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In re A.B.6/17/2003
AFFIRMED.
[ ] Norean Hoots, a social worker with Cass County Social Services, ("Cass County") appealed from a juvenile court order granting a motion by the Turtle Mountain Band of Chippewa Indians ("Turtle Mountain Tribe") under the Indian Child Welfare Act ("ICWA"), 25 U.S.C. § 1901 et seq., to transfer jurisdiction of a parental termination proceeding from state juvenile court to the Turtle Mountain Tribal Court ("Tribal Court"). We affirm the transfer, holding the juvenile court did not commit reversible procedural error in overturning a judicial referee's recommendation to deny the motion to transfer, holding the juvenile court did not err in transferring jurisdiction of the child custody proceeding to Tribal Court, and holding the application of ICWA to the minor child is not unconstitutional.
I.
[ ] A.B. was born in 1993. A.B.'s biological father, F.B., and her paternal grandmother, H.L., are enrolled members of the Turtle Mountain Tribe, and A.B. is eligible for membership in the Turtle Mountain Tribe. A.B. is therefore an "Indian child" under ICWA. See 25 U.S.C. § 1903(4). During the time relevant to this appeal, F.B. was living in the state of Washington. On March 3, 2001, A.B. was living with her mother, K.B., in Cass County, when K.B. was arrested for driving under the influence . K.B. advised police that A.B., then age 7, and two younger siblings were home alone. A.B. was placed in protective custody, and after a March 2001 juvenile court determination that she was deprived, Cass County placed her in foster care with H.L., who was living in Fargo. At the request of H.L., Cass County placed A.B. in a non-Indian foster home in October 2001. In February 2002, K.B.'s probation was revoked, and she was sentenced to two years in jail. In a motion filed on February 20, 2002, the Turtle Mountain Tribe moved under ICWA to transfer jurisdiction of child custody proceedings involving A.B. from the state juvenile court to Tribal Court. K.B. objected, and the juvenile court refused to transfer jurisdiction to Tribal Court. See 25 U.S.C. § 1911(b) (providing, in part, state court shall transfer proceeding to jurisdiction of tribe, absent objection by either parent).
[ ] On June 3, 2002, Cass County petitioned the juvenile court to terminate the parental rights of K.B. and F.B. In a motion dated July 17, 2002, and filed on July 23, 2002, the Turtle Mountain Tribe moved under ICWA to transfer jurisdiction of the proceeding involving A.B. from state juvenile court to Tribal Court. K.B. did not object to this motion to transfer jurisdiction. After a September 23, 2002 hearing, a judicial referee recommended denying the motion to transfer jurisdiction, concluding it was not timely because the proceeding was at an advanced stage and a transfer of jurisdiction to Tribal Court would create a forum inconveniens. The Turtle Mountain Tribe sought review of the referee's decision under N.D. Sup. Ct. Admin. R. 13. The juvenile court reversed the referee's recommendation, concluding the Turtle Mountain Tribe's motion to transfer was made within seven weeks after Cass County's petition to terminate parental rights was filed and was timely. The juvenile court also concluded the Tribal Court was not an inconvenient forum. The juvenile court granted the Turtle Mountain Tribe's motion to transfer jurisdiction to Tribal Court and dismissed the state court petition to terminate parental rights.
II.
[ ] In In the Interest of D.Q., 2002 ND 188, 8-9, 653 N.W.2d 713 (citations omitted), we outlined our relevant standards of review of a juvenile court proceeding initially heard by a referee and then reviewed by a district court:
" district court's
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