May 15 2013
DA 12-0705
IN THE SUPREME COURT OF THE STATE OF MONTANA
2013 MT 133
IN THE MATTER OF:
K.B. and T.B.,
Youths in Need of Care.
APPEAL FROM: District Court of the Eighth Judicial District, In and For the County of Cascade, Cause Nos. DDN-11-006 and DDN-11-007 Honorable Dirk M. Sandefur, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Nancy G. Schwartz, Attorney at Law, Billings, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, C. Mark Fowler, Assistant Attorney General, Helena, Montana
John Parker, Cascade County Attorney, Matthew S. Robertson, Deputy County Attorney, Great Falls, Montana
Submitted on Briefs: April 17, 2013
Decided: May 14, 2013
Filed:
__________________________________________ Clerk Justice Beth Baker delivered the Opinion of the Court.
¶1 C.B., a member of the Chippewa Cree Tribe, appeals an order of the Eighth
Judicial District Court, Cascade County, alleging that the court terminated her parental
rights without following the requirements of the federal Indian Child Welfare Act, 25
U.S.C. § 1901 et. seq. We restate the issue on appeal as follows: Whether the
termination proceedings complied with statutory requirements for proceedings involving
Indian children.
¶2 We reverse the District Court’s termination order and remand the case for the
purpose of curing statutory deficiencies and holding a new termination hearing.
PROCEDURAL AND FACTUAL BACKGROUND
¶3 C.B. (Mother) is an enrolled member of the Chippewa Cree Tribe (Tribe). Each of
her two children—two-year-old K.B. and five-year-old T.B.—qualifies as an “Indian
child” under the Indian Child Welfare Act (ICWA), 25 U.S.C. § 1903(4). ICWA’s
procedural requirements for involuntary proceedings involving Indian children and its
criteria for termination of parental rights thus govern this case.
¶4 On January 21, 2011, Mother, while extremely intoxicated, took the children
outside for a walk in cold weather conditions. Proceeding down a busy street, Mother
tipped the stroller over, causing the children to fall into snow and sleet. The children
were transported to the emergency room to be treated for hypothermia and then were
placed in a youth protective facility. Mother was arrested for two counts of felony
criminal endangerment. After communicating with Mother, Kami Moore, the Montana
Department of Public Health and Human Services (Department) child protection 2 specialist assigned to the case, placed the children with their maternal grandmother in
Box Elder, Montana.
¶5 On January 28, 2011, the Department filed a Petition for Emergency Protective
Services, Adjudication as Youth in Need of Care and Temporary Legal Custody. The
District Court set a show cause hearing on the petition for March 7, 2011. On February
2, 2011, the court issued a citation to Mother, directing her to appear at the hearing. The
Cascade County Attorney’s Office sent notice of the hearing to the Tribe by certified
mail, return receipt requested, on February 3, 2011. At the March 7, 2011 show cause
hearing, Mother appeared with her attorney and stipulated that her children were youths
in need of care. The court adjudicated the children as youths in need of care and granted
temporary legal custody to the Department, pending a dispositional hearing.
¶6 A dispositional hearing was held on April 11, 2011, at which the Department
presented a proposed treatment plan for Mother, who did not appear but was represented
by counsel. Mother’s counsel did not object to the treatment plan and stated that he had
not had contact with Mother. Among other provisions, the plan required Mother to
maintain sobriety, complete a chemical dependency evaluation, submit to random drug
and alcohol screenings, acquire a stable residence, maintain employment, demonstrate
that she could financially support the children, and maintain contact with Moore and with
the children. Following the hearing, the court entered an order adopting the State’s
proposed treatment plan for Mother, approving the children’s current placement with
their maternal grandmother and granting temporary legal custody of the youths to the
Department for six months. 3 ¶7 The Tribe filed a Notice of Appearance and Intervention on June 29, 2011. The
notice stated that “the Tribe’s social service and other personnel will be available to assist
the Court in its deliberations” and that the Tribe was reserving the right “to move for a
transfer of jurisdiction in this cause should that become necessary.” The District Court
held a status hearing on July 11, 2011, at which Mother appeared and agreed to follow
the treatment plan.
¶8 The court granted the Department several extensions of temporary legal custody of
the children between September 2011 and July 2012, as Mother attempted to complete
the treatment plan but made limited progress. The court also held numerous status
hearings, at which Mother’s counsel often appeared without Mother and reported that he
had had no contact with her. Moore’s reports also indicated that Mother, in contravention
of the treatment plan, failed to keep in contact with Moore and with the children. Those
events, detailed below, led the Department to develop a plan for permanent placement of
the children and eventually seek termination of Mother’s parental rights.
¶9 On October 3, 2011, the District Court held a hearing on the State’s petition to
extend legal custody, at which Mother was present with counsel and the Tribe appeared
telephonically. The court granted the State’s petition to extend temporary legal custody
for an additional six months “to allow the Mother to complete her treatment plan and to
allow the child[ren] to be reunified with the Mother.”
¶10 On January 23, 2012, the court held a status hearing, at which Mother was not
present but was represented by counsel. The Department informed the court that it
intended to seek termination of Mother’s parental rights. According to the court, 4 Mother’s attorney “took no position because he had not had any contact with his client in
quite some time.”
¶11 On April 13, 2012, the county attorney filed a Petition to Extend Temporary Legal
Custody. The attached affidavit of Moore stated that:
[Mother] . . . has not had any contact with me for four months. The numbers that she has provided me with have either been disconnected or are wrong numbers. [Mother] is not engaged with any of her services providers or me. [Mother] does not visit with her children so she is losing any connection she may have had with them.
A few days later, the county attorney filed a Motion for Permanency Plan Hearing and
Notice of Permanency Plan Report. The attached report and plan, prepared by Moore,
stated that the Department’s “primary goal” was “reunification with the birthmother [sic],
dependent on the completion of the treatment plan,” but “if reunification does not
occur[,] the concurrent plan is adoption with family.” The report noted that the children’s
maternal grandmother expressed desire to serve as the children’s permanent placement.
¶12 On April 16, 2012, the court held a hearing on the proposed permanency plan, at
which Mother was present with her counsel and, according to the court, “took no
position” on the plan. The court’s April 24, 2012 order adopting the permanency plan
stated that “Mother stipulated to the extension of Temporary Legal Custody for a period
of 3 months and to the permanency plan. The Mother stated that she is currently in
chemical dependency treatment and is attempting to demonstrate that she is committed to
completing the treatment plan.”
¶13 On June 20, 2012, the county attorney filed another petition to extend temporary
legal custody so that Mother would have “time to work towards the successful 5 completion of her respective court-ordered treatment plan.” Moore’s attached affidavit
stated once again that Mother had not been in contact with her and the Department would
“start the termination process.”
¶14 On September 17, 2012, the county attorney filed a Petition for Permanent Legal
Custody and Termination of Parental Rights. The petition requested termination of
Mother’s parental rights pursuant to § 41-3-609(1)(f), MCA, due to failure to comply
with the court-ordered treatment plan. The District Court set a termination hearing for
October 22, 2012.
¶15 Mother appeared with counsel at the termination hearing and contested the
termination of her parental rights, suggesting instead that the State be granted a long-term
guardianship of the children. The Tribe did not appear. Mother’s attorney informed the
court:
I don’t think alcoholism is a reason to terminate under the Indian Child Welfare Act. My client has been making visits. My client is employed. And my client has been going to group care, in regard to an alcohol issue. The Indian Child Welfare Act does not encourage termination regarding alcoholism. . . .
Because counsel could not support his client’s position with a specific citation to ICWA,
the court responded that it could not consider counsel’s objection: “I’m saying, for the
record, to the Montana Supreme Court and to you, frankly, I can’t consider an objection
on legal authority that’s not cited to the Court.”
¶16 The court heard testimony from Anna Fisher, the State’s ICWA expert, who
opined that the children would be “at risk” if returned to Mother’s custody and that
termination was “in the best interest of the children.” 6 ¶17 At the conclusion of the hearing, the District Court terminated Mother’s parental
rights. The court’s November 1, 2012 order stated that, “except for a period of time
between February and July of 2011, where mother was living with her mother, the
maternal grandmother, in Box Elder with the child[ren] and grandmother under a safety
plan, mother has not completed any requirement of her treatment plan.” The court noted
that Mother had been given numerous opportunities to comply with the treatment plan,
but had on every occasion failed to follow through. The court also relied on Fisher’s
hearing testimony, which it summarized as follows:
A qualified Indian Child Welfare Act expert testified at this hearing and testified essentially that continued or resumed custody of the children with the mother was likely to result in immediate risk of harm to the children, due to the mother’s failure to obtain and maintain a stable home as required by her treatment plan, and the immediate danger of alcohol relapse, due to her continued untreated Chemical Dependency problem.
The court found that “termination is not contrary to the customs of the Chippewa Cree
Tribe,” and that “circumstance[s] of abject failure or refusal of a parent to engage and
endeavor in any positive manner, to address manifest parental problems” supported its
decision to terminate Mother’s parental rights. Mother appeals.
STANDARD OF REVIEW
¶18 We review for an abuse of discretion the district court’s decision to terminate
parental rights. In the Matter of T.W.F. and A.R.M., 2009 MT 207, ¶ 17, 351 Mont. 233,
210 P.3d 174. 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
7 emotional or physical damage to the child. T.W.F., ¶ 18 (citing In the Matter of A.N.,
2005 MT 19, ¶ 19, 325 Mont. 379, 106 P.3d 556). “A district court’s application of the
law to the facts of a case is a legal conclusion which we review to determine whether the
interpretation of the law is correct.” In re J.W.C., 2011 MT 312, ¶ 15, 363 Mont. 85, 265
P.3d 1265 (quoting In re C.H., 2000 MT 64, ¶ 9, 299 Mont. 62, 997 P.2d 776).
¶19 ICWA provides that “any parent or Indian custodian from whose custody such
[Indian] 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 section 1911, 1912, and 1913 of this title.” 25 U.S.C. § 1914.
DISCUSSION
¶20 Whether the termination proceedings complied with statutory requirements for proceedings involving Indian children.
¶21 Congress enacted ICWA in 1978 to address the “alarmingly high” percentage of
Indian families “broken up by the removal, often unwarranted, of their children from
them by nontribal public and private agencies” and the “alarmingly high” percentage of
placement of those children “in non-Indian foster and adoptive homes and institutions.”
25 U.S.C. § 1901(4). Thus, in order to “protect the best interests of Indian children and
to promote the stability and security of Indian tribes and families,” ICWA provides
minimum federal standards, which must be followed strictly by state courts, to ensure
that placement “will reflect the unique values of Indian culture.” 25 U.S.C. § 1902; see
Guidelines for State Courts; Indian Child Custody Proceedings (ICWA Guidelines), 44
Fed. Reg. 67584, 67586, § A.1 (Nov. 26, 1979) (“Proceedings in state courts involving
8 the custody of Indian children shall follow strict procedures and meet stringent
requirements to justify any result in an individual case contrary to these preferences.”).
¶22 Mother argues that notice of the termination proceedings was insufficient under
ICWA, which provides:
In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child’s tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention. . . . 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 . . . .
25 U.S.C. § 1912(a). As a preliminary matter, we disagree with the State that Mother’s
failure to object before the District Court waives our review of this issue. A “court of
competent jurisdiction” under 25 U.S.C. § 1914 has been held to include an appeals
court; thus, failure to comply with ICWA notice requirements may be raised for the first
time on appeal. See In re Gabriel G., 206 Cal. App. 4th 1160, 1166 (Cal. App. 2012)
(recognizing that “[t]he issue of ICWA notice is not waived by the parent’s failure to first
raise it in the trial court”) (internal citation omitted). We are in agreement with numerous
other jurisdictions that 25 U.S.C. § 1914 “specifically confers standing on a parent to
petition a court to invalidate a termination proceeding upon showing that notice
requirements have not been satisfied.” In the Interest of W.D.H., 43 S.W.3d 30, 38 (Tex.
App. 2001); see also In re L.A.M., 727 P.2d 1057, 1059 (Alaska 1986); In re S.M.H., 103
P.3d 976, 981-82 (Kan. App. 2005).
9 ¶23 Mother concedes that “[w]hen the proceedings first began, the State filed notice in
compliance with the Act,” but argues that the State did not provide sufficient notice of the
termination proceedings. Mother points out that no certificate of service was filed with
the court or attached to the petition for termination—even if there was, she argues that the
Tribe should have received notice of the termination proceeding by registered mail with
return receipt requested, at least ten days prior to the termination hearing.
¶24 As noted, the Tribe received notice of the initial dependency proceedings by
registered mail, in accordance with 25 U.S.C. § 1912(a), and filed a notice of intervention
in the case. The State’s September 17, 2012 Petition for Permanent Legal Custody and
Termination of Parental Rights, as well as the court’s order setting the termination
hearing, indicate by notation that copies were “cc’d” to Mother, Mother’s counsel and the
Tribe, but the Petition includes no accompanying certificate of service and the record
contains no documentation to demonstrate that timely service was accomplished.1 The
Tribe did not appear at the termination hearing.
¶25 This Court has found persuasive the ICWA Guidelines adopted by the Bureau of
Indian Affairs and applies them in Indian child custody cases. J.W.C., ¶ 21. The
Guidelines state that “[t]he time limits are minimum ones required by the Act.” ICWA
Guidelines, 44 Fed. Reg. at 67589, § B.5. The ICWA Guidelines further provide that
1 A certificate of service executed by the Cascade County Sheriff indicates that Mother may have been served on October 14, 2012—only eight days prior to the termination hearing—with copies of the Citation, Order to Show Cause, Notice of Show Cause and Adjudicatory Hearing, and Temporary Legal Custody, and Affidavit of Child Protection Specialist for Emergency Protective Services and Temporary Legal Custody. The document thus does not verify that Mother was served with notice of the termination proceedings. It does not even include Mother’s correct name. 10 “[t]he original or a copy of each notice sent pursuant to this section shall be filed with the
court together with any return receipts or other proof of service” so that “there will be a
complete record of efforts to comply with the Act.” ICWA Guidelines, 44 Fed. Reg. at
67588-89, §§ B.4(d)-B.5. Since the record does not reflect that both Mother and the
Tribe received notice ten days in advance of the hearing, we conclude that notice was
insufficient under 25 U.S.C. § 1912(a). See People ex rel. S.R.M., 153 P.3d 438, 442
(Colo. App. 2006) (failure to provide notice of termination proceedings “violates the
plain meaning of 25 U.S.C. § 1912(a),” even where the state provided proper notice of
the dispositional hearing); S.H. v. Calhoun Co. Dept. of Human Res., 798 So. 2d 684, 692
(Ala. Civ. App. 2001) (same).
¶26 Mother argues next that the State failed to demonstrate beyond a reasonable doubt
that her continued custody was “likely to result in serious emotional or physical damage
[to] her children” and “that the Department utilized ‘active efforts’ to reunite [Mother]
with her children.”
¶27 We agree with Mother that the State’s case lacked the required expert testimony
that Mother’s conduct would likely cause serious emotional or physical harm to the
children. ICWA provides:
No termination of parental rights may be ordered . . . 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). Additionally, Montana’s statute governing the termination of
parental rights was amended in 2005 to include the following: 11 (5) If a proceeding under this chapter involves an Indian child and is subject to the federal Indian Child Welfare Act, a qualified expert witness is required to testify that the continued custody by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.
Section 41-3-609(5), MCA (emphasis added).
¶28 Though “a district court need not conform its decision to the expert’s testimony,”
the language of both ICWA and § 41-3-609(5), MCA, makes clear that expert testimony
on the issue is necessary in making a termination decision. See In re D.S.B., 2013 MT
112, ¶ 18, ___ Mont. ___, ___ P.3d ___; A.N., ¶ 32; T.W.F., ¶ 26. Accordingly, failure to
elicit expert testimony regarding whether continued custody will result in serious
emotional or physical damage to the children requires reversal of the termination order.
¶29 Here, as noted, the ICWA expert was questioned regarding whether the children
would be “at risk” if placed in Mother’s custody and whether termination was “in the best
interest of the children”—not whether Mother’s continued custody would likely result in
serious emotional or physical damage. Fisher testified in pertinent part as follows:
Q. Okay. Based on this case, do you believe that the children would be at risk if they were to be returned to their mother?
A. With the mother not having a stable home of her own, yes, I do.
. . .
Q. What about mother’s chemical dependency issues and the fact that she hasn’t had to complete any treatment?
A. I just briefly spoke with the mother and she said that she’d been clean for a while, but I don’t know that. So –
Q. Okay.
12 A. – but with chemical dependency, no, I would not return them.
Q. Okay. And do you believe that termination is in the best interest of the children at this time?
A. At this point, yes.
THE COURT: What’s the risk that you’re concerned about?
THE WITNESS: Of them being returned to their mother?
THE COURT: Yes.
THE WITNESS: Not a stable home environment and relapsing, for the mother. Right now they’re in a safe environment with their grandmother. And like I said, she has brothers and sisters that are able to help out.
[CROSS-EXAMINATION]
Q. Good morning. Do you think, if, given additional time or more of an opportunity, that [Mother] could follow through with the chemical dependency and become a functioning parent of these children?
A. I believe it could happen, yes, I do.
In the absence of expert testimony that continued custody with Mother would likely
result in serious emotional or physical damage to the children, the evidentiary record does
not meet the statutory standard to support the required finding beyond a reasonable doubt.
Based on Fisher’s testimony, the District Court found that placement with Mother was
“likely to result in immediate risk of harm to the children”—an insufficient finding under
25 U.S.C. § 1912(f) and § 41-3-609(5), MCA, to support the court’s termination order.
13 ¶30 The ICWA Guidelines indicate that evidence of alcohol abuse alone is insufficient
to determine “that continued custody is likely to result in serious emotional or physical
damage to the child.” ICWA Guidelines, 44 Fed. Reg. at 67593, § D.3.c. While the
court properly may consider all evidence presented during the hearing in determining the
sufficiency of the evidence for termination, the Montana statute was amended after this
Court decided A.N. and leaves no doubt that the evidence must include the expert’s
opinion that serious emotional or physical damage to the children will result if they are
left in the parent’s custody. Section 41-3-609(5), MCA. “The evidence must show the
causal relationship between the conditions that exist and the damage that is likely to
result.” ICWA Guidelines, 44 Fed. Reg. at 67593, § D.3.c. Fisher’s testimony fell short
of this standard.
¶31 Finally, Mother argues that the State failed to demonstrate that it made “active
efforts” to prevent the breakup of the Indian family. 25 U.S.C. § 1912(d) provides:
Any 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.
We have clarified that the State must demonstrate beyond a reasonable doubt that active
efforts were made to prevent the breakup of the Indian family. In the Matter of G.S.,
2002 MT 245, ¶ 33, 312 Mont. 108, 59 P.3d 1063; D.S.B., ¶ 15. We observed in G.S. that
a “[c]ommon sense construction of the meaning of ‘active efforts’ requires only 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 [designed] 14 to remedy problems which might lead to severance of the parent-child relationship.’ ”
G.S., ¶ 36 (quoting Letitia v. Super. Ct., 81 Cal. App. 4th 1009, 1016 (Cal. App. 2000)).
In meeting this “heightened responsibility,” the State “cannot simply wait for a parent to
complete a treatment plan.” T.W.F., ¶ 27. Nor does placement with a family member
automatically satisfy the standard. Courts have held that “placement is a separate issue
from active efforts, and that the two issues must be analyzed separately. The exception to
that rule — under which a placement decision may be relevant to an active efforts
analysis — applies when a child’s placement directly impacts a parent’s ability to
participate in remedial efforts.” Thea G. v. State, 291 P.3d 957, 963 (Alaska 2013); see
also David S. v. State, Dep’t of Health & Soc. Servs., Office of Children’s Servs., 270
P.3d 767, 780 (Alaska 2012) (“[P]lacement decisions present a separate analytical
question from termination decisions.”); In re A.A., 167 Cal. App. 4th 1292, 1318 (Cal.
App. 2008) (“ICWA and . . . California’s statutory law address the issue of an Indian
child’s placement separately from the issue of active efforts. Following their lead, we
distinguish the issue of placement from that of active efforts.”).
¶32 In this case, the State’s implementation of a safety plan to maintain a trial home
visit at the maternal grandmother’s house demonstrated an effort to prevent breakup of
the Indian family. Its presentation at the termination hearing, however, focused on the
standards for termination under Montana law; neither the State nor the court in its
findings of fact and conclusions of law expressly addressed whether ICWA’s heightened
standard for active efforts was met.
15 ¶33 Because we are reversing for a new termination hearing, the State will have the
opportunity to further develop the record regarding “active efforts” that were made and
the court’s findings of fact should address those efforts. As we have held, the court also
may consider “a parent’s demonstrated apathy and indifference to participating in the
treatment.” A.N., ¶ 23. Here, while the court’s findings of fact and conclusions of law
properly contain detailed information about Mother’s repeated failures, the court did not
address the Department’s active efforts to provide services and programs aside from
finding that the State developed a treatment plan tailored to address Mother’s chemical
dependency problem.
¶34 In conclusion, our review of the record reveals that the termination proceedings
did not comply with the mandates of ICWA and its parallel state provisions. Mother and
the Tribe should have received notice of the petition for termination at least ten days in
advance of the termination hearing, but the record does not substantiate that they did.
25 U.S.C. § 1912(a). At the termination hearing, the ICWA expert was required to testify
as to whether Mother’s continued custody was “likely to result in serious emotional or
physical damage to the child[ren],” but she did not. 25 U.S.C. § 1912(f); § 41-3-609(5),
MCA. The State was required to satisfy the District 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,” but the
District Court’s termination order does not discuss which, if any, “active efforts” were
made. 25 U.S.C. § 1912(d). ICWA sets minimum federal standards for proceedings
16 involving Indian children, and we are compelled to make sure its requirements are
followed. 25 U.S.C. § 1902.
¶35 Accordingly, we reverse the District Court’s termination order and remand the
case for the purpose of holding a new termination hearing. Because we reverse, we do
not reach Mother’s argument that she received ineffective assistance of counsel.
/S/ BETH BAKER
We concur:
/S/ BRIAN MORRIS /S/ PATRICIA COTTER /S/ LAURIE McKINNON /S/ JIM RICE