author: KONENKAMP, Justice.

text:
    2005 SD 65
    In the Matter of John C. OGILVIE, Jr.
    No. 21757.
    Supreme Court of South Dakota.
    Argued April 27, 2005.
    Decided May 25, 2005.
    See also 623 N.W.2d 55 (2001).

      Craig M. Eichstadt, Pierre, SD, for Board of Bar Examiners.
    John C. Ogilvie, Jr., Rapid City, SD, pro se applicant.
   KONENKAMP, Justice.

[¶ 1.] John C. Ogilvie, Jr., was conditionally admitted to the State Bar of South Dakota in 2001. Having found that he failed to maintain the requirements of his conditional admission, the Board of Bar Examiners recommended that his license be revoked. Based on our conclusions set out below, we revoke his conditional license as a South Dakota attorney.

Background

[¶ 2.] In 2001, we granted John C. Ogilvie, Jr., a conditional admission to practice law in South Dakota. See In re Ogilvie, 2001 SD 29, 623 N.W.2d 55. The specifics of his background and the reasons for our ruling can be found in that opinion. It will now suffice to say only that he was not granted a full admission to the bar because of his history of two DUI arrests, acts of alleged domestic abuse, failure to pass a drug screening test for an earlier job, delinquency in child support payments, and interference with a witness in a divorce trial. Despite this history, Ogilvie convinced this Court that these concerns were resolved and should not deny him the opportunity for a conditional admission. Id. ¶ 11, 623 N.W.2d at 58 (split decision: he “carried his burden of proving good moral character as required under SDCL 16-16-2.2”).

[¶ 3.] As part of his conditional admission, we ruled that Ogilvie should participate in a three-year mentorship program. During this time, the Board would keep close oversight of his law practice and his behavior. His license was “subject to revocation” in the event he was unsuccessful in maintaining the requirements of his conditional admission. Id.

[¶ 4.] On December 22, 2003, the Board held a hearing to consider new disclosures about Ogilvie’s conduct. Testimony was given by several witnesses, including Ogil-vie. The new information concerned allegations of domestic violence, alcohol abuse, unprofessional conduct, and neglect of clients’ cases. After considering these matters, the Board recommended that Og-ilvie’s license be immediately suspended, that his conditional admission be revoked, and that he be prohibited from reapplying for such period as this Court deems proper. We suspended Ogilvie’s license on April 1, 2004. In the interim, the Board and Ogilvie submitted briefs, and thereafter we heard oral arguments. The question before us is whether Ogilvie has maintained good moral character as required by SDCL 16-16-17.1 so that his conditional admission can continue. See SDCL. 16-16-17.1 (1996).

Analysis and Decision

[¶ 5.] It is our responsibility to oversee all bar admissions in South Dakota. In re Widdison, 539 N.W.2d 671, 675 (S.D.1995); In re Shemonsky, 379 N.W.2d 316, 318 (S.D.1985). We are not bound by any recommendation from the Board of Bar Examiners. Widdison, 539 N.W.2d at 675 (citing Shemonsky, 379 N.W.2d at 318); see SDCL 16-16-16 (2003). Nonetheless, we give due consideration to the Board’s character and credibility determinations. Ogilvie, 2001 SD 29, ¶¶ 5, 10, 623 N.W.2d at 56, 58 (citations omitted). Conditionally licensed attorneys maintain the continuing burden of proof to show by clear and convincing evidence that they possess good character and moral fitness. Id. ¶ 5; SDCL 16-16-2.2 (1996). A conditional admission “offers a probationary period for those not able to gain admission to practice because of misconduct in the past or lingering questions of character in the present.” Ogilvie, 2001 SD 29, ¶ 16, 623 N.W.2d at 59 (Konenkamp, J., concurring).

[¶ 6.] South Dakota’s conditional admission statute provides:

If the Board of Bar Examiners determines that there are unresolved issues of good moral character, fitness, or general qualifications of the applicant, the board, in its discretion, may make a recommendation to the Supreme Court of conditional admission. The recommendation may incorporate such terms, conditions, and restrictions and be for such duration as the board determines appropriate. The Supreme Court may accept or reject the recommendation.
The Board of Bar Examiners shall review the conditional admission no later than the date specified in the recommendation and recommend to the Supreme Court that:
(1)The conditional admission be terminated, resulting in loss of license; or
(2)That the conditional admission be modified and/or extended; or
(3)That full admission be granted.
The Supreme Court may accept or reject the recommendation.

SDCL 16-16-17.1.

[¶ 7.] In Widdison, we described the privileged status of bar membership:

‘[T]he right to practice law’ is not in any proper sense of the word a ‘right’ at all, but rather a matter of license and high privilege. Certainly, it is in no sense an absolute right. It is in the nature of a franchise to the enjoyment of which no one is admitted as a matter of right, but only upon proof of fitness and qualifications which must be maintained if the privilege is to continue in enjoyment.

539 N.W.2d at 675 (following In re Egan, 52 S.D. 394, 398, 218 N.W. 1, 2-3 (1928)). A vital and mandatory component to the privilege of practicing law is good moral character as set forth in SDCL 16-16-2. “Good moral character,” defined in § 16-16-2.1, “includes but is not limited to qualities of honesty, candor, trustworthiness, diligence, reliability, observance of fiduciary and financial responsibility, and respect for the rights of others and for the judicial process.” Id. (1990).

[¶ 8.] In our de novo review of the record, we find several salient concerns bearing directly on the question of Ogil-vie’s character. First, there are incidents of domestic abuse. The Board found that “Ogilvie intentionally engaged in violent behavior against [his girlfriend] and that he intentionally struck [her] while in his home after a night of extensive drinking.” The Board did not believe Ogilvie’s explanation that he merely hit her reflexively with his elbow after she poured something over his head from behind. In another incident, the Board concluded that “Ogilvie shoved [his girlfriend] against the door of his pickup, bruising her.”

[¶ 9.] Ogilvie’s girlfriend obtained a protection order against him. He, in turn, sought his own protection order. The Board concluded that his decision to seek his own protection order “was improper in that it was brought for the purpose of defending against [his girlfriend’s] protection order application.” The Board concluded that his protection order request “lacked any substantial evidentiary or factual backing; and that it was brought for the improper purpose of harassing [his girlfriend] and making her litigation against Ogilvie more difficult.”

[¶ 10.] Ogilvie was apparently caught up in another corrosive relationship, exacerbated by heavy drinking. These incidents are evocative of the dysfunctional relationship Ogilvie had with Colleen Roper in 1992, which we considered in our earlier decision. With both women, Ogil-vie insisted that they deserve no credibility and that he has never committed any act of domestic violence.

[¶ 11.] Second, there are incidents of cavalier and sometimes underhanded practices. Ogilvie deposited $5,000 in his trust account to assist his girlfriend in hiding money from her creditors. He placed money from unearned fees and unpaid filing fees in his personal account rather than his trust account. He occasionally paid his sales taxes late. He amended a divorce stipulation sent to him by opposing counsel, had his client sign it, and then sent it back to counsel without any forewarning that the agreement had been amended. Although he has had a mentor available to assist him in practicing law, he has not made effective use of this attorney.

[¶ 12.] Third, there are persistent concerns about his alcohol consumption. The Board concluded that his drinking was abusive. By his own admission, he drank every day and would regularly have six to eight beers on Friday nights. At oral argument, Ogilvie told us that, with the one exception of a wedding reception, he has not “been in a bar since [he] was suspended from practice over a year ago.” But his consumption remains the question. We were concerned with his alcohol usage in the first proceeding, given that we related in the opinion his past DUI arrests and required that he supply to the Board any requested records of his chemical dependency assessments. As noted the last time, “[i]t seems that many of his problems occurred at a time when he was abusing chemicals.” Ogilvie, 2001 SD 29, ¶ 27, 623 N.W.2d at 61 (Konenkamp, J., concurring).

[¶ 13.] Fourth, in a negligence suit brought on behalf of a client, Ogilvie failed to act with due competence. This matter involved a cause of action that Ogilvie brought on behalf of a man hit by a car while riding his wheelchair on a street in the dark. The case, according to Ogilvie, turned out to be without merit. After further research, Ogilvie thought he should have never taken the case, and that there was little or no law justifying the lawsuit in the first instance. With no legal support, Ogilvie proceeded ineffectually to develop the facts, challenge the opposition’s motions, or settle the matter. He took no depositions and did not oppose his adversary’s second motion for summary judgment. Much of Ogilvie’s problems in handling this case could have been avoided if he had sought early assistance from his mentor. At the hearing before the Board, Ogilvie admitted that he “didn’t know what [he] was doing.”

[¶ 14.] In his brief to this Court, Ogil-vie responded to some of these allegations, but failed to answer others. His failure to respond is tantamount to an admission. On the allegations he did respond to, Ogilvie argued that they were overblown or false. We look at all the circumstances in their totality, and, in our de novo review, we conclude that the Board was correct in its assessment. Ogilvie was granted a conditional license on the premise that he had resolved his past issues. Yet we now find him in a situation less tenable than when his application to practice law was first under consideration. Problems on which he earlier received the benefit of the doubt have re-emerged. We gave him the opportunity to prove himself, which is the purpose behind conditional admissions. As we noted in our prior opinion, however, his conditional admission was “subject to revocation” if he failed to adhere to “any of’ his conditions. Ogilvie, 2001 SD 29, ¶ 11, 623 N.W.2d at 58. The burden to show good moral character to the Board and this Court remained on Ogilvie. We conclude that he has not met his burden of showing by clear and convincing evidence that he has the good moral character to continue to practice law in South Dakota.

[¶ 15.] Under SDCL 16-16-17.1, Ogil-vie’s conditional admission is revoked. He may not reapply for admission earlier than April 1, 2009, five years from the date his license was suspended.

[¶ 16.] GILBERTSON, Chief Justice, and ZINTER and MEIERHENRY, Justices, and ANDERSON, JAMES, Circuit Court Judge, concur.

[¶ 17.] ANDERSON, JAMES, Circuit Court Judge, sitting for SABERS, Justice, disqualified.

       In his appellate brief, Ogilvie did not address all the Board’s findings against him. For example, he gave no explanation contrary to the Board's conclusion that he misused the protection order process and his trust account. His failure to dispute these matters waives our examination of them. SDCL 15-26A-60(6); State v. Hoxsie, 1997 SD 119, ¶ 14, 570 N.W.2d 379, 382. He did respond to some additional allegations at oral argument, but his explanations were unsatisfactory.


source: Caselaw Access Project

author: WIGGINS, Justice.

license: Public Domain

text:
    In the Matter of F.W.S. Alleged to be Seriously Mentally Impaired, F.W.S., Appellant.
    No. 04-0929.
    Supreme Court of Iowa.
    April 29, 2005.
    Rehearing Denied May 31, 2005.
    Michael J. Tulis of Iowa Legal Aid, Council Bluffs, for appellant.
    Matthew Wilber, County Attorney, for appellee Pottawattamie County.
   WIGGINS, Justice.

On appeal F.W.S. asks us to determine whether clear and convincing evidence supports the lower court’s conclusion that F.W.S. is seriously mentally impaired within the meaning of Iowa Code section 229.1(15) (2003), and whether F.W.S. was denied his right to due process and statutory protections at the commitment hearings. Based on the lack of a record from the lower courts, we are unable to decide F.W.S.’s appeal.

F.W.S. is a forty-four-year-old male who has a history of paranoid schizophrenia. He resided in his own apartment, which is part of a complex federally subsidized for the elderly and disabled. After receiving complaints from other tenants of the apartment complex, F.W.S.’s mother filed an application for involuntary commitment alleging serious mental impairment against F.W.S.

On April 27, 2004, a district associate judge approved the application and ordered that F.W.S. be taken into immediate custody and detained at a hospital in Council Bluffs until a hearing could be held on the application pursuant to Iowa Code section 229.11(2). A magistrate held the hearing on April 29. The magistrate did not make an electronic recording or other verbatim record of the proceedings. On that same day, the magistrate issued his order finding clear and convincing evidence existed to support the contention F.W.S. was seriously mentally impaired as defined by Iowa Code section 229.1(15). The magistrate ordered immediate inpatient treatment.

F.W.S. appealed the magistrate’s order to the district court. On May 10, after a hearing, which the district court did not have recorded or reported, the district court affirmed the magistrate’s order but modified the commitment from an inpatient commitment to an outpatient commitment, ordering F.W.S. to receive intramuscular injections of psychotropic drugs on a bi-weekly basis.

On June 9, F.W.S. filed a notice of appeal from the district court’s May 10 decision and “from every adverse order, decision, and ruling of the ... court made during the pendency of this case.” On June 11, F.W.S.’s attorney filed his combined certificate indicating, “the proceedings in Pottawattamie County District Court were not recorded by a court reporter or other electronic means. [He] will prepare a statement of the evidence or proceedings pursuant to Iowa Rule of Appellate Procedure 6.10[(3)].” Rule 6.10(3) provides:

If no report of the evidence or proceedings at a hearing or trial was made, or if a transcript is unavailable, appellant may prepare a statement of the evidence or proceedings from the best available means, including the appellant’s recollection. The statement shall be filed with the clerk of the district court and served on appellee within 20 days after the filing of the notice of appeal. Appellee may file with the clerk of the district court and serve on appellant objections or proposed amendments to the statement within 10 days after service of appellant’s statement. Thereupon the statement and any objections or proposed amendments shall be submitted to the district court for settlement and approval and as settled and approved shall be included in the record on appeal.

Iowa R.App. P. 6.10(3).

F.W.S.’s attorney filed a request asking this court to enlarge the time to file a statement of evidence or proceedings. We granted the extension giving F.W.S.’s attorney until July 19 to file his statement of evidence or proceedings with the district court. F.W.S.’s attorney timely filed the statement with the district court. The county attorney did not file an objection or proposed amendment to the statement. Neither party submitted the proposed statement to the lower courts for settlement and approval. Instead, F.W.S.’s attorney proceeded with the appeal and included the unapproved statement as the record in this action.

The rules of appellate procedure require that if the “appellant intends to urge on appeal that a finding or conclusion is unsupported by the evidence or is contrary to the evidence, appellant shall include in the record a transcript of all evidence relevant to such finding or conclusion.” Iowa RApp. P. 6.10(2)(c). It is the appellant’s duty to provide a record on appeal affirmatively disclosing the alleged error relied upon. State v. Ludwig, 305 N.W.2d 511, 513 (Iowa 1981). The court may not speculate as to what took place or predicate error on such speculation.

Without the benefit of a full record of the lower courts’ proceedings, it is improvident for us to exercise appellate review. Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002). Rule 6.10(3) allows an appellant the chance to have a record on appeal when the lower court does not report or record the proceedings. F.W.S.’s failure to comply with rule 6.10(3) precludes him from seeking relief on appeal. In re T.V., 563 N.W.2d 612, 614 (Iowa 1997). Therefore, we must affirm the decision of the district court because F.W.S. has failed to present a proper record on appeal.

It is unfortunate we have to decline to decide this appeal, especially when a person’s liberty is at stake. See Ludwig, 305 N.W.2d at 513 (holding defendant’s failure to provide the court with the record on appeal affirmatively disclosing the error relied on precluded the court from reviewing defendant’s claim that sentence of imprisonment was imposed in retaliation for defendant’s refusal to plead guilty); State v. Mudra, 532 N.W.2d 765, 767 (Iowa 1995) (holding defendant waived alleged error in sentencing proceeding by voluntarily failing to make a record of the district court proceeding). In the future, we remind the lower courts that the rules for involuntary hospitalization of mentally ill persons require “an electronic recording or other verbatim record of the hearing ... shall be made” by the lower court. Iowa Ct. R. 12.20. The judgment of the district court is affirmed.

AFFIRMED.

      . At oral arguments, the county attorney attempted to stipulate that the unapproved statement contained in the appendix was an accurate record of the proceedings below. The rules of appellate procedure do not allow us to recognize such a stipulation. Rule 6.10(3) requires any unrecorded or unreported record must be settled and approved by the lower courts. Iowa R.App. P. 6.10(3). Such approval is not merely ministerial, but provides the lower court an opportunity to ensure the accuracy of the statement.


author: LARSON, Justice.

text:
    NATHAN LANE ASSOCIATES, L.L.P. and Marmax, Inc. d/b/a Minter Weisman-quad Cities Division, Appellees, v. MERCHANTS WHOLESALE OF IOWA, INC. and Merchants Wholesale, Inc., Appellants.
    No. 03-0128.
    Supreme Court of Iowa.
    May 20, 2005.
    Rehearing Denied June 29, 2005.

      Robert V.P. Waterman, Jr. and Thomas D. Waterman of Lane & Waterman, Davenport, and Hugh C. Griffin and Dale T. Miller of Lord, Bissell & Brook, Chicago, IL, for appellants.
    Joseph C. Creen of Bush, Motto, Creen & Koury, PLC, Davenport, and William R. Skolnick of Skolnick & Associates, P.A., Minneapolis, MN, for appellees.
   LARSON, Justice.

Merchants Wholesale of Iowa, Inc. was lessee under a sublease on a large commercial storage building in Davenport, Iowa. The lessors, Nathan Lane Associates, L.L.P. and Marmax, Inc. (collectively Marmax), sued Merchants and its guarantor, Merchants Wholesale, Inc. (collectively Merchants), alleging breach of the lease terms and demanding damages. The district court entered a judgment for the plaintiff for over $940,000, consisting largely of double rent for “holding over” after the termination of the lease. Merchants appealed, and the court of appeals affirmed in part and reversed in part. We vacate the decision of the court of appeals, reverse the judgment of the district court, and remand.

I. Facts and Prior Proceedings.

Before Merchants became involved in this lease, Marmax had been in the grocery-packing business for many years, leasing this commercial warehouse from Nathan Lane Associates. In 1995 Marmax installed a three-story racking and overhead conveyor system, described as having a “very special use” for transporting grocery-type merchandise throughout the warehouse. Marmax subsequently sold its Davenport business and subleased the building to Merchants. Merchants also leased (with an option to buy) personal property on the premises, including the racking and conveyor system.

In December 2000 Marmax and Merchants entered into a new one-year sublease. The parties also executed a personal-property purchase agreement (PPPA), under which Merchants agreed to purchase the previously leased personal property for $460,000.

Under the terms of the sublease, Merchants could terminate the sublease before the end of its one-year term if Merchants was financially unable to remain in business, provided it had paid in full for the personal property purchased under the PPPA. Merchants paid the balance due under the PPPA in March 2001. On May 3, 2001, it sent a written notice of its intent to terminate the lease in ninety days.

On August 2, 2001, Marmax’s lawyer wrote to Merchants’ lawyer:

In accordance with your own client’s notice of early termination, Friday, August 3, 2001, by the end of business Merchants Wholesale is no longer on the subject premises with the permission of [Marmax] or anyone authorized to act on their behalf. There was ample opportunity for Merchants Wholesale and its owner to voluntarily cure the numerous outstanding defaults as set forth more specifically in my prior letters and to make arrangements beyond August 3, 2001, that may have been acceptable then to my clients.

(Emphasis added.) The lawyer detailed several alleged defaults by Merchants, including failure to properly maintain and repair a freezer, failure to maintain the grounds, and failure to pay attorney fees. Pursuant to Marmax’s letter of August 2, Merchants was excluded from the property, and on August 4, Marmax changed the locks on the building. Marmax immediately listed the building for sale.

On September 11, 2001, Marmax sued Merchants, alleging it breached the sublease by holding over, based on Merchants’ failure to remove the personal property and its failure to restore the premises. Prior to the court’s final decision awarding Marmax the damages now on appeal, the court entered a summary judgment against Merchants, ordering it to pay the expenses of removing the personal property and cleaning the premises. It is undisputed that Merchants has paid those costs.

II. Resolution.

A. Standard of review. Our review of this law action is for the correction of errors at law. Iowa R.App. P. 6.4. The district court’s findings of fact have the effect of a jury verdict, and we are bound by them if they are supported by substantial evidence, i.e., evidence that a reasonable mind would accept as adequate to reach the same findings. Hendricks v. Great Plains Supply Co., 609 N.W.2d 486, 490 (Iowa 2000). We are not, of course, bound by the district court’s application of the law.

B. Personal property left behind on a leased premises. Failure of an outgoing tenant to remove personal property may, under some circumstances, constitute a holdover. See 52A C.J.S. Landlord & Tenant § 712, at 78 (2003); Milton R. Friedman, Friedman on Leases § 18.4, at 1237-38 (4th ed. 1997) [hereinafter Friedman on Leases]; see also Tracy A. Bate-man, Annotation, What Constitutes Tenant’s Holding Over of Leased Premises, 13 A.L.R.5th 169 §§ 9-10, at 192-210 (1993) (summarizing cases in which holdover was alleged because tenant left property on the premises after the termination of the lease).

In this case, the district court correctly observed that, ordinarily, it is a question of fact whether a tenant has held over by failing to remove its property at the end of the lease. See Nehi Bottling Co. v. All-Am. Bottling Corp., 8 F.3d 157, 163 (4th Cir.1993); Friedman on Leases § 18.4, at 1238. The district court, after considering the racking and conveyor system’s sheer size, concluded that the system severely hindered Marmax’s right to take possession and thus constituted a holdover. We do not agree. Marmax, from August 4, 2001, was in control of the premises by excluding Merchants from it. Marmax was free to remove Merchants’ property and, in fact, ultimately did so at Merchants’ expense.

It is axiomatic that, if a party does not have the right to possession, the concomitant duty to pay rent does not arise. Here, Marmax — not Merchants — had the right of possession. See LIC, Inc. v. Baltrusch, 215 Mont. 44, 692 P.2d 1264, 1266 (1985) (holding that landlord repossessed premises when it changed the locks to the buildings); see also Deeb v. Canniff, 29 Colo.App. 510, 488 P.2d 93, 95 (1971) (“[T]he general rule [is] that a re-entry by the landlord ... which materially disturbs the possession of the tenant constitutes an eviction and terminates the lease. [The lessor’s] conduct in changing the locks and evicting Canniff under the undisputed facts in this case terminated the lease....” (Citations omitted.)); Warren v. Yocum, 223 N.W.2d 258, 260 (Iowa 1974) (“Possession involves power of control and intent to control, and all the definitions contained in recognized law dictionaries indicate that the element of custody and control is involved in the term ‘possession.’ ” (Internal quotations omitted.)).

By reentering the premises and taking possession, Marmax effectively prevented any holdover tenancy as a matter of law. See Restatement (Second) of Property: Landlord and Tenant § 1.2 (1977) (“A landlord-tenant relationship exists only if the landlord transfers the right to possession of the leased property.”). Without possession, Merchants could not be a tenant, and therefore, it was not liable for rent. Instead, from August 4 on, Merchants was at most a trespasser.

The Alaska Supreme Court, in considering a similar factual scenario, reached the same result. See Brown v. Music, Inc., 359 P.2d 295 (Alaska 1961). In Brown the tenant leased a restaurant from Music, Inc. and also agreed to purchase some of Music’s equipment already on the premises. However, just a few months later, Brown discontinued his restaurant business and stopped paying rent. After two months of nonpayment, Music terminated the lease and ordered Brown to vacate the premises and remove all personal property. Brown removed some property, but not all of it. Id. at 296.

Music informed Brown that, if he did not remove the remaining property, Music would charge rent for the space it occupied. After several months, Music finally moved the equipment off the premises and into storage. It then sued Brown for rent due while the equipment was stored at the restaurant. Id.

After reviewing the law regarding holdovers and tenancies at sufferance, the Alaska court stated:

These facts plainly indicated that Music did not treat Brown as a lessee holding over from month to month beyond the termination of the lease. Its actions are inconsistent with the idea of a continuing tenancy. The lease was clearly terminated by Music, and at that moment the relationship of landlord and tenant with its attendant obligations ceased. It could not be revived by Music’s unilateral action, as expressed in its notice to Brown ..., that it would charge Brown “rent for storage space” if he did not move certain personal property within the specified time. If Music were deprived of the use of a portion of its building by reason of Brown’s failure to remove the property, then Brown was a trespasser, possibly liable for damages suffered by the landlord.

Id. at 297 (footnote omitted).

Music claimed that, regardless of Brawn’s status as a trespasser, Music was entitled to “[d]amages resulting from [Brown’s] failure to surrender possession of the leased premises ..., i.e., their rental value during the period of wrongful possession.” Id. at 298. The court conceded that rental value is typically the proper remedy when a tenant fails to surrender possession. However, Brown was not actually in possession. Id. This fact, according to the court, defeated Music’s claim for rent. Id. at 299.

In this case, we believe it was error to award damages for rent. Because Mar-max reclaimed possession of the premises, Marmax was entitled to, at most, damages for trespass caused by Merchants’ leaving its personal property behind. See Nichols v. City of Evansdale, 687 N.W.2d 562, 573 (Iowa 2004) (stating that damages for trespass are measured either by the diminution of value to the premises caused by the presence of the defendant’s personal property or the costs incurred in removing such property); Restatement (Second) of Property: Landlord and Tenant § 12.3 cmt. k (stating that landlord may recover from tenant the cost of removing and storing personal property left behind).

Marmax has cited no cases, and we have found none, that have allowed double rent — or any rent at all for that matter— under circumstances in which the former tenant is denied possession of the premises. Leslie Pontiac, Inc. v. Novak, 202 N.W.2d 114 (Iowa 1972), cited by the district court and Marmax, is distinguishable. That case allowed ordinary rent for the period of holdover, but denied double rent. Leslie Pontiac, 202 N.W.2d at 116-17. While that case allowed actual rent, the tenant had maintained actual possession of the property following termination of the lease. Id. at 115. That is not the case here.

We reverse the judgment against Merchants insofar as it included ordinary and double rent. Other damage issues raised below, including, but not limited to, any unpaid costs associated with the removal of Merchants’ property (as to which the appellate record is not clear) and Merchants’ claim for a tax refund being held by Marmax, cannot be resolved on this appeal. Accordingly, we remand for entry of a new judgment, consistent with this opinion, and based on the existing record.

DECISION OF COURT OF APPEALS VACATED; JUDGMENT OF DISTRICT COURT REVERSED; CASE REMANDED.


author: CARTER, Justice.

text:
    In re The MARRIAGE OF Michael GRANTHAM and Tammara Sue Grantham. Upon the Petition of Michael Grantham, Appellant, And Concerning Tammara Sue Grantham, Appellant.
    No. 03-2100.
    Supreme Court of Iowa.
    June 3, 2005.
    Rehearing Denied June 29, 2005.

      Bruce J. Toenjes of Nelson & Toenjes, Shell Rock, for appellant.
    Melissa A. Nine and Barry S. Kaplan of Kaplan & Frese, LLP, Marshalltown, for appellee.
    Michael Kuehn, LTC Staff Judge Advocate, Johnston, for amicus curiae Iowa National Guard.
   CARTER, Justice.

Michael Grantham, the custodial parent of two minor children pursuant to a decree of dissolution, appeals from adverse rulings in proceedings to modify child custody. Those proceedings were pursued by the children’s mother, Tammara Grant-ham, following Michael’s call to active duty with the Iowa National Guard. The district court modified the dissolution decree by changing primary care of the children from Michael to Tammara. The court of appeals reversed the district court’s order modifying the dissolution decree, relying in part on the Soldiers and Sailors Civil Relief Act (SSCRA). After reviewing the record and considering the arguments presented, we vacate the decision of the court of appeals and affirm the district court’s orders and decree.

The marriage of Michael and Tammara was dissolved on July 11, 2000. At the time, their two children, Jeremy and Brianna, were ages ten and six, respectively. The decree provided for joint custody of the children with their primary physical care being placed with Michael. Tammara was required to make child support payments.

Michael was called to active duty with the Iowa National Guard on August 21, 2002, with orders to report to his unit’s armory at Estherville, Iowa, on August 24. He apparently had been anticipating that occurrence because the children had informed Tammara earlier in the month that Michael would be leaving for military service and that he had arranged for the children to reside with his mother, Irm-gard Grantham, while he was away on military duty. Tammara objected to that arrangement. She attempted to reach resolution of the issue with Michael before he reported for duty.

Michael reported for duty on August 24 with the issue still unresolved. He was able to return home on August 27 for a meeting with his attorney. He also met with Tammara and her attorney on that date. Michael reviewed a military family care plan with his attorney providing that the children would be cared for by Irm-gard during his military service. Later the same day, Michael and his attorney met with Tammara and her attorney and negotiated an agreement that provided Tammara was to have temporary custody of the children commencing on August 30 to continue during Michael’s absence for military service. The agreement provided that the children were to be promptly returned to Michael on the completion of his military duty. Although Tammara resided in Allison, Iowa, the agreement provided that she would continue to have the children attend school in Clarksville, where they had been residing with Michael.

When Tammara attempted to pick up the children on August 30, she was met by Michael who told her he was not signing the agreement and had finalized a military family care plan providing that the children would be in Irmgard’s care throughout his military service. He advised her that her contact with the children during this time would be limited to the periods of visitation she was granted in the dissolution decree.

On September 4 Tammara filed a petition seeking permanent physical care of the children, temporary custody of the children pendente lite, temporary and permanent support, and a suspension of her child support obligations. The district court set a hearing on those requests for September 20. Michael was served with the petition on September 5 while serving at an armory in Estherville, Iowa. On September 7 Michael left with his unit for Fort Knox, Kentucky. On September 10, through his attorney, Michael filed a request for stay of the child custody proceedings pursuant to the SSCRA “until he returned to civilian status.”

The district court denied Michael’s application for a stay and set a scheduling conference for October 10. That conference was held without Michael being present and resulted in a hearing being scheduled for October 29 on the request for temporary orders. Following that hearing, which was held without Michael’s presence, the district court entered an order temporarily placing the children with Tammara, terminating her support obligation, and requiring Michael to pay child support.

Michael was on active duty until September 2, 2003. He was, however, able to be present on August 27, 2003, when the trial of Tammara’s petition for permanent change of custody was held. Following that trial, the district court ruled that permanent physical care of the children should be changed from Michael to Tam-mara. The court also entered orders providing for Michael’s visitation with the children and his payment of child support. Other facts that bear on this controversy will be considered in connection with our discussion of the legal issues presented.

I. Scope of Review.

This matter was heard and determined in the district court by equitable proceedings. Consequently, our review of both the facts and the law is de novo. Iowa R.App. P. 6.4; In re Custer’s Estate, 229 Iowa 1061, 1064, 295 N.W. 848, 851 (1941).

II. The Court of Appeals Decision.

In reversing the district court, the court of appeals placed particular emphasis on the temporary placement of the children that occurred following Michael’s call to active duty. The court concluded that Tammara’s request for temporary custody should have been stayed pursuant to the SSCRA, thereby leaving the children with their paternal grandmother in accordance with Michael’s wishes. Based on this premise, the court of appeals reasoned as follows:

[M]ost if not all of the reasons advanced at trial by Tammara for awarding her physical care of the children occurred after Michael was placed on active duty. Tammara cites several instances of poor communication on the part of Michael during the months of Michael’s active duty. She also contends Michael’s decision to designate Irmgard as guardian in his absence evidences his intent to undermine the children’s relationship with Tammara. Finally, Tammara asserts it is in the children’s best interest to be placed with her as she claims the children’s demeanor and academics have improved while they were living with her during Michael’s active military duty. All of these assertions occurred after the district court granted Tammara temporary physical care of the children and would not have occurred but for this change in placement. Thus, reliance on them would only further prejudice Michael by exacerbating the statutory and due process violations accompanying the denial of his request for a stay of the proceedings and the resulting temporary care order. Further compounding these errors is the reality that because Michael’s military service limited his contact with his children, and because he returned home from his service only a short time prior to the [final] custody hearing, the temporary order gave Tam-mara almost exclusive access to the children from November 2002 to the time of the trial. This impeded Michael’s ability to refute Tammara’s evidence or offer any recent facts reflecting positively on his relationship with the children....
The only legitimately asserted change in circumstance that does not rely on the change in temporary placement for its existence is Tammara’s contention that she is now stable. We find this fact woefully insufficient to carry her heavy burden of demonstrating that she can minister more effectively to the children’s needs....

In commenting on the application for stay under the SSCRA, the court of appeals stated:

We recognize the dilemma presented to Tammara and other noncustodial parents. They may not know of the Family Care Plan until it is implemented or preparations for implementation are taking place. Yet, it is at this point that the stay provisions of the SSCRA apply. Therefore, by the time the noncustodial parent can challenge the Family Care Plan, the proceedings to do so are subject to a stay.

We are unable to agree that the SSCRA is so inflexible that it precluded the district court from determining a matter of immediate importance concerning the temporary custody of these children.

III. The Temporary Custody Ruliny.

In reviewing the decision of the court of appeals, we disagree at the outset with that court’s conclusion that matters occurring following Michael’s call to active duty may not be considered in determining whether Tammara has established that she is able to minister more effectively to the children’s needs than Michael. Even if we were to agree with the court of appeals that the request for temporary custody should have been stayed under the SSCRA, a circumstance that would have denied Tammara temporary custody of the children, it is not in the interests of an accurate adjudication of Tammara’s request for permanent custody, or in the best interests of the minor children, to ignore matters that happened during Michael’s absence if those matters weigh in favor of a change of child custody. Having said that, we hasten to add our conclusion that the district court acted properly in denying Michael’s request for a stay of the temporary custody proceedings.

The SSCRA does not mandate a stay in every case. Boone v. Lightner, 319 U.S. 561, 575, 63 S.Ct. 1223,1231, 87 L.Ed. 1587, 1596 (1943); Keefe v. Spangenberg, 533 F.Supp. 49, 50 (W.D.Okla.1981). To warrant a stay under this legislation, it must be determined that substantial rights of the absent serviceman will be prejudiced if the effort to postpone the proceedings is denied. Keefe, 533 F.Supp. at 50.

This court commented on the SSCRA of 1940 in Semler v. Oertwig, 234 Iowa 233, 12 N.W.2d 265 (1943). We recognized that the purpose of such legislation was “to protect both the nation and the interests of those engaged in its defense, keeping in mind, nevertheless, that it is to be used as a shield for defense, and not as a sword for attack or as an instrument for the oppression of opposing parties.” Semler, 234 Iowa at 241, 12 N.W.2d at 270 (emphasis added).

The district court found that Michael attempted to conceal the arrangement for his mother’s custody of the children pursuant to a military family care plan until it was too late for Tammara to seek judicial relief before he was called to active duty. The record strongly supports that finding. To allow Michael to continue the temporary custody proceeding until after his return to civilian status would have been a serious denial of Tammara’s rights. As parent and joint custodian of the children, her claim to temporary custody was clearly superior to that of Michael’s mother. That she would receive temporary custody on an application to the court was an almost certain occurrence. Under the circumstances presented, Michael’s representation through legal counsel, who called witnesses advocating his position, including Tammara’s own father, resulted in no substantial prejudice of Michael’s rights. He has failed to indicate in any manner how his personal presence at the hearing would have changed the result.

We also disagree with the conclusion of the court of appeals that the district court was without authority to enter an order involving temporary custody of the children in connection with her request for a change of the children’s permanent primary care. We agree with the court of appeals that the filing of the petition to modify the child custody provisions of a dissolution decree does not carry with it a right for the determination of temporary custody pendente lite. Modification proceedings differ from original actions in this regard because, in original actions for dissolution, the parties start out with equal rights to child custody, and their separation creates a need for temporary orders until permanent orders are entered at the conclusion of the litigation. As the court of appeals correctly noted, once child custody has been finally settled in a dissolution decree, the provisions of the decree should continue in force until such time as the decree is modified. No need exists for temporary orders in the interim.

We are satisfied, however, that the recognition of these principles does not defeat the jurisdiction or authority of the district court to make the temporary custody determination at issue in the present case. The district court’s authority to act in the matter was in no way dependent on the filing of a petition for a permanent change of custody. Michael’s absence from the parental role as a result of his military service necessitated that a temporary reassignment of custodial responsibilities be made without delay. The fact that the request for temporary custody was filed simultaneously with a petition to modify the primary care provisions of the decree on a permanent basis did not diminish that necessity.

IV. Change of Permanent Custody.

The court of appeals correctly noted that courts should only modify the custodial terms of a dissolution decree if it has been established that conditions since the decree have so materially and substantially changed that the children’s best interests make it expedient to make the requested change. See In re Marriage of Frederick 338 N.W.2d 156, 158 (Iowa 1983). This requires that the parent seeking to take custody from the other prove an ability to administer more effectively to the children’s needs. Id.; In re Marriage of Whalen, 569 N.W.2d 626, 628 (Iowa Ct.App.1997). We have previously set forth the conclusions of the court of appeals, which stated that all of the reasons advanced by Tammara for awarding her physical care occurred after Michael was placed on active duty. We disagree.

In ordering a change of the children’s primary care, the district court found that, beginning almost immediately following the dissolution decree, Michael has maintained a persistent pattern of conduct that has served to diminish the children’s relationship with their mother. He has refused to acknowledge her presence when he and the children are in her company. He has refused to allow the children to acknowledge her presence in public settings. He has inappropriately involved the children in communicating to their mother matters concerning the children’s well-being that should have been discussed privately between their parents. Indeed, Michael has consistently refused to have any direct communication with Tammara throughout the period following the dissolution decree and openly avowed at trial that this behavior would continue. In In re Marriage of Bolin, 336 N.W.2d 441 (Iowa 1983), we observed:

Even though the parents are not required to be friends, they owe it to the child to maintain an attitude of civility, act decently toward one another, and communicate openly with each other. One might well question the suitability as custodian of any parent unable to meet these minimum requirements.

Bolin, 336 N.W.2d at 447. The distinct court correctly found that Michael’s conduct in this regard has been a continuing blemish on his parental role.

The record further reflects that, following the dissolution decree and prior to Michael’s active military duty, the children’s demeanor toward and respect of their mother was less than appropriate. That situation has improved substantially since their placement with their mother pursuant to the court’s temporary order. In summary, as the district court concluded, “circumstances have significantly changed since the entry of the decree and Tammy is presently the most effective parent to both children.”

We have considered all issues presented and conclude that the decision of the court of appeals should be vacated. The district court’s decree is affirmed. The parties shall pay their own attorney fees on appeal.

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT DECREE AFFIRMED.

      . The federal legislation at issue here is the Soldiers and Sailors Civil Relief Act of 1940. 50 U.S.C.App. §§ 501-591 (2002). Substitute legislation was enacted effective December 19, 2003, which substantially changed the provisions of the Act. Because this case was tried and decided prior to December 19, 2003, it is governed by the previous legislation.

      . The court of appeals also concluded that the court had no authority to enter a temporary custody order in connection with Tammara’s filing of an application to modify the custody provisions of the dissolution decree. The court concluded that temporary custody orders were available only in original dissolution filings and not in requests for modification of existing decrees.

      . Our decision in Ratliff v. Ratliff, 234 Iowa 1171, 1177, 15 N.W.2d 272, 275 (1944), is not in conflict with our present conclusion. That case also involved an attempt to modify the custody provisions of a divorce decree and a stay pursuant to the SSCRA was approved by this court until the person in military service was available for trial. Unlike the present case, however, the continuance that was requested concerned the trial of the permanent custody issue, rather than a temporary-custody determination. As a result, the stay that was granted in Ratliff merely preserved the status quo. In the present case, there was no status quo to maintain once Michael was called to active military duty.


author: STREIT, Justice.

text:
    In the Interest of R.E.K.F., Minor Child, G. F., Father, Appellant.
    Nos. 04-1864, 05-0251.
    Supreme Court of Iowa.
    June 10, 2005.

      Irene A. Schrunk, Sioux City, for appellant father of R.E.K.F.
    Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd and Tabitha Gardner, Assistant Attorneys General, Thomas S. Mullin, County Attorney, and Dewey Sloan, Assistant County Attorney, for resister State of Iowa.
    Marchelle Denker of the Juvenile Law Center, Sioux City, guardian ad litem for minor children.
   STREIT, Justice.

A father appeals the termination of his parental rights to his daughter. He contends the State did not comply with the tribal notice provisions of the Iowa Indian Child Welfare Act. Because the State notified the wrong Indian tribe, we remand for further proceedings.

I. Facts and Prior Proceedings

Garrett is the putative father of Ruby, who was born in July 2003. Four months after her birth, Ruby was adjudicated a child-in-need-of-assistance. In March 2004, the State filed a petition to terminate Garrett’s parental rights.

In July 2004, Garrett informed the juvenile court he had “Native American heritage through the Seneca tribe, which is out in the eastern United States, and ... maybe in Canada.” Garrett asked the court to continue the trial so that notice of the termination proceedings could be given to this tribe, pursuant to the requirements of the Iowa Indian Child Welfare Act (Iowa ICWA). See Iowa Code § 232B.5(4) (Supp.2003). The juvenile court. denied the motion.

Before deciding whether to terminate Garrett’s parental rights, however, in November 2004 the juvenile court reconsidered its earlier ruling and ordered the State to notify “the Seneca Tribe” of the proceedings. The juvenile court decreed that if “the Seneca Tribe” did not request to intervene before the end of the year, the court would close the record and issue its decision on the termination.

The State promptly sent notice of the termination proceedings to the Seneca-Cayuga Tribe in Miami, Oklahoma. In December 2004, the Peoria Tribe of Indians of Oklahoma notified the State that Ruby was not a member of the Seneca-Cayuga Tribe of Oklahoma. In February 2005, the juvenile court determined the Iowa ICWA statute did not apply and terminated Garrett’s rights. See Iowa Code § 232.116(l)(d), (l).

Garrett appealed. He argued, among other things, that the State did not comply with the tribal notice requirements of the Iowa ICWA, there was insufficient evidence to support the termination, and the termination was not in Ruby’s best interests. The court of appeals affirmed in an unpublished opinion.

Garrett sought further review, which we granted. Although we retain the discretion to reexamine all issues raised in the initial appeal, in this case we only consider Garrett’s Iowa ICWA tribal notice claim. Cf. Bokhoven v. Klinker, 474 N.W.2d 553, 557 (Iowa 1991) (remarking that supreme court “may review any or all of the issues initially raised on appeal”). We affirm the decision of the court of appeals in all other respects.

II. Principles of Review

Our review of termination cases is ordinarily de novo. See, e.g., In re C.B., 611 N.W.2d 489, 492 (Iowa 2000). To the extent Garrett’s claim of error rests upon statutory interpretation, however, our review is for correction of errors of law. See In re E.H. III, 578 N.W.2d 243, 245 (Iowa 1998). The provisions of the Iowa ICWA are to be strictly construed and applied. Cf. In re J.W., 498 N.W.2d 417, 421 (Iowa Ct.App.1993).

III. Motion to Strike

Before attending to the merits of Garrett’s appeal, we must resolve a pending motion. In his further review brief, Garrett attached several exhibits which were not part of the record before the juvenile court. The State moved to strike this additional information. We grant the State’s motion to strike. See In re M.M., 483 N.W.2d 812, 815 (Iowa 1992) (holding appeal of termination is limited to information that is part of the record); see also In re E.A., 552 N.W.2d 135, 138 (Iowa 1996) (similar).

IV. The Merits

A. Tribal Notice

At issue in this appeal are the tribal notice provisions of the Iowa ICWA. Those provisions require the juvenile court to notify the proper Indian tribe whenever it has reason to know that an Indian child may be involved in an involuntary termination. In particular, Iowa ICWA states:

[T]he court shall establish in the record that the party seeking ... termination of parental rights over ... an Indian child has sent notice by registered mail, return receipt requested, to ... [a]ny tribe in which the child may be a member or eligible for membership.

Iowa Code § 232B.5(4); see also id. § 232B.4(2). Notice must be given even if doubts remain about whether the child is an Indian child, because elsewhere the Iowa ICWA states

the court or any party to the proceeding shall be deemed to know or have reason to know that an Indian child is involved whenever ... the court or a party has been informed by any interested person ... that the child is or may be an Indian child.

Id. § 232B.5(3). Whether or not a child is an Indian child is, after all, a question for the tribe to answer in the first instance. Id. § 232B.4(3); see J.W., 498 N.W.2d at 422 (“The tribes are the arbitrators of their own membership.”); see also In re J.L.M., 234 Neb. 381, 451 N.W.2d 377, 387 (1990) (“Formal membership requirements differ from tribe to tribe-”). Only if the Indian tribe does not provide evidence of the child’s status as an Indian child may the juvenile court determine the matter itself. Iowa Code § 232B.4(3). Taken together, the foregoing provisions of the Iowa ICWA, as do those of similar statutes in other jurisdictions, recognize that it is better to err on the side of giving notice to the tribe and examining thoroughly whether the child is an Indian child. Cf. In re M.C.P., 153 Vt. 275, 571 A.2d 627, 635 (1989). This determination “must be made as soon as practicable in order to serve the best interest of the child and to ensure compliance with the notice provisions of [the Iowa ICWA].” Iowa Code § 232B.4(4).

In this case, Garrett’s statement to the juvenile court regarding his heritage was specific enough to require the State to provide notice of the proceedings to the Seneca Nation of New York. It had reason to know Ruby may be an Indian child. Cf. In re M.N.W., 577 N.W.2d 874, 876 (Iowa Ct.App.1998) (noting the mere fact a child was named “Phoenix Blue Skye” did not put the juvenile court on notice that the child might be an Indian child). The district court erred when it did not order the State to notify the tribe as soon as it was practicable. When the court attempted to rectify its error and later ordered the State to comply with the tribal notice provisions of the Iowa ICWA, however, it only vaguely ordered the State provide notice to “the Seneca Tribe.” Perhaps because of the delay, the State apparently interpreted “the Seneca Tribe” to mean “the Seneea-Cayuga Tribe of Oklahoma.” This was error. According to the Iowa ICWA, an “Indian tribe” includes

an Indian tribe, band, nation, or other organized Indian group, or a community of Indians ... recognized as eligible for services provided to Indians by the United States secretary of the interior because of the community members’ status as Indians.

Iowa Code § 232B.3(11). The relevant federal regulations list the “Seneca Nation of New York” as one such tribe. 68 Fed. Reg. 68180, 68182 (Dec. 5, 2003). The Seneca Nation of New York is to be contrasted with another listed tribe, the “Seneea-Cayuga Tribe of Oklahoma.” Id. We cannot say, as did the court of appeals, that the State adequately complied with the Iowa ICWA by sending notice to the Seneea-Cayuga Tribe of Oklahoma. Garrett stated his heritage lay with “the Seneca tribe ... out in the eastern United States.... ” The State notified the wrong tribe, and therefore the court did not ensure compliance with the Iowa ICWA.

B. Remedy

The parties appear to assume that if the tribal notification requirements of the Iowa ICWA were not met, then we must reverse the termination of Garrett’s parental rights. This is not so, because there is still no assurance that Ruby is an Indian child. A great number of courts considering similar statutes have held that when an appellate court finds a violation of ICWA notice provisions, reversal is not necessarily warranted. Rather, the proper procedure, at least when there is no other evidence the child is an Indian child, is to affirm the termination on the condition that the proper notification be provided. Only if it turns out the child is an Indian child and the tribe wants to intervene must the termination be reversed. Otherwise the termination stands. See, e.g., In re Kahlen W., 233 Cal.App.3d 1414, 285 Cal.Rptr. 507, 514 (1991); In re Junious M., 144 Cal.App.3d 786, 193 Cal.Rptr. 40, 47 (1983); In re D.S., 577 N.E.2d 572, 575 (Ind.1991); In re I.E.M., 233 Mich.App. 438, 592 N.W.2d 751, 757-58 (1999); J.L.M., 451 N.W.2d at 386-87; In re C.H., 510 N.W.2d 119, 124 (S.D.1993); M.C.P., 571 A.2d at 635; In re M.S.S., 86 Wash. App. 127, 936 P.2d 36, 41-42 (1997); see also In re Arianna R.G., 259 Wis.2d 563, 657 N.W.2d 363, 374 (2003) (Abrahamson, C.J., dissenting); accord In re Elizabeth W., 120 Cal.App.4th 900, 16 Cal.Rptr.3d 514, 520 (2004) (“conditional reversal”). We affirm on this condition and remand. Cf. State v. Powell, 684 N.W.2d 235, 242 (Iowa 2004) (affirming on condition and remanding); In re Luloff, 512 N.W.2d 267, 275 (Iowa 1994) (same).

This solution is consistent with the mandate of the Iowa ICWA. The provisions of the Iowa ICWA do not apply until the court determines the children are “Indian” as defined in the Iowa ICWA. Therefore there can be no violation of the Iowa ICWA until the court determines it applies to the proceedings. Cf. In re J.D.B., 584 N.W.2d 577, 581-82 (Iowa Ct.App.1998). Reversal is not yet, if ever, a proper remedy in this case.

Although we share the State’s concern that a party might wrongly attempt to use the tribal notice provisions of the Iowa ICWA as a delay tactic and recognize that Garrett’s statement came late in the proceedings, we cannot ignore the plain mandate of the Iowa ICWA which is not limited in its application. Cf. Kahlen W., 285 Cal.Rptr. at 513 (under ICWA, “[njotice is mandatory, regardless of how late in the proceedings a child’s possible Indian heritage is uncovered”); In re T.M., 245 Mich.App. 181, 628 N.W.2d 570, 573 (2001) (same). Nor can we, as the State suggests, decide not to apply the Iowa ICWA to this child because there is no evidence she has been raised in an Indian culture. The Iowa ICWA expressly states:

A state court does not have discretion to determine the applicability of ... this chapter to a child custody proceeding based upon whether an Indian child is part of an existing Indian family.

Iowa Code § 232B.5(2).

V. Disposition

This matter is remanded to the juvenile court, which shall give notice of the termination proceedings to the Seneca Nation of New York. If the Seneca Nation fails to respond within the appropriate timeframe or replies and determines Ruby is not eligible for tribal membership, the juvenile court’s original order of termination will stand. If the Seneca Nation of New York responds and intervenes, reversal of the termination and further proceedings consistent with the requirements of the Iowa ICWA will be necessary. We affirm the district court and court of appeals on this condition. We do not retain jurisdiction. Costs are assessed against the State.

AFFIRMED ON CONDITION AND REMANDED.

      . In the same unpublished opinion, the court of appeals resolved another appeal involving the parental rights of Ruby’s mother to Ruby and another child. That appeal is not before us.

      . Garrett does not distinguish the tribal notice provisions of the Iowa ICWA and the federal ICWA; he appears to assume that for the purposes of this appeal they are the same. Likewise, the court of appeals only applied the statutory language of the Iowa ICWA to the facts of this case. For these reasons, we only rule upon tribal notice provisions of the Iowa ICWA in this appeal.

      . The regulations provide the following contact information for the tribe: Seneca Nation of New York, Clerk, Genevieve Plummer Building, Box 231, Salamanca, N.Y. 14779, Tel: (716) 945-1790, Fax: (716) 954-1565. 68 Fed.Reg. 68408, 68415 (Dec. 8, 2003).

      . It is true the State also sent notice to the secretary of the interior, in the hope that the secretary would notify the proper tribe. This is not sufficient notice to the Seneca Nation of New York on the facts presented in this case. The Iowa ICWA authorizes notice via the sec-retaiy, but only when the identity or location of the tribe cannot be determined. Iowa Code § 232B.5(5). Here Garrett’s statement was sufficiently specific that this section of the act is not applicable.

      . As an aside, we also point out that this solution is clearly in the best interests of the child. It would be wrong to delay matters further by undoing a termination for notice only to later find out the substantive provisions of the Iowa ICWA never applied in the first place. Ruby’s limbo must end sooner rather than later.

      . We do point out, however, that the determination of a child’s Indian status must only be made “as soon as practicable.” Iowa Code § 232B.4(4). What is practicable will depend upon the circumstances.


author: PORITSKY, Judge.

text:
    In the Matter of the WELFARE OF the CHILDREN OF J.B. and G. A.-C., and T. F., Parents.
    No. A04-973.
    Court of Appeals of Minnesota.
    March 30, 2005.

      Leonardo Castro, Fourth District Public Defender, Peter W. Gorman, Assistant Public Defender, Minneapolis, MN, for appellant T.F.H.
    Joseph Plumer, Bemidji, MN, for respondent White Earth Band of Ojibwe.
    Shannon E. Smith, Minneapolis, MN, for respondent B.J.
    Amy J. Klobuchar, Hennepin County Attorney, Mary M. Lynch, Assistant County Attorney, Minneapolis, MN, for respondent Hennepin County HSD/DCFAS.
    Alan C. Thiel, Edina, MN; and Michelle Paninopoulos, Minneapolis, MN, for guardian ad-litem.
    Considered and decided by TOUSSAINT, Chief Judge; HUDSON, Judge; and PORITSKY, Judge.
   OPINION

PORITSKY, Judge.

Appellant-father T.F.H. challenges the termination of his parental rights, making various arguments regarding the Indian Child Welfare Act (ICWA), 25 U.S.C. §§ 1901-63 (2000), procedural matters, evi-dentiary rulings, and appointment of counsel. Because the district court did not misapply the law, make findings unsupported by the record, or otherwise abuse its discretion, we affirm.

FACTS

J.B. (mother) is the mother of the three children who were the subject of this proceeding in district court. She is an Indian parent within the meaning of the Indian Child Welfare Act (ICWA). At the start of the proceeding, mother had custody of the three children. The youngest child (L.B.), who is the subject of this appeal, was born in February 1998. At some point during the proceedings, L.B. was formally enrolled as a member of the mother’s tribe.

L.B.’s father (father) is also an Indian parent within the meaning of the ICWA, but belongs to a different tribe than mother. Father was adjudicated to be L.B.’s father in May 2000 and is the appellant in this proceeding. He has extensive histories in both the child-protection and criminal systems. The father of the two older children (G.A.C.) is not a party to this appeal.

In March 2001, the Hennepin County Department of Children and Family Services (the county) removed the children from mother’s home because of her chemical-dependency and mental-health problems. The county also filed a petition alleging that all three children were children in need of protection or services (CHIPS). Mother admitted that the children were CHIPS in July 2001.

In October 2001, the county petitioned to terminate mother’s parental rights due to her failure to substantially comply with her case plan. Notices were sent by registered mail to father, his tribe, and mother’s tribe. Mother’s tribe intervened, but the notice to father was returned “unclaimed,” and, despite proof of service in the file, no response was received from father’s tribe. Because mother had some success with her case plan, her termination trial was continued, but in July 2002 she relapsed. Mother’s continued termination trial was then set for March 24, 2003.

On March 21, 2003, the county petitioned to terminate the parental rights of both fathers. Notices were again sent to father, his tribe, and mother’s tribe. Both fathers first appeared in court on March 24, 2003, the first day of mother’s termination trial. Mother then moved to continue her trial based on the fact that the fathers had appeared, but the district court denied the motion and instead separated the proceedings so each of the three parents was to have a separate trial. Because mother admitted the allegations in the petition seeking to terminate her parental rights, the bulk of her trial addressed a petition that she had filed to have custody transferred to a member of her extended family, rather than whether to actually terminate her parental rights.

After mother’s trial but before the district court ruled, the district court held an admit/deny hearing in father’s proceeding, at which father stated he would move to reopen mother’s proceeding and to recon-solidate his proceeding with mother’s proceeding. The district court then stayed mother’s proceeding pending father’s motion. Father later made the motion, and, in August, the district court denied the motion and ordered termination of mother’s parental rights, but stayed the termination, pending resolution of the proceedings involving the two fathers.

In September, father moved for reunification with the child and for a continuance of his termination trial. The district court denied these motions as untimely. Also in September, the county sought to file an amended termination petition regarding father, citing a 1997 termination of father’s parental rights to another child, of which the county stated it was previously unaware. The district court denied that motion, and father’s termination trial started on September 22. At the trial, Andrea Keezer was called by mother’s tribe, of which Keezer is a member, and testified as an expert. Father’s trial ended on October 31. G.A.C.’s trial ended on December 2.In a single March 2004 order addressing mother and both fathers, the district court terminated the parental rights of all three parents.

Father sought a new trial. In doing so, he submitted documents from his tribe stating (a) the tribe did not receive notice of the proceedings; (b) under the practices of father’s tribe, the child was automatically considered a member of that tribe; and (c) father’s tribe thought the child should be returned to father. The district court denied father’s posttrial motion stating, among other things, that father’s submission of the documents from his tribe was untimely and hence that they did not entitle father to relief. Father appeals.

ISSUES

1. Did the district court err by treating the child as a member of mother’s tribe?

2. Did the district court err in ruling that Andrea Keezer was a qualified expert witness for purposes of ICWA?

3. Did the district court abuse its discretion by ruling that Keezer’s testimony had adequate foundation?

4. Does the record support the district court’s determination that the county made the active efforts to avoid the breakup of the Indian family required by 25 U.S.C. § 1912(d) (2000)?

5. Did the district court deprive father of his rights to participate in mother’s termination trial?

6. Was father’s tribe given adequate notice of the termination proceedings?

7. Did the district court abuse its discretion in its evidentiary rulings?

8. Did the district court abuse its discretion by denying father’s motions for a continuance?

ANALYSIS

In Minnesota courts, proceedings to terminate parental rights to an Indian child must comply with the Indian Child Welfare Act (ICWA). MinmStat. § 260C.001, subd. 3 (2004).

I

In a proceeding to terminate parental rights to an Indian child, ICWA requires that the petitioning party show beyond a reasonable doubt that “active efforts” were made to prevent the breakup of the Indian family and that those efforts were unsuccessful. 25 U.S.C. § 1912(d) (2000) (requiring active efforts); In re Welfare of M.S.S., 465 N.W.2d 412, 418 (Minn.App.1991) (requiring proof of active efforts beyond reasonable doubt).

The district court treated mother’s tribe as the child’s tribe, despite the fact that at the beginning of these proceedings, the child was eligible to be a member of both father’s tribe and mother’s tribe. On appeal, father argues that identifying the child’s tribe could have a significant impact in determining whether the “active efforts” to reunify the family were made and that the district court should have identified the child’s tribe by determining with which tribe the child had more significant contacts. See 25 U.S.C. § 1903(5)(b) (2000) (stating, if Indian child is “a member of or eligible for membership in more than one tribe,” “Indian child’s tribe” is tribe with which child “has the more significant contacts”); Guidelines for State Courts — Indian Child Custody Proceedings, 44 Fed. Reg. 67,584; 67,586 (Nov. 26, 1979) [hereinafter BIA Guidelines] (stating in section B.2.(a), if child is member of more than one tribe “or is eligible for membership in more than one tribe, but is not a member of any of them, the court is called upon to determine with which tribe the child has more significant contacts” and listing in section B.2.(e) factors to be considered “[i]n determining which tribe shall be designated the Indian child’s tribe”). But father admits that “at some point,” the child was enrolled in mother’s tribe. And the BIA Guidelines state that if a child becomes a member of a tribe during the proceeding, “that tribe shall be designated as the Indian child’s tribe with respect to all subsequent actions related to the proceeding.” BIA Guidelines, supra, § B.2.(e). Also, the commentary to that guideline states that “the guidelines make actual tribal membership of the child conclusive on this issue.” Id., cmt. B.2. Thus, because the child’s enrollment in mother’s tribe required the district court to treat mother’s tribe as the child’s tribe, the district court was correct in doing so.

Father argues that the district court should have allowed him to inquire into his ability to un-enroll the child from mother’s tribe and enroll the child in his tribe. Because he cites no authority allowing or addressing un-enrollment, the argument is not properly before us. See State, Dep’t of Labor & Indus. v. Wintz Parcel Drivers, Inc., 558 N.W.2d 480, 480 (Minn.1997) (declining to address issue absent adequate briefing); Midway Ctr. Assocs. v. Midway Ctr., Inc., 306 Minn. 352, 356, 237 N.W.2d 76, 78 (1975) (requiring party to show error and prejudice to prevail on appeal). Moreover, even if the argument had been properly raised, it is unpersuasive. The purpose of the ICWA is to “protect the best interests of Indian children and to promote the stability and security of Indian tribes.” Desjarlait v. Desjarlait, 379 N.W.2d 139, 144 (Minn.App.1985) (quotation omitted), revieio denied (Minn. Jan. 31, 1986). A child’s best interests are presumptively served by putting the child in a stable environment. Westphal v. Westphal, 457 N.W.2d 226, 229 (Minn.App.1990). Allowing L.B. to be un-enrolled from mother’s tribe and enrolled in father’s tribe would not promote the stability of L.B.’s environment and hence not promote her best interests, nor would it promote the stability of the mother’s tribe.

II

Parental rights to an Indian child cannot be terminated absent testimony by a qualified expert 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.” 25 U.S.C. § 1912(f) (2000). Mother’s tribe called Andrea Keezer, a member of mother’s tribe, to testify as an expert, and the district court allowed her to testify as an expert. Father asserts that the court erred in admitting Keezer’s testimony. His first argument in this respect is that the court admitted her testimony without assessing her qualifications as an expert witness.

Generally, whether a witness qualifies as an expert is an issue within the discretion of the district court. Gross v. Victoria Station Farms, Inc., 578 N.W.2d 757, 760 (Minn.1998). In ICWA cases, however, the issue is controlled in large part by the Tribal/State Agreement on Indian Child Welfare. Tribal/State Indian Child Welfare Agreement, Minn. Dep’t of Human Servs. Bulletin #99-68-11 (Aug. 25, 1999) [hereinafter Agreement] (full text of agreement appended to bulletin). The Agreement provides in part that (a) the designation by a child’s tribe that a witness is an expert “is not subject to challenge by [the Department of Human Services (DHS)]”; (b) tribes may use qualified experts on a case-by-case basis or maintain a list of qualified experts; and (c) tribes participating in the Agreement are required to keep a list of tribally-approved qualified experts. Id. at 16. The Agreement defines “qualified expert witness” as a person who is “a member of the Indian child’s tribe, who is recognized by the tribal community as knowledgeable in tribal customs as they pertain to family organization and child rearing practices....” Id. at 9; see BIA Guidelines, supra (reciting in section D.4.b.(l) similar definitions); Dep’t of Human Servs. Manual XIII-3521 § 28 (1991) (same).

Here, the district court noted that mother’s tribe designated Keezer as an expert, and stated that under the Agreement, the court lacked the ability to second-guess that designation. Father argues that DHS’s inability to challenge the designation of the witness as an expert does not preclude the court from ruling that Keezer is not a qualified expert. But Keezer testified that she is an enrolled member of the tribe, is recognized by the tribe as being knowledgeable about the tribe’s child-rearing practices, is authorized to testify on behalf of the tribe in cases involving out-of-home placement of enrolled children generally, has done so on “numerous occasions,” and is specifically authorized by the tribe to speak on its behalf regarding this child in this proceeding. Thus, regardless of whether or not the Agreement allows entities other than DHS to challenge a tribe’s designation of a person as an expert, Keezer’s testimony is overwhelmingly clear that, she qualifies as an expert witness under the Agreement, and the court was therefore correct in qualifying her as an expert to testify in this proceeding.

Because the district court correctly ruled that Keezer qualified as an expert witness, Keezer could give opinion evidence as contemplated by Minn. R. Evid. 702. Qualifying a witness as an expert, however, does not require the court to admit any and all testimony from that witness, nor does it require the court to find such testimony persuasive. The weight to be given any testimony, including expert testimony, is ultimately the province of the fact-finder. In re Objection to Real Prop. Taxes, 353 N.W.2d 525, 534 (Minn.1984); In re Paternity of B.J.H., 573 N.W.2d 99, 104 (Minn.App.1998). As the trial court correctly noted in its posttrial order, “[w]hile the Court acknowledges the Tribe’s right to designate a representative to present expert testimony, the Court will determine the weight to be given the testimony based on the examination of the expert witness.” Thus, even though the court qualified Keezer as an expert witness as mandated by the Agreement, the court properly allowed father the opportunity to cross-examine her concerning the merits of the ease.

Ill

In addition to his argument that the district court erred in qualifying Keezer as an expert, father makes a number of other claims that the court erred in admitting her testimony. He argues that Keezer’s testimony both about her expertise and on the merits should not have been accepted because the testimony was “con-clusory.” But father does not allege that any of Keezer’s testimony was false or incorrect. And because the substance of Keezer’s testimony was within the area of her expertise, father was not prejudiced by the county’s method of showing that expertise. In any event, if father felt that Keezer’s testimony was too conclusory, he was given the opportunity to probe behind those conclusions in cross-examination. Thus, even if there were an error in accepting Keezer’s testimony, the error is not reversible. See Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn.1990) (stating evidentiary ruling is reversible only if district court abused its discretion in manner resulting in prejudice to objecting party); see also In re Welfare of S.R.A., 527 N.W.2d 835, 838 (Minn.App.1995) (concluding that admission of certain evidence in termination-of-parental-rights proceeding was harmless), review denied (Minn. Mar. 29,1995).

Father further argues that the substance of Keezer’s opinion testimony addressing the merits of the case was not admissible because (1) it lacked foundation and (2) was based on hearsay. As to foundation, father does not allege that any of the sources of information Keezer used to form her opinions are atypical bases for those opinions, and reports from social workers and psychologists, like those used here, have been admitted as business records in juvenile-protection cases. See In re Welfare of Brown, 296 N.W.2d 430, 435 (Minn.1980); In re Welfare of J.K., 374 N.W.2d 463, 467 (Minn.App.1985), review denied (Minn. Nov. 25,1985). The issue of whether Keezer’s opinions were based on an adequate foundation lies within the discretion of the district court, and we conclude that the court did not abuse its discretion in ruling that the foundations were sufficient.

Father also argues that “[ejxpert testimony must also be based upon actual perception, the witness’s firsthand knowledge.” He cites Minn. R. Evid. 602 and argues that an “opinion is inadmissible [if] it is not based upon first-hand knowledge.” But father fails to note the last sentence of rule 602, which reads: “This rule is subject to the provisions of Rule 703, relating to opinion testimony by expert witnesses.” Rule 703 states that if facts underlying an expert’s opinion are “of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject,” those facts “need not be admissible in evidence.” Minn. R. Evid. 703(a). Father cites Ray v. Miller Meester Advertising, Inc., 664 N.W.2d 355 (Minn.App.2003), but that case does not support his argument. Instead the case says, “[t]he Minnesota Rules of Evidence provide that a lay witness may testify only to matters about which the witness has firsthand knowledge.” Id. at 362. (Emphasis added.) Father’s argument in this respect is contrary to the well-established evidentiary law, and the district court did not err in admitting Keezer’s testimony, even though some of the information on which Keezer relied is hearsay.

Father’s arguments in connection with Keezer’s testimony all go to challenging its admissibility. It is not clear to us that he is making an independent argument that the testimony, once admitted, is insufficient to meet the requirement of section 1912(f) of the ICWA. However, in support of his argument that the district court erred in permitting Keezer to offer an expert opinion, the father says in passing, “[Keezer’s] testimony raises on appeal, not only the issue of sufficiency of the evidence to support HSD’s adjudicatory burden in termination cases, but also significant violations of both state evidence law and of the ICWA.” There is no further discussion of the issue of sufficiency apart from father’s arguments concerning its admissibility. However, given the reference to sufficiency quoted above, we choose to address the issue.

As we have noted, Section 1912(f) of the ICWA mandates that before a court can terminate the rights of an Indian parent, the decision to terminate must be “supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent ... is likely to result in serious emotional or physical damage to the child.” Keezer was examined by all parties, including father. She testified that she had discussed this case with the Indian Child Welfare Office of thé mother’s tribe. Keezer reviewed aspects of father’s relationship with the child and reported that mother’s tribe did not consider father’s parenting to be acceptable to the tribe. She reported the tribe’s conclusion that “serious emotional or physical damage would result — damage to the child would result from being placed with [father]” and that the tribe further concluded that “it [was] in the best interests of [the child] that [father’s] parental rights be terminated.” On cross-examination by father, Keezer testified, “it’s in the best interests of [the child] to not be in [father’s] care.” We conclude that based on the expert testimony of Keezer and entire record, including the father’s lengthy criminal history, his problems with alcohol, his demonstrated lack of ability to parent his children, and his spotty relationship with the child, the district court was correct in concluding that there is evidence beyond a reasonable doubt that (1) it is in the best interests of the child that father’s parental rights be terminated and (2) custody of the child by father is likely to result in serious physical or emotional damage to the child, within the meaning of section 1912(f) of the ICWA.

IV

Father argues that the district court erred when it ruled that 25 U.S.C. § 1912(d) did not require the county to prove that it considered placement of the child with father’s extended family. The district court essentially found that father intentionally avoided participation in these proceedings; it stated that he did not participate until 2003, despite having “actual notice of the child’s placement in foster care well before 2003.” Thus, the district court ruled that father’s proffered reasons for his lack of prior participation in the proceeding were not credible, and we defer to that determination. See In re Welfare of M.D.O., 462 N.W.2d 370, 374-75 (Minn.1990). Moreover, father does not explain how the county was supposed to investigate father’s family absent timely responses from father and his tribe.

Father further argues that the issue is controlled by this court’s decision in In re Welfare of M.S.S., 465 N.W.2d at 417-19, and maintains that the district court erred in its reading of 25 U.S.C. § 1912(d) because it improperly deferred to placement decisions made by mother’s tribe when those decisions “were made in 2001, most likely before [father’s tribe] and [father] were ever notified of these proceedings.” But M.S.S. is distinguishable. There, this court reversed and remanded a termination where the proposed custodians were not identified until after trial started, but were specific members of the child’s tribe who were licensed foster parents and recommended to be custodians by the child’s tribe. This court stated “we do not believe the reasonable doubt standard [for the active-efforts requirement] could have been met without consideration of [father’s] alternative plan[,]” and that if the child could be placed with the proposed custodians, “the need for terminating [the father’s] parental rights might be obviated.” M.S.S., 465 N.W.2d at 419. Here, however, the proposed custodian specifically identified by father was found not credible, other proposed custodians were not identified, and the child’s tribe did not endorse the placement father proposed.

Father also argues that he was not given enough time to work on his case plan and that aspects of his case plan were inadequate. He admits, however, “some of the delay surely was [his] fault because of his desire to remain [with his tribe in South Dakota].” Also, the district court found that father (a) avoided participation in the proceedings; (b) “imposed the unreasonable requirement” that other services offered to him “needed to be done only on Fridays”; (c) refused transportation assistance when his car broke down; (d) testified that he did not need parenting assistance to parent the child; and (e) “rejected” the “services available to [father] in his area ... for various reasons.” Father does not challenge these findings. Thus, we affirm the ruling that the “active efforts” were provided to father, but that those efforts were unsuccessful.

V

Father challenges what he alleges was the district court’s refusal to treat him as a party to the proceeding to terminate mother’s parental rights and its “failure” to immediately appoint counsel for him in that proceeding. He argues that, as the child’s parent, he had “rights” to participate in the proceeding to terminate mother’s parental rights by testifying, offering evidence, examining witnesses, and insisting that members of his family be considered as placement alternatives. Although it is clear that father is correct to the extent he asserts that he was a party to mother’s termination proceeding, Minn. R. Juv. Protect. P. 21.01, subd. 3(a), the district court’s findings in its posttrial order show that the factual assumptions on which father bases the rest of his arguments are incorrect. The district court did appoint counsel for father, and the posttrial order states (a) the district court “never” held that father was not a party to mother’s proceeding; (b) father “has always had a right to be present at all permanency proceedings and have counsel appointed for him”; (c) father was not “present or available” for participation in mother’s proceeding; (d) the public defender has a “policy” of not accepting a case “unless the person they are being appointed to represent is physically present”; (e) regardless of that policy, “an attorney, as a representative of a party, cannot, without active direction from the client, begin to know what the client’s desires or wishes are regarding the case”; and (f) father’s lack of representation during mother’s proceeding “was due to his non-appearance, not ... due to the [c]ourt choosing within its discretion to not appoint an attorney for him.” This record supports these findings, and they adequately explain the district court’s handling of father’s status during mother’s proceeding.

Alleging that the motion to bifurcate mother’s proceeding from father’s proceeding was made without notice to father and before father had counsel, father argues that the bifurcation improperly precluded him from active participation in mother’s trial. This argument assumes that father’s nonparticipation was for reasons other than his own refusal to participate in the proceeding. Because father initially chose to avoid participating in the proceedings, the district court did not abuse its discretion by bifurcating mother’s proceeding from father’s proceeding and allowing mother’s proceeding to proceed in a timely fashion. See Steinbrecher v. McLeod Coop. Power Ass’n, 392 N.W.2d 709, 715 (Minn.App.1986) (stating district court’s decision to grant separate trials will not be disturbed absent abuse of its wide discretion).

VI

Under ICWA, notice of termination proceedings must be by registered mail or another method listed in the statute. 25 U.S.C. § 1912(a) (2000). Here, the district court found that father’s tribe received “appropriate notices of these proceedings.” Father assumes that this finding is based on exhibits 54 and 55, and argues that the district court should not have admitted these exhibits. But regardless of whether those exhibits should have been admitted, the district court file contains an October 10, 2001 “ICWA NOTICE FOR TRANSFER OF LEGAL CUSTODY/TERMINATION OF PARENTAL RIGHTSU” and an April 21, 2003 “ICWA NOTICE FOR TERMINATION OF PARENTAL RIGHTSU” Attached to each notice is an affidavit showing service of the notice by registered mail on father’s tribe. Thus, at the time of trial, the record showed that father’s tribe had been served.

Father argues that the April 2003 notice is defective because it was untimely for the hearing mentioned in that notice and because the hearing did not actually occur on the date listed in the notice. But because these questions are raised for the first time on appeal and father does not allege any prejudice as a result of the purportedly defective notice, we do not address these questions. See Thiele v. Stick, 425 N.W.2d 580, 582 (Minn.1988) (stating, generally, appellate courts do not address issues not presented and considered by district court); Midway, 306 Minn. at 356, 237 N.W.2d at 78 (requiring party to show error and prejudice to prevail on appeal).

Father also cites the posttrial documents from his tribe indicating that it did not receive the notices sent to it, and he argues that his tribe could have rendered termination unnecessary if it had intervened, assisted father with his case plan, and helped locate a member of father’s family that could have cared for the child. But the posttrial submissions from father’s tribe suggest that its ability to provide the services father required is limited. Moreover, if the tribe believes its notice was fatally defective, it can petition to “invalidate” the termination under 25 U.S.C. § 1914 (2000).

VII

Father challenges several additional evidentiary rulings. Evidentiary rulings are discretionary with the district court and require reversal only if the objecting party shows both that the ruling was an abuse of discretion and that it prejudiced the objecting party. Uselman, 464 N.W.2d at 138.

Father argues that exhibit 24, a 2001 document regarding his repayment of expenses associated with the child placement, should not have been admitted because it was not relevant to a termination of parental rights, was stale, and lacked foundation. But exhibit 24 was admitted to show the county’s efforts to notify father of the child’s out-of-home placement. Therefore, it was relevant to the notice issue.

Father also argues that exhibit 41, a 2003 recommendation that he receive alcohol treatment, should not have been admitted because it was incomplete and lacked foundation. Any error in admitting exhibit 41 is harmless in light of the overwhelming evidence supporting the district court’s findings, generally, and the evidence supporting the district court’s treatment of father’s alcohol-related problems, specifically.

Father argues that exhibit 42, a report by the child’s therapist that was not entirely favorable to father, should not have been admitted because it was cumulative, lacked adequate foundation, and was inconsistent with testimony from one of father’s witnesses. But erroneous admission of evidence that is cumulative of other admissible evidence is “harmless and will not warrant a new trial.” W.G.O. ex rel. Guardian of A.W.O. v. Crandall, 640 N.W.2d 344, 349 (Minn.2002). Also, experts are allowed to render opinions on ultimate issues. Minn. R. Evid. 704. And here, the record shows an adequate basis for the therapist’s opinions. Further, the existence of contrary evidence does not render the report inadmissible, especially where, as here, the district court found not credible the father’s rebuttal witness. See M.D.O., 462 N.W.2d at 374-75 (noting appellate deference to district-court credibility determinations). To the extent father objects to the district court allowing the therapist to testify as an expert, we reject that argument: The record contains adequate evidence to allow the therapist to testify as an expert regarding this child. See Gross, 578 N.W.2d at 761 (stating appellate courts apply a “very deferential standard” to district-court determinations of whether witness is treated as expert and will reverse only if district court clearly abused its discretion).

Father challenges the admission of evidence of his extensive criminal history, arguing that it is more prejudicial than probative. But the fact that father has criminal convictions dating back to 1983, coupled with his recent convictions for alcohol-and chemical-related offenses, show that he still has a long-standing problem remaining lawabiding. And the district court’s finding that “during his testimony, [father] appeared to find his criminal history humorous and exhibited no remorse or regret for his actions but seemed to regard his criminal past with pride,” does not suggest father is likely to change his behavior soon. The district court did not abuse its discretion by admitting the evidence of father’s criminal history.

VIII

Father argues that the district court abused its discretion by denying his motions for a continuance because he was allowed only a short period of time to complete his case plan. See In re Welfare of J.A.S., 488 N.W.2d 332, 335 (Minn.App.1992) (applying abuse of discretion standard of review to continuance ruling), review denied (Minn. Oct. 20, 1992). But father would have had additional time if he had not earlier avoided participating in the proceedings. Also, the time he was given could have been of greater use to him if he had not refused the services he was offered via his case plan.

DECISION

Because the child was enrolled in mother’s tribe during these proceedings, the district court correctly treated the child as a member of mother’s tribe. The district court did not abuse its discretion in ruling Andrea Keezer to be an expert witness for ICWA purposes, or in accepting her testimony. Father’s failure to timely participate in the proceedings and the unreasonable restrictions he put on his receipt of proffered services render defective his argument that the county failed to make the active efforts to avoid the breakup of the Indian family required by 25 U.S.C. § 1912(d) (2000). For similar reasons, the district court did not deprive father of his right to participate in the trial regarding the termination of mother’s parental rights. Also, any errors in the district court’s evidentiary rulings are, on this record, harmless. And the district court did not abuse its discretion by denying father’s motions for continuances.

Affirmed.

       Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const, art. VI, § 10.

      . The Agreement is based on the United States Department of the Interior, BIA Guidelines, supra.

      . Father notes that he was not privy to the deliberations of mother’s tribe designating Keezer as an expert and asserts that he was "surely entitled to inquire into her expertise.” As noted, above, however, Keezer's testimony qualifies her as an expert for purposes of this case. Moreover, we decline, at this time, to adopt an argument that assumes that a district court is better able than the tribe to identify who 'is an expert on tribal practices. See Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 194 n. 5, 119 S.Ct. 1187, 1199-1200 n. 5, 143 L.Ed.2d 270 (1999) (stating "[Indian] treaties are to be interpreted liberally in favor of the Indians, ... and treaty ambiguities to be resolved in their favor” (citations omitted)).

      . A similar analysis applies to, and disposes of, father's argument that the district court should not have admitted the testimony of the child’s therapist because it was based on documents the therapist reviewed, rather than the therapist's personal knowledge.

      . In his brief, Father argues that the district court erred when it "permitted Ms. Keezer to offer an expert opinion which met the adjudicatory requirements of § 1912(f) of the ICWA but without meeting the admissibility requirements of expert testimony under Minnesota law.” (Emphasis added.) The guardian ad litem, quoting father’s brief, argues, "Indeed [the father’s] brief concedes that Ms. Keezer’s expert opinion 'met the adjudicatory requirements of § 1912(f) of ICWA,’ " which appears to be a fair reading of father's position. In an apparent attempt to correct any misreading of his position, father states in his reply brief, "[Father] never conceded that witness Keezer qualified as an 'Indian expert witness.' In the cited passage of his brief, [father] described only the purpose for which Ms. Keezer’s testimony was offered.” (Italics in original.) Father's response challenges Keezer's ability to testify as an expert, which is consistent with his challenge to the admissibility of her testimony. It says nothing about the sufficiency of her testimony, once the court admitted it.

      . While father's brief argued that the October 2001 notice regarding transfer of custody was defective, at oral argument, father's attorney conceded that even if that notice was defective, it would not render fatally defective the termination decision at issue in this appeal. We appreciate counsel’s candor on this point.