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In re J.J.C.

Supreme Court of Montana

December 27, 2018

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.

          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

          OPINION

          Mike McGrath, Chief Justice.

         ¶1 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 affirm.

         ¶2 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.

         PROCEDURAL AND FACTUAL BACKGROUND

         ¶3 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 R.G.[1] 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.

         ¶4 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 and children.

         ¶5 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.

         ¶6 The children were adjudicated as YINCs on November 3, 2016, and July 27, 2017. The District Court ordered Mother to complete a treatment ...


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