A Mille Lacs Band of Ojibwe mother with a history of substance abuse may petition to regain custody of her son, the Minnesota Court of Appeals ruled Tuesday.
The court cited the high threshold of the Indian Child Welfare Act in reversing an Aitkin County judge's decision to deny the mother's petition. She voluntarily terminated her parental rights to the boy, now 12, in 2006.
Under the act, which seeks to protect the rights of Indian tribes in retaining children in their society, a high set of standards must be met before determining the mother is not fit to regain custody. Not all of those standards were met, the court ruled. The case will now return to Aitkin County.
According to the order, the boy, who suffers from multiple behavioral disorders, was removed from his mother's care and adopted in 2008. A year later his adoptive parent sought out-of-home placement because she could no longer care for him due to his behavior. The boy was then placed in foster care with a Native American adult who is not a member of the boy's tribe. The adoptive parent terminated her rights and the boy seemed to thrive in foster care.
Under the act, the boy's biological mother was allowed to then petition for custody. Citing the mother's history and pending criminal charges, an Aitkin County judge denied her request, reasoning that returning the boy to his mother was not in his best interests.
The Appeals Court disagreed, saying the district judge did not take into account any current evidence that may affect the decision. Additionally, a judge may only rule against the parent after expert testimony that "the child is likely to face serious emotional or physical damage if reunited with the parent," according to the act.