Interest of A.B.

20020309 In the Interest of A.B.
-----------------
Norean Hoots, L.S.W., Petitioner and Appellant
v.
K.B., Respondent and Appellee
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F.B., A.B., and
Monty Mertz, Guardian
ad Litem, Respondents
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Turtle Mountain Band
of Chippewa, Intervenor and Appellee

Appeal from: Juvenile Court, East Central Judicial District, Cass County
Judge Cynthia Rothe-Seeger
Nature of Action: Termination/Parental Rights
Counsel:
Appellant: Susan Lynne Bailey , Asst. State's Attorney
Appellee: B J. Jones
Appellee: Johnson, Ramstad & Mottinger, PLLP
Term: 04/2003   Argument: 04/10/2003  1:30pm
ND cite: 2003 ND 98
NW cite: 663 N.W.2d 625

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Issues: Appellant's Statement of the Issues:
I. Whether the district court erred in granting tribe's motion to transfer jurisdiction and dismiss case
a. Whether district court erred in not providing adequate time for non-moving parties to respond to tribe's request for review of referee's decision and thus not considering non-moving parties' positions on tribe's request for review
B. Whether district court erred in not requesting or reviewing transcripts of evidentiary hearing held by referee upon which the referee's decision was based in part when review must be upon review of the entire record
c. Whether district court erred in reversing referee's decision denying tribe's motion to transfer jurisdiction because good cause exists to deny transfer of jurisdiction to tribal court
1. Whether the tribe's motion to transfer jurisdiction was untimely under the facts of this case
2. Whether the tribal court is an inconvenient forum under the facts of the case>br> D. Whether evidence regarding best interests of the child should have been accepted and considered by the referee and the district court
E. Whether granting a transfer to tribal court under the facts of this case was unconstitutional
1. Whether district court erred in concluding it was precluded from addressing constitutional issues of substantive due process and equal protection properly raised in underlying proceedings but not reached by referee
2. Whether A.B. is entitled to the protections of the constitution of the State of North Dakota and the constitution of the United States of America
3. Whether transferring jurisdiction to tribal court under the facts of this case violates A.B.'s entitlement to substantive due process and equal protection under state and federal constitutions
4. Whether the Indian Family Doctrine should be applied here to prevent unconstitutional application of the Indian Child Welfare Act to the facts of this case
5. Whether the United States Congress exceeded its authority under the Indian commerce clause in enacting the Indian Child Welfare Act

Appellee's Statement of the Issues:
I. Whether the district court's decision reversing a referee's denial of the tribe's motion to transfer jurisdiction under the Indian Child Welfare Act, 25 U.S.C. 1911(b) was clearly erroneous
A.. Whether the tribe's motion to transfer the termination of parental rights proceeding was untimely when the termination petition was filed six weeks after the filing of the petition and no proceedings had been held on the petition
B. Whether the district court clearly erred when it found that transfer of the proceedings to the tribal court would not result in an inconvenient forum
II. Whether the referee's order granting the tribe's motion to exclude testimony regarding "the best interest of the child," if properly before this court, was clearly erroneous
III. Whether the district court's transfer of jurisdiction to the tribal court was unconstitutional


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Docket entries:
111/04/2002 NOTICE OF APPEAL: 10/31/2002
211/04/2002 THIS CASE IS CONFIDENTIAL
311/04/2002 ORDER FOR TRANSCRIPT: 10/31/2002
412/03/2002 RECORD ON APPEAL (not received - steno notes and tapes)
512/02/2002 TRANSCRIPT DATED 7-30-02 (02-J-0282); TRANSCRIPT DATED 3-15-01 (01-J-0105, Interest of J.P, et al.)
612/05/2002 DISK (e-mailed) TRA dated 7-30-02; TRA dated 3-15-01
712/16/2002 DISK - (e-mailed) TRAs dtd Mar 28, 2001, Mar 5, 2002, June 25, 2002 & Sep 23, 2002
812/17/2002 TRANSCRIPTS DATED March 28, 2001, March 5, 2002, June 25, 2002 and September 23, 2002
901/27/2003 APPELLANT BRIEF
1001/27/2003 APPELLANT APPENDIX
1102/03/2003 8 corrected TOA & page 23 for ATB
1202/03/2003 DISK of ATB (electronically filed)
1303/04/2003 Appellee K.B.'s Motion to Join in the Brief of Appellee Turtle Mountain Chippewa Indians & Aff/Sup
1403/04/2003 ACTION BY CHIEF JUSTICE (Mot/Join). Granted
1503/11/2003 APPELLEE BRIEF of Turtle Mt. Band of Chippewa Indians
1603/11/2003 DISK - AEB (e-mailed)
1703/26/2003 REPLY BRIEF
1803/26/2003 DISK - RYB (emailed)
1904/10/2003 APPEARANCES: Susan L. Bailey, Ruby Knoll; B.J. Jones; Douglas W. Nesheim
2004/10/2003 ARGUED: Bailey; Jones (Vol. Y; Page 107)
2104/10/2003 ORAL ARGUMENT WEBCAST
2206/17/2003 DISPOSITION: AFFIRMED
2306/17/2003 UNANIMOUS OPINION: VandeWalle, Gerald W.
2406/17/2003 Costs taxed in favor of the Appellees
2506/19/2003 Order/Judgment Mailed to Parties
2606/27/2003 Mot. Ext/Time Petition for Rehearing (Cass Co.)
2706/30/2003 ACTION BY CLERK. Granted: 07/15/2003
2807/15/2003 PETITION FOR REHEARING
2907/23/2003 Corrected cover page for PER
3007/23/2003 DISK - PER
3107/31/2003 Certificate of Attorney Regarding Service for PER
3208/20/2003 ACTION BY SUPREME COURT (PER). Denied
3308/28/2003 MANDATE
3412/05/2003 Letter from William K. Suter dated 12-1-03 RE: Petition for Writ of Certiorari was filed
3504/12/2004 Letter dated 4-05-04 from William K. Suter, Clerk, Supreme Court of the U.S., informing us that
3604/12/2004 the petition for a writ of certiorari was denied
3709/02/2003 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE
3809/03/2008 EXPUNGED - Nonpermanent record items destroyed

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