In re CH

• Decision Date: 16 March 2000
• Docket Number: No. 99-146.,99-146.
• Citation: 997 P.2d 776,2000 MT 64,299 Mont. 62
• Parties: In the Matter of C.H., A Youth in Need of Care.
• Court: Montana Supreme Court

997 P.2d 776

2000 MT 64

299 Mont. 62

In the Matter of C.H., A Youth in Need of Care.

No. 99-146.

Supreme Court of Montana.

Submitted on Briefs August 26, 1999.

Decided March 16, 2000.

Trudy Flamand Miller, Attorney at Law, Helena, Montana, For Intervenors and Appellants Scott and Tena Ehret.

Maylinn Smith, Indian Law Clinic, Missoula, Montana, For Intervenor and Appellant Confederated Tribes of Siletz Indians.

Hon. Joseph P. Mazurek, Attorney General, Helena, Montana; Marty Lambert, Gallatin County Attorney, Bozeman, Montana, For Respondent State of Montana.

Urban J. Bear Don't Walk, Attorney at Law, Billings, Montana, For Intervenors and Respondents Doug and Janinie Burrows-Alberda.

Michelle L. Clark, Student Attorney, Anita Fineday, Supervising Attorney, Indian Child Welfare Law Center, Minneapolis, Minnesota; Debra DuMontier, Attorney at Law, Confederated Salish and Kootenai Tribes, Pablo, Montana, For Amicus Curiae National Indian Child Welfare Association.

Christine D. Esser, Attorney at Law, Milwaukee, Wisconsin, For Amicus Curiae National Council for Adoption.

Justice KARLA M. GRAY delivered the Opinion of the Court.

¶ 1 The Confederated Tribes of Siletz Indians of Oregon (the Tribe) and Scott and Tena Ehret (the Ehrets) appeal from the order of the Eighteenth Judicial District Court, Gallatin County, continuing the foster care placement of C.H., a youth in need of care, with Janine and Doug Alberda (the Alberdas) and authorizing the Montana Department of Public Health and Human Services (DPHHS) to commence proceedings for the Alberdas to formally adopt C.H. We reverse and remand with instructions.

¶ 2 The dispositive issue is whether the District Court erred in concluding that good cause exists to deviate from the adoptive placement preferences set forth in 25 U.S.C. § 1915(a).

BACKGROUND

¶ 3 C.H. was born on March 19, 1997. On June 12, 1997, she was admitted to Bozeman Deaconess Hospital where it was discovered she had 16 fractured ribs in various stages of healing, as well as fresh bruises on her torso and limbs. C.H.'s examining physician determined that the rib fractures and bruising were consistent with trauma caused by an adult holding and squeezing her until her ribs broke. Based on this evidence of abuse, DPHHS placed C.H. in emergency protective custody and, upon her release from the hospital, placed her in foster care with the Alberdas. The Alberdas are not related to C.H. and are non-Indians. DPHHS subsequently petitioned for—and the District Court granted—temporary investigative authority over C.H.

¶ 4 DPHHS then discovered that C.H. is enrollable as a member of the Tribe and, consequently, that the abuse and neglect proceeding involving C.H. was subject to the Indian Child Welfare Act (ICWA), 25 U.S.C. §§ 1901, et seq. Pursuant to the ICWA, DPHHS notified the Tribe of the proceedings. On August 18, 1997, the Tribe filed motions to intervene and to transfer jurisdiction over the proceeding to the Siletz Tribal Court. The District Court granted the Tribe's motion to intervene and scheduled a hearing on the motion to transfer jurisdiction. The Tribe subsequently amended its motion to transfer jurisdiction by withdrawing its opposition to the District Court's jurisdiction over the adjudicatory phase of the abuse and neglect proceeding. It maintained its desire to acquire jurisdiction over the eventual disposition of the case, however, to ensure that C.H. was placed in a home which met the placement preferences set forth in § 1915 of the ICWA.

¶ 5 On July 21, 1998, DPHHS petitioned the District Court to terminate the parental rights of C.H.'s birth parents on the basis that they had signed stipulations voluntarily relinquishing their parental rights. The District Court entered its order terminating parental rights and granting custody of C.H. to DPHHS, with the right to consent to her adoption, on August 10, 1998. The court also scheduled a review hearing in January of 1999 at which DPHHS was to report regarding the permanent placement of C.H. in an adoptive home. Two days following entry of this order, the Ehrets moved to intervene in the proceeding as interested parties on the basis that Tena Ehret is a member of C.H.'s extended family, as well as a member of the Tribe, and they intended to initiate proceedings to formally adopt C.H. The District Court granted the motion.

¶ 6 In September of 1998, the Tribe renewed its motion to transfer jurisdiction of the case to the Siletz Tribal Court based on its concerns that DPHHS was not properly considering the Tribe's recommendations for permanent placement of C.H. as required by the ICWA. The District Court denied the motion and scheduled an evidentiary hearing on the issues of C.H.'s permanent placement pursuant to the placement preferences set forth in § 1915 of the ICWA and whether good cause existed to avoid those placement preferences. Prior to the hearing, the Alberdas moved to intervene in the proceeding as interested parties, based on their intent to pursue formal adoption of C.H., and the District Court granted the motion.

¶ 7 At the evidentiary hearing in December of 1998, the Tribe and the Ehrets contended that, in determining the adoptive placement of C.H. pursuant to 25 U.S.C. § 1915(a), the District Court was required to give preference to placement with extended family members, members of the Tribe or a member of another Indian tribe. Accordingly, they argued that C.H. should be placed permanently with the Ehrets because Tena Ehret was both an extended family member and a member of the Tribe. DPHHS and the Alberdas contended that, based on C.H.'s extraordinary needs, good cause existed to deviate from the 25 U.S.C. § 1915(a) placement preferences and to allow DPHHS to place C.H. with the Alberdas on a permanent basis.

¶ 8 The District Court subsequently entered its findings of fact, conclusions of law and order, in which it concluded that C.H. had extraordinary physical and emotional needs which constituted good cause to deviate from the ICWA placement preferences. The court denied the proposed adoptive placement with the Ehrets and ordered that C.H. remain in her current foster care placement pending her formal adoption by the Alberdas. The Tribe and the Ehrets appeal.

STANDARD OF REVIEW

¶ 9 The District Court supported its determination that good cause existed to deviate from the ICWA adoptive placement preferences with findings of fact and conclusions of law. The Tribe and the Ehrets do not dispute any of the court's findings of fact. Rather, they contend that the District Court's conclusion that those findings constitute good cause to avoid the placement preferences is erroneous. A district court's application of the law to the facts of a case is a legal conclusion which we review to determine whether the interpretation of the law is correct. Bank of Baker v. Mikelson Land Co., 1999 MT 76, ¶ 26, 294 Mont. 64, ¶ 26, 979 P.2d 180, ¶ 26.

DISCUSSION

¶ 10 Did the District Court err in concluding that good cause exists to deviate from the adoptive placement preferences set forth in 25 U.S.C. § 1915(a)?

¶ 11 The express policy of the ICWA is

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....

25 U.S.C. § 1902. One method by which the ICWA implements this policy is to provide preferences for the adoptive placement of Indian children.

In any adoptive placement of an Indian child under State law, a preference shall be given, in the absence of good cause to the contrary, to a placement with (1) a member of the child's extended family; (2) other members of the Indian child's tribe; or (3) other Indian families.

25 U.S.C. § 1915(a). A court is required to order an adoptive placement of an Indian child in accordance with these preferences unless it concludes that good cause exists to deviate from them. Thus, the ICWA expresses the presumption that it is in an Indian child's best interests to be placed in an Indian home in conformance with the § 1915 placement preferences. Matter of Adoption of Riffle (1996), 277 Mont. 388, 393-94, 922 P.2d 510, 514 (Riffle II).

¶ 12 The ICWA does not define the term "good cause" as used in 25 U.S.C. § 1915(a); nor does it set forth factors to be considered in determining whether good cause exists. However, the Department of the Interior, via the Bureau of Indian Affairs (BIA), promulgated Guidelines for State Courts; Indian Child Custody Proceedings (the guidelines) to assist in the interpretation and application of the ICWA. See 44 Fed. Reg. 67,584to 67,595 (1979). We previously have determined that these guidelines are persuasive and we apply them when interpreting the ICWA. See, e.g., Matter of Adoption of H.M.O., 1998 MT 175, ¶ 30, 289 Mont. 509,

¶ 30, 962 P.2d 1191, ¶ 30; Matter of Adoption of Riffle (1995), 273 Mont. 237, 242, 902 P.2d 542, 545; Matter of M.E.M. (1981), 195 Mont. 329, 336, 635 P.2d 1313, 1318.

¶ 13 The BIA's statement of policy regarding the ICWA and the guidelines is as follows:

Congress through the [ICWA] has expressed its clear preference for keeping Indian children with their families, deferring to tribal judgment on matters concerning the custody of tribal children, and placing Indian children who must be removed from their homes within their own families or Indian tribes. Proceedings in state courts involving the custody of Indian children shall follow strict procedures and meet stringent requirements to justify any result in an individual case contrary to these preferences. The [ICWA], the federal regulations implementing the [ICWA], the recommended guidelines and any state statutes, regulations or rules promulgated to implement the [ICWA] shall be liberally

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