In Re the Custody of N.M.L.J. --

This opinion is nonprecedential except as provided by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
A24-0934

In Re the Custody of N.M.L.J. --

Ebony Reyes, et al.,
Appellants,

vs.

Kathy Jean Newago,
Respondent.

Filed March 24, 2025
Reversed and remanded
Bjorkman, Judge

Beltrami County District Court
File No. 04-FA-23-3014

Jennifer L. Thompson, JLT Law & Mediation, Litchfield, Minnesota (for appellants)

Jenny A. Covington, Nelson Mullins Riley & Scarborough LLP, Minneapolis, Minnesota
(for respondent)

Considered and decided by Bjorkman, Presiding Judge; Bond, Judge; and Smith,
John, Judge.
∗

∗ Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
2
NONPRECEDENTIAL OPINION
BJORKMAN, Judge
Appellants challenge the denial of their petition for third-party custody of a minor
child, arguing that the district court (1) erred by applying the Indian Child Welfare Act, 25
U.S.C. §§ 1901-1963 (2018) (ICWA), and the Minnesota Indian Family Preservation Act,
Minn. Stat. §§ 260.751-.835 (2024) (MIFPA); and (2) abused its discretion by applying
Nice-Petersen v. Nice- Petersen, 310 N.W.2d 471 (Minn. 1981), to deny their petition
without an evidentiary hearing. We reverse and remand.
FACTS
This appeal concerns a child, N.L.M.J. (the child), who is now ten years old. 1 The
child was the subject of a child-protection proceeding, and in September 2023 the district
court transferred permanent legal and physical custody of the child from her parents to
respondent Kathy Jean Newago, the child’s maternal great aunt. In re Welfare of Child of
I.E.B., No. 04-JV-23-691 (Minn. Dist. Ct. Sept. 29, 2023).
In October 2023, appellant Ebony Reyes, who is the child’s paternal first cousin
once removed, and Reyes’s domestic partner appellant Albina Coronado filed a petition
seeking third -party custody of the child under Minn. Stat. § 257C.03 (2024). In the
petition, Reyes and Coronado allege that the child’s father placed her in their care, and they
cared for the child at their residence in California, from August 2020 to February 2022 and

1 The district court caption incorrectly identifies the child with the initials N.M.L.J. “The
title of the action shall not be changed in consequence of the appeal.” Minn. R. Civ. App.
P. 143.01. But this opinion uses the child’s correct initials, N.L.M.J.
3
June 2022 to August 2022. They note that the custody-transfer order placed the child in
Newago’s sole custody and assert various concerns about the child’s health and well-being
in Newago’s care. They allege that Newago (1) smokes cigarettes around the child, who
has begun exhibiting “respiratory issues”; (2) “neglect[s ]” the child while she drinks
alcohol and gambles at casinos; (3) poorly manages the child’s hygiene, including not
providing the child clean underwear or ensuring regular bathing; (4) “minimize[s]” the
child’s trauma; (5) exposes the child, who is part African American, to racial slurs and
other “race-based discrimination”; and (6) endangers the child by “frequently” allowing
her son, who has criminal-sexual-conduct and manslaughter convictions, to spend time in
her home, including overnights.
Newago moved to dismiss the petition, asserting that it was “improperly brought”
and should have been filed in the child-protection matter as a motion to modify the custody-
transfer order under Minn. Stat. § 260C.521, subd. 2 (2024). She also argued that the child
is an Indian child for purposes of ICWA and MIFPA and Reyes and Coronado failed to
“serve” all “necessary parties,” including the two tribes—Fond Du Lac Band of Chippewa
and Leech Lake Band of Ojibwe—that were referenced in the custody -transfer order. And
she disputed the allegations in the petition, contending that Reyes and Coronado failed to
“meet their burden of proof” that the child is “endangered” in her care. Newago argued
that the court should apply Nice-Petersen, which requires a parent seeking to modify child
custody to present a prima facie case, 310 N.W.2d at 472, and deny the petition without an
evidentiary hearing.
4
Over the course of three hearings, the district court addressed whether Reyes and
Coronado had served the tribes with notice of the petition and instructed them to provide
service by certified mail. Reyes and Coronado argued that such service is not necessary
for a third-party-custody petition, but they served the tribes as instructed before the third
hearing. The Leech Lake Band of Ojibwe appeared at all three hearings, but the
Fond Du Lac Band of Chippewa did not appear at any.
The district court denied the petition without an evidentiary hearing. It found that
the child is an Indian child under ICWA and MIFPA and Reyes and Coronado “failed to
serve the necessary parties” for a custody proceeding involving an Indian child. And it
determined that, “[s]etting aside the failure of service,” the petition fails the Nice-Petersen
test for modifying custody.
Reyes and Coronado appeal.
DECISION
A petition for third-party custody must “state and allege” whether the petitioner
seeks custody as a “de facto custodian” or as an “interested third party” who can “prove”
at least one of the three factors in Minn. Stat. § 257C.03, subd . 7(a). Minn. Stat.
§§ 257C.01, subds. 2, 3(a), .03, subd. 2(a)(5) (2024). Those three factors are:
(i) the parent has abandoned, neglected, or otherwise
exhibited disregard for the child’s well-being to the extent that
the child will be harmed by living with the parent;
(ii) placement of the child with the individual takes
priority over preserving the day-to-day parent-child
relationship because of the presence of physical or emotional
danger to the child, or both; or
(iii) other extraordinary circumstances.

5
Minn. Stat. § 257C.03, subd. 7(a)(1). A petition seeking custody as an interested third
party “must be verified by the petitioner or petitioners and its allegations established by
competent evidence.” Id., subd. 2(b).
We generally review a district court’s decision regarding third-party custody for
abuse of discretion. In re Custody of A.L.R. , 830 N.W.2d 163, 166 (Minn. App. 2013).
But we review de novo whether the district court applied the correct legal standard in
determining whether to grant an evidentiary hearing on a third-party-custody petition. See
Lewis-Miller v. Ross, 710 N.W.2d 565, 568-69 (Minn. 2006); cf. Boland v. Murtha, 800
N.W.2d 179, 184 (Minn. App. 2011) (stating that appellate courts review de novo whether
an evidentiary hearing is warranted on custody-modification motion).
I. Reyes and Coronado have not shown reversible error in the district court ’s
application of ICWA and MIFPA.

The district court determined that the child is an Indian child and that Reyes and
Coronado failed to “serve the necessary parties” as required by ICWA and MIFPA. Reyes
and Coronado argue that the district court erred by applying ICWA and MIFPA. But as
they acknowledge, the court expressly disclaimed any reliance on a service failure as the
basis for denying relief by saying that it was “[s]etting aside the failure of service.” As
such, any error in the district court’s application of ICWA and MIFPA is harmless and does
not warrant reversal. See Minn. R. Civ. P. 61 (requiring harmless error to be ignored).
II. The district court erred by applying Nice -Petersen to deny the third-party -
custody petition without an evidentiary hearing.

Reyes and Coronado next assert that the district court erred by applying Nice-
Petersen to deny their petition without an evidentiary hearing. They contend that the
6
analysis articulated in that opinion applies solely in the context of modification of parental
custody and does not apply to their petition to establish third-party custody under Minn.
Stat. § 257C.03. We agree.
In Nice-Petersen, a parent moved to modify a child-custody award made as part of
a marriage dissolution. Nice-Petersen, 310 N.W.2d at 472. The supreme court held that
under what is now Minn. Stat. § 518.185 (2024), a party seeking to modify custody under
what is now Minn. Stat. § 518.18 (2024) must present a prima facie case by submitting
affidavits that contain sufficient facts that, if taken as true, would justify modification. Id.
If they fail to do so, the district court must deny the motion without an evidentiary hearing.
Id. But if they do make a prima facie showing, the district court must hold an evidentiary
hearing. Woolsey v. Woolsey, 975 N.W.2d 502, 508 (Minn. 2022). Nothing in Nice -
Petersen addresses third-party custody. And nothing in Minn. Stat. § 257C.03 incorporates
the statutes that underlie Nice-Petersen.
Newago nonetheless urges us to apply Nice-Petersen because Reyes and
Coronado’s petition effectively seeks to modify a third-party-custody order under Minn.
Stat. § 257C.06 (2024), which incorporates the custody-modification procedures outlined
in Minn. Stat. § 518.18.
2 This argument is unavailing for two reasons. First, Newago
mischaracterizes the order placing the child in her custody. That order is a transfer of

2 We note that this argument is similar to but distinct from the argument she presented to
the district court—that Reyes and Coronado should have filed a motion in the child-
protection matter to modify the custody- transfer order under Minn. Stat. § 260C.521,
subd. 2. This new argument is not properly before us, s ee Lewis-Miller, 710 N.W.2d at
570 (citing Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988)), but we address it in the
interests of justice.
7
permanent legal and physical custody from parents to a fit and willing relative under Minn.
Stat. § 260C.515, subd. 4(a)(2) (2024). It is not an order establishing third-party custody
with a de facto custodian or an interested third party under Minn. Stat. § 257C.03 and,
therefore, is not subject to modification under Minn. Stat. § 257C.06. Second, even if we
disregarded this distinction, Newago has not identified, and we have not discovered, any
legal authority that justifies treating a petition expressly seeking to establish third -party
custody under Minn. Stat. § 257C.03 as a motion to modify an existing third-party-custody
order under Minn. Stat. § 257C.06. Rather, such a petition must stand or fall under the
terms of Minn. Stat. § 257C.03.
As our supreme court has explained, that statute establishes a “two-stage process”
for considering petitions. Lewis -Miller, 710 N.W.2d at 569. In the first stage, a district
court has “discretion to dismiss [the] petition without an evidentiary hearing if the petition
and accompanying affidavits alleged facts which, if taken as true, would not be sufficient
to satisfy the criteria of Minn. Stat. § 257C.03, subd. 7(a).” Id. But if the petition and
affidavits satisfy the statutory criteria, then the proceeding moves to the second stage—an
evidentiary hearing. Id. The supreme court also recognized that this process, because it
contains two stages, is “consistent with” that articulated in “typical custody-modification
proceedings,” like Nice-Petersen. Id. But ultimately, the determination of whether a third-
party-custody petitioner is entitled to an evidentiary hearing turns not on Nice-Petersen or
Minn. Stat. § 518.18 but on whether the petition, together with any supporting affidavits,
alleges facts that, “if proven, would satisfy the criteria of Minn. Stat. § 257C.03,
subd. 7(a).” Id. at 570.
8
The district court did not apply this standard to Reyes and Coronado’s petition. It
did say that it was taking the allegations in the petition as true, which is consistent with
Lewis-Miller (and Nice-Petersen). But it considered the sufficiency of those allegations
only with respect to “modify[ing] custody” under Minn. Stat. § 518.18 and Nice-Petersen.
It did not identify the criteria of Minn. Stat. § 257C.03, subd. 7(a), or determine whether
the allegations of the petition satisfy those criteria. Because that determination is a matter
left to the district court’s “discretion,” Lewis- Miller, 710 N.W.2d at 569, it is not within
our purview to determine the sufficiency of the petition in the first instance. Accordingly,
we reverse and remand for the district court to determine whether the allegations in Reyes
and Coronado’s petition, taken as true, satisfy the criteria of Mi nn. Stat. § 257C.03,
subd. 7(a), and if so, to conduct an evidentiary hearing.
Reversed and remanded.