M.E.M., Matter of, 81-101

• Decision Date: 12 November 1981
• Docket Number: No. 81-101,81-101
• Citation: 195 Mont. 329,38 St.Rep. 1895,635 P.2d 1313
• Parties: In the Matter of M.E.M. Youth in Need of Care.
• Court: Montana Supreme Court

Page 1313

635 P.2d 1313

195 Mont. 329

In the Matter of M.E.M. Youth in Need of Care.

No. 81-101.

Supreme Court of Montana.

Submitted Sept. 14, 1981.

Decided Nov. 12, 1981.

Steve Bunch argued, Legal Services, Helena, D. Michael Eakin argued, Legal Services, Hardin, for appellant.

Harold F. Hanser, County Atty., Billings, Robert P. Morin argued, Deputy County Atty., Billings, Olsen, Christensen & Gannett, Billings, Damon Gannett argued, Billings, for respondent.

MORRISON, Justice.

This is a dependency and neglect action involving a Sioux Indian child. The case requires application of the Indian Child Welfare Act of 1978, Pub.L.No. 95-608, 92 Stat. 3069 (codified at 25 U.S.C.A. sections 1901-1963, West Supp. 1979). All parties agree to its application. The parental rights of the child's mother, also an enrolled tribal member, were terminated by order of the District Court February 26, 1981. She appeals from that judgment.

M.E.M., age 5, and her natural mother are members of the Standing Rock Sioux Indian Tribe. The mother has an IQ of approximately 53 and receives supplemental security income (S.S.I.) payments. The natural father is deceased. When this action was commenced the mother and M.E.M. were living in Billings, Montana. The mother now resides on the reservation. M.E.M. remains in the foster care of the State.

Petition for temporary investigative authority and protective services was filed by the county attorney August 22, 1979, in the Thirteenth Judicial District, Yellowstone County. The State alleged M.E.M. was in danger of being neglected and abused. A petition for permanent custody and authority to assent to adoption was subsequently filed October 4, 1979. A citation directing the mother to appear at a hearing in the District Court on December 21, 1979, was served upon her October 18, 1979, at Aberdeen, South Dakota. The District Court appointed a guardian ad litem for M.E.M. on October 11. The District Court did not appoint counsel for the mother.

The Standing Rock Tribal Court was notified of the pending action by a Yellowstone County social worker who sent certified letters to the Tribal Court on September 12 and October 15, 1979. The Tribal Court responded October 23 with a letter to the social worker stating that the tribal court would assume jurisdiction and requested arrangements be made for the return of M.E.M. to the Tribal Court.

The Tribal Court was informed by letters dated November 6 and 30 that the county welfare department would resist transfer of jurisdiction unless the Tribal Court's "plans for the disposition of the case" were first stated. The Tribal Court did not respond to these demands.

On December 11, the welfare department sent a mailgram to the mother stating the show cause hearing would be held in the District Court as scheduled. The mother, then residing on the Standing Rock Reservation, sought the assistance of the Tribal Court, pro se. The Tribal Court issued an order directing the District Court to return custody of M.E.M. to the tribe. The order of the Tribal Court was filed with the District Court December 21 but shortly after the time of the hearing.

Present at the hearing were the guardian ad litem, a deputy county attorney, a welfare social worker and a representative of Social and Rehabilitation Services. The mother did not appear and was not represented by counsel. The tribe was not represented either, ostensibly assuming its order would effect the transfer of jurisdiction.

The only witness called by the State was the social worker who recounted her unsuccessful efforts to assist the mother in developing proper parenting skills. She alleged that on several occasions the mother used excessive corporal punishment and that two of the child's uncles had sexually abused the child. She further alleged the mother had been accused of prostitution by employees of the Rescue Mission in Billings, where the mother frequently sought emergency housing, and that she was unable to support herself through any proper employment. The social worker recommended permanent removal and adoptive placement. The District Court took the matter under advisement.

After receiving the tribal order the State resisted transfer and requested a further hearing claiming the tribal order contained "numerous errors of law and (did) not constitute a request to assume jurisdiction under the provisions of the Indian Child Welfare Act." The District Court set March 13, 1980, as the date for further hearing on the issue of termination of parental rights and transfer of jurisdiction.

Through the assistance of the Tribal Court the mother retained Montana Legal Services (MLS) as counsel on March 1, 1980. The mother was represented by MLS at the second hearing, but the Tribal Court was unable to send a representative.

Over the objection of the mother's counsel, who argued the hearing should be limited solely to the question of jurisdiction, a cousin of the mother testified about her discovery of the alleged sexual abuse and her belief that if the child were returned to the mother or tribal authorities the child would certainly be placed in a situation on the reservation which would result in further sexual abuse by the uncles. The social worker added testimony regarding a series of communications with tribal authorities. After the submission of briefs by the parties the District Court held on June 13, 1980, that it had proper jurisdiction, denied transfer of jurisdiction to the Tribal Court and ordered temporary custody remain with the State until a final order was entered. The mother made application to this Court for writ of supervisory control requesting transfer of jurisdiction, which was denied September 17, 1980. Judgment awarding permanent custody and control to the State and authority to assent to adoption was entered February 27, 1981. Notice of appeal was timely filed March 3, 1981.

The appellant contends the District Court erred by (1) failing to appoint counsel for the appellant, (2) refusing to transfer jurisdiction to the Tribal Court, and (3) terminating parental rights without testimony from a "qualified expert." The appellant's challenges originate under the Indian Child Welfare Act.

The Indian Child Welfare Act of 1978 was passed by Congress in response to a significant threat to the integrity of Indian cultures in this country. The Act represents Congressional recognition of the concomitant cultural interests of Indian tribes and Indian children; interests fundamental to the perpetuation and preservation of their mutual and valuable heritage. Congress found "that an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions ..." 25 U.S.C.A. § 1901(4). We share that concern.

Each individual is an amalgam of the predominant religious, linguistic, ancestral and educational influences existent in his or her surroundings. Indian people, whether residing on a reservation or not, are immersed in an environment which is in most respects antithetical to their traditions. Furthermore the cultural diversity among Indian tribes is unquestionably profound yet often not fully appreciated or adequately protected in our society. Our constitution recognizes "the distinct and unique cultural heritage of the American Indians and is committed in its educational goals to the preservation of their cultural integrity." 1972 Mont.Const., Art. X, § 1(2). Preservation of Indian culture is undoubtedly threatened and thereby thwarted as the size of any tribal community dwindles. In addition to its artifacts, language and history, the members of a tribe are its culture. Absent the next generation, any culture is lost and necessarily relegated, at best, to anthropological examination and categorization. In applying our state law and the Indian Child Welfare Act we are cognizant of our responsibility to promote and protect the unique Indian cultures of our state for all future generations of Montanans.

For further discussion of the act see: Note, In Re D.L.L. & C.L.L., Minors: Ruling on the Constitutionality of the Indian Child Welfare Act, 26 S.D.L.Rev. 67-78 (1981); Note, The Indian Child Welfare Act of 1978: Provisions and Policy, 25 S.D.L.Rev. 98-115 (1980); Guerrero, Indian Child Welfare Act of 1978 A Response to The Threat to Indian Culture Caused by Foster and Adoptive Placement of Indian Children, 7 Am.Indian L.Rev. 51-77 (1980); Jones, Indian Child Welfare: A Jurisdictional Approach, 21 Ariz.L.Rev. 1123-1145 (1979); Barsh, The Indian Child Welfare Act of 1978: A Critical Analysis, 31 Hastings L.J. 1287-1336 (1980); Wamser, Child Welfare Under the Indian Child Welfare Act of 1978: A New Mexico Focus, 10 N.M.L.Rev. 413-429 (1980).

Appointment of Counsel for the Natural Mother

Appellant contends the District Court erred by failing to appoint counsel for the mother. The evidence presented at the December 21 hearing showed the mother was developmentally disabled and the recipient of S.S.I. payments; therefore under the Act the mother was entitled to appointment of counsel.

The State concedes the mother was entitled to appointment of counsel by both the Act and our own statutes, section 41-3-401(12), MCA (discretionary appointment); however, argues the State, she never requested counsel therefore no error was committed.

The applicable section of the Act is 25 U.S.C. § 1912(b), which states:

"(b) In any case in which the court determines indigency, the parent or Indian custodian shall have the right to court-appointed counsel in any removal, placement, or termination proceeding. The court may, in its discretion, appoint counsel for the child upon a finding that such appointment is in the best interest of the child ..."

The legislative history of the Act supports...