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In re A.F.

Supreme Court of Montana

March 13, 2018

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

          Submitted on Briefs: February 14, 2018

         APPEAL FROM: District Court of the Eighth Judicial District, In and For the County of Cascade, Cause No. BDN 15-230 Honorable Elizabeth Best, Presiding Judge

          For Appellant: Jennifer Dwyer, Law Office of Jennifer Dwyer, PLLC, Bozeman, Montana

          For Appellee: Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana, Joshua A. Racki, Cascade County Attorney, Valerie Winfield, Deputy County Attorney, Great Falls, Montana

          OPINION

          Beth Baker, Justice

         ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court's quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

         ¶2 J.B. appeals the order from the Eighth Judicial District Court, Cascade County, terminating her parental rights to her child A.F. We affirm.

         ¶3 J.B. (Mother) is the birth mother of three children, A.F. and twin boys Kr.B. and Ka.B.[1] In September 2015, the three children were removed from the home of Mother and the birth father of the twins, R.B., after law enforcement found two-year-old Kr.B. wandering in a parking lot without supervision. Initial filings in the District Court from the Montana Department of Public Health and Human Services, Child and Family Services Division (the Department) cited the parents' drug use, as well as unsanitary and unhealthy conditions in the family's apartment.

         ¶4 The Department's initial pleadings indicated that all three children were, or may be, Indian children, with familial affiliation with the Northern Cheyenne Tribe. From the beginning, the twins' father reported that he is affiliated with the Northern Cheyenne Tribe. Later in the proceedings, Mother reported that she was affiliated with the Little Shell Tribe and with the Chippewa Cree Tribe of the Rocky Boy's Reservation. Mother has never claimed any affiliation with the Northern Cheyenne Tribe. A.F.'s birth father, T.F., has not reported any tribal affiliation. Throughout the proceedings, the District Court proceeded as if the Indian Child Welfare Act (ICWA) applied to all three children.

         ¶5 After a hearing at which an ICWA expert testified, the District Court terminated Mother's parental rights to all three of her children. The court found by proof beyond a reasonable doubt that the children were Youths in Need of Care; that Mother failed to complete her court-ordered treatment plan; that the conduct or condition rendering Mother unfit was unlikely to change within a reasonable time; and that returning the children to Mother likely would result in serious emotional or physical damage to the children. The court did not make a written finding that the Department make active efforts to prevent the breakup of the Indian family pursuant to 25 U.S.C. § 1912(d).

         ¶6 We review for abuse of discretion a district court's termination of parental rights. In re D.B., 2007 MT 246, ¶ 16, 399 Mont. 240, 168 P.3d 691. We review a district court's findings of fact for clear error and its conclusions of law for correctness. In re D.B., ¶ 18.

         ¶7 Mother argues that the District Court abused its discretion because the termination proceeding violated the requirements of ICWA. Specifically, she argues that the Department failed to properly notify the Northern Cheyenne Tribe of A.F.'s termination proceedings. She argues further that the Department failed to prove beyond a reasonable doubt that it made active efforts to prevent the breakup of the Indian family or that her condition was unlikely to change within a reasonable time.

         ¶8 Mother argues that the District Court violated ICWA when it terminated her parental rights to A.F. because the Northern Cheyenne Tribe was not notified of the termination hearing and only the Northern Cheyenne Tribe may make a determination that A.F. is not a member or eligible for membership in that tribe.

         ¶9 ICWA requires that a state court provide notice of termination proceedings to "the Indian child's tribe." See 25 U.S.C. 1912(a). "The Indian Tribe of which it is believed the child is a member (or eligible for membership and of which the biological parent is a member) determines whether the child is a member of the Tribe, or whether the child is eligible for membership." 25 C.F.R. § 23-108(a) (emphasis added). The Department sent notice of the termination hearing to the Little Shell and Chippewa Cree Tribe of the Rocky Boy's Reservation-the two tribes with which Mother reported potential affiliation. The Department was not required to send notice to the Northern Cheyenne Tribe of the proceedings to terminate parental rights to A.F., because nothing in the record demonstrated that the Northern Cheyenne Tribe was an "Indian Tribe of which it is believed the child is a member." See 25 C.F.R. ยง 23-108(a). R.B. reported an affiliation ...


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