Valerie L. Calf Boss Ribs v. Cornelius (In re L.D.C.)
| Decision Date | 16 August 2022 |
| Docket Number | DA 21-0441 |
| Citation | 409 Mont. 439,516 P.3d 631 |
| Parties | IN RE the Parenting of: L.D.C., a Minor Child, Valerie L. Calf Boss Ribs, Petitioner and Appellant, v. Daniel J. Cornelius, Respondent and Appellee. |
| Court | Montana Supreme Court |
409 Mont. 439
516 P.3d 631
IN RE the Parenting of: L.D.C., a Minor Child,
Valerie L. Calf Boss Ribs, Petitioner and Appellant,
v.
Daniel J. Cornelius, Respondent and Appellee.
DA 21-0441
Supreme Court of Montana.
Submitted on Briefs: February 23, 2022
Decided: August 16, 2022
Rehearing Denied: September 20, 2022
For Appellant: Dawn Gray, Blackfeet Legal Department, Browning, Montana, Kelly M. Driscoll, Attorney at Law, Missoula, Montana
For Appellee: Joseph J. McKay, Attorney at Law, Browning, Montana
Justice Dirk Sandefur delivered the Opinion of the Court.
¶1 Valerie L. Calf Boss Ribs (Mother) appeals the August 10, 2021, judgments of the Montana Ninth Judicial District Court, Glacier County, affirming the May 2021 Standing Master judgment amending the parties’ parenting plan regarding the minor child (L.D.C.) and the related June 2021 Standing Master judgment denying Mother's subsequent motion to "transfer" jurisdiction to the Tribal Court of the Blackfeet Indian Tribe pursuant to §§ 40-7-202(1)(a), (b), and -108, MCA, of the Montana Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA). We address the following dispositive issues on appeal:
1. Whether the District Court Amended the Prior Parenting Plan Without Subject Matter Jurisdiction, or Improperly Exercised State Subject Matter Jurisdiction, vis-à-vis the Sovereign Jurisdiction of the Blackfeet Tribal Court?
2. Whether the District Court Erroneously Amended the Prior Parenting Plan Without the Showing of a Substantial Change in Circumstances Required by § 40-4-219(1), MCA ?
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 Mother and Daniel J. Cornelius (Father) are the birth parents of L.D.C., who was approximately three years old at the time of the underlying proceedings at issue. Father resides in Wisconsin where he works as a farmer and is a member of the Oneida
Indian Tribe. Mother and L.D.C. are members of the Blackfeet Indian Tribe.
¶3 In January 2019, the District Court adopted and entered a final parenting plan pursuant to stipulation of the parties which essentially provided for them to co-equally parent the child on an alternating month-to-month basis. At the time, Mother was living in Cut Bank, Glacier County, Montana. In mid-2019, the parties filed cross-motions for contempt of specified parenting plan provisions. In November 2019, the District Court, through its Standing Master, disposed of the cross-motions through a stipulated order that, inter alia , required Mother to submit to three random drug tests administered by a third-party provider on the Blackfeet Reservation in Browning, Montana. As reflected in the ensuing stipulated order, the parties’ November 2019 stipulation also called for Mother to effect dismissal of a subsequently filed Blackfeet Tribal Court child custody proceeding regarding the child and to register the state court parenting plan orders in the Tribal Court "for enforcement only."
¶4 In October 2020, Father picked up L.D.C. from Mother in Browning. He did not return the child for Mother's next scheduled parenting time, however, and instead made multiple failed attempts to get Mother to submit to mediation. In February 2021, Mother responded by filing a new state court contempt motion against Father. He immediately filed a response in opposition and his own motion for amendment of the existing state court parenting plan.
¶5 At the ensuing state court hearing on May 17, 2021, Father testified to his various concerns regarding Mother's alleged substance abuse, non-compliance with various parenting plan provisions, her contraction of Covid-19 in regard to scheduled parenting time, and the severity of the Covid-19 outbreak on the Blackfeet Reservation. As additional justification for his failure to return L.D.C. to Mother, he cited national health guidelines discouraging travel during the Covid-19 pandemic. In regard to his motion for a parenting plan modification, Father asserted that, as of January 2019, Mother had been temporarily staying at a multitude of places, been only intermittently employed, been difficult to contact due to her repeated phone number changes, and failed to keep him informed as required by the parenting plan. Father also testified that Mother called him at inappropriate times for harassing purposes, spoke of him in derogatory terms in front of
L.D.C., failed to inform him of other people living in the home with her and L.D.C., failed to provide regular four-day-a-week phone contact with L.D.C., failed to return the child's clothing and personal effects when transferring custody, and refused mediation and third-party counseling—all allegedly in violation of the existing parenting plan.
¶6 Father further testified that, during telephone/video conferences with L.D.C., Mother was "not coherent," "clearly intoxicated or on drugs," had slurred speech, bloodshot eyes, and stumbled on words. He testified that in July 2019, as he was picking up L.D.C. from her, Mother "ripped" the child "out of [his] arms," avoided the responsive involvement of the Blackfeet tribal police, remained at large with the child without contacting him, and did not return the child until 30 days later. He testified to another similar incident that occurred in July 2020 in Browning when Mother entered his vehicle without permission and forcefully removed L.D.C. from his car seat, resulting in her arrest by the Blackfeet tribal police. Father described both incidents as "traumatic" to the child. Father's current girlfriend testified that she witnessed the July 2020 incident and corroborated Father's account. She also testified to witnessing Mother's slurred speech and efforts to belittle Father during calls with L.D.C. The girlfriend testified that the child had "very negative ... reaction[s] after these phone calls" and became highly agitated as a result of observing Mother "yell at his father in front of him."
¶7 Father's girlfriend further testified to L.D.C.’s positive development and enjoyment of life on Father's farm, where Father is teaching him the Oneida Indian language. Father ultimately moved the Standing Master to amend the parenting plan to require Mother to receive substance abuse treatment, at Father's expense. In that regard, he testified that although Mother had previously
obtained a substance abuse report from a provider on the Blackfeet Reservation (Crystal Creek) opining that she did not need substance abuse treatment, she tested positive for methamphetamine use shortly thereafter. Mother testified at the hearing, and provided third-party witness testimony, in opposition to Father's motion and testimonial assertions.
¶8 On May 21, 2021, the Standing Master entered a written judgment amending the parties’ parenting plan regarding L.D.C., along with a corresponding amended parenting plan.1 The amended
parenting plan largely adopted Father's proposed plan and placed L.D.C. exclusively in Father's custody and care, subject to Mother's specified visitation, until she:
submits to a Chemical Dependency Evaluation by a Certified Chemical Dependency Counselor at a facility other than Crystal Creek Lodge, and that in the event that the evaluation comes back as having chemical dependency issues, that [she] follows any and all recommendations resulting from the evaluation including but not limited to in-patient treatment.
In support of the amended parenting plan, the Standing Master found that Mother continued to engage in substance abuse, had been arrested following the violent July 2020 incident, and, in violation of the prior parenting plan, had refused mediation, failed to establish a permanent residence, maintain employment, and failed to maintain a consistent contact phone number since January 2019. The Standing Master thus found a substantial change in the circumstances of the child and that amendment of the prior parenting plan was in the best interests of the child.
¶9 That same day, Mother filed a state court motion for "transfer" of jurisdiction over the matter to the Blackfeet Tribal Court on the asserted grounds that the District Court lacked jurisdiction over her and the child and that Glacier County, Montana, was an inconvenient state court forum. On May 24, 2021, in conjunction with her state court motion to "transfer" jurisdiction, Mother filed a parallel child custody petition, and corresponding motion to accept jurisdiction, in the Blackfeet Tribal Court.
¶10 On June 11, 2021, the Standing Master issued a written order denying Mother's motion to "transfer" jurisdiction to the Blackfeet Tribal Court. On June 16, 2021, Mother filed an objection and motion for District Court review of the Standing Master's May 2021 parenting plan judgment and June 2021 denial of her motion to "transfer" jurisdiction to the Blackfeet Tribal Court. Following a hearing on July 8, 2021, and by separate written orders filed August 10, 2021, the District Court affirmed the Standing Master's May 2021 parenting plan judgment and subsequent June 2021 order denying Mother's motion to "transfer" jurisdiction over this matter to the Blackfeet Tribal Court. Mother timely appeals.
STANDARDS OF REVIEW
¶11 We review lower court findings of fact only for clear error. Ray v. Nansel , 2002 MT 191, ¶ 19, 311 Mont. 135, 53 P.3d 870. A finding of fact is clearly erroneous only if not supported by substantial evidence,
the court misapprehended the effect of the evidence, or, based on our review of the record, we are definitely and firmly convinced that the lower court was otherwise mistaken. Ray , ¶ 19. We review lower court conclusions and applications of law de novo for correctness. In re Marriage of Bessette , 2019 MT 35, ¶ 13, 394 Mont. 262, 434 P.3d 894. We review lower court exercises of discretion for an abuse of discretion. In re M.J.W. , 1998 MT 142, ¶ 7, 289 Mont. 232, 961 P.2d 105. An abuse of discretion occurs if a court exercises granted discretion based on a...
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