IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2021 ND 163

In the Interest of K.B., a child

Megan Dahl, L.B.S.W., Cass

County Human Services Zone, Petitioner and Appellee

v.

K.B., child; M.N., possible

father; John Doe, Respondents

and

J.B., mother, Respondent and Appellant

No. 20210109

In the Interest of K.B., a child

Megan Dahl, L.B.S.W., Cass

County Human Services Zone, Petitioner and Appellee

v.

K.E.B., child; M.N., possible

father; John Doe, Respondents

and

J.B., mother, Respondent and Appellant

No. 20210110

Appeal from the Juvenile Court of Cass County, East Central Judicial District, 

the Honorable Scott A. Griffeth, Judicial Referee.

AFFIRMED.

FILED 

IN THE OFFICE OF THE 

CLERK OF SUPREME COURT 

SEPTEMBER 9, 2021 

STATE OF NORTH DAKOTA
Opinion of the Court by Tufte, Justice, in which Justices Crothers and McEvers 

joined, and Justice VandeWalle concurred in the result. Chief Justice Jensen 

filed a concurring opinion.

Constance L. Cleveland, Assistant State’s Attorney, Fargo, N.D., for petitioner 

and appellee.

Daniel E. Gast, Fargo, N.D., for respondent and appellant.
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Interest of K.B.

Nos. 20210109 & 20210110

Tufte, Justice.

[¶1] J.B. appealed from a juvenile court order terminating her parental rights 

to her two children. She argued there was not evidence beyond a reasonable 

doubt to support the court’s determination under the Indian Child Welfare Act 

(ICWA) that continued custody by J.B. was likely to result in serious emotional 

or physical damage to the children. Retaining jurisdiction under N.D.R.App.P. 

35(a)(3), we remanded to the juvenile court for detailed findings under ICWA, 

allowing for additional testimony from the qualified expert witness if necessary 

to make the required findings. Interest of K.B., 2021 ND 106, ¶ 11, 961 N.W.2d 

293. After receiving additional testimony, the district court made additional 

findings, denied the petition to terminate J.B.’s parental rights, and ordered 

the children be removed from J.B.’s custody for nine months. No party 

requested additional briefing or argument following the order on remand. We 

affirm the juvenile court order.

[¶2] Our prior decision sets forth the relevant facts and history, which we will 

not repeat here. Interest of K.B., 2021 ND 106, ¶¶ 2-3, 7-8.

[¶3] On remand, the juvenile court heard additional testimony from Marilyn 

Poitra, a qualified expert witness for the Turtle Mountain Band of Chippewa 

Indians under ICWA. Poitra testified that the tribe did not support 

termination of parental rights and answered “No” when asked if continued 

custody by J.B. was likely to result in serious emotional or physical damage to 

the children.

[¶4] Considering the evidence as a whole, the juvenile court made the 

following findings. The testimony and behavior of the parents during trial 

established that the parenting practices of the parents are “not consistent with 

Native American parenting practices.” The failure of the parents to abide by 

the no-contact order during trial demonstrated an intent to continue their 

violent and dysfunctional relationship. Poitra testified that if the father were 

not involved, J.B. could remedy the situation within approximately six months 
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after her release from incarceration and following treatment. Despite 

acknowledging that she was not aware of the parents’ behavior and 

communication with each other during trial, Poitra maintained her opinion 

that she did not feel the continued custody of the children by J.B. would be 

likely to result in serious emotional or physical damage to the children. 

Although the juvenile court said it “may not agree with Ms. Poitra’s 

assessment of the situation,” its ultimate finding was that the evidence before 

it did not establish the ICWA requirements beyond a reasonable doubt.

[¶5] That ultimate finding is for the juvenile court as finder of fact, only to be 

set aside on appeal if clearly erroneous. N.D.R.Civ.P. 52(a)(6). There is 

evidence on which the juvenile court could have found the ICWA requirements

satisfied, and there is also evidence on which it could have found that the high 

burden of proof beyond a reasonable doubt had not been met. A finding relating 

to a likelihood of future harm requires some prognostic evidence providing “the 

basis for a reasonable prediction as to future action.” Interest of J.S., 351 

N.W.2d 440, 442 (N.D. 1984) (affirming finding that deprivation was likely to 

continue despite lack of expert opinion “expressly predict[ing] that kind of 

future”). On this record, we defer to the juvenile court’s finding that, although 

there was room for disagreement with Poitra, her expert testimony was 

sufficient to raise a reasonable doubt about whether J.B.’s continued custody 

would create a likelihood of future emotional or physical damage to the 

children.

[¶6] We affirm the juvenile court order removing the children from the care, 

custody, and control of their parents for a period of nine months.

[¶7] Daniel J. Crothers

Lisa Fair McEvers

Jerod E. Tufte

I concur in the result.

Gerald W. VandeWalle
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Jensen, Chief Justice, concurring.

[¶8] I concur in the result for the reasons stated in the prior concurring 

opinion in this case. Interest of K.B., 2021 ND 106, 961 N.W.2d 293. I write 

separately following the return from our prior remand to note my disagreement 

with paragraphs 4 and 5 of the majority opinion above.

[¶9] Termination of parental rights for a child protected by the provisions of 

the Indian Child Welfare Act must be supported by testimony from a qualified 

expert “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” as required by 25 U.S.C. § 1912(f). The statutory provision at issue reads 

as follows:

No termination of parental rights may be ordered in such 

proceeding in the absence of a determination, supported by 

evidence beyond a reasonable doubt, 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(f).

[¶10] Paragraphs 4 and 5, consistent with the prior majority opinion in Interest 

of K.B., 2021 ND 106, 961 N.W.2d 293, suggest that a district court could find, 

beyond a reasonable doubt, the continued custody of a child by the parent or 

Indian custodian is likely to result in serious emotional or physical damage to 

the child in cases where the only qualified expert witness provides testimony 

that continued custody of the child by the parent or Indian custodian is not

likely to result in serious emotional or physical damage to the child. That 

position is inconsistent with other state courts and unsupported by any other 

judicial decisions. See Interest of K.B., 2021 ND 106, 961 N.W.2d 293 (Jensen,

C.J., concurring specially). It is also inconsistent with this Court’s prior 

decision drawing a bright line on the qualified expert requirement, and 

mandating the reversal of any termination lacking a qualified expert witness. 

Interest of K.S.D., 2017 ND 289, ¶ 28, 904 N.W.2d 479.
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[¶11] The majority’s position is, apparently, that the statute can be read to 

prohibit termination in the absence of a qualified expert testifying, but allow 

termination in the face of a qualified expert testifying there is not likely to be 

serious emotional or physical harm. How can 25 U.S.C. § 1912(f) be read to 

prohibit termination in the absence of a qualified expert but allow termination 

in the face of a qualified expert testifying there is not likely to be serious 

emotional or physical harm? I cannot reconcile such a reading of the statute, 

nor has any other jurisdiction read the statute with that construction. The 

majority’s reading of the statute renders the expert requirement illusory.

[¶12] I concur in affirming the district court decision on remand. On remand, 

the district court received additional testimony from the qualified expert that 

continued custody of the child by the parent or Indian custodian was not likely 

to result in serious emotional or physical damage to the children. In light of 

that testimony, the district court was compelled to deny the termination of 

parental rights.

[¶13] Jon J. Jensen, C.J.