In the Matter of the Welfare of the Child of: T. A. V. G., Parent.

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-1404

In the Matter of the Welfare of the Child of:
T. A. V. G., Parent.

Filed May 10, 2021
Affirmed
Smith, Tracy M., Judge

Clay County District Court
File No. 14-JV-20-1755

Jennifer L. Thompson, JLT Law & Mediation, Litchfield, Minnesota (for appellant-father
T.A.V.G.)

Brian J. Melton, Clay County Attorney, Kath leen M. Stock, Assistant County Attorney,
Moorhead, Minnesota (for respondent Clay County Social Services)

Fort Peck Tribes Assiniboine & Sioux, Poplar, Montana (respondent)

Emily Shaffer, Moorhead, Minnesota (guardian ad litem)

Considered and decided by Jesson, Presiding Judge; Smith, Tracy M., Judge; and
Florey, Judge.
NONPRECEDENTIAL OPINION
SMITH, TRACY M., Judge
On appeal from the termination of his pa rental rights (TPR), appellant T.A.V.G.
(father) argues that (1) the district court improperly relied on the testimony of a required
expert witness, (2) respondent Clay County Social Services (CCSS) did not make active
efforts to reunite him with his daughter (child), (3) the statutory bases for termination found

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by the district court were not proved beyo nd a reasonable doubt, and (4) termination was
not in child’s best interests. We affirm.
FACTS
Child was born in December 2017, and fa ther signed a recognition of parentage
following her birth. Child is enrolled as an associate member of the Fort Peck Assiniboine
Tribe. The Indian Child Welf are Act (ICWA) and Minnesota Indian Family Preservation
Act (MIFPA) therefore apply to this case. As an associate member of the Tribe, child has
limited tribal rights. She is not placed on the reservation and is not eligible for services
through the Tribe.
In August 2018, Cass County, North Dako ta, social services removed child from
her mother and placed her in out-of-home care through court order. At the time of removal,
child required ongoing medical care for several conditions. Father was unavailable to care
for child because he was hospitalized for meth adone use. Child’s case was transferred to
CCSS in Moorhead in September 2018. The ci rcumstances of father’s hospitalization led
CCSS to suspect that father had chemical-dependency issues.
In December 2019, after searching for an appropriate family member to care for
child, CCSS placed child in the care of father’s sister in Langdon, North Dakota. The Tribe
approved of this placement. Langdon is a three-hour trip, one-way, from father’s home in
Moorhead.
Beginning around April 2019, father was on supervised probation for a domestic-
violence conviction. The conviction resulted from an incident that took place between

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father and mother after child was removed from their care.1 As part of his probation, father
was required to complete domestic-violence counseling, abstain from drugs and alcohol,
submit to random drug testing, and remain law-abiding for two years.
CCSS petitioned to terminate father’s and mother’s parental rights. Following a trial
in January 2020, the district court granted the petition to terminate mother’s parental rights
but denied the petition to terminate father’s, finding that CCSS had not made active efforts
to reunite father with child.
Two weeks after the district court denied CCSS’s initial TPR petition, CCSS
communicated to the Tribe that it intended to file another petition to terminate father’s
parental rights. Before it filed its second TP R petition, CCSS offered services to father
according to father’s case pl an, including parenting-skills training, anger-management
classes, domestic-violence classes, coordinating visits with child, providing travel or travel
reimbursement for visits, providing a chemic al-dependency evaluati on, helping father
obtain housing, monitoring father’s mental health, and providing in-home family therapy.
Father’s case plan also required father to remain compliant with the terms of his probation.

1 A significant point of contention between father and CCSS was the case worker’s initial
belief that father’s domestic- violence conviction was the r eason that child was removed
from his care. Two witnesses at the TPR trial generating this appeal testified that CCSS
told them that child was removed due to domestic violence. But child was not removed due
to domestic violence; she was removed due to neglect. The district court acknowledged
this inaccuracy in the testimony of those witnesses but determined that there was no basis
to believe that the case worker intentionally spread misinformation about the connection
between father’s domestic-violence conviction and child’s removal. The district court
determined that this misinformation was “immate rial to the resolution of issues in this
case.”

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CCSS ultimately filed a se cond TPR petition in May 2020 , and father was served
with the petition in July 2020 . The district court held a trial on the second petition in
October 2020. The district court heard testimony from an in-home family therapist, father,
father’s probation officer, a Moorhead police officer, the CCSS case worker, a qualified
expert witness (QEW), and the guardian ad litem.
The district court granted the TPR petiti on. It found that CCSS had made active
efforts towards reunification and rehabilitation a nd that, despite these efforts, father was
palpably unfit to parent child , the efforts had failed to corre ct the conditions that led to
child’s placement in foster care, and child wa s neglected and in foster case. The district
court also determined that continued custody of child by father “is likely to result in serious
emotional damage to [child]” and that termin ating father’s parental rights was in child’s
best interests.
Father appeals.
DECISION
Generally, the termination of parental ri ghts is governed by chapter 260C of the
Minnesota Statutes. See Minn. Stat. §§ 260C.001-.637 (2020). But TPR cases involving
children who fit the definition of “Indian children” in ICWA or in MIFPA are additionally
subject to the requirements of the applicable act or acts. See 25 U.S.C. §§ 1901-1923
(2018); Minn. Stat. §§ 260.751-.835 (2020), 260C.001, subds. 2, 3.
We begin by noting that the parties disagree on the standard of review. Father argues
that a de novo standard of review applies b ecause he is challenging the district court’s
interpretation of ICWA. But father has not identified any issue of statutory interpretation;

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instead, his arguments challenge the district court’s factual findings and the sufficiency of
the evidence to satisfy the statutory criteria for termina tion. Appellate courts “review the
district court’s findings to determine whet her they address the statutory criteria for
termination of parental rights and are not clearly erroneous.” In re Welfare of Children of
T.R., 750 N.W.2d 656, 660 (Minn. 2008). “A findi ng is clearly erroneous if it is either
manifestly contrary to the weight of the evidence or not reasonably supported by the
evidence as a whole .” In re Welfare of Children of S.R.K. , 911 N.W.2d 821, 830 (Minn.
2018) (quotation omitted). “We de fer to the district court’s determinations of witness
credibility and the weight to be given to the evidence.” In re Welfare of Child of T.D., 731
N.W.2d 548, 555 (Minn. App. 2007).
Father argues that the district court erred by (1) accepting the QEW’s testimony as
credible, (2) determining that CCSS engaged in active efforts to re unify him with child,
(3) finding that three statutory factors suppor ted termination, and (4) concluding that
termination was in child’s best interests. We address each of his arguments in turn.
I. The district court did not err by relying in part on the QEW’s testimony.

Under ICWA and MIFPA, “a court cannot terminate parental rights unless it
determines that the evidence shows, beyond a reasonable doubt , that continued parental
custody is likely to result in serious emo tional or physical damage to the child.” S.R.K.,
911 N.W.2d at 829-30. That determination mu st be supported by the opinion of a QEW.
Id.; see also 25 U.S.C. § 1912(f); Minn. Stat. § 260.771, subd. 6(a). Relevant to this appeal,
a QEW is an individual with “specific knowl edge” of the relevant tribe’s culture who

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provides required testimony regarding terminati on of parental rights re lated to an Indian
child. Minn. Stat. § 260.755, subd. 17a.2
Father argues that the district court should have found th e QEW’s testimony not
credible because the QEW wa s unfamiliar with the case and gave incorrect information
about the facts. He does not argue that the district court erred by permitting the QEW to
testify as an expert witness.
Appellate courts defer to a district court’s assessment of witness credibility. T.D.,
731 N.W.2d at 555. Deference is particularly warranted in termination proceedings because
“the [district] court’s opportunity to observe the parent and other witnesses who are called
to testify is so crucial to an accurate evaluation of what is best for the child.” In re Welfare
of A.D., 535 N.W.2d 643, 648 (Minn. 1995). This deference applies to a district court’s
evaluation of a QEW’s testimony in an ICWA case. J.B., 698 N.W.2d at 167. The weight
and credibility of QEW testimony under ICWA is “left to the factfinder.” S.R.K., 911
N.W.2d at 831.
Here, the district court acknowledged the shortcomings in the QEW’s testimony. It
found that she knew the circumstances leadi ng to child’s removal and generally what
occurred thereafter but that she was unclear as to some facts and circumstances. The district
court observed that it was not surprising that the Tribe’s QEW, “whe n put on the spot,”

2 We note that this statutory definition of “qualified expert witness” supersedes pre-existing
caselaw definitions of “qualified expert witn ess” to the extent that those pre-existing
caselaw definitions are inconsistent with the statutory definition. See, e.g., In re Welfare of
Children of J.B., 698 N.W.2d 160, 167 (Minn. App. 2005) (using a pre-statutory definition
of “qualified expert witness”).

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was unable to articulate specific facts given that child was not eligible for services through
the Tribe and was located “quite a distance” from the reservation. Nevertheless, the district
court found that the QEW “had a good grasp on the general issues at play in this case, and
as such, her testimony is both required and helpful.”
We defer to the district court’s determination. Though the QEW did not demonstrate
a full knowledge of the facts, including by misstating why child was removed from father’s
care, she knew that father had neither comp lied with his case plan nor cooperated with
CCSS. She testified that continued custody of child by father was likely to result in serious
physical or emotional damage to child because of father’s failure to complete his treatment
plans, his failure to complete his anger-management programming, his lack of cooperation
with the social worker, and the young age of child. Thus, the district court’s determination
regarding the credibility and weight of the QEW’s testimony finds support in the record.
Moreover, a district court’s ultimate conclusi on regarding whether to terminate parental
rights need only be based in part on the QEW’s testimony, S.R.K., 911 N.W.2d at 829, and
the district court’s determination here is supported by other evidence in the record.
II. The district court’s finding that CCSS made active efforts to reunite father
with child is not clearly erroneous.

The general rule in TPR case s is that a district court may not terminate parental
rights unless the petitioning county proves by cl ear and convincing evidence that it made
reasonable efforts to reunite the parent with the child. Minn. Stat. § 260C.301, subd. 8. But
in an ICWA case, a heightened standard applies—the petitioning county must prove
beyond a reasonable doubt that it made “active efforts” to provide remedial services and

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rehabilitative programs to prevent the breakup of the family. 25 U.S.C. § 1912(d); Minn.
Stat. § 260.762, subd. 3; J.B., 698 N.W.2d at 165; see also Minn. Stat. § 260.755, subd. 1a.
(defining “active efforts”). Father argues that the district court erred by finding that CCSS
engaged in active efforts for four reasons, which we address in turn.
First, father argues that CCSS’s efforts were insufficient because in-family therapy
services were not held in Langdon, where father’s visits with child took place. The district
court determined that CCSS appropriately arranged in-home family services, even if they
were not in Langdon. This determination is supported by the record. Child was placed with
a relative in Langdon because CCSS was obligated under ICWA to pl ace child with a
member of child’s exte nded family before e xploring other options. See 25 U.S.C.
§ 1915(b)(i) (stating that preference is given to the Indian child’s extended family when
determining foster placement). CCSS searched for providers, both in North Dakota and in
Moorhead, who could provide services in Langdon but encountered long waitlists and other
barriers. CCSS then arranged for services in Moorhead if child was brought there for visits.
An initial assessment was scheduled for the end of February 20 20, but father said that he
could not attend because he had accepted a new job. The initial assessment was rescheduled
for a day in March 2020, and father attende d, but the next day he revoked the in-home
therapy release of information. Father continued to refuse to sign releases, so the in-home
therapy stopped. In-home therapy was to re sume in August 2020, but child’s diagnostic
assessment had expired and the provider needed to complete a new assessment of child,
further delaying the provision of in-home se rvices. CCSS was not responsible for delays
caused by father.

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Second, father contends that CCSS told a county housing worker that father had a
history of “meth use” and that this preven ted him from timely obtaining housing. In its
order, the district court determined that it wa s father’s reluctance to sign an information
release allowing the case work er to talk to the county hous ing authority that delayed his
housing placement. This determ ination is supported by th e record. The case worker
testified that father signed a release for her to talk to the housing authority but only
authorized her to do so for one day. After the housing authority determined that the release
was still valid, it put father on the housing wa iting list and father moved into his current
apartment two months later.
Third, father argues that CCSS did not do enough to arrange vi sits with child in
Langdon, including scheduling nighttime visits. He asserts that the reason he did not attend
more visits with child in Langdon is because CCSS would not accommodate his schedule.
The record certainly demonstrates the difficulty for father to travel to Langdon to visit
child, but it also reflects that CCSS scheduled regular visits and sought to navigate father’s
changing schedule. Moreover, father di d not provide CCSS with his employment
information or mental-health treatment appointments so that his visits with child could be
scheduled around father’s existing commitmen ts. CCSS arranged for daytime visits in
Langdon, consistent with the schedule for a y oung child; arranged for virtual visits after
the COVID-19 pandemic began; and provided tr ansportation or travel reimbursement for
visits. The record supports the district court’s determination that CCSS made active efforts
to arrange visits with child.

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Finally, father argues that CCSS provided false information to service providers
regarding his drug use and do mestic-violence conviction, which impeded his ability to
obtain services. The district court determined that the incorrect information that was
provided was “immaterial to the resolution of this case” and that father should have cleared
up the miscommunication with the case worker di rectly instead of refusing to work with
her. The district court’s determination is su pported by the record. Nothing in the record
indicates that the case worker intentionally spread this misinformation. Moreover, the
record contains no evidence that the misinformation preven ted father from receiving
services.
In sum, each of father’s arguments that the district erred by finding that CCSS
engaged in active efforts to reunite him and child fails.
III. The district court did not err by finding that reasonable efforts failed to correct
the conditions leading to child’s placement away from father.

Father next argues the district court e rred by finding three st atutory grounds for
terminating his parental rights: (1) that father is palpably unfit to be in a parent-child
relationship with child, (2) that reasonable e fforts have failed to correct the conditions
leading to child’s placement away from father, and (3) that child is neglected and in foster
care.3

3 Father argues that the county failed to show that “reasonable efforts” did not correct the
conditions leading to the out-o f-home placement. We have al ready affirmed the district
court’s determination that the county made “a ctive efforts.” “The active efforts standard
[for ICWA cases] provides a higher level of protection than reasonable efforts. Active
efforts include reasonable efforts, but reasonable efforts may be found without meeting the
threshold for active efforts.” Minn. R. Juv. Prot. P. 28.04, subd. 2. Thus, our determination
that the county made “active efforts” necessar ily means that those “active efforts” were

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To affirm a district court’s termination of parental rights, at least one statutory basis
for termination must be supported by the evidence. In re Welfare of Children of R.W., 678
N.W.2d 49, 55 (Minn. 2004). In ICWA cases, the statutory basis for termination must be
proved beyond a reasonable doubt. 25 U.S.C. § 1912(f); Minn. R. Juv. Prot. P. 58.03,
subd. 2(b).
We begin our analysis with district court’s determinat ion that reasonable efforts
failed to correct the conditions leading to child’s placement away from father. See Minn.
Stat. § 260C.301, subd. 1(b)(5). To terminate father’s parental rights on this statutory basis,
the district court had to find that, “follo wing the child’s placement out of the home,
reasonable efforts, under the direction of the court, have failed to correct the conditions
leading to the child’s placement.” Id. Reasonable efforts are presumed to have failed when
the child has resided out of the home for a specified period of time, the court has approved
an out-of-home placement plan, and conditions leading to the out-of-home placement have
not been corrected. Id., subd. 1(b)(5)(i)-(iii). Relevant to th is appeal, it is presumed that
conditions leading to the out-of-home placement have not been corrected “upon a showing
that the parent or parents have not substan tially complied with th e court’s orders and a
reasonable case plan.” Id., subd. 1(b)(5)(iii).
Father is correct that he complied with several aspects of his case plans. The district
court found that father “is in compliance with many parts of his case plans,” including

also “reasonable efforts.” Because both Minn. Stat. § 260C.301, subd. 1(b)(5), and father’s
argument are phrased in terms of “reasonable efforts,” we use that phraseology here to
address father’s argument that the county did not show that, despite the existence of those
efforts, active efforts failed to correct the conditions leading to the out-of-home placement.

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obtaining stable housing; maintaining a home free of domestic violence; participating in
mental-health services; comp leting a chemical-dependency evaluation; and taking his
medication as prescribed. But the district court also found that, despite some compliance,
father had failed to substantially follow his case plan. It found that father failed to submit
to random drug tests, including hair follicle tests; failed to cooperate with CCSS and sign
releases of information; failed to sufficiently participate in visits with child; failed to follow
the recommendations of the parental-capacity evaluation, including in-home services, as
well as parenting skills and anger-management classes; and failed to maintain employment.
All of these findings are supported by th e evidence in the r ecord. Testimony from
the case worker and father established that father consistently refused to comply with drug
tests and never completed a hair follicle test , did not regularly visit child, did not follow
through with his domestic-violence classe s or in-home therapy services, was not
cooperative with CCSS, and struggled to maintain employment. The record also supports
the district court’s determination that father ’s noncompliance was substantial. His failure
to follow through with drug te sting was especially significant since, as the district court
found, the initial placement of child away from father was due to social services’ concern
that father had chemical-dependency issues making him unable to care for child.
Thus, the district court did not clearly e rr by determining that the evidence proved
beyond a reasonable doubt that reasonable efforts did not correct the conditions leading to
child’s placement outside the home. We need not address father’s arguments regarding the
other statutory bases relied upon by the district court becaus e only one statutory basis is
necessary to terminate parental rights. R.W., 678 N.W.2d at 55.

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IV. The district court did not err by findin g that termination was in child’s best
interests.

Father finally argues that the district court erred by determining that termination of
his parental rights was in child’s best interests. We review the district court’s determination
of the best interests of child for an abuse of discretion. In re Welfare of Children of J.R.B.,
805 N.W.2d 895, 905 (Minn. App. 2011), review denied (Minn. Jan. 6, 2012).
Because child is an associat e member of a federally reco gnized Indian tribe, the
ICWA best-interests standard applies. “Best interests of an Indian child” is defined by
statute as
compliance with the Indian Child Welfare Act and the
Minnesota Indian Family Pres ervation Act to preserve and
maintain an Indian child’s fam ily. The best interests of an
Indian child support the child’s sense of belonging to family,
extended family, and tribe. The best interests of an Indian child
are interwoven with the best in terests of the Indian child’s
tribe.

Minn. Stat § 260.755, subd. 2a; see also Minn. R. Juv. Prot. P 28.05 (“In proceedings
involving an Indian child, the best interests of the child shall be determined consistent with
the Indian Child Welfare Act, 25 U.S.C. sections 1901 to 1963.”). The statutory definition
indicates that termination is in an Indian child’s best interests if the requirements of ICWA
and MIFPA for a termination are met.4

4 The county’s brief utilized the traditional TPR best-interests standard that applies in non-
ICWA cases. To determine a ch ild’s best interests under this standard, a district court
balances “(1) the child’s interest in preserving the parent-child relationship; (2) the parent’s
interest in preserving the pare nt-child relationship; and (3) any competing interest of the
child.” In re Welfare of Child of A.M.C. , 920 N.W.2d 648, 657 (Minn. App. 2018)
(quotation omitted). While this three-part test originated in caselaw, it has since been
incorporated into the juven ile-protection rules for TPR cases involving non-Indian

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Our review of the record confirms that the requirements of ICWA and MIFPA for
a termination of parental rights have been met. The district court heard the required
testimony from a QEW. 25 U.S.C. § 1912(f); Mi nn. R. Juv. Prot. P. 28.06, subd. 2. The
district court also explicitly found that th e evidence supported termination beyond a
reasonable doubt. Minn. R. Juv. Prot. P. 58.03, subd. 2(b). The district court next
determined that CCSS made active efforts to reunite father and child and that these efforts
were not successful. See Minn. R. Juv. Prot. P. 28.07, su bd. 4(a)(1). Finally, the district
court found that father’s continued custody of child “is likely to result in serious emotional
damage to [child].” See 25 U.S.C. § 1912(f); Minn. R. Juv. P. 28.07, subd. 4(a)(2). The
district court’s findings were supported by the record. Thus, the district court properly
applied ICWA and MIFPA, and its decision to terminate father’s parental rights is therefore
in child’s best interests.
Father, citing the congressional findings pr efacing ICWA, argues that the district
court improperly applied ICWA because terminating father’s parental rights rendered child
“a full step farther away from her heritage.” But father does not argue that the district court
incorrectly applied the requirements of ICWA in its decision to terminate father’s parental

children. Minn. R. Juv. Prot. P. 58.04(c)(2)(ii). But the rules have not incorporated this test
for cases involving Indian children. And th e Minnesota Supreme Court has observed that
ICWA was intended to provide a remedy for a generally applicable best-interests standard
that, “by its very nature, requires a subjective evaluation of a multitude of factors, many, if
not all of which are imbued with th e values of majority culture.” In re Custody of S.E.G.,
521 N.W.2d 357, 363 (Minn. 1994).

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rights. And, as CCSS observes, termination of father’s parental rights will not affect child’s
enrollment status with the Tribe. We discern no error.
Affirmed.