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In re A.L.D.

Supreme Court of Montana

May 8, 2018

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

          Submitted on Briefs: April 11, 2018

          APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DN 15-258 Honorable Russell C. Fagg, Presiding Judge.

          For Appellant: Briana E. Kottke, Stack & Kottke, PLLC, Missoula, Montana.

          For Appellee: Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana, Scott D. Twito, Yellowstone County Attorney, Mike Anderson, Deputy County Attorney, Billings, Montana.

          OPINION

          Beth Baker Justice.

         ¶1 Appellant M.D. (Father) challenges the Thirteenth Judicial District Court's decision to terminate his parental rights to his minor child, A.L.D. Father contends that the State of Montana's Department of Public Health and Human Services (Department) did not provide the active efforts required under 25 U.S.C. § 1912(d) to prevent the breakup of an Indian family; that A.L.D. was placed in a foster home in violation of the placement preferences set forth in 25 U.S.C. § 1915; and that Father's attorney provided ineffective assistance of counsel. We affirm.

         PROCEDURAL AND FACTUAL BACKGROUND

         ¶2 It is undisputed that A.L.D. is an Indian child for purposes of the Indian Child Welfare Act (ICWA), 25 U.S.C. §§ 1901 through 1923. Both A.L.D. and her mother tested positive for methamphetamine, amphetamine, and marijuana at A.L.D.'s birth in July 2015. At that time, Father was requesting a DNA test to establish his paternity. The Department initiated child custody proceedings based on physical neglect because of the birth parents' inability to meet A.L.D.'s basic needs and provide her a safe environment.

         ¶3 Two years later, the District Court terminated the parental rights of both parents. Father, who had been in and out of jail throughout the case, did not attend the termination hearing, although his attorney was present. The court found that the Department had made active efforts to prevent the breakup of this Indian family and that it had presented evidence establishing beyond a reasonable doubt that Father's treatment plan had not been successful, his conduct or condition is unlikely to change within a reasonable time, continuation of the parent-child relationship between A.L.D. and Father will likely result in continued abuse and neglect, and the best interests of A.L.D. will be served by termination.

         STANDARDS OF REVIEW

         ¶4 In a case governed by ICWA, we will uphold the district court's termination of parental rights if a reasonable fact-finder could conclude beyond a reasonable doubt that continued custody by the parent is likely to result in serious emotional or physical damage to the child, and we review the court's application of the law to the facts of the case for correctness. In re K.B., 2013 MT 133, ¶ 18, 370 Mont. 254, 301 P.3d 836. We exercise plenary review to determine whether a parent was denied effective assistance of counsel in a termination proceeding. In re A.S., 2004 MT 62, ¶ 9, 320 Mont. 268, 87 P.3d 408.

         DISCUSSION

         ¶5 1. Did the Department provide the active efforts required under 25 U.S.C. § 1912(d) to prevent the breakup of an Indian family?

         ¶6 ICWA requires proof beyond a reasonable doubt that a state seeking termination of parental rights to an Indian child has made "active efforts" to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that those efforts were unsuccessful. 25 U.S.C. § 1912(d). The Department's caseworker testified at the termination hearing that the Department had offered to make appointments for chemical dependency testing for Father, but that he did not agree to get tested. The Department set up visits between A.L.D. and Father, who attended only three visits over a two-year period. The Department's caseworker further testified that Father had been incarcerated off-and-on during the time the case was open and that he failed repeatedly to ...


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