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In re D.E.

Supreme Court of Montana

August 7, 2018

IN THE MATTER OF: D.E. and A.E., Youths in Need of Care.

          Submitted on Briefs: July 11, 2018

          APPEAL FROM: District Court of the Second Judicial District, In and For the County of Butte/Silver Bow, Cause Nos. DN-15-75-BN, DN-15-76-BN Honorable Brad Newman, Presiding Judge

          For Appellant: Jennifer A. Dwyer, Law Office of Jennifer Dwyer, Bozeman, Montana

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

          Eileen Joyce, Butte-Silver Box County Attorney, Mark Vucurovich, Special Deputy County Attorney, Butte, Montana

          OPINION

          INGRID GUSTAFSON JUSTICE.

         ¶1 Birth mother T.E. (Mother) appeals the Findings of Fact, Conclusions of Law and Orders Terminating Parental Rights, Re: Birth Mother issued by the Second Judicial District Court, Butte-Silver Bow County, on June 12, 2017. We reverse and remand for further proceedings consistent with this Opinion.

         ¶2 We restate the issues on appeal as follows:

1. Whether the District Court erroneously proceeded with termination of parental rights in the absence of a conclusive tribal determination regarding each child's status as an Indian child as defined by ICWA.
2. If ICWA does not apply, whether the District Court abused its discretion in terminating Mother's parental rights.

         FACTUAL AND PROCEDURAL BACKGROUND

         ¶3 This appeal concerns two siblings, D.E. (born in 2003) and A.E (born in 2006). Although a separate cause number was assigned for each child's case, proceedings occurred simultaneously in the District Court with shared factual information and procedural histories. We consolidated these cases for purposes of appeal.

         ¶4 Mother is the only surviving birth parent as D.E.'s and A.E.'s birth father died violently in June 2015. Shortly after the birth father's death, law enforcement received reports expressing concern that Mother was unable to provide for the children's needs, but no intervention occurred at that time. In August 2015, law enforcement and the Department responded to a complaint that Mother had chased the children out of the home, threatened to kill A.E., and hit D.E. with a bungee cord. Mother was arrested for partner/family member assault; the children were placed with a non-relative kinship provider.

         ¶5 On September 2, 2015, the Department of Public Health and Human Services, Child and Family Services Division (the Department) filed petitions for emergency protective services, adjudication as youths in need of care (YINC) and temporary legal custody (TLC) for D.E. and A.E. The affidavits supporting the initial petitions indicated each child was potentially an Indian child subject to the Indian Child Welfare Act (ICWA). In his supportive affidavits, Child Protection Specialist Matt Lebrun (CPS Lebrun) alleged the children may be Indian children based on a birth parent being an enrolled member of the Blackfeet Tribe.[1] CPS Lebrun indicated he would send requests for verification of Indian child status to the Tribe and that he had contacted Blackfeet Tribal Social Services for assistance in finding placement options for the children.

         ¶6 On September 4, 2015, without any supporting documentation or affidavit from an ICWA expert or anyone with authority from the Blackfeet Tribe, the Department filed a Notice of No ICWA Involvement.

         ¶7 Mother attempted to see D.E. and A.E. in violation of a no-contact order after she was released from jail. She was re-arrested. Because Mother was suicidal and a potential risk to herself and others, she was committed to the Montana State Hospital (MSH) for a month. After Mother was released from MSH and following a contested hearing, the children were adjudicated as YINC on October 28, 2015. The District Court granted the Department TLC for a period not to exceed six months under non-ICWA standards in order for Mother to address housing, chemical dependency, and mental health issues.

         ¶8 At best, the evidence the Department presented at this hearing regarding the children's ICWA status was confusing. CPS Lebrun testified that the birth father was a member of the Blackfeet Tribe, but Lebrun had contacted the Blackfeet Tribe and was orally informed the children "are not eligible [for enrollment], just they can only be descendent members." CPS Lebrun informed the District Court that ICWA thus did not apply to D.E. and A.E., but acknowledged he had not received anything in writing from the Blackfeet Tribe. There was also confusion as to Mother's exact tribal affiliation, with CPS Lebrun testifying that Mother had a "tribal affiliation," but that she had informed CPS Lebrun that she was not enrollable and thus her children would also not be enrollable. CPS Lebrun admitted he had not contacted the tribe or tribes with which Mother claimed an affiliation. The District Court ordered the Department to develop an appropriate treatment plan for Mother and set hearing for December 7, 2015.

         ¶9 At hearing on December 7, 2015, CPS Supervisor Kara Richardson (Richardson) testified contact with Mother was inconsistent, and since the Department did not have a current address for her in Great Falls, it could not set up a courtesy worker there. Based on Richardson's testimony and other evidence, the District Court approved a treatment plan for Mother which included completing a parenting and chemical dependency evaluation, signing a release of information so the Department could obtain the psychological evaluation from MSH, obtaining safe housing, maintaining contact with the Department, and addressing legal/criminal matters.

         ¶10 Mother was out of contact with CPS Lebrun until early February 2016. She then began to work with the Department. In May 2016, the Department petitioned to extend TLC and moved to approve a second treatment plan. Mother was not present at the May 18, 2016 hearing, but was represented by counsel. At that time, the Department indicated Mother was doing well: she had provided 17 negative UAs, was attending weekly counseling, and maintained adequate contact with the Department. The second treatment plan again focused on Mother addressing her mental health and chemical dependency issues and also required her to obtain and maintain safe housing and demonstrate the ability to parent. By then, Mother had secured her own residence and was attending individual ...


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