In re H.T., DA 14–0076.

• Citation: 378 Mont. 206,343 P.3d 159,2015 MT 41
• Decision Date: 10 February 2015
• Docket Number: No. DA 14–0076.,DA 14–0076.
• Parties: In the Matter of H.T., a Youth in Need of Care.
• Court: United States State Supreme Court of Montana

378 Mont. 206

343 P.3d 159

2015 MT 41

In the Matter of H.T., a Youth in Need of Care.

No. DA 14–0076.

Supreme Court of Montana.

Submitted on Briefs Dec. 24, 2014.

Decided Feb. 10, 2015.

For Appellant: Jeanne M. Walker, Hagen & Walker, PLLC, Billings, Montana.

For Appellee: Timothy C. Fox, Montana Attorney General, Pamela P. Collins, Assistant Attorney General, Helena, Montana, John Parker, Cascade County Attorney, Jennifer Quick, Deputy County Attorney, Great Falls, Montana.

Opinion

Justice Beth Baker delivered the Opinion of the Court.

¶ 1 B.T. (Mother) appeals an order of the Eighth Judicial District Court terminating her parental rights to her daughter, H.T. She asserts that the District Court failed to comply with both state and federal statutory requirements for terminating parental rights to an Indian child. We address the following issues on appeal:

1. Whether the termination of Mother's rights must be reversed because the District Court failed to hold an adjudicatory hearing that complied with § 41–3–437, MCA.

2. Whether the District Court's failure to follow statutory requirements for proceedings subject to the Indian Child Welfare Act requires reversal.

¶ 2 We affirm on the first issue, and vacate and remand for entry of a new order on the issue of termination.

PROCEDURAL AND FACTUAL BACKGROUND

¶ 3 The Montana Department of Public Health and Human Services (Department) filed a petition for emergency protective services on October 10, 2012, alleging drug use by Mother and domestic violence between Mother and her boyfriend.¹ The affidavit of a child protection specialist attached to the petition explained the circumstances. Law enforcement officers contacted the Department after being called to a Great Falls motel for a domestic violence incident. Seven-year-old H.T. told the specialist that Mother began drinking and arguing with her boyfriend on the night that H.T. was taken into emergency protective custody. Mother and H.T. left the motel to visit Mother's friend, from whom they obtained pills that they brought back to the room. H.T. reported that Mother and her boyfriend crushed the pills and “ sniff[ed] them up their noses.” The arguing continued and eventually escalated into physical violence. When police arrived, H.T. was found scared and exhausted, wearing what appeared to be her mother's dirty clothes. H.T. told the specialist that there had been violence between Mother and her boyfriend in the past and that she feared the boyfriend would kill her mother.

¶ 4 The Department's petition sought immediate protection and temporary legal custody of H.T. to prevent further exposure to abuse and neglect. The petition stated that “the child may be an Indian Child for the purposes of the Indian Child Welfare Act [ICWA].” The accompanying affidavit further indicated that inquiry had been made of Mother and of the maternal grandparents regarding H.T.'s tribal affiliation. Based on those inquiries, notices of the action were sent to the Blackfeet Tribe and to the Assiniboine and Sioux Tribes of the Fort Peck Indian Reservation. The affidavit also stated that a letter had been sent to the Bureau of Indian Affairs for confirmation of tribal affiliation.² The District Court granted the motion for emergency protective services and temporary legal custody. The court's October 17, 2012 order found that the Department was justified in not making active efforts to prevent H.T.'s removal from the home “because the child was in immediate or apparent danger of harm.”

¶ 5 Following the Department's efforts to locate a suitable kinship placement, H.T. was placed with a maternal great aunt on October 26, 2012. On November 15, 2012, the District Court held a show cause hearing. Mother did not contest probable cause at the show cause hearing, but her counsel stated, “We do want a separate adjudicatory hearing, just in case.” The court accepted the parties' stipulation that probable cause existed to believe that H.T. was subject to abuse or neglect, and advised that it would set a date for an adjudicatory hearing.

¶ 6 The District Court initially set the adjudicatory hearing for February 7, 2013, but later rescheduled the hearing for April 25, 2013. The Department filed a supplemental affidavit on April 17 that updated information about H.T. and Mother since the child's removal. The affidavit indicated that the Department had received information that H.T. was eligible for enrollment in the Fort Belknap Tribe. At the commencement of the April 25 hearing, the court began by stating, “This is the time that has been set for a show cause hearing in the matter of [H.T.]” The Department's counsel indicated that the matter was set for disposition and that a treatment plan had been signed by all parties. The court then announced, “I stand corrected. This is a dispositional hearing.” The court inquired about Mother's stipulation to her treatment plan and about H.T.'s current placement. Mother confirmed that she understood the treatment plan; her appointed counsel, who by that time had been substituted for Mother's previous attorney, indicated that there was no objection to temporary legal custody or to the treatment plan. The hearing never addressed H.T.'s adjudication and the record contains no stipulation to adjudication of H.T. as a youth in need of care.

¶ 7 The District Court issued an order after the April 25, 2013 hearing that adjudicated H.T. a youth in need of care. The order also required Mother to comply with her treatment plan, approved of H.T.'s current placement, and granted the Department temporary legal custody for six months.

¶ 8 On November 5, 2013, the Department filed notice that H.T. was eligible for enrollment with the Assiniboine and Gros Ventres Tribes at the Fort Belknap Indian Community (hereafter referred to as Fort Belknap). The notice appended a letter from Fort Belknap dated April 17, 2013, indicating that it “chooses to intervene as a third party to monitor” the proceedings and would “leave jurisdiction with the state court while the plan remains reunification.” Fort Belknap reserved the right to transfer jurisdiction “at a later time if Termination of Parental Rights appears imminent or has taken place.”

¶ 9 The Department filed a petition for permanent legal custody and termination of parental rights on November 6, 2013. The termination petition alleged that Mother had not complied with her treatment plan and that H.T.'s father had abandoned H.T. The Department filed a notice on November 18, 2013, establishing that Fort Belknap had confirmed receipt of the termination petition on November 13, 2013. The court held a termination hearing on January 9, 2014, and adopted and approved the termination petition. Fort Belknap did not participate in the proceedings. The court later issued a written order terminating both Mother's parental rights and the father's parental rights to H.T. and granting the Department permanent legal custody. Mother appeals.

STANDARDS OF REVIEW

¶ 10 Compliance with state statutory requirements presents a question of law that we review for correctness. State v. Parks, 2013 MT 280, ¶ 20, 372 Mont. 88, 310 P.3d 1088; In re B.N.Y., 2003 MT 241, ¶¶ 18, 28, 317 Mont. 291, 77 P.3d 189. We will not disturb a district court's decision on appeal unless there is a mistake of law or a finding of fact not supported by substantial evidence that would amount to a clear abuse of discretion. In re T.S., 2013 MT 274, ¶ 21, 372 Mont. 79, 310 P.3d 538. We will not reverse a district court's ruling by reason of an error that “would have no significant impact upon the result.” In re J.C, 2008 MT 127, ¶ 43, 343 Mont. 30, 183 P.3d 22 (quoting In re A.N. and C.N., 2000 MT 35, ¶ 39, 298 Mont. 237, 995 P.2d 427).

¶ 11 “In a case governed by ICWA, we will uphold the district court's termination of parental rights if a reasonable fact-finder could conclude beyond a reasonable doubt that continued custody by the parent is likely to result in serious emotional or physical damage to the child.” In re K.B. & T.B., 2013 MT 133, ¶ 18, 370 Mont. 254, 301 P.3d 836. We review the court's application of the law to the facts of the case for correctness. In re K.B. & T.B., ¶ 18.

DISCUSSION

¶ 12 1. Whether the termination of Mother's rights must be reversed because the District Court failed to hold an adjudicatory hearing that complied with § 41–3–437, MCA.

¶ 13 Mother does not dispute that she did not raise before the District Court any of the issues on which she appeals. She argues that her appeal nevertheless is reviewable because it is based on violations of 25 U.S.C. § 1912, a provision of ICWA. The Department correctly points out, however, that a closer reading of Mother's brief reveals an argument that the District Court erred by failing to hold an adjudicatory hearing that complied with § 41–3–437, MCA. This argument is based on a violation of state law, not ICWA. Accordingly, we first decide whether to consider this argument on appeal without reference to ICWA.

¶ 14 Generally, this Court will not review an issue raised for the first time on appeal. In re D.K.D., 2011 MT 74, ¶ 16, 360 Mont. 76, 250 P.3d 856. We apply the common law plain error doctrine where the error is “plain” and we are “firmly convinced” that an aspect of the proceeding would result in “manifest miscarriage of justice or compromise the integrity of the judicial process.” In re D.K.D., ¶ 16; In re Custody & Parental Rights of D.A., 2008 MT 247, ¶ 33, 344 Mont. 513, 189 P.3d 631. We invoke the plain error doctrine sparingly. In re D.K.D., ¶ 6.

¶ 15 Under Montana law, a court may terminate a parent's rights for failure to successfully complete or to comply with a court-ordered treatment plan only if the child is first adjudicated a youth in need of care in accordance with § 41–3–437, MCA. Section 41–3–609(1)(f), MCA. Unless the petition seeks termination on alternate grounds such as relinquishment, abandonment, or circumstances in which a treatment plan is not...