In re S.B.

• Decision Date: 03 December 2019
• Docket Number: DA 19-0206
• Parties: In the MATTER OF: S.B. and A.T., Youths in Need of Care.
• Court: Montana Supreme Court

398 Mont. 27

459 P.3d 214

2019 MT 279

In the MATTER OF: S.B. and A.T., Youths in Need of Care.

DA 19-0206

Supreme Court of Montana.

Submitted on Briefs: October 2, 2019

Decided: December 3, 2019

For Appellant: Kelly M. Driscoll, Montana Legal Justice, PLLC, Missoula, Montana

For Appellee: Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana, Eileen Joyce, Silver Bow County Attorney, Butte, Montana

Justice Ingrid Gustafson delivered the Opinion of the Court.

¶1 J.B. (Father) appeals the orders of the Second Judicial District Court, Butte-Silver Bow County, terminating his rights to S.B. and A.T. (Children). We restate the issues on appeal as follows:

1. Whether the District Court’s failure to apply the Indian Child Welfare Act (ICWA) during the first year of the case requires reversal;

2. Whether the Department of Public Health and Human Services, Child and Family Services Division (Department) failed to provide proper notice of the proceedings to the Little Shell Tribe as required by ICWA;

3. Whether the Department provided Father with active efforts to reunify his family;

4. Whether the District Court failed to apply the correct standards when terminating Father’s parental rights.

¶2 We affirm.

PROCEDURAL AND FACTUAL BACKGROUND

¶3 Father and S.T. (Mother) are the birthparents of Children. The Department first became involved with the family in 2014 after the birth of their oldest child, S.B., when the Department received a report Mother could not meet S.B.’s basic needs. Mother and Father were not living together at the time. Mother struggled with untreated mental health issues and unstable housing. The Department’s involvement ended when Mother placed S.B. in Father’s care. At some point after placing S.B. with Father, Mother moved in with Father. Over the next year, the Department received reports alleging drug use and violence in the home. After one incident, the Department put a protection plan in place. Under the protection plan, Mother moved out of Father’s home, the Department monitored Father’s substance use, Father’s sister and brother-in-law monitored visit exchanges between the parents, and the Department encouraged the parents to enter into a parenting plan.

¶4 Nine months later, Mother gave birth to A.T. The Department intervened at A.T.’s birth when it received reports Mother was not actively treating her mental health needs, showed signs of paranoia, and reported she did not have formula and A.T. would starve when she took the child home. The Department filed for Temporary Investigative Authority (TIA) and put an in-home safety plan with Father in place.

¶5 In March 2017, the Department received reports Father was emotionally unstable, using marijuana, and drinking heavily. Reports alleged Father yelled and screamed at Children and during one incident placed a knife against his throat in front of Children and threatened suicide. Child Protection Specialist (CPS) Jodi Burk made an unannounced home visit to Father on March 21, 2017, and Father admitted he used marijuana, was depressed, and was struggling emotionally since his mother passed away in January 2017.

¶6 Three days later the Department received a new incident report. Reportedly, on the night of March 24, Father was intoxicated and very upset. Father woke S.B. up and told her he was going to kill himself and that he was never coming back. Father then left the home. After he left, his roommate called Mother to be with Children. Mother arrived highly intoxicated. When Father returned, he was upset Mother was at the house and called law enforcement. Mother and Father got into a physical altercation while Mother was holding one of their children. In the course of the struggle, Mother punched Father in the face, and Father lost a tooth. Mother told law enforcement she punched Father because he was being too aggressive, and Father was arrested for Partner or Family Member Assault.

¶7 CPS Burk met with Mother and Father separately the following day and took their accounts of the prior evening. The Department removed Children and filed petitions for Emergency Protective Services (EPS), adjudication as Youths in Need of Care (YINC), and Temporary Legal Custody (TLC) on March 29, 2017, due to concerns of domestic violence, the parents’ mental health, and marijuana and alcohol use by both parents. The Department sent notice of the petition to the Little Shell Tribe of Chippewa Indians via registered mail and filed the return receipt with the court.

¶8 At the first hearing on April 19, 2017, Mother stipulated to adjudication of Children as YINC. Father’s counsel had not received the petitions and sought continuance so Father could contest the adjudication. The District Court accepted Mother’s stipulation and continued the proceedings with regard to Father. At that hearing, Father’s counsel reported Children are Indian children such that ICWA applied. The Department responded it had reached out to the Little Shell Tribe of Chippewa Indians to inquire whether Children were enrollable and had been informed that, because the tribe was not federally recognized, ICWA did not apply. The court questioned this testimony, indicating the Little Shell had been recognized by Montana for years and the state had long applied ICWA to the Little Shell. The Department assured the court ICWA did not apply and stated it would file the letter from the tribe and send copies to the parties. The Department did not file the letter.

¶9 The court held a contested adjudication hearing for Father on April 26, 2017. CPS Burk testified about her home visit on March 21 and her follow-up with both parents after the March 24 incident. She testified both parents admitted to the physical altercation and both admitted they were intoxicated. She also provided background on the Department’s prior interventions with the family related to domestic violence, mental health issues, and substance use. She explained the Department had previously put protection plans in place to help Mother and Father parent Children separately. When the Department dismissed its prior TIA, it left Children in Father’s custody. CPS Burk believed retention of the children in the home or the return of the children to the home would place them at unreasonable risk of harm affecting their health and well-being and that the Department made reasonable efforts to avoid removal through prior protective plans and TIA.

¶10 Mother testified about the incident previously reported to the Department when Father put a knife against his neck and threatened suicide. She testified this occurred in front of Children and was very traumatizing.

¶11 Father called Heather Stenson to testify. Stenson is a family development specialist who, on a referral from the Department, had worked previously with Father on parenting skills. For about a year beginning in September 2015, Stenson had weekly appointments with Father in Father’s home. She explained Father was very engaged in the program, Father’s home was always clean, and she never saw any signs of drugs in the home. She stated Father had a good relationship with Children.

¶12 Father testified he has depression and PTSD, but was attending counseling for his mental health and for drugs and alcohol at the North American Indian Alliance (NAIA). He explained that since the death of his mother, he had relied on his roommate to parent because he "wasn’t in a healthy state of mind to really interact with [his] children at the time." Father testified since Children’s removal he had been given the names of three different case workers and was having difficulty getting the Department to return his calls. Father reported he timely signed releases for the Department to access his counseling records. Father reported that in the six weeks since the Children’s removal, he had only three visits. Father also provided an explanation of the incident with the knife. He and Mother were fighting. She poked the knife at him, and he overreacted and put the knife at his neck and said, "If you’re going to do something, do it," but he never intended to hurt himself. Father said Children were in the bedroom and did not see the incident but did see Mother’s hand bleeding after she grabbed the knife.

¶13 The District Court orally found, by clear and convincing evidence, that Children were YINC. The court noted real concerns about Father’s mental health and domestic violence. Further, Father had admitted to using marijuana which prevented him from protecting Children and keeping them safe. The court concluded dismissal of the petitions would create a substantial risk of emotional or physical harm to the children. No qualified expert witness (QEW) testified. The court did not make any findings under ICWA and there was no discussion of ICWA requirements. In its written orders adjudicating Children as YINC, the court found, by a preponderance of the evidence, Children were abused or neglected by the parents because of a substantial risk of physical or psychological harm.

¶14 In May 2017, Father signed a treatment plan which the court approved and ordered. The plan had goals for chemical dependency, mental health, visitation and in-home services, safe and stable housing, and contact with the Department.

¶15 Sometime after adjudication, the Department realized it mistakenly sent its original inquiries about whether Children were enrollable members of the Little Shell to the Bureau of Indian Affairs and not to the tribe. The Department re-sent the inquiries to the tribe and were notified the children were enrolled or enrollable and ICWA did apply. Almost a year after the first adjudication hearing, the Department refiled petitions for EMS, adjudication as YINC, and TLC to comply with ICWA standards. The Department re-sent notice to the tribe and filed the return receipt, showing notice to the tribe more than ten days before the court held an adjudication hearing. Father and Mother both...