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In re S. R.

Supreme Court of Montana

February 21, 2019

IN THE MATTER OF: S.R. and C.R., Youths in Need of Care.

          Submitted on Briefs: October 24, 2018

          APPEAL FROM: District Court of the Second Judicial District, In and For the County of Butte/Silver Bow, Cause No. DN 16-87-BN Honorable Brad Newman, Presiding Judge

          For Appellant: Briana E. Kottke, Stack & Kottke, PLLC, Missoula, Montana

          For Appellee: Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana

          OPINION

          DIRK M. SANDEFUR Judge

         ¶1 Birth mother C.C. appeals the judgment of the Montana Second Judicial District Court, Silver Bow County, terminating her parental rights to her minor children, S.R. and C.R., for failure to comply with a reunification-oriented treatment plan. We restate the dispositive issue as:

Whether the District Court erroneously terminated Mother's parental rights without properly determining whether the children were Indian children?

         ¶2 We affirm.

         FACTUAL AND PROCEDURAL BACKGROUND

         ¶3 Appellant C.C. (Mother) and P.R. (Father) are the birth parents of two children (S.R. and C.R.).[1] The Child and Family Services Division of the Montana Department of Public Health and Human Services (Department) first became involved with S.R. and C.R. (then ages four and ten respectively) under Title 41, ch. 3, MCA, in October 2016 upon information that Mother and Father were using and distributing dangerous drugs (unauthorized prescription drugs, methamphetamine, and marijuana) in and out of the family home.[2] The Department initially worked with the parents on a voluntary basis under a voluntary protection plan but later filed district court petitions seeking emergency protective services (EPS), adjudication of the children as youth in need of care, and temporary legal custody (TLC). The petitions essentially alleged that the children were neglected, or in danger of neglect, based on the parents' illegal drug use and activity, and related concerns regarding the cleanliness of the family home. The Department's supporting affidavits further alleged that, to the best of the Department's knowledge and belief, the children were not Indian children as defined by the federal Indian Child Welfare Act (ICWA), 25 U.S.C. § 1901, et seq.

         ¶4 On December 21, 2016, Mother and Father respectively appeared, personally and through assigned counsel, for the initial show cause hearing.[3] Through counsel, Mother asserted that S.R. and C.R. may be Indian children for the purposes of ICWA based on Mother's belief that she may be eligible for enrollment in the Crow Indian Tribe. Father's counsel similarly asserted that the children may be eligible for tribal enrollment. The Department social worker responded that she had no reason to believe that the children were Indian children due to the parents' lack of cooperation and her assertion that the paternal grandparents had told her that neither parent was eligible for tribal enrollment. The Department thus moved the District Court to proceed on a non-ICWA basis pending further information.

         ¶5 The parents did not dispute the central allegations of neglect set forth in the Department's petitions. However, as an alternative to proceeding to youth in need of care adjudications and TLC, Mother requested that the court instead grant the Department temporary investigative authority (TIA) pending notice and receipt of conclusive Crow Tribe determination of the enrollment eligibility of the children. The Department opposed the interim TIA proposal, asserting that it would serve no purpose other than to delay adjudication, TLC, and imposition of reunification-oriented treatment plans. The Department social worker nonetheless assured the court that she would meet with Mother after the hearing to discuss Mother's asserted Crow Tribe affiliation and then make inquiry as appropriate. The District Court thus rejected the interim TIA proposal and instead elected to proceed with adjudications as requested by the Department. By subsequent stipulation, the court granted the Department EPS, adjudicated the children as youth in need of care as defined by § 41-3-102(34), MCA, and granted the Department TLC for a period of six months. At the subsequent dispositional hearing on February 8, 2017, the court adopted and imposed Department-proposed treatment plans for the parents.

         ¶6 Four months later, on June 12, 2017, the Department petitioned the court to extend TLC for an additional six months to allow the parents more time to work on their treatment plans. Inter alia, and without reference to what efforts, if any, the Department had made to obtain determinations of enrollment eligibility from the Crow Tribe, the Department's supporting affidavit again asserted that the children were not Indian children to the best of its knowledge. The District Court subsequently granted the requested extension of TLC at hearing on July 19, 2017.

         ¶7 In November 2017, the Department petitioned the court for termination of the parents' respective parental rights and permanent legal custody based on alleged treatment plan failure. At the termination hearing on February 28, 2018, the District Court admitted into evidence a March 2017 letter from the Crow Tribe informing the Department that the child C.R. was neither enrolled nor enrollable in the Tribe based on the fact that neither parent was enrolled or enrollable. The letter did not reference S.R. The Department social worker testified that the Department had received a separate letter from the Crow Tribe stating that S.R. was similarly not enrolled or eligible for tribal enrollment. However, the Department did not offer the purported letter into evidence at the hearing. The social worker explained that she did not bring the letter regarding S.R. to court because she thought the letter regarding C.R. would suffice since the children had the same parents.

         ¶8 On the evidence presented at hearing, the District Court issued findings of fact, conclusions of law, and judgments terminating the parents' respective parental rights to the children due to treatment plan failure and thus granted the Department permanent legal custody. In pertinent part, the written judgments indicated that the court terminated the parents' respective parental rights based on the non-ICWA standard of proof (clear and convincing evidence) specified by § 41-3-609(1), MCA. The court's findings, conclusions, and judgments did not reference ICWA or include any finding regarding the tribal enrollment eligibility of either child. Mother timely appeals.

         STANDARD OF REVIEW

         ¶9 We review parental rights terminations under Title 41, ch. 3, MCA, for an abuse of discretion based on compliance with applicable Montana statutory and ICWA standards. In re L.D., 2018 MT 60, ¶ 10, 391 Mont. 33, 414 P.3d 768; In re D.B., 2007 MT 246, ¶ 16, 339 Mont. 246, 168 P.3d 691. An abuse of discretion occurs if a court exercises discretion based on a clearly erroneous finding of fact, erroneous conclusion of law, or otherwise acts arbitrarily, without employment of conscientious judgment, or in excess of the bounds of reason resulting in substantial injustice. In re D.E., 2018 MT 196, ¶ 21, 392 Mont. 297, 423 P.3d 586; D.B., ¶¶ 16-18. Findings of fact are clearly erroneous only if not supported by substantial evidence, the lower court misapprehended the effect of the evidence, or upon our review of the record we have a definite and firm conviction that the district court was mistaken. L.D., ¶ 10; In re D.H., 2001 MT 200, ¶ 14, 306 Mont. 278, 33 P.3d 616. We review conclusions of law de novo for correctness. In re M.W., 2004 MT 301, ¶ 16, 323 Mont. 433, 102 P.3d 6.

         DISCUSSION

         ¶10 Whether the District Court erroneously terminated Mother's parental rights without properly determining whether the children were Indian children?

         ¶11 The United States Congress enacted ICWA in 1978 to "protect the best interests of Indian children and to promote the stability and security of Indian tribes and families. . . ." 25 U.S.C. § 1902. ICWA manifests the Congressional determination and policy that the preservation and protection of the relationship between Indian children and related Indian tribes is in the best interests of the children and essential to the continued existence of the tribes. Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 49-53, 109 S.Ct. 1597, 1609-11 (1989) (noting that ICWA vests Indian tribes with a right and interest in related Indian children "distinct from but on a parity with the interest of the parents"). See also 25 U.S.C. § 1901(5) (states "have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families"); 25 U.S.C. § 1902; 25 C.F.R. § 23.3. In furtherance of this clearly stated federal policy, ICWA imposes heightened federal standards for the removal of Indian children from Indian families. See, e.g., 25 U.S.C. §§ 1902, 1911, and 1912(d)-(f) (policy, tribal jurisdiction and right of intervention in state court proceedings, and over-arching requirements for active remedial efforts, qualified expert testimony, and proof beyond a reasonable doubt). ICWA broadly applies to state law "child custody proceedings," as defined by 25 U.S.C. § 1903(1), involving "Indian child[ren]," as defined by 25 U.S.C. § 1903(3)-(8). See 25 U.S.C. § 1912.

         ¶12 Like all parents, Indian parents have fundamental federal and Montana constitutional rights in the custody and care of their children. In re A.R.A., 277 Mont. 66, 70-71, 919 P.2d 388, 391 (1996); In re Guardianship of Doney, 174 Mont. 282, 286, 570 P.2d 575, 577 (1977); Troxel v. Granville, 530 U.S. 57, 65-67, 120 S.Ct. 2054, 2059-60 (2000); Stanley v. Ill., 405 U.S. 645, 652, 92 S.Ct. 1208, 1213 (1972). Regardless of Montana's compelling interest in protecting children from abuse and neglect, [4] state and federal constitutional rights to due process of law at a minimum require that state legal processes for suspension or termination of parental rights be fundamentally fair and that states substantially comply with all applicable state and federal statutory requirements for suspension or termination of parental rights. See In re M.A.E., 1999 MT 341, ¶ 18, 297 Mont. 434, 991 P.2d 972); In re J.N., 1999 MT 64, ¶ 12, 293 Mont. 524, 977 P.2d 317; In re R.B., 217 Mont. 99, 103, 703 P.2d 846, 848 (1985). Thus, in suspending or terminating parental rights based on abuse, neglect, or abandonment as defined by §§ 41-3-102(1) and (3), MCA, district courts must substantially comply, and make sufficient findings of fact manifesting compliance, with applicable requirements of Title 41, ch. 3, MCA, and ICWA. L.D., ¶ 13; D.B., ¶¶ 17-18; In re J.V., 2003 MT 68, ¶ 7, 314 Mont. 487, 67 P.3d 242; M.A.E., ¶ 18; J.N., ¶ 12; R.B., 217 Mont. at 103, 703 P.2d at 848.

         ¶13 Whether ICWA applies to a proceeding under Title 41, ch. 3, MCA, depends on whether a child is an Indian child. See 25 U.S.C. § 1912(a). ICWA defines an "Indian child" as an unmarried person under the age of eighteen who is either "a member of an Indian tribe" or "eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe." 25 U.S.C. § 1903(4). See also 25 U.S.C. § 1903(3), (5) (defining related terms "Indian" and "Indian child's tribe"). The threshold determination of whether a child is an Indian child is equally critical and determinative of the governing legal standards for temporary "foster care placement" and termination of parental rights proceedings. See 25 U.S.C. §§ 1903(1)(i)-(ii) and 1912(a); 25 C.F.R. § 23.2 ("foster care placement" and termination proceedings are separate "proceedings" for purposes of ICWA).

         ¶14 Emergency removals, [5] "foster care placement" proceedings, and termination proceedings are distinct "proceedings" under ICWA. See 25 U.S.C. §§ 1903(1)(i)-(ii), 1912(a), 1922; 25 C.F.R. § 23.2. A "foster care placement" is a temporary court-ordered placement, or proceeding therefor, of "an Indian child [away] from [a] parent or Indian custodian . . . where the parent or Indian custodian cannot have the child returned upon demand. . . ." 25 U.S.C. §§ 1903(1)(i), 1912(e); 25 C.F.R. § 23.2 (defining "child-custody proceeding"). Except where not involving a temporary removal and placement of the child, proceedings under Title 41, ch. 3, MCA, for EPS, [6] TIA, [7] and TLC[8] are "foster care placement" proceedings as defined by 25 U.S.C. § 1903(1)(i) and referenced in 25 U.S.C. § 1912. See 25 U.S.C. §§ 1912(a), (d)-(f); In re H.T., 2015 MT 41, ¶¶ 36-38, 378 Mont. 206, 343 P.3d 159.[9]See also §§ 41-3-109, -301(7), -422(5)(b), (6)(a), -423(2), -427(1), (2), -432, -433, -437(2), (8), -438(3)(f), -442, MCA; In re A.K.H., 502 N.W.2d 790, 792-93 (Minn.App. 1993) (temporary placement of child in ...


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