Matter of K.B. and T.B.

May 15 2013

DA 12-0705

IN THE SUPREME COURT OF THE STATE OF MONTANA

2013 MT 133

IN THE MATTER OF:

K.B. and T.B.,

Youths in Need of Care.

APPEAL FROM: District Court of the Eighth Judicial District,
In and For the County of Cascade, Cause Nos. DDN-11-006 and
DDN-11-007
Honorable Dirk M. Sandefur, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Nancy G. Schwartz, Attorney at Law, Billings, Montana

For Appellee:

Timothy C. Fox, Montana Attorney General, C. Mark Fowler, Assistant
Attorney General, Helena, Montana

John Parker, Cascade County Attorney, Matthew S. Robertson, Deputy
County Attorney, Great Falls, Montana

Submitted on Briefs: April 17, 2013

Decided: May 14, 2013

Filed:

__________________________________________
Clerk
Justice Beth Baker delivered the Opinion of the Court.

¶1 C.B., a member of the Chippewa Cree Tribe, appeals an order of the Eighth

Judicial District Court, Cascade County, alleging that the court terminated her parental

rights without following the requirements of the federal Indian Child Welfare Act, 25

U.S.C. § 1901 et. seq. We restate the issue on appeal as follows: Whether the

termination proceedings complied with statutory requirements for proceedings involving

Indian children.

¶2 We reverse the District Court’s termination order and remand the case for the

purpose of curing statutory deficiencies and holding a new termination hearing.

PROCEDURAL AND FACTUAL BACKGROUND

¶3 C.B. (Mother) is an enrolled member of the Chippewa Cree Tribe (Tribe). Each of

her two children—two-year-old K.B. and five-year-old T.B.—qualifies as an “Indian

child” under the Indian Child Welfare Act (ICWA), 25 U.S.C. § 1903(4). ICWA’s

procedural requirements for involuntary proceedings involving Indian children and its

criteria for termination of parental rights thus govern this case.

¶4 On January 21, 2011, Mother, while extremely intoxicated, took the children

outside for a walk in cold weather conditions. Proceeding down a busy street, Mother

tipped the stroller over, causing the children to fall into snow and sleet. The children

were transported to the emergency room to be treated for hypothermia and then were

placed in a youth protective facility. Mother was arrested for two counts of felony

criminal endangerment. After communicating with Mother, Kami Moore, the Montana

Department of Public Health and Human Services (Department) child protection
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specialist assigned to the case, placed the children with their maternal grandmother in

Box Elder, Montana.

¶5 On January 28, 2011, the Department filed a Petition for Emergency Protective

Services, Adjudication as Youth in Need of Care and Temporary Legal Custody. The

District Court set a show cause hearing on the petition for March 7, 2011. On February

2, 2011, the court issued a citation to Mother, directing her to appear at the hearing. The

Cascade County Attorney’s Office sent notice of the hearing to the Tribe by certified

mail, return receipt requested, on February 3, 2011. At the March 7, 2011 show cause

hearing, Mother appeared with her attorney and stipulated that her children were youths

in need of care. The court adjudicated the children as youths in need of care and granted

temporary legal custody to the Department, pending a dispositional hearing.

¶6 A dispositional hearing was held on April 11, 2011, at which the Department

presented a proposed treatment plan for Mother, who did not appear but was represented

by counsel. Mother’s counsel did not object to the treatment plan and stated that he had

not had contact with Mother. Among other provisions, the plan required Mother to

maintain sobriety, complete a chemical dependency evaluation, submit to random drug

and alcohol screenings, acquire a stable residence, maintain employment, demonstrate

that she could financially support the children, and maintain contact with Moore and with

the children. Following the hearing, the court entered an order adopting the State’s

proposed treatment plan for Mother, approving the children’s current placement with

their maternal grandmother and granting temporary legal custody of the youths to the

Department for six months.
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¶7 The Tribe filed a Notice of Appearance and Intervention on June 29, 2011. The

notice stated that “the Tribe’s social service and other personnel will be available to assist

the Court in its deliberations” and that the Tribe was reserving the right “to move for a

transfer of jurisdiction in this cause should that become necessary.” The District Court

held a status hearing on July 11, 2011, at which Mother appeared and agreed to follow

the treatment plan.

¶8 The court granted the Department several extensions of temporary legal custody of

the children between September 2011 and July 2012, as Mother attempted to complete

the treatment plan but made limited progress. The court also held numerous status

hearings, at which Mother’s counsel often appeared without Mother and reported that he

had had no contact with her. Moore’s reports also indicated that Mother, in contravention

of the treatment plan, failed to keep in contact with Moore and with the children. Those

events, detailed below, led the Department to develop a plan for permanent placement of

the children and eventually seek termination of Mother’s parental rights.

¶9 On October 3, 2011, the District Court held a hearing on the State’s petition to

extend legal custody, at which Mother was present with counsel and the Tribe appeared

telephonically. The court granted the State’s petition to extend temporary legal custody

for an additional six months “to allow the Mother to complete her treatment plan and to

allow the child[ren] to be reunified with the Mother.”

¶10 On January 23, 2012, the court held a status hearing, at which Mother was not

present but was represented by counsel. The Department informed the court that it

intended to seek termination of Mother’s parental rights. According to the court,
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Mother’s attorney “took no position because he had not had any contact with his client in

quite some time.”

¶11 On April 13, 2012, the county attorney filed a Petition to Extend Temporary Legal

Custody. The attached affidavit of Moore stated that:

[Mother] . . . has not had any contact with me for four months. The
numbers that she has provided me with have either been disconnected or
are wrong numbers. [Mother] is not engaged with any of her services
providers or me. [Mother] does not visit with her children so she is losing
any connection she may have had with them.

A few days later, the county attorney filed a Motion for Permanency Plan Hearing and

Notice of Permanency Plan Report. The attached report and plan, prepared by Moore,

stated that the Department’s “primary goal” was “reunification with the birthmother [sic],

dependent on the completion of the treatment plan,” but “if reunification does not

occur[,] the concurrent plan is adoption with family.” The report noted that the children’s

maternal grandmother expressed desire to serve as the children’s permanent placement.

¶12 On April 16, 2012, the court held a hearing on the proposed permanency plan, at

which Mother was present with her counsel and, according to the court, “took no

position” on the plan. The court’s April 24, 2012 order adopting the permanency plan

stated that “Mother stipulated to the extension of Temporary Legal Custody for a period

of 3 months and to the permanency plan. The Mother stated that she is currently in

chemical dependency treatment and is attempting to demonstrate that she is committed to

completing the treatment plan.”

¶13 On June 20, 2012, the county attorney filed another petition to extend temporary

legal custody so that Mother would have “time to work towards the successful
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completion of her respective court-ordered treatment plan.” Moore’s attached affidavit

stated once again that Mother had not been in contact with her and the Department would

“start the termination process.”

¶14 On September 17, 2012, the county attorney filed a Petition for Permanent Legal

Custody and Termination of Parental Rights. The petition requested termination of

Mother’s parental rights pursuant to § 41-3-609(1)(f), MCA, due to failure to comply

with the court-ordered treatment plan. The District Court set a termination hearing for

October 22, 2012.

¶15 Mother appeared with counsel at the termination hearing and contested the

termination of her parental rights, suggesting instead that the State be granted a long-term

guardianship of the children. The Tribe did not appear. Mother’s attorney informed the

court:

I don’t think alcoholism is a reason to terminate under the Indian Child
Welfare Act. My client has been making visits. My client is employed.
And my client has been going to group care, in regard to an alcohol issue.
The Indian Child Welfare Act does not encourage termination regarding
alcoholism. . . .

Because counsel could not support his client’s position with a specific citation to ICWA,

the court responded that it could not consider counsel’s objection: “I’m saying, for the

record, to the Montana Supreme Court and to you, frankly, I can’t consider an objection

on legal authority that’s not cited to the Court.”

¶16 The court heard testimony from Anna Fisher, the State’s ICWA expert, who

opined that the children would be “at risk” if returned to Mother’s custody and that

termination was “in the best interest of the children.”
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¶17 At the conclusion of the hearing, the District Court terminated Mother’s parental

rights. The court’s November 1, 2012 order stated that, “except for a period of time

between February and July of 2011, where mother was living with her mother, the

maternal grandmother, in Box Elder with the child[ren] and grandmother under a safety

plan, mother has not completed any requirement of her treatment plan.” The court noted

that Mother had been given numerous opportunities to comply with the treatment plan,

but had on every occasion failed to follow through. The court also relied on Fisher’s

hearing testimony, which it summarized as follows:

A qualified Indian Child Welfare Act expert testified at this hearing and
testified essentially that continued or resumed custody of the children with
the mother was likely to result in immediate risk of harm to the children,
due to the mother’s failure to obtain and maintain a stable home as required
by her treatment plan, and the immediate danger of alcohol relapse, due to
her continued untreated Chemical Dependency problem.

The court found that “termination is not contrary to the customs of the Chippewa Cree

Tribe,” and that “circumstance[s] of abject failure or refusal of a parent to engage and

endeavor in any positive manner, to address manifest parental problems” supported its

decision to terminate Mother’s parental rights. Mother appeals.

STANDARD OF REVIEW

¶18 We review for an abuse of discretion the district court’s decision to terminate

parental rights. In the Matter of T.W.F. and A.R.M., 2009 MT 207, ¶ 17, 351 Mont. 233,

210 P.3d 174. In a case governed by ICWA, we will uphold the district court’s

termination of parental rights if a reasonable fact-finder could conclude beyond a

reasonable doubt that continued custody by the parent is likely to result in serious

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emotional or physical damage to the child. T.W.F., ¶ 18 (citing In the Matter of A.N.,

2005 MT 19, ¶ 19, 325 Mont. 379, 106 P.3d 556). “A district court’s application of the

law to the facts of a case is a legal conclusion which we review to determine whether the

interpretation of the law is correct.” In re J.W.C., 2011 MT 312, ¶ 15, 363 Mont. 85, 265

P.3d 1265 (quoting In re C.H., 2000 MT 64, ¶ 9, 299 Mont. 62, 997 P.2d 776).

¶19 ICWA provides that “any parent or Indian custodian from whose custody such

[Indian] child was removed, and the Indian child’s tribe may petition any court of

competent jurisdiction to invalidate such action upon a showing that such action violated

any provision of section 1911, 1912, and 1913 of this title.” 25 U.S.C. § 1914.

DISCUSSION

¶20 Whether the termination proceedings complied with statutory requirements for
proceedings involving Indian children.

¶21 Congress enacted ICWA in 1978 to address the “alarmingly high” percentage of

Indian families “broken up by the removal, often unwarranted, of their children from

them by nontribal public and private agencies” and the “alarmingly high” percentage of

placement of those children “in non-Indian foster and adoptive homes and institutions.”

25 U.S.C. § 1901(4). Thus, in order to “protect the best interests of Indian children and

to promote the stability and security of Indian tribes and families,” ICWA provides

minimum federal standards, which must be followed strictly by state courts, to ensure

that placement “will reflect the unique values of Indian culture.” 25 U.S.C. § 1902; see

Guidelines for State Courts; Indian Child Custody Proceedings (ICWA Guidelines), 44

Fed. Reg. 67584, 67586, § A.1 (Nov. 26, 1979) (“Proceedings in state courts involving

8
the custody of Indian children shall follow strict procedures and meet stringent

requirements to justify any result in an individual case contrary to these preferences.”).

¶22 Mother argues that notice of the termination proceedings was insufficient under

ICWA, which provides:

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. . . . No foster care placement or
termination of parental rights proceeding shall be held until at least ten days
after receipt of notice by the parent or Indian custodian and the tribe or the
Secretary . . . .

25 U.S.C. § 1912(a). As a preliminary matter, we disagree with the State that Mother’s

failure to object before the District Court waives our review of this issue. A “court of

competent jurisdiction” under 25 U.S.C. § 1914 has been held to include an appeals

court; thus, failure to comply with ICWA notice requirements may be raised for the first

time on appeal. See In re Gabriel G., 206 Cal. App. 4th 1160, 1166 (Cal. App. 2012)

(recognizing that “[t]he issue of ICWA notice is not waived by the parent’s failure to first

raise it in the trial court”) (internal citation omitted). We are in agreement with numerous

other jurisdictions that 25 U.S.C. § 1914 “specifically confers standing on a parent to

petition a court to invalidate a termination proceeding upon showing that notice

requirements have not been satisfied.” In the Interest of W.D.H., 43 S.W.3d 30, 38 (Tex.

App. 2001); see also In re L.A.M., 727 P.2d 1057, 1059 (Alaska 1986); In re S.M.H., 103

P.3d 976, 981-82 (Kan. App. 2005).

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¶23 Mother concedes that “[w]hen the proceedings first began, the State filed notice in

compliance with the Act,” but argues that the State did not provide sufficient notice of the

termination proceedings. Mother points out that no certificate of service was filed with

the court or attached to the petition for termination—even if there was, she argues that the

Tribe should have received notice of the termination proceeding by registered mail with

return receipt requested, at least ten days prior to the termination hearing.

¶24 As noted, the Tribe received notice of the initial dependency proceedings by

registered mail, in accordance with 25 U.S.C. § 1912(a), and filed a notice of intervention

in the case. The State’s September 17, 2012 Petition for Permanent Legal Custody and

Termination of Parental Rights, as well as the court’s order setting the termination

hearing, indicate by notation that copies were “cc’d” to Mother, Mother’s counsel and the

Tribe, but the Petition includes no accompanying certificate of service and the record

contains no documentation to demonstrate that timely service was accomplished.1 The

Tribe did not appear at the termination hearing.

¶25 This Court has found persuasive the ICWA Guidelines adopted by the Bureau of

Indian Affairs and applies them in Indian child custody cases. J.W.C., ¶ 21. The

Guidelines state that “[t]he time limits are minimum ones required by the Act.” ICWA

Guidelines, 44 Fed. Reg. at 67589, § B.5. The ICWA Guidelines further provide that

1
A certificate of service executed by the Cascade County Sheriff indicates that Mother may have
been served on October 14, 2012—only eight days prior to the termination hearing—with copies
of the Citation, Order to Show Cause, Notice of Show Cause and Adjudicatory Hearing, and
Temporary Legal Custody, and Affidavit of Child Protection Specialist for Emergency Protective
Services and Temporary Legal Custody. The document thus does not verify that Mother was
served with notice of the termination proceedings. It does not even include Mother’s correct
name.
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“[t]he original or a copy of each notice sent pursuant to this section shall be filed with the

court together with any return receipts or other proof of service” so that “there will be a

complete record of efforts to comply with the Act.” ICWA Guidelines, 44 Fed. Reg. at

67588-89, §§ B.4(d)-B.5. Since the record does not reflect that both Mother and the

Tribe received notice ten days in advance of the hearing, we conclude that notice was

insufficient under 25 U.S.C. § 1912(a). See People ex rel. S.R.M., 153 P.3d 438, 442

(Colo. App. 2006) (failure to provide notice of termination proceedings “violates the

plain meaning of 25 U.S.C. § 1912(a),” even where the state provided proper notice of

the dispositional hearing); S.H. v. Calhoun Co. Dept. of Human Res., 798 So. 2d 684, 692

(Ala. Civ. App. 2001) (same).

¶26 Mother argues next that the State failed to demonstrate beyond a reasonable doubt

that her continued custody was “likely to result in serious emotional or physical damage

[to] her children” and “that the Department utilized ‘active efforts’ to reunite [Mother]

with her children.”

¶27 We agree with Mother that the State’s case lacked the required expert testimony

that Mother’s conduct would likely cause serious emotional or physical harm to the

children. ICWA provides:

No termination of parental rights may be ordered . . . in the absence of a
determination, supported by evidence beyond a reasonable doubt, including
testimony of qualified expert witnesses, that the continued custody of the
child by the parent or Indian custodian is likely to result in serious
emotional or physical damage to the child.

25 U.S.C. § 1912(f). Additionally, Montana’s statute governing the termination of

parental rights was amended in 2005 to include the following:
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 (5) If a proceeding under this chapter involves an Indian child and is
subject to the federal Indian Child Welfare Act, a qualified expert witness is
required to testify that the continued custody by the parent or Indian
custodian is likely to result in serious emotional or physical damage to the
child.

Section 41-3-609(5), MCA (emphasis added).

¶28 Though “a district court need not conform its decision to the expert’s testimony,”

the language of both ICWA and § 41-3-609(5), MCA, makes clear that expert testimony

on the issue is necessary in making a termination decision. See In re D.S.B., 2013 MT

112, ¶ 18, ___ Mont. ___, ___ P.3d ___; A.N., ¶ 32; T.W.F., ¶ 26. Accordingly, failure to

elicit expert testimony regarding whether continued custody will result in serious

emotional or physical damage to the children requires reversal of the termination order.

¶29 Here, as noted, the ICWA expert was questioned regarding whether the children

would be “at risk” if placed in Mother’s custody and whether termination was “in the best

interest of the children”—not whether Mother’s continued custody would likely result in

serious emotional or physical damage. Fisher testified in pertinent part as follows:

Q. Okay. Based on this case, do you believe that the children would be at
risk if they were to be returned to their mother?

A. With the mother not having a stable home of her own, yes, I do.

. . .

Q. What about mother’s chemical dependency issues and the fact that she
hasn’t had to complete any treatment?

A. I just briefly spoke with the mother and she said that she’d been clean
for a while, but I don’t know that. So –

Q. Okay.

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 A. – but with chemical dependency, no, I would not return them.

Q. Okay. And do you believe that termination is in the best interest of the
children at this time?

A. At this point, yes.

. . .

THE COURT: What’s the risk that you’re concerned about?

THE WITNESS: Of them being returned to their mother?

THE COURT: Yes.

THE WITNESS: Not a stable home environment and relapsing, for the
mother. Right now they’re in a safe environment with their grandmother.
And like I said, she has brothers and sisters that are able to help out.

. . .

[CROSS-EXAMINATION]

Q. Good morning. Do you think, if, given additional time or more of an
opportunity, that [Mother] could follow through with the chemical
dependency and become a functioning parent of these children?

A. I believe it could happen, yes, I do.

In the absence of expert testimony that continued custody with Mother would likely

result in serious emotional or physical damage to the children, the evidentiary record does

not meet the statutory standard to support the required finding beyond a reasonable doubt.

Based on Fisher’s testimony, the District Court found that placement with Mother was

“likely to result in immediate risk of harm to the children”—an insufficient finding under

25 U.S.C. § 1912(f) and § 41-3-609(5), MCA, to support the court’s termination order.

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¶30 The ICWA Guidelines indicate that evidence of alcohol abuse alone is insufficient

to determine “that continued custody is likely to result in serious emotional or physical

damage to the child.” ICWA Guidelines, 44 Fed. Reg. at 67593, § D.3.c. While the

court properly may consider all evidence presented during the hearing in determining the

sufficiency of the evidence for termination, the Montana statute was amended after this

Court decided A.N. and leaves no doubt that the evidence must include the expert’s

opinion that serious emotional or physical damage to the children will result if they are

left in the parent’s custody. Section 41-3-609(5), MCA. “The evidence must show the

causal relationship between the conditions that exist and the damage that is likely to

result.” ICWA Guidelines, 44 Fed. Reg. at 67593, § D.3.c. Fisher’s testimony fell short

of this standard.

¶31 Finally, Mother argues that the State failed to demonstrate that it made “active

efforts” to prevent the breakup of the Indian family. 25 U.S.C. § 1912(d) provides:

Any party seeking to effect a foster care placement of, or termination of
parental rights to, an Indian child under State law shall satisfy the court that
active efforts have been made to provide remedial services and
rehabilitative programs designed to prevent the breakup of the Indian
family and that these efforts have proved unsuccessful.

We have clarified that the State must demonstrate beyond a reasonable doubt that active

efforts were made to prevent the breakup of the Indian family. In the Matter of G.S.,

2002 MT 245, ¶ 33, 312 Mont. 108, 59 P.3d 1063; D.S.B., ¶ 15. We observed in G.S. that

a “[c]ommon sense construction of the meaning of ‘active efforts’ requires only that

‘timely affirmative steps be taken to accomplish the goal which Congress has set: to

avoid the breakup of Indian families whenever possible by providing services [designed]
14
to remedy problems which might lead to severance of the parent-child relationship.’ ”

G.S., ¶ 36 (quoting Letitia v. Super. Ct., 81 Cal. App. 4th 1009, 1016 (Cal. App. 2000)).

In meeting this “heightened responsibility,” the State “cannot simply wait for a parent to

complete a treatment plan.” T.W.F., ¶ 27. Nor does placement with a family member

automatically satisfy the standard. Courts have held that “placement is a separate issue

from active efforts, and that the two issues must be analyzed separately. The exception to

that rule — under which a placement decision may be relevant to an active efforts

analysis — applies when a child’s placement directly impacts a parent’s ability to

participate in remedial efforts.” Thea G. v. State, 291 P.3d 957, 963 (Alaska 2013); see

also David S. v. State, Dep’t of Health & Soc. Servs., Office of Children’s Servs., 270

P.3d 767, 780 (Alaska 2012) (“[P]lacement decisions present a separate analytical

question from termination decisions.”); In re A.A., 167 Cal. App. 4th 1292, 1318 (Cal.

App. 2008) (“ICWA and . . . California’s statutory law address the issue of an Indian

child’s placement separately from the issue of active efforts. Following their lead, we

distinguish the issue of placement from that of active efforts.”).

¶32 In this case, the State’s implementation of a safety plan to maintain a trial home

visit at the maternal grandmother’s house demonstrated an effort to prevent breakup of

the Indian family. Its presentation at the termination hearing, however, focused on the

standards for termination under Montana law; neither the State nor the court in its

findings of fact and conclusions of law expressly addressed whether ICWA’s heightened

standard for active efforts was met.

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¶33 Because we are reversing for a new termination hearing, the State will have the

opportunity to further develop the record regarding “active efforts” that were made and

the court’s findings of fact should address those efforts. As we have held, the court also

may consider “a parent’s demonstrated apathy and indifference to participating in the

treatment.” A.N., ¶ 23. Here, while the court’s findings of fact and conclusions of law

properly contain detailed information about Mother’s repeated failures, the court did not

address the Department’s active efforts to provide services and programs aside from

finding that the State developed a treatment plan tailored to address Mother’s chemical

dependency problem.

¶34 In conclusion, our review of the record reveals that the termination proceedings

did not comply with the mandates of ICWA and its parallel state provisions. Mother and

the Tribe should have received notice of the petition for termination at least ten days in

advance of the termination hearing, but the record does not substantiate that they did.

25 U.S.C. § 1912(a). At the termination hearing, the ICWA expert was required to testify

as to whether Mother’s continued custody was “likely to result in serious emotional or

physical damage to the child[ren],” but she did not. 25 U.S.C. § 1912(f); § 41-3-609(5),

MCA. The State was required to satisfy the District Court that “active efforts have been

made to provide remedial services and rehabilitative programs designed to prevent the

breakup of the Indian family and that these efforts have proved unsuccessful,” but the

District Court’s termination order does not discuss which, if any, “active efforts” were

made. 25 U.S.C. § 1912(d). ICWA sets minimum federal standards for proceedings

16
involving Indian children, and we are compelled to make sure its requirements are

followed. 25 U.S.C. § 1902.

¶35 Accordingly, we reverse the District Court’s termination order and remand the

case for the purpose of holding a new termination hearing. Because we reverse, we do

not reach Mother’s argument that she received ineffective assistance of counsel.

/S/ BETH BAKER

We concur:

/S/ BRIAN MORRIS
/S/ PATRICIA COTTER
/S/ LAURIE McKINNON
/S/ JIM RICE

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