A19-1404 A19-1405 A19-1406

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-1400
A19-1404
A19-1405
A19-1406

In re the Guardianship of: Tressa M. Retz, (A19-1400),
Kadynce M. Retz, (A19-1404),
Chester A. Retz, (A19-1405),
Leo C. Retz, (A19-1406).

Filed March 23, 2020
Affirmed
Florey, Judge

Becker County District Court
File No. 03-PR-16-1194

MaryJo Wiatrak, ICWA Law Center, Minneapolis, Minnesota; and Michael P. Boulette,
Barnes & Thornburg, L.L.P., Minneapolis, Minnesota (for appellant A.B.)

Rebecca McConkey -Greene, McConkey -Greene Law Office, Duluth, Minnesota (for
respondent White Earth Band of Chippewa)

Mark D. Fiddler, Fiddler Osband, L.L.C., Edina, Minnesota (for respondents J.G. and
A.G.)

Considered and decided by Worke, Presiding Judge; Larkin, Judge; and Florey,
Judge.
U N P U B L I S H E D O P I N I O N
FLOREY, Judge
Appellant-tribe argues that the district court erred by determining that the
guardianship proceedings were not subject to the Indian Child Welfare Act (ICWA) and

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that notice to the children’s tribe was therefore not required. See 25 U.S.C. § 1901 -63
(2012). Appellant-biological mother argues that the district court erred by denying her
motion to intervene, reasserts and supports appellant-tribe’s arguments, and r aises
additional arguments of her own. We affirm.
FACTS
In 2011, appellant White Earth Band of Chippewa (White Earth), via its tribal
courts, removed four siblings (the children) from th eir biological parents —C.R. and
appellant A.B. The tribal court “su spended” A.B. and C.R.’s parental rights pursuant to
tribal law—an action that appellants assert is distinct from a “termination.” Thereafter, the
children began living with their grand-aunt, L.R., and her partner, M.G. (collectively, the
adoptive parents), who formally adopted the children through the tribal courts in 2015.
L.R. passed away one month after the adoption, and M.G. passed away one year thereafter.
When M.G. passed away in March 2016, he left a will appointing his nephew, J.G., as the
guardian of the children. J.G. was also appointed as the personal representative of the
estate and was the sole beneficiary of the will, which expressed M.G.’s desire that J.G. use
the homestead and estate to care for the children. M.G.’s will was probated in state district
court.
Immediately after M.G.’s death, J.G. and his wife, A.G., (collectively respondents)
moved into the home in which the children had been living for the previous several years.1

1 The record is unclear as to when the children moved in with the adoptive parents.

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J.G. petitioned the state district court for guardianship of each of the children in May 2016,
which were granted in July of that year (the guardianship proceedings).
Nearly three years later, in February 2019, J.G. petitioned the district court to
formally adopt the children.2 In that same month, A.B. requested that the White Earth
tribal court reinstate her parental rights. The tribal court granted A.B.’s request and
reinstated her rights in February 2019. On May 21, 2019, White Earth filed a petition with
the state district court to invalidate the guardianship proceeding s, which occurred three
years prior . In its petition to invalidate, White Earth argued, in relevant part, that the
guardianship proceeding s were “foster care placement” proceedings under ICWA and
therefore should be invalidated due to respondents’ failure to pr ovide the notice required
under 25 U.S.C. § 1912(a). At the hearing on White Earth’s petition, A.B. appeared
through her attorney and moved the district court to intervene and become a party . The
district court denied White Earth’s petition to invalidate and A.B.’s motion to interve ne.
Both appealed, whereupon the separate cases for each of the four children were
consolidated.
D E C I S I O N
This matter turns on statutory interpretation and therefore presents questions of law,
which are subject to de novo review by this court . In re Welfare of Children of R.M.B. ,
735 N.W.2d 348, 351 (Minn. App. 2007) . The primary aim of statutory interpretation is
ascertaining, for the purpose of effectuating, the legislature’s int ent. Minn. Stat. § 645.16

2 This adoption proceeding was also challenged by appellants and is at issue in the related
appeal, A19-1389.

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(2018); In re Welfare of C.R.M., 611 N.W.2d 802, 805 (Minn. 2000). Where the language
of the statute is clear and unambiguous, this court must give effect to its plain meaning. In
re Welfare of Child of E.A.C. , 812 N.W.2d 165, 169-70 (Minn. App. 2012) . A statute is
ambiguous when its language is susceptible to more than one reasonable interpretation. In
re Welfare of S.R.K. , 911 N.W.2d 821, 827 (Minn. 2018) . Only when the statutory
language is ambiguous may we draw on the canons of construction and other interpretive
tools. State v. Nelson, 842 N.W.2d 433, 436 (Minn. 2014).
While review of the legal issues is de novo, this court “defers to the district court’s
underlying findings of fact.” Stageberg v. Stageberg, 695 N.W.2d 609, 613 (Minn. App.
2005), review denied (Minn. July 19, 2005) . This court will not overturn such factual
findings unless they are clearly erroneous. In re Welfare of Child of T.C.M. , 758 N.W.2d
340, 344 (Minn. App. 2008).
I. The Indian Child Welfare Act
White Earth argues that ICWA applies to the 2016 guardianship proceedings and
respondents were therefore required to provide the tribe with notice of those proceedings.
25 U.S.C. § 1912(a). Section 1912(a) provides that “[i]n any involuntary proceeding in a
State court, where the court knows or has reason to know that an Indian child is involved,
the party seeking the foster care placement of . . . an Indian child shall notify the parent or
Indian custodian and the Indian child’ s tribe.” If a state -law action for foster care
placement occurs in violation of section 1912(a), section 1914 provides that the Indian
child’s tribe, as well as the parent from whom the child was removed, “may petition any
court of competent jurisdiction to invalidate such action.” 25 U.S.C. § 1914. Because

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section 1912(a) was violated by the guardianship proceedings, White Earth argues, section
1914 requires an invalidation of the same. The district court held that ICWA is inapplicable
because the guardianship proceedings were not “foster care placement” proceedings.
ICWA defines “foster care placement” as any “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 where parental rights have not been terminated.” 25
U.S.C. § 1903(1)(i). In interpreting this definition, this court has held that, to be a “foster
care placement” under ICWA, a given proceeding or action must encompass four prongs:
(1) removing the Indian child from the child’s parent or Indian
custodian; (2) temporarily placing the child in a “foster home
or institution or the home of a guardian or conservator” where;
(3) the parent or Indian custodian cannot have the child
returned upon demand; and (4) parental rights have not been
terminated.

In re Custody of A.K.H. , 502 N.W.2 d 790, 792 (Minn. App. 1993) (quoting 25 U.S.C.
§ 1903(1)(i)), review denied (Minn. Aug. 24, 1993) . Each of these prongs must appl y to
the proceeding in question. See id.
White Earth argues that all four prongs apply to the guardianship proceedings and
that the district court erred by holding that none applied. First, White Earth argues that the
guardianship proceedings removed the children from their parent, because A.B.’s parental
rights were only “suspended” under tribal law, and she could therefore request that her
rights be reinstated “once the adoptions had failed.”

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White Earth contends that the death of the adoptive parents constituted an adoption
failure which renders the guardianship proceedings merely the most recent link in a chain
of further removals of the children from their parent , A.B. The district court disagreed,
finding that the “parents” for purpose of this prong were the adoptive parents, from whom
the children were “removed,” if at all, not by the guardianship proceedings but by M.G.’s
death and his appointment of J.G. as the children’s guardian. The district court concluded,
therefore, that t he guardianship proceedings did not remove the children from anyone’s
custody, but rather resulted in a guardianship the children’s parents initiated by will.
We agree with the district court t hat the guardianship proceeding s which White
Earth seeks to invalidate were not “removals” as contemplated by ICWA. The propriety
of t his conclusion is appreciable in light of the fact that, by the time the district court
formally awarded guardianship to respondents, the children had been in respondents’ care
for over three months. Even if the original probate transfer of guardianship could be
described as a removal , and it is not clear that it can , that transfer was the result of the
adoptive parents’ natural deaths—not respondents’ petition.
Further, even if the guardianship proceedings were ICWA “removals ,” they were
not removals with respect to A.B., as White Earth argues. By the time the proba te court
appointed guardianship, the children had not only been removed from the custody of their
biological parents, but had also been formally adopted; and both actions were facilitated
by the White Earth tribal court . The guardianship proceedings in no way altered, and in
fact were entirely extraneous to, the children’s legal relationship to A.B. Indeed, A.B.
would not have her parental rights ostensibly restored by the White Earth tribal courts until

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nearly three year s after the guardianship proceeding s; and we cannot say that those
proceedings “continued to remove” or “further removed” the children from A.B. simply
because it was hypothetically possible at the time that A.B. could have her rights restored.
Therefore, the district court correctly determined that the guardianship proceedings did not
satisfy the first prong of the definition of “foster care placement” under ICWA.
As for the second prong of a foster-care placement under ICWA—the requirement
that the action temporarily places the child in the home of a guardian or conservator —
White Earth argues that, because guardianships under Minnesota law are capable of being
terminated in a variety of ways, they are temporary placements, not permanent .3 Minn.
Stat. § 524.5-112 (2018). We disagree. While it is true that guardianships can be
terminated, unless and until they are, they endure—free of any particular lifespan. Minn.
Stat. § 524.5-201 (2018) (“The guardianship continues until terminated, withou t regard to

3 White Earth cites Department of Human Services v. J.G. to support its argument that
guardianships are temporary for the purposes of ICWA. 317 P.3d 936, 946 (Or . Ct. App.
2014). Not only is that case not binding on this court, but to the extent that it is offered as
persuasive authority, we find it distinguishable. The J.G. court noted that a guardianship
under Oregon law is “temporary in the sense that it does not terminate parental rights, and
it may be vacated by a court.” Id. White Earth focuses only on the second clause of that
sentence, but the J.G. court places the emphasis on the first—stating in the prior sentence
that “the definitions of foster care placement and termination of parental rights reveal that
the term ‘temporary placement’ merely distinguishes a foster care placement from an
action that would permanen tly end the parent -child relationship.” Id. The Oregon Court
of Appeals concluded that the guardianship at issue was temporary because the child’s
parent maintained some rights, and the guardianship did not purport to terminate parental
rights. Id. at 948. Here, parental rights had already ended. The children’s legal parents
passed away, and guardianship over them was appointed to respondents in accordance with
Minn. Stat. § 524.5-202(a) (2018) (stating that “[a] guardian may be appointed by will” in
a section titled Parental Appointment of Guardian). The guardianship proceedings here
could not be described as “temporary” even under J.G. because there was nobody else to
whom the children could have gone.

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the location of the guardian or minor ward. ”). Moreover, e very type of custodial
relationship is capable of being terminated under certain circumstances, so White Earth’s
logic would render every relationship temporary and the distinction meaningless. See e.g.,
In re Welfare of Rosenbloom , 266 N.W. 2d 888, 889 -90 (Minn. 1978) (discussing the
conditions under which natural parental rights may be terminated). Thus, the district court
correctly determined that the guardianship proceedings do not satisfy the second prong of
the ICWA definition of “foster care placement.”
For their arguments on the third and fourth prongs, White Earth relies on the premise
that the “parent,” for purposes of the ICWA analysis, is A.B. However, we cannot, at least
in the context of this case, give the effect to the distinction between “suspended” and
“terminated” parental rights that White Earth requests. Whatever effect this attribute of
tribal law might have on state courts in other contexts , it was nullified here when the
adoptive parents formally adopted the children. Each of the adoption decrees, all of which
were issued by the White Earth tribal courts, contain the following language: “it is hereby
adjudged and decreed that from and after the date hereof, the said child . . . shall be deemed
and taken to be the child and heir of the petitioners above named in all respect s the same
as though born to them.” Further, t hese adoptions were not in conflict with A.B.’s
suspended parental rights, be cause the White Earth code providing for such suspensions
states that the children of a parent with suspended rights may be adopted.4 See White Earth
Band of Ojibwe Judicial Code 4a-7(A)(2).

4 Additionally, White Earth Child/Family Protection Code states that a parent whose rights
have been suspended “shall have no standing to appear at , nor any notice of, any future

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White Earth asks us to selectively account for the tribal laws and proceedings at
issue here. Were we to conclude that A.B. is the parent for the foster -care-placement
analysis under ICWA, we would have to entirely disregard the children’s adoptions; but
the parties present us with no reason to question their validit y. White Earth provides no
arguments with which we could harmonize their assertions that A.B.’s parental rights were
both “terminated enough” to permit adoption of the children “in all respects the same as
though born to” the adoptive parents; and yet not so terminated that subsequent transfers
of custody should be considered “removals” from A.B.’s parenthood under ICWA.
Therefore, we reject White Earth’s contention that A.B. is the parent for purposes of the
ICWA foster-care-placement analysis. We agree with the district court that A.B.’s parental
rights were, effectively, legally terminated—if not by the White Earth courts, then certainly
by the subsequent adoption of the children.
II. Surviving Parent
A.B. reasserts White Earth’s arguments and ra ises some of her own as to why the
guardianship proceedings should be invalidated. However, the district court denied her
motion to intervene, so on appeal she may only seek review of that denial. Thiele v. Stich,
425 N.W.2d 580, 582 (Minn. 1988) (holding that an appellate court generally will not
consider matters not argued to and considered by the district court ). Therefore, A.B. is
only a party to this action to the extent that she challenges the denial of her motion to

legal proceedings involving the child.” § 8.07(g). Yet, A.B. argues that she was also
entitled to notice under ICWA precisely because her rights were “suspended” under White
Earth law.

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intervene, so we do not conside r any additional arguments she makes —to the extent that
those arguments are distinguishable from White Earth’s. For the same reasons we affirm
the district court’s denial of White Earth’s petition to invalidate, we also affirm its denial
of A.B.’s motion to intervene.
For the foregoing reasons, the district court did not err in determining that 25 U.S.C.
§ 1903(1)(i) did not apply to the guardianship proceedings, that White Earth was therefore
not entitled to notice, and that its petition to invalidate must be denied.
Affirmed.