Matter of P v. YINC , 2016 MT 79N ( 2016 )

March 29 2016
DA 15-0421
Case Number: DA 15-0421
IN THE SUPREME COURT OF THE STATE OF MONTANA
2016 MT 79N
IN THE MATTER OF:
P.V.,
A Youth in Need of Care.
APPEAL FROM: District Court of the Eighth Judicial District,
In and For the County of Cascade, Cause No. BDN-14-048
Honorable Thomas M. McKittrick, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Jennifer A. Giuttari, Law Office of Jennifer A. Giuttari, PLLC, Missoula,
Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant
Attorney General, Helena, Montana
John W. Parker, Cascade County Attorney, Valerie M. Winfield, Deputy
Cascade Attorney, Great Falls, Montana
Submitted on Briefs: February 24, 2016
Decided: March 29, 2016
Filed:
__________________________________________
Clerk
Justice James Jeremiah Shea delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not
serve as precedent. Its case title, cause number, and disposition shall be included in this
Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana
Reports.
¶2 F.V. (Father) appeals an order of the Eighth Judicial District Court, Cascade
County, terminating his parental rights to his son, P.V. We affirm.
¶3 P.V. is an Indian child under the Indian Child Welfare Act (ICWA). P.V. is
affiliated with the Blackfeet Tribe of Montana. On January 16, 2014, the District Court
granted Father full custody of P.V. after terminating P.V.’s biological mother’s rights.
On February 5, 2014, a Department of Public Health and Human Services (Department)
child protection specialist (CPS) met Father at P.V.’s daycare. Father told the CPS that
he was protecting P.V. from a Great Falls cult of police and probation staff. After other
alarming statements, Father stated methamphetamine makes spirits more clear. Father
accompanied the CPS to a pre-release center for a drug test and tested negative for all
substances. Father continued to express bizarre statements to the CPS the next day.
¶4 On February 6, 2014, the Department received a report that Father had taken
methamphetamine. The report also stated that other adults, under the influence of
narcotics, were in the same house and taking care of P.V. On February 7, 2014, four-
year-old P.V. tested positive for methamphetamine.
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¶5 Based on Father’s erratic mental stability, coupled with his admission to recent
methamphetamine use, the District Court granted the Department Emergency Protective
Services and Temporary Legal Custody. On March 17, 2014, Father appeared with
counsel at a show cause hearing, where he stipulated to adjudicating P.V. as a youth in
need of care and stipulated that the Department and the State met the ICWA standards in
this matter. He also concurred with P.V.’s placement with his paternal grandmother.
Because of his grandmother’s health, P.V. has moved back and forth throughout these
proceedings between staying with his paternal grandmother and his foster family. Due to
Father’s own health issues, Father was not present for his dispositional hearing on April
3, 2014, where the District Court granted the Department a six-month period of
temporary legal custody and approved a treatment plan for Father.
¶6 On April 8, 2014, the State arrested Father after charging him with felony criminal
endangerment of a child. The District Court found Father unfit to stand trial for mental
competency reasons. Father then spent April through October 2014 either in jail or the
Montana State Hospital (MSH). MSH doctors determined Father suffered from
Post-Traumatic Stress Disorder and was in remission for Amphetamine Induced
Psychosis.
¶7 Father met with a licensed addictions counselor before and after his time in MSH.
Father also attended a relapse prevention group the counselor recommended. The
Department held a group meeting with Father’s relatives and the Blackfeet Tribe to
discuss Father’s mental health and chemical dependency, and also to determine how to
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keep him in P.V.’s life. MSH discharged Father in October 2014. After his discharge,
Father reengaged with his chemical dependency and mental health counselor.
¶8 After Father’s October 2014 discharge from MSH, he relapsed by drinking during
Christmas and again in January 2015. Father also missed two urinalysis tests in February
2015. After these relapses, the social worker who had been working with Father
counseled him on strategies for establishing and maintaining sobriety.
¶9 On March 20, 2015, the Department filed a petition for termination of Father’s
parental rights. The District Court granted the petition after a termination hearing on
April 23, 2015. During the termination hearing, the State presented six witnesses who
testified, in part, about the Department’s active efforts to prevent the breakup of the
Indian family. Those witnesses included Father’s chemical dependency and mental
health counselor, Father’s parenting counselor, P.V.’s individual counselor, the State’s
CPS acting as this matter’s caseworker, an ICWA expert, and P.V.’s foster mother.
¶10 On May 7, 2015, the District Court issued its findings of fact, conclusions of law,
and order granting the Department’s petition to terminate Father’s parental rights and
granting the Department custody of P.V. The District Court found that the Department
provided the following services to the family: (1) counseling for Father; (2) counseling
for P.V.; (3) parenting classes for Father; (4) medication for Father; and (5) a treatment
plan. The District Court stated its findings of fact were “made by proof beyond a
reasonable doubt.” The District Court concluded that terminating Father’s parental rights
was proper, in part, because “returning [P.V.] to the custody of the Birth Father would
likely result in serious emotional and/or physical harm to the child.”
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¶11 We review a district court’s decision to terminate parental rights for abuse of
discretion. In re K.B., 2013 MT 133, ¶ 18, 370 Mont. 254, 301 P.3d 836. In ICWA
cases, we will uphold the district court’s termination of parental rights if a reasonable
fact-finder could conclude beyond a reasonable doubt that allowing the parent to continue
custody would likely “result in serious emotional or physical damage to the child.” K.B.,
¶ 18. A district court abuses its discretion when it acts “arbitrarily, without employment
of conscientious judgment or in excess of the bounds of reason, resulting in substantial
injustice.” In re M.J., 2013 MT 60, ¶ 17, 369 Mont. 247, 296 P.3d 1197 (citations
omitted). We review a district court’s factual findings for clear error. In re A.K., 2015
MT 116, ¶ 20, 379 Mont. 41, 347 P.3d 711. A district court’s application of law to a
case’s facts is a legal conclusion we review for correct interpretation of the law. K.B.,
¶ 18.
¶12 ICWA imposes a heightened standard of scrutiny on the termination of parental
rights to an Indian child. In re H.T., 2015 MT 41, ¶ 42, 378 Mont. 206, 343 P.3d 159.
Under ICWA, the court must determine “beyond a reasonable doubt . . . that the
continued custody of the child by the parent or Indian custodian is likely to result in
serious emotional or physical damage to the child” before terminating parental rights.
25 U.S.C. § 1912(f). A party seeking to terminate parental rights to an Indian child “shall
satisfy the court that active efforts have been made to provide remedial services and
rehabilitative programs designed to prevent the breakup of the Indian family and that
these efforts have proved unsuccessful.” 25 U.S.C. § 1912(d).
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¶13 Father contends the Department did not comply with ICWA’s “active efforts”
requirement. Specifically, Father argues that the Department did not continue its “active
efforts” during his time at MSH, nor after his discharge and up until the termination
hearing. He argues that the District Court, and this Court, should not consider the four
years of “active efforts” he received from the Department stemming from a 2011
proceeding also involving Father and P.V.; rather, he contends we should confine our
analysis only to the most recent events.1
¶14 Although § 1912(d) does not set forth detailed criteria to determine whether the
Department made “active efforts,” it requires that the Department do more than simply
give a parent a treatment plan and wait for him to complete it. In re J.S., 2014 MT 79,
¶ 25, 374 Mont. 329, 321 P.3d 103 (citing In re A.N., 2005 MT 19, ¶ 23, 325 Mont. 379,
106 P.3d 556). In J.S., we recognized that a “common sense” construction of the term
“active efforts” requires “that ‘timely affirmative steps be taken to accomplish the goal
which Congress has set: to avoid the breakup of Indian families whenever possible by
providing services designated to remedy problems which might lead to severance of the
parent-child relationship.’” J.S., ¶ 25 (quoting In re G.S., 2002 MT 245, ¶ 36, 312 Mont.
108, 59 P.3d 1063). In determining whether the Department has made active efforts, a
district court may consider “a parent’s demonstrated apathy and indifference to
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Father also asks this Court to analyze the Department’s “active efforts” by applying the
Guidelines for State Courts and Agencies in Indian Child Custody Proceedings, 80 Fed. Reg.
10146, promulgated in 2015. Father did not request the District Court to consider the 2015
Guidelines in rendering its decision, and we decline to consider them on appeal. Generally, this
Court will not review an issue raised for the first time on appeal. H.T., ¶ 14 (citing In re D.K.D.,
2011 MT 74, ¶ 16, 360 Mont. 76, 250 P.3d 856).
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participating in treatment,” as well as “actions taken by the State to provide services for
the other parent and the child.” J.S., ¶ 25 (citations omitted). Further, “a parent’s
incarceration may limit the remedial and rehabilitative services that the [Department] can
make available to the parent to prevent the breakup of the Indian family.” In re D.S.B.,
2013 MT 112, ¶ 15, 370 Mont. 37, 300 P.3d 702. We do not excuse the State’s
obligation to make active efforts if a parent is incarcerated, but “will not fault the
[Department] if its efforts are curtailed by the parent’s own criminal behavior.” D.S.B., ¶
15.
¶15 D.S.B. provides an example of what can satisfy the “active efforts” determination.
In D.S.B., the Department provided the father with “treatment plans, assistance of a CPS,
supervised visitation, drug testing, chemical dependency treatment, counseling, referrals
to treatment providers, in-home services, and parenting coaching.” D.S.B., ¶ 16. The
Department also provided services to the Indian children at issue in the form of
counseling and attempts to place them with Indian family members. D.S.B., ¶ 17. We
affirmed the District Court’s determination that the Department satisfied its “active
efforts” requirement. D.S.B., ¶ 17.
¶16 Similar to D.S.B., the Department in this case provided sufficient evidence to
prove, beyond a reasonable doubt, that it used “active efforts” to provide services
designed to prevent the breakup of the Indian family. In addition to a treatment plan,
Father’s counselor from Discovery Family Counseling Services testified that he
“provided two separate parenting classes for [Father] over the last few years . . . help[ed]
[Father] individually to apply the Circle of Security parenting concepts and just make
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sure [Father] understood those . . . [and] provided supervised visits with [P.V.] to work
on communications and interactions with him.” The CPS testified to the “active efforts”
Father received after his discharge from MSH. She “made referrals for [Father] to have
assessments completed,” and continued to work with Father after his MSH discharge.
She also testified that in September 2014 she “held a meeting in our office with [Father’s]
family to support him, to try to keep his family involved with this child.” The
participants included several relatives and a Blackfeet Tribe representative who tried “to
determine how to support [P.V.] being with his family.” The ICWA expert testified that
she believed the Department made active efforts to reunify P.V. with Father.
¶17 Active efforts in this case were also directed toward the family, not just Father.
The Department repeatedly attempted to place P.V. with his paternal grandmother, while
also facilitating a relationship between the grandmother and P.V.’s foster family. The
Department also provided individual counseling for P.V. to help address his mental and
emotional health issues.
¶18 Although the District Court did not specifically address “active efforts,” the record
contains sufficient evidence for a rational trier of fact to conclude beyond a reasonable
doubt that the Department made “active efforts” to provide remedial services and
rehabilitative programs designed to prevent the breakup of the Indian family. In light of
the Department’s “active efforts” and compliance with the rest of ICWA’s criteria, the
District Court did not abuse its discretion in determining that terminating Father’s
parental rights to P.V. was in P.V.’s best interests.
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¶19 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of
our Internal Operating Rules, which provides for memorandum opinions. In the opinion
of the Court, the case presents a question controlled by settled law or by the clear
application of applicable standards of review. The District Court did not abuse its
discretion in terminating Father’s rights. The District Court’s factual findings concerning
the Department’s efforts were not clearly erroneous, and evidence beyond a reasonable
doubt supported the District Court’s determination that the Department provided active,
yet unsuccessful, efforts to provide remedial and rehabilitative services designed to
prevent the breakup of Father and P.V. We affirm.
/S/ JAMES JEREMIAH SHEA
We Concur:
/S/ MIKE McGRATH
/S/ BETH BAKER
/S/ MICHAEL E WHEAT
/S/ LAURIE McKINNON
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