In re L.D.

• Decision Date: 27 March 2018
• Docket Number: DA 17-0419
• Citation: 414 P.3d 768,391 Mont. 33,2018 MT 60
• Parties: In the MATTER OF: L.D., a Youth in Need of Care.
• Court: Montana Supreme Court

391 Mont. 33

414 P.3d 768

2018 MT 60

In the MATTER OF: L.D., a Youth in Need of Care.

DA 17-0419

Supreme Court of Montana.

Submitted on Briefs: January 17, 2018

Decided: March 27, 2018

For Appellant: Shannon Hathaway, Montana Legal Justice, PLLC, Missoula, Montana

For Appellee: Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana, Joshua A. Racki, Cascade County Attorney, Matthew S. Robertson, Deputy County Attorney, Great Falls, Montana

Justice Dirk Sandefur delivered the Opinion of the Court.

¶1 Birth mother, S.D. (Mother), appeals the judgment of the Montana Eighth Judicial District Court, Cascade County, terminating her parental rights to her minor child, L.D. We restate the dispositive issue as:

Whether the District Court erroneously proceeded with termination of parental rights in the absence of a conclusive tribal determination regarding L.D.'s status as an Indian child as defined by the Indian Child Welfare Act?

We reverse and remand for further proceedings consistent with this Opinion.

PROCEDURAL AND FACTUAL BACKGROUND

¶2 In December of 2013, the Montana Department of Health and Human Services, Child and Family Services ("Department") became involved with two-year-old L.D. after her older half-sister, A.O., revealed that L.D.'s father ("Father") had sexually abused A.O. Father was Mother's domestic partner and A.O.'s step-father.¹ On January 9, 2014, the State filed separate petitions for emergency protective services, youths in need of care ("YINC") adjudication, and temporary legal custody of L.D. and A.O. pursuant to Title 41, chapter 3, MCA. Mother and A.O. were enrolled members of the Chippewa Cree Tribe ("Tribe"), L.D. and Father were not. The State's petition regarding L.D. asserted that "[t]o the best of Petitioner's belief," L.D. "is an Indian child for the purposes of the Indian Child Welfare Act [ ("ICWA") ]." On January 20, 2014, the State notified the Tribe by registered mail that the District Court had set a show-cause hearing on the State's petitions for February 11, 2014. The notice informed the Tribe of the names and whereabouts of L.D.'s natural parents, notified the Tribe of its right to intervene pursuant to ICWA, 25 U.S.C. § 1911, and stated the Department's intent to comply with ICWA kinship-placement requirements during the pendency of the proceedings.

¶3 At the initial show-cause hearing on February 11, 2014, the State presented evidence in support of its separate YINC petitions. Through counsel, Mother advised the District Court that she had been unsuccessful in her attempt to enroll L.D. as a member of the Tribe. Mother and Father further stated their beliefs that L.D. was not eligible for enrollment in the Tribe. Uncertain, the State assured the Court that it would further investigate ICWA eligibility but moved to proceed under ICWA in the interim. The District Court ultimately adjudicated both children as YINC and maintained them in the Department's protective custody pending dispositional hearing.

¶4 At the dispositional hearing on February 25, 2014, Mother stipulated to a Department-proposed treatment plan that required her to maintain contact and cooperation with the Department, complete parenting classes, maintain supervised visitation with L.D., submit to random alcohol and drug testing, successfully complete chemical dependency treatment, undergo a mental health evaluation and any recommended counseling, and complete Department-provided family-based services. On Mother's stipulation, the District Court granted the Department temporary legal custody of L.D. for a period of six months and ordered Mother to complete the stipulated treatment plan. The dispositional-hearing transcript indicates the awareness of the Court and parties that L.D.'s status as an Indian child remained undetermined.

¶5 At an interim status hearing on May 27, 2014, the District Court noted, based on the report of the Department social worker, that Mother was then in compliance and progressing with her treatment plan. The State further advised that the Tribe was aware of the status of the case and apparently would not intervene or assume jurisdiction. At the subsequent six-month review hearing on August 26, 2014, based on Mother's continuing treatment plan progress and parallel stipulation to a permanent kinship guardianship for A.O., the District Court granted the State's motion to extend the Department's temporary legal custody of L.D. for another six months to allow Mother additional time to work her treatment plan.

¶6 Six months later on January 7, 2015, the State filed a petition for termination of Father's parental rights to L.D. based on alleged treatment plan non-compliance and failure. Inter alia , the petition stated that the State "believed" that L.D. was "an Indian child subject to the Indian Child Welfare Act." The State served the termination petition on the Tribe and served Father by publication. The Tribe did not respond at the subsequent termination hearing on April 21, 2015. At the termination hearing, Father did not personally appear but appeared through appointed counsel. Teresa McCracken, Licensed Addiction Counselor, Micaela Stroop, Child Protection Specialist, and Anna Fisher, an ICWA expert, testified on behalf of the State. By written findings of fact, conclusions of law, and order issued May 8, 2015, the District Court terminated Father's parental rights under § 41-3-609(1)(f), MCA. The Court's findings of fact included that L. D. is an Indian child pursuant to ICWA, that there is a presumption that termination of parental rights is in the best interest of L.D. pursuant to § 41-3-604(1), MCA, and that returning L.D. to the custody of Father would likely result in serious emotional or physical damage to the child.

¶7 After an extension of temporary legal custody to afford Mother additional time to work on her treatment plan, the State filed a petition for termination of Mother's parental rights to L.D. and A.O. on August 11, 2015, based on alleged treatment plan non-compliance and failure. Inter alia , the petition asserted that ICWA continued to govern the proceedings because both L.D. and A.O. were Indian children. At the termination hearing on June 1, 2016, Mother stipulated to a court-ordered permanent kinship guardianship for A.O., thus eliminating the need to terminate Mother's rights to A.O. As the termination hearing then progressed regarding L.D., the State's ICWA expert, Anna Fisher, testified in sum that the Department had not engaged in active efforts to avoid breaking up this Indian family and that restoring L.D. to Mother's custody would not be likely to result in serious emotional or physical damage to the child. Based on that testimony, the District Court ultimately denied the State's petition to terminate Mother's parental rights and then extended the Department's temporary legal custody of L.D.

¶8 Four months later, on October 5, 2016, the State filed a second petition to terminate Mother's parental rights to L.D., again based on alleged treatment plan non-compliance and failure. At the termination hearing on November 28, 2016, the State asserted for the first time that L.D. was not an Indian child. Hearing no objection from Mother, the District Court preliminarily determined that L.D. was not an Indian child and that ICWA therefore did not apply to the termination proceeding. The hearing then proceeded, and the State presented evidence in support of termination through the Department social worker and various treating professionals involved in the case. Based on its assertion and the Court's resulting concurrence that ICWA did not apply, the State did not present testimony from an ICWA expert in support of its petition for termination.

¶9 By written findings of fact conclusions of law and order filed June 16, 2017, the District Court terminated Mother's parental rights to L.D. based on treatment plan non-compliance and failure under the non-ICWA, "clear and convincing" evidence standard of § 41-3-609(1), MCA. The Court's order noted the State and Mother agreed that ICWA did not apply because L.D. was not an Indian child as defined by ICWA. The Court criticized the State for failing to notify it that L.D. was not an Indian child until eighteen months into the case on the day of the second termination hearing. Upon terminating Mother's rights, the Court granted the Department permanent legal custody of L.D. Mother timely appeals.

STANDARDS OF REVIEW

¶10 We review a district court decision to terminate parental rights for an abuse of discretion under the applicable standards of Title 41, chapter 3, MCA, and ICWA, Title 25, chapter 21, U.S.C. In re D.B. , 2007 MT 246, ¶ 16, 339 Mont. 240, 168 P.3d 691. In this context, a court errs and abuses its discretion if it terminates parental rights based on clearly erroneous findings of fact, erroneous conclusions of law, or otherwise "acts arbitrarily, without employment of conscientious judgment, or exceeds the bounds of reason resulting in substantial injustice." In re D.B. , ¶ 18 ; In re A.G. , 2005 MT 81, ¶ 12, 326 Mont. 403, 109 P.3d 756. Findings of fact are clearly erroneous if not supported by substantial evidence, the court misapprehended the effect of the evidence, or this Court has a definite and firm conviction that the lower court was mistaken. In re D.H. , 2001 MT 200, ¶ 14, 306 Mont. 278, 33 P.3d 616. We review conclusions of law de novo for correctness. In re M.P.M. , 1999 MT 78, ¶ 12, 294 Mont. 87, 976 P.2d 988.

DISCUSSION

¶11 Whether the District Court erroneously proceeded with termination of parental rights in the absence of a conclusive tribal determination regarding L.D.'s status as an Indian child as defined by Indian Child Welfare Act?

¶12 Congress enacted ICWA in 1978 to "protect the best interest of Indian children and to promote the stability and security of Indian tribes and families. ..." 25 U.S.C. § 1902. At the core of ICWA is the fundamental assumption...