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In re L.D.

Supreme Court of Montana

March 27, 2018

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

          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.

          For Appellant: Shannon Hathaway, Montana Legal Justice, PLLC, Missoula, Montana.

          For Appellee: Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana.

          Joshua A. Racki, Cascade County Attorney, Matthew S. Robertson, Deputy County Attorney, Great Falls, Montana.

          OPINION

          Dirk Sandefur Justice.

         ¶1 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?

         We reverse and remand for further proceedings consistent with this Opinion.

         PROCEDURAL AND FACTUAL BACKGROUND

         ¶2 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.[1] 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.

         ¶3 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 dispositional hearing.

         ¶4 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 undetermined.

         ¶5 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 ...


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