In re Z.N.-M.
| Citation | 2023 MT 202 |
| Docket Number | DA 23-0157 |
| Decision Date | 31 October 2023 |
| Parties | IN THE MATTER OF: Z.N.-M., A Youth in Need of Care. |
| Court | United States State Supreme Court of Montana |
COUNSEL OF RECORD:
For Appellant: Robin Meguire, Meguirelaw.com, Great Falls Montana
For Appellee: Austin Knudsen, Montana Attorney General, Katie F Schulz, Assistant Attorney General, Helena, Montana
Kevin Downs, Lewis and Clark County Attorney, Ann Penner, Deputy County Attorney, Helena, Montana
¶1 T.N. (Mother) appeals the First Judicial District Court's order terminating her parental rights to her daughter Z.N.-M. We restate the issues on appeal as follows:
¶2 We affirm.
¶3 In 2018, upon finding probable cause to believe that five-year-old Z.N.-M. was in immediate or apparent danger the Montana Department of Health and Human Services, Child and Family Services Division (the Department), removed Z.N.-M. from Mother's care.[1] Tammara Rosenleaf, a Child Protective Specialist (CPS) with the Department, attested that Mother had left Z.N.-M. with a stranger overnight following a domestic disturbance between Mother and her then-boyfriend. Z.N.-M. had bruising on both sides of her face and told Rosenleaf that her mother's boyfriend had thrown her into Mother. Rosenleaf attested that she inquired with both Mother and Z.N.-M.'s father, D.M., as to their tribal membership. Both informed Rosenleaf that they were not members of any Indian tribe. Through prior interaction with the family, the Department had learned from D.M. that, though not a member, he had an affiliation through his mother with the Blackfeet Tribe. By the time of the incident in question, however, the Department had received a conclusive determination from the Blackfeet Tribe that Z.N.-M. was not eligible for membership. The District Court granted the Department emergency protective authority and Z.N.-M. was placed in therapeutic foster care.
¶4 On January 29, 2019, the District Court held a hearing for the purpose of adjudicating Z.N.-M. as a youth in need of care (YINC) and to grant the Department temporary legal custody (TLC) of Z.N.-M. for a period not to exceed six months. Mother and her attorney, Mr. Bell, were both present for the hearing. At the hearing, the District Court adjudicated Z.N.-M. as a YINC and granted TLC of Z.N.-M. to the Department. Following the hearing, the court approved a treatment plan that required Mother to attend parenting classes, undergo substance abuse and mental health screenings, refrain from using alcohol or illicit drugs, participate in individual and family therapy, maintain sufficient housing and income, and stay in stable contact with the Department.
¶5 Over the ensuing months, Mother had successes and setbacks. At times, particularly when Mother was able to obtain stable income and housing, Mother made progress with her own mental health, substance abuse, and parenting. At other times throughout 2021 and 2022, however, Mother lost housing and moved between Helena, Butte, and Anaconda. The instability of displacement was challenging for both Mother and Z.N.-M. During periods of unstable housing, Mother frequently would miss her counseling appointments, and Z.N.-M. would often be tardy or absent from school. Additionally, Z.N.-M. suffered greatly from the disruption and lack of permanency associated with frequent moving, which exacerbated her existing behavioral issues.
¶6 Mother's inability to accomplish the tasks of her treatment plan had an outsized impact on Z.N.-M. As the District Court noted, Z.N.-M. struggles from diagnosed post-traumatic stress disorder and is easily emotionally dysregulated. The court found that Z.N.-M. responded well to structure, stability, routine, and clear boundaries. When provided with the stability of foster homes, Z.N.-M.'s behavior showed marked improvement and her attendance at school was near perfect. When provided with consistent structure and routine, Z.N.-M.'s aggressive and defiant behaviors diminished.
¶7 On May 6, 2021, the Department filed a petition to terminate Mother's parental rights based on Mother's failure to complete her treatment plan. Following several continuances, the District Court held a hearing on January 10, 2022. Prior to the hearing, Mother suggested that Z.N.-M. was a member ofor eligible for membership in Indian tribes other than the Blackfeet Tribe. In April 2021, Mother raised the possibility that Z.N.-M. was a member of the Northern Cheyenne Tribe. In December 2021, Mother reiterated that Z.N.-M. was a member of the Northern Cheyenne Tribe and may be a member of an Alaskan Native tribe and the Little Shell Tribe. Then, at the January 10, 2022 hearing, Mother's counsel, Ms. Erickson, raised for the first time the possibility that Z.N.-M. may be eligible for membership in the Chippewa Cree of the Rocky Boy's Reservation. Mother's claims of Z.N.-M.'s eligibility in the Northern Cheyenne, Alaskan Native, or Little Shell Tribes were based on the ancestry of D.M.'s mother-the same familial affiliation as the Blackfeet Tribe. Erickson's assertions appeared to be based on her own research into the genealogy of Mother and D.M. The District Court postponed the termination hearing, and the Department undertook efforts to determine whether Z.N.-M. was eligible for enrollment in any of the identified tribes. The Department sent notice of the proceedings to each. None of the tribes responded in writing to the notice, nor did any attempt to intervene in the proceedings at any time. Based on testimony that the tribes had verbally confirmed Z.N.-M.'s ineligibility, the District Court held that Z.N.-M. was not an Indian child under ICWA.
¶8 On February 10, 2022, the Department returned Z.N.-M. to Mother's care for a trial home visit. The Department withdrew its petition to terminate parental rights, and Mother stipulated to an extension of TLC for an additional six months. For a brief time, Mother was successful in caring for Z.N.-M. Unfortunately, Mother's progress was not lasting. During the trial home visit, Z.N.-M. repeatedly was tardy or absent from school. In July 2022, Mother lost housing and was forced to move into a hotel. Following her disruption in housing, Mother began to skip her chemical dependency counseling and repeatedly tested positive for methamphetamine.
¶9 On August 22, 2022, the Department terminated the home visit, removed Z.N.-M. from Mother's care, and again moved to terminate Mother's parental rights. On November 21, 2022, the District Court held a hearing on the second petition to terminate. Following the hearing, the District Court found that Mother was unable to ensure the stability, safety, and security that Z.N.-M. required. Mother's housing insecurity and lack of income left her incapable of providing a routine and stable home environment for Z.N.- M. Recognizing Mother's commendable efforts to improve her own mental health and her struggle with drug addiction, the District Court held nonetheless that it was in Z.N.-M.'s best interest to terminate Mother's parental rights. The District Court granted full legal custody of Z.N.- M. to the Department with the right to consent to adoption or guardianship. Mother appeals.
¶10 The determination to terminate parental rights is reviewed for an abuse of discretion under the applicable standards of Title 41, Chapter 3, MCA, and 25 U.S.C. § 1901, ICWA. In re L.D., 2018 MT 60, ¶ 10, 391 Mont. 33, 414 P.3d 768. A district court abuses its discretion if it acts arbitrarily, without conscientious judgment, or in an unreasonable fashion that results in substantial injustice. In re A.G., 2005 MT 81, ¶ 12, 326 Mont. 403, 109 P.3d 756. Section 41-3-609, MCA, requires a district court to make specific factual findings prior to terminating parental rights. We review those factual findings for clear error. In re J.C., 2008 MT 127, ¶ 34, 343 Mont. 30, 183 P.3d 22. Findings of fact are clearly erroneous if they are not supported by substantial evidence, the district court misapprehends the effect of the evidence, or this Court has a definite and firm conviction that the district court was incorrect. In re D.D., 2021 MT 66, ¶ 9, 403 Mont. 376, 482 P.3d 1176. This Court exercises de novo review of claims of ineffective assistance of counsel. In re B.M., 2010 MT 114, ¶ 14, 356 Mont. 327, 233 P.3d 338.
¶11 1. Whether the District Court committed reversible error when it determined that there was no reason to know Z.N.-M. was an Indian child under ICWA.
¶12 ICWA is the legislative embodiment of Congressional determination that the interests of Indian children are best served when the relationships between Indian children and Indian tribes are protected and preserved. 25 U.S.C. § 1901, et seq; In re S.R., 2019 MT 47 ¶ 11, 394 Mont. 362, 436 P.3d 696 (citing Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 49-53, 109 S.Ct. 1597, 1609-11 (1989)). Because raising Indian children in Indian homes is...
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