IN THE MATTER OF: A.L.D., A Youth in Need of Care.
Submitted on Briefs: April 11, 2018
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.
Appellant: Briana E. Kottke, Stack & Kottke, PLLC,
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.
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
AND FACTUAL BACKGROUND
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
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.
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.
1. Did the Department provide the active efforts required
under 25 U.S.C. § 1912(d) to prevent the
breakup of an Indian family?
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 ...