the heightened ICWA and State standards apply to
this case. We retain jurisdiction and remand this case for clarification of the
findings and, if necessary, additional evidentiary proceedings to resolve the
inconsistencies

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