01/06/2021
DA 20-0198
Case Number: DA 20-0198
IN THE SUPREME COURT OF THE STATE OF MONTANA
2021 MT 7N
IN THE MATTER OF:
M.D.U-N.,
A Youth in Need of Care.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and For the County of Yellowstone, Cause No. DN 18-030
Honorable Mary Jane Knisely, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Taryn Gray, Driscoll Hathaway Law Group, Missoula, Montana
For Appellee:
Austin Knudsen, Montana Attorney General, Jonathan M. Krauss, Assistant
Attorney General, Helena, Montana
Scott Twito, Yellowstone County Attorney, Amanda O’Shea Tiernan,
Deputy County Attorney, Billings, Montana
Submitted on Briefs: December 2, 2020
Decided: January 6, 2021
Filed:
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__________________________________________
Clerk
Justice Laurie McKinnon delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not
serve as precedent. Its case title, cause number, and disposition shall be included in this
Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana
Reports.
¶2 J.U-N. (Father) appeals from a March 9, 2020 order of the Thirteenth Judicial
District Court, Yellowstone County, terminating his parental rights of child, M.D.U-N.1
We affirm.
¶3 In a related 2008 abuse and neglect proceeding (DN 08-065),2 M.D.U-N.’s mother
(Mother) relinquished her parental rights to M.D.U-N. The Department of Health and
Human Services (Department) requested temporary legal custody in the matter, and
M.D.U-N. was placed with Father in compliance with the placement preference
requirements specified in the Indian Child Welfare Act (ICWA), which was thought at the
time to apply based on Father’s membership in the Ak-Chin Indian Community
(Community) in Maricopa, Arizona. In this earlier proceeding, the Department filed a
Notice of Involuntary Child Custody Proceeding to comply with ICWA, which was served
on the Bureau of Indian Affairs and the Community. In response to that notice, the
Community sent a letter, dated July 21, 2008, stating M.D.U-N. was not eligible for
1
The child is referred to as both “M.D.U.” and “M.D.U-N.” in the district court record. We will
refer to the child as “M.D.U-N.”
2
The case file for DN-08-065 is part of the record in this appeal.
2
enrollment with the Community because Mother was not Native American.3 The letter
also stated the Community would not intervene in DN 08-065. The record from this earlier
proceeding shows that the Department, the parties, and the court determined M.D.U-N.
was not eligible for enrollment with the Community.
¶4 On January 10, 2018, Father caused significant injuries to T.U-N., M.D.U-N.’s older
sister. The Department commenced dependent and neglect proceedings involving
10-year-old M.D.U-N. (DN 18-030) and T.U-N. (DN 18-029), on January 16, 2018. The
Department sought emergency protective services over the children due to Father’s
inability to provide a safe environment, the children’s exposure to physical abuse, and
possible alcohol abuse affecting Father’s ability to safely and appropriately care for
M.D.U-N. and T.U-N.4 The District Court granted the Department’s request on January 19,
2018, pending a show cause hearing.
¶5 On January 12, 2018, Father informed Child Protective Specialist (CPS) Kasia
Harvey that Father was an enrolled member of the Community and he believed M.D.U-N.
was eligible for enrollment. He told CPS Harvey that M.D.U-N. was eligible for
enrollment and the paperwork was pending. CPS Harvey spoke with Ak-Chin Tribal
Enrollment (ATE) and ATE informed CPS Harvey that Father was an enrolled member
with a blood quantum of one-fourth but stated M.D.U-N. was not eligible for enrollment
based on Father’s blood quantum alone. ATE stated that if Mother was Native American
3
This letter was not filed in the current proceedings.
4
There were prior reports of possible abuse and neglect in the home and Department involvement
with the children and their parents.
3
and enrolled in another tribe, he could be eligible for enrollment. CPS Harvey found the
2008 letter from the earlier proceeding indicating that M.D.U-N was not eligible for
enrollment and the Community would not intervene in the 2008 matter. In her affidavit
supporting the Department’s January 16, 2018 petition, Harvey attested to her investigation
into ICWA applicability and asserted: “To the best of my knowledge and belief,
[M.D.U-N.] is not an Indian Child subject to the Indian Child Welfare Act.”
¶6 At a February 5, 2018 show cause hearing in DN 18-030, Father stipulated to, and
the District Court granted, continued emergency protective services to the Department, and
the District Court adjudicated M.D.U-N. as a youth in need of care. Father was represented
by counsel. On March 26, 2018, the Department and Father stipulated to a Treatment Plan
for Father. Father, again represented by counsel, requested one modification and the State
agreed to the modification. Thereafter, Father never objected to the appropriateness,
contents, tasks, or requirements of the Treatment Plan. The record is devoid of any
objections to the tasks in the Treatment Plan or the appropriateness or content of the
Treatment Plan. The District Court, Department, and Father all signed and approved the
Treatment Plan.5 About five months after adjudication, the State reported at a status
5
Per the Treatment Plan, Father was required to: schedule and complete a chemical dependency
evaluation from an approved provider within 30 days and follow all recommendations; complete
random alcohol testing from an approved provider; schedule and complete a psychological
evaluation from an approved provider within 90 days and follow recommendations; schedule and
attend individual counseling from an approved provider; contact CPS worker to determine
parenting intentions; enroll in and attend the next available parenting classes within 90 days;
schedule and complete a parent/child interaction assessment with an approved provider and follow
all recommendations; schedule and complete an anger assessment from an approved provider
within 90 days and follow all recommendations; and meet with the assigned CPS worker, as
requested, to review progress.
4
hearing that there had been a lack of engagement by Father with the Department and it
intended to petition for termination “if things [didn’t] change radically in the next month.”
Father did not make progress on the Treatment Plan.
¶7 On September 25, 2018, the Department filed a Petition for Permanent Legal
Custody and Termination of Parental Rights with Right to Consent to Adoption. The
petition included an affidavit from CPS Brittney Anderson. The Department did not serve
the Community with a Notice of Involuntary Child Custody Proceeding, and it did not file
a certified mail receipt. The District Court scheduled a hearing on the petition, but the
hearing was continued several times to allow Father’s criminal matter involving T.U-N. to
conclude.6 The termination hearing commenced on December 17, 2019 and concluded on
February 21, 2020. At the hearing, CPS Anderson testified that M.D.U-N. was not an
Indian child defined by ICWA but noted that the efforts to determine ICWA status were
made prior to her involvement in the case.7 CPS Anderson testified that she did not have
any reason to believe that M.D.U-N. was enrolled or was enrollable in any tribe.
¶8 The District Court also heard testimony related to Father’s noncompliance with the
Treatment Plan. Although Father completed a violent-risk assessment, he did not meet
with the provider to review the results of the assessment; Father did not complete an anger
management course as recommended; and he did not participate with an individual
6
Father was ultimately convicted of felony assault on a minor and misdemeanor Partner Family
Member Assault. The criminal case file is part of the record in this appeal.
7
CPS Anderson managed the case from March 2018 to December 2018. CPS Harvey managed
the case prior to March 2018 and determined M.D.U-N.’s ICWA status during her time managing
DN 18-030.
5
counselor to specifically address the results of the assessment. CPSs Anderson and
Ashlee Walker both testified about Father’s lack of engagement with the Department.
Despite active efforts to communicate with Father, keep him updated on M.D.U-N., and
engage him in services, the record indicates Father’s communication with the Department
was minimal and inconsistent. Furthermore, Father could have contacted the Department
to make arrangements to contact his child, but made no effort to do so.
¶9 The District Court entered its Order terminating Father’s parental rights on
March 9, 2020, finding and concluding that: M.D.U-N. was not eligible for membership in
any Indian tribe; M.D.U-N. had been adjudicated a youth in need of care; Father failed to
fully comply with his appropriate court-approved Treatment Plan; Father’s Treatment Plan
“was appropriately tailored to rehabilitate his parenting skills for the purpose of reuniting
him with [M.D.U-N.]”; and the plan was unsuccessful. The District Court concluded the
conduct and condition rendering Father unfit was unlikely to change within a reasonable
time and termination of Father’s parental rights was in M.D.U-N.’s best interests.
¶10 Father raises two issues on appeal. The first issue is whether the Department failed
to provide initial notice of involuntary child custody proceedings pursuant to ICWA.
“We review a district court decision to terminate parental rights for an abuse of discretion
under the applicable standards of Title 41, chapter 3, MCA, and ICWA, Title 25,
chapter 21, U.S.C.” In re L.D., 2018 MT 60, ¶ 10, 391 Mont. 33, 414 P.3d 768
(citation omitted). We review factual findings in parental termination orders for clear error
and conclusions of law for correctness. In re C.M., 2019 MT 227, ¶ 13, 397 Mont. 275,
449 P.3d 806.
6
¶11 25 U.S.C. § 1912(a) states:
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.
¶12 In dependency and neglect cases, ICWA only applies if a child meets the definition
of an Indian child, which requires the child is under 18 years old, unmarried, and is either
(1) an enrolled tribal member; or (2) eligible for enrollment and the child’s biological
parent is an enrolled member. In re J.J.C., 2018 MT 317, ¶ 14, 394 Mont. 35, 432 P.3d 149
(citing 25 U.S.C. § 1903(4)). Only if and when the court “has reason to know that an Indian
child is involved” in a dependency and neglect proceeding must the Department notify the
Indian child’s tribe of the pending proceedings and the tribe’s right of intervention.
In re S.R., 2019 MT 47, ¶ 15, 394 Mont. 362, 436 P.3d 696 (quoting 25 U.S.C. § 1912(a))
(internal quotations omitted). This Court recently ruled that “whenever a court ‘knows or
has reason to know’ that a child is an ‘Indian Child’ under ICWA, the court is to verify the
child’s status prior to conducting termination proceedings.” In re M.T., 2020 MT 262,
¶ 21, 401 Mont. 518, 474 P.3d 820 (citing 25 U.S.C. § 1912(a)). “Whether a child is
eligible for tribal membership is a question of fact dependent upon the child’s actual
ancestry, and an Indian tribe provides the determination conclusively as a matter of law.”
In re M.T., ¶ 21 (citing C.F.R. § 23.108(b)).
¶13 Although Father’s statements to CPS Harvey on July 12, 2018, may have given the
Department a “reason to know” about M.D.U-N.’s potential eligibility for enrollment with
7
the Community, that is not the only fact in the record. Father’s statements to CPS Harvey
prompted an investigation into M.D.U-N.’s enrollment status, and as CPS Harvey stated in
her affidavit, ATE confirmed M.D.U-N. was not eligible for enrollment, which ultimately
led to the conclusion that M.D.U-N. was not an ‘Indian child’ under ICWA. CPS Harvey
verified M.D.U-N.’s status with the Community’s enrollment office prior to Father’s
termination proceedings commencing. Evidence in the record, in both DN 08-065 and
DN 18-030, establishes that neither the Department nor the District Court had reason to
know M.D.U-N. was an Indian child after CPS Harvey’s investigation into the matter. To
the contrary, the record supports the fact that Father’s tribe made a conclusive
determination that M.D.U-N. was ineligible for enrollment. Because there was sufficient
evidence in the record to support a finding of fact and conclusion of law that M.D.U-N.
was not an Indian child, the Department was not required to notify the Community of the
pending proceedings.
¶14 The second issue Father raises on appeal is whether the District Court properly
terminated Father’s parental rights pursuant to required statutory criteria, including the
approval of an appropriate treatment plan. Specifically, Father argues the District Court
abused its discretion when it approved Father’s treatment plan because the Treatment Plan
was not sufficient on its face pursuant to the criteria in § 41-3-443(2)(a)-(e), MCA.
¶15 “A court may terminate parental rights when: (1) a child has been adjudicated as a
youth in need of care; (2) an appropriate treatment plan approved by the court has not been
complied with by the parent or has not been successful; and (3) the conduct or condition
of the parent rendering him or her unfit is unlikely to change within a reasonable time.”
8
Section 41-3-609(1)(f), MCA. Father is not challenging the first and third factors but
asserts for the first time on appeal that the Treatment Plan was statutorily deficient under
§ 41-3-443, MCA. This Court has consistently held that “a parent who does not object to
a treatment plan’s goals or tasks waives the right to argue on appeal that the plan was not
appropriate.” In re X.B., 2018 MT 153, ¶ 24, 392 Mont. 15, 420 P.3d 538; In re C.M.,
2015 MT 292, ¶ 15, 381 Mont. 230, 359 P.3d 1081; In re C.B., 2014 MT 4, ¶ 16,
373 Mont. 204, 316 P.3d 177; In re D.S.B., 2013 MT 112, ¶ 10, 370 Mont. 37,
300 P.3d 702; In re T.S., 2013 MT 274, ¶ 27, 372 Mont. 79, 310 P.3d 538. A parent’s
failure to timely object to the district court’s determination that a treatment plan is
appropriate precludes appellate review of that issue. In re M.B., 2018 MT 205, ¶ 17,
392 Mont. 368, 424 P.3d 606. Father did not bring his claim that the Treatment Plan was
statutorily deficient to the attention of the District Court and never objected to the
Treatment Plan’s tasks or content after signing the Treatment Plan. Such claims are not
reviewable on appeal absent objection and preservation before a district court.
We therefore decline to address the issue on appeal.
¶16 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our
Internal Operating Rules, which provides for memorandum opinions. In the opinion of the
Court, the case presents a question controlled by settled law or by the clear application of
applicable standards of review.
¶17 Affirmed.
/S/ LAURIE McKINNON
9
We concur:
/S/ MIKE McGRATH
/S/ BETH BAKER
/S/ JAMES JEREMIAH SHEA
10