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
Appellant: Kelly M. Driscoll, Montana Legal Justice, PLLC,
Appellee: Timothy C. Fox, Montana Attorney General, Katie F.
Schulz, Assistant Attorney General, Helena, Montana Eileen
Joyce, Silver Bow County Attorney, Butte, Montana
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
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.
AND FACTUAL BACKGROUND
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.
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.
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.
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
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.
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