In re K.B.

• Decision Date: 15 May 2013
• Docket Number: No. DA 12–0705.,DA 12–0705.
• Citation: 301 P.3d 836,370 Mont. 254
• Parties: In the Matter of K.B. and T.B., Youths in Need of Care.
• Court: Montana Supreme Court

370 Mont. 254

301 P.3d 836

In the Matter of K.B. and T.B., Youths in Need of Care.

No. DA 12–0705.

Supreme Court of Montana.

Submitted on Briefs April 17, 2013.

Decided May 15, 2013.

For Appellant: Nancy G. Schwartz, Attorney at Law, Billings, Montana.

For Appellee: Timothy C. Fox, Montana Attorney General, C. Mark Fowler, Assistant Attorney General, Helena, Montana, John Parker, Cascade County Attorney, Matthew S. Robertson, Deputy County Attorney, Great Falls, Montana.

Justice BETH BAKER delivered the Opinion of the Court.

[370 Mont. 254]¶ 1 C.B., a member of the Chippewa Cree Tribe, appeals an order of the Eighth Judicial District Court, Cascade County, alleging that the court terminated her parental rights without following the requirements of the federal Indian Child Welfare Act, 25 U.S.C. § 1901 et seq. We restate the issue on appeal as follows: Whether the termination proceedings complied with statutory requirements for proceedings involving Indian children.

¶ 2 We reverse the District Court's termination order and remand the case for the purpose of curing statutory deficiencies and holding a new termination hearing.

PROCEDURAL AND FACTUAL BACKGROUND

¶ 3 C.B. (Mother) is an enrolled member of the Chippewa Cree Tribe (Tribe). Each of her two children—two-year-old K.B. and five-year-old T.B.—qualifies as an “Indian child” under the Indian Child Welfare Act (ICWA), 25 U.S.C. § 1903(4). ICWA's procedural requirements for involuntary proceedings involving Indian children and its criteria for termination of parental rights thus govern this case.

¶ 4 On January 21, 2011, Mother, while extremely intoxicated, took the children outside for a walk in cold weather conditions. Proceeding down a busy street, Mother tipped the stroller over, causing the children to fall into snow and sleet. The children were transported to the emergency room to be treated for hypothermia and then were placed in a youth protective facility. Mother was arrested for two counts of felony criminal endangerment. After communicating with Mother, Kami Moore, the Montana Department of Public Health and Human Services (Department) child protection specialist assigned to the case, placed the children with their maternal grandmother in Box Elder, Montana.

¶ 5 On January 28, 2011, the Department filed a Petition for Emergency Protective Services, Adjudication as Youth in Need of Care and Temporary Legal Custody. The District Court set a show cause hearing on the petition for March 7, 2011. On February 2, 2011, the court issued a citation to Mother, directing her to appear at the hearing. The Cascade County Attorney's Office sent notice of the hearing to the Tribe by certified mail, return receipt requested, on February 3, 2011. At the March 7, 2011 show cause hearing, Mother appeared with her attorney and stipulated that her children were youths in need of care. The court adjudicated the children as youths in need of care and granted temporary legal custody to the Department, pending a dispositional hearing.

¶ 6 A dispositional hearing was held on April 11, 2011, at which the Department presented a proposed treatment plan for Mother, who did not appear but was represented by counsel. Mother's counsel did not object to the treatment plan and stated that he had not had contact with Mother. Among other provisions, the plan required Mother to maintain sobriety, complete a chemical dependency evaluation, submit to random drug and alcohol screenings, acquire a stable residence, maintain employment, demonstrate that she could financially support the children, and maintain contact with Moore and with the children. Following the hearing, the court entered an order adopting the State's proposed treatment plan for Mother, approving the children's current placement with their maternal grandmother and granting temporary legal custody of the youths to the Department for six months.

¶ 7 The Tribe filed a Notice of Appearance and Intervention on June 29, 2011. The notice stated that “the Tribe's social service and other personnel will be available to assist the Court in its deliberations” and that the Tribe was reserving the right “to move for a transfer of jurisdiction in this cause should that become necessary.” The District Court held a status hearing on July 11, 2011, at which Mother appeared and agreed to follow the treatment plan.

¶ 8 The court granted the Department several extensions of temporary legal custody of the children between September 2011 and July 2012, as Mother attempted to complete the treatment plan but made limited progress. The court also held numerous status hearings, at which Mother's counsel often appeared without Mother and reported that he had had no contact with her. Moore's reports also indicated that Mother, in contravention of the treatment plan, failed to keep in contact with Moore and with the children. Those events, detailed below, led the Department to develop a plan for permanent placement of the children and eventually seek termination of Mother's parental rights.

¶ 9 On October 3, 2011, the District Court held a hearing on the State's petition to extend legal custody, at which Mother was present with counsel and the Tribe appeared telephonically. The court granted the State's petition to extend temporary legal custody for an additional six months “to allow the Mother to complete her treatment plan and to allow the child[ren] to be reunified with the Mother.”

¶ 10 On January 23, 2012, the court held a status hearing, at which Mother was not present but was represented by counsel. The Department informed the court that it intended to seek termination of Mother's parental rights. According to the court, Mother's attorney “took no position because he had not had any contact with his client in quite some time.”

¶ 11 On April 13, 2012, the county attorney filed a Petition to Extend Temporary Legal Custody. The attached affidavit of Moore stated that:

[Mother] ... has not had any contact with me for four months. The numbers that she has provided me with have either been disconnected or are wrong numbers. [Mother] is not engaged with any of her services providers or me. [Mother] does not visit with her children so she is losing any connection she may have had with them.

A few days later, the county attorney filed a Motion for Permanency Plan Hearing and Notice of Permanency Plan Report. The attached report and plan, prepared by Moore, stated that the Department's “primary goal” was “reunification with the birthmother [sic], dependent on the completion of the treatment plan,” but “if reunification does not occur[,] the concurrent plan is adoption with family.” The report noted that the children's maternal grandmother expressed desire to serve as the children's permanent placement.

¶ 12 On April 16, 2012, the court held a hearing on the proposed permanency plan, at which Mother was present with her counsel and, according to the court, “took no position” on the plan. The court's April 24, 2012 order adopting the permanency plan stated that “Mother stipulated to the extension of Temporary Legal Custody for a period of 3 months and to the permanency plan. The Mother stated that she is currently in chemical dependency treatment and is attempting to demonstrate that she is committed to completing the treatment plan.”

¶ 13 On June 20, 2012, the county attorney filed another petition to extend temporary legal custody so that Mother would have “time to work towards the successful completion of her respective court-ordered treatment plan.” Moore's attached affidavit stated once again that Mother had not been in contact with her and the Department would “start the termination process.”

¶ 14 On September 17, 2012, the county attorney filed a Petition for Permanent Legal Custody and Termination of Parental Rights. The petition requested termination of Mother's parental rights pursuant to § 41–3–609(1)(f), MCA, due to failure to comply with the court-ordered treatment plan. The District Court set a termination hearing for October 22, 2012.

¶ 15 Mother appeared with counsel at the termination hearing and contested the termination of her parental rights, suggesting instead that the State be granted a long-term guardianship of the children. The Tribe did not appear. Mother's attorney informed the court:

I don't think alcoholism is a reason to terminate under the Indian Child Welfare Act. My client has been making visits. My client is employed. And my client has been going to group care, in regard to an alcohol issue. The Indian Child Welfare Act does not encourage termination regarding alcoholism....

Because counsel could not support his client's position with a specific citation to ICWA, the court responded that it could not consider counsel's objection: “I'm saying, for the record, to the Montana Supreme Court and to you, frankly, I can't consider an objection on legal authority that's not cited to the Court.”

[370 Mont. 258]¶ 16 The court heard testimony from Anna Fisher, the State's ICWA expert, who opined that the children would be “at risk” if returned to Mother's custody and that termination was “in the best interest of the children.”

¶ 17 At the conclusion of the hearing, the District Court terminated Mother's parental rights. The court's November 1, 2012 order stated that, “except for a period of time between February and July of 2011, where mother was living with her mother, the maternal grandmother, in Box Elder with the child[ren] and grandmother under a safety plan, mother has not completed any requirement of her treatment plan.” The court noted that Mother had been given numerous opportunities to comply with the treatment plan, but had on every occasion failed to follow through. The court also relied on Fisher's hearing testimony, which it summarized as follows:

A qualified Indian Child Welfare Act expert testified at this hearing and testified essentially that continued or resumed custody of the children with the...