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In re S.B.

Supreme Court of Montana

December 3, 2019

IN THE MATTER OF: S.B. and A.T., Youths in Need of Care.

          Submitted on Briefs: October 2, 2019

          District Court of the Second Judicial District, In and For the County of Butte-Silver Bow, Cause Nos. DN 17-31-BN, DN17-32-BN. Honorable Ed McLean, 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 Eileen Joyce, Silver Bow County Attorney, Butte, Montana


         ¶1 J.B. (Father) appeals the orders of the Second Judicial District Court, Butte-Silver Bow County, terminating his rights to S.B. and A.T. (Children). We restate the issues on appeal as follows:

1. Whether the District Court 's failure to apply the Indian Child Welfare Act (ICWA) during the first year of the case requires reversal;
2. Whether the Department of Public Health and Human Services, Child and Family Services Division (Department) failed to provide proper notice of the proceedings to the Little Shell Tribe as required by ICWA;
3. Whether the Department provided Father with active efforts to reunify his family;
4. Whether the District Court failed to apply the correct standards when terminating Father's parental rights.

         ¶2 We affirm.


         ¶3 Father and S.T. (Mother) are the birthparents of Children. The Department first became involved with the family in 2014 after the birth of their oldest child, S.B., when the Department received a report Mother could not meet S.B.'s basic needs. Mother and Father were not living together at the time. Mother struggled with untreated mental health issues and unstable housing. The Department's involvement ended when Mother placed S.B. in Father's care. At some point after placing S.B. with Father, Mother moved in with Father. Over the next year, the Department received reports alleging drug use and violence in the home. After one incident, the Department put a protection plan in place. Under the protection plan, Mother moved out of Father's home, the Department monitored Father's substance use, Father's sister and brother-in-law monitored visit exchanges between the parents, and the Department encouraged the parents to enter into a parenting plan.

         ¶4 Nine months later, Mother gave birth to A.T. The Department intervened at A.T. 's birth when it received reports Mother was not actively treating her mental health needs, showed signs of paranoia, and reported she did not have formula and A.T. would starve when she took the child home. The Department filed for Temporary Investigative Authority (TIA) and put an in-home safety plan with Father in place.

         ¶5 In March 2017, the Department received reports Father was emotionally unstable, using marijuana, and drinking heavily. Reports alleged Father yelled and screamed at Children and during one incident placed a knife against his throat in front of Children and threatened suicide. Child Protection Specialist (CPS) Jodi Burk made an unannounced home visit to Father on March 21, 2017, and Father admitted he used marijuana, was depressed, and was struggling emotionally since his mother passed away in January 2017.

         ¶6 Three days later the Department received a new incident report. Reportedly, on the night of March 24, Father was intoxicated and very upset. Father woke S.B. up and told her he was going to kill himself and that he was never coming back. Father then left the home. After he left, his roommate called Mother to be with Children. Mother arrived highly intoxicated. When Father returned, he was upset Mother was at the house and called law enforcement. Mother and Father got into a physical altercation while Mother was holding one of their children. In the course of the struggle, Mother punched Father in the face, and Father lost a tooth. Mother told law enforcement she punched Father because he was being too aggressive, and Father was arrested for Partner or Family Member Assault.

         ¶7 CPS Burk met with Mother and Father separately the following day and took their accounts of the prior evening. The Department removed Children and filed petitions for Emergency Protective Services (EPS), adjudication as Youths in Need of Care (YINC), and Temporary Legal Custody (TLC) on March 29, 2017, due to concerns of domestic violence, the parents' mental health, and marijuana and alcohol use by both parents. The Department sent notice of the petition to the Little Shell Tribe of Chippewa Indians via registered mail and filed the return receipt with the court.

         ¶8 At the first hearing on April 19, 2017, Mother stipulated to adjudication of Children as YINC. Father's counsel had not received the petitions and sought continuance so Father could contest the adjudication. The District Court accepted Mother's stipulation and continued the proceedings with regard to Father. At that hearing, Father's counsel reported Children are Indian children such that ICWA applied. The Department responded it had reached out to the Little Shell Tribe of Chippewa Indians to inquire whether Children were enrollable and had been informed that, because the tribe was not federally recognized, ICWA did not apply. The court questioned this testimony, indicating the Little Shell had been recognized by Montana for years and the state had long ...

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