Minn. Juve. Prot. P. 28.09

As amended through October 28, 2024

Rule 28.09 - Invalidation of Action Under ICWA

Subd.1. Petition or Motion. Pursuant to 25 U.S.C. § 1914, any Indian child who is the subject of any action for foster care placement or termination of parental rights, any parent or Indian custodian from whose custody an Indian child was removed, or the Indian child's tribe may seek to invalidate the action upon a showing that the action violates the Indian Child Welfare Act, 25 U.S.C. §§ 1911-1913.

(a)Motion. A motion to invalidate may be brought regarding a pending juvenile protection matter.

(b)Petition. A petition to invalidate may be brought regarding a juvenile protection matter in which juvenile court jurisdiction has been terminated.

Subd. 2. Form and Service. A motion or petition to invalidate shall be in writing pursuant to Rule 14.01 and shall be filed and served pursuant to Rule 14.02. Both a motion and a petition to invalidate shall be processed by the court as a motion. Upon receipt of a petition to invalidate a proceeding in which juvenile court jurisdiction has been terminated, the court administrator shall re-open the original juvenile protection file related to the petition.

Subd. 3. Hearing. Within 30 days of the filing of a motion or petition to invalidate, the court shall hold an evidentiary hearing of sufficient length to address the issue raised in the motion or petition. A motion filed 30 or more days prior to trial shall be heard prior to trial and the decision shall be issued prior to trial. A motion filed less than 30 days prior to trial shall not delay commencement of the trial and the decision shall be issued as part of the trial decision.

Subd. 4. Findings and Order. Within 15 days of the conclusion of the evidentiary hearing on the motion or petition to invalidate, the court shall issue findings of fact, conclusions of law, and an order regarding the petition or motion to invalidate.

Minn. Juve. Prot. P. 28.09

Amended 9/1/2019.

2019 Advisory Committee Comment

"Juvenile Protection Matters Governed by the Indian Child Welfare Act" is a new section in the Rules of Juvenile Protection Procedure. The rules in this section were added in 2019 as part of a revision of the rules. This section was added to consolidate rules for proceedings governed by the Indian Child Welfare Act (ICWA), 25 U.S.C. §§ 1901-1963, and the Minnesota Indian Family Preservation Act (MIFPA), Minn. Stat. §§ 260.751 -.835. The ICWA rules have been updated to reflect the 2016 BIA ICWA regulations, and the 2015 amendments to MIFPA.

Rule 28.04, subd. 2, states that "[a]ctive efforts include reasonable efforts, but reasonable efforts may be found without meeting the threshold for active efforts." This rule contemplates situations where the threshold for active efforts has not been met, but reasonable efforts have occurred, and Title IV-E funding can be made available.

Rule 28.06 recognizes the unique requirements for and qualifications of the qualified expert witness whose testimony must be presented to the court before the court may order foster care placement or termination of parental rights under ICWA. Compliance with the requirement for a qualified expert witness is best achieved by timely notice to the child's tribe, ensuring that the county agency works with the child's tribe to discuss the need for placement, identifying extended family who can serve as placement resources and support for the family, ensuring that culturally appropriate services are delivered to the family, and requesting qualified expert witness testimony from the tribe or elsewhere. When the court has determined that ICWA applies, but the child's tribe has not participated in planning for the child, or when the child's tribe does not support placement of the child in foster care or termination of parental rights, the requirements of this rule may be met by a person who meets the criteria of Rule 2.01(29).

Rules 28.06 and 28.07 state that the qualified expert witness's testimony must support a determination that continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child. The Minnesota Supreme Court has held that ICWA and MIFPA, 25 U.S.C. § 1912(f) and Minn. Stat. § 260.771, subd. 6(a), require the qualified expert witness testimony to support this determination, but that the qualified expert witness is not required to "opine on the ultimate issue of whether the State met its burden of proof" to show a likelihood of serious emotional or physical damage to the child. In re S.R.K. and O.A.K., 911 N.W.2d 821, 829 (Minn. 2018) (quotations and citations omitted). In S.R.K., the Minnesota Supreme Court interpreted the requirements of ICWA and MIFPA as they apply to termination of parental rights proceedings. 911 N.W.2d at 827-28 & n.6. Rules 28.06 and 28.07 apply the same requirement to foster care placements and to terminations of parental rights. The committee believes this is appropriate, because the language in ICWA and MIFPA requiring qualified expert witness testimony for foster care placements (25 U.S.C. § 1912(e) and Minn. Stat. § 260.771, subd. 6(a)) is identical to the language, analyzed in S.R.K, requiring qualified expert witness testimony for terminations of parental rights (25 U.S.C. § 1912(f) and Minn. Stat. § 260.771, subd. 6(a)).

Grounds for Invalidation. Rule 28.09 establishes a procedure for filing a petition or motion to invalidate an action under ICWA. 25 U.S.C. § 1914. Section 1914 of ICWA permits an Indian child, the Indian child's parent or Indian custodian, or the Indian child's tribe to petition the court to invalidate any action for foster care placement or termination of parental rights upon a showing that the action violated ICWA § 1911 (dealing with exclusive jurisdiction and transfer to tribal court), § 1912 (dealing with notice to the Indian child's tribe regarding the district court proceedings, appointment of counsel, examination of reports, and testimony of a qualified expert witness), or § 1913 (dealing with voluntary consent to foster care placement and termination of parental rights). Section 1914 of ICWA is silent about the time for bringing a petition to invalidate, the relief available, and whether relief is available even if there was no objection below.