Matter of H.T. YINC

February 10 2015
DA 14-0076
Case Number: DA 14-0076
IN THE SUPREME COURT OF THE STATE OF MONTANA
2015 MT 41
IN THE MATTER OF:
H.T.,
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-12-152
Honorable Julie Macek, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Jeanne M. Walker, Hagen & Walker, PLLC, Billings, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Pamela P. Collins, Assistant
Attorney General, Helena, Montana
John Parker, Cascade County Attorney, Jennifer Quick, Deputy County
Attorney, Great Falls, Montana
Submitted on Briefs: December 24, 2014
Decided: February 10, 2015
Filed:
__________________________________________
Clerk
Justice Beth Baker delivered the Opinion of the Court.
¶1 B.T. (Mother) appeals an order of the Eighth Judicial District Court terminating her
parental rights to her daughter, H.T. She asserts that the District Court failed to comply with
both state and federal statutory requirements for terminating parental rights to an Indian
child. We address the following issues on appeal:
1. Whether the termination of Mother’s rights must be reversed because the
District Court failed to hold an adjudicatory hearing that complied with
§ 41-3-437, MCA.
2. Whether the District Court’s failure to follow statutory requirements for
proceedings subject to the Indian Child Welfare Act requires reversal.
¶2 We affirm on the first issue, and vacate and remand for entry of a new order on the
issue of termination.
PROCEDURAL AND FACTUAL BACKGROUND
¶3 The Montana Department of Public Health and Human Services (Department) filed a
petition for emergency protective services on October 10, 2012, alleging drug use by Mother
and domestic violence between Mother and her boyfriend.1 The affidavit of a child
protection specialist attached to the petition explained the circumstances. Law enforcement
officers contacted the Department after being called to a Great Falls motel for a domestic
violence incident. Seven-year-old H.T. told the specialist that Mother began drinking and
arguing with her boyfriend on the night that H.T. was taken into emergency protective
custody. Mother and H.T. left the motel to visit Mother’s friend, from whom they obtained
pills that they brought back to the room. H.T. reported that Mother and her boyfriend
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H.T. lived with Mother. H.T.’s father could not be located and was noticed by publication
throughout the case. He has not appealed the termination of his parental rights for abandonment.
2
crushed the pills and “sniff[ed] them up their noses.” The arguing continued and eventually
escalated into physical violence. When police arrived, H.T. was found scared and exhausted,
wearing what appeared to be her mother’s dirty clothes. H.T. told the specialist that there
had been violence between Mother and her boyfriend in the past and that she feared the
boyfriend would kill her mother.
¶4 The Department’s petition sought immediate protection and temporary legal custody
of H.T. to prevent further exposure to abuse and neglect. The petition stated that “the child
may be an Indian Child for the purposes of the Indian Child Welfare Act [ICWA].” The
accompanying affidavit further indicated that inquiry had been made of Mother and of the
maternal grandparents regarding H.T.’s tribal affiliation. Based on those inquiries, notices of
the action were sent to the Blackfeet Tribe and to the Assiniboine and Sioux Tribes of the
Fort Peck Indian Reservation. The affidavit also stated that a letter had been sent to the
Bureau of Indian Affairs for confirmation of tribal affiliation.2 The District Court granted
the motion for emergency protective services and temporary legal custody. The court’s
October 17, 2012 order found that the Department was justified in not making active efforts
to prevent H.T.’s removal from the home “because the child was in immediate or apparent
danger of harm.”
¶5 Following the Department’s efforts to locate a suitable kinship placement, H.T. was
placed with a maternal great aunt on October 26, 2012. On November 15, 2012, the District
Court held a show cause hearing. Mother did not contest probable cause at the show cause
2
The Department later filed a letter explaining that H.T. was not eligible for enrollment with
the Fort Peck Tribes.
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hearing, but her counsel stated, “We do want a separate adjudicatory hearing, just in case.”
The court accepted the parties’ stipulation that probable cause existed to believe that H.T.
was subject to abuse or neglect, and advised that it would set a date for an adjudicatory
hearing.
¶6 The District Court initially set the adjudicatory hearing for February 7, 2013, but later
rescheduled the hearing for April 25, 2013. The Department filed a supplemental affidavit
on April 17 that updated information about H.T. and Mother since the child’s removal. The
affidavit indicated that the Department had received information that H.T. was eligible for
enrollment in the Fort Belknap Tribe. At the commencement of the April 25 hearing, the
court began by stating, “This is the time that has been set for a show cause hearing in the
matter of [H.T.]” The Department’s counsel indicated that the matter was set for disposition
and that a treatment plan had been signed by all parties. The court then announced, “I stand
corrected. This is a dispositional hearing.” The court inquired about Mother’s stipulation to
her treatment plan and about H.T.’s current placement. Mother confirmed that she
understood the treatment plan; her appointed counsel, who by that time had been substituted
for Mother’s previous attorney, indicated that there was no objection to temporary legal
custody or to the treatment plan. The hearing never addressed H.T.’s adjudication and the
record contains no stipulation to adjudication of H.T. as a youth in need of care.
¶7 The District Court issued an order after the April 25, 2013 hearing that adjudicated
H.T. a youth in need of care. The order also required Mother to comply with her treatment
plan, approved of H.T.’s current placement, and granted the Department temporary legal
custody for six months.
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¶8 On November 5, 2013, the Department filed notice that H.T. was eligible for
enrollment with the Assiniboine and Gros Ventres Tribes at the Fort Belknap Indian
Community (hereafter referred to as Fort Belknap). The notice appended a letter from Fort
Belknap dated April 17, 2013, indicating that it “chooses to intervene as a third party to
monitor” the proceedings and would “leave jurisdiction with the state court while the plan
remains reunification.” Fort Belknap reserved the right to transfer jurisdiction “at a later
time if Termination of Parental Rights appears imminent or has taken place.”
¶9 The Department filed a petition for permanent legal custody and termination of
parental rights on November 6, 2013. The termination petition alleged that Mother had not
complied with her treatment plan and that H.T.’s father had abandoned H.T. The
Department filed a notice on November 18, 2013, establishing that Fort Belknap had
confirmed receipt of the termination petition on November 13, 2013. The court held a
termination hearing on January 9, 2014, and adopted and approved the termination petition.
Fort Belknap did not participate in the proceedings. The court later issued a written order
terminating both Mother’s parental rights and the father’s parental rights to H.T. and
granting the Department permanent legal custody. Mother appeals.
STANDARDS OF REVIEW
¶10 Compliance with state statutory requirements presents a question of law that we
review for correctness. State v. Parks, 2013 MT 280, ¶ 20, 372 Mont. 88, 310 P.3d 1088; In
re B.N.Y., 2003 MT 241, ¶¶ 18, 28, 317 Mont. 291, 77 P.3d 189. We will not disturb a
district court’s decision on appeal unless there is a mistake of law or a finding of fact not
supported by substantial evidence that would amount to a clear abuse of discretion. In re
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T.S., 2013 MT 274, ¶ 21, 372 Mont. 79, 310 P.3d 538. We will not reverse a district court’s
ruling by reason of an error that “would have no significant impact upon the result.” In re
J.C., 2008 MT 127, ¶ 43, 343 Mont. 30, 183 P.3d 22 (quoting In re A.N. and C.N., 2000 MT
35, ¶ 39, 298 Mont. 237, 995 P.2d 427).
¶11 “In a case governed by ICWA, we will uphold the district court’s termination of
parental rights if a reasonable fact-finder could conclude beyond a reasonable doubt that
continued custody by the parent is likely to result in serious emotional or physical damage to
the child.” In re K.B. & T.B., 2013 MT 133, ¶ 18, 370 Mont. 254, 301 P.3d 836. We review
the court’s application of the law to the facts of the case for correctness. In re K.B. & T.B.,
¶ 18.
DISCUSSION
¶12 1. Whether the termination of Mother’s rights must be reversed because the District
Court failed to hold an adjudicatory hearing that complied with § 41-3-437, MCA.
¶13 Mother does not dispute that she did not raise before the District Court any of the
issues on which she appeals. She argues that her appeal nevertheless is reviewable because it
is based on violations of 25 U.S.C. § 1912, a provision of ICWA. The Department correctly
points out, however, that a closer reading of Mother’s brief reveals an argument that the
District Court erred by failing to hold an adjudicatory hearing that complied with § 41-3-437,
MCA. This argument is based on a violation of state law, not ICWA. Accordingly, we first
decide whether to consider this argument on appeal without reference to ICWA.
¶14 Generally, this Court will not review an issue raised for the first time on appeal. In re
D.K.D., 2011 MT 74, ¶ 16, 360 Mont. 76, 250 P.3d 856. We apply the common law plain
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error doctrine where the error is “plain” and we are “firmly convinced” that an aspect of the
proceeding would result in “manifest miscarriage of justice or compromise the integrity of
the judicial process.” In re D.K.D., ¶ 16; In re Custody & Parental Rights of D.A., 2008 MT
247, ¶ 33, 344 Mont. 513, 189 P.3d 631. We invoke the plain error doctrine sparingly. In re
D.K.D., ¶ 16.
¶15 Under Montana law, a court may terminate a parent’s rights for failure to successfully
complete or to comply with a court-ordered treatment plan only if the child is first
adjudicated a youth in need of care in accordance with § 41-3-437, MCA. Section
41-3-609(1)(f), MCA. Unless the petition seeks termination on alternate grounds such as
relinquishment, abandonment, or circumstances in which a treatment plan is not required,
adjudication as a youth in need of care is “a threshold requirement without which a court
may not grant temporary legal custody, order a court ordered treatment plan, or terminate a
person’s parental rights under the statute.” In re B.N.Y., ¶ 22 (citing §§ 41-3-406(1)(c),
41-3-420(1), and 41-3-609(1)(f), MCA); In re T.C., 2001 MT 264, ¶ 15, 307 Mont. 244, 37
P.3d 70.
¶16 A parent may stipulate that the child meets the definition of a youth in need of care.
Section 41-3-434(1), MCA. “A parent’s valid stipulation under § 41-3-434, MCA, can
satisfy the required findings for the adjudication of a youth in need of care even absent an
evidentiary hearing.” In re J.M., 2009 MT 332, ¶ 22, 353 Mont. 64, 218 P.3d 1213. If the
parent does not stipulate to adjudication, the adjudicatory hearing must be held within ninety
days of the show cause hearing. Section 41-3-437(1), MCA. At the adjudicatory hearing,
the court “shall hear evidence regarding the residence of the child, paternity, if in question,
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the whereabouts of the parents, guardian, or nearest adult relative, and any other matters the
court considers relevant in determining the status of the child.” Section 41-3-437(3), MCA.
“Adjudication must determine the nature of the abuse and neglect and establish facts that
resulted in state intervention and upon which disposition, case work, court review, and
possible termination are based.” Section 41-3-437(2), MCA.
¶17 It appears from review of the record that the Department assumed, based on Mother’s
other stipulations, that she stipulated to adjudication and that the matter was set for
disposition when the parties appeared in open court on April 25, 2013. As noted above, the
record does not contain any such stipulation. The Department argues on appeal that
Mother’s stipulation to her treatment plan “necessarily meant that [Mother] also stipulated
that H.T. was a Youth in Need of Care.” In In re M.J.W., however, we held that neither a
finding sufficient to establish child abuse or neglect nor an order approving of the parents’
treatment plans constituted adjudication where the court did not address adjudication in any
way. In re M.J.W., 1998 MT 142, ¶¶ 12-13, 289 Mont. 232, 961 P.2d 105. Likewise, we
have observed that adoption of a stipulation for temporary legal custody “does not equate to
an adjudication by the court that the children were youths in need of care.” In re the Matter
of M.O., M.O., and M.O., 2003 MT 4, ¶ 19, 314 Mont. 13, 62 P.3d 265. Similarly, Mother’s
stipulation to her treatment plan, though containing admissions sufficient to meet the
definition of child abuse or neglect under § 41-3-102(7), MCA, does not constitute a
stipulation to adjudication of H.T. as a youth in need of care.
¶18 Without a stipulation to adjudication, the District Court was required to conduct an
adjudicatory hearing. The hearing held on April 25, 2013, did not comply with § 41-3-437,
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MCA. Although the District Court scheduled an adjudicatory hearing, due to what appears
to have been a mix-up by the court and counsel, the court changed the hearing to a
dispositional hearing almost immediately after it began. The record of the hearing reflects
that Mother stipulated to her treatment plan and to temporary legal custody, but the parties
made no mention of adjudication. These stipulations were inadequate to meet the statutory
requirement of either stipulation to adjudication or an adjudicatory hearing. The court
mistakenly stated in a subsequent order that Mother’s attorney “stipulated to the adjudication
of the Youth as a Youth in Need of Care . . . .”
¶19 We have determined, however, that a court’s failure to conduct a formal adjudicatory
hearing may be harmless error. In re J.C., ¶ 54. This Court continually has stated that “we
will not fault a district court for failing to address statutory deficiencies that are not brought
to its attention during the proceedings because doing so would encourage litigants to
withhold objections rather than raise the issues appropriately in the district court.” In re A.S.,
2006 MT 281, ¶ 35, 334 Mont. 280, 146 P.3d 778 (quoting In re A.N.W., 2006 MT 42, ¶ 41,
331 Mont. 208, 130 P.3d 619). In In re A.S., we pointed out that a parent acquiesced to a
child’s adjudication as a youth in need of care when there was no objection to the
adjudication and the adjudication was referenced repeatedly in court documents leading up to
the termination hearing. In re A.S., ¶ 35.
¶20 Mother stipulated to her treatment plan, which stated that she “admittedly has a
history of drug usage” and “needed treatment for alcohol and drugs.” Mother’s treatment
plan acknowledges that, on the night of H.T.’s removal, she abused prescription medications
and drank alcohol “to the point of being unable to care for her daughter.” The plan also
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documents Mother’s history of relationships with “abusive and unstable men,” and states that
Mother “failed to protect her child from exposure to domestic violence.” By agreeing to the
plan, Mother acknowledged that her mental health and substance abuse issues “prevented her
from . . . parenting her child safely or provid[ing] care for her on [a] consistent basis.”
¶21 Mother’s treatment plan stipulates that she was unable to care for H.T. Mother never
raised an objection to the court’s subsequent order adjudicating H.T. a youth in need of care,
and she failed to point out the court’s error until this appeal. Mother does not contest her
failure to follow her treatment plan. “We have held consistently that a district court may
protect a child’s best interest despite procedural errors that would have no impact upon the
result.” In re M.S., 2014 MT 265A, ¶ 22, 376 Mont. 394, 336 P.3d 930 (citations omitted).
Although the court erred by not holding a proper adjudicatory hearing prior to the
termination of Mother’s parental rights, this error was not “plain” or obvious. As in In re
A.S., we hold that Mother waived her right to appeal the adjudication issue because she did
not timely object or raise the issue before the District Court. Under the circumstances, the
error did not undermine the fundamental fairness of the proceedings and reversing the
termination order on this ground is not justified. In re J.C., ¶¶ 42-43; In re A.S., ¶ 35.
¶22 2. Whether the District Court’s failure to follow statutory requirements for
proceedings subject to the Indian Child Welfare Act requires reversal.
¶23 Congress enacted ICWA in 1978 “to protect the best interests of Indian children and
to promote the stability and security of Indian tribes.” 25 U.S.C. § 1902. ICWA “establishes
the minimum federal standards for the removal of an Indian child from her family and the
placement of such a child in a foster or adoptive home.” In re M.S., ¶ 14.
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¶24 Mother argues that the District Court failed to comply with numerous ICWA
requirements. She argues: that the court was required, but failed, to meet ICWA’s notice
and evidentiary requirements at the adjudicatory stage; that Fort Belknap did not receive
proper notice of the termination hearing; that, at the termination stage of the proceedings, the
court failed to make oral or written findings that continued custody of H.T. by Mother “is
likely to result in serious emotional or physical damage to the child;” that the District Court
applied the incorrect standard of proof at the termination hearing, relying on the “clear and
convincing evidence” standard provided under state law instead of ICWA’s “beyond a
reasonable doubt” standard; and finally, that the court improperly based its termination
decision solely on Mother’s substance abuse.
¶25 Although Mother raises these arguments for the first time on appeal, § 1914 of ICWA
provides:
Any Indian child who is the subject of any action for foster care placement or
termination of parental rights under State law, any parent or Indian custodian
from whose custody such child was removed, and the Indian child’s tribe may
petition any court of competent jurisdiction to invalidate such action upon a
showing that such action violated any provision of sections 101, 102, and 103
of this Act [25 U.S.C. §§ 1911, 1912, and 1913].
25 U.S.C. § 1914. The issues Mother raises are thus appealable despite the failure to object.
In re K.B. & T.B., ¶ 22 (noting that an appeals court is a court of competent jurisdiction
under § 1914 and ICWA notice requirements may be raised for the first time on appeal).
A. Notice
¶26 ICWA specifies that notice of an involuntary proceeding in state court and of the right
of intervention must be given to an Indian child’s tribe when a party seeks the foster care
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placement of, or the termination of the parental rights to, an Indian child. 25 U.S.C.
§ 1912(a). If the child’s tribe cannot be identified, notice instead must be provided to the
Secretary of the Interior. 25 U.S.C. § 1912(a). ICWA’s requirement of timely notice serves
as a limitation on both foster care placements and termination proceedings. 25 U.S.C.
§ 1912(a) (“No foster care placement or termination of parental rights proceeding shall be
held until at least ten days after receipt of notice by the parent or Indian custodian and the
tribe or the Secretary.”).
¶27 Mother first argues that Fort Belknap did not receive notice of the April 25, 2013
hearing, without which adjudication was in error. Second, Mother argues that Fort Belknap
did not receive notice by registered mail of the January 9, 2014 termination hearing. We
address these arguments in order.
¶28 ICWA imposes a specific notice requirement for pending proceedings involving “the
foster care placement of, or termination of parental rights to, an Indian child[.]” 25 U.S.C.
§ 1912(a). We have observed that if there is any question about whether notice is to be given
before both foster care and termination proceedings, the “‘question should be resolved in
favor of giving notice twice.’” In re M.S., ¶ 19 (quoting People ex rel. S.R.M., 153 P.3d 438,
442 (Colo. Ct. App. 2006)). We have not, however, required adherence to this specific
notice requirement where it is not prescribed by the provisions of ICWA.
¶29 In this case, H.T. was taken from her mother under emergency circumstances and
placed in kinship foster care before the first status conference. The Department made efforts
promptly to identify and notify the proper tribe. The tribe that ultimately was determined to
be the child’s tribe was not notified before the initial placement, but ICWA does not prevent
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emergency removal of an Indian child or the emergency placement of such a child into foster
care when necessary to prevent imminent physical damage or harm to the child. 25 U.S.C.
§ 1922.3 Fort Belknap sent a letter dated April 17, 2013, confirming H.T.’s eligibility for
enrollment, showing that it received notice of the action—if not specifically the scheduled
adjudicatory hearing—before the April 25, 2013 hearing.
¶30 In most circumstances, the Department must give notice before a foster care
placement occurs. After an emergency removal, ICWA proceedings must be initiated
“expeditiously,” meaning that the Department is excused from the normal notice requirement
but is obligated to provide prompt notice in compliance with § 1912(a) after the foster care
placement occurs. 25 U.S.C. § 1922. Here, the child’s removal occurred on an emergency
basis, the Department proceeded expeditiously to identify and notify the proper tribe, and
Fort Belknap confirmed notice and advised that it intended to monitor the proceedings as
long as reunification was the plan. Because foster care placement already had been made
prior to identification of the child’s tribe and before the April 25 hearing, we conclude that
any delay in notifying Fort Belknap of the proceedings was not improper under ICWA.
¶31 Mother also argues that the record does not establish ICWA-compliant notice to Fort
Belknap of the termination hearing, because notice was not sent “by registered mail with
3
Though § 1922 applies by its terms to Indian children who are residents of or are domiciled
on a reservation, but “temporarily located off the reservation,” numerous courts have held that it
applies to all Indian children. E.g. Cheyenne River Sioux Tribe v. Davis, 822 N.W.2d 62, 65 (S.D.
2012); State ex rel. Children, Youth & Families Dep’t v. Marlene C. (In re Esther V.), 248 P.3d 863,
873 (N.M. 2011); State ex rel. Juvenile Dep’t of Multnomah Cnty. v. Charles, 688 P.2d 1354, 1358
(Or. Ct. App. 1984); D.E.D. v. State of Alaska, 704 P.2d 774, 779 (Alaska 1985); Matter of the
Welfare of J.A.S., 488 N.W.2d 332, 335 (Minn. Ct. App. 1992); In re S.B. v. Jeannie V., 30 Cal.
Rptr. 3d 726, 734-36, 130 Cal. App. 4th 1148, 1163-64 (Cal. Ct. App. 2005). This interpretation is
supported by § B.7(a) of the BIA Guidelines for ICWA proceedings. 44 Fed. Reg. 67589 (ICWA
Guidelines).
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return receipt requested.” 25 U.S.C. § 1912(a). The Fort Belknap Tribe received notice of
the termination hearing by certified mail, and the Department filed a return receipt with the
District Court signed by an agent of Fort Belknap acknowledging the termination petition.
We recognize that there are some differences between registered and certified mail, with
registered mail being more secure. See In re Morris, 815 N.W.2d 62, 77 n. 22 (Mich. 2012).
For the purpose of indicating that Fort Belknap was given notice, however, the two are
virtually identical: both provide proof of mailing and the date and time of delivery. Return
receipts to confirm delivery may be requested both for registered and for certified mail. U.S.
Postal Service, A Customer’s Guide to Mailing, 9 (Sept. 2014), available at
https://www.usps.com.
¶32 Mother complains that the return receipt the Department filed made it impossible to
verify whether the notice of the termination was adequate; she speculates that the
Department may have provided insufficient or inaccurate information, citing In re Morris.
However, the return receipt from Fort Belknap contained the word “Termination,” H.T.’s last
name, the date of delivery, and the case number. Receipt was acknowledged a week after the
Department’s termination petition was filed with the court. The return receipt confirms that
Fort Belknap was informed of the pending termination in a timely manner. This stands in
sharp contrast to In re Morris, where the Michigan Supreme Court observed that the record
before it contained “no postal return receipts indicating whether notice was received and, if
so, by whom.” In re Morris, 491 N.W.2d at 69.
¶33 We conclude that the Department’s notice to Fort Belknap of the proceedings in this
case did not violate ICWA requirements. The only delay occurred when the Department did
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not file until November 5, 2013, Fort Belknap’s April 17, 2013 letter advising of H.T.’s
eligibility for enrollment. But that letter demonstrates that the Department had notified Fort
Belknap of the proceedings once it learned of H.T.’s affiliation and that Fort Belknap had
declined to participate pending a decision by the State whether to seek termination. The
Department had advised the court in its April 17 supplemental affidavit that it had made this
contact with Fort Belknap. The record is sufficient to demonstrate that, once the State
pursued termination, Fort Belknap received actual and timely notice of the termination
proceedings. Mother’s arguments are not persuasive that there is a substantive distinction
between registered and certified mail that renders the termination notice invalid.
B. Evidentiary requirements for the April 25, 2013 hearing
¶34 ICWA requires that “[a]ny party seeking to effect a foster care placement of, or
termination of parental rights to, an Indian child under State law 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).
No foster care placement may be ordered in such proceeding in the absence of
a determination, supported by clear and convincing evidence, including
testimony of qualified expert witnesses, 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.
25 U.S.C. § 1912(e). These sections mandate that “active efforts” and “serious emotional or
physical damage” must be shown before an Indian child is placed into foster care, defined as
“any action removing an Indian child from its parent or Indian custodian for temporary
placement in a foster home or institution or the home of a guardian or conservator where the
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parent or Indian custodian cannot have the child returned upon demand, but where parental
rights have not been terminated.” 25 U.S.C. § 1903(1)(i).
¶35 Mother argues that testimony about active efforts was required at the adjudicatory
stage. The court’s written order adjudicating H.T. a youth in need of care found that the
Department made “reasonable efforts,” not active efforts. Mother also claims that the court
erred when it used a “preponderance of the evidence” standard in its order adjudicating H.T.
a youth in need of care, instead of the “clear and convincing evidence” standard prescribed
by § 1912(e).
¶36 ICWA plainly requires evidence of active efforts and “clear and convincing evidence”
of “serious emotional or physical damage to the child” before foster care placements.
Montana adheres to this requirement by demanding such evidence at the show cause hearing
that must be conducted after the filing of an initial child abuse and neglect petition. Section
41-3-432(1)(b), (5), MCA.
¶37 When an Indian child has been removed under emergency circumstances, however,
ICWA requires the following:
The State authority, official, or agency involved shall insure that the
emergency removal or placement terminates immediately when such removal
or placement is no longer necessary to prevent imminent physical damage or
harm to the child and shall expeditiously initiate a child custody proceeding
subject to the provisions of this title [25 USCS §§ 1911-1923], transfer the
child to the jurisdiction of the appropriate Indian tribe, or restore the child to
the parent or Indian custodian, as may be appropriate.
25 U.S.C. § 1922. The ICWA guidelines confirm that, after an emergency removal, “the
agency responsible for the child’s removal must promptly commence a state court
proceeding for foster care placement.” ICWA Guidelines § B.7(c), 44 Fed. Reg. 67589.
16
¶38 As noted, H.T. was placed into foster care under emergency circumstances before the
proper tribe had been identified. ICWA does not prevent emergency removal of an Indian
child or the emergency placement of such a child into foster care when necessary to prevent
imminent physical damage or harm to the child. 25 U.S.C. § 1922. ICWA allows temporary
or emergency custody proceedings without the findings required by § 1912(d) and (e) in
emergency circumstances. In re Esther V., 248 P.3d at 872-74; Cheyenne River Sioux Tribe,
822 N.W.2d at 65. The District Court expressly found in its October 17, 2012 order granting
emergency protective services that, because of H.T.’s exposure to domestic violence and
dangerous drugs, Mother’s neglect of H.T., and Mother’s incarceration and inability to
parent, the Department was justified in not making active efforts to prevent H.T.’s removal
from the home. At the November 15, 2012 show cause hearing, although Mother could have
required qualified expert testimony of “serious emotional or physical damage” under
§ 41-3-432(1)(b), MCA, she did not contest the Department’s request for emergency
protective services or H.T.’s foster care placement.
¶39 At the hearing on April 25, 2013, Mother stipulated to temporary legal custody,
allowing the Department to maintain the child’s kinship foster care placement without
demanding the additional findings required for such an order by § 41-3-442(1), MCA.
Mother did not contest the District Court’s explicit finding in its April 25, 2013 order that
“the parties have stipulated that ICWA is being followed, to the current placement of the
Youth, and that continued custody by the Birth Parents in this case would result in serious
emotional or physical damage to the child.” ICWA’s evidentiary requirements apply to
orders “effecting a foster care placement of an Indian child.” ICWA Guidelines § D.3(a), 44
17
Fed. Reg. 67592. Here, Mother’s stipulation to temporary legal custody rendered
unnecessary the presentation of evidence or the finding of facts on those ICWA standards.
C. Evidentiary requirements for the termination hearing
¶40 ICWA provides:
No termination of parental rights may be ordered in such proceeding in the
absence of a determination, supported by evidence beyond a reasonable doubt,
including testimony of qualified expert witnesses, 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.
25 U.S.C. § 1912(f). Mother argues that the court failed to make oral or written findings at
termination that the continued custody of H.T. by Mother “is likely to result in serious
emotional or physical damage to the child.” 25 U.S.C. § 1912(f). Mother also makes a brief
argument that the court improperly based its termination decision solely on Mother’s
substance abuse. Lastly, she argues that the District Court applied the incorrect standard of
proof at the termination hearing, relying on the “clear and convincing evidence” standard
provided under state law instead of the “beyond a reasonable doubt” standard required by
§ 1912(f).
¶41 We dispense quickly with the first two arguments. At the termination hearing on
January 9, 2014, the District Court stated on the record:
The Court finds that . . . continued custody of the child by the mother would
likely result in serious emotional or physical damage to the child in light of her
drug usage and her failure to acknowledge that . . . domestic violence is an
unsafe situation for children to be present at, be a party to, watch their mother
be abused, those are all situations that are extremely dangerous to children,
and detrimental to them.
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This statement clearly shows that the District Court made the required findings and did not
base its determination solely on Mother’s substance abuse. Mother’s reliance on the ICWA
Guidelines for this argument is misplaced; the Guidelines state that clear and convincing
evidence of likely emotional or physical damage to the child is not demonstrated by evidence
that shows only “the existence of community or family poverty, crowded or inadequate
housing, alcohol abuse, or non-conforming social behavior[.]” ICWA Guidelines, § D.3(c),
44 Fed. Reg. 67593. In her reply brief, Mother argues that the court’s rationale nonetheless
is inadequate because it does not reference the testimony of the ICWA expert. ICWA
requires that the determination be supported by evidence beyond a reasonable doubt,
“including testimony of qualified expert witnesses[.]” 25 U.S.C. § 1912(f). It does not
require, as Mother seems to suggest, that the District Court refer to the expert by name in
making its determination. There is no question here that the ICWA expert’s testimony met
the requirements of the law. See In re K.B. & T.B., ¶¶ 28, 30.
¶42 Mother’s final argument reveals that the District Court incorrectly applied a “clear
and convincing evidence” standard in its written order on the termination of Mother’s
parental rights. At the termination hearing, although the court stated that it made all of its
findings “[i]in accordance with the standards necessary for an ICWA case,” the court did not
articulate the standard it was applying. The court’s conclusions of law state that “the
evidence shows, by clear and convincing evidence, that continuation of the parent-child legal
relationship between the Youth and the Birth Mother will result in an ongoing risk of abuse
and/or neglect to the Youth.” A noted above, ICWA prohibits a parent’s rights from being
terminated unless the court determines, “beyond a reasonable doubt, . . . that the continued
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custody of the child by the parent or Indian custodian is likely to result in serious emotional
or physical damage to the child.” 25 U.S.C. § 1912(f). ICWA sets minimum federal
standards that “must be followed strictly by state courts.” In re K.B. & T.B., ¶ 21. Holding
the Department to its burden of proof is a critical requirement.
¶43 While we may uphold a district court’s termination of parental rights if the evidence
supports a determination “that continued custody by the parent is likely to result in serious
emotional or physical damage to the child[,]” In re K.B. & T.B., ¶ 18, whether the
Department proved the requisite standards beyond a reasonable doubt should be determined
in the first instance by the District Court. Accordingly, we vacate the District Court’s
judgment and remand for entry of a new order to address whether the evidence established
beyond a reasonable doubt, as required by 25 U.S.C. § 1912(f), that continued custody of
H.T. by Mother likely would result in serious emotional or physical damage to the child.
CONCLUSION
¶44 We conclude that Mother received fundamentally fair procedures prior to the
termination of her parental rights. She never raised any objection to the lack of a formal
adjudicatory hearing, and her stipulations reflect her assent to the determination that H.T.
was abused or neglected. The child’s Tribe was notified of the proceedings at the early
stages, indicated its desire to monitor the case, and did not participate after it received
appropriate, timely notice of the termination hearing. Proper expert testimony was presented
at the termination hearing. Because the District Court applied the wrong statutory standards
in its final order, however, its judgment is vacated. We remand for entry of a new order on
the issue whether Mother’s parental rights should be terminated.
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/S/ BETH BAKER
We Concur:
/S/ MIKE McGRATH
/S/ PATRICIA COTTER
/S/ LAURIE McKINNON
/S/ JAMES JEREMIAH SHEA
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