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In the Matter of: K.B. and T.B.

May 15, 2013

IN THE MATTER OF: K.B. AND T.B., YOUTHS IN NEED OF CARE.


APPEAL FROM: District Court of the Eighth Judicial District, In and For the County of Cascade, Cause Nos. DDN-11-006 and DDN-11-007 Honorable Dirk M. Sandefur, Presiding Judge

The opinion of the court was delivered by: Beth Baker

Submitted on Briefs: April 17, 2013

Decided: May 14, 2013

Filed:

Clerk

Justice Beth Baker delivered the Opinion of the Court.

¶1 C.B., a member of the Chippewa Cree Tribe, appeals an order of the Eighth Judicial District Court, Cascade County, alleging that the court terminated her parental rights without following the requirements of the federal Indian Child Welfare Act, 25 U.S.C. § 1901 et. seq. We restate the issue on appeal as follows: Whether the termination proceedings complied with statutory requirements for proceedings involving Indian children.

¶2 We reverse the District Court's termination order and remand the case for the purpose of curing statutory deficiencies and holding a new termination hearing.

PROCEDURAL AND FACTUAL BACKGROUND

¶3 C.B. (Mother) is an enrolled member of the Chippewa Cree Tribe (Tribe). Each of her two children-two-year-old K.B. and five-year-old T.B.-qualifies as an "Indian child" under the Indian Child Welfare Act (ICWA), 25 U.S.C. § 1903(4). ICWA's procedural requirements for involuntary proceedings involving Indian children and its criteria for termination of parental rights thus govern this case.

¶4 On January 21, 2011, Mother, while extremely intoxicated, took the children outside for a walk in cold weather conditions. Proceeding down a busy street, Mother tipped the stroller over, causing the children to fall into snow and sleet. The children were transported to the emergency room to be treated for hypothermia and then were placed in a youth protective facility. Mother was arrested for two counts of felony criminal endangerment. After communicating with Mother, Kami Moore, the Montana Department of Public Health and Human Services (Department) child protection specialist assigned to the case, placed the children with their maternal grandmother in Box Elder, Montana.

¶5 On January 28, 2011, the Department filed a Petition for Emergency Protective Services, Adjudication as Youth in Need of Care and Temporary Legal Custody. The District Court set a show cause hearing on the petition for March 7, 2011. On February 2, 2011, the court issued a citation to Mother, directing her to appear at the hearing. The Cascade County Attorney's Office sent notice of the hearing to the Tribe by certified mail, return receipt requested, on February 3, 2011. At the March 7, 2011 show cause hearing, Mother appeared with her attorney and stipulated that her children were youths in need of care. The court adjudicated the children as youths in need of care and granted temporary legal custody to the Department, pending a dispositional hearing.

¶6 A dispositional hearing was held on April 11, 2011, at which the Department presented a proposed treatment plan for Mother, who did not appear but was represented by counsel. Mother's counsel did not object to the treatment plan and stated that he had not had contact with Mother. Among other provisions, the plan required Mother to maintain sobriety, complete a chemical dependency evaluation, submit to random drug and alcohol screenings, acquire a stable residence, maintain employment, demonstrate that she could financially support the children, and maintain contact with Moore and with the children. Following the hearing, the court entered an order adopting the State's proposed treatment plan for Mother, approving the children's current placement with their maternal grandmother and granting temporary legal custody of the youths to the Department for six months.

¶7 The Tribe filed a Notice of Appearance and Intervention on June 29, 2011. The notice stated that "the Tribe's social service and other personnel will be available to assist the Court in its deliberations" and that the Tribe was reserving the right "to move for a transfer of jurisdiction in this cause should that become necessary." The District Court held a status hearing on July 11, 2011, at which Mother appeared and agreed to follow the treatment plan.

¶8 The court granted the Department several extensions of temporary legal custody of the children between September 2011 and July 2012, as Mother attempted to complete the treatment plan but made limited progress. The court also held numerous status hearings, at which Mother's counsel often appeared without Mother and reported that he had had no contact with her. Moore's reports also indicated that Mother, in contravention of the treatment plan, failed to keep in contact with Moore and with the children. Those events, detailed below, led the Department to develop a plan for permanent placement of the children and eventually seek termination of Mother's parental rights.

¶9 On October 3, 2011, the District Court held a hearing on the State's petition to extend legal custody, at which Mother was present with counsel and the Tribe appeared telephonically. The court granted the State's petition to extend temporary legal custody for an additional six months "to allow the Mother to complete her treatment plan and to allow the child[ren] to be reunified with the Mother."

¶10 On January 23, 2012, the court held a status hearing, at which Mother was not present but was represented by counsel. The Department informed the court that it intended to seek termination of Mother's parental rights. According to the court, Mother's attorney "took no position because he had not had any contact with his client in quite some time."

¶11 On April 13, 2012, the county attorney filed a Petition to Extend Temporary Legal Custody. The attached affidavit of Moore stated that:

[Mother] . . . has not had any contact with me for four months. The numbers that she has provided me with have either been disconnected or are wrong numbers. [Mother] is not engaged with any of her services providers or me. [Mother] does not visit with her children so she is losing any connection she may have had with them.

A few days later, the county attorney filed a Motion for Permanency Plan Hearing and Notice of Permanency Plan Report. The attached report and plan, prepared by Moore, stated that the Department's "primary goal" was "reunification with the birthmother [sic], dependent on the completion of the treatment plan," but "if reunification does not occur[,] the concurrent plan is adoption with family." The report noted that the children's maternal grandmother expressed desire to serve as the children's permanent placement.

¶12 On April 16, 2012, the court held a hearing on the proposed permanency plan, at which Mother was present with her counsel and, according to the court, "took no position" on the plan. The court's April 24, 2012 order adopting the permanency plan stated that "Mother stipulated to the extension of Temporary Legal Custody for a period of 3 months and to the permanency plan. The Mother stated that she is currently in chemical dependency treatment and is attempting to demonstrate that she is committed to completing the treatment plan."

ΒΆ13 On June 20, 2012, the county attorney filed another petition to extend temporary legal custody so that Mother would have "time to work towards the successful completion of her respective court-ordered treatment plan." Moore's attached affidavit stated once again that Mother had not been ...


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