OPINION
The father challenges the state’s failure to call a qualified expert witness under the Indian Child Welfare Act to determine whether his three sons were in need of protectiоn or services. 25 U.S.C. §§ 1901-1923 (1988). The father also challenges the trial court’s denial of a continuance. We affirm in part, reverse in part and remand.
FACTS
The father and three children invоlved in this case are enrolled members of the Red Lake Band of the Minnesota Chippewa Tribe. The three children, J.A.S., F.A.B., and C.J.S., Jr., were taken into protective custody on Dеcember 5, 1991. Five days later, a petition for protection or services was filed alleging that the children had been victims of abuse or resided or would reside with a perpetrator of domestic abuse pursuant to Minn.Stat. § 260.015, subd. 2a(2) (1990); the children were without proper parental care pursuant to Minn.Stat. § 260.015, subd. 2a(8); and the children’s associations werе injurious or dangerous to them under Minn.Stat. § 260.015, subd. 2a(9).
The petition alleged, and the trial court subsequently found, that the father struck one child in the back with a belt as a method of disciplining him for taking a can of pop without permission. The court also found the father threatened to burn down his house as a matter of discipline and did light a piece of papеr on fire. The court also found that the father had left one child with a neighbor when the child was sick, and he could not be reached when the child was in need of emergency mеdical care.
During a detention hearing held on December 17, 1991, the trial court issued an order to hold the three boys in foster care pending the next appearance before the *334 court. Trial commenced on February 14, 1992. Prior to the presentation of evidence, the father’s attorney asked the court for a continuancе. The attorney stated he was only able to talk with the father about the case during a few telephone conversations and a brief discussion immediately before the triаl. The attorney had been appointed to represent the father on January 1, 1992. The father, however, had been in inpatient treatment at Brainerd State Hospital for 30 days. Subsequently, from February 1 until the day before trial, the father was in aftercare at a halfway house in Duluth. The trial court denied the request for a continuance.
The state сalled three social workers, a family practice physician, and three teachers as witnesses at the hearing. None of these individuals were presented as qualified expert witnesses pursuant to the Indian Child Welfare Act. After the close of the case, the father’s attorney noted that the state had failed to call a qualified еxpert witness. The trial court found the state had proved its case and issued an order finding the three boys in need of protection or services.
On March 10, 1992, a dispositional hearing was held. The trial court then issued an order reiterating its finding that the children were in need of protection or services and imposed certain conditions upon the father. The father appeals from the February 14 order.
ISSUES
1. Did the state meet its burden of proof in showing Indian children were in need of protection or services when it did not prеsent testimony of a qualified expert witness as provided for in the Indian Child Welfare Act?
2. Did the trial court abuse its discretion in denying the father’s request for a continuance?
ANALYSIS
1. To answer whether the state was required to call a qualified expert witness to prove the children were in need of protection or services involves construction of the Indian Child Welfare Act. Construction of a statute is a question of law which is reviewed de novo by an appellate court.
Hibbing Educ. Ass’n v. Public Employment Relations Bd.,
The parties do not dispute that each of thе boys is an “Indian child” so that the Act applies in this case. See 25 U.S.C. § 1903(4). Congress enacted the Act to prevent the breakup of Indian families. 25 U.S.C. § 1901(4). It establishes minimum federal standards to regulate the removal of Indian children from their families:
No foster care placement may be ordered in such proceeding in the absence of a determination, supрorted by clear and convincing evidence, 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 damаge to the child.
25 U.S.C. § 1912(e) (emphasis added). “Foster care placement,” in turn, is
[a]ny action removing an Indian child from its parent or Indian custodian for temporary placement in a foster home or institution or the home of a guardian or conservator where the parent or Indian custodian cannot have the child returned upon demand, but whеre parental rights have not been terminated.
25 U.S.C. § 1903(l)(i). An exception to these requirements was created for the emergency removal of a child:
Nothing in this subchapter shall be construed to prevent the emergency removal of an Indian child who is a resident of or is domiciled on a reservation, but temporarily located off the resеrvation, from his parent or Indian custodian or the emergency placement of such child in a foster home or institution, under applicable State law, in order to prеvent imminent physical damage or harm to the child.
25 U.S.C. § 1922.
The father argues expert witness testimony was required at the February 14 hearing. The state, however, maintains
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such testimony was not nеcessary because it was a detention hearing. We disagree. It is likely that the testimony of a qualified expert witness was not required at the December detention hearing since that hearing constituted an “emergency removal” within the meaning of section 1922.
See State ex rel. Juvenile Dep’t of Multno-mah County v. Charles,
Most importantly, the February 14 order directs “foster care placement” within the meaning of the Indian Child Welfare Act. The finding that the children were in need of protection or services was in effect an “action removing [these] Indian child[ren] from [their] parent * * * for temporary рlacement in a foster home.” 25 U.S.C. § 1903(l)(i). Testimony of a qualified expert witness was thus necessary for the state to meet its burden of proof at that hearing.
See Matter of N.L.,
For these reasons, we reverse the trial court’s determination that the children were in need of protection or services. The record indicates that it may be appropriate for the children to remain in emergency foster placement. See 25 U.S.C. § 1922 (emergency placement terminates when it “is no longer necessary to prevent imminent physical damage or harm to the child”). We rеmand this issue to the trial court for consideration.
2. The father also argues the trial court abused its discretion in denying his request for a continuance. Whether to grant a continuаnce is a ruling within the trial court’s discretion, which will not be reversed absent a showing of a clear abuse of that discretion.
Dunshee v. Douglas,
We additionally note that the father and his attorney had opportunities to talk on the telephone during father’s treatment. Moreover, the father has not shown any prejudice by reason of the triаl court’s denial of a continuance. Under these circumstances, we find no abuse of discretion.
DECISION
The state did not meet its burden of proof that the Indian children were in neеd of protection or services when it failed to present testimony of a qualified expert witness pursuant to the Indian Child Welfare Act. The trial court did not abuse its discretion in denying the father’s continuance request.
Affirmed in part, reversed in part and remanded.