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In re K.L.

Supreme Court of Montana

October 29, 2019

IN THE MATTER OF: K.L., A Youth in Need of Care.

          Submitted on Briefs: September 4, 2019

          APPEAL FROM: District Court of the Eighth Judicial District, In and For the County of Cascade, Cause No. BDN-17-007 Honorable Elizabeth A. Best, Presiding Judge

          For Appellant: Gregory D. Birdsong, Birdsong Law Office, PC, Santa Fe, New Mexico

          For Appellee: Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana Joshua A. Racki, Cascade County Attorney, Great Falls, Montana

          OPINION

          INGRID GUSTAFSON JUDGE.

         ¶1 A.P. (Father) appeals from the Order entered February 15, 2019, by the Eighth Judicial District Court, Cascade County, terminating his parental rights to K.L. (Child). Father raises the following issue on appeal:

Whether the Department of Public Health and Human Services, Child and Family Services Division (the Department) engaged in active efforts to provide Father with remedial services and rehabilitative programs to prevent the breakup of Child's family as required by 25 U.S.C. § 1912(d).

         ¶2 We reverse and remand for further proceedings consistent with this Opinion.

         PROCEDURAL AND FACTUAL BACKGROUND

         ¶3 Father and C.L. (Mother) are the birthparents of Child. Mother is an enrolled member of the Little Shell Tribe of Chippewa Indians and Child is eligible for enrollment in that tribe. Although Father is not Native American, there is no dispute Child is an Indian child and that the Indian Child Welfare Act (ICWA) applies to the proceedings in this case. See Bureau of Indian Affairs, Guidelines for Implementing the Indian Child Welfare Act 13 (Dec. 2016), https://perma.cc/2JZM-YAUZ (2016 Guidelines) ("[A] non-Indian parent may avail himself or herself of protections provided to parents by ICWA if her child is an 'Indian child.'").

         ¶4 The Department removed Child at birth due to Mother's drug use. Mother and Child both tested positive for methamphetamine. At the time of Child's birth, the Department had pending petitions filed with the District Court to terminate Mother's parental rights to three of her other children and the court already had awarded custody to the birthfather of a fourth child. Mother told Child Protection Specialist Grant Van Vranken (CPS) that the birthfather of Child was significantly older than her, he had a violent history, and she was afraid he would kill her and the baby. Mother gave CPS the incorrect name for Father and the Department was unable to immediately locate him. Based on Mother's report to CPS, the Department considered Father an offending parent at the time of Child's removal. The Department filed a Petition for Emergency Protective Services (EPS), Adjudication of Child as Youth In Need of Care (YINC), and Temporary Legal Custody (TLC) on January 4, 2017. The Department placed Child with a maternal great aunt in Box Elder, about ninety miles from Great Falls where Mother and Father live.

         ¶5 The District Court granted EPS on January 9, 2017, and set a show cause hearing for February 9. At the time of the February 9 hearing, the Department had not located or identified Father. The court continued the emergency protective relief previously granted and set an adjudicatory hearing for March 23, 2017. The Department filed a paternity test establishing Father as the birthfather of Child on February 28, 2017.

         ¶6 Father was present at the March 23, 2017 adjudication hearing and stipulated to adjudication of Child as a YINC and stipulated to the proposed treatment plan.[1] At this time, Father was participating in the Veterans' Treatment Court (VTC). As the Department did not want to duplicate services, the Department agreed that tasks Father successfully completed in VTC would satisfy tasks delineated in his treatment plan. The treatment plan covered five areas. The plan required Father (1) to complete a chemical dependency evaluation, follow all recommendations, and submit to random drug testing; (2) to complete parenting classes and attend all visitation with Child; (3) to provide safe and stable housing; (4) to sign all information releases and maintain contact with the Department; and (5) to complete an anger management evaluation. The plan gave Father six months to complete it.

         ¶7 Father continued to participate in VTC. Throughout his participation and beyond his successful graduation from VTC on August 7, 2018, CPS repeatedly reported Father was doing well and did not indicate dissatisfaction with Father's compliance with his treatment plan or level of engagement with the Department.

         ¶8 CPS reported through December 2017 that Father was making progress and fulfilling all expectations of the Department.[2] At the December 2017 status hearing, Counsel for the Department reported Father was "doing well, maintaining his visits, working with the Department." At that hearing, the District Court heard Father was residing in Grace Home in Great Falls and would graduate from VTC in approximately six more months. It was further reported, due to the policies of Grace Home, Child could not reside with Father in that facility. While Father participated in VTC, Child remained with the placement in Box Elder ninety miles away. Father, however, was able to regularly attend and participate in visits as the Child's placement brought Child from Box Elder to Great Falls on a monthly basis. CPS did not indicate the discussed time frame for Father obtaining his own residence to be inappropriate or that Father was not completing his treatment plan and engaging with the Department as expected, but rather reported to the District Court he was "pleased with dad's progress."

         ¶9 In the permanency plan filed with the court on February 2, 2018, the Department wrote "the permanency plan for the child is reunification with the birth father once he has completed Veterans Court." Approximately one month later, the Department abruptly changed course. On March 22, 2018, CPS and his supervisor met with Father to discuss reunification and gave him a letter, advising Father that he needed to step-up his parenting by April 19 or the Department would file for termination. The Department indicated it expected that within the next month Father would take initiative and be responsible for providing his own transportation to visit Child, [3] making daycare arrangements, establishing care with a pediatrician, and securing safe and stable housing. This letter basically advised Father it was time to sink or swim as a parent. Here, over a year into the case, was the first time the Department expressed that Father was not meeting the Department's expectations in terms of compliance with his treatment plan and engagement with the Department. The Department filed a supplemental affidavit with the District Court on March 26, 2018, outlining the tasks in the letter it had given Father and the April 19 deadline. CPS later averred he told Father at the March 22 meeting that guardianship with the kinship placement was an option, but Father "refused." In response, CPS "told [Father] in no uncertain terms that Termination of Parental Rights was the only recourse if he did not comply with, and successfully complete his treatment plan."

         ¶10 Father was not able to complete the tasks the Department laid out in the letter within a month but did start to work on them and continued his participation in VTC. In May 2018 Father moved out of Grace Home and secured an appropriate residence before his Section 8 housing voucher was approved in November 2018. He cleared his record of delinquent child support and court fines in order to be eligible to have his license reinstated. He took the driver's license test.[4] Despite not having a driver's license or vehicle, from September to November, Father arranged rides with a friend to see Child in Box Elder.[5]

         ¶11 The permanency plan filed on July 11, 2018, advocated a guardianship with the current placement, leaving Father's parental rights intact. The Department explained in the plan that Father had made progress on his treatment plan, but "the progress has been painfully slow." Despite its contrary reports to the court and Father, the Department asserted "[i]t was only when the prospect of termination of his parental rights was proposed that any measurable progress was made." At the permanency plan hearing, however, counsel for the Department stated:

the proposed permanency plan for this youth is to continue to pursue possible reunification with the birthfather. [Father's counsel] was able to speak with me briefly about some progress that father has recently made as far as achieving some transportation independence. He got - is working on his driver's license, may have already gotten that, is going to buy a car. [Father's counsel] is working with him to establish some additional financial stability. He is going to prepare a timeline for the department so they can get that aggressive visitation schedule established and hopefully make some headway on possible reunification.

When asked if he had anything to add, CPS replied, "No." The Court approved the proposed permanency plan "to continue to offer reunification services to Birth Father, while maintaining Youth in his current placement."

         ¶12 Less than two months later, on September 7, 2018, the Department filed to terminate Father's parental rights for failure to complete his court-ordered treatment plan. In the petition, the Department wrote:

Birth Father addressed chemical dependency concerns through the Veteran's Treatment Court, but has no [sic] not completed a parenting class, [6] and stopped attending visits after March 22, 2018.[7] Birth Father has advised that he addressed his mental health and anger management through Veteran's Treatment Court but has not signed releases to allow the Department to verify his claim. Birth Father has safe and stable housing but has not signed releases for the Department and has not maintained regular and consistent contact with the Department. Birth Father has not completed his treatment plan and has not addressed the concerns that led to Department involvement.

In the accompanying affidavit, CPS listed the following efforts he considered to be active efforts taken by the Department:

(a) Investigation into the current report;

         (b) Review of prior reports/investigation;

(c) Interviews with collateral contacts;

         (d) Communication with Benefis Labor and Delivery / NICU;

(e) Ongoing Collaboration with placement, [M.D.];

         (f) Conducted diligent search to locate extended ...


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