08/10/2021
DA 20-0478 Case Number: DA 20-0478
IN THE SUPREME COURT OF THE STATE OF MONTANA 2021 MT 199
IN THE MATTER OF:
L.H.,
A Youth in Need of Care. Bo\nr:n Crt,ct,nwood Olen: cf Su7,r:rn-le Court State of Mont2r-1,,7-
APPEAL FROM: District Court of the Second Judicial District, In and For the County of Butte-Silver Bow, Cause No. DN-18-56 Honorable Robert J. Whelan, Presiding Judge
COUNSEL OF RECORD:
For Appellant Father:
Shannon Hathaway, Driscoll Hathaway Law Group, Missoula, Montana
For Appellant Mother:
Dana A. Henkel, Terrazas Henkel, P.C., Missoula, Montana
For Appellee:
Austin Knudsen, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana
Eileen Joyce, Butte-Silver Bow County Attorney, Butte, Montana
Mark Vucurovich, Special Deputy County Attorney, Henningsen, Vucurovich & Richardson, P.C., Butte, Montana
Submitted on Briefs: May 5, 2021
Decided: August 10, 2021
Filed:
Clerk Justice Dirk Sandefur delivered the Opinion of the Court.
¶1 Respondents A.H. (Mother) and D.H. (Father) appeal the separate but related
September 2020 Youth in Need of Care(YINC)judgments ofthe Montana Second Judicial
District Court, Butte-Silver Bow County, terminating their respective parental rights to
L.H., born Decernber 23, 2017. We address the following restated issues:
1. Whether the District Court erroneously proceeded to YINC adjudication, temporary legal custody, and parental rights termination without a determination ofL.H.'s eligibilityfor enrollment in the "Lakota Sioux Tribe"?
2. Whether the District Court erroneously terminated the parents' rights under § 41-3-609(1)0, MCA, without adequate evidence under governingfederal and state standards ofa substantial risk ofphysical or psychological neglect?
3. Whether the District Court erroneously terminated Father's parental rights without adequate evidence under governingfederal and state standards that his conduct or condition of unfitness was unlikely to change within a reasonable time?
We affirm.
PROCEDURAL AND FACTUAL BACKGROUND
¶2 The Montana Departrnent of Health and Human Services (Department) became
involved with L.H. at birth when the child's umbilical cord tissue tested positive for
marijuana(THC), opiates, and codeine. Based on additional reports of illicit drug use and
sales, the Department later intervened in May 2018 with a voluntary short-term,
out-of-home protection plan structured to allow the parents to dernonstrate the ability to be
drug-free and safely parent L.H. The protection plan soon failed, however, resulting in
Department removal of L.H. to a protective kinship placement, and the June 14, 2018,
filing of a petition for ernergency protective services (EPS), YINC adjudication, and
2 temporary legal custody (TLC). Based on Father's cursory assertion of his possible
affiliation with the "Lakota Sioux Tribe," the Department gave notice of the proceeding to
the Great Plains Regional Office of the federal Bureau ofIndian Affairs(BIA)pursuant to
25 U.S.C. § 1912(a) of the federal Indian Child Welfare Act'(ICWA).2
At the show cause hearing3 on July 18, 2018, the Departrnent presented the
uncontested testimony of a qualified ICWA expert that the parents' continued custody of
L.H. would likely result in serious physical and emotional darnage under the circumstances.
On motion of one of the parents, the court then recessed and continued the hearing to a
later date. After taking additional contested evidence at the continued show cause and
combined adjudicatory hearing4 on August 15, 2018, the District Court issued a bench
order summarily adjudicating L.H. as a YINC and further summarily granting the
Department TLC. Upon resumption of the hearing after a short recess, the State presented
the after-the-fact testimony ofthe assigned Departrnent social worker that "temporary legal
custody is in the best interests ofthis child," and her statement of intent to craft appropriate
reunification-oriented treatment plans for the parents. The District Court then summarily
adopted "the recommendation of the department." A written judgrnent issued the next day
'25 U.S.C. § 1901, et seq.
2The Department filed proof of service of the BIA notice on June 28, 2018. The proof of service indicated that the Department sent the notice to the "Lakota Sioux Tribe" at the published mailing address of the Great Plains Regional Office of the BIA.
3 See § 41-3-432, MCA(YINC show cause hearing).
4 See §§ 41-3-432(9) and -437(1)-(2), MCA(YINC adjudications at show cause hearings). 3 formally adjudicating L.H. as a YINC5 based on "physical neglect for exposing the child
to an unsafe living environment and physical and emotional harm" resulting from ongoing
abuse of prescription drugs. The judgment further granted the Department TLC for a
period of six months, until February 15, 2019. Inter alia, the written judgment
expressly:(1)found that L.H. "is a member of or is enrollable in the Lakota Sioux Tribe";
(2) noted the prior testimony of a qualified ICWA expert that "continued custody of[L.H.]
by the parents is likely to result in serious emotional or physical damage" based on the
"established" facts; and(3)adjudicated that the "out-of-home placement of[L.H.] complies
with the requirements" of 25 U.S.C. § 1915. At a subsequent uncontested hearing on
November 14, 2018, the court approved and imposed stipulated reunification-oriented
treatment plans for each parent.
¶4 However, on February 15, 2019, the underlying grant of TLC inexplicably expired
without Department motion for extension, or other action, prior to completion of either
parent's treatment plan.6 A month later, the Department received correspondence from the
Standing Rock Sioux Tribe (SRST) of North and South Dakota, dated March 8, 2019,
certifying that L.H. was not eligible for SRST enrollment due to lack of the requisite
"blood quantum."7
5 See § 41-3-102(33), MCA(YINC definition).
6 See § 41-3-442(2)-(4), MCA(TLC grant may not exceed six months unless specifically extended by court-order upon timely motion of the Department).
7 See attachment to Affidavit of Child Protection Specialist, filed March 29, 2019. Except for the responsive duty ofthe Secretary ofthe Interior under 25 U.S.C. § 1912(a)"to provide the requisite notice to . . . the tribe," the intervening sequence of events or nexus between the Department's prior BIA notice and the subsequent SRST response to the Department is not a matter of record. 4 ¶5 On March 29, 2019, six weeks after the initial grant of TLC inexplicably lapsed, the
Departrnent filed a second petition for EPS,YINC adjudication, and TLC based on:(1)the
prior 2018 YINC adjudication;(2) the factual assertion that neither parent had rnade any
substantial progress on their prior treatment plans; and (3)that the previously adjudicated
safety risk to L.H. thus remained unabated. Based on the prior SRST non-eligibility
determination, the second petition asserted that ICWA did not apply.
¶6 On May 1, 2019, at the initial show cause hearing on the second petition, both
parents appeared with respective counsel and unequivocally stipulated to the petition. The
District Court accordingly re-adjudicated L.H. as a YINC, granted the Departrnent TLC
for a new six-month term, and imposed new reunification-oriented treatrnent plans.
Neither parent objected to or otherwise disputed the second petition assertion that ICWA
did not apply. The 2019 treatment plans were substantially sirnilar to the 2018 plans other
than, as pertinent, an additional anger management class requirement to address subsequent
Department concerns regarding domestic violence between the parents. On May 28, 2019,
a written judgment issued formalizing the prior oral judgment.
¶7 On Septernber 23, 2019, the Departrnent petitioned for terrnination of both parents'
parental rights on the asserted grounds that: (1) L.H. had been in out-of-home protective
care for 15 months; (2) both parents failed to cornplete their respective treatrnent plans
despite ample opportunity to do so; and (3)reunification was thus no longer in L.H.'s best
interests.8 On September 3, 2020, following a contested termination hearing on
8See § 41-3-604(1), MCA (termination of parental rights "presumed to be" in "the best interests of the child" if"child has been in foster care under the physical custody of the state for 15 months 5 November 12, 2019, the District Court issued separate findings offact, conclusions of law,
and judgments terminating the parents' respective parental rights and granting permanent
legal custody to the Department for appropriate placement. Despite sorne referenced
progress, the court found, inter alia, that both parents largely failed to complete most, if
not all, of the essential requirements of their respective treatrnent plans. The court further
expressly found or concluded that:(1)ICWA did not apply to L.H.;(2)continuation ofthe
parent-child relationship with the parents would likely result in continued abuse or neglect;
and (3) terrnination of their parental rights was thus in the best interests of L.H. Both
parents timely appeal.
STANDARD OF REVIEW
We review parental rights terminations under Title 41, chapter 3, MCA,for an abuse
of discretion based on compliance with applicable Montana statutory and ICWA standards.
In re L.D., 2018 MT 60,¶ 10, 391 Mont. 33, 414 P.3d 768; In re D.B., 2007 MT 246, ¶ 16,
339 Mont. 240, 168 P.3d 691. An abuse of discretion occurs if a court exercises discretion
based on a clearly erroneous finding offact, erroneous conclusion oflaw, or otherwise acts
arbitrarily, without employment of conscientious judgment, or in excess of the bounds of
reason resulting in substantial injustice. In re D.E., 2018 MT 196, ¶ 21, 392 Mont. 297,
423 P.3d 586; D.B.,¶¶ 16-18. Findings of fact are clearly erroneous only if not supported
by substantial evidence, the lower court misapprehended the effect ofthe evidence, or upon
of the most recent 22 months"). See also § 41-3-609(3), MCA (in considering whether a parent's "conduct or condition" of unfitness "is unlikely to change within a reasonable time" under § 41-3-609(1)(f) and (2), MCA,the "court shall give primary consideration to the physical, mental, and emotional conditions and needs of the child"). 6 our review ofthe record we have a definite and firm conviction that the court was otherwise
mistaken. L.D., ¶ 10; In re D.H, 2001 MT 200, ¶ 14, 306 Mont. 278, 33 P.3d 616.
We review conclusions of law de novo for correctness. In re M. W., 2004 MT 301, ¶ 16,
323 Mont. 433, 102 P.3d 6.
DISCUSSION
1. Whether the District Court erroneously proceeded to YINC adjudication, temporary legal custody, and parental rights termination without a determination ofL.H.'s eligibilityfor enrollment in the "Lakota Sioux Tribe"?
¶10 Citing In re S.R., 2019 MT 47, 394 Mont. 362, 436 P.3d 696, and L.D., the parents
separately assert, in essence, that the Department had a federal law duty under the
circurnstances of this case to send an ICWA notice and request for tribal eligibility
determination to the "Lakota Sioux Tribe," as distinct from the SRST. They thus assert
that, under the second petition filed after the inadvertent lapse of the 2018 TLC grant, the
District Court erroneously proceeded to YINC re-adjudication, new TLC grant, and
ultimately terminated their respective parental rights without obtaining a conclusive
deterrnination of L.H.'s eligibility or ineligibility for enrollment in the "Lakota Sioux
Tribe." We disagree.
¶11 Enacted in 1978 to "protect the best interests of Indian children and to promote the
stability and security of Indian tribes and families," ICWA imposes heightened federal
standards for the removal of Indian children from Indian families. See, e.g., 25 U.S.C.
§§ 1902, 1911, and 1912(d)-(f). Whether ICWA applies to a proceeding under Title 41,
chapter 3, MCA,depends on whether the subject child is an "Indian child." See 25 U.S.C.
§ 1912(a). In pertinent part, ICWA defines an "Indian child" as a person "under age
7 eighteen" who is either "a member of an Indian tribe" or "eligible for mernbership in an
Indian tribe and is the biological child of a member of an Indian tribe." 25 U.S.C.
§ 1903(4). See also 25 U.S.C. § 1903(3) and (5)(defining related terms "Indian" and
"Indian child's tribe"). When the court "has reason to know that an Indian child is
involved" in an involuntary foster care or parental rights terrnination proceeding under
Title 41, chapter 3, MCA,the Department must, upon reasonably diligent investigation of
the "reason to know," immediately "notify . . . the Indian child's tribe" of "the pending
proceedings and of [the tribe's] right of intervention" by registered mail, return receipt
requested. 25 U.S.C. § 1912(a); S.R., ¶ 15 (citing 25 U.S.C. §§ 1903(1)(i)-(ii), 1912(a),
(d)-(f), 1915, 1922, and 25 C.F.R. § 23.2(2016)). As referenced in 25 U.S.C. § 1912(a), a
"reason to know" that a child is an Indian child is "no more than awareness of a reasonable
basis upon which to believe" that the subject child is an Indian child. S.R., ¶ 16 (internal
punctuation and citations ornitted).9 A court may thus have a "Hreason to know that an
Indian child is involved' if, inter alia, [a]ny participant' or 'officer of the court involved
in the proceeding' either 'informs the court that the child is an Indian child' or that the
person has 'information indicating that the child is an Indian child.'" S.R., ¶ 16 (quoting
25 C.F.R. § 23.107(c)(1)-(2)(2016)). What constitutes a "reason to know" that a child is
9 Without altering or diluting its meaning, we have interchangeably paraphrased the discrete statutory phrase "reason to know" as a "reason to believe" or "reasonable basis upon which to believe" a child is an Indian child. See, e.g.,In re D.D.,2021 MT 66,¶ 11,403 Mont. 376,482 P.3d 1176; S.R., ¶ 16 n.12; In re J.J.C., 2018 MT 317, ¶ 15 n.2, 394 Mont. 35, 432 P.3d 149; L.D., ¶ 13 (citing 25 U.S.C. § 1912(a));In re 2010 MT 4, IT 26,355 Mont. 23,223 P.3d 921;In re 2009 MT 332, ¶ 21, 353 Mont. 64, 218 P.3d 1213; In re C.H,2003 MT 308, ¶ 20, 318 Mont. 208, 79 P.3d 822. 8 eligible for tribal enrollment "is a factual matter that will vary based on the particular record
in each case." S.R., ¶ 20. However, a "reason to know" generally "requires something
more than a bare, vague, or equivocal assertion of possible Indian ancestry without
reference to any identified Indian ancestors with a reasonably suspected tribal connection."
S.R., ¶ 21 (citing In re Jeremiah G., 92 Cal. Rptr. 3d 203, 207-08 (Cal. Ct. App. 2009) and
In the Interest ofZ.H,740 N.W.2d 648,653(Iowa Ct. App. 2007)). If unable to deterrnine
"the identity or location of. . . the tribe" upon reasonable diligence, the Department must
immediately give "notice . . . to the Secretary [of the Interior] in like manner, who shall
have fifteen days after receipt to provide the requisite notice to . . the tribe." 25 U.S.C.
§§ 1901(1), 1912(a), and 1903(11); S.R., ¶ 18. In either event, it is the duty of the
Departrnent, and ultimately the court, to obtain a tribal eligibility deterrnination frorn the
subject tribe when there is a "reason to know" that a child is eligible for enrollment in a
particular tribe. S.R., ¶ 18 (internal citations omitted).I° See also L.D., ¶¶ 14 and 17.
¶12 As a critical threshold matter here, however,ICWA applies only to children subject
to involuntary foster care and parental rights terrnination proceedings who are eligible for
enrollment or membership in a federally-recognized Indian tribe. See 25 U.S.C.
§ 1903(3)-(5) and (8)(definitions of "Indian," "Indian child," "Indian child's tribe," and
"Indian tribe"). The Secretary of the Interior, by and through the BIA, periodically
10 "Whether a child is eligible for tribal membership . . . is a question of fact for exclusive determination by the Indian tribe(s) in regard to which the court has reason to know the child may be related." S.R., ¶ 18 (citing 25 C.F.R. § 23.108(b)(2016), inter alia). "A tribal determination of membership eligibility is conclusive as a matter of law." S.R., ¶ 18 (citing L.D., Tirf 14 and 25, and C.F.R. § 23.108(b)(2016)). 9 publishes, in the Federal Register, an exhaustive list of federally-recognized Indian tribes.
See, e.g., Indian Entities Recognized by and Eligible To Receive Services From the
United States Bureau ofIndian Affairs, 85 Fed. Reg. 5462, 5462-67 (Jan. 30, 2020).11
Neither now, nor at any time pertinent, has the "Lakota Sioux Tribe" been a federally-
recognized Indian tribe. See Indian Entities Recognized by and Eligible To Receive
Services From the United States Bureau ofIndian Affairs, 85 Fed. Reg. 5462, 5462-67
(Jan. 30,2020); 84 Fed. Reg. 1200, 1200-05(Feb. 1, 2019); 83 Fed. Reg. 34,863, 34,863-68
(July 23, 2018); and 82 Fed. Reg. 4915, 4915-20 (Jan. 17, 2017).12 Consequently, as a
matter of law, the Department, and ultimately the District Court, had no duty under
25 U.S.C. § 1912 to give notice to and obtain a tribal eligibility determination from the
"Lakota Sioux Tribe."
¶13 Father's wholly unsupported, vague, and equivocal assertion ofpossible eligibility
for membership in the "Lakota Sioux Tribe" was insufficient alone to give the Departrnent,
11 See also 86 Fed. Reg. 7554,7554-58(Jan. 29,2021); 84 Fed. Reg. 1200, 1200-05(Feb. 1, 2019); 83 Fed. Reg. 34,863, 34,863-68 (July 23, 2018); and 82 Fed. Reg. 4915, 4915-20 (Jan. 17, 2017).
12 As a purely ancillaiy contextual matter not essential to this opinion, we take notice that the descendants of the historical Great Sioux Nation are now largely dispersed among multiple tribes that historically spoke one of three different dialects (Lakota, Dakota, and Nakota) of the native Sioux language. In the United States, except as otherwise dispersed off-reservation, the Lakota Sioux, also known as the Teton Sioux, are now primarily comprised of seven tribal bands consolidated into five federally-recognized tribes—the Cheyenne River Sioux Tribe (Cheyenne River Reservation, South Dakota), Standing Rock Sioux Tribe (Standing Rock Reservation, North and South Dakota), Oglala Sioux Tribe (Pine Ridge Reservation, South Dakota), Rosebud Sioux Tribe (Rosebud Reservation, South Dakota), and Lower Brule Sioux Tribe (Lower Brule Reservation, South Dakota). See https://lakotavoice.com/history-of-lakota-tribe.php; https:// www.lakotamall.com/history-and-ancestry; https://cheyenneriversiouxtribe.org/history; https:// www.standingrock.org/History; https://oglalalakota-nsn.gov/history; https://rosebudsiouxtribe- nsn.gov/history-culture; https://www.lo werbrulesiouxtribe.com/lo wer-brule-territory; and https:// www.bia.gov/regional-offices/great-plains/tribes-served. 10 or the District Court, any particularized "reason to know" that L.H. is eligible, or even
possibly eligible, for membership in any particular federally-recognized Indian tribe. Nor
have the parents articulated any other basis upon which further investigation by the
Department would have been reasonably likely to result in such a "reason to know." The
Department nonetheless complied with 25 U.S.C. § 1912(a) by immediately giving notice
of the pendency of this proceeding to the BIA, regardless of the void of any record
indication of the ensuing nexus that resulted in the SRST tribal non-eligibility
determination. The record is thus void of any non-speculative basis, or even vague
assertion, indicating a "reason to know" that L.H. is eligible for membership in any other
federally-recognized tribe that descended froin the historical Lakota Sioux. Under these
circumstances, we hold that the District Court did not erroneously proceed under the
second petition to a YINC adjudication, TLC grant, or ultimate terrnination of parental
rights without notice to, and a tribal eligibility deterinination froin, the "Lakota Sioux
Tribe."
¶14 2. Whether the District Court erroneously terminated the parents' rights under § 41-3-609(1)0, MCA, without adequate evidence under governingfederal and state standards ofa substantial risk ofphysical or psychological neglect?
¶15 Father and Mother next assert that the District Court erroneously terininated their
respective parental rights under § 41-3-609(1)(f), MCA, without sufficient evidence to
prove, under the applicable Montana statutory and/or ICWA standards of prooffor a YINC
11 adjudication, that their alleged drug use subjected L.H. to a substantial risk of physical or
psychological neglect.' We disagree.
¶16 As pertinent here, a court may adjudicate a child as a YINC upon a finding that the
"acts or omissions of a person responsible for [his or her] welfare" has subjected the child
to a "substantial risk" of physical or psychological neglect. See §§ 41-3-437(2)
and -102(7)(a)-(b), 21(a)(i),(20), 23(a), and (33), MCA (YINC adjudication standard and
definitions of "child abuse or neglect," "physical or psychological harm to a child,"
"physical neglect," "psychological abuse or neglect," and "youth in need of care"). The
standard of proof in an ICWA proceeding is proof by "clear and convincing evidence."
25 U.S.C. § 1912(e). See also § 41-3-422(5)(b), MCA. The lower standard in a non-ICWA
proceeding is proof by "a preponderance ofthe evidence." Sections 41-3-422(5)(a)(ii) and
-437(2), MCA.'
¶17 Here, we need not address the evidentiary sufficiency, whether under ICWA or
non-ICWA standards, of the initial out-of-home removal or YINC adjudication under the
2018 petition. The resulting grant ofTLC,and related imposition of reunification-oriented
treatment plans, lapsed and expired on February 15, 2019. As previously analyzed,ICWA
did not apply under the second petition because, unlike before, there was no record
"reason to know" that L.H. was an "Indian child" in wake of the Department's ICWA
13 They seemingly similarly assert further that the District Court lacked sufficient evidence under §§ 41-3-427(1)(b)-(c), (2)-(3), -432(1)(b), (3), and (5), MCA, for authorizing the pre-petition removal of L.H. from their home and custody.
14 For the different ICWA and non-ICWA standards of proof for pre-petition removal of a child, see 25 U.S.C. §§ 1912(e) and 1922; §§ 41-3-422(5)(a)(i),(b), -427(1)(b)-(c), and (2), MCA. 12 notice to the BIA under 25 U.S.C. § 1912(a), the resulting SRST non-eligibility
deterrnination, and the record void of any particularized "reason to know" that L.H. was
eligible for enrollment in any other federally-recognized Indian tribe. Moreover, as to
applicable non-ICWA standards under Title 41, chapter 3, MCA, the waiver effect of the
parents' unqualified stipulations under the second petition precluded any subsequent
assertion of error and resulting review regarding the evidentiary sufficiency of the 2019
reauthorization of the out-of-horne placement, re-adjudication of L.H. as a YINC, and six-
month TLC grant with related new treatrnent plans. Under these circumstances, we hold
that the District Court neither erroneously re-adjudicated L.H. as a YINC under the second
petition, nor later erroneously found under § 41-3-609(1)(f), MCA,that it had.
¶18 3. Whether the District Court erroneously terminated Father's parental rights without adequate evidence under governingfederal and state standards that his conduct or condition of unfitness was unlikely to change within a reasonable time?
¶19 Father asserts that the court further erred in terrninating his parental rights under
§ 41-3-609(1)(f)(ii), MCA, without sufficient evidence to prove, under the applicable
Montana statutory and/or ICWA standards of proof, that his conduct or condition of
unfitness was unlikely to change within a reasonable time. Again, we disagree.
¶20 As pertinent here, a district court may terrninate a legal parent-child relationship
if:(1)the child has been adjudicated as a YINC;(2) the parent has failed to comply with
an appropriate court-ordered treatment plan; and (3) the parent's previously adjudicated
"conduct or condition" of unfitness "is unlikely to change within a reasonable thne."
Section 41-3-609(1)(f), MCA. "In determining whether the conduct or condition of the
13 parent[] is unlikely to change within a reasonable tirne, the court shall enter a finding,"
upon consideration of various enumerated factors (including, inter alia, "excessive use
of. . .[a] dangerous drug that affects the parent's ability to care and provide for the child"),
"that continuation ofthe parent-child legal relationship will likely result in continued abuse
or neglect." Section 41-3-609(2), MCA. In pertinent part, "abuse or neglect" includes,
inter alia, a "substantial risk" of exposure of the child, through "the acts or omissions" of
the parent, "to an unreasonable risk to the child's health or welfare by failing
to . . . eliminate the risk." Section 41-3-102(7)(a)(ii), (b)(i)(A), (20), (21)(a)(v), and
(23)(a), MCA. The non-ICWA standard of proof ofthe requisite termination criteria under
§ 41-3-609(1)(f), MCA,is "clear and convincing evidence." Section 41-3-609(1), MCA.
¶21 Here, viewed in the light rnost favorable to the judgment, the District Court
expressly found that "[c]ontinuation of the parent[-]child legal relationship will likely
result in continued abuse or neglect" based on Father's historical and ongoing illegal and/or
abusive use of prescription drugs, and failure to substantially cornplete the requirements of
his court-ordered reunification-oriented treatrnent plan despite ample opportunity to do so.
While the judgment included no express finding that his condition ofunfitness was unlikely
to change within a reasonable time, such finding was manifestly implicit on the face ofthe
judgment based on: (1) the express finding under § 41-3-609(2), MCA;(2) supporting
record evidence; and (3) the relationship between § 41-3-609(1)(f)(ii) and (2), MCA. As
previously noted, ICWA did not apply to proceedings under the second petition. Despite
the presence of conflicting evidence, our review of the record indicates that the court's
express and implicit findings under § 41-3-609(1)(f)(ii) and (2), MCA, were supported by
14 substantial record evidence, minimally sufficient to satisfy the state clear and convincing
evidence standard based on the broad discretion of the finder of fact to determine the
relative veracity, credibility, and weight of the evidence. We hold that the District Court
did not erroneously terminate Father's parental rights under § 41-3-609(1)(f)(ii), MCA,
without sufficient evidence to prove by clear and convincing evidence that his conduct or
condition of unfitness was unlikely to change within a reasonable tirne.
CONCLUSION
¶22 We hold that, under the second petition, the District Court did not
erroneously:(1) proceed without an ICWA notice to, and a tribal eligibility determination
from, the "Lakota Sioux Tribe";(2)re-adjudicate L.H. as a YINC or later erroneously find
under § 41-3-609(1)(f), MCA that it had; or (3) terrninate Father's parental rights without
sufficient evidence to prove by clear and convincing evidence under
§ 41-3-609(1)(f)(ii), MCA, that his conduct or condition of unfitness was unlikely to
change within a reasonable time. Affirmed.
e94 M 44.. Justice
We concur:
Chief Justice
15 16