author: ANDERSON, G. BARRY, Justice.

text:
    Ronald ENRIGHT, as attorney-in-fact for S.E., et al., Respondents, v. Robert H. LEHMANN, Appellant, Lehmann Engineering, Inc., Defendant.
    No. A06-347.
    Supreme Court of Minnesota.
    July 19, 2007.

      Carol S. Cooper, C.S. Cooper Law Firm, Ltd., Farmington, MN, for Appellant.
    Robert J. Bruno, Robert J. Bruno, Ltd., Burnsville, MN, for Respondent.
    Associated Bank, Burnsville, MN, for Associated Bank.
    Eric J. Magnuson, Diane B. Bratvold, Minneapolis, MN, for Amicus Probate and Trust Section of MSBA.
   OPINION

ANDERSON, G. BARRY, Justice.

Appellant challenges the garnishment of funds deposited by his wife in their joint bank account to satisfy a judgment entered against him. The district court and court of appeals, relying on Park Enterprises v. Trach, 233 Minn. 467, 47 N.W.2d 194 (1951), held that all funds in a joint account, regardless of the identity of the contributor, may be garnished to satisfy the debt of any account holder. We reverse and hold that the plain language of the Multi-Party Accounts Act, Minn.Stat. § 524.6-203(a) (2006), prevents a creditor from garnishing funds in a joint account not contributed by the debtor unless the creditor proves by clear and convincing evidence that the depositing party intended to confer ownership of the funds on the debtor.

In 1999, appellant Robert H. Lehmann, d/b/a Lehmann Engineering, Inc., entered into a lease for commercial property with respondents S.E. and Marlys Enright, d/b/a Pride-One Co. (“Enright”). In 2005, Enright sued both Lehmann and the engineering corporation for rents due. Leh-mann served a pro se answer denying liability on the grounds that the corporation, not Lehmann, was party to the lease. The corporation did not answer. Enright obtained a default judgment against the corporation and continued the litigation against Lehmann individually. Enright served discovery on both the corporation and Lehmann, but neither answered En-right’s discovery requests or a later district court order compelling responses. Lehmann also did not file his answer with the court. Ultimately, the court struck Lehmann’s answer, granted a default judgment against him for rent due and attorney fees, and awarded judgment against him for attorney fees for his discovery violations. Lehmann has explained that illness prevented him from understanding or participating in the lawsuit, but the district court and court of appeals rejected this explanation. Enright v. Lehmann, 724 N.W.2d 546, 550-51 (Minn.App.2006).

To satisfy the judgments, Enright garnished two joint bank accounts held in the names of Lehmann and his wife, Zandra Lehmann. Lehmann asserts, and Enright agrees, that Zandra deposited all the money in the joint accounts. Lehmann claimed that the accounts could not be garnished because the funds in those accounts belonged to Zandra, and he moved for an order staying execution of the judgments, dissolving the garnishments, reinstating his answer, and allowing him to amend his answer to assert a counterclaim. The district court denied these motions. The court of appeals, relying on Park Enterprises, affirmed and held that Enright was subrogated to Lehmann’s unlimited right of withdrawal of the funds in the joint accounts. Enright, 724 N.W.2d at 549.

In this appeal, Lehmann claims the funds at issue were not subject to garnishment because those funds were the property of his wife alone. At no time has Enright attempted to show that Zandra intended to confer ownership of the funds on her husband by placing them in the joint accounts; rather, Enright has taken the position that Zandra owns the funds but their location in the joint bank accounts renders them attachable by garnishment for Lehmann’s debt.

I.

As a threshold matter, Enright argues that Lehmann lacks standing to challenge the garnishment of the accounts. Although appellate review was neither requested nor granted on this issue, standing is essential to our exercise of jurisdiction. Annandale Advocate v. City of Annandale, 435 N.W.2d 24, 27 (Minn.1989). Standing is a legal requirement that a party have a sufficient stake in a justicia-ble controversy to seek relief from a court. Sierra Club v. Morton, 405 U.S. 727, 731-32, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972). Standing is acquired in two ways: either the plaintiff has suffered some “injury-in-fact” or the plaintiff is the beneficiary of some legislative enactment granting standing. Snyder’s Drug Stores, Inc. v. Minn. State Bd. of Pharmacy, 301 Minn. 28, 31-32, 221 N.W.2d 162, 165 (1974). An injury-in-fact is a concrete and particularized invasion of a legally protected interest. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).

Enright argues that Lehmann lacks standing to challenge the garnishment because the funds belong to Lehmann’s wife. This argument is without merit. According to the terms of the account contract, Lehmann possesses the power to withdraw and use the funds in the account regardless of the original source of the deposit. We conclude that, as an invasion of this interest, garnishment of the funds causes him an injury-in-fact and vests him with standing to challenge the garnishment.

Enright also argues that this case is moot because the bank paid the garnished funds to Enright’s attorney, who — despite the fact that the funds were the subject of ongoing litigation — gave them to Enright rather than depositing them in his client trust account. An issue is moot if a court is unable to grant effectual relief. In re Schmidt, 443 N.W.2d 824, 826 (Minn.1989). Because we have the power to grant Lehmann relief by ordering Enright to repay any wrongfully garnished funds, this case is not moot.

II.

Lehmann and amicus curiae Probate and Trust Law Section of the Minnesota State Bar Association argue that because the Multi-Party Accounts Act (MPAA) states that Lehmann does not own funds contributed by his wife to a joint account, those funds cannot be garnished to satisfy his debt. They also argue that by enacting the MPAA, the legislature abrogated Park Enterprises and any common law based on it. Enright responds that Park Enterprises is still good law and that the garnishment statute, Minn.Stat. § 571.73 (2006), grants him power to garnish the funds.

Construction of a statute on appeal is a legal question subject to de novo review. Lewis-Miller v. Ross, 710 N.W.2d 565, 568 (Minn.2006). ‘When the words of a law in their application to an existing situation are clear and free from all ambiguity, the letter of the law shall not be disregarded under the pretext of pursuing the spirit.” Minn.Stat. § 645.16 (2006).

A. The Multi-Party Accounts Act

In 1973, the Minnesota legislature enacted the MPAA. Act of May 23, 1973, ch. 619, 1973 Minn. Laws 1472, 1472 (codified at MinmStat. § 528.01 (1974)). In 1994, the legislature renumbered the MPAA to make it part of the Probate Code, but did not alter its text. Act of Apr. 20, 1994, ch. 472, § 63, 1994 Minn. Laws 375, 415 (renumbering Minn.Stat. §§ 528.01-528.15 as Minn.Stat. §§ 524.6-201 to 524.6-214 (2006)).

Section 4 of the MPAA, titled “Ownership During Lifetime,” provides that “[a] joint account[] belongs, during the lifetime of all parties, to the parties in proportion to the net contributions[] by each to the sums on deposit,[] unless there is clear and convincing evidence of a different intent.” Minn.Stat. § 524.6-203(a). The preceding section provides that “[t]he provisions of sections 524.6-203 to 524.6-205 concerning beneficial ownership as between parties * * * are relevant only to controversies between these persons and their creditors and other successors, and have no bearing on the power of withdrawal of these persons as determined by the terms of account contracts.” Minn.Stat. § 524.6-202 (2006).

The language of the MPAA is unambiguous. In a controversy between parties to a multi-party account and their creditors, funds in a joint account belong to the parties in proportion to their net contributions. A party’s net contribution is the amount of money deposited by or for him, less withdrawals made by or for him. Therefore, we hold that where one party has contributed all the money in a joint account, a creditor cannot garnish the account to satisfy a debt belonging to a noncontributing party unless the creditor provides clear and convincing evidence that the depositor intended to confer ownership of the funds on the debtor.

Enright asserts that in enacting the MPAA the legislature must not have intended to abrogate Park Enterprises (which allowed garnishment of part or all of the funds in a joint account to satisfy to debt of one of the depositors) because there is no mention in the statute of creditor rights except the statement that sections 6-208 to 6-205 are “relevant only to controversies between these persons and their creditors and other successors.” Minn.Stat. § 524.6-202. Enright contends that this language is “opaque” because it is not clear how, exactly, the sections are “relevant.” On the contrary, we find the MPAA quite clear: section 6-203 applies where a creditor attempts to reach funds in a joint account, while section 6-202 allows the account contract to define the parties’ power of withdrawal.

Although our holding does not require us to look beyond the plain language of Minn.Stat. §§ 524.6-202 to -203, a brief review of the policy behind the enactment of the MPAA is illuminating. At common law, jurisdictions applied four different theories to determine ownership of funds in joint accounts: contract theory, gift theory, trust theory, and joint tenancy theory. Note, The “Poor Man’s Will” Gains Respectability: Using the Minnesota MultiParty Accounts Act, 1 Wm. Mitchell L.Rev. 48, 50 (1974). Although Minnesota generally applied gift theory, in which the intent of the depositor to make or not make an inter vivos gift determined ownership of funds in a joint account, “the vagaries inherent in the application of that theory made the label of limited value in predicting the outcome of actual cases.” Id. Moreover, “it was not even altogether certain that Minnesota followed the gift theory in determining the ownership of the funds during the lives of all of the parties. The case law on the issue is scant and conflicting.” Id. Despite the apparent general application of gift theory, Park Enterprises applied contract theory, in which the terms of the account agreement determine ownership of the funds, to hold that the entire amount on deposit in a joint account was subject to garnishment because the account agreement in that case made all funds deposited in the account “the property of the depositors jointly with the right of survivorship.” 233 Minn. at 468, 47 N.W.2d at 195. But we rejected contract theory in Erickson v. Kalman, 291 Minn. 41, 45, 189 N.W.2d 381, 384 (1971): “[I]f the trial court was treating the case as one of contract, it was error for it to do so because this court considers deposits [in a joint and several savings account] to be in the nature of gifts and to be governed by the rules applicable to gifts.”

Perhaps in response to this uncertainty-in the law of joint accounts, the legislature intervened by enacting the MPAA, which establishes a clear standard for determining ownership of funds and provides some measure of protection for assets in a joint bank account from creditors of either party. A joint account with a right of surviv-orship provides a “simple, inexpensive method of passing funds in the account from a deceased joint owner to the surviving joint owner, avoiding the necessity of probate proceedings.” Deutsch, Larrimore & Farnish, P.C. v. Johnson, 577 Pa. 637, 848 A.2d 137, 142-43 (2004). A joint account is thus sometimes referred to as a “poor man’s will.” See id. at 142; Note, supra, at 48. This benefit of a joint account is lost, however, if the creditors of either party to the account can reach any of the funds therein:

If the creator of the joint account, whose intent is usually testamentary in nature, could be impoverished by the acts of the joint tenant over which the creator has no control, such as attempts of the other joint tenant or her creditors to reach the funds, there is great risk to the creator of the joint account. It may be these evils that [the Multi-Party Accounts Act] was intended to limit, lending stability and security to the creation of joint bank accounts.

Deutsch, 848 A.2d at 143; accord Browning & Herdrich Oil Co. v. Hall, 489 N.E.2d 988, 991-92 (Ind.Ct.App.1986); In re Estate of Maxfield, 856 P.2d 1056, 1059 (Utah 1993).

The Pennsylvania Supreme Court in Deutsch quoted from the official comments to Pennsylvania’s version of the MPAA: “ ‘[A] person who deposits funds in a multiple-party account normally does not intend to make an irrevocable gift of all or any part of the funds represented by the deposit. Rather, he [or she] usually intends no present change of beneficial ownership.’ ” 848 A.2d at 143 (quoting Official Comment to 20 Pa. Cons.Stat. § 6303). The court concluded that the joint account owner “had no ownership interest” in the funds deposited by the other owner; “at most she had a mere expectation of a right of survivorship.” Id.

B. Other jurisdictions

One of the purposes of the Uniform Probate Code is to “make uniform the law among the various jurisdictions.” Minn. Stat. § 524.1-102(b)(4) (2006). “Laws uniform with those of other states shall be interpreted and construed to effect their general purpose to make uniform the laws of those states which enact them.” Minn. Stat. § 645.22 (2006). While Minnesota’s MPAA was not initially enacted as part of the probate code, the legislature’s decision to move it to the probate code indicates the legislature’s desire that Minnesota courts interpret the MPAA consistently with those of other states. And while we base our holding on the plain language of the MPAA, it is instructive that other jurisdictions have apparently uniformly concluded that the MPAA applies to garnishment of joint accounts and that funds in a joint account belong to the parties in proportion to their contributions. Enright points out that Connecticut has allowed execution against the entire balance of a joint account to satisfy the debt of one account holder. But Connecticut has not enacted the MPAA. See Fleet Bank Conn., N.A. v. Carillo, 240 Conn. 348, 691 A.2d 1068, 1071 (1997). Enright does not cite, and we have not found, any case from a jurisdiction that had adopted the MPAA that allows garnishment of funds in a joint account to satisfy the debt of a non-contributing account holder.

C. The court of appeals decision

The court of appeals held that the MPAA did not apply and instead followed the rule of our 1951 decision in Park Enterprises. In that case, we affirmed garnishment of a joint account without regard to how much the debtor had actually contributed to the account. Park Enters., 233 Minn. at 470, 47 N.W.2d at 196. Because a joint account was “difficult, if not impossible, to classify under traditional categories of legal ownership,” we decided to “treat this case as presenting a contract question and * * * decide what the incidents of this type of ownership are primarily by reference to the terms of the contract creating it.” Id. at 469-70, 47 N.W.2d at 195-96. We reasoned that the account agreement in question allowed each depositor unconditional power to withdraw all or any part of the account and that because the wife allowed the husband to treat the funds in the joint account as his individual property, she was “in no position to assert that creditors, subrogat-ed to his rights, may not treat them as if they were his individual property.” Id. at 471, 47 N.W.2d at 196-97. “Since in purpose and legal effect a garnishment proceeding is virtually an action brought by defendant in plaintiffs name against the garnishee,” we concluded that “[djefendant is entitled to withdraw any part or all of the account, and plaintiff, in effect, is sub-rogated to that right.” Id. at 470, 47 N.W.2d at 196. Applying Park Enterpris es in this case, the court of appeals held that Enright was entitled to garnish the accounts because Enright became subro-gated to Lehmann’s unlimited right to withdraw funds from them. See Enright, 724 N.W.2d at 549.

The court of appeals declined to apply Minn.Stat. § 524.6-203 because it is part of the Probate Code, which according to the court “does not purport to govern relationships or rights of anyone other than decedents, missing or incapacitated persons, or minors.” 724 N.W.2d at 549. The problem with this interpretation is that MinmStat. §§ 524.6-202 to -203, by their terms, govern the relationships of living joint account holders and their creditors. Furthermore, Minn.Stat. § 524.1-301 (2006), which defines the “territorial application” of chapters 524 and 525, states that “[ejxcept as otherwise provided in this chapter, this chapter and chapter 525 apply to (1) the affairs and estates of decedents, missing persons, and persons to be protected * * *.” (Emphasis added.) The Probate Code explicitly leaves open the possibility that certain sections in chapters 524 and 525 apply to persons other than decedents, missing or incapacitated persons, and minors.

The court of appeals also reasoned that article 6 of the Probate Code, of which MinmStat. § 524.6-203 is a part, is entitled “Nonprobate Transfers on Death” and therefore applies only to “issues arising after the death of a joint depositor of an applicable bank account.” 724 N.W.2d at 549 (citing Minn.Stat. §§ 524.6-201 to - 214 (2004)). But “[t]he headnotes printed in boldface type before sections and subdivisions in editions of Minnesota Statutes are mere catchwords to indicate the contents of the section or subdivision and are not part of the statute.” Minn.Stat. § 645.49 (2006). Although it is true that “headings are relevant to legislative intent where they were present in the bill during the legislative process,” Minn. Express, Inc. v. Travelers Ins. Co., 333 N.W.2d 871, 873 (Minn.1983), when the legislature first enacted the MPAA, the heading “Nonpro-bate Transfers on Death” was not part of the bill. See Act of May 23, 1973, ch. 619, 1973 Minn. Laws 1472, 1472. The legislature did not make the MPAA part of the Probate Code until 1994 and even then did nothing to limit its applicability to accounts held at death. See Act of Apr. 18, 1994, ch. 472, § 63, 1994 Minn. Laws 375, 415. The title of article 6 does not negate section 6-203’s statement that it applies “during the lifetime of all parties” to the account. The court of appeals erred in not applying the plain language of the MPAA.

Enright concedes that the MPAA applies during the lifetime of parties to a joint account. In addition to his argument that the MPAA is hopelessly vague, which we address above, he argues that Park Enterprises is still the law and seems to suggest that if the legislature wished the MPAA to abrogate Park Enterprises, it was required to mention the case by name. Enright is incorrect, because the legislature may abrogate common law doctrines “by express wording or necessary implication.” Wirig v. Kinney Shoe Corp., 461 N.W.2d 374, 377-78 (Minn.1990). As the rule articulated in Park Enterprises is incompatible with MinmStat. § 524.6-203, we hold that Park Enterprises has been abrogated.

III.

Although MinmStat. § 524.6-203 provides that funds in a joint account belong to the parties in proportion to their net contributions, MinmStat. § 524.6-202 provides that the account contract defines the parties’ power to withdraw funds. En-right argues that Lehmann had the right under the account contract to withdraw all of the money in the joint accounts and that Enright became subrogated to that right. In common law subrogation, a subrogee stands in the shoes of a subrogor and obtains the rights of the subrogor. Employers Mut. Cas. Co. v. A.C.C.T., Inc., 580 N.W.2d 490, 493 (Minn.1998) (citing Medica, Inc. v. Atl. Mut. Ins. Co., 566 N.W.2d 74, 76 (Minn.1997)). The subrogee, however, cannot obtain greater rights in property than the subrogor possesses. Id. (citing Rowe v. St. Paul Ramsey Med. Ctr., 472 N.W.2d 640, 644 (Minn.1991)). Under the MPAA, a joint account holder does not, without evidence of a contrary intent, own funds contributed by another party to the account. Even where a joint account holder has the power to withdraw funds he did not contribute, he exercises dominion over those funds only with the consent of the contributing party, who can bring an action to recover wrongfully withdrawn funds. See, e.g., Brennan v. Carroll, 260 Minn. 521, 525, 533, 111 N.W.2d 229, 233, 237 (1961) (affirming the trial court’s decision to allow a decedent’s estate to recover funds contributed to a joint account by the decedent and withdrawn by decedent’s sister because the decedent did not intend to make a gift to his sister). Because the account holder does not have an absolute right to funds he did not contribute, a creditor cannot acquire such a right through subrogation.

Enright also argues that he has a right to garnish all funds in the joint account under Minn.Stat. § 571.73, subd. 3(2). That section provides that all “money, or other property due or belonging to the debtor and owing by the garnishee or in the possession or under the control of the garnishee” is attachable by garnishment. As we have explained, funds deposited by Lehmann’s wife do not “belong” to Lehmann. The statute does not define, and we have not defined, what money is “due” a debtor within the meaning of section 571.73, subd. 3(2). If we were to construe all funds in a joint account as “due” to any party to the account and therefore attachable by garnishment to satisfy a debt, section 571.73 would negate section 524.6-203. We note that section 571.73 is a general procedural statute describing the process by which creditors in Minnesota may satisfy judgments, while section 524.6-203 is a specific substantive statute defining the ownership of funds in a joint bank account. “When a general provision in a law is in conflict with á special provision in the same or another law, the two shall be construed, if possible, so that effect may be given to both.” Minn.Stat. § 645.26, subd. 1 (2006); see Reider v. Anoka-Hennepin Sch. Dist. No. 11, 728 N.W.2d 246, 252 (Minn.2007) (equating “special provision” in Minn.Stat. § 645.26 with “specific provision”). In order to avoid a conflict between the garnishment statute and the MPAA, we hold that a joint account holder’s power of withdrawal does not, by itself, mean that funds he did not contribute are “due” him within the meaning of section 571.73, subd. 3(2). Therefore, funds in a joint account are not, simply by virtue of the power of withdrawal provided in the account contract, attachable by garnishment to satisfy the debt of a party who did not contribute the funds.

Under the plain language of Minn.Stat. § 524.6-203, funds in a joint account may not be garnished to satisfy a judgment against a party who did not contribute the funds, unless the creditor provides clear and convincing evidence that the depositor intended the funds to belong to the debtor. It is undisputed that Leh-mann did not contribute any of the funds in the two joint accounts sought to be garnished, and Enright has offered no evidence that Lehmann’s wife, who did deposit the funds, intended to confer ownership on Lehmann. Enright, therefore, may not garnish those funds to satisfy his judgment against Lehmann.

Reversed and remanded for entry of an order that the garnished funds be redeposited.

      . " 'Joint Account' means an account so designated, and any account payable on request to one or more of two or more parties and to the survivor of them.” Minn.Stat. § 524.6-201, subd. 4 (2006).

      . " 'Net Contribution’ of a party to a joint account as of any given time is the sum of all deposits thereto made by or for the party, less all withdrawals made by or for the party which have not been paid to or applied to the use of any other party * * Minn.Stat. § 524.6-201, subd. 6 (2006). We interpret deposits "made by or for the party” to include deposits the party made personally or deposits made on the party's behalf by a third party, such as a paycheck deposited directly by an employer.

      . " 'Sums on deposit’ means the balance payable on a multiple-party account including interest, dividends and, in addition, any deposit life insurance proceeds added to the account by reason of the death of a party.” Minn.Stat. § 524.6-201, subd. 13 (2006).

      . This uncertainty was not confined to Minnesota. The Illinois Supreme Court noted that "[t]he familiar joint bank account has had an uneasy career in the courts because the relationships which it contemplates do not fit readily into common-law categories.” In re Estate of Schneider, 6 Ill.2d 180, 127 N.E.2d 445, 447 (1955). "Common-law doctrines governing gifts of personal property have contributed their share to the complex of legal problems * * * for the common law required a complete relinquishment of ownership by the donor in order to achieve an effective gift, while the joint bank account contemplates power of withdrawal by both parties.” Id.

      . See, e.g., Lamb v. Thalimer Enters., Inc., 193 Ga.App. 70, 386 S.E.2d 912, 914 (1989) (applying Georgia’s MPAA and holding that, in the absence of evidence of a different intent, proceeds from the sale of a couple’s home deposited in a joint account should be divided in half); Browning & Herdrich, 489 N.E.2d at 990 (holding that under the MPAA, a debtor had insufficient interest in funds deposited by his mother in their joint account to make them subject to garnishment for a judgment against him alone); Brown v. Commonwealth, 40 S.W.3d 873, 880-82 (Ky.Ct.App.1999) (distinguishing Park Enterprises and remanding for findings on the ownership of the funds in a joint account); Szelenyi v. Miller, 564 A.2d 768, 771 (Me.1989) (holding that under the Uniform Probate Code, funds deposited into a joint account entirely by a physician sued for malpractice were available to satisfy a judgment against him where no clear and convincing evidence showed that he intended the funds to be a gift to his wife); Craig v. Hastings State Bank, 221 Neb. 746, 380 N.W.2d 618, 623 (1986) ("[I]f it is established that a nondebtor party to the account has funded all er part of the beneficial interest in an account, a bank has no right of setoff against the beneficial interest contributed by the non-debtor depositor.”); Deutsch, 848 A.2d at 144 (holding that a non-contributing owner had no ownership interest in a joint account and thus the account assets were not subject to execution to satisfy her debt); RepublicBank Dallas v. Nat’l Bank of Daingerfield, 705 S.W.2d 310, 312 (Tex.App.1986) (holding that a debtor held only "bare legal title” to the funds in a joint account and that the "equitable interest” in the funds was in the other account holders, so the funds were not subject to garnishment); Vaughn v. Bernhardt, 345 S.C. 196, 547 S.E.2d 869, 870 (2001) (holding that a widower who withdrew funds deposited into a joint account by his wife before her death was not entitled to keep the funds because they belonged to the wife during her lifetime); Estate of Maxfield, 856 P.2d at 1058-59 (reviewing case law and holding that a judgment creditor can reach only those funds in a joint account that the judgment debtor contributed unless the other joint tenant intended to make a gift to the debtor).

      . We note, as a side matter, that subrogation stems from the equitable powers of the court, which must give due regard to the legal and equitable rights of others. United Carolina Bank v. Beesley, 663 A.2d 574, 576 (Me.1995). Subrogation will not be enforced to the prejudice of other rights of equal rank or to the injury of innocent third persons. Compañía Anonima Venezolana De Navegacion v. A.J. Perez Exp. Co., 303 F.2d 692, 697 (5th Cir.1962). Enright’s argument for subrogation on the equities of this case is not particularly strong because Lehmann's wife, who is not indebted to Enright, contributed all the funds in the joint accounts.


source: Caselaw Access Project

author:
ANDERSON, RUSSELL A., Chief Justice. GILDEA, Justice MEYER, J.
      ANDERSON, G. BARRY, J.

license: Public Domain

text:
    STATE of Minnesota, Respondent, v. Burhan Mohammed FARRAH, Appellant.
    No. A05-1277.
    Supreme Court of Minnesota.
    July 19, 2007.
   OPINION

ANDERSON, RUSSELL A., Chief Justice.

Appellant Burhan Mohammed Farrah was convicted of felony fourth-degree criminal sexual conduct following a jury trial in Hennepin County. On appeal, the court of appeals affirmed, rejecting Far-rah’s claim of reversible error in the admission at trial of his recorded statement to police. State v. Farrah, No. A05-1277, 2006 WL 2473655, at *1 (Minn.App. Aug.29, 2006). Concluding that the state did not establish that Farrah, a limited English-speaker, made a valid waiver of his Miranda rights and that the admission of the statement was not harmless, we reverse and remand for a new trial.

On November 20, 2003, Plymouth police responded to a 911 report of a sexual assault in progress or of recent occurrence in the parking lot of an apartment complex on Harbor Lane. Officer Robert Topp arrived within less than a minute, entered the parking lot in his marked squad car, saw a male matching the description given in an updated dispatch, and drove toward him. The male, later identified as Farrah, turned around and put his hands up in the air. He had a 24-ounce can of malt liquor in his jacket pocket and appeared intoxicated. The officer removed the can, handcuffed Farrah, and placed him in the back of the squad car. Farrah asked the officer “what this was all about,” and the officer asked Farrah if he “had any idea what this was about.” Farrah replied that “the female” told him “she was 20.”

Meanwhile, Officer Kevin Wilson, who arrived shortly after Officer Topp, located the complainant, C.B., who was 14 years old and developmentally disabled. She told the officer that she had left her apartment to take some trash to the dumpster, and as she was walking through the parking lot, a car pulled in and almost struck her. After parking the car, the driver got out and apologized. As C.B. started back toward the apartment building, the driver approached, grabbed her arm, pulled her into the backseat of his car, locked the doors, and laid on top of her, kissing her neck and face and touching her intimate parts over the clothing. After “some time of this,” she was able to push him off, unlock the door, and run to the apartment building entrance where she encountered a neighbor and asked her to call 911. C.B. described her assailant and said he was carrying a beer can. Officer Wilson escorted C.B. to her apartment and taped her statement.

Officer Topp transported Farrah to the Plymouth Police Department and placed him in the interview room for questioning. Farrah, who emigrated from Somalia in 1999, spoke with a “strong” accent. The officer began the interrogation by confirming Farrah’s identification, date of birth, and residence. The officer asked Farrah about his alcohol consumption, and Farrah said he had “five beers,” the “tall ones.” The officer read Farrah his Miranda rights from a department-issued card and asked if he understood “all that?” Farrah responded, “Little I’m not (inaudible) speak very good English.” The officer, who tended to speak somewhat rapidly, offered to read the advisory more slowly, and then started to repeat the advisory at about the same pace. Farrah interrupted, wanting to “know what happened.” The officer told Farrah, “before I can talk to you, you need to understand these.”

The officer then repeated the advisory, after which the following exchange occurred:

Q: Do you understand your rights?
A: Okay. Little, yeah.
Q: What don’t you understand cause I need to explain before I can even ask you any questions.
A: Well, you ask me ...
Q: If you want a lawyer?
A: Pick the lawyer.
Q: Right.
A: That’s what (inaudible).
Q: If you want a lawyer you can have them here before I even talk to you or you can contact them ...
A: Okay I think I will talk to lawyer, (inaudible).
Q. What’s that?

The officer then went back over the right-to-counsel portion of the Miranda advisory:

A: Like even if I have a lawyer ...
Q: Then they will give you one for free. In other words you- don’t have to talk to me right now, although I would like to, to find out what happened.
A: Okay.
Q: But you don’t have to you can talk to a lawyer first if that is what you want to do?
A: Okay.
Q: So do you understand that?
A: Yeah.
Q: Okay having your rights in mind do you want to talk to me now?
A: Yeah go ahead.
Q: Okay you don’t want to talk to a lawyer first?
A: No I don’t want to.

Farrah then gave a statement in which he made incriminating remarks.

Farrah was charged by complaint with fourth-degree criminal sexual conduct in violation of Minn.Stat. § 609.345, subd. 1(b) (2002). In April 2004, the criminal proceedings were suspended because of a district court finding that Farrah was incompetent due to schizophrenia. Upon Farrah’s restoration to competency through treatment, the criminal proceedings resumed in September 2004. The state later amended the complaint to add charges of kidnapping and false imprisonment.

A Somali interpreter was appointed for Farrah at trial. Farrah moved to suppress the statement he made in the squad car as well as the recorded statement made in the police department interview room on the ground that both statements had been obtained in violation of his constitutional rights. The district court granted the motion to suppress the first statement but denied the motion to suppress the second statement, which was subsequently played for the jury. The state also presented the testimony of C.B. and the neighbor who made the 911 call. The state was permitted, over objection, to present statements C.B. made to the neighbor, Officer Wilson, C.B.’s grandmother, and C.B.’s best friend. After Far-rah exercised his right not to testify, his cousin testified about their family’s adherence to certain social customs. The jury found Farrah guilty of fourth-degree criminal sexual conduct and not guilty of the remaining offenses. The court entered judgment on the conviction and imposed the presumptive guidelines sentence of a year and a day, execution stayed, with conditions of probation to include 120 days in the county workhouse. The court of appeals affirmed, and we granted further review. Farrah claims reversible error in the admission of his recorded statement to police and the complainant’s out-of-court statements.

I.

The Fifth Amendment to the U.S. Constitution and Article I, Section 7 of the Minnesota Constitution protect persons from compelled self-incrimination. Because of the coercion inherent in custodial interrogation, a criminal suspect must be

warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.

Miranda v. Arizona, 384 U.S. 436, 479, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

The defendant may waive his Miranda rights “provided the waiver is made voluntarily, knowingly and intelligently.” Id. at 444, 86 S.Ct. 1602. The prosecution has the burden of proving a valid waiver by a preponderance of the evidence. Colorado v. Connelly, 479 U.S. 157, 168, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986). “Only if the totality of the circumstances surrounding the interrogation reveals both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.” Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986) (internal quotation marks omitted) (stating that “the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it”). Factors commonly considered include age, intelligence and education, familiarity with the criminal justice system, physical and mental condition, and language barriers. State v. Camacho, 561 N.W.2d 160, 168 (Minn.1997). Findings of fact surrounding a claimed Miranda waiver are reviewed for clear error; legal conclusions based on those facts are reviewed de novo. See State v. Linder, 268 N.W.2d 734, 735 (Minn.1978) citing Brewer v. Williams, 430 U.S. 387, 403, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977) (stating that “the question of waiver [is] not a question of historical fact, but one which * * * requires application of constitutional principles to the facts as found” (internal quotation marks omitted)).

Here, the record clearly indicates that Farrah’s primary language is Somali and that, as the prosecutor noted, he “speaks •with a heavy accent.” At the beginning of the recorded police interrogation, Farrah told the officer that he did not speak English very well. Although the services of an interpreter were available, none were provided because the officer felt that Far-rah had an adequate comprehension of the officer’s questions. The officer acknowledged, however, that at times he had difficulty understanding Farrah because of Farrah’s accent. Farrah’s cousin also testified that “[o]ne fact that we see as a family is that people are speculating Bu-rhan knows English very well, and that is not true.”

To protect or facilitate the exercise of constitutional rights, it is the express policy in Minnesota to provide qualified interpreters to assist persons in legal proceedings who are handicapped in communication (now referred to as “disabled in communication”). Minn.Stat. § 611.30 (2006). Under this policy, following the apprehension or arrest of a person disabled in communication, law enforcement has the obligation to obtain a language interpreter to assist the person throughout custodial interrogation. Minn.Stat. § 611.32, subd. 2 (2006). A person disabled in communication includes one who, “because of difficulty in speaking or comprehending the English language, cannot fully understand the proceedings or any charges made against the person * * * or is incapable of presenting or assisting in the presentation of a defense.” Minn.Stat. § 611.31 (2006). The term disabled in communication also includes persons disabled in expression or comprehension of the English language. Cf. State v. Mitjans 408 N.W.2d 824, 829 (Minn.1987) (stating that Spanish speaking defendant “was no more [disabled] in understanding and in expressing himself to [a bilingual police officer] than an English-speaking suspect is in understanding and in expressing himself to an English-speaking officer”).

That Farrah had difficulty in expressing himself in English was underscored by the disposition of his claim that he asserted his right to counsel. When a suspect asks for counsel, questioning must cease “until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). The request for counsel must be clear and unequivocal. Davis v. United States, 512 U.S. 452, 459, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994) (holding that in a post-waiver situation, Edwards does not require that questioning stop upon the equivocal or ambiguous reference to an attorney). The inquiry as to the clarity of a suspect’s request for counsel is objective; the interrogating officer need not stop questioning if “a reasonable police officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel.” Davis, 512 U.S. at 458-59, 114 S.Ct. 2350. In Minnesota, if the request is equivocal, the police must stop and clarify, asking only narrow questions designed to clarify the suspect’s intentions. State v. Risk, 598 N.W.2d 642, 648-49 (Minn.1999).

Here, the interrogation transcript showed that Farrah told the officer, “Okay I think I will talk to lawyer, (inaudible).” The district court listened to the recorded statement several times and noted the accuracy of the transcript but nevertheless determined that the request for counsel was equivocal based on its finding that there was a legitimate lack of clarity on the officer’s part as to what Farrah had said. In other words, the officer did not understand Farrah’s request because of Farrah’s poor language skills. See Minn. Stat. § 611.31. Because Farrah was disabled in communication, the obligation to provide the services of a language interpreter attached.

As to the waiver of rights, the district court made no specific finding regarding Farrah’s language skills, stating “I don’t know right now Mr. Farrah’s proficiency in language.” The court indicated that the need for an interpreter at trial did not imply an inability to understand and waive Miranda rights, but also noted that noncompliance with the interpreter statutes can be relevant in evaluating the validity of a waiver. The court determined that Far-rah had been given a warning, that he waived his rights, and that there was “no [ ] evidence to conclude that it * * * was not a knowing and intelligent waiver.”

In our view, the totality of the circumstances surrounding the interrogation do not make known whether Farrah’s Miranda waiver was made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Farrah was advised of his rights orally in English. He was not advised of his rights in Somali, he was not given a written waiver to sign in either English or Somali, and he did not have the assistance of a language interpreter. Cf. State v. Dominguez-Ramirez, 563 N.W.2d 245, 250, 253 (Minn.1997) (concluding that defendant’s waiver of his Miranda rights was valid where the Miranda advisory was read in Spanish three times, he was shown a Miranda advisory written in Spanish, he signed the written version, and the police provided an interpreter for the interrogation). Farrah indicated that he did not understand the advisory, prompting repetition of the advisory; and other than the right to counsel, there is no evidence that each component of the advisory was adequately explained.

The dissent, however, notes that the interrogating officer felt that he and Farrah understood each other and that medical evaluations done in October 2003 and September 2004 indicated that Farrah had adequate comprehension of English. But the officer also admitted to repeating or explaining questions when Farrah had trouble understanding, the interrogation itself reflected the officer’s and Farrah’s problems in communication, there was other evidence that Farrah did not comprehend English all that well, and Farrah was provided language-interpreter services for the medical evaluations as well as for trial.

“A defendant who does not understand English can give an effective waiver if the warnings were given in his native tongue.” 2 Wayne R. LaFave, et al., Criminal Procedure § 6.9(b) (2d ed.1999). As we have said before, prudent investigators would be wise to implement a system for the provision of language-interpreter services for persons disabled in communication. E.g., State v. Sanchez-Diaz, 683 N.W.2d 824, 835 (Minn.2004) (stating that prudent police investigators should comply with the statutory requirements for language services); Mitjans, 408 N.W.2d at 831 (stating that “[i]n the future, prudent police investigators * * * are advised to comply with the statutory requirements” for language services); State v. Vu, 339 N.W.2d 892, 898 (Minn.1983) (stating that “the police and the trial court would be wise to engage an interpreter before interrogation so that this issue need never arise again in Minnesota”). Here, the warnings were not given in Farrah’s own language, and under the totality-of-the-cireumstances test, we hold that the state did not meet its burden to prove that Farrah knowingly and intelligently waived his Miranda rights.

Still, the admission of a defendant’s statements to police at trial in violation of Miranda does not require a new trial if the state can show beyond a reasonable doubt that the error was harmless. See State v. Juarez, 572 N.W.2d 286, 291 (Minn.1997). If the verdict actually rendered was surely unattributable to the error, the error is harmless beyond a reasonable doubt. Id. at 292 (citing Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)). Following, the Chapman/Juarez standard, the question then becomes: “What effect did the jury’s hearing [the defendant’s] statement * * * actually have on the guilty verdict rendered?” Id.

The state argues that any error in the admission of the recorded police statement was beneficial to Farrah because the statement placed his denial of any wrongdoing before the jury without requiring his testimony. But the statement contained Far-rah’s admission that he was in his car with the complainant. When the officer asked ■him what the complainant might say about what happened in his car, he said “(inaudible) rubbed her.” Farrah’s statement was the last piece of evidence presented by the prosecution in its case-in-chief. In closing argument, the prosecutor told the jury that Farrah’s statement was “significant” because it showed that he was concerned about the complainant’s age “from the beginning.” The prosecutor told the jury that the “rubbed her” comment was “most significant” because the officer had not mentioned the allegations against Farrah. The prosecutor told the jury that Farrah said that “because that’s exactly what happened.” The prosecutor argued that Far-rah’s claim of having a boyfriend/girlfriend conversation with C.B. was incredible, unbelievable, and evidence of his guilt. Given the evidentiary value the state placed on Farrah’s statement, we cannot conclude that the verdict was “surely unattributable” to the erroneous admission of the statement, and we hold that the error was not harmless beyond a reasonable doubt, thus warranting a new trial.

II.

Having concluded that a new trial is required, we need not reach Farrah’s claim of error in the admission of C.B.’s out-of-court statements, but we will briefly address the claim because the admissibility of the statements is likely to arise in the new trial. C.B.’s statements to the 911 caller and Officer Wilson were properly admitted at trial. An out-of-court statement made by a witness who testifies at trial and is subject to cross-examination is not hearsay if it is “a statement describing or explaining an event or condition made while the declarant was perceiving the event or condition or immediately thereafter.” Minn. R. Evid. 801(d)(1)(D); see State v. Pieschke, 295 N.W.2d 580, 582, 584 (Minn.1980) (holding that statements made within a few minutes of an accident were close enough in time to qualify under Rule 801(d)(1)(D), although statements made almost an hour after the incident were taken too long after the incident to qualify).

C.B.’s statements to her grandmother and best friend were offered as prior consistent statements. “A statement is not hearsay if * * * [t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is * * * consistent with the declarant’s testimony and helpful to the trier of fact in evaluating the declarant’s credibility as a witness * * Minn. R. Evid. 801(d)(1)(B). Thus, when a witness’ prior statement contains assertions about events that have not been described by the witness in trial testimony, those assertions are not helpful in supporting the credibility of the witness and are not admissible under this rule. Minn. R. Evid. 801(d)(1) Comm. Cmt.-1989. “What seems important is that the exception should not be the means to prove new points not covered in the testimony of the speaker.” 4 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 405 (2d ed.1994).

Rule 801(d)(1)(B), as amended in 1990, was aimed in part at addressing some confusion related to the treatment of prior consistent statements as non-hearsay when offered to corroborate trial testimony. “Under the amended rule, prior consistent statements can be admitted to enhance the credibility of a witness and as substantive evidence if the court determines the statements would be helpful in evaluating credibility.” 11 Peter N. Thompson, Minnesota Practice — Evidence § 801.01 (3d ed.2001). To be helpful, however, the credibility of the witness must have been challenged. State v. Nunn, 561 N.W.2d 902, 909 (Minn.1997). The district court retains the discretion under Minn. R. Evid. 403 and 611 to limit or preclude cumulative prior statements. Nunn, 561 N.W.2d at 909; Thompson, supra, § 801.07. Accordingly, assertions consistent with the complainant’s testimony would be admissible if helpful in evaluating credibility, subject of course to the court’s discretion to limit or preclude cumulative evidence. If the assertions are not consistent, they would be admissible, if at all, only if the district court exercises its discretion and determines that they meet the criteria of the residual hearsay exception of Minn. R. Evid. 807.

Reversed and remanded for a new trial.

Concurring in part, dissenting in part, GILDEA, MEYER, and ANDERSON, G. BARRY, JJ.

GILDEA, Justice

(concurring in part; dissenting in part).

I agree with the majority’s analysis of the evidentiary issue in section II, but I respectfully dissent from section I of the majority opinion. I would hold that the district court did not clearly err when it found that Farrah understood the English language well enough to knowingly waive his Miranda rights. I would therefore conclude that the state has met its burden to prove that Farrah waived his Miranda rights.

We review the legal question of whether a suspect knowingly waived his Miranda rights de novo. State v. Ray, 659 N.W.2d 736, 742 (Minn.2003). But we review the factual findings underlying that legal conclusion for clear error. Id. A finding is not clearly erroneous simply because an appellate court might have resolved the question differently. Stiff v. Associated Sewing Supply Co., 436 N.W.2d 777, 779 (Minn.1989) (“An appellate court exceeds it proper scope of review when it bases its conclusions on its own interpretation of the evidence and, in effect tries the issues anew and substitutes its own findings for those of the trial judge.”); see also Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 102 (Minn.1999) (“An appellate court may not reverse a trial court due to mere disagreement with its findings.”); Gjovik v. Strope, 401 N.W.2d 664, 668 (Minn.1987) (noting that an appellate court “should not substitute its findings for that of the trial court merely because it feels that the case was wrongly decided”). Instead, the clearly erroneous standard means that the finding below will stand unless it “is not reasonably supported by the evidence as a whole.” EOP-Nicollet Mall, L.L.C. v. County of Hennepin, 723 N.W.2d 270, 284 (Minn.2006) (internal quotation marks omitted); see also Miles v. City of Oakdale, 323 N.W.2d 51, 54 (Minn.1982) (“We have defined a clearly erroneous finding variously to mean palpably and manifestly against the weight of the evidence or not reasonably supported by the evidence as a whole.”).

Whether a defendant understands English well enough to be able to waive his Miranda rights is a factual question. A district court’s factual finding related to this question is reviewed for clear error. See United States v. Rodriguez-Preciado, 399 F.3d 1118, 1127 (9th Cir.2005) (“The district court’s finding that [the defendant’s] alleged difficulty with English did not prevent him from knowingly and intelligently waiving his Miranda rights was not clearly erroneous.”), amended by 416 F.3d 939 (9th Cir.2005); United States v. Marrero, 152 F.3d 1030, 1034 (8th Cir.1998) (holding “that district court did not clearly err in finding that defendant could understand English and that he effectively waived his Miranda rights”); United States v. Vue, 13 F.3d 1206, 1209 (8th Cir.1994) (same).

Here, the district court heard testimony from the interrogating officer, considered two psychologist’s reports, both of which stated that Farrah was able to communicate adequately in English, and listened to Farrah’s taped statement. Based on this evidence, the district court concluded that even if Farrah was entitled to an interpreter at trial, his English skills were sufficient to support a knowing waiver.

The district court’s finding regarding Farrah’s language skills is supported by the evidence in the record. First, the officer conducting the interview testified at the suppression hearing in part:

Q: [D]id he have any difficulty listening to or following questions that you asked?
A: He didn’t appear to, no.
Q: Did he appear to have any difficulty enunciating his words?
A: It was obvious to me that he had a strong accent, but I didn’t feel that he was unable to understand, nor was I unable to understand him.

Second, a forensic evaluation report dated September 10, 2004, describes records from Farrah’s hospitalization in October 2003. The notes from this hospitalization reflect that “[h]e was able to communicate adequately in English, but used the interpreter at times.” This hospitalization was just one month before Farrah’s interview with police that is at issue in this case. Third, in the recorded interview, Farrah responds appropriately to the officer’s questions. Although he says he only understands a “[ljittle” English, that claim is belied by Farrah’s reaction and responsiveness to the questions posed to him. In short, the evidence supports the district court’s factual finding, and therefore, the finding is not clearly erroneous.

The majority does not directly hold that the district court’s finding is clearly erroneous. Rather, the majority largely ignores the district court on the key issue in this case, and finds for itself that “Farrah had difficulty in expressing himself in English.” With this factual predicate, the majority then concludes Farrah was “disabled” in communication, and therefore entitled to an interpreter under Minn.Stat. § 611.32, subd. 2 (2006). In my view, the majority is doing precisely what our precedent prohibits — substituting its judgment on a fact question for that of the district court. E.g., Gjovik, 401 N.W.2d at 668.

To support its factual finding that Far-rah was “disabled” in communication, the majority cites the district court’s “disposition of [Farrah’s] claim that he asserted his right to counsel,” but it does not find that the district court erred in its resolution of that question. The district court concluded that Farrah’s statement about a lawyer was not unequivocal when considered in context. The record reflects that the officer did what our cases require on the question of whether a suspect has requested counsel. When Farrah made an equivocal statement about a lawyer, the officer inquired further. See State v. Risk, 598 N.W.2d 642, 648-49 (Minn.1999). In response to this inquiry, the transcript reflects the following exchange:

Q: Yup and before I talk to you about that you need to understand these, that you do have the right to talk to a lawyer first do you understand that?
A: Like even if I have a lawyer ...
Q: Then they will give you one for free. In other words you don’t have to talk to me right now, although I would like to, to find out what happened.
A: Okay.
Q: But you don’t have to you can talk to a lawyer first if that is what you want to do?
A: Okay.
Q: So do you understand that?
A: Yeah.
Q: Okay having your rights in mind do you want to talk to me now?
A: Yeah go ahead.
Q: Okay you don’t want to talk to a lawyer first?
A: No I don’t want to.

It was only after securing this understanding that the officer proceeded with the interrogation.

We have said that the state is deemed to have met its burden “to prove by a preponderance of the evidence that a defendant knowingly, intelligently, and voluntarily waived his [Miranda ] right[s]” if the state can show that “the Miranda warnings were given, the defendant stated he understood those warnings, and the defendant gave a statement.” State v. Ganpat, 732 N.W.2d 232, 240 (Minn.2007). In reaching the conclusion that Farrah’s statements must be suppressed, the majority seems to be holding that the state will be unable to meet its burden anytime an immigrant is not read the warning in his native language or provided an interpreter. I cannot embrace such a broad holding. In my view, whether a suspect understands English well enough to waive his rights is inherently a fact question that absent clear error, we should leave to the district court. Here, it is undisputed that the Miranda warnings were given and repeated. Farrah stated that he understood the warnings, and the district court found that Farrah’s difficulties with English did not inhibit his ability to waive his rights. Farrah then gave a statement. On this record, I would hold that the state has met its burden, and would affirm.

MEYER, J.

(concurring in part; dissenting in part).

I join in the concurrence and dissent of Justice Gildea.

ANDERSON, G. BARRY, J.

(concurring in part; dissenting in part).

I join in the concurrence and dissent of Justice Gildea.

      . Farrah admitted talking to an 18- or 20-year-old girl in his car and said that they had a boyfriend/girlfriend conversation, although he denied any physical contact. When asked what the girl might say happened in the car, Farrah said, "(inaudible) rubbed her.”

        .See Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980) (stating that "the term 'interrogation' under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect” (footnote omitted)).

      . "[N]or shall [any person] be compelled in any criminal case to be witness against himself,” U.S. Const, amend. V; Minn. Const, art. I, § 7 (employing similar language).

      . The Miranda advisory need not take a rigid form so long as it conveys to the suspect (1) that he has the right to remain silent, (2) that anything he says can be used against him in court, (3) that he has the right to a lawyer, (4) that he has the right to have the lawyer present during interrogation, and (5) that a lawyer will be appointed at no cost if he cannot afford one. See California v. Prysock, 453 U.S. 355, 359-61, 101 S.Ct. 2806, 69 L.Ed.2d 696 (1981).

      . By 2005 revisor instruction, the term "handicapped” was changed to "disabled” wherever it appears in the statutes. Act of May 16, 2005, ch. 56, § 1, 2005 Minn. Laws 337, 337. Because there appears to be no substantive difference between the terms, we will subsequently use the term disabled and reference the current statutes.

      . Minnesota Statutes § 611.32, subd. 2, provides:
      Following the apprehension or arrest of a person disabled in communication for an alleged violation of a criminal law, the arresting officer, sheriff or other law enforcement official shall immediately make necessary contacts to obtain a qualified interpreter and shall obtain an interpreter at the earliest possible time at the place of detention. ⅜ * * Prior to interrogating or taking the statement of the person disabled in communication, the arresting officer, sheriff, or other law enforcement official shall make available to the person a qualified interpreter to assist the person throughout the interrogation or taking of a statement.

      . From its review of the tape, the district court noted that “there is occasional difficulty in understanding what [Farrah] is saying,” but that "there is an occasional difficulty in understanding a number of things said in the Scales tape by people who are English speakers * ⅞

      . The majority notes that “the district court made no specific finding regarding Farrah's language skills” and then quotes the district court as saying “I don't know right now Mr. Farrah's proficiency in language.” (Emphasis added.) This statement was made in reference to Farrah's request for an interpreter at trial. As the district court noted, “the fact that an interpreter is needed for court proceedings does not automatically mean that [Farrah] is unable to waive his rights or understand his rights under Miranda.” With respect to the waiver issue, I acknowledge that the district court made no written findings. But I do not agree with the majority’s suggestion that the district court did not find as a fact that Farrah understood English well enough to have waived his rights. The district court said that after "listening to the overall tape, * * ⅜ I believe (hat there is not evidence to conclude that it * ⅜ ⅛ was not a knowing and intelligent waiver.” Based on its review of the evidence, the court concluded, “it doesn't make sense to me that [Farrah] didn’t know what he was saying and that he didn't know what he was doing” in speaking to police.

      . While the majority seems to fault the officer for not going over all of Farrah's Miranda rights a third time, the record reflects that the right to counsel was the only one Farrah questioned. Thus, it was proper for the officer to focus on this right for additional followup.

      . Even if I were to assume that Farrah was disabled in communication and therefore entitled to an interpreter under Minn.Stat. § 611.32, subd. 2, it would not lead me to conclude that suppression is required. See State v. Sanchez-Diaz, 683 N.W.2d 824, 835 (Minn.2004) (noting that the statutory right to have an interpreter present at an interrogation "is not a constitutional one and violation of the statute does not require the application of the exclusionary rule").


author: WRIGHT, Judge.

text:
    In the Matter of the WELFARE OF the CHILDREN OF R.M.B. and R.E.R., Parents.
    No. A07-18.
    Court of Appeals of Minnesota.
    July 17, 2007.

      Mark D. Fiddler, Fiddler Law Office, Minneapolis, MN, for appellant Judith Al-brecht.
    Robert M.A. Johnson, Anoka County Attorney, Charles D. LeBaron, Assistant County Attorney, Anoka, MN, for respondent Anoka County Social Services.
    Bertha J. Swanson, Swanson, Drobnick & Tousey, Woodbury, MN, for respondent White Earth Band of Chippewa.
    Kenneth J. Dee, Assistant Public Defender, Anoka, MN, for respondent J.H.
    E. Susanne Mahony-St. Clair, Assistant Public Defender, Anoka, MN, for respondent R.E.R.
    Marc A. Al, Stoel Rives, and Catherine A. Laroque, Indian Child Welfare Law Center, Minneapolis, MN, for respondent R.M.B.
    Jody M. Alholinna, El-Ghazzawy Law Offices, Minneapolis, MN, for respondents foster parents.
    Considered and decided by KALITOWSKI, Presiding Judge; WRIGHT, Judge; and ROSS, Judge.
   OPINION

WRIGHT, Judge.

In this appeal from the district court’s order granting respondent tribe’s petition to transfer jurisdiction of this child-protection proceeding to the tribal court, appellant guardian ad litem argues that the district court erroneously concluded that the proceeding was not at an advanced stage and, thus, good cause to deny the petition to transfer jurisdiction was lacking. We affirm.

FACTS

R.M.B. and R.E.R. are the parents of T.B. and K.B. It is undisputed that the children are eligible for membership in the White Earth Band of Ojibwe (the tribe ) that neither child resides nor is domiciled on the tribe’s reservation, and that both children are “Indian children” under 25 U.S.C. § 1903(4) (2000).

On October 12, 2004, the children were placed in foster care. Anoka County subsequently filed a child-in-need-of-protection-or-services (CHIPS) petition regarding both children; and the district court adjudicated them to be in need of protection or services in its November 19, 2004 order.

In an affidavit filed March 17, 2005, Toni Stillday, a social worker authorized to speak on behalf of the tribe in child-custody proceedings, confirmed that the tribe had received notice of the child-protection proceeding, as required by the Indian Child Welfare Act, 25 U.S.C. §§ 1901-1963 (2000) (ICWA). Stillday also averred that the tribe believed that “continued custody of the children by their parents [is] contrary to the best interests of the children and that returning the children to the care of the parents ..., at this time, is likely to result in serious emotional or physical damage to the child[ren].”

On September 26, 2006, the tribe petitioned to transfer jurisdiction of the child-protection proceeding to the tribal court. Mother filed a memorandum in support of this petition. The children’s guardian ad litem opposed the petition, arguing that there is good cause to deny the petition to transfer jurisdiction to the tribal court because the proceeding is at an “advanced stage.” See 25 U.S.C. § 1911(b) (requiring grant of petition to transfer jurisdiction of juvenile-protection proceeding to tribal court “in the absence of good cause to the contrary”); Bureau of Indian Affairs’ Guidelines for State Courts, 44 Fed. Reg. 67,584-67,591 (Nov. 26, 1979) (stating that “good cause” not to transfer child-protection proceeding to tribal court may exist if the proceeding is at an “advanced stage”). While the petition was pending, the guardian ad litem requested a permanent-status hearing, and the county petitioned under Minn.Stat. § 260C.201, subd. 11 (2006), to permanently transfer legal and physical custody of the children to their foster parents. But at the November 30, 2006 hearing on the tribe’s petition to transfer jurisdiction, the county withdrew its permanent-placement petition and advised the district court that it supported the tribe’s transfer petition.

From the bench, the district court granted the tribe’s petition to transfer jurisdiction to the tribal court, finding both that the proceeding is not at an advanced stage and that “[t]his isn’t a situation where [the tribe] wait[ed to] see how the Court is going and then [petitioned] to transfer ... because [it was] afraid of the decision that’s going to happen.” In a written order filed later that day, the district court reiterated its decision to grant the tribe’s petition to transfer jurisdiction, stating: “Good cause does not exist to deny transfer of these proceedings to [the] Tribal Court.” In a subsequent order filed on December 12, 2006, the district court made additional findings of fact and conclusions of law, including a finding that the proceeding is not at an “advanced stage” because it “continues to be a CHIPS case” in that neither a petition to terminate parental rights nor a petition for permanent placement is pending. This appeal followed.

ISSUE

Did the district court erroneously conclude that there is not good cause to deny respondent tribe’s petition to transfer jurisdiction of this child-protection proceeding?

ANALYSIS

“[I]n the absence of good cause to the contrary,” the Indian Child Welfare Act, 25 U.S.C. §§ 1901-1963 (2000) (ICWA), requires a district court to grant a proper request to transfer to the tribal court jurisdiction of a child-protection proceeding involving the custody of an Indian child who does not reside and is not domiciled on the reservation. 25 U.S.C. § 1911(b).

Because ICWA does not define what constitutes “good cause” to deny a petition to transfer jurisdiction of a child-protection proceeding, Minnesota courts have looked to the guidelines published by the Bureau of Indian Affairs (BIA Guidelines) for guidance in interpreting ICWA, including determining the existence of “good cause.” See In re Welfare of Child of T.T.B. & G.W., 724 N.W.2d 300, 305 (Minn.2006) (examining BIA Guidelines; Indian Child Custody Proceedings, 44 Fed.Reg. 67,584-67,595 (Nov. 26, 1979), to interpret meaning of “good cause”); In re Welfare of S.N.R., 617 N.W.2d 77, 81 (Minn.App.2000) (citing several Minnesota appellate cases that use BIA guidelines to interpret or apply ICWA), review denied (Minn. Nov. 15, 2000). Regarding “good cause,” the BIA Guidelines state: “Good cause not to transfer the proceeding may exist if ... [t]he proceeding was at an advanced stage when the petition to transfer was received and the petitioner did not file the petition promptly after receiving notice of the hearing.” BIA Guidelines, 44 Fed.Reg. at 67,591. The BIA Guidelines also make clear that the party opposing the petition to transfer has the burden of showing good cause to deny transfer. Id. Here, the district court found that “good cause” to deny the petition to transfer jurisdiction to the tribal court did not exist because this proceeding was not at an advanced stage.

Whether “good cause” exists to deny a petition to transfer jurisdiction to a tribal court is a mixed question of law and fact. T.T.B., 724 N.W.2d at 307. We review mixed questions of law and fact to determine whether the district court made factual findings that are unsupported by the record, erroneously applied the law, or abused its discretion when it reached its ultimate conclusion. Rehn v. Fischley, 557 N.W.2d 328, 333 (Minn.1997); cf. In re Custody of S.E.G., 521 N.W.2d 357, 363 (Minn.1994) (reviewing district court’s decision that “good cause” existed to deviate from ICWA’s adoptive-placement preferences by determining whether district court’s factual findings were clearly erroneous and whether district court improperly weighed relevant factors or misapplied law). But the application of ICWA to undisputed facts presents a question of law, which we review de novo. T.T.B., 724 N.W.2d at 307.

In T.T.B., the Minnesota Supreme Court considered whether the proceeding was at an “advanced stage” when petitions to transfer jurisdiction to the tribal court were filed and whether the petitioning parties acted promptly after receiving notice of the proceeding. Id. at 306. There, the proceeding began in December 2003 when the county petitioned to terminate parental rights or to transfer permanent legal and physical custody of the children. Id. at 307. The county gave the tribe notice of the petition less than three weeks later. Id. In September 2004, more than two months after the originally scheduled trial date, the tribe petitioned to transfer jurisdiction. Id. The supreme court affirmed the district court’s denial of the petition to transfer jurisdiction, holding that there was good cause to deny the petition for two reasons. Id. at 308. First, the proceeding was at an advanced stage because the six-month progress hearings required under the Minnesota Rules of Juvenile Protection Procedure already had been held; witness lists, exhibit lists, and pretrial motions were due; the trial already had been postponed; and a home study along with a family group conference had been completed. Id. Second, because that tribe did not petition to transfer jurisdiction until eight months after receiving notification of the petition initiating the case, that tribe had not acted promptly. Id. at 308-09.

The procedural posture in T.T.B. is factually distinguishable from the instant case. Here, neither a TPR nor a permanent-placement petition was pending when the tribe filed its petition to transfer jurisdiction to the tribal court or when the district court heard this petition. The district court concluded that the proceeding was not at an advanced stage because it was a CHIPS proceeding, not a permanency proceeding. But the absence of a pending TPR or permanent-placement petition does not establish as a matter of law that a proceeding is not at an advanced stage. ICWA’s definition of “child custody proceeding” includes both TPR proceedings, which are defined as “any action resulting in the termination of the parent-child relationship,” 25 U.S.C. § 1903(l)(ii), and foster-care-placement proceedings, which are defined as “any action removing an Indian child from its parent ... for temporary placement in a foster home ... where parental rights have not been terminated,” 25 U.S.C. § 1903(l)(i). ICWA requires a district court to grant a petition to transfer either type of proceeding in the absence of good cause to deny the petition. 25 U.S.C. § 1911(b) (“In any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child ..., the court, in the absence of good cause to the contrary, shall transfer such proceeding to the jurisdiction of the tribe.... ”).

The children were placed in foster care, but a petition to terminate R.M.B.’s and R.M.R.’s parental rights was not pending. Therefore, the CHIPS proceeding over which the district court was presiding when the tribe filed its transfer petition falls within ICWA’s definition of foster-care-placement proceeding. 25 U.S.C. § 1903(l)(i). When the district court concluded that the CHIPS proceeding was not at an advanced stage because neither a TPR nor a permanent-placement petition was pending, it improperly conflated two proceedings that are distinct under ICWA. Rather, the proper inquiry for the district court was whether the CHIPS proceeding was at an advanced stage, without reference to the initiation of a TPR or permanency proceeding.

Other jurisdictions that have considered cases with a similar procedural posture have reached similar conclusions. In In re A.B., the county commenced a foster-care proceeding in March 2001 and subsequently filed a TPR petition on June 3, 2002. 663 N.W.2d 625, 631 (N.D.2003). The family-court referee determined that there was good cause to deny the tribe’s July 2002 petition to transfer jurisdiction to the tribal court because it was filed at an advanced stage of the proceeding. Id. The district court disagreed, holding that the “relevant time for deciding whether the July 2002 [petition] to transfer was timely was after [the cjounty filed the June 3, 2002 petition to terminate parental rights, because a foster care placement proceeding and a [TPR] proceeding are two separate proceedings under [ICWA’s] definition of ‘child custody proceeding.’” Id. (citing 25 U.S.C. § 1903(1)). The North Dakota Supreme Court affirmed, holding that the district court’s “interpretation of ‘child custody proceeding’ correctly distinguishes between proceedings for ‘foster care placement’ and ‘termination of parental rights’ and recognizes the different purposes that may trigger each proceeding.” Id. at 632.

In In re A.T.W.S., a Colorado district court adjudicated a child to be dependent and neglected in November 1988. 899 P.2d 223, 224 (Colo.App.1994). In March 1990, social services filed a TPR petition, which it subsequently withdrew. Id. at 226. On January 31, 1992, the date scheduled for a permanency-planning and custody hearing, the tribe moved to transfer jurisdiction. Id. The Colorado Court of Appeals affirmed the district court’s denial of the transfer petition, holding that, although permanency planning had not commenced, the present dependency proceeding was at an advanced stage when the tribe filed its petition to transfer jurisdiction. Id. at 227.

Although we disagree with the district court’s reasoning that the CHIPS proceeding was not at an advanced stage because neither a TPR petition nor a permanent-placement petition was pending, we affirm the district court’s decision to grant the tribe’s petition to transfer jurisdiction for two reasons.

First, even if the district court had concluded that the CHIPS proceeding was at an advanced stage, it was not required to deny the tribe’s petition to transfer jurisdiction. ICWA does not mandate, and the BIA Guidelines do not suggest, denial of a petition to transfer jurisdiction even when good cause for denial exists. Specifically, ICWA provides that, “in the absence of good cause to the contrary, [the district court] shall transfer ... jurisdiction [to] the tribe.” 25 U.S.C. § 1911(b) (emphasis added). But ICWA does not contain a mandate that the district court shall deny a transfer of jurisdiction when “good cause to the contrary” exists. Similarly, the BIA Guidelines provide that “[g]ood cause not to transfer the proceeding may exist if ... [t]he proceeding was at an advanced stage when the petition to transfer was received and the petitioner did not file the petition promptly after receiving notice of the hearing.” BIA Guidelines, 44 Fed.Reg. at 67,591 (emphasis added). Indeed, the Minnesota Supreme Court has acknowledged that “ICWA and Minnesota law recognize concurrent but presumptively tribal jurisdiction allowing the child’s tribe to intervene ‘at any point’ in the state court proceedings.” T.T.B., 724 N.W.2d at 305 (emphasis added).

Second, the BIA Guidelines establish a promptness factor, 44 Fed.Reg. at 67,591, which, according to the BIA commentary, is intended to prevent situations in which the petitioner “ ‘waits until the case is almost complete to ask that it be transferred to another court and retried,’ ” T.T.B., 724 N.W.2d at 306 (quoting BIA Guidelines, 44 Fed.Reg. at 67,590).

Here, the district court found that “[t]his isn’t a situation where ... [the tribe] waitfed to] see how the Court is going and then ... [petitioned] to transfer ... because [it was] afraid of the decision that’s going to happen.” This finding is supported by the record, which establishes that the tribe filed its petition in anticipation of the county filing a permanent-placement petition. The timing of the petition to transfer jurisdiction is consistent with ICWA’s purposes of maintaining an Indian child’s cultural and tribal ties and promoting the “stability and security of Indian tribes and families,” 25 U.S.C. § 1902, which may not have been implicated to the same degree at an earlier stage in the CHIPS proceeding, and is wholly unrelated to improper forum shopping. This finding also is supported by relevant authority, including Minnesota’s Tribal/State Indian Child Welfare Agreement, which provides that, although good cause to deny a transfer petition may exist if the “petition is inexcusably filed when the proceeding is already at an advanced stage,” a district court must recognize that “fundamental tribal values may guide the timing by a tribe to petition for a transfer” of jurisdiction to the tribal court. Minn. Dep’t of Human Res., Minn. Tribal/State Indian Child Welfare Agreement 6-7 (Feb. 22, 2007), http://www.dhs.state.mn.us/main/ idcplg? dcService=GET_DYNAMIC_CON VERSION&RevisionSelectionMethod= LatestReleased&dDocN ame=id_000165.

DECISION

On this record, the guardian ad litem has not established that the district court committed reversible error when it transferred jurisdiction to the tribal court. Because the district court’s finding that the tribe did not improperly delay its petition to transfer jurisdiction is supported by the record, and because that finding alone is sufficient to support the district court’s determination that there is not good cause to deny the tribe’s petition to transfer jurisdiction, we affirm the district court’s decision granting the tribe’s motion to transfer jurisdiction to the tribal court.

Affirmed.

      . The Indian Child Welfare Act, 25 U.S.C. §§ 1901-1963 (2000) (ICWA), defines an "Indian tribe” as “any Indian tribe, band, nation, ... or community of Indians recognized as eligible for the services provided to Indians by the Secretary [of the Interior.]” 25 U.S.C. § 1903(8) (2000). The White Earth Band of Ojibwe, which is a band of the Minnesota Chippewa Tribe, fits this definition. Preamble to the Revised Constitution and Bylaws of the Minnesota Chippewa Tribe, Minnesota. Because this opinion addresses the petition made under ICWA by the White Earth Band of Ojibwe to transfer jurisdiction of this child-protection proceeding to tribal court, and because the White Earth Band of Ojibwe is an “Indian tribe” for ICWA purposes, we refer to the White Earth Band of Ojibwe as “the tribe.”

      . In nine orders filed between February 2005 and September 2006, the district court held that it was in the children's best interests to continue their CHIPS status and their out-of-home placements.

      . The tribe maintains that it filed its petition to transfer jurisdiction to the tribal court in anticipation of the county filing a permanent-placement petition.

      . Prior to the instant appeal, the guardian ad litem petitioned for a writ of mandamus compelling the district court to vacate its order transferring jurisdiction to the tribal court and to set the matter for a permanent-placement hearing. Because an appeal would provide an adequate remedy, we denied the petition. In re Welfare of Children of R.M.B. & R.E.R., No. A06-2363 (Minn.App. Jan. 9, 2007). On February 20, 2007, the Minnesota Supreme Court denied review of our decision.

      . Indeed, the county filed its permanent-placement petition after the tribe filed its transfer petition and withdrew it before the district court heard the petition.

      . In support of her argument that Minnesota law regards CHIPS and permanency proceedings as one continuous proceeding, the guardian ad litem cites Minn. R. Juv. Prot. P. 7.07, subd. 4, which states that a permanency proceeding for a child who was the subject of a CHIPS proceeding is a continuation of the CHIPS proceeding, and the parties may not, as a matter of right, disqualify the judge in the permanency proceeding if that judge was the judge in the CHIPS proceeding. Although Minnesota courts regard these proceedings as a continuous proceeding for purposes of disqualifying a district court judge, they are considered separate proceedings for other purposes. See, e.g., In re Welfare of Children of S.W., 727 N.W.2d 144, 153 (Minn.App.2007) (holding that ICWA violations during foster-care proceeding do not require district court to invalidate subsequent TPR proceeding), review denied (Minn. Mar. 28, 2007). Moreover, whether Minnesota law considers these proceedings to be continuous or distinct is not pertinent to our analysis of whether there is good cause to transfer a CHIPS proceeding to tribal court because that determination is governed by ICWA.

      .The CHIPS proceeding and foster-care placement commenced in October 2004; and the petition to transfer jurisdiction was filed in September 2006, well after the expiration of the statutory timeframe for establishing permanency. The lapse of time between these events makes evident the strength of the argument that the CHIPS proceeding was at an advanced stage. See Minn.Stat. § 260C.201, subd. 11(a) (2006) (requiring district court to commence permanency proceedings no later than 12 months after child is placed in foster care).


author: PER CURIAM.

text:
    2007 ND 105
    In the Matter of the Application for DISCIPLINARY ACTION AGAINST Douglas D. SLETTEN, A Member of the Bar of the State of North Dakota. Disciplinary Board of the Supreme Court of the State of North Dakota, Petitioner, v. Douglas D. Sletten, Respondent.
    No. 20070184.
    Supreme Court of North Dakota.
    June 27, 2007.
   INTERIM SUSPENSION ORDERED.

PER CURIAM.

[¶ 1] On June 25, 2007, an Application for the Interim Suspension of Douglas D. Sletten, a member of the Bar of North Dakota, with supporting documents, was filed under N.D.R. Lawyer Discipl. 3.4, Threat of Public Harm. Sletten was admitted to practice law on October 6, 1980, and is currently licensed to practice law in the courts of North Dakota.

[¶ 2] A complaint has been filed against Sletten which alleges Sletten took approximately three hundred thousand dollars from the Estate of Anita Hopkins. The money was put in Sletten’s trust account; Sletten eventually used the money for personal or office use.

[¶ 3] According to an Affidavit filed by Disciplinary Counsel: Sletten acknowledged the misconduct during an interview with Disciplinary Counsel; Sletten also admitted to taking an additional $40,000 held on behalf of another client for his personal or office use; Sletten was not authorized to take the money; and Sletten does not have the ability to pay it back.

[¶ 4] Under N.D.R. Prof. Conduct 1.15(a), Safekeeping Property, a lawyer shall hold property of clients or third persons that is in a lawyer’s possession in connection with a representation separate from the lawyer’s own property. Absent aggravating or mitigating circumstances, disbarment is generally appropriate when a lawyer knowingly converts client property and causes injury or potential injury to a client. N.D. Stds. Imposing Lawyer Sanctions 4.11, Failure to Preserve the Client’s Property.

[¶ 5] Under N.D.R. Lawyer Discipl. 3.4(B), Threat of Public Harm, the court may enter an interim order at any stage of any proceeding immediately suspending the lawyer pending final disposition of the proceeding predicated upon the conduct causing the harm or may order such other action as deemed appropriate. This rule also provides that upon request by counsel or the lawyer after entry of an interim suspension order, the court shall within ten days provide an opportunity for the lawyer to demonstrate that the order should not remain in force.

[¶ 6] ORDERED, Douglas D. Sletten’s license to practice law is SUSPENDED effective June 27, 2007, and until further order of this Court, pending final disposition of a disciplinary proceeding predicated upon the complaint filed.

[¶ 7] FURTHER ORDERED, Douglas D. Sletten comply with N.D.R. Lawyer Discipl. 6.3, Notice of Status.

[¶ 8] GERALD W. VANDE WALLE, C.J., DALE V. SANDSTROM, CAROL RONNING KAPSNER, and DANIEL J. CROTHERS, JJ., concur.

[¶ 9] MARY MUEHLEN MARING, J, being unavoidably absent, did not participate in this decision.