In re CH, 03-148.

• Decision Date: 07 November 2003
• Docket Number: No. 03-148.,03-148.
• Citation: 2003 MT 308,79 P.3d 822,318 Mont. 208
• Parties: In the Matter of C.H., S.H., and D.H., Youths in Need of Care.
• Court: Montana Supreme Court

79 P.3d 822

2003 MT 308

318 Mont. 208

In the Matter of C.H., S.H., and D.H., Youths in Need of Care.

No. 03-148.

Supreme Court of Montana.

Submitted on Briefs September 11, 2003.

Decided November 7, 2003.

For Appellant: Dorothea Boniello, LaRance, Syth & Associates, P.C., Billings, Montana.

For Respondent: Honorable Mike McGrath, Attorney General; Ilka Becker, Assistant Attorney General, Helena, Montana, Dennis Paxinos, County Attorney; Richard Helm, Deputy County Attorney, Billings, Montana.

Patrick Kenney, Attorney at Law, Billings, Montana (Guardian Ad Litem).

Kevin T. Sweeney, Attorney at Law, Billings, Montana (For Father of C.H.).

Connie Camino, Attorney at Law, Billings, Montana (For Father of S.H.).

Nancy Wetherelt, Attorney at Law, Hardin, Montana (For Father of D.H.).

Justice W. WILLIAM LEAPHART delivered the Opinion of the Court.

¶ 1 "Mother," the natural mother of C.H., S.H., and D.H., appeals the Thirteenth Judicial Court's order of September 17, 2002, terminating her parental rights. The District Court adjudicated the three children youths in need of care and terminated the parental rights of Mother, as well as the parental rights of the respective fathers of each of the children. Only Mother's rights are at issue on appeal. We affirm the order of the District Court.

¶ 2 Mother raises the following issues on appeal:

1. Does the Indian Child Welfare Act apply to the termination of Mother's rights to C.H. and D.H.?

2. Did the District Court abuse its discretion when it terminated Mother's parental rights?

Factual Background

¶ 3 In 1992, Mother initiated contact with the Department of Health and Human Services (the Department) because her oldest child, C.H. who was then approximately twenty months old was uncontrollable. Since that time, Mother has had two more children, S.H., and D.H., and the Department has continued to provide Mother with parenting skills classes and other services. Visits to Mother's home revealed a situation of chaos and dysfunction. The home was extremely messy and cluttered, with dirty dishes, old dried food, clothes and paper all over. The Department responded to numerous reports of Mother's poor judgment and physical altercations amongst Mother and the children.

¶ 4 Numerous mental health care professionals have interacted with the family members. They report that although Mother can recite the lessons from parenting skills classes, she displays a lack of decision-making ability. She does not know what needs to be done in the next minute, hour or day. She misses the significance, severity and intensity of nonverbal cues from her children. This results in a situation of neglect. Because of wild behavior, each of the children has received various psychological diagnoses. C.H. was removed from Mother's care in April 2000. S.H. was removed in October 2000, and D.H. was removed in March 2001. By all accounts, now placed in structured and stable environments, the children are doing better outside of Mother's care.

¶ 5 From January 2001 to July 2002, Mother had three different court-approved treatment plans. Each plan required Mother to deal with her own mental health issues so that she would be able to provide a safe, structured and stable environment for the children. The plans had different benchmarks, such as being on time and attending all meetings for herself and her children, submitting to urine analysis for drugs, allowing her mental health care providers to share information with the Department, and keeping her house clean. The social worker who devised the plans did not think Mother had successfully completed the plans. None of the professionals who testified at the hearing were in favor of Mother keeping her parental rights.

¶ 6 Also at issue is the Native American heritage of two of the children. At the hearing, the Department provided Mylene Widner as a possible expert. Widner is an enrolled member of the Crow Indian Tribe and is also a descendant of the Little Shell Band of the Chippewa. Based on her familiarity with the Little Shell and her review of the record, Widner testified to the following. C.H.'s father qualifies and is enrolled for membership in the Little Shell Band of the Chippewa, based on his one-quarter blood quantum, the minimum blood quantum necessary to qualify for membership. C.H. has one-eighth blood quantum and does not qualify for membership. Widner also explained that the abuse and neglect of C.H. was not related to any Little Shell custom or tradition.

¶ 7 After the conclusion of the termination hearing, the District Court ordered briefs concerning the Indian Child Welfare Act, 25 U.S.C. §§ 1901-1923 ("ICWA") issues. Only the Department filed a brief. Based on all of its knowledge of the case, the Department only addressed the Indian heritage of C.H. On Mother's proposed findings of fact and conclusions of law, her counsel included a footnote stating that she had been told that D.H.'s father was an enrolled member of the Northern Cheyenne Tribe. This was the first and only indication that D.H. may be a Native American. On appeal, Mother raises ICWA issues for both C.H. and D.H.

Standard of Review

¶ 8 We review a District Court's decision to terminate parental rights to determine whether the District Court abused its discretion. In re A.F., 2003 MT 254, ¶ 12, 317 Mont. 367, ¶ 12, 77 P.3d 266, ¶ 12. The test for abuse of discretion is "whether the trial court acted arbitrarily, without employment of conscientious judgment, or exceeded the bounds of reason resulting in substantial injustice." In re D.V., 2003 MT 160, ¶ 14, 316 Mont. 282, ¶ 14, 70 P.3d 1253, ¶ 14. A district court must make specific fact findings in accordance with statutory requirements before terminating parental rights. In re J.V., 2003 MT 68, ¶ 7, 314 Mont. 487, ¶ 7, 67 P.3d 242, ¶ 7. We review those findings of fact to determine whether they are clearly erroneous, and we review conclusions of law to determine whether the court correctly interpreted the law. In re J.V., ¶ 7.

¶ 9 A parent's right to the care and custody of a child is a fundamental interest. However, a court's paramount concern in a parental rights termination proceeding is the best interest of the children. In re D.V., ¶ 15. Primary consideration shall be given to the physical, mental, and emotional conditions and needs of the children. Section 41-3-609(3), MCA.

Discussion

¶ 10 1. Does the Indian Child Welfare Act apply to the termination of Mother's rights to C.H. and D.H.?

A. Policy of ICWA and applicable rules.

¶ 11 The principal purpose of ICWA is to "promote the stability and security of Indian tribes by preventing further loss of their children; and to protect the best interests of Indian children by retaining their connection to the tribes." In re Baby Girl Doe (1993), 262 Mont. 380, 388, 865 P.2d 1090, 1095. Congress's declaration of policy for ICWA states:

The Congress hereby declares that it is the policy of this Nation to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs.

25 U.S.C. § 1902. ICWA is clear and unambiguous that "there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children." 25 U.S.C. § 1901(3). ICWA recognizes the unique and privileged interest that Indian tribes have in the welfare and upbringing of Indian children.

¶ 12 For the purpose of ICWA, an "Indian Child" is defined as:

any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.

25 U.S.C. § 1903(4).

¶ 13 For ICWA to apply, the Indian tribe in question must be recognized by the Secretary of the Interior as eligible for services provided to Indians by the Secretary. 25 U.S.C. § 1903(8) and (11).

¶ 14 In state court proceedings for the termination of parental rights of Indian children, notice must be given to the Indian child's tribe. 25 U.S.C. § 1912. Any parent from whose custody a child was removed may petition any court of competent jurisdiction to invalidate such action based on the lack of proper notice to the tribe, 25 U.S.C. § 1914. Furthermore, ICWA provides:

In any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child, the Indian custodian of the child and the Indian child's tribe shall have a right to intervene at any point in the proceeding.

25 U.S.C. § 1911(c).

B. ICWA analysis for C.H.

¶ 15 The Department contends that ICWA does not apply in the present case. However, in an abundance of caution, the Department had Mylene Widner testify as an ICWA expert. Widner is a descendant of the Little Shell Band of the Chippewa and is an enrolled member of the Crow. Widner testified that she was familiar with the Little Shell standards for membership and their child-rearing practices. Her testimony was also based on her review of the record.

¶ 16 According to Widner, C.H.'s father qualifies for enrollment as a member of the Little Shell Band of the Chippewa by dint of his one-quarter blood quantum, the tribe's minimum standard. C.H., however, only has one-eighth blood quantum and does not qualify for enrollment. Furthermore, Widner testified that the Little Shell Band is not a federally recognized tribe.

¶ 17 We conclude ICWA does not apply to C.H. for two reasons. First, C.H. is not an Indian child as defined by ICWA. ICWA requires that a child be eligible for membership in the tribe. C.H. is not eligible because of her insufficient blood quantum....