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JUVENILE COURT

RULES OF JUVENILE PROTECTION PROCEDURE

RULE 31.TRANSFER TO CHILD'S TRIBE

Rule 31.01.Transfer of Juvenile Protection Matter to the Tribe

Subd. 1.Motion or Request to Transfer.

At any stage in the proceedings, an Indian child's parent, Indian custodian, or tribe may request transfer of the juvenile protection matter to the Indian child's tribe by:

(a) filing with the court and serving a motion or any other written document; or

(b) making an on-the-record request which shall be reflected in the court's findings.

Subd. 2.Service and Filing Requirements for Motion, Request, or Objection to Transfer Matter to Tribe.

(a) When a motion or other written document is filed pursuant to subdivision 1(a), the service and notice provisions of Rule 14.02, subd. 1, apply. Service and notice shall also made upon parents who are participants to the proceedings.

(b) When an on-the-record request is made pursuant to subdivision 1(b), the objection and continuance provisions of Rule 14.02, subd. 3, apply.

Subd. 3.Transfer Required Absent Objection by Parent or Good Cause Finding.

Upon motion or request of an Indian child's parent, Indian custodian, or tribe pursuant to subdivision 1, the court shall issue an order transferring the juvenile protection matter to the Indian child's tribe absent objection by either parent pursuant to subdivision 4 or a finding of good cause to deny transfer pursuant to subdivision 6(b), and shall proceed pursuant to Rule 31.02. The order transferring the juvenile protection matter to the Indian child's tribe shall order jurisdiction of the matter retained pursuant to subdivision 7 until the Indian child's tribe exercises jurisdiction over the matter.

Subd. 4.Objection to Transfer by Parent.

A parent of an Indian child may object to transfer of a juvenile protection matter to the Indian child's tribe.

(a) Form of Objection. The parent's objection shall be in writing or stated on the record. The writing may be in any form sufficient for the court to determine that the parent objects to the request to transfer the matter to the Indian child's tribe.

(b) Timing of Filing and Service. Any written objection shall be filed with the court and served upon those who are served with the motion pursuant to Rule 14.02, subd. 1, either:

(1) within 15 days of service of the motion, written request, or on-the-record request to transfer the juvenile protection matter to the Indian child's tribe under subdivision 1; or

(2) at or before the time scheduled for hearing on a motion to deny transfer for good cause, if any, under subdivision 6.

(c) Method of Filing and Service. Any written objection by a Registered User of the E-Filing System shall be served upon another Registered User in compliance with Rule 14.03 of the General Rules of Practice for the District Courts. All other service of the written objection shall be made by personal service, U.S. mail, or e-mail or other electronic means agreed upon in writing by the person to be served. Service of the written objection shall be accomplished by the parent's attorney or by the court administrator when the parent is not represented by counsel.

(d) No Hearing Required. A hearing on an objection to transfer by parent is not required.

(e) Decision and Order. Upon objection by a parent, the court shall deny the request to transfer the juvenile protection matter to the Indian child's tribe and issue its findings and order pursuant to Rule 9.01. The court shall include a parent's on-the-record objection to the transfer as a finding in its order denying the motion to transfer.

Subd. 5.Request to Deny Transfer by Party Who is Not a Parent.

(a) Party Who is Not a Parent. A party who is not a parent may request that the juvenile protection matter not be transferred to the Indian child's tribe by filing with the court and serving a notice of motion and motion pursuant to subdivision 1(a) and Rule 14 within 15 days of receiving the request to transfer the matter to the tribe. The party opposing transfer shall provide a written explanation of the reason for the opposition.

(b) Establishment of Good Cause. A party who is not a parent opposing transfer of the juvenile protection matter has the burden of establishing good cause not to transfer. The request to deny transfer shall be scheduled for hearing pursuant to subdivision 6.

Subd. 6.Hearing on Request to Deny Transfer to Tribal Court.

(a) Hearing. Within 15 days of the filing of a written request to deny transfer of the juvenile protection matter to the Indian child's tribe, the court shall conduct a hearing to determine whether good cause exists to deny the transfer to the tribe pursuant to the Indian Child Welfare Act, 25 U.S.C. section 1911(b), and the Minnesota Indian Family Preservation Act, Minnesota Statutes, section 260.771, subdivision 3a.

(b) Decision. The court shall make findings regarding the existence of good cause to deny transfer. If good cause to deny transfer is not found, the court shall order the matter transferred to tribal court and shall proceed pursuant to Rule 31.02. If good cause to deny transfer is found, the court may either deny the request to transfer or order the matter transferred to tribal court.

Subd. 7.Retention of District Court Jurisdiction until Notice from the Indian Child's Tribe.

(a) District Court Jurisdiction. The district court shall retain jurisdiction over the juvenile protection matter by written order until the district court judge receives information from the tribal court that the tribe has exercised jurisdiction over the matter. Pending exercise of jurisdiction by the Indian child's tribe, the district court has continued authority to:

(1) approve or modify services to be provided to the child and the child's family; or

(2) approve or modify the case plan; and

(3) make other orders that ensure a smooth transition of the matter to the tribe.

(b) Hearings in District Court Pending Dismissal. The district court may conduct hearings as required by Minnesota Statutes, chapter 260C, and these rules and shall conduct a review hearing at least every ninety days until the Indian child's tribe exercises jurisdiction over the juvenile protection matter or the tribal court declines the transfer in response to the district court's order to transfer the matter to the tribe. Such hearings shall be for the purpose of reviewing the provision of services under the case plan or the provision of services to the child and family and to update the court regarding exercise of jurisdiction over the matter by the Indian child's tribe.

(c) Exercise of Jurisdiction by Indian Child's Tribe. The district court may accept and rely on any reasonable form of communication indicating the tribe has exercised jurisdiction over the juvenile protection matter. The district court shall acknowledge receipt of the communication and the exercise of jurisdiction over the matter by the tribe by forwarding to the tribal court of, or designated by, the Indian child's tribe an order terminating the district court's jurisdiction over the matter under paragraph (e).

(d) Declination of Transfer by Tribal Court. Upon declination of the exercise of jurisdiction over the juvenile protection matter by a tribal court, the district court shall proceed as if the matter was not transferred to tribal court.

(e) Order Terminating District Court Jurisdiction. After issuing the order transferring the juvenile protection matter to the Indian child's tribe pursuant to subdivision 6(b), and once the district court judge receives information that the tribe has exercised jurisdiction over the matter pursuant to paragraph (a), the district court judge shall issue an order terminating jurisdiction over the matter which shall include provisions:

(1) stating the factual basis for the judge's determination that the Indian child's tribe has exercised jurisdiction;

(2) terminating jurisdiction over all parties, the Indian child's parent or Indian custodian, and the Indian child;

(3) terminating the responsible social services agency's legal responsibility for the Indian child's placement when the district court has ordered the child into protective care Minnesota Statutes, section 260C.178;

(4) terminating the responsible social services agency's legal custody of the child when the court has transferred legal custody to the responsible social services agency under Minnesota Statutes, section 260C.201, subdivision 1;

(5) discharging the Commissioner of Human Services as guardian and terminating the order for legal custody to the commissioner when the court has ordered guardianship and legal custody to the commissioner; and

(6) discharging court-appointed attorneys and the guardian ad litem for the child and for the parent, if any.

Rule 31.02.Communication between District Court and Tribal Court Judges

Subd. 1.Child Ward of Tribal Court.

(a) When the child is a ward of tribal court, prior to directing the return of the child to tribal court, pursuant to subdivision 4 the district court judge shall communicate with a tribal court judge to:

(1) inform the tribal court judge that the district court has ordered the emergency removal of the ward; and

(2) inquire of the tribal court judge about any orders regarding the safe transition of the ward so that such orders can be enforced by the district court pursuant to the full faith and credit provisions of the Indian Child Welfare Act, 25 U.S.C. section 1911(d), and Rule 10 of the General Rules of Practice for the District Courts.

(b) The district court judge may order the responsible social services agency and attorney for the parties to communicate with their respective tribal counterparts or to take any other reasonable steps to ensure that the ward's tribe is timely aware of the district court's order for emergency removal of the ward.

(c) Communication permitted under this rule shall facilitate expeditious return of the ward to the jurisdiction of the Indian child's tribe and consultation regarding the safe transition of the child.

Subd. 2.Child Domiciled or Residing on a Reservation.

(a) When the child resides or is domiciled on a reservation, prior to ordering transfer of the juvenile protection matter to tribal court, the district court judge shall, pursuant to subdivision 4, communicate with a tribal court judge to:

(1) inform the tribal court judge that the district court has ordered the emergency removal of an Indian child; and

(2) inquire of the tribal court judge about any requirements or conditions that should be put in place regarding the safe transition of the child to the jurisdiction of the child's tribe.

(b) The district court judge may order the responsible social services agency and attorneys for the parties to communicate with their respective tribal counterparts or to take any other reasonable steps to ensure that the Indian child's tribe is timely aware of the request to transfer the matter to the tribe.

(c) Communication permitted under this rule shall facilitate timely transfer of the matter to tribal court or return of the Indian child to the child's parent or Indian custodian.

Subd. 3.Child Not a Ward of Tribal Court, Not a Resident or Domiciliary of the Reservation.

(a) When a child is not a ward of tribal court, or does not reside on or is not domiciled on the reservation, prior to ordering transfer of the juvenile protection matter to tribal court the district court judge shall, pursuant to subdivision 4, communicate with a tribal court judge to:

(1) inquire whether the tribal court will accept the transfer and, if so, order the transfer absent objection by either parent pursuant to Rule 31.01, subd. 4, or a finding of good cause to deny the transfer pursuant to Rule 31.01, subd. 6(b), and proceed pursuant to Rule 31.01, subd. 7; and

(2) inquire of the child's tribe what district court orders should be made regarding the child's safe transition to the jurisdiction of the Indian child's tribe when 25 U.S.C. section 1911(b) applies.

(b) The district court judge may order the responsible social services agency and counsel for the parties to communicate with their respective tribal counterparts or to take any other reasonable steps to ensure that the Indian child's tribe is timely aware of the request to transfer the matter to the tribe.

Subd. 4.Method of Communication; Inclusion of Parties; Recording.

(a) Method of Communication. Communication between the district court judge and the tribal court judge may be in writing, by telephone, or by electronic means.

(b) Inclusion of Parties. The district court judge may allow the parties to participate in the communication with the tribal court judge. Participation may be in any form, including a hearing on-the-record or a telephonic communication.

(c) Record of Communication. Except as otherwise provided in paragraph (d), a record shall be made of a communication under this rule. If the parties or any party did not participate in the communication, the court shall promptly inform the parties of the communication and grant access to the record. The record may be a written or on-the-record summary of any telephone or verbal communication or a copy of any electronic communication.

(d) Administrative Communication. Communication between courts on administrative matters may occur without informing the parties and a record need not be made.

Rule 31.03.Court Administrator's Duties

Upon receiving an order transferring a juvenile protection matter to tribal court, the court administrator shall file the order and serve it on all parties, participants, the Indian child's parents, and the Indian child according to the requirements of Rule 9. The court administrator shall forward a certified copy of the complete court file personally, by U.S. mail, through the E-Filing System, by e-mail or other electronic means agreed upon in writing by the tribal court official, as otherwise directed by the transferor court, or any other means calculated to ensure timely receipt of the file by the tribal court.

"Tribe," "Tribal Court," and "Tribal Social Services." Throughout the Indian Child Welfare Act (ICWA), 25 U.S.C. sections 1901-1963, the phrases "tribe," "tribal court," and "tribal social services" are used. In an effort to remain consistent with ICWA, Rule 31 mirrors the use of those phrases.

Exclusive Jurisdiction. With respect to exclusive jurisdiction, ICWA provides:

"An Indian tribe shall have jurisdiction exclusive as to any State over any child custody proceeding involving an Indian child who resides or is domiciled within the reservation of such tribe, except where such jurisdiction is otherwise vested in the State by existing Federal law. Where an Indian child is a ward of a tribal court, the Indian tribe shall retain exclusive jurisdiction, notwithstanding the residence or domicile of the child."

25 U.S.C. section 1911(a). The language in the Minnesota Indian Family Preservation Act (MIFPA), Minnesota Statutes, section 260.771, subdivision 1, is nearly identical. For a full discussion of "domicile" under ICWA, see Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30 (1989).

Tribe's Method of Communicating Exercise of Jurisdiction. 31.01, subd. 7(c), provides "[t]he district court may accept and rely on any reasonable form of communication indicating the tribe has exercised jurisdiction over the juvenile protection matter." The information received may be in a written order or letter, a telephone call, a faxed or emailed message, a copy of a hearing notice setting the matter for hearing in tribal court, or any other form of communication between the tribe and the district court judge regarding the tribe's action in regard to the district court order transferring the matter to the Indian child's tribe.

Transfer of Juvenile Protection Matter after Termination of Parental Rights. ICWA does not preclude the transfer of matters to tribal court following termination of parental rights. Rule 31.01, subd. 7(e)(5), recognizes the practice of transferring cases to the tribe after termination of parental rights and requires certain orders when such a transfer is made, inter alia, discharging the Commissioner of Human Services as the guardian for the child.

Transfer to Tribe Other Than Indian Child's Tribe. ICWA provides for the transfer of jurisdiction from State court to the "the Indian child's tribe." 25 U.S.C. section 1911. Rule 31.01, subd. 7(c), recognizes that some Indian tribes are exercising jurisdiction over child custody proceedings by designating other tribes to act on their behalf to receive the transferred case.

"Good Cause" to Deny Transfer. Consistent with ICWA, 25 U.S.C. section 1911(b), Rule 31.01, subd. 3, mandates that transfer to the Indian child's tribe must occur upon motion absent objection by a parent or a finding of "good cause to deny transfer." "Good cause to deny transfer" is not defined in ICWA, but is described in MIFPA, Minnesota Statutes, section 260.771, subdivision 3a, and in the ICWA regulations, 25 C.F.R. section 23.118.

Rule 31.02, subd. 4, regarding communication between courts includes language similar to certain provisions in the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), Minnesota Statutes, section 518D.110. Not all provisions in the "communication between courts" provisions of the UCCJEA are included in this rule because the UCCJEA is not applicable when the case is governed by ICWA. See Minnesota Statutes, section 518D.104, paragraph (a). The purpose of requiring court-to-court communication is to facilitate expeditious return or transfer by timely and direct contact between judges. Nothing in this rule shall be construed to delay return or transfer of the matter to tribal court. Administrative matters may include schedules, calendars, court records, and similar matters. Communication may include receipt of a tribal court order.

Minnesota Office of the Revisor of Statutes, 700 State Office Building, 100 Rev. Dr. Martin Luther King Jr. Blvd., St. Paul, MN 55155