IN THE MATTER OF: J.J.C. and R.G., Youths in Need of Care.
Submitted on Briefs: November 28, 2018
District Court of the Eighth Judicial District, In and For
the County of Cascade, Cause Nos. BDN 16-112 and BDN 17-104
Honorable Elizabeth Best, Presiding Judge.
Appellant: Kelly M. Driscoll, Montana Legal Justice, PLLC,
Appellee: Timothy C. Fox, Montana Attorney General, Katie F.
Schulz, Assistant Attorney General, Helena, Montana
A. Racki, Cascade County Attorney, Valerie M. Winfield,
Deputy County Attorney, Great Falls, Montana
McGrath, Chief Justice.
M.J. (Mother) appeals from an Eighth Judicial District Court
order terminating her parental rights to her two children,
J.J.C. and R.G., ages nine and three, respectively. We
We restate the issue on appeal as follows:
Whether the District Court abused its discretion when it
continued with child custody proceedings before conclusively
determining the children's Indian status.
AND FACTUAL BACKGROUND
In 2009, due to concerns about Mother's drug use, the
Department of Public Health and Human Services, Child and
Family Services Division (the Department) became involved
with Mother. In 2011, Mother entered into a voluntary
services agreement with the Department. Between 2011 and
2016, the Department continued to receive reports alleging
Mother was using drugs. In 2016, after receiving a report
that Mother was using methamphetamine and dealing drugs out
of her apartment, the Department petitioned for Temporary
Investigative Authority (TIA) and later adjudication as
youths in need of care (YINC) and temporary legal custody
(TLC) of Mother's three children: J.J.C., K.J., and
The children's birth Fathers are: J.C., W.H., and T.G.,
respectively. The Department alleged that a hair follicle
test performed on J.J.C. tested positively for
methamphetamine. This petition was the first of two petitions
for adjudication and TLC in J.J.C.'s case and the first
of three in R.G.'s case.
In affidavits supporting the TIA and TLC petitions, Child
Protection Specialists (CPS) noted they had no reason to
believe that any of the children were subject to the Indian
Child Welfare Act (ICWA). However, at a May 2016 show cause
hearing, the District Court was notified that ICWA possibly
applied to K.J. considering K.J.'s father received
benefits from the Arapahoe Tribe. The benefits signaled
potential for K.J. to meet the "Indian child"
designation of ICWA. Yet, further correspondence with the
Arapahoe Tribe conclusively determined that ICWA was
inapplicable to K.J. The District Court granted the
Department authority to investigate and work with the parents
In October 2016, the Department again filed petitions for
adjudication as YINC and TLC for all three children. CPS
Mariesa Wallis submitted three identical affidavits in
support which included the statement: "To the best of my
knowledge and belie[f] the child is an Indian Child subject
to [ICWA]." Wallis' affidavit did not reference
specific tribes or details concerning possible tribal
affiliations. The petition and accompanying affidavits are
the sole documents in the record suggesting J.J.C. or R.G.
were Indian children.
The children were adjudicated as YINCs on November 3, 2016,
and July 27, 2017. The District Court ordered Mother to
complete a treatment ...