Interest of K.B.

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 163In 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
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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
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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.
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[¶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.
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