In re L.H.
| Decision Date | 10 August 2021 |
| Docket Number | DA 20-0478 |
| Citation | 405 Mont. 173,492 P.3d 1218 |
| Court | Montana Supreme Court |
| Parties | In the MATTER OF: L.H., A Youth in Need of Care. |
For Appellant Father: Shannon Hathaway, Driscoll Hathaway Law Group, Missoula, Montana
For Appellant Mother: Dana A. Henkel, Terrazas Henkel, P.C., Missoula, Montana
For Appellee: Austin Knudsen, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana, Eileen Joyce, Butte-Silver Bow County Attorney, Butte, Montana, Mark Vucurovich, Special Deputy County Attorney, Henningsen, Vucurovich & Richardson, P.C., Butte, Montana
¶1 Respondents A.H. (Mother) and D.H. (Father) appeal the separate but related September 2020 Youth in Need of Care (YINC) judgments of the Montana Second Judicial District Court, Butte-Silver Bow County, terminating their respective parental rights to L.H., born December 23, 2017. We address the following restated issues:
We affirm.
¶2 The Montana Department of Health and Human Services (Department) became involved with L.H. at birth when the child's umbilical cord tissue tested positive for marijuana (THC), opiates, and codeine. Based on additional reports of illicit drug use and sales, the Department later intervened in May 2018 with a voluntary short-term, out-of-home protection plan structured to allow the parents to demonstrate the ability to be drug-free and safely parent L.H. The protection plan soon failed, however, resulting in Department removal of L.H. to a protective kinship placement, and the June 14, 2018, filing of a petition for emergency protective services (EPS), YINC adjudication, and temporary legal custody (TLC). Based on Father's cursory assertion of his possible affiliation with the "Lakota Sioux Tribe," the Department gave notice of the proceeding to the Great Plains Regional Office of the federal Bureau of Indian Affairs (BIA) pursuant to 25 U.S.C. § 1912(a) of the federal Indian Child Welfare Act1 (ICWA).2
¶3 At the show cause hearing3 on July 18, 2018, the Department presented the uncontested testimony of a qualified ICWA expert that the parents’ continued custody of L.H. would likely result in serious physical and emotional damage under the circumstances. On motion of one of the parents, the court then recessed and continued the hearing to a later date. After taking additional contested evidence at the continued show cause and combined adjudicatory hearing4 on August 15, 2018, the District Court issued a bench order summarily adjudicating L.H. as a YINC and further summarily granting the Department TLC. Upon resumption of the hearing after a short recess, the State presented the after-the-fact testimony of the assigned Department social worker that "temporary legal custody is in the best interests of this child," and her statement of intent to craft appropriate reunification-oriented treatment plans for the parents. The District Court then summarily adopted "the recommendation of the department." A written judgment issued the next day formally adjudicating L.H. as a YINC5 based on "physical neglect for exposing the child to an unsafe living environment and physical and emotional harm" resulting from ongoing abuse of prescription drugs. The judgment further granted the Department TLC for a period of six months, until February 15, 2019. Inter alia , the written judgment expressly: (1) found that L.H. "is a member of or is enrollable in the Lakota Sioux Tribe"; (2) noted the prior testimony of a qualified ICWA expert that "continued custody of [L.H.] by the parents is likely to result in serious emotional or physical damage" based on the "established" facts; and (3) adjudicated that the "out-of-home placement of [L.H.] complies with the requirements" of 25 U.S.C. § 1915. At a subsequent uncontested hearing on November 14, 2018, the court approved and imposed stipulated reunification-oriented treatment plans for each parent.
¶4 However, on February 15, 2019, the underlying grant of TLC inexplicably expired without Department motion for extension, or other action, prior to completion of either parent's treatment plan.6 A month later, the Department received correspondence from the Standing Rock Sioux Tribe (SRST) of North and South Dakota, dated March 8, 2019, certifying that L.H. was not eligible for SRST enrollment due to lack of the requisite "blood quantum."7
¶5 On March 29, 2019, six weeks after the initial grant of TLC inexplicably lapsed, the Department filed a second petition for EPS, YINC adjudication, and TLC based on: (1) the prior 2018 YINC adjudication; (2) the factual assertion that neither parent had made any substantial progress on their prior treatment plans; and (3) that the previously adjudicated safety risk to L.H. thus remained unabated. Based on the prior SRST non-eligibility determination, the second petition asserted that ICWA did not apply.
¶6 On May 1, 2019, at the initial show cause hearing on the second petition, both parents appeared with respective counsel and unequivocally stipulated to the petition. The District Court accordingly re-adjudicated L.H. as a YINC, granted the Department TLC for a new six-month term, and imposed new reunification-oriented treatment plans. Neither parent objected to or otherwise disputed the second petition assertion that ICWA did not apply. The 2019 treatment plans were substantially similar to the 2018 plans other than, as pertinent, an additional anger management class requirement to address subsequent Department concerns regarding domestic violence between the parents. On May 28, 2019, a written judgment issued formalizing the prior oral judgment.
¶7 On September 23, 2019, the Department petitioned for termination of both parents’ parental rights on the asserted grounds that: (1) L.H. had been in out-of-home protective care for 15 months; (2) both parents failed to complete their respective treatment plans despite ample opportunity to do so; and (3) reunification was thus no longer in L.H.’s best interests.8 On September 3, 2020, following a contested termination hearing on November 12, 2019, the District Court issued separate findings of fact, conclusions of law, and judgments terminating the parents’ respective parental rights and granting permanent legal custody to the Department for appropriate placement. Despite some referenced progress, the court found, inter alia , that both parents largely failed to complete most, if not all, of the essential requirements of their respective treatment plans. The court further expressly found or concluded that: (1) ICWA did not apply to L.H.; (2) continuation of the parent-child relationship with the parents would likely result in continued abuse or neglect; and (3) termination of their parental rights was thus in the best interests of L.H. Both parents timely appeal.
¶8 We review parental rights terminations under Title 41, chapter 3, MCA, for an abuse of discretion based on compliance with applicable Montana statutory and ICWA standards. In re L.D. , 2018 MT 60, ¶ 10, 391 Mont. 33, 414 P.3d 768 ; In re D.B. , 2007 MT 246, ¶ 16, 339 Mont. 240, 168 P.3d 691. An abuse of discretion occurs if a court exercises discretion based on a clearly erroneous finding of fact, erroneous conclusion of law, or otherwise acts arbitrarily, without employment of conscientious judgment, or in excess of the bounds of reason resulting in substantial injustice. In re D.E. , 2018 MT 196, ¶ 21, 392 Mont. 297, 423 P.3d 586 ; D.B. , ¶¶ 16-18. Findings of fact are clearly erroneous only if not supported by substantial evidence, the lower court misapprehended the effect of the evidence, or upon our review of the record we have a definite and firm conviction that the court was otherwise mistaken. L.D. , ¶ 10 ; 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.W. , 2004 MT 301, ¶ 16, 323 Mont. 433, 102 P.3d 6.
¶9 1. Whether the District Court erroneously proceeded to YINC adjudication, temporary legal custody, and parental rights termination without a determination of L.H.’s eligibility for enrollment in the "Lakota Sioux Tribe"?
¶10 Citing In re S.R. , 2019 MT 47, 394 Mont. 362, 436 P.3d 696, and L.D. , the parents separately assert, in essence, that the Department had a federal law duty under the circumstances of this case to send an ICWA notice and request for tribal eligibility determination to the "Lakota Sioux Tribe," as distinct from the SRST. They thus assert that, under the second petition filed after the inadvertent lapse of the 2018 TLC grant, the District Court erroneously proceeded to YINC re-adjudication, new TLC grant, and ultimately terminated their respective parental rights without obtaining a conclusive determination of L.H.’s eligibility or ineligibility for enrollment in the "Lakota Sioux Tribe." We disagree.
¶11 Enacted in 1978 to "protect the best interests of Indian children and to promote the stability and security of Indian tribes and families," ICWA imposes heightened federal standards for the removal of Indian children from Indian families. See , e.g. , 25 U.S.C. §§ 1902, 1911, and 1912(d) - (f). Whether ICWA...
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