In re M.S.
| Decision Date | 30 September 2014 |
| Docket Number | No. DA 13–0790.,DA 13–0790. |
| Citation | 2014 MT 265,336 P.3d 930,376 Mont. 394 |
| Parties | In the Matter of M.S., A Youth in Need of Care. |
| Court | Montana Supreme Court |
For Appellant: Julie Brown; Montana Legal Justice, PLLC; Missoula, Montana.
For Appellee: Timothy C. Fox, Montana Attorney General; C. Mark Fowler, Appellate Services Bureau Chief; Helena, Montana, John Parker, Cascade County Attorney; Matthew W. Robertson, Deputy County Attorney; Great Falls, Montana.
¶ 1 G.S. appeals an order of the Eighth Judicial District Court, alleging that the court terminated his parental rights without following the statutory requirements of the Indian Child Welfare Act (ICWA), 25 U.S.C. § 1901 et seq., and without providing due process. We restate the issue on appeal as follows: Whether the termination proceedings complied with statutory requirements for proceedings involving an Indian child.
¶ 2 We affirm.
¶ 3 Thirteen-year-old M.S. was removed from her mother's care and placed into emergency protective custody on July 18, 2011, after her mother was arrested for Possession of Dangerous Drugs with Intent to Distribute. M.S.'s father, G.S., has been incarcerated in a federal prison in Arizona since 2009, serving a 480–month sentence with an additional 20 years of supervised release for aggravated sexual abuse. G.S. is an enrolled member of the Northern Cheyenne Tribe (Tribe).
¶ 4 On July 25, 2011, the Department of Public Health and Human Services (Department) filed a Petition for Emergency Protective Services, Adjudication as Youth in Need of Care and Temporary Legal Custody. Although the Department initially placed M.S. with another family member, by August 2011, M.S. had moved to Billings to live with her grandmother's ex-husband.
¶ 5 On July 28, 2011, the District Court set a date for a show cause hearing and issued a citation to the mother directing her to appear at the hearing. The Department sent notice of the pending show cause hearing to the Chippewa Cree Tribe, mistakenly believing that M.S. was a member or eligible for membership with that tribe. The Chippewa Cree responded that M.S. was not enrolled or eligible for enrollment with that tribe.
¶ 6 The District Court held the show cause hearing on December 5, 2011. G.S. did not personally attend, but he had been served and was represented at the hearing by his attorney. Both parents stipulated that M.S. was a Youth in Need of Care. The District Court issued an order on December 21, 2011, adjudicating M.S. a Youth in Need of Care and granting the Department Temporary Legal Custody.
¶ 7 On July 26, 2012, the Department filed a Petition for Permanent Legal Custody and Termination of Parental Rights for both parents. At the disposition hearing on the petition, G.S., through counsel, informed the court that he was a member of the Northern Cheyenne Tribe. The District Court denied and dismissed the Department's petition without prejudice on the grounds that the petition contained inaccurate information regarding M.S.'s tribal affiliations and granted the Department leave to file a new petition to terminate G.S.'s parental rights.
¶ 8 On September 12, 2012, the Department sent notice of the proceedings by registered mail to the Northern Cheyenne Tribe in Lame Deer, Montana. The Department filed a Notice of Filing with the court, stating that the Tribe received copies of the Petition for Temporary Legal Custody, Social Worker's Affidavit, Order to Show Cause Hearing, and Tribal Notice. The Tribe filed a notice of intervention acknowledging that M.S. was an Indian child under ICWA and was eligible for enrollment in the tribe. While the Tribe expressed interest in transferring the case to tribal court and provided contact information, the Tribe did not appear at any subsequent hearings.
¶ 9 On December 4, 2012, the Department filed a modified petition for the termination of G.S.'s parental rights and for permanent legal custody of M.S. The Department asserted a theory of aggravated circumstances under § 41–3–609(1)(d), MCA. A hearing on this petition was held on March 25, 2013. The court determined that a continuance was necessary because the Tribe was not properly notified of the hearing. The termination hearing was rescheduled and held on April 22, 2013. The only indication that the Tribe received notice of the rescheduled hearing was that the court's order indicated that the Tribe was “cc'd” with a copy of the order. At the April 22 hearing, the Department then moved to dismiss its petition and refile for termination solely on the issue of abandonment because it had concluded that, under § 41–3–423(2), MCA, aggravated circumstances are not a ground for termination where the proceeding is subject to ICWA.
¶ 10 On April 30, 2013, the Department filed a motion to amend the petition to terminate G.S.'s parental rights and for summary judgment. The District Court issued an order granting the Department's motion to amend. Although the Department's motion indicated that a copy was “cc'd” to the Tribe, neither the motion nor the court's subsequent order contained a certificate of service confirming that the documents were served on the Tribe.
¶ 11 At the Department's request, the District Court issued an order setting a summary judgment hearing for October 21, 2013, on the petition to terminate G.S.'s parental rights. This order indicated that it was sent to the parties by a certificate of mailing signed by the clerk of court. At the hearing, the District Court ordered G.S.'s parental rights terminated and awarded the Department permanent legal custody of M.S. The District Court issued its findings of fact, conclusions of law, and order terminating G.S.'s rights on November 12, 2013. G.S. appeals.
¶ 12 This Court reviews the District Court's decision to terminate parental rights for an abuse of discretion. In re K.B., 2013 MT 133, ¶ 18, 370 Mont. 254, 301 P.3d 836. “In a case governed by ICWA, we will uphold the district court's termination of parental rights if a reasonable fact-finder could conclude beyond a reasonable doubt that continued custody by the parent is likely to result in serious emotional or physical damage to the child.”In re K.B., ¶ 18. We review a district court's application of the law to the facts of the case for correctness. In re K.B., ¶ 18.
¶ 13 Whether the termination proceedings complied with statutory requirements for proceedings involving an Indian child.
¶ 14 ICWA establishes the minimum federal standards for the removal of an Indian child from her family and the placement of such a child in a foster or adoptive home. M.S. is eligible for enrollment with the Tribe and, under ICWA, M.S. is an Indian child. ICWA must be followed strictly by state courts, to “protect the best interests of Indian children and promote the stability and security of Indian tribes and families.” 25 U.S.C. § 1902.
¶ 15 ICWA provides that “any parent or Indian custodian from whose custody such [Indian] child was removed, and the Indian child's tribe may petition any court of competent jurisdiction to invalidate such action upon a showing that such action violated any provision of sections 1911, 1912, and 1913 of this title.” 25 U.S.C. § 1914. Section 1912 of ICWA requires:
In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child's tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention.... No foster care placement or termination of parental rights proceeding shall be held until at least ten days after receipt of notice by the parent or Indian custodian and the tribe or the Secretary....
25 U.S.C. § 1912(a).
¶ 16 A recent case decided by this Court involved problems with notice under 25 U.S.C. § 1912(a). In re K.B., ¶¶ 22–25. In that case, the tribe received proper notice of the youth in need of care proceeding by registered mail, but did not receive proper notice of the termination petition and hearing. In re K.B., ¶ 24. Although the termination petition and the court's order setting the termination hearing indicated by notation that copies were “cc'd” to the mother and the tribe, the record did not include an accompanying certificate of service or other documentation that could prove that timely service was accomplished. In re K.B., ¶ 24.
¶ 17 We held that the notice was insufficient under 25 U.S.C. § 1912(a) because the record did not reflect that the mother and the tribe received notice ten days in advance of the termination hearing. In re K.B., ¶ 25. We reversed the district court's termination order and remanded for a new hearing because the State gave insufficient notice and also because the State did not adequately develop the record with regard to whether it demonstrated “active efforts” under 25 U.S.C. § 1912(d) or whether continued custody of the child by the parent was “likely to result in serious emotional or physical damage to the child” under 25 U.S.C. § 1912(f). In re K.B., ¶ 34.
¶ 18 The procedure followed in this case with regard to notice was remarkably similar to that in In re K.B. After the Department realized its mistake concerning M.S.'s tribal affiliation, the Department properly notified the Tribe by registered mail of the involuntary child custody proceeding. The Tribe promptly filed a notice of intervention. The petition for termination of parental rights filed on April 30, 2013, however, indicates only that it was “cc'd,” without any certificate of service. The court's order granting the amendment also did not contain a certificate of service. No other proof of service was filed in...
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In re Z.N.-M.
...result in the absence of the error." In re S.B., 2019 MT 279, ¶ 32, 398 Mont. 27, 459 P.3d 214 (quoting In re M.S., 2014 MT 265A, ¶ 22, 376 Mont. 394, 336 P.3d 930). In In re S.B. we declined to hold the court in error where the child's tribe was noticed and aware of the proceedings and cho......
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In re H.T., DA 14–0076.
...may protect a child's best interest despite procedural errors that would have no impact upon the result.” In re M.S., 2014 MT 265A, ¶ 22, 376 Mont. 394, 336 P.3d 930 (citations omitted). Although the court erred by not holding a proper adjudicatory hearing prior to the termination of Mother......
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In re H.T., DA 14–0076.
...may protect a child's best interest despite procedural errors that would have no impact upon the result.” In re M.S., 2014 MT 265A, ¶ 22, 376 Mont. 394, 336 P.3d 930 (citations omitted). Although the court erred by not holding a proper adjudicatory hearing prior to the termination of Mother......
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In re S.B.
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