423 P.3d 586 (Mont. 2018), DA 17-0642, In re D.E.

Docket Nº:DA 17-0642
Citation:423 P.3d 586, 2018 MT 196
Opinion Judge:Ingrid Gustafson Justice.
Party Name:In the MATTER OF: D.E. and A.E., Youths in Need of Care.
Attorney:For Appellant: Jennifer A. Dwyer, Law Office of Jennifer Dwyer, Bozeman, Montana For Appellee: Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana, Eileen Joyce, Butte-Silver Box County Attorney, Mark Vucurovich, Special Deputy County Attorney, B...
Judge Panel:We concur: BETH BAKER, J., LAURIE McKINNON, J., JAMES JEREMIAH SHEA, J., JIM RICE, J.
Case Date:August 07, 2018
Court:Supreme Court of Montana

Page 586

423 P.3d 586 (Mont. 2018)

2018 MT 196

In the MATTER OF: D.E. and A.E., Youths in Need of Care.

No. DA 17-0642

Supreme Court of Montana

August 7, 2018

Submitted on Briefs: July 11, 2018

Page 587

[Copyrighted Material Omitted]

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APPEAL FROM: District Court of the Second Judicial District, In and For the County of Butte/Silver Bow, Cause Nos. DN-15-75-BN and DN-15-76-BN, Honorable Brad Newman, Presiding Judge

For Appellant: Jennifer A. Dwyer, Law Office of Jennifer Dwyer, Bozeman, Montana

For Appellee: Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana, Eileen Joyce, Butte-Silver Box County Attorney, Mark Vucurovich, Special Deputy County Attorney, Butte, Montana

OPINION

Ingrid Gustafson Justice.

[¶1] Birth mother T.E. (Mother) appeals the Findings of Fact, Conclusions of Law and Orders Terminating Parental Rights, Re: Birth Mother issued by the Second Judicial District Court, Butte-Silver Bow County, on June 12, 2017. We reverse and remand for further proceedings consistent with this Opinion.

[¶2] We restate the issues on appeal as follows:

  1. Whether the District Court erroneously proceeded with termination of parental rights in the absence of a conclusive tribal determination regarding each child’s status as an Indian child as defined by ICWA.

    2. If ICWA does not apply, whether the District Court abused its discretion in terminating Mother’s parental rights.

    FACTUAL AND PROCEDURAL BACKGROUND

    [¶3] This appeal concerns two siblings, D.E. (born in 2003) and A.E. (born in 2006). Although a separate cause number was assigned for each child’s case, proceedings occurred simultaneously in the District Court with shared factual information and procedural histories. We consolidated these cases for purposes of appeal.

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    [¶4] Mother is the only surviving birth parent as D.E.’s and A.E.’s birth father died violently in June 2015. Shortly after the birth father’s death, law enforcement received reports expressing concern that Mother was unable to provide for the children’s needs, but no intervention occurred at that time. In August 2015, law enforcement and the Department responded to a complaint that Mother had chased the children out of the home, threatened to kill A.E., and hit D.E. with a bungee cord. Mother was arrested for partner/family member assault; the children were placed with a non-relative kinship provider.

    [¶5] On September 2, 2015, the Department of Public Health and Human Services, Child and Family Services Division (the Department) filed petitions for emergency protective services, adjudication as youths in need of care (YINC) and temporary legal custody (TLC) for D.E. and A.E. The affidavits supporting the initial petitions indicated each child was potentially an Indian child subject to the Indian Child Welfare Act (ICWA). In his supportive affidavits, Child Protection Specialist Matt Lebrun (CPS Lebrun) alleged the children may be Indian children based on a birth parent being an enrolled member of the Blackfeet Tribe.[1] CPS Lebrun indicated he would send requests for verification of Indian child status to the Tribe and that he had contacted Blackfeet Tribal Social Services for assistance in finding placement options for the children.

    [¶6] On September 4, 2015, without any supporting documentation or affidavit from an ICWA expert or anyone with authority from the Blackfeet Tribe, the Department filed a Notice of No ICWA Involvement.

    [¶7] Mother attempted to see D.E. and A.E. in violation of a no-contact order after she was released from jail. She was re-arrested. Because Mother was suicidal and a potential risk to herself and others, she was committed to the Montana State Hospital (MSH) for a month. After Mother was released from MSH and following a contested hearing, the children were adjudicated as YINC on October 28, 2015. The District Court granted the Department TLC for a period not to exceed six months under non-ICWA standards in order for Mother to address housing, chemical dependency, and mental health issues.

    [¶8] At best, the evidence the Department presented at this hearing regarding the children’s ICWA status was confusing. CPS Lebrun testified that the birth father was a member of the Blackfeet Tribe, but Lebrun had contacted the Blackfeet Tribe and was orally informed the children "are not eligible [for enrollment], just they can only be descendent members." CPS Lebrun informed the District Court that ICWA thus did not apply to D.E. and A.E., but acknowledged he had not received anything in writing from the Blackfeet Tribe. There was also confusion as to Mother’s exact tribal affiliation, with CPS Lebrun testifying that Mother had a "tribal affiliation," but that she had informed CPS Lebrun that she was not enrollable and thus her children would also not be enrollable. CPS Lebrun admitted he had not contacted the tribe or tribes with which Mother claimed an affiliation. The District Court ordered the Department to develop an appropriate treatment plan for Mother and set hearing for December 7, 2015.

    [¶9] At hearing on December 7, 2015, CPS Supervisor Kara Richardson (Richardson) testified contact with Mother was inconsistent, and since the Department did not have a current address for her in Great Falls, it could not set up a courtesy worker there. Based on Richardson’s testimony and other evidence, the District Court approved a treatment plan for Mother which included completing a parenting and chemical dependency evaluation, signing a release of information so the Department could obtain the psychological evaluation from MSH, obtaining safe housing, maintaining contact with the Department, and addressing legal/criminal matters.

    [¶10] Mother was out of contact with CPS Lebrun until early February 2016. She then began to work with the Department. In May 2016, the Department petitioned to extend TLC and moved to approve a second treatment

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    plan. Mother was not present at the May 18, 2016 hearing, but was represented by counsel. At that time, the Department indicated Mother was doing well: she had provided 17 negative UAs, was attending weekly counseling, and maintained adequate contact with the Department. The second treatment plan again focused on Mother addressing her mental health and chemical dependency issues and also required her to obtain and maintain safe housing and demonstrate the ability to parent. By then, Mother had secured her own residence and was attending individual counseling. The plan was for the children to be placed with a foster family closer to Great Falls after completion of the school year to increase contact with Mother and facilitate eventual reunification.

    [¶11] Again, CPS Lebrun testified this was a non-ICWA case, although the Department offered no evidence or documentation from any Indian tribe. The District Court granted a six-month extension of TLC and approved the second requested treatment plan.

    [¶12] On July 26, 2016, the children were placed in Mother’s care for a trial home visit.

    [¶13] On August 9, 2016, the Department filed a letter from the Turtle Mountain Band of Chippewa Indians (the Indian Tribe of Mother’s potential affiliation) conclusively stating the children were not enrolled or eligible for enrollment in that tribe. No documentation from any other tribe, including the Blackfeet Tribe, was ever filed in the District Court.

    [¶14] On October 11, 2016, the children were removed from Mother’s care due to Mother’s relapse on methamphetamine with positive UA testing. Mother tested positive for methamphetamine again in October and November 2016, soon after which she stopped attending her mental health counseling and discontinued her participation with UA testing.

    [¶15] On December 20, 2016, the Department again petitioned for extension of TLC and sought approval of a permanency plan of reunification or alternatively, termination of Mother’s parental rights and adoption. At hearing on January 11, 2017, Mother stipulated to extension of TLC and agreed with the permanency plan of reunification. The District Court accepted Mother’s stipulation and extended TLC for a period not to exceed six months. The District Court indicated the Department had made "active efforts" to return the children to Mother, whereupon the Department’s counsel interjected that he wished to "correct the record" because ICWA did not apply to these cases.[2] The Department’s counsel represented to the District Court that the court had already determined ICWA did not apply here. However, no documentation from the Blackfeet Tribe (the Indian Tribe of the birth father’s affiliation) had been filed in the District Court.

    [¶16] On May 9, 2017, the Department filed a Petition for Permanent Legal Custody, Termination of Parental Rights with Right to Consent to Adoption and Request for Hearing Re: Birth Mother in which it alleged that the children were YINC, Mother had failed to successfully complete her treatment plans, and the conduct or condition rendering Mother unfit or unable to parent was not likely to change within a reasonable period of time. Again, despite the lack of any prior documentation, affidavit, or testimony of any individual with tribal authority of the Blackfeet Tribe being filed or provided at prior proceedings, the Department asserted ICWA did not apply.

    [¶17] Hearing was held June 7, 2017. CPS Christa Waliezer, the courtesy caseworker in Great Falls who worked with Mother to assist and monitor her progress on the goals and tasks of her treatment plans, testified Mother had weekly contact with her for three or four months beginning in March 2016, but her contact became progressively more infrequent after that point. Waliezer

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