In the Matter of the Welfare of the Children of: A. J. J. and J. D. J., Parents.

STATE OF MINNESOTA
IN COURT OF APPEALS
A22-0311

In the Matter of the Welfare of the Children of:
A. J. J. and J. D. J., Parents.

Filed May 16, 2022
Writ denied
Segal, Chief Judge

Itasca County District Court
File Nos. 31-JV-21-156, 31-JV-21--3069

Matti R. Adam, Itasca County Attorney, Michael J. Haig, Chief Assistant County Attorney,
Grand Rapids, Minnesota (for petitioner Itasca County Health and Human Services)

Ross Edgar Trooien, Grand Rapids, Minnesota (for respondent-mother A.J.J.)

Taylor Joseph Kesti, Grand Rapids, Minnesota (for children K.J.J., K.D.J., M.A.J.)

Erica Lynn Hill Austad, Baudette, Minnesota (for child L.R.J.)

J.D.J., Nashwauk, Minnesota (pro se respondent-father)

Kim Allen, Grand Rapids, Minnesota (guardian ad litem)

Considered and decided by Segal, Chief Judge; Reilly, Judge; and Gaïtas, Judge.
SYLLABUS
In a termination-of-parental-rights proceeding , a district court may order
investigation into whether children involved in that proceeding are Indian children under
the Indian Child Welfare Act or the Minnesota Indian Family Preservation Act ,
notwithstanding a prior ruling in a related child-in-need-of-protection-or-services
proceeding that the same children were not Indian children.

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SPECIAL TERM OPINION
SEGAL, Chief Judge
In a child-in-need-of-protection-or-services (CHIPS) proceeding, the CHIPS court
ruled that the children involved in that proceeding were not Indian children. See 25 U.S.C.
§ 1903(4) (2018) (defining “Indian child” for purposes of the Indian Child Welfare Act
(ICWA)); Minn. Stat. § 260.755, subd. 8 (2020) (defining “Indian child” for purposes of
the Minnesota Indian Family Preservation Act (MIFPA)). In a subsequent termination-of-
parental-rights (TPR) proceeding involving the same child ren, Itasca County Health and
Human Services (the county) moved the district court to rule that, based on the district
court’s ruling in the CHIPS proceeding and, absent any new information to the contrary,
the children were not Indian children. The district court denied that motion, along with the
county’s later motion to reconsider . The district court thus required the county to re-
investigate whether the children are Indian children. The county seeks a writ of prohibition
to preclude the district court from enforcing its orders. This court received no response to
the petition from the other parties to the proceeding. Because the county failed to establish
that the district court acted in a manner unauthorized by law, we deny the writ.
DECISION
“A writ of prohibition is an extraordinary remedy,” to be used only “in extraordinary
cases.” Underdahl v. Comm’r of Pub. Safety (In re Comm’r of Pub. Safety) , 735 N.W.2d
706, 710 (Minn. 2007). A writ of prohibition can “be issued only if . . . (1) an inferior court
or tribunal is about to exercise judicial or quasi-judicial power; (2) the exercise of such
power is unauthorized by law; and (3) the exercise of such power will result in injury for
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which there is no adequate remedy.” State v. Emerson (In re Leslie), 889 N.W.2d 13, 14-
15 (Minn. 2017) (quotation omitted); see also Klapmeier v. Cirrus Indus., Inc., 900 N.W.2d
386, 393 (Minn. 2017) (addressing requirements for issuing writ of prohibition);
Underdahl, 735 N.W.2d at 710 ( listing circumstances in which a writ of prohibition may
be issued). While prohibition may “issue to prevent an abuse of discretion where there is
no other adequate remedy at law,” Wasmund v. Nunamaker, 151 N.W.2d 577, 579 (Minn.
1967), “[the] writ is a preventative, not a corrective, measure,” State v. Deal, 740 N.W.2d
755, 769 (Minn. 2007). Mere disagreement with the district court “is unlikely to warrant
an extraordinary writ.” Klapmeier, 900 N.W.2d at 392 n.4.
At the start of an “involuntary child-custody proceeding,” the district court is to ask
each participant whether the participant “knows or has reason to know that the child is an
Indian child” under ICWA. 25 C.F.R. § 23.107(a) (2021); see 25 U.S.C. § 1912(a) (2018)
(imposing certain notice requirements in involuntary proceedings “where the court knows
or has reason to know that an Indian child is involved”). Involuntary proceedings include
TPR proceedings, like the one here, in which the parent does not consent to the TPR.
25 C.F.R. § 23.2 (2021). Further, TPR proceedings are child -custody proceedings under
ICWA, 25 U.S.C. § 1903(1)(ii) (2018) , and are separate proceedings from C HIPS
proceedings involving the same children . See I n re Welfare of Child. of R.M.B. , 735
N.W.2d 348, 352 n.6 (Minn. App. 2007), rev. denied (Minn. Sept. 26, 2007). If, as a result
of its inquiry, the court has “reason to know” that a child is an Indian child but lacks
sufficient information to know whether the child is an Indian child, the court must confirm
that the petitioning agency used due diligence to resolve the question, and it must treat the
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child as an Indian child until the court rules that the child is not an Indian child. 25 C.F.R.
§ 23.107(b) (2021). Similar requirements exist under Minnesota rules and MIFPA. Minn.
Stat. § 260.771, subd. 2 (2020); Minn. R. Juv. Prot. P. 29.01.
A court has “reason to know” that a child is an Indian child if
(1) Any participant in the proceeding, officer of the
court involved in the proceeding, Indian Tribe, Indian
organization, or agency informs the court that the child is an
Indian child;
(2) [a]ny participant in the proceeding, officer of the
court involved in the proceeding, Indian Tribe, Indian
organization, or agency informs the court that it has discovered
information indicating that the child is an Indian child;
(3) [t]he child who is the subject of the proceeding gives
the court reason to know he or she is an Indian child;
(4) [t]he court is informed that the domicile or residence
of the child, the child’s parent, or t he child’s Indian custodian
is on a reservation or in an Alaska Native village;
(5) [t]he court is informed that the child is or has been a
ward of a Tribal court; or
(6) [t]he court is informed that either parent or the child
possesses an identification card indicating membership in an
Indian Tribe.

25 C.F.R. § 23.107(c) (2021). Under the guidelines for implementing ICWA, courts “are
encouraged to interpret these factors expansively. ” U.S. Dep’t of the Interior, Bureau of
Indian Affs., Guidelines for Implementing the Indian Child Welfare Act 11 (Dec. 2016)
(ICWA Guidelines). The ICWA Guidelines also state that “[w]hen in doubt, it is better to
conduct further investigation into a child’s status early in the case.” Id.
The county admits that one parent claimed Indian heritage, and the district court
expressed concern about possible changes in the requirements for tribal membership. The
county argues that the district court should not have required additional investigation into
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the statu s of these children because this record is insufficient to give the district court
“reason to know” that the children were Indian children. We reject this argument because
the ICWA Guidelines are clear that “courts may choose to require additional investigation
into whether there is a reason to know the child is an Indian child .” Id. Thus, the
investigation required by the district court is not “unauthorized by law ,” and this case is
therefore not a proper case for the issuance of a writ of prohibition. See Emerson, 889
N.W.2d at 14-15 (quotation omitted).
The county argues that the fact that TPR and CHIPS proceedings are separate
proceedings is an insufficient basis to require additional investigation . The ICWA
Guidelines are clear on this point: “if a new child-custody proceeding (such as a proceeding
to terminate parental rights . . .) is initiated for the same child, the court must make a finding
as to whether there is ‘reason to know’ that the child is an Indian child.” Id. In addition,
the ICWA Guidelines provide that if a “child was not identified as an Indian child in the
prior proceeding, the court has a continuing duty to inquire whether the child is an Indian
child.” Id. Thus, notwithstanding the ruling by the CHIPS court that these children were
not Indian children, the district court had a separate duty in the TPR proceeding to address
their status.
Finally, we reject the county’s assertion that the district court erroneously replaced
the reason-to-know standard with a lower standard: that the children “might” be Indian
children. “[R]eason to know” is “[i]nformation from which a person o f ordinary
intelligence . . . would infer that the fact in question exists or that there is a substantial
enough chance of its existence that, if the person exercises reasonable care, the person can
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assume the fact exists.” Black’s Law Dictionary 1520 (11th ed. 2019). The word “might”
means “ to express possibility.” Random House Dictionary of the English Language
Unabridged 1219 (2d ed. 1987). There is significant overlap between when a court “has
reason to know” that a child is an Indian child and when there is a “possibility” that a child
is an Indian child. On this record, we cannot say that the district court applied an incorrect
standard. Moreover, as noted, even if a court has something less than a reason to know
that a child is an Indian child, the court may nevertheless “choose to require additional
investigation into whether there is a “reason to know” the child is an Indian child.” ICWA
Guidelines, supra, at 11.
Because the district court was within its authority to require additional investigation,
the denial of the county’s motion was not unauthorized by law and a writ of prohibition
will not be issued.
Writ denied.