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In re B.Y.

Supreme Court of Montana

December 18, 2018

IN THE MATTER OF: B.Y. And R.Y., Youths in Need of Care.

          Submitted on Briefs: November 8, 2018

          APPEAL FROM: District Court of the Eighth Judicial District, In and For the County of Cascade, Cause Nos. ADN 16-008 and ADN 16-009 Honorable Gregory G. Pinski, Presiding Judge

          For Appellant: Shannon Hathaway, Montana Legal Justice, PLLC, Missoula, Montana

          For Appellee: Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana Josh Racki, Cascade County Attorney, Valerie Winfield, Deputy County Attorney, Great Falls, Montana

          OPINION

          Gustafson Ingrid, Justice

         ¶1 T.Y. (Father) appeals the Eighth Judicial District Court, Cascade County's February 20, 2018 Order terminating his parental rights to his children B. Y. (born in 2011) and R.Y. (born in 2012) (Children). Although a separate cause number was assigned for each child's case, proceedings occurred simultaneously in the District Court with shared facts and procedural histories. We consolidated these two cases for purposes of appeal. We reverse and remand for further action consistent with this opinion.

         ¶2 The issue on appeal is:

         Whether the District Court erred in terminating Father's parental rights?

         FACTUAL AND PROCEDURAL BACKGROUND

         ¶3 On January 8, 2016, the Child and Family Services Division of the Montana Department of Public Health and Human Services (Department) filed a Petition for Emergency Protective Services, Adjudication of Child as Youth in Need of Care (YINC), and Temporary Legal Custody regarding the Children due to concerns of physical neglect. Father moved Children to their paternal grandmother's (Grandmother's) care after discovering S.Z. (Mother) had left Children by themselves. After two days without hearing from Father, Grandmother called the Department because she was unable to care for them. The Children were adjudicated as YINC on February 19, 2016. The court found Father's treatment plan was appropriate and ordered it on March 4, 2016.

         ¶4 The first Department affidavits state the Children may be Indian children under the Indian Child Welfare Act (ICWA), but the Department argued in its Petition that it had not been able to provide the "active efforts" required by ICWA prior to removal because neither parent was available to care for Children. The Department sent notices to the Chippewa Cree, Little Shell Chippewa, Blackfeet, Confederated Salish and Kootenai (CSK), and the Turtle Mountain Band of Chippewa. All tribes responded that the Children were not enrolled or enrollable except CSK, which did not respond.

         ¶5 On August 14, 2017, the Department petitioned to terminate Father's parental rights to Children based on § 41-3-609(1)(f), MCA, citing his failure to complete a treatment plan and asserting he was unlikely to change within a reasonable time. The court scheduled a review hearing on August 18, 2017, and a termination hearing on November 15, 2017. At the November hearing the court gave the parents another 90 days to complete their treatment plans. On February 14, 2018, the court held another termination hearing at which the Department presented evidence that its primary concern was parenting ability.

         ¶6 On February 20, 2018, two years and one day after the Children were removed, the District Court issued an Order terminating Father's parental rights. The Order found the Children were Indian children and that their known tribal affiliation is CSK and Little Shell Chippewa (even though the Little Shell Chippewa had responded on November 3, 2017 that neither child was eligible, and CSK had never responded at all). Neither hearing transcripts nor written orders discuss how the Department made "active efforts" before removal and before termination.[1] Father appeals.

         STANDARD ...


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