In re the Matter of: E.J.N.V., DOB 12/19/2018,

This opinion is nonprecedential except as provided by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
A22-0867

In re the Matter of: E.J.N.V., DOB 12/19/2018,

Angelina Louise Vanderlinde, et al., petitioners,
Respondents,

vs.

Elysa Mae Nason,
Appellant,

Joseph Duane Nason,
Appellant.

Filed December 11, 2023
Affirmed
Halbrooks, Judge *

Itasca County District Court
File No. 31-FA-20-1661

Kathryn M. Lammers, Courtney Latcham, Heimerl & Lammers, LLC, Minnetonka,
Minnesota (for respondents)

Elysa Nason, La Grande, Oregon (self -represented appellant)

Joseph Nason, La Grande, Oregon (self -represented appellant)

Considered and decided by Gaïtas, Presiding Judge; Slieter, Judge; and Halbrooks,
Judge.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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NONPRECEDENTIAL OPINION
HALBROOKS, Judge
Appellants challenge the district court’s award of permanent sole legal and
permanent sole physical custody to respondents under Minn. Stat. § 257C.01 (2022),
arguing that the district court (1) clearly erred by making best -interests findings
unsupported by the record, (2) abused its discretion by failing to award custody to them,
the child’s biological parents, and (3) erred by disregarding the Indian Child Welfare Act
and the Minnesota Indian Family Preservation Act. We affirm.
FACTS
This case arises out of unusual circumstances. Self -represented a ppellants Joseph
and Elysa Nason are married and reside in Oregon. Respondents Angelina and Chad
Vanderlinde are married and reside in Minnesota. Joseph Nason and Angelina Vanderlinde
are biological siblings. All parties, with the exception of Chad Vanderlinde, are Native
American and are enrolled members of an Indian tribe.
The Vanderlindes wanted children but were unab le to conceive. In response to the
Vanderlindes’ inability to have a child, the Nasons, who have eleven children, offered to
have a child for the Vanderlindes. Although the Vanderlindes initially refused the offer,
they eventually relented and agreed. In December 2018, the child was born in Oregon.
The Vanderlindes were present for the child’s birth. Angelina was in the delivery room
with Elysa and cut the baby’s umbilical cord.
When the child was ten days old, the Vanderlindes took him home to Minnesota to
live with them. Aside from Elysa’s breast milk, which she shipped from Oregon, the
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Vanderlindes provided for all of the child’s needs. The Nasons visited Minnesota six times
after the child moved to Minnesota, but the ir visits were never for the sole purpose of
visiting the child. The regular contact that the Nasons had with him was through phone
and video calls. Although the parties discussed the idea of formal adoption, they ultimately
decided to continue with their informal agreement. But t he Nasons granted the
Vanderlindes power of attorney for the child so that they could make decisions regarding
his housing, education, and medical care.
Although the arrangement worked well for approximately eighteen months , t he
Nasons began to feel that the Vanderlindes were not meeting their expectations and keeping
them sufficiently involved in the child’s life. As a result, the Nasons decided in July 2020
to take the child back to Oregon. Assisted by the police, the Nasons removed the child
from the Vanderlindes ’ home in Minnesota . Chad Vanderlinde’s mother , Mary
Vanderlinde, testified about the event and stated that, when the Nasons picked up the child,
he began to scream. She also testified that “while Chad and Angelina’s lives were kind of
being destroyed,” Elysa was dancing and laughing, and Chad was in tears and Angelina
began throwing up once the Nasons and the child drove away. The district court found
Mary Vanderlinde’s testimony to be credible.
Two days later, the Vanderlindes initiated this third-party custody action and ,
simultaneously, moved for immediate emergency temporary custody of the child . The
district court granted the motion, the order was registered in Oregon, and the Vanderlindes
brought him back to Minnesota.
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When the child returned to Minnesota, he showed signs of stress and trauma.
Angelina and Joseph’s father testified at the hearing that the child refused to let the
Vanderlindes out of his sight. He often woke up in the middle of the night, worried that
the Vanderlindes had left him . In order to address the child’s behavior, the Vanderlindes
engaged the services of Beth Prewett , Psy.D. Based on nine or ten therapy sessions, Dr.
Prewett diagnosed the child with “ other trauma and stress deprivation disorder.”
Dr. Prewett testified at the hearing that the child played wonderfully with the
Vanderlindes during his therapy sessions. She stated that he and the Vanderlindes are
“extremely attached/bonded” and that it was obvious that the child had full trust in the
Vanderlindes. Dr. Prewett also testified that the child is “clingy” with the Vanderlindes
but could not be certain that the eight -day stint in Oregon with the Nasons caused his
symptoms.
The district court conducted a four -day evidentiary hearing that began in October
2021. In addition to the parties and Dr. Prew ett, the district court heard testimony from
Angelina’s father and Chad’s parents.
Following the evidentiary hearing, the district court granted sole physical and sole
legal custody to the Vanderlindes and gave them sole parenting- time rights with the
discretion to give the Nasons supervised or unsupervised parenting time.
This appeal follows.

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DECISION
I.
The Nasons argue that the district court clearly erred by making best -interests
findings that are unsupported by the record. Third-party custody actions are determined
pursuant to Minn. Stat. §§ 257.03 and 257C.01 (2022). We review a district court’s third-
party custody determination for abuse of discretion. Lewis-Miller v. Ross , 710 N.W.2d
565, 568 (Minn. 2006). A district court abuses its discretion by “making findings
unsupported by the evidence or by improperly applying the law.” Pikula v. Pikula , 374
N.W.2d 705, 710 (Minn. 1985). We uphold a district court’s findings of fact unless they
are clearly erroneous. Minn. R. Civ. P. 52.01. And w e defer to the district court’s
credibility determinations for witnesses. Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn.
1988).
After third-party custody petitioners establish by clear and convincing evidence that
they are de facto custodians, they must prove by a preponderance of the evidence that an
award of custody in their favor is in the child’s best interests. Minn. Stat. §§ 257C.01, .03,
subds. 1, 6 (2022). The Nasons do not challenge the district court’s de facto custodian
determination. Therefore, our review is focused on the best-interests findings made by the
district court.
Minn. Stat. § 257C.03, subd. 6 requires a district court to consider 12 factors when
determining a child’s best interests. See Minn. Stat. § 257C.04, subd. 1(a) (2022). The
Nasons argue that the district court based its custody decision on one statutory factor
only—the length of time the child has lived in a stable, satisfactory environment and the
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desirability of maintaining continuity. Minn. Stat. § 257C.04, subd. 1( a)(7) (2022). We
disagree.
The district court thoroughly analyzed each statutory factor and made detailed
findings based on the evidence presented at the four-day hearing. For example, the district
court found that the Vanderlindes “have been the child’s primary caretaker for his entire
life” and that their relationship is “indistinguishable from that of a child born naturally to
their family.” In contrast, the district court stated that “[t]he Nasons are able to provide
surface-level information about the [c]hild, largely arising from their perspective of
parenting and the brief time [the child] was with them in July 2020.”
Other best-interests findings made by the district court include:
. . .
c. [T]he child’s primary caretaker.
Angelina and Chad Vanderlinde have been the [c]hild’s
primary caretaker for his entire life. They have been his
primary caretaker for his entire life, spare a few
exceptions which can be measured in hours and days.
That this factor weighs in heavily favor of the
[p]etitioners’ position.

d. [T]he intimacy of the relationship between each
party and the child.

i. Petitioners have an undisputable familial
bond with the [c]hild. The relationship between
the Vanderlindes and the [c]hild is
indistinguishable from that of a child born
naturally to their family. For all intents and
purposes, they present him as their son, and he
recognizes them as mother and father
respectively.

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e. [T]he interaction and interrelationship of the
child with a party or parties, siblings, and any other
person who may significantly affect the child’s best
interests.

. . .

iii. It is evident that the [c]hild is wholly
integrated with the nurturing relationships that
the Vanderlindes have established with him, and
this continued on to the extended family of the
Vanderlindes. The Nasons are able to provide
surface-level information about the [c]hild,
largely arising from their perspective of
parenting and the brief time [the child] was with
them in July 2020.

f. [T]he child’s adjustment to home, school, and
community.

i. The [c]hild is well adjusted in his home,
his activities, and his community, with the
Vanderlindes. Ms. Nason acknowledge this, and
answered “yes” when asked by counsel whether
[the child] is integrated into the Vanderlinde
household and part of their family. The
testimony of Dr. Prewett, and Mary and Paul
Vanderlinde, in addition to [p]etitioners
themselves support that the [c]hild is adjusted
well to the Vanderlinde home and community.

ii. The [c]hild has never meaningfully
integrated with the Nasons. Other than eight
days, including overnights, in the summer of
2020, one overnight with the [c]hild in March
2019, and the first ten days after he was born, the
Nasons have never physically spent time with the
[c]hild.

g. [T]he length of time the child has lived in a
stable, satisfactory environment and the desirability of
maintaining continuity.

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i. The [c]ourt finds that the most stable,
consistent environment that [the child] has
known has been [p]etitioners’ home and family.
The combined testimony indicates that the
Vanderlindes provide everything [the child]
needs and they do so consistently. This includes
professional recommendations and services,
including speech services.

ii. The solitary disruption to the [c]hild’s
stability was when the [Nasons ] took him to
Oregon against the Vanderlindes’ will. Instead
of planning for [ the child’s] needs for stability
and security, the Nasons simply set their own
desires to have [the child] back as first priority.

. . .

j. [T]he capacity and disposition of the parties to
give the child love, affection, and guidance, and to
continue educating and raising the child in t he child’s
culture and religion or creed, if any.

i. Both the Vanderlindes and Nasons value
Native American culture, ascribe to various
native practices, and are raising or would raise
the [c]hild accordingly, beside some slightly
different perspectives a bout what composes
these belief systems. Foremost, a chief example
of this is where the Vanderlindes trimmed the
[c]hild’s hair, which the Nasons protest for
religious reasons.

k. [T]he child’s cultural background.

i. All parties in this matter, with the
exception of Mr. Vanderlinde, are Native
American. Specifi cally, they are all Ojibwe by
birth and upbringing. Likewise, this is the
[c]hild’s cultural background. While in a familial
setting, this would infer nearly identical cultural
upbringings i n either family, the Vanderlindes
can more inclusively involve him in Ojibwe
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culture in Minnesota; opportunities for exposure
and upbringing in Native American culture exists
in Oregon, it is not Ojibwe.

. . .

(quotations omitted).

In general, the distr ict court found the child to be “well [-]adjusted in his home, his
activities, and his community.” In support of this finding, the district court found the
testimony of Dr. Prewett, Chad’s parents, and the Vanderlindes themselves to be credible.
It is clear from the district court’s order that it understood the importance of this
decision to all of the parties and that it made a thorough assessment of all of the evidence .
Because the district court’s best -interests findings under section 257C.04 are well -
supported by the record, they are not clearly erroneous.
II.
The Nasons contend that the district court erred by disregarding their constitutional
rights, as biological parents, to parent the child. While the U.S. Constitution protects a fit
parent’s fundamental right to determine the care, custody, and control of her children,
Troxel v. Granville , 530 U.S. 57, 66 (2000), that right is not absolute. Both the United
States Supreme Court and the Minnesota Supreme Court have recognized that a st ate may
interfere with the fundamental right of a parent if it is necessary to protect a child’s “well -
being.” SooHoo v. Johnson, 731 N.W.2d 815, 822 (Minn. 2007) (quoting Prince v.
Massachusetts, 321 U.S. 158, 166 (1944)).
Minnesota’s common law presumed that a biological parent was entitled to custody
of his or her child , but that this presumption could be overcome in certain situations, one
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of which was the existence of extraordinary circumstances of a grave and weighty nature
that supported awarding c ustody of a parent’s child to someone who was not that child’s
biological parent. See, e.g., In re Custody of N.A.K., 649 N.W.2d 166, 174, 176 (Minn.
2002) (discussing, and citing cases addressing, this common law presumption). After the
common law presumption discussed in N.A.K. developed, and apparently in direct response
to the U.S. Supreme Court’s Troxel decision, see In re Kayachith, 683 N.W.2d 325, 328
n.1 (Minn. App. 2004), rev. denied (Minn. Sept. 29, 2004), the legislature enacted Chapter
257C, addressing the ability of “de facto custodians” and “interested third parties” to obtain
custody of a child who was not their biological child. See 2002 Minn. Laws ch. 304,
§§ 1, 13 (now codified as Chapter 257C).
Later, this court noted that the definit ions and procedures involved in a district
court’s determination, under Chapter 257C, that a person is “de facto custodian” or an
“interested third party” incorporated the pre-Chapter 257C common law presumption, and
that, as a result, district courts proc eeding under Chapter 257C no longer needed to
separately address the pre -Chapter 257C common law presumption. See In re Custody of
A.L.R., 830 N.W.2d 163, 167- 69 (Minn. App. 2013) (discussing the evolution of the law
on this point).
Here, the district court determined that the Vanderlindes are the de facto custodians
of the child. See Minn. Stat. § 257C.01, subd. 2. Once the district court made this
determination, chapter 257C precluded the district court from giving the Nasons custody
preference based on their status as biological parents. See Minn. Stat. 257C.04, subd. 1(c)
(2022). Instead, the best -interests-of-the-child analysis is applied to award custody
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between a biological parent and a third party. J.W. ex rel. D.W. v. C.M., 627 N.W.2d 687,
692-93 (Minn. App. 2001), rev. denied (Minn. Aug. 15, 2001).
III.
The Nasons assert that the district court erred by failing to comply with the Indian
Child Welfare Act (ICWA), 25 U.S.C. §§ 1901- 1963 (2022), and the Minnesota Indian
Family Preservation Act (MIFPA), Minn. Stat. §§ 260.751- .835 (2022), when making its
custody determination. We disagree. “The de novo standard of review typically ap plied
to a district court’s reading of a Minnesota statute also applies to a review of a district
court’s reading of ICWA.” In re Welfare of Child . of S.B., A19-0225, 2019 WL 6698079
at *2 (Minn. App. 2019), rev. denied (Minn. Jan. 9, 2020).
The district court found that it is uncontested that the child meets the definition of
an “Indian child” under the statutes. But t he Nasons argue that the Vanderlindes
disregarded ICWA’s notice requirement when initiating this custody proceeding. In any
involuntary custody proceeding, the party seeking custody must notify the Indian child’s
tribe “by registered mail, with return receipt requested, of the pending proceedings and of
their right of intervention.” 25 U.S.C. § 1912(a). The Vanderlindes notified the tribes of
the pending third -party dispute by registered mail but failed to send the notification with
“return receipt requested.” Id. The district court found the Vanderlinde’s failure to request
a return receipt was inadvertent and that the notice, nevertheless, was in substantial
compliance with the statute.
We have held that “substantial compliance” satisfies the notice requirements under
ICWA. See In re Welfare of V.R. , No. C2- 90-1765, 1991 W L 42614, at *1 (Minn. App.
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Apr. 2, 1991), rev. denied (Minn. May 23, 1991). Other jurisdictions agree. See, e.g., In
re Dependency & Neglect of A.L. , 442 N.W.2d 233, 236 (S.D. 1989) (stating that actual
notice of the proceeding through certified mail was sufficient under ICWA); In re B.J.E.,
422 N.W.2d 597, 599-600 (S.D. 1988) (“[T]here was substantial compliance with . . .
ICWA and the guidelines so as to give the trial court jurisdiction over [the child].”); State
ex rel. Juv. Dep’t of Lane Cnty. v. Tucker, 710 P.2d 793, 798 (Or. App. 1985) (holding that
a letter identifying the child and stating the right to intervene was sufficient).
We are satisfied that the Vanderlindes’ notice to the tribes constituted “substantial
compliance” despite their failure to send the notification with return receipt requested. The
record reflects that the notices were delivered and that White Earth Nation confirmed that
it would not intervene in this custod y dispute. Because the Vanderlindes substantially
complied with ICWA’s notice requirements, the district court did not err in finding the
notices sufficient.
The Nasons assert that ICWA allows Indian parents to regain custody of their Indian
child “upon demand.” See 25 C.F.R. § 23.103 (a)(1)(ii) (2016). But the regulation
describes only when ICWA applies; it does not provide the Nasons the right to regain
custody of the child upon demand. Id. (“ICWA includes requirements that apply whenever
an Indian child is the subject of . . . a voluntary proceeding that could prohibit the parent
or Indian custodian from regaining custody of the child upon demand.”). The Nasons make
a similar argument unde r MIFPA, which states that a parent or Indian custod ian may, in
the context of voluntary foster -care placement, “withdraw consent to a child placement at
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any time.” Minn. Stat. § 260.765, subd. 4 (Supp. 2023) . This section of MIFPA is
inapplicable to third-party-custody disputes.
The Nasons further assert that, under ICWA, the proceeding required the testimony
of a qualified expert witness. The relevant statute provides :
No foster care placement may be ordered in such proceeding
in the absence of a dete rmination, supported by clear and
convincing evidence, including testimony of qualified expert
witnesses, that the continued custody of the child by the parent
or Indian custodian is likely to result in serious emotional or
physical damage to the child.

25 U.S.C. § 1912(e). As noted above, this proceeding concerned a custody determination .
As a result, the provision relied upon by the Nasons does not apply. 1 In sum, we conclude
that the district court did not err in its application of ICWA and MIF PA.
Affirmed.

1 The Nasons argue on appeal that they were entitled to representation by an attorney in
this matter. Because this issue was not raised in the district court, we will not address it.
See Sauter v. Wasemiller, 389 N.W.2d 200, 201 (Minn. 1986).