Interest of M.R., a Child, 870 N.W.2d 175

Background

M.R., a child, was placed in social services custody due to concerns about mother's fitness; mother voluntarily relinquished her rights.
V.G. was initially listed as possible father; V.G. was not biological father. G.L. later claimed paternity and is a Spirit Lake Sioux Tribe member, but refused biological paternity testing.
Social services filed to terminate parental rights; Spirit Lake Tribe was notified and said it would not intervene unless biological paternity was confirmed.
At the termination hearing G.L. was absent though represented by counsel; counsel declined to contact G.L. by phone based on prior discussions, and the court proceeded and declared G.L. in default.
Social workers testified about G.L.’s extensive criminal history, chronic incarceration, alcohol problems, instability, and failure to engage in offered services or parenting time; the juvenile court found termination was in the child’s best interest and that deprivation conditions were likely to continue.
The juvenile court’s order stated ICWA did not apply; the Supreme Court interpreted that to mean ICWA’s heightened standards did not apply and affirmed that tribal notice obligations had been met.

Issues

Issue	Petitioner’s Argument (State/Social Services)	G.L.’s Argument	Held
Whether juvenile court properly declared G.L. in default	Court may proceed when parent fails to appear; evidence was presented at hearing	Court erred declaring default because father was absent and should have had his participation considered	Default was proper: evidence supported termination and counsel chose not to phone client
Whether proceeding without G.L. denied due process	G.L. had notice and counsel; court recessed to allow counsel to contact him	Denied notice that continuance was denied and option to appear by phone; fundamental right to parent requires in-person hearing	Due process satisfied: notice given, represented by counsel, court attempted to permit telephonic appearance
Whether conditions and causes of deprivation were likely to continue	Evidence of chronic incarceration, criminal conduct, substance abuse, instability, and failure to engage with services supports prediction	Argued court’s prognostic finding unsupported without father’s participation	Held findings not clearly erroneous; prognostic evidence supported likelihood of continued deprivation
Whether ICWA applies and whether trial should be continued for paternity/ICWA determination	Tribe was notified; tribe declined to intervene absent biological proof; G.L. failed to meet burden to show child is an "Indian child"	Birth certificate listing G.L. sufficed to trigger ICWA protections; trial should have been continued until paternity/ICWA resolved	ICWA heightened standards do not apply because G.L. failed to prove M.R. is an Indian child; tribal notice requirement was satisfied

Key Cases Cited

Interest of K.B., 801 N.W.2d 416 (N.D. 2011) (termination elements and burden of proof)
Interest of T.A., 722 N.W.2d 548 (N.D. 2006) (definition of clear and convincing evidence)
Interest of M.B., 709 N.W.2d 11 (N.D. 2006) (standard of review for termination findings)
Anderson v. Resler, 618 N.W.2d 480 (N.D. 2000) (when a finding is clearly erroneous)
Interest of J.C., 736 N.W.2d 451 (N.D. 2007) (default and due process concerns in termination proceedings)
St. Claire v. St. Claire, 675 N.W.2d 175 (N.D. 2004) (due process notice and telephone appearance sufficiency)
Interest of G.R., 842 N.W.2d 882 (N.D. 2014) (parental capability standard)
Interest of K.J., 779 N.W.2d 635 (N.D. 2010) (need for prognostic evidence to predict future behavior)
Adoption of C.D., 751 N.W.2d 236 (N.D. 2008) (threshold for ICWA applicability and tribe’s membership determinations)