Submitted on Briefs: January 17, 2018
District Court of the Eighth Judicial District, In and For
the County of Cascade, Cause No. CDN 14-09 Honorable John A.
Kutzman, Presiding Judge.
Appellant: Shannon Hathaway, Montana Legal Justice, PLLC,
Appellee: Timothy C. Fox, Montana Attorney General, Katie F.
Schulz, Assistant Attorney General, Helena, Montana.
A. Racki, Cascade County Attorney, Matthew S. Robertson,
Deputy County Attorney, Great Falls, Montana.
Birth mother, S.D. (Mother), appeals the judgment of the
Montana Eighth Judicial District Court, Cascade County,
terminating her parental rights to her minor child, L.D. We
restate the dispositive issue as:
Whether the District Court erroneously proceeded with
termination of parental rights in the absence of a conclusive
tribal determination regarding L.D.'s status as an Indian
child as defined by the Indian Child Welfare Act?
reverse and remand for further proceedings consistent with
AND FACTUAL BACKGROUND
In December of 2013, the Montana Department of Health and
Human Services, Child and Family Services
("Department") became involved with two-year-old
L.D. after her older half-sister, A.O., revealed that
L.D.'s father ("Father") had sexually abused
A.O. Father was Mother's domestic partner and A.O.'s
step-father. On January 9, 2014, the State filed
separate petitions for emergency protective services, youths
in need of care ("YINC") adjudication, and
temporary legal custody of L.D. and A.O. pursuant to Title
41, chapter 3, MCA. Mother and A.O. were enrolled members of
the Chippewa Cree Tribe ("Tribe"), L.D. and Father
were not. The State's petition regarding L.D. asserted
that "[t]o the best of Petitioner's belief, "
L.D. "is an Indian child for the purposes of the Indian
Child Welfare Act [("ICWA")]." On January 20,
2014, the State notified the Tribe by registered mail that
the District Court had set a show-cause hearing on the
State's petitions for February 11, 2014. The notice
informed the Tribe of the names and whereabouts of L.D.'s
natural parents, notified the Tribe of its right to intervene
pursuant to ICWA, 25 U.S.C. § 1911, and stated the
Department's intent to comply with ICWA kinship-placement
requirements during the pendency of the proceedings.
At the initial show-cause hearing on February 11, 2014, the
State presented evidence in support of its separate YINC
petitions. Through counsel, Mother advised the District Court
that she had been unsuccessful in her attempt to enroll L.D.
as a member of the Tribe. Mother and Father further stated
their beliefs that L.D. was not eligible for enrollment in
the Tribe. Uncertain, the State assured the Court that it
would further investigate ICWA eligibility but moved to
proceed under ICWA in the interim. The District Court
ultimately adjudicated both children as YINC and maintained
them in the Department's protective custody pending
At the dispositional hearing on February 25, 2014, Mother
stipulated to a Department-proposed treatment plan that
required her to maintain contact and cooperation with the
Department, complete parenting classes, maintain supervised
visitation with L.D., submit to random alcohol and drug
testing, successfully complete chemical dependency treatment,
undergo a mental health evaluation and any recommended
counseling, and complete Department-provided family-based
services. On Mother's stipulation, the District Court
granted the Department temporary legal custody of L.D. for a
period of six months and ordered Mother to complete the
stipulated treatment plan. The dispositional-hearing
transcript indicates the awareness of the Court and parties
that L.D.'s status as an Indian child remained
At an interim status hearing on May 27, 2014, the District
Court noted, based on the report of the Department social
worker, that Mother was then in compliance and progressing
with her treatment plan. The State further advised that the
Tribe was aware of the status of the case and apparently
would not intervene or assume jurisdiction. At the subsequent
six-month review hearing on August 26, 2014, based on
Mother's continuing treatment plan progress and parallel
stipulation to a permanent kinship guardianship for A.O., the
District Court granted the State's ...