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In re P.T.D.

Supreme Court of Montana

August 22, 2018

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

          Submitted on Briefs: May 9, 2018

          APPEAL FROM: DISTRICT COURT OF THE TWELFTH JUDICIAL DISTRICT, IN AND FOR THE COUNTY OF HILL, CAUSE NO. DN-15-010 HONORABLE DANIEL A. BOUCHER, PRESIDING JUDGE .

          FOR APPELLANT: SUSAN CALLAGHAN, CALLAGHAN LAW, PLLC, BUTTE, MONTANA

          FOR APPELLEE: TIMOTHY C. FOX, MONTANA ATTORNEY GENERAL, KATIE F. SCHULZ, ASSISTANT ATTORNEY GENERAL, HELENA, MONTANA

          JESSICA COLE-HODGKINSON, HILL COUNTY ATTORNEY, HAVRE, MONTANA

          Mike McGrath Chief Justice.

         ¶1 This is an appeal from a Twelfth Judicial District Court order terminating the parental rights of A.M., the putative father of P.T.D. We affirm.

         ¶2 We restate the issue on appeal as follows:

         Whether the District Court was required to comply with the requirements of the Indian Child Welfare Act when terminating A.M.'s parental rights.

         PROCEDURAL AND FACTUAL BACKGROUND

         ¶3 P.T.D. was born on February 28, 2014. In early March 2015, P.T.D. was taken from his birth mother's (Birth Mother) care after Birth Mother was found passed out and intoxicated while P.T.D. was in her custody. On March 3, 2015, the Department of Public Health and Human Services, Child and Family Services Division (the Department) filed a Petition for Emergency Protective Services, Adjudication as Youth in Need of Care and Temporary Legal Custody, identifying P.T.D. as an Indian child subject to the Indian Child Welfare Act (ICWA). P.T.D. is a member of or eligible for membership in the Fort Peck Indian Tribe.

         ¶4 On March 4, 2015, the District Court signed an order granting the Department's petition for emergency protective services and scheduled a show cause hearing. That same day, the Department sent notice of the March 12, 2015 show cause hearing to the Fort Peck Indian Tribe. Although Birth Mother was successfully served with the Department's petition and show cause order, A.M. was unable to be located. On March 11, 2015, the Department filed a motion to dismiss the petition because P.T.D.'s maternal great-aunt was given custody by the Fort Peck Tribal Court. The District Court dismissed the case on March 12, 2015.

         ¶5 On May 19, 2015, P.T.D.'s maternal great-aunt gave up custody. At that time, Birth Mother was incarcerated for underage drinking and treatment court violations. P.T.D. was then placed with his maternal aunt. On May 29, 2015, the Department filed a second Petition for Emergency Protective Services, Adjudication as Youth in Need of Care and Temporary Legal Custody. On June 2, 2015, the District Court ordered Birth Mother and A.M. to appear for a show cause hearing on June 12, 2015. A notice was also sent to the Fort Peck Indian Tribe regarding the Department's petition and District Court's order for a show cause hearing. The hearing was reset for June 22, 2015, because no qualified expert witness was available to testify as to P.T.D.'s placement.

         ¶6 At the June 22 show cause hearing Trudy Johnson, an ICWA qualified expert witness, testified that placement with P.T.D.'s maternal aunt was appropriate. On June 26, 2015, the District Court granted the Department's May 29 petition for temporary legal custody and adjudicated P.T.D. as a youth in need of care, based on the stipulation of the parties. The District ...


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