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In re L.A.G.

Supreme Court of Montana

October 16, 2018

IN THE MATTER OF: L.A.G. and N.L., Youths in Need of Care.

          Submitted on Briefs: September 19, 2018

          APPEAL FROM: District Court of the Eighth Judicial District, In and For the County of Cascade, Cause Nos. ADN 16-175 and ADN-16-176 Honorable Gregory G. Pinski, Presiding Judge

          For Appellant: Kelly M. Driscoll, 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, Valerie M. Winfield, Deputy County Attorney, Great Falls, Montana

          BETH BAKER JUDGE.

         ¶1 A.G. (Mother) appeals an order of the Eighth Judicial District, Cascade County, terminating her parental rights to her children, L.A.G. and N.L. Mother argues (1) that the District Court failed to follow the Indian Child Welfare Act (ICWA) when it proceeded through termination without a conclusive determination on the children's status in all Indian Tribes with which the children may have been affiliated, (2) that the District Court failed to address whether the Department of Public Health and Human Services made "active efforts" to provide remedial services and rehabilitative programs designed to prevent the breakup of an Indian family, and (3) that the Department wrongfully relied on a new theory of abandonment in its closing arguments at the termination hearing. We reverse and remand with instructions regarding ICWA compliance.

         PROCEDURAL AND FACTUAL BACKGROUND

         ¶2 Two-year-old L.A.G. and newborn N.L. were removed from their mother's care and placed into emergency protective custody in June 2016, the day after N.L.'s birth, due to Mother's admitted methamphetamine use in early pregnancy, lack of prenatal care, positive drug test at the birth of N.L., and the children's exposure to domestic violence. On June 9, 2016, the Department filed a Petition for Temporary Investigative Authority and Emergency Protective Services for each child. The petitions indicated that the Department believed both L.A.G. and N.L. were Indian children and subject to ICWA. In the petition, the Department stated that it had requested verification of the enrollment eligibility of L.A.G. and N.L. from the Blackfeet Tribe. The Department also stated it had sought verification regarding N.L. from the Little Shell Tribe of Chippewa Indians and the Chippewa Cree Tribe. The record shows that notice of involuntary child custody proceedings was sent to the Blackfeet Tribe with respect to L.A.G. and to the Blackfeet Tribe, Little Shell Tribe of Chippewa Indians, and the Chippewa Cree Tribe with respect to N.L. The Department filed signed Certified Return Receipts from the Blackfeet Tribe and the Little Shell Tribe confirming their receipt of the notification. No Certified Return Receipt was filed confirming the Chippewa Cree Tribe's receipt.

         ¶3 The Blackfeet Tribe wrote letters to the Department stating that L.A.G. and N.L. were not eligible for enrollment and did not qualify as Indian children. Initially, the Little Shell Tribe sent a letter stating that the children were not enrolled members or eligible for enrollment; that letter, however, contained incorrect names for the children's birth parents and an incorrect birthdate for N.L. Five months later, the Little Shell Tribe notified the court that Mother was in the final stages of enrolling. The Department never filed verification concerning either child's status in the Chippewa Cree Tribe.

¶4 On June 24, 2016, Mother met with Child Protective Specialist Micaela Stroop and reported that she was working with the Indian Health Center (IHC) on chemical dependency issues. Mother signed a release for the Department to request records from IHC but refused to allow the Department to give IHC collateral information or to sign any other releases.

         ¶5 In early July 2016, the Department filed a supplemental affidavit stating that L.A.G.'s tribal affiliations were Chippewa Cree and Blackfeet and that notices had been sent to both tribes. Yet, the record reflects that it did not send notice to the Chippewa Cree Tribe regarding L.A.G. The only notice of hearing to the Chippewa Cree Tribe filed in L.A.G.'s case register had N.L.'s name on it with L.A.G.'s case number. The Department did not submit proof of notice to the Chippewa Cree Tribe that had L.A.G.'s name on it.

         ¶6 On July 29, 2016, the District Court held a show cause hearing. Mother was present and stipulated to temporary investigative authority, which the court granted. In the beginning of August 2016, Mother relocated from Great Falls to Missoula. On October 14, 2016, the Department filed its petition to adjudicate both children as youths in need of care and for temporary legal custody. Between the time the Department received temporary investigative authority and the petition for temporary legal custody, Mother had four positive urinalysis (UA) results, one for methamphetamine and amphetamine and three for opiates. Mother also had missed three UA call-ins and a scheduled meeting with child protection specialists.

         ¶7 After three continuances, the adjudicatory hearing was set for January 20, 2017. A week before the scheduled hearing and without the aid of her court-appointed counsel, Mother petitioned the District Court to transfer the case to the Little Shell Tribe of Chippewa Indians, citing 25 U.S.C. § 1911(b). Mother also claimed that she was "a direct descendant of the Rocky Boy Band of Chippewa Indians, as are [her] daughters, and qualify but have not yet sought enrollment in that tribe." Mother stated that she "retain[ed] [her] right to petition for transfer to [the Chippewa Cree] tribe as a second option." Mother served the petition on Child Protection Specialist Kayla Moodie, the children's placement, and the Little Shell Tribe of Indians; she failed, however, to serve the birth fathers or the other Tribes. The Little Shell Chairman then wrote a letter to the District Court requesting that the children be placed with family members or within the Little Shell Tribe. The Department filed its response, arguing that the Little Shell Tribe did not have the "appropriate powers and authorities to assume jurisdiction in this case" because it is not a federally recognized tribe. The Department also acknowledged that ...


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