Matter of D.D., YINC

2021 MT 66

• Court: Montana Supreme Court
• Decided: March 16, 2021
• Docket: DA 20-0347
• Status: Published

Opinion

03/16/2021

DA 20-0347 Case Number: DA 20-0347

IN THE SUPREME COURT OF THE STATE OF MONTANA 2021 MT 66

IN THE MATTER OF:

D.D.,

A Youth in Need of Care.

APPEAL FROM: District Court of the Third Judicial District, In and For the County of Powell, Cause No. DN 18-02 Honorable Ray J. Dayton, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Taryn Gray, Driscoll Hathaway Law Group, Missoula, Montana

For Appellee:

Austin Knudsen, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana

Kathryn McEnery, Powell County Attorney, Deer Lodge, Montana

Submitted on Briefs: February 10, 2021

Decided: March 16, 2021

Filed:

r--6ta•--df __________________________________________ Clerk Justice Ingrid Gustafson delivered the Opinion of the Court.

¶1 D.D. (Father), father of D.D. (Child), appeals from the June 4, 2020 Order

Terminating Father’s Parental Rights and Granting Permanent Legal Custody issued by the

Montana Third Judicial District Court, Powell County, which terminated his parental rights

to Child.

¶2 We restate the issues on appeal as follows:

1. Whether the District Court’s failure to obtain a written confirmation directly from the Tribe regarding Child’s enrollment eligibility constitutes reversible error.

2. Whether the District Court erred in terminating Father’s parental rights pursuant to § 41-3-609(1)(f), MCA.

¶3 We affirm.

PROCEDURAL AND FACTUAL BACKGROUND

¶4 The Montana Department of Health and Human Services, Child and Family

Services Division (Department) became involved when Child was born March 16, 2018,

and tested positive for marijuana. Initially, the Department entered into an in-home safety

plan with T.S. (Mother) whereby she would reside with Child in her father’s (Grandfather)

home. This plan was unsuccessful as Mother stayed only one night in Grandfather’s home

before returning to reside with Father. Additionally, Father refused to sign the in-home

safety plan. The Department filed its petition for emergency protective services (EPS),

show cause, adjudication, and temporary legal custody (TLC) on April 25, 2018, asserting

concerns of drug use by the parents and domestic violence on Father’s part.

2 ¶5 Although Father initially arrived at the courthouse prior to the show cause hearing

on May 15, 2018, he left on advice of his counsel as he was too upset to remain and

participate. Father did, however, contest EPS and adjudication. The Department then

presented evidence as to the following: Mother initially presented to the Anaconda

Community Hospital for delivery of Child. At the hospital, Father made quite a scene

storming out of the delivery room, yelling, banging on doors, and punching walls.1 After

Child’s birth, Mother and Child were transferred to the Missoula hospital. Upon Father’s

arrival there, a similar scene ensued when a charge nurse asked Father if he was sick and

when he replied that he was, she related he could not be there. Father then began yelling,

swearing, and slapping walls as he left. Child Protection Specialist (CPS) Sandy Cisneros

testified to concerns about Father’s violence based on his erratic and aggressive behaviors

at the hospitals and Mother’s report of violence against her during the relationship. CPS

Cisneros also testified to concerns regarding the parents use of drugs with Father testing

positive for marijuana and benzodiazepine on April 19, 2018. Finally, CPS Cisneros

testified although she met with Father after the Department filed its petition and he

indicated a desire to work with the Department, she had not had much contact with Father.

At the conclusion of the hearing, the District Court found EPS to be warranted, adjudicated

1 Apparently, Father was requested to leave the delivery room. He left yelling and punching walls as he went. As per Grandfather’s girlfriend, he returned after Child was born and while sitting on a waiting room couch told a nurse he had a deathly flu. The nurse advised he wear a mask and keep the visit limited. Father then demanded to be swabbed for the flu and the nurse referred him to the ER for that. Father then blew up, started kicking the garbage can, and then left. After he left, law enforcement arrived. 3 Child as a youth in need of care (YINC), and granted the Department TLC for a period of

six months.

¶6 The District Court held a treatment plan hearing on June 29, 2018. Father’s

treatment plan—signed by him, his counsel, CPS Linda Huffaker, the Department’s

counsel, Child’s attorney, and the guardian ad litem—was presented to and approved by

the court. Following approval of his treatment plan, Father for the most part disengaged

and did not appear at further court proceedings until his termination hearing. Father did

not successfully complete any of the agreed tasks of his treatment plan. Specifically, Father

failed to obtain a chemical dependency evaluation with a Department-approved evaluator.

Father failed to obtain a mental health evaluation with a provider approved by the

Department. Father failed to engage in drug testing with providers referred by the

Department with some positive tests and several “no shows.” Father failed to complete an

approved parenting class. Father failed to maintain consistent visits with Child seeing him

less than a dozen times over a two-year period. Father failed to maintain contact with the

Department. Father failed to maintain contact with his counsel. Father failed to remain

law abiding and was convicted of a second Partner or Family Member Assault (PFMA)

during the pendency of the case and was then revoked and removed from pre-release.

Father failed to maintain safe and stable housing and, at the time of the termination hearing,

Father was incarcerated and only at the outset of participation in the Sanction, Treatment,

Assessment, Revocation, and Transition (START) program.

4 ¶7 On February 20, 2020, the Department filed its petition to terminate Father’s

parental rights asserting termination pursuant to § 41-3-609(1)(f), MCA—failure to

successfully compete his court-ordered treatment plan combined with lack of likelihood of

successful change within a reasonable time—was warranted. Following the termination

hearing on May 15, 2020, the District Court issued its Order Terminating Father’s Parental

Rights and Granting Permanent Legal Custody on June 4, 2020, finding Child was

previously adjudicated a YINC, Father failed to successfully complete his treatment plan,

and the conduct or conditions rendering Father unfit, unable, or unwilling to parent were

unlikely to change in a reasonable time.

¶8 Father raises two issues on appeal: whether the Department failed to obtain

conclusive determination regarding Child’s enrollment eligibility with the Turtle Mountain

Band of Chippewa Tribe (Tribe) and whether the District Court erred in concluding that

continuation of the parent-child relationship would result in continued abuse or neglect and

that Child’s best interests were served by terminating Father’s parental rights.

STANDARDS OF REVIEW

¶9 We review a district court’s decision to terminate parental rights for an abuse of

discretion, considering the applicable standards of Title 42, chapter 3, MCA, and the Indian

Child Welfare Act (ICWA), 25 U.S.C. §§ 1901-1963. In re D.E., 2018 MT 196, ¶ 21,

392 Mont. 297, 423 P.3d 586. A court abuses its discretion if it terminates parental rights

based on clearly erroneous findings of fact, erroneous conclusions of law, or otherwise acts

arbitrarily, without employment of conscientious judgment, or exceeds the bounds of 5 reason resulting in substantial injustice. In re D.E., ¶ 21 (citing In re D.B., 2007 MT 246,

¶ 18, 339 Mont. 240, 168 P.3d 691). Findings of fact are clearly erroneous if not supported

by substantial evidence, the court misapprehended the effect of the evidence, or this Court

has a definite and firm conviction that the lower court was mistaken. In re D.E., ¶ 21

(citing In re D.H., 2001 MT 200, ¶ 14, 306 Mont. 278, 33 P.3d 616). We review

conclusions of law for correctness. In re D.E., ¶ 21.

DISCUSSION

¶10 1. Whether the District Court’s failure to obtain a written confirmation directly from the Tribe regarding Child’s enrollment eligibility constitutes reversible error.

¶11 ICWA and § 41-3-609, MCA, impose different standards for termination of parental

rights depending on whether a child is an “Indian child,” therefore whenever the court has

reason to believe that the child is an Indian child as defined by ICWA, district courts must

first verify the Indian or non-Indian status of a child prior to the termination hearing. In re

D.E., ¶ 24 (citations omitted). The question of whether a child is eligible for tribal

membership is, except where limited by federal statute or treaty, in the sole power of the

tribes. In re D.E., ¶ 25 (citing In re A.G., 2005 MT 81, ¶ 13, 326 Mont. 403, 109 P.3d 756).

When a court has reason to believe a child may be an Indian child, proceeding to

termination without a conclusive tribal determination of tribal membership or eligibility is

an abuse of discretion. In re D.E., ¶ 25. 25 U.S.C. § 1914 allows “any parent . . . from

whose custody [an Indian] child was removed” to “petition any court of competent

jurisdiction to invalidate such action upon a showing that such action violated any

6 provision of [25 U.S.C. §§ 1911, 1912, and 1913].” 25 U.S.C. § 1914. Upon such a

showing, “the court must determine whether it is appropriate to invalidate the action.” 25

C.F.R. § 23.137(b) (2020). “This rule does not require the court to invalidate an action,

but requires the court to determine whether it is appropriate to invalidate the action under

the standard of review under applicable law.” In re S.B., 2019 MT 279, ¶ 28, 398 Mont.

27, 459 P.3d 214 (internal quotation marks omitted); see also Bureau of Indian Affairs,

Guidelines for Implementing the Indian Child Welfare Act 76 (Dec. 2016),

https://perma.cc/2JZM-YAUZ. 25 U.S.C. § 1912(a) requires the Department provide an

Indian child’s tribe notice of proceedings to place an Indian Child in foster care or terminate

the parental rights to the Indian child at least ten days before any hearing. In re S.B., ¶ 32;

see also 25 C.F.R. § 23.111 (2020). The Department must provide notice “by registered

or certified mail with return receipt requested,” and “the court must ensure that . . . [a]n

original or a copy of each notice sent under this section is filed with the court together with

any return receipts or other proof of service.” 25 C.F.R. § 23.111(a)(2), (c); In re S.B.,

¶ 32. We have explained, however, that “ICWA’s notice requirements are not

jurisdictional and are subject to harmless error review.” In re S.B., ¶ 32 (quoting In re

M.S., 2014 MT 265A, ¶ 22, 376 Mont. 394, 336 P.3d 930). “An error involving notice to

a tribe is not ground for reversal unless there is a reasonable probability that the appellant

would have obtained a more favorable result in the absence of the error.” In re S.B., ¶ 32

(quoting In re M.S., ¶ 22).

7 ¶12 Here, Father does not assert Child is actually an Indian child or that ICWA applies,

but rather asserts the Department did not file a written document from the Tribe confirming

Child was not an Indian child. In early 2019, presumably based on information that

Grandfather was an enrolled member of the Tribe, the Department sent a letter to the Tribe

to find out if Mother was eligible for enrollment and to notify the Tribe about the

proceedings. Within two months, the Department received confirmation Mother was not

eligible for enrollment, confirming Child was also not eligible for enrollment and was,

thus, not an Indian child. The Department notified the parties and the court of this

confirmation through its May 24, 2019 Petition to Extend TLC and supporting affidavit.2

Further, CPS Amy Pearson testified ICWA did not apply to this case at the termination

hearing. Father failed to object to the sufficiency of the Department’s confirmation, did

not object to CPS Pearson’s testimony, or assert at the District Court level—or on appeal—

that ICWA applied. As Father did not raise this issue below, he must first convince us that

failure to review the error may result in a manifest miscarriage of justice or may

compromise the integrity of the judicial process and, if so, that Father would have obtained

a more favorable result in the absence of the error. In re S.C., 2005 MT 241, ¶ 35, 328

Mont. 476, 121 P.3d 552 (citation omitted); In re S.B., ¶ 32. Given the circumstances

2 The Petition stated: “The Department has contacted the ICWA Coordinator with the Turtle Mountain Band of Chippewa Indians and received confirmation that although the maternal grandfather has a blood quantum of 41/128 (about 1/3), the child’s mother does not meet the [1/4] blood quantum minimum requirement for enrollment eligibility and neither does the subject child.” The CPS supporting affidavit averred, “to the best of my knowledge and belief, [Child] is not [an] Indian Child[] Subject to the Indian Child Welfare Act.”

8 present here, Father has not demonstrated the District Court’s failure to require the

Department to file a different written confirmation from the Tribe resulted in a manifest

miscarriage of justice, compromised the integrity of the legal process, or would have

resulted in a more favorable outcome in the absence of the asserted error. Thus, under the

facts presented, lack of written documentation from the Tribe did not create reversible

error.

¶13 2. Whether the District Court erred in terminating Father’s parental rights pursuant to § 41-3-609(1)(f), MCA.

¶14 Father first asserts that the presumption favoring termination set forth in § 41-3-

604(1), MCA, does not apply as Child was placed in kinship care. There is nothing in the

District Court’s termination order indicating it applied or imposed any presumption under

§ 41-3-604(1), MCA. Accordingly, we do not address Father’s assertion in this regard.

¶15 Next, Father asserts the District Court erred in concluding continuation of the

parent-child relationship would result in continued abuse and neglect and that termination

was in Child’s best interests. Father reasons that since Child has successfully been

reunified with Mother, Child has, in essence, achieved permanency and no longer faces

abuse or neglect by Father. Father asserts the Department confused its role in advocating

for Mother in pursuing termination of Father’s parental rights to circumvent the proper

legal process of Mother and Father engaging in a separate parenting action to establish and

implement a parenting plan setting forth the rights and responsibilities of each to and

9 regarding Child. Father asserts the Department’s role in this case was merely to ensure

Child had a safe and appropriate home to return to with Mother.3

¶16 A court may terminate parental rights when (1) a child has been adjudicated as a

YINC; (2) an appropriate treatment plan approved by the court has not been complied with

by the parent or has not been successful; and (3) the conduct or condition of the parent

rendering him or her unfit is unlikely to change within a reasonable time. Section

41-3-609(1)(f), MCA. Each factor must be supported by clear and convincing evidence.

Section 41-3-609(1), MCA. In determining whether the conduct or condition of the parent

is likely to change within a reasonable time, “the court shall enter a finding that

continuation of the parent-child legal relationship will likely result in continued abuse or

neglect or that the conduct or the condition of the parent[] renders the parent[] unfit, unable,

or unwilling to give the child adequate care.” Section 41-3-609(2), MCA. In making this

determination, the court must at least consider: “(a) emotional illness, mental illness, or

mental deficiency of the parent of a duration or nature as to render the parent unlikely to

care for the ongoing physical, mental, and emotional needs of the child within a reasonable

time; (b) a history of violent behavior by the parent; (c) excessive use of intoxicating liquor

or of a narcotic or dangerous drug that affects the parent’s ability to care and provide for

3 Father asserts termination of his parental rights with regard to Child cannot be in Child’s best interests because the Department did not intervene with regard to a second child, H.D.,—born to he and Mother during the pendency of this cause—and his parental rights have not been terminated in relation to H.D. Father asserts there is a parenting plan in place between he and Mother with regard to H.D. and that a parenting plan could adequately protect Child without termination of his parental rights.

10 the child; and (d) present judicially ordered long-term confinement of the parent.”

Section 41-3-609(2)(a)-(d), MCA.

¶17 The District Court terminated Father’s parental rights pursuant to § 41-3-609(1)(f),

MCA, finding Child was a YINC, Father failed to complete an appropriate treatment plan,

and the conduct or conditions rendering Father unfit, unable, or unwilling to give adequate

parental care were unlikely to change within a reasonable time. The District Court

additionally found that continuation of the “legal relationship between Father and Child

will likely result in continued abuse and neglect, and is no longer in the best interest of the

child to continue to work towards reunification with Father, as is more particularly

described in [CPS Pearson’s] Affidavit.” CPS Pearson’s Affidavit in support of the

termination petition, details Father’s conduct and conditions within the framework of

§ 41-3-609(2)(a)-(d), MCA, and comprehensively describes his lack of any meaningful

progress during the entirety of this case.4

4 Specifically, she notes Father failed to successfully complete any of his treatment plan tasks and has not demonstrated any progress in meeting any of the treatment plan goals. She notes Father continues to exhibit mental health deficiencies with emotional lability common with untreated mental health concerns of a duration that renders him unlikely to care for Child’s physical, mental, and emotional needs. She notes Father’s history of violent behavior with two PFMA convictions in addition to an assault conviction and his periodic incarcerations during the case. She notes Father’s excessive use of alcohol or drugs with continued use of methamphetamine and marijuana during the entirety of the case. She notes Father’s present judicially ordered confinement, having been revoked and sentenced on November 5, 2019, to two years at the Montana Department of Corrections, none suspended, with recommendation for drug treatment. Finally, she notes it unlikely Father will change within a reasonable time as he has repeatedly demonstrated an inability to self-regulate and conduct himself in a safe and appropriate manner.

11 ¶18 We agree with Father that it is not the role of the Department to advocate for one

parent to circumvent parents’ obligations under Title 40, MCA, to establish and enforce

their own parenting plans. While Father is correct that the Department could have elected

to require Mother to obtain a suitable parenting plan, reunify Child with Mother, and

dismiss the action; under the particular circumstances of this case, the Department was not

required to do so. From our review of the record, it is apparent Father was abusive to

Mother during their relationship. When Mother had opportunity to successfully engage in

an in-home safety plan, Father refused to involve himself with such. Rather than engage

in the in-home safety plan by residing with Child and Grandfather, within a day Mother

returned to reside with Father. There is no indication Father did anything to put Child’s

needs ahead of his own to dissuade Mother from returning to his residence. Mother has

exhibited dependency features, demonstrating difficulty in standing up to Father without

considerable assistance from others. Father’s contentious and antagonistic behaviors

toward Mother continued to the extent Father was unable to focus on his own relationship

with Child and refrain from these behaviors towards Mother and visitation staff during

Child visits. As a result, the Department had to terminate joint visits. Thereafter, Father

made no sincere attempt to reinstate his visits or have any ongoing contact with Child.

Father has not demonstrated an ability to maintain emotional regularity such that

throughout the entirety of the case he failed to productively interact with Mother, the

Department, his attorney, or the court. Father’s therapist advised CPS he needed extensive,

long-term therapy for any effective change to take place, but he took no meaningful steps 12 to engage in ongoing mental health services and has made no meaningful progress in this

regard. Father has not demonstrated a period of sobriety for any meaningful period of time

and continued to engage in criminal activity. His emotional dysregulation then

complicated his legal problems resulting in revocation of a suspended sentence and then

termination from pre-release. At the time of the termination hearing, Father was at the

outset of participation in the START program. Father has basically shown little to no

interest in addressing his parenting deficiencies but instead has relied upon Mother to

regain custody in order to protect his parental rights.

¶19 This is not a case where a parent engaged with the Department but did not make as

significant or as timely of gains as the other parent, such that the issue of how best to

co-parent would properly be left to the parties in a parenting plan action. Father faults the

Department for asserting, through testimony of CPS Pearson at the termination hearing,

that it was not only important for Child to have permanency and be settled but it was also

important for Mother to feel permanency and be settled. Father asserts it is only Child’s

interest in permanency and being settled, not Mother’s, which the Department should

consider. Here though, the evidence suggests Father has negatively impacted Mother’s

parenting abilities and termination of Father’s parenting rights improves Mother’s potential

to remain a safe, stable parent for Child which is at the heart of Child’s permanency.

Throughout the case, Father has shown no abilities to work productively with others—

Mother, Grandfather, his attorney, service providers, or the Department. Father suffers

ongoing emotional dysregulation and substance use issues and has shown no understanding 13 of how his criminal behavior and lack of progress on his treatment plan have hindered his

ability to successfully reunify with Child. Father’s historical detrimental interaction with

Mother and conduct or conditions rendering him unable to parent—unaddressed mental

health issues with ongoing emotional dysregulation, unaddressed substance use issues, and

ongoing legal difficulties with intermittent incarceration—combined with his lack of any

meaningful progress or insight, support the District Court’s findings that the conduct or

condition rendering him unfit, unable, or unwilling to parent will not change within a

reasonable time and that it is contrary to Child’s best interests to maintain the parent-child

relationship between Father and Child. As such, Father has not convinced us the District

Court either abused its discretion or misinterpreted the law.

CONCLUSION

¶20 The District Court’s failure to obtain written confirmation of Child’s enrollment

eligibility directly from the Tribe did not constitute reversible error under the facts of this

case and its decision to terminate Father’s parental rights was not an abuse of discretion.

¶21 Affirmed.

/S/ INGRID GUSTAFSON

We concur:

/S/ LAURIE McKINNON /S/ BETH BAKER /S/ DIRK M. SANDEFUR /S/ JIM RICE