September 30 2014
DA 13-0790
IN THE SUPREME COURT OF THE STATE OF MONTANA 2014 MT 265
IN THE MATTER OF:
M.S.,
A Youth in Need of Care.
APPEAL FROM: District Court of the Eighth Judicial District, In and For the County of Cascade, Cause No. DDN-11-128 Honorable Dirk M. Sandefur, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Julie Brown; Montana Legal Justice, PLLC; Missoula, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General; C. Mark Fowler, Appellate Services Bureau Chief; Helena, Montana
John Parker, Cascade County Attorney; Matthew W. Robertson, Deputy County Attorney; Great Falls, Montana
Submitted on Briefs: August 13, 2014
Decided: September 30, 2014
Filed:
Clerk Justice Beth Baker delivered the Opinion of the Court.
¶1 G.S. appeals an order of the Eighth Judicial District Court, alleging that the court
terminated his parental rights without following the statutory requirements of the Indian
Child Welfare Act (ICWA), 25 U.S.C. § 1901 et. seq., and without providing due
process. We restate the issue on appeal as follows: Whether the termination proceedings
complied with statutory requirements for proceedings involving an Indian child.
¶2 We affirm.
PROCEDURAL AND FACTUAL BACKGROUND
¶3 Thirteen-year-old M.S. was removed from her mother’s care and placed into
emergency protective custody on July 18, 2011, after her mother was arrested for
Possession of Dangerous Drugs with Intent to Distribute. M.S.’s father, G.S., has been
incarcerated in a federal prison in Arizona since 2009, serving a 480-month sentence with
an additional 20 years of supervised release for aggravated sexual abuse. G.S. is an
enrolled member of the Northern Cheyenne Tribe (Tribe).
¶4 On July 25, 2011, the Department of Public Health and Human Services
(Department) filed a Petition for Emergency Protective Services, Adjudication as Youth
in Need of Care and Temporary Legal Custody. Although the Department initially
placed M.S. with another family member, by August 2011, M.S. had moved to Billings to
live with her grandmother’s ex-husband.
¶5 On July 28, 2011, the District Court set a date for a show cause hearing and issued
a citation to the mother directing her to appear at the hearing. The Department sent
notice of the pending show cause hearing to the Chippewa Cree Tribe, mistakenly
2 believing that M.S. was a member or eligible for membership with that tribe. The
Chippewa Cree responded that M.S. was not enrolled or eligible for enrollment with that
tribe.
¶6 The District Court held the show cause hearing on December 5, 2011. G.S. did
not personally attend, but he had been served and was represented at the hearing by his
attorney. Both parents stipulated that M.S. was a Youth in Need of Care. The District
Court issued an order on December 21, 2011, adjudicating M.S. a Youth in Need of Care
and granting the Department Temporary Legal Custody.
¶7 On July 26, 2012, the Department filed a Petition for Permanent Legal Custody
and Termination of Parental Rights for both parents. At the disposition hearing on the
petition, G.S., through counsel, informed the court that he was a member of the Northern
Cheyenne Tribe. The District Court denied and dismissed the Department’s petition
without prejudice on the grounds that the petition contained inaccurate information
regarding M.S.’s tribal affiliations and granted the Department leave to file a new petition
to terminate G.S.’s parental rights.
¶8 On September 12, 2012, the Department sent notice of the proceedings by
registered mail to the Northern Cheyenne Tribe in Lame Deer, Montana. The
Department filed a Notice of Filing with the court, stating that the Tribe received copies
of the Petition for Temporary Legal Custody, Social Worker’s Affidavit, Order to Show
Cause Hearing, and Tribal Notice. The Tribe filed a notice of intervention
acknowledging that M.S. was an Indian child under ICWA and was eligible for
enrollment in the tribe. While the Tribe expressed interest in transferring the case to
3 tribal court and provided contact information, the Tribe did not appear at any subsequent
hearings.
¶9 On December 4, 2012, the Department filed a modified petition for the termination
of G.S.’s parental rights and for permanent legal custody of M.S. The Department
asserted a theory of aggravated circumstances under § 41-3-609(1)(d), MCA. A hearing
on this petition was held on March 25, 2013. The court determined that a continuance
was necessary because the Tribe was not properly notified of the hearing. The
termination hearing was rescheduled and held on April 22, 2013. The only indication
that the Tribe received notice of the rescheduled hearing was that the court’s order
indicated that the Tribe was “cc’d” with a copy of the order. At the April 22 hearing, the
Department then moved to dismiss its petition and refile for termination solely on the
issue of abandonment because it had concluded that, under § 41-3-423(2), MCA,
aggravated circumstances are not a ground for termination where the proceeding is
subject to ICWA.
¶10 On April 30, 2013, the Department filed a motion to amend the petition to
terminate G.S.’s parental rights and for summary judgment. The District Court issued an
order granting the Department’s motion to amend. Although the Department’s motion
indicated that a copy was “cc’d” to the Tribe, neither the motion nor the court’s
subsequent order contained a certificate of service confirming that the documents were
served on the Tribe.
¶11 At the Department’s request, the District Court issued an order setting a summary
judgment hearing for October 21, 2013, on the petition to terminate G.S.’s parental rights.
4 This order indicated that it was sent to the parties by a certificate of mailing signed by the
clerk of court. At the hearing, the District Court ordered G.S.’s parental rights terminated
and awarded the Department permanent legal custody of M.S. The District Court issued
its findings of fact, conclusions of law, and order terminating G.S.’s rights on
November 12, 2013. G.S. appeals.
STANDARD OF REVIEW
¶12 This Court reviews the District Court’s decision to terminate parental rights for an
abuse of discretion. In re K.B., 2013 MT 133, ¶ 18, 370 Mont. 254, 301 P.3d 836. “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., ¶ 18. We review a district court’s application of the law to the facts of
the case for correctness. In re K.B., ¶ 18.
DISCUSSION
¶13 Whether the termination proceedings complied with statutory requirements for proceedings involving an Indian child.
¶14 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.
M.S. is eligible for enrollment with the Tribe and, under ICWA, M.S. is an Indian child.
ICWA must be followed strictly by state courts, to “protect the best interests of Indian
children and promote the stability and security of Indian tribes and families.” 25 U.S.C.
§ 1902.
5 ¶15 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 sections 1911, 1912, and 1913 of this title.” 25 U.S.C. § 1914. Section
1912 of ICWA requires:
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).
¶16 A recent case decided by this Court involved problems with notice under
25 U.S.C. § 1912(a). In re K.B., ¶¶ 22-25. In that case, the tribe received proper notice
of the youth in need of care proceeding by registered mail, but did not receive proper
notice of the termination petition and hearing. In re K.B., ¶ 24. Although the termination
petition and the court’s order setting the termination hearing indicated by notation that
copies were “cc’d” to the mother and the tribe, the record did not include an
accompanying certificate of service or other documentation that could prove that timely
service was accomplished. In re K.B., ¶ 24.
¶17 We held that the notice was insufficient under 25 U.S.C. § 1912(a) because the
record did not reflect that the mother and the tribe received notice ten days in advance of
the termination hearing. In re K.B., ¶ 25. We reversed the district court’s termination
6 order and remanded for a new hearing because the State gave insufficient notice and also
because the State did not adequately develop the record with regard to whether it
demonstrated “active efforts” under 25 U.S.C. § 1912(d) or whether continued custody of
the child by the parent was “likely to result in serious emotional or physical damage to
the child” under 25 U.S.C. § 1912(f). In re K.B., ¶ 34.
¶18 The procedure followed in this case with regard to notice was remarkably similar
to that in In re K.B. After the Department realized its mistake concerning M.S.’s tribal
affiliation, the Department properly notified the Tribe by registered mail of the
involuntary child custody proceeding. The Tribe promptly filed a notice of intervention.
The petition for termination of parental rights filed on April 30, 2013, however, indicates
only that it was “cc’d,” without any certificate of service. The court’s order granting the
amendment also did not contain a certificate of service. No other proof of service was
filed in the record.
¶19 ICWA requires that “the party seeking the foster care placement of, or termination
of parental rights to, an Indian child” first notify the Tribe of “any involuntary proceeding
in a State court, where the court knows or has reason to know that an Indian child is
involved . . . .” 25 U.S.C. § 1912(a). ICWA also provides that “[n]o 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) (emphasis added). If there is “any question about
whether notice had to be given both before the department sought to put the child in
foster care and when it sought to terminate parental rights, that question should be
7 resolved in favor of giving notice twice.” People ex rel. S.R.M., 153 P.3d 438, 442
(Colo. Ct. App. 2006), cited in In re K.B., ¶ 25.
¶20 Here, while the initial notice to the tribe was adequate, the Tribe was not properly
served with notice of the termination of parental rights proceeding. The Department’s
indication that it “cc’d” the Tribe with its motion to amend the termination petition did
not include a certificate of service, and no other proof of service appears in the record.
Although the court’s order setting the termination hearing was served on the Tribe, that
document was styled as an order setting a summary judgment hearing and virtually all of
the evidence considered by the court already had been presented in prior hearings.
Consistent with In re K.B., ¶¶ 24-25, we conclude that the Department failed to provide
adequate evidence of proper notice.1
¶21 We do not hold that the State must send notice of termination proceedings to the
Tribe by registered mail if, as here, notice of the initial proceedings already has been
effected in that manner. Where the Tribe already has intervened in the case, notice of
termination will be sufficient if it is given in compliance with the Rules of Civil
Procedure governing notice to other parties. Thus, the notice to the Tribe must, at a
minimum, comply with M. R. Civ. P. 5; Rule 5 states that all documents listed in
Rule 5(a)(1) must be served on every party. Service may be accomplished by “mailing it
to the person’s last known address—in which event service is complete upon mailing.”
1 It is incumbent upon counsel for the Department to ensure that the Tribe receives proper service of the District Court’s orders. If an order does not indicate that the court served a copy of the order on the Tribe, the Department should serve the order on the Tribe to guarantee that the Tribe receives a copy, and file a Certificate of Service. 8 M. R. Civ. P. 5(b)(2)(C). If service is made by mail, a certificate of service must be filed.
M. R. Civ. P. 5(d)(1). Once a tribe has filed a notice of intervention, it has appeared as a
party in the case and is entitled to proper service under this rule. Compliance with Rule 5
ensures that a certificate of service will be filed in the record of the district court.
M. R. Civ. P. 5(d). That did not occur here.
¶22 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 J.C., 2008 MT
127, ¶ 43, 343 Mont. 30, 183 P.3d 22; In re F.H., 266 Mont. 36, 39, 878 P.2d 890, 892
(1994); In re A.N., 2000 MT 35, ¶ 39, 298 Mont. 237, 995 P.2d 427 (2000). We agree
with the line of cases holding that ICWA’s notice requirements are not jurisdictional and
are subject to harmless error review. In re N.N.E., 752 N.W.2d 1, 10 n.3 (Iowa 2008); In
re Christian P., 208 Cal. App. 4th 437 (Cal. App. 2d Dist. 2012); In re G.L., 177 Cal.
App. 4th 683, 695-96 (Cal. App. 4th Dist. 2009). An error involving notice to a tribe is
not ground for reversal unless the appellant shows a “reasonable probability that he or she
would have obtained a more favorable result in the absence of the error.” In re G.L., 177
Cal. App. 4th at 696.
¶23 Despite the Department’s failure to provide adequate notice, the record shows that
the Tribe was aware of the case but, after evaluating the circumstances, did not assume an
active role or interest in participating in the matter. “ICWA recognizes that tribes have a
unique interest and ability to provide services in the upbringing of Indian children.” In re
C.H., 2003 MT 308, ¶ 21, 318 Mont. 208, 79 P.3d 822. The ICWA expert testified,
however, that she had “spoken to the Tribe and they said that at this point, there would be
9 turmoil if we removed her from the place that she’s at [sic].” The Tribe did not
participate in this appeal and G.S. has not provided any evidence that the Tribe intended
to actively participate had it properly been notified of the termination hearing. This is not
a case where the court ignored a child’s Indian ancestry or deprived a tribe of its right to
intervene. “It would serve no purpose to require the [District Court] to terminate [G.S.’s]
parental rights all over again.” In re N.N.E., 752 N.W.2d at 10. Because G.S. has not
demonstrated a reasonable probability that he would have obtained a more favorable
result in the absence of the Department’s error regarding proper ICWA notice, we hold
that the error in this case was harmless.
¶24 G.S. argues next that the Department failed to meet ICWA’s “active efforts”
requirement. The Department has an obligation to demonstrate active efforts to prevent
the breakup of an Indian family:
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.
25 U.S.C. § 1912(d). “‘Active efforts’ implies a heightened responsibility compared to
passive efforts.” In re D.S.B., 2013 MT 112, ¶ 15, 370 Mont. 37, 300 P.3d 702. If the
underlying proceeding is a termination of parental rights under § 1912(f), proof of “active
efforts” must be satisfactory “beyond a reasonable doubt.” In re G.S., 2002 MT 245,
¶ 33, 312 Mont. 108, 59 P.3d 1063.
¶25 As we have noted before, a common sense understanding of “active efforts”
“requires only that ‘timely affirmative steps be taken to accomplish the goal which
10 Congress has set: to avoid the breakup of Indian families whenever possible by providing
services [designed] to remedy problems which might lead to severance of the parent-child
relationship.’” In re G.S., ¶ 36 (quoting Letitia v. Superior Court, 81 Cal. App. 4th 1009,
1016, 97 Cal. Rptr. 2d 303, 309 (Cal. App. 4th Dist. 2000)). Further, “a parent’s
incarceration may limit the remedial and rehabilitative services that the State can make
available to the parent to prevent the breakup of the Indian family.” In re D.S.B., 2013
MT 112, ¶ 15, 370 Mont. 37, 300 P.3d 702. We do not excuse the state’s obligation to
make active efforts if a parent is incarcerated, but “we will not fault the [Department] if
its efforts are curtailed by the parent’s own criminal behavior.” In re D.S.B., ¶ 15.
¶26 The District Court expressly addressed whether ICWA’s heightened standard for
active efforts was met, noting that the Department worked with the mother to create a
treatment plan and that reunification with the father was a practical impossibility because
of G.S.’s long-term incarceration. The Department assisted M.S.’s mother in complying
with her court-ordered treatment plan before she consented to the termination of her
rights. The Department paid for the mother to visit M.S. in Billings and made efforts to
help her locate an appropriate residence. No treatment plan was ordered for G.S. due to
his long-term incarceration. The court found that the father had failed to develop and
maintain a parental relationship with M.S., and that his incarceration left “virtually no
likelihood or prospect that [G.S.] will ever be in a position to parent, or even establish a
11 parental relationship, as a matter of fact, with the child prior to the time that she turns
18.”2
¶27 The court concluded that “the [Department] has actively intervened in this matter
and endeavored, to the extent practical, under the facts and the law, to effect reunification
of the child with either or both parents.” The court held as a matter of law that the
Department’s “efforts to effect reunification are reasonable under State law and they have
been active under the federal law within the meaning of the ICWA on the same findings
of fact.” We hold that a reasonable trier of fact could have concluded that the
Department made sufficient active efforts to provide remedial services and rehabilitative
programs designed to prevent the breakup of this Indian family. Substantial evidence
supports the court’s finding that G.S. will not be able to parent his daughter at any time
before she reaches the age of majority. The District Court did not err in concluding that
the Department met ICWA’s “active efforts” requirement in this circumstance.
¶28 G.S. asserts that the District Court did not make specific findings of fact required
by 25 U.S.C. § 1912(f) that continued custody of the child by the parent was “likely to
result in serious emotional or physical damage to the child.” The Department presented
evidence that the continued parental custody of the children would result in serious
2 The record does not clarify whether G.S. ever had custody of M.S. The record is silent regarding G.S.’s relationship with M.S. prior to his incarceration. We recognize that 25 U.S.C. § 1912(d) does not apply where the “breakup of the Indian family” has long since occurred. In re J.S., 2014 MT 79, ¶ 29, 374 Mont. 329, 321 P.3d 103 (citing Adoptive Couple v. Baby Girl, 570 U.S. __, 133 S. Ct. 2552, 2559 (2013)). Although the District Court asked during the April 22, 2013 hearing, before Baby Girl was decided, how the ICWA standard for termination applies in a situation where the child was never in the parent’s custody, the parties did not dispute that ICWA’s active efforts were required. Because this potential issue was not raised, we will not address it in this appeal. See Stevens v. Novartis Pharms. Corp., 2010 MT 282, ¶ 78, 358 Mont. 474, 247 P.3d 244. 12 emotional or physical damage to the children. The District Court took judicial notice that
G.S. has been convicted of aggravated sexual abuse of another daughter, who was four
years old at the time, and that he is serving a term of forty years in prison. The District
Court found that, even if the father were to leave prison, continued custody of the child
with the father likely would result in serious emotional or physical harm to the child by
removing her from her current placement in a stable environment. The District Court
made sufficient findings regarding the child’s well-being and reasonably concluded that
continued custody by G.S. would likely result in “serious emotional or physical damage
to the child.” In re K.B., ¶ 18.
¶29 Finally, although G.S.’s issue statement alleges a violation of the right to
procedural due process, he did not present any due process arguments or develop this
allegation in any way and we do not further consider it. M. R. App. P. 12(1)(f); In re
Estate of Harmon, 2011 MT 84, ¶ 28, 360 Mont. 150, 253 P.3d 821. G.S. does argue that
the Department cannot terminate a parent’s rights through a summary judgment motion,
and that the District Court improperly relied on testimony from prior proceedings. The
District Court made specific findings of fact during the April 22 hearing and expressly
incorporated those findings, “so as not to waste the time and effort” of the parties and
witnesses. The court reasonably sought “to avoid duplication” of the testimony presented
at an earlier termination hearing. Although G.S. is correct that the statutes do not
contemplate any summary judgment process for a termination proceeding, the court did
not grant summary judgment. It is clear that the court based its decision on the
presentation of evidence by the parties; it properly considered the statutes in Title 41,
13 MCA, and ICWA; and it entered detailed findings of fact and conclusions of law
explaining its decision to terminate G.S.’s parental rights.
CONCLUSION
¶30 The District Court did not err in determining that the Department satisfied the
“active efforts” requirement and made sufficient findings of fact pursuant to 25 U.S.C.
§ 1912(f). Although we hold that the Department did not provide appropriate proof that
the father’s tribe received proper notice of the termination hearing, that error was
harmless under the circumstances of this case. We affirm.
/S/ BETH BAKER
We concur:
/S/ PATRICIA COTTER /S/ MICHAEL E WHEAT /S/ LAURIE McKINNON /S/ JAMES JEREMIAH SHEA