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In re M.S.

Supreme Court of Montana

September 30, 2014

IN THE MATTER OF: M.S., A Youth in Need of Care.

Submitted on Briefs: August 13, 2014

Amended: November 12, 2014

District Court of the Eighth Judicial District, In and For the County of Cascade, Cause No. DDN-11-128 Honorable Dirk M. Sandefur, Presiding Judge

For Appellant: Julie Brown; Montana Legal Justice, PLLC; Missoula, Montana

For Appellee: Timothy C. Fox, Montana Attorney General; C. Mark Fowler, Appellate Services Bureau Chief; Helena, Montana John Parker, Cascade County Attorney; Matthew W. Robertson, Deputy County Attorney; Great Falls, Montana

OPINION

BETH BAKER JUSTICE

¶1 G.S. appeals an order of the Eighth Judicial District Court, alleging that the court terminated his parental rights without following the statutory requirements of the Indian Child Welfare Act (ICWA), 25 U.S.C. § 1901 et. seq., and without providing due process. We restate the issue on appeal as follows: Whether the termination proceedings complied with statutory requirements for proceedings involving an Indian child.

¶2 We affirm.

PROCEDURAL AND FACTUAL BACKGROUND

¶3 Thirteen-year-old M.S. was removed from her mother's care and placed into emergency protective custody on July 18, 2011, after her mother was arrested for Possession of Dangerous Drugs with Intent to Distribute. M.S.'s father, G.S., has been incarcerated in a federal prison in Arizona since 2009, serving a 480-month sentence with an additional 20 years of supervised release for aggravated sexual abuse. G.S. is an enrolled member of the Northern Cheyenne Tribe (Tribe).

¶4 On July 25, 2011, the Department of Public Health and Human Services (Department) filed a Petition for Emergency Protective Services, Adjudication as Youth in Need of Care and Temporary Legal Custody. Although the Department initially placed M.S. with another family member, by August 2011, M.S. had moved to Billings to live with her grandmother's ex-husband.

¶5 On July 28, 2011, the District Court set a date for a show cause hearing and issued a citation to the mother directing her to appear at the hearing. The Department sent notice of the pending show cause hearing to the Chippewa Cree Tribe, mistakenly believing that M.S. was a member or eligible for membership with that tribe. The Chippewa Cree responded that M.S. was not enrolled or eligible for enrollment with that tribe.

¶6 The District Court held the show cause hearing on December 5, 2011. G.S. did not personally attend, but he had been served and was represented at the hearing by his attorney. Both parents stipulated that M.S. was a Youth in Need of Care. The District Court issued an order on December 21, 2011, adjudicating M.S. a Youth in Need of Care and granting the Department Temporary Legal Custody.

ΒΆ7 On July 26, 2012, the Department filed a Petition for Permanent Legal Custody and Termination of Parental Rights for both parents. At the disposition hearing on the petition, G.S., through counsel, informed the court that he was a member of the Northern Cheyenne Tribe. The District Court denied and dismissed the Department's petition without prejudice on the grounds that the petition contained inaccurate information regarding ...


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