In the Matter of the Welfare of the Child of: M. J. H. and M. J. M., Parents.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-0918

In the Matter of the Welfare of the Child of: M. J. H. and M. J. M., Parents.

Filed November 6, 2017
Affirmed
Reilly, Judge

Olmsted County District Court
File No. 55-JV-17-929

Michael D. Schatz, Donnelly Law Office, Rochester, Minnesota (for appellant)

Mark A. Ostrem, Olmsted County Attorney, Michelle A. S. Barnes, Assistant County
Attorney, Rochester, Minnesota (for respondent Olmsted County Community Services)

M.J.M., St. Cloud, Minnesota (pro se respondent)

Vicki Duncan, Rochester, Minnesota (guardian ad litem)

Considered and decided by Kirk, Presid ing Judge; Reilly, Judge; and Smith, Tracy
M., Judge.
U N P U B L I S H E D O P I N I O N
REILLY, Judge
Appellant-mother M.J.H. challenges the di strict court’s order terminating her
parental rights to her child, C.M.M. Because a statutory ground for termination exists and
termination is in the child’s best interests, we affirm.

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FACTS
Mother challenges the district court’s order terminating parental rights to her child,
C.M.M., who was born in March 2009. C. M.M. has suffered from serious medical
conditions since birth, includ ing a collapsed lung, hip dys plasia, and Stage 3 kidney
disease. C.M.M. was hospitalized for the firs t six months of his life. C.M.M. follows a
strict diet to support proper kidney functioning and requires numerous medications, some
of which must be administered at particul ar times. C.M.M.’s medical needs increased
when he was three and four years old, and he required vesicostomy surgery and growth
hormone injections. Since C.M.M.’s birth, mother has received parenting assistance from
C.M.M.’s foster parents, who provided care for him on a weekly basis.1
Mother has a history of drug and alcohol abuse. Mother started using marijuana
as a teenager, and continued to use it during her pregnancy with C.M.M. Mother’s alcohol
use escalated when C.M.M. wa s three years old. Mother began drinking heavily each
weekend, leaving C.M.M. in the care of his foster parents for as long as three to four nights
at a time. At that time, C.M.M.’s foster parents were not properly educated on how to give
C.M.M. his various medications and growth hormone injec tions, and C.M.M.’s medical
needs went unmet. During this time period, mother was convicted of two impaired-driving
offenses and began abusing drugs, including OxyContin, methamphetamine, and heroin.
In February 2015, Olmsted County Community Services (OCCS) received a report
that mother left C.M.M. in the care of her sister, B.H., while B.H. was high on

1 The foster parents are C.M.M.’s paternal aunt and uncle.
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methamphetamine. Although mother immedi ately picked C.M.M. up from her sister’s
home when she became aware of her sister’s drug use, the situation was reported to OCCS
because mother had left C.M.M. in the care of an unsafe provider. OCCS opened a family
assessment, which was later closed in June 2015 when OCCS determined that further
services were no longer needed.
At the end of February 2016, OCCS received an anonymous report that mother was
using heroin in C.M.M.’s presence, and that there were drugs and razor blades “lying
around” mother’s apartment. A few days later, OCCS received a second report that mother
was using drugs and C.M.M. ha d been unable to wake her and thought she was dead.
Mother acknowledged that she was addicted to OxyContin pills, wh ich she kept in her
purse within C.M.M.’s reach. OCCS was concerned about mother’s drug use, her inability
to get C.M.M. to school, 2 and her habit of routinely droppi ng C.M.M. off with his foster
parents without notice and without his medications.
OCCS opened a family asse ssment case and assigned an assessment worker.
Mother provided three positive urinalysis tests during the assessment period, testing
positive for methamphetamine, heroin, and mariju ana. Mother later admitted to using
Vicodin. OCCS was concerned about mothe r’s drug use, C.M.M.’s unmet medical and
educational needs, mother’s overall decision- making abilities, and reports that mother

2 C.M.M. has an individualized education plan at his elementary school and receives
additional help. As of the date of the termination trial, C.M.M. was behind in second grade
due to his many absences while in his mother’s care. The district court’s termination order
also found that mother had not been in contact with any of C.M.M.’s teachers and had not
attended any parent-teacher conferences.
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allowed unsafe people into the home with C.M.M. OCCS developed a case plan outlining
its concerns and expectations for mother. The case plan included a requirement that mother
have no unsupervised care of the child. C.M.M. was placed in the care of his foster parents
on March 2, 2016, in accordance with OCCS’s case plan, and mother signed a Delegation
of Parental Authority on the same date.
In April 2016, OCCS opened ongoing case management se rvices for the family.
Mother signed the case plan and agreed with the goals articul ated in the plan, but missed
meetings with the social worker and refused to submit to urinalysis examinations. OCCS’s
social worker formulated a second out-of-home case plan in June because mother had not
made progress on the goals of the initial case plan regarding her chemical use. The case
plan required mother to remain sober fro m all mood-altering chemicals, including
methamphetamine, heroin, and alcohol, and to provide OCCS with urine samples upon
request. Mother completed a Rule 25 assessment in Ma rch 2016, which recommended
inpatient treatment. Mother refused to atte nd inpatient treatment. The social worker
testified that from “March of 2016 to March of 2017 there was never a point that I was
confident that [mother] was sober.”
On September 14, 2016, mother signed a Voluntary Placemen t Agreement with
OCCS, allowing C.M.M. to be placed in foster care. Five days later, OCCS filed a child-
in-need-of-protection-or-services petition due to concerns about (1) mother’s history of
substance abuse; (2) the parents’ history of domestic violence; and (3) C.M.M.’s health
needs and mother’s in ability to meet those needs. At the settlement conference in
November 2016, mother signed a settlement agreement admitting that C.M.M. was a child
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in need of protection. The di strict court adjudicated C.M.M. to be a child in need of
protection or services and found that social services had made reasonable efforts to prevent
removal of the child and reunification was not possible.
On February 9, 2017, OCCS filed a Term ination of Parental Rights Petition under
Minnesota Statutes section 260C.301, subdivis ions (1)(b)(4) and (5) (2016), with respect
to mother. The district court held a trial in April 2017 and filed an order on May 22, 2017,
ruling that the statutory grounds for termin ation had been proved and that clear and
convincing evidence existed to terminate mother’s parental rights under section 260C.301,
subdivision 1(b)(4), for palpable unfitness; and subdivision 1( b)(5), for failing to correct
the conditions leading to the child’s placem ent out of the home. 3 The district court also
ruled that terminating mother’s parental rights was in C.M.M.’s best interests.
Mother appeals.
D E C I S I O N
I. Standard of Review
The decision to terminate parental rights is discretionary with the district court. In
re Welfare of Child of R.D.L., 853 N.W.2d 127, 136-37 (Minn. 2014). While a reviewing
court conducts a close inquiry into the evidence, it also gives “considerable deference” to
the district court’s termination decision. In re Welfare of Children of S.E.P., 744 N.W.2d
381, 385 (Minn. 2008). We will affirm the te rmination of parental rights if “at least one
statutory ground for termination is supp orted by clear and convincing evidence and

3 The district court also terminated C.M.M.’s father’s parental rights. Father has not
appealed this determination.
6
termination is in the child’s best interests.” In re Welfare of Children of R.W., 678 N.W.2d
49, 55 (Minn. 2004). A distri ct court’s determination of whether a statutory ground for
terminating parental rights is present is revi ewed for an abuse of discretion, while the
district court’s underlying findings of fact are reviewed for clear error. In re Welfare of
Children of J.R.B., 805 N.W.2d 895, 901 (Minn. App. 2011), review denied (Minn. Jan. 6,
2012). The “best interests of the child” are the “paramount consideration” in a termination
proceeding. Minn. Stat. § 260C.301, subd. 7 (2016). A decision that termination is in the
child’s best interests is reviewed for abuse of discretion. J.R.B., 805 N.W.2d at 901-02.
II. Evidentiary Issues
Mother challenges several of the district court’s factual findings as “manifestly
contrary to the weight of the evidence or not reasonably supported by the evidence as a
whole,” including that: (a) mother was still in contact with C.M.M.’s biological father;
(b) mother was not taking responsibility for her addiction; (c) mother told C.M.M. that his
father was incarcerated; (d) mother could not manage C.M.M.’s medical needs; (e) mother
dropped C.M.M. off at his foster parents for up to three nights at a time without
medications; (f) mother had mental health issues; and (g) mother was not a safe and stable
caregiver for C.M.M.
A district court’s evidentiary rulings generally will not be reversed absent a clear
abuse of discretion, and appella nt bears the burden of establis hing that the district court
abused its discretion and that appellant was prejudiced as a result. In re Welfare of D.D.R.,
713 N.W.2d 891, 904 (Minn. App. 2006). With certai n exceptions, “in a juvenile
protection matter the court sha ll only admit evidence that w ould be admissible in a civil
7
trial pursuant to the Minnesota Ru les of Evidence.” Minn. R. J uv. Prot. P. 3.02, subd. 1.
Neither party argues the applicability of any exception in this case. See Minn. R. Juv. Prot.
P. 3.02, subds. 2, 3 (listing exceptions); see also Minn. Stat. § 260C.165 (2016) (same).
Mother argues that the district court’ s factual findings were based on hearsay
evidence. “‘Hearsay’ is a statement, other than one made by the declarant while testifying
at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Minn.
R. Evid. 801(c). Mother raised only one hearsay objection at trial, and this court generally
“will not consider a challenge to the admissi on of evidence unless . . . a timely objection
or motion to strike appears of record.” Minn. R. Evid. 103(a)(1). Even if we consider
these arguments, we determine that the district court did not abuse its discretion.
At trial, mother’s single hearsay objection occurred during a por tion of the social
worker’s testimony related to drug use at mother’s apartment. The district court overruled
the objection. “The decision whether to admit or exclude evidence is discretionary with
the district court.” In re Welfare of Child of J.K.T., 814 N.W.2d 76, 93 (Minn. App. 2012).
At the time of her testimony, the social worker was reviewing a police report, kept as part
of normal police records, to refresh her recollection as to the correct order of events. The
contents of the police report fa ll within the public records exception to the hearsay rule.
See Minn. R. Evid. 803(8) (stating that reco rds and reports in any form compiled by a
public official concerning matters observed pu rsuant to duty imposed by law as to which
matters there was a duty to report, are not excluded by the hearsay rule). The district court
did not abuse its discretion when it overruled this objection.

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a. Mother’s contact with C.M.M.’s biological father
Mother claims that she had no t been in contact with C.M. M.’s father. The district
court did not credit mother’s claim, and found that mother “still has contact with [father]
which is worrisome to this Court.” Mother testified that she had only limited contact with
father. Father contradicted her statements and “informed the Court that they have
contacted each other by text messaging and ja il phone calls.” The district court credited
father’s testimony above mother’s testimo ny, and we decline to substitute our own
credibility determinations or independ ently weigh the evidence on appeal. See In re
Welfare of M.D.O., 462 N.W.2d 370, 374-75 (Minn. 1990).
b. Mother’s acceptance of responsibility for addiction
Mother challenges the social worker’s testimony relating conversations with a
chemical depende ncy provider about mo ther’s inability or unwillingness to take
responsibility for her actions, and the effect of mother’s addiction on C.M.M. and others.
On appeal, mother characterizes this testimony as “blatant h earsay,” and argues that the
testimony is unsupported by the evidence. Mother failed to raise this hearsay objection at
trial, depriving OCCS of the op portunity to either call the treat ment provider to testify at
trial or to establish that the statements were admissible under a hearsay exception. See In
re Welfare of M.S.M., 387 N.W.2d 194, 199 (Minn. 1986) (precluding a party from raising
an issue for first time on appeal). Furthe rmore, the social worker’s testimony was
adequately supported by the evid ence in the record. We recognize that the district court
has a “unique ability to evaluate witness credibility and weigh conflicting evidence,” In re
9
Welfare of M.A.H., 839 N.W.2d 730, 746 (Minn. App. 2013), and we discern no abuse of
discretion here.
c. Mother’s statements that father was incarcerated
The district court found that following a vi sit to his mother in inpatient treatment,
“[C.M.M.] made a comment regarding how [father ] was in jail. [C.M .M.] had no way of
knowing this information unless [mother] told him.” Mother claims that she did not tell
C.M.M. that his father was in jail, and asserts that someone else could have told him of his
father’s incarceration. We decline to subs titute our own credibilit y determinations for
those of the district court. See M.D.O., 462 N.W.2d at 374-75. Moreover, this finding is
but a very small part of the case against mother.
d. Mother’s ability to manage C.M.M.’s medical needs
Mother objects to the district court’s findings that she was unable to manage
C.M.M.’s medical needs and dropped him off at his foster parents for extended periods of
time. But ample evidence in the record supports these findings. The district court found it
“apparent” that mother “does not fully unde rstand” C.M.M.’s medical needs, and noted
that she was “unable to explain all of [his ] medications and what the medications were
treating,” had not been “diligent in providing [C.M.M.] proper medical care,” frequently
dropped C.M.M. off with his foster parents fo r up to three nights at a time without his
growth hormone shot, and faile d to get C.M.M. to all of his medical appointments.
Adequate support in the record supports the district court’s factual findings, and we will
not reweigh the evidence now.

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e. Mother’s habit of leaving C.M.M. with foster parents
Mother challenges testimony from the gua rdian ad litem regarding the foster
parents’ statements that mother repeatedly le ft C.M.M. in their care for several days at a
time. Minnesota statute provides that: “Before making a disposition in a case, terminating
parental rights . . . the court may consider any report or recommendation made by the . . .
guardian ad litem . . . or any other information deemed material by the court.” Minn. Stat.
§ 260C.193, subd. 2 (2016). The district court did not abuse its discretion by considering
testimony from the guardian ad litem before making its ruling.
f. Mother’s mental health issues
Mother disputes the district court’s factual finding that she has mental health issues.
Mother’s social worker believed that mother “struggled with depression and anxiety.” The
district court found the social worker’s testimony “credible,” and we decline to reconsider
those credibility determinations now.
g. Mother’s ability to give safe and stable care to C.M.M.
Mother challenges the district court’s findi ngs that she would be unable to become
a safe and stable caregiver. As stated, we re cognize the district court’s “unique ability to
evaluate witness credibility and weigh conflicting evidence,” M.A.H., 839 N.W.2d 730 at
746, and we view the record in the light mo st favorable to the district court’s factual
findings, In re Welfare of A.R.G.-B., 551 N.W.2d 256, 261 (Minn. App. 1996). We also
note that it is critical for counsel to raise hear say objections at trial. Otherwise, “the state
[is] not given the opportunity to establish that some or all of the statements were admissible
under one of the numerous exceptions to the hearsay rule.” Id. We determine that, on this
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record, the district court’s factual findings were not manifestly contrary to the weight of
the evidence or unsupported by the evidence as a whole. In re Welfare of Child of J.L.L.,
801 N.W.2d 405, 410 (Minn. App. 2011).
For the reasons stated above, we discern no abuse of discretion in the district court’s
evidentiary rulings and admission of testimon y. Moreover, mother has not demonstrated
that the alleged errors were prejudicial. “A new trial may be granted on the basis of an
improper evidentiary ruling only if the appe llant demonstrates prejudicial error.” J.K.T.,
814 N.W.2d at 93. A district court’s eviden tiary ruling “is not prejudicial if the record
contains other evidence that is sufficient to support the findings.” Id. (citing In re Welfare
of S.R.A., 527 N.W.2d 835, 838 (Minn. App. 1995) (concluding that any error in admission
of challenged evidence was harmless because it was cumulative to other evidence, and was
therefore not prejudicial), review denied (Minn. Mar. 29, 1995)). Here, ample evidence in
the record sufficiently supports the district court’s findings that mother had drug- and
alcohol-abuse issues, had difficulty maintaining sobriety, frequently left C.M.M. in the care
of his foster parents when she was drinking, failed to maintain a safe and sober network,
and had difficulty meeting C.M.M.’s basic needs. Accordingly, we determine that even if
the admission of the contested evidence was in error, any such error was harmless because
the challenged evidence was cumulative to other evidence and not prejudicial.
III. A Statutory Ground for Termination Exists
A district court may involuntarily terminate parental rights if one or more of nine
conditions exist. Minn. Stat. § 260C.301, subd. 1(b) (2016). Here, the district court found
that “reasonable efforts, under the direction of the court, have failed to correct the
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conditions leading to the child’s placement” out of the home. Minn. Stat. § 260C.301,
subd. 1(b)(5). We closely examine the record to determine whethe r there was sufficient
clear and convincing evidence supporting termination. S.E.P., 744 N.W.2d at 385.
Mother presented evidence that she successfully completed inpatient treatment, had
remained sober since entering an alcohol treatment program, and attended chemical-
dependency support groups, in accordance with her case plan. Mother argues that there is
no evidence suggesting that her drug use will c ontinue into the future. We agree that the
focus in termination proceedings should be on circumstances as they exist at the time of
the hearing and the expected duration of those circumstances, rather than on the parent’s
prior history. See In re Welfare of S.Z. , 547 N.W.2d 886, 893 (Minn. 1996) (“When
considering termination of parental rights, the court relies not primarily on past history, but
to a great extent upon the projected permanency of the parent’s inability to care for his or
her child.”) (quotations omitted). However, a parent cannot avoid termination by showing
only “minimal cooperation” before the termination hearing. See In re Welfare of D.C., 415
N.W.2d 915, 918 (Minn. App. 1987).
Even when a parent complies with aspects of a case plan, that does not “necessarily
equate[] with a correction of the conditions that led to the out-of-home placement.” In re
Welfare of Children of K.S.F. , 823 N.W.2d 656, 667 (Minn. App. 2012). Instead, “[t]he
critical issue is not whether the parent . . . complied with the case plan, but rather whether
the parent is presently able to assume the responsibilities of caring for the child.” J.K.T.,
814 N.W.2d at 89. Here, the district court noted that OCCS continued to have “concerns
13
about [mother’s] parenting abilities, her history of drug use, and her ability to maintain
sobriety.”
The chronology of this case is important and highlights the minimum effort mother
expended in correcting the conditions leadin g to C.M.M.’s out-of-home placement.
Mother has an extensive history of drug an d alcohol abuse, beginning when she was a
teenager and continuing through her pregnancy and C.M.M.’s childhood. Mother’s alcohol
use escalated when C.M.M. was a toddler, an d she began leaving him with his foster
parents for extended periods of time. OCCS received a report in February 2015 that mother
left C.M.M. in the care of her sister, w ho was high on methamphetamine. In February
2016, OCCS received two reports that mother was using heroin in C.M.M.’s presence. One
month later, in March 2016, mother signed a Delegation of Parental Authority. Mother
later signed a Voluntary Placement Agreement with OCCS, allowing C.M.M. to be placed
in foster care. OCCS filed a termination petition in February 2017.
Due to OCCS’s concerns about mother’s continued drug use, mother completed a
Rule 25 assessment in March 2016. The soci al worker urged mother to attend inpatient
chemical dependency treatmen t, and offered several resour ces for mother to contact.
However, mother refused to attend inpatient treatment and chose instead to continue
outpatient methadone treatment. Mother agr eed to attend inpatient treatment only after
OCCS filed the termination petition. While mo ther has remained sober, she continues to
use methadone and only “infrequently” atte nds support groups. And although mother
stated that she was going to lower her methadone dose after leaving treatment, she has yet
to do so. The social worker testified that she did not believe methadone treatment was in
14
mother’s best interests, and wo rried that it would not help mo ther’s sobriety. The social
worker testified that mother continued to use methadone up to the date of the termination
trial and becomes “very drowsy or almost kind of out of it” when he r dose is changed,
which “continues to worry” OCCS.
Moreover, the social work er testified that mother was not “tak[ing] any
accountability for her [drug] us e,” and had not established a “safe and sober network.”
Mother had a “long history of associating with individuals who use chemicals,” and one of
the goals of her case plan was to disassociate herself from “negative influences,” including
C.M.M.’s father and mother’s ex-boyfriend, with whom mother “had some drug use
history” and a history of violence. The dist rict court found that mother continues to
associate with these individuals, illustrating he r “inability to not only eliminate negative
influences, but also to choose individuals [who] are safe and supportive.”
The primary conditions referenced by the district court relate to mother’s chemical
use, the history of domestic violence in the home, and her neglect of C.M.M.’s basic needs.
Despite OCCS’s efforts to ensure that mother had the necessary resources to become sober,
maintain her sobriety, and build a support system, mother failed to “correct the conditions
leading to the child’s placement out of the home.” The district court further found that the
“provision of further services for the purpose of rehabilitati on and reunification is futile”
and “unreasonable under the circumstances.” Clear and convincing evidence in the record
supports the district court’s findings that mother failed to correct the conditions leading to
C.M.M.’s out-of-home placement.
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Because we affirm that one statutory basis for terminating parental rights exists, we
need not address the other basis identified by the district court to terminate parental rights.
See R.W., 678 N.W.2d at 55 (“Termination of parental rights will be affirmed as long as at
least one statutory ground for termination is supported by clear and convincing evidence
and termination is in the child’s best interests.”). We therefore do not address the district
court’s palpable-unfitness finding.
IV. Best Interests of the Child
We will affirm a termination decision if “at least one statutory ground alleged in the
petition is supported by clear and convincing ev idence and termination of parental rights
is in the child’s best interests.” In re Children of T.R., 750 N.W.2d 656, 661 (Minn. 2008)
(citations and quotations omitted). The ch ild’s best interest s are the paramount
consideration in a termination proceeding. Minn. Stat. §§ 260C.001, subd. 2(a), .301, subd.
7 (2016). A best-interests an alysis requires consideration of the child’s interests in
preserving the parent-child relationship, th e parent’s interests in preserving that
relationship, and any competing interests of the child. Minn. R. Juv. Prot. P. 39.05, subd.
3(b)(3); see also J.R.B. , 805 N.W.2d at 905 (“Competing in terests [of the child] include
such things as a stable environment, health considerations[,] and the child’s preferences.”
(quotation omitted)).
The district court’s best-int erests finding is well-suppor ted. With respect to the
child’s interests in preserving the parent-child relationship, the district court found that
C.M.M. has been in the permanent care of his foster parents since March 2016.
16
As to mother’s interests in preserving the relationship, The district court found that
while mother loves C.M.M., she does “not fully understand his medical needs,” feeds him
high-sodium foods that are detrimental to his special diet, frequently leaves him with his
foster parents for several days at a time without proper medication, fails to get him to school
for up to three days each week, and allows “n egative and unsafe people” to visit and stay
in her home. The district court found that while it has “no doubt that [mother] loves
[C.M.M.], she cannot provide the safety and support he needs to meet his medical needs.”
These findings are amply supported by the record, given mother’s well-documented history
of chemical abuse, domesti c violence, and neglect. See In re Welfare of R.M.M. , 316
N.W.2d 538, 542 (Minn. 1982) (affirming termination where parent’s inability to care for
child “threatens the mental and physical health” of child); see also In re Welfare of A.J.C.,
556 N.W.2d 616, 622 (Minn. App. 1996) (affirming termination of parental rights where
“in spite of [mother’s] love fo r her children, [she] has failed to comply with her parental
duties, basically due to her personal problem s of alcoholism, drug addiction, low self-
esteem, and her tendency to involve herself in abusive relationships”).
With regard to any competin g interests, the district c ourt found that terminating
mother’s parental rights will allow C.M.M. to remain in the care of his foster parents.
C.M.M. is “very loved and well supported in his current environment.” His foster parents
are “fully educated on [his] me dical needs, including his lengt hy list of medications, his
strict dietary needs, his tube feeding, and how to properly administer his growth hormone
shot,” get him to all of his medical appointm ents, and satisfy his needs for a safe, stable,
and permanent home. Because a statutory ground for termination is supported by clear and
17
convincing evidence and term ination is in C.M.M.’s best interests, we affirm the
termination of mother’s parental rights to C.M.M.
V. Mother’s ICWA Argument is Untimely and Unsupported
For the first time on appeal, mother argues that the Indian Child Welfare Act, 25
U.S.C. §§ 1901-1963 (2016) (ICWA), may apply. “There are two prerequisites to invoking
the requirements of the ICWA.” J.A.V. v. Velasco , 536 N.W.2d 896, 900 (Minn. App.
1995), aff’d sub nom. Matter of Paternity of J.A.V., 547 N.W.2d 374 (Minn. 1996) (citation
omitted). “First, it must be determined that the proceeding is a ‘child custody proceeding’
as defined by the Act.” Id. It is undisputed that this ca se is a child custody proceeding.
“Once it has been determined th at the proceeding is a child custody proceeding, it must
then be determined whether the child is an Indian child.” Id.; see also 25 U.S.C. § 1903(4)
(defining “Indian child” under federal law); Minn. Stat. § 260.755, subd. 8 (2016) (defining
“Indian child” under Minnesota law).
In October 2016, the district court issued an order in wh ich it determined that “the
Indian Child Welfare Act [ICWA] does not apply to the child.” Mother did not contest this
determination. The termination petition restated that C.M.M. “has not been determined to
be of American Indian descen t.” At no time during the pendency of the case in district
court did mother allege that C.M.M. might be an Indian child or that ICWA applied.
Instead, mother attached to her appellate brief an affidavit from her father, in which
he averred that he was “of descent from th e Chippewa Tribe out of Belcourt, North
Dakota,” and that C.M.M.’s maternal grandmother was a member of the Blackfoot Tribe.
The affidavits are dated August 7, 2017. Mother did not file a motion to correct or modify
18
the appellate record. See Minn. R. Civ. App. P. 110.05 (permitting court to supplement
record if something “material to either pa rty is omitted from the record by error or
accident”). Notably, mother did not submit an affidavit claiming that either she or C.M.M.
may be eligible for membersh ip in an Indian tribe. See 25 U.S.C. § 1903(4). Two days
later, on August 9, an OCCS so cial worker submitted a review affidavit with the district
court stating that “[t]he child has not been determined to be of Native American descent.”
The record on appeal is limited to the record available to the district court at the time
it made its decision. See Minn. R. Civ. App. P. 110.01 (“ The documents filed in the trial
court, the exhibits, and the transcript of the proceedings, if any, shall constitute the record
on appeal in all cases.”). “An appellate court may not base its decision on matters outside
the record on appeal, and may not consider matters not produced and received in evidence
below.” Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn. 1988). “[A] district court has an
affirmative obligation to inquire into whethe r ICWA applies to a custody determination
when it has reason to believe that the child subj ect to the determination is an Indian child
as defined by the act.” In re M.R.P.-C., 794 N.W.2d 373, 379 (Minn. App. 2011). Here,
the district court had no “reason to believe” that C.M.M. was an Indian child and found
that ICWA did not apply—findings that mother did not contest during the pendency of this
case in district court. Id. Because mother raised this claim for the first time on appeal, we
decline to consider it now.
Affirmed.