No. 83-376
IN THE SUPREME COURT OF THE STATE OF MONTANA
1984
IN THE MATTER OF DECLARING
M.E.M., JR., a youth in need of care.
APPEAL FROM: District Court of the Twelfth Judicial District,
In and for the County of Hill,
The Honorable Chan Ettien, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Mark A. Suagee, Havre, Montana
For Respondent:
Glen Driveness, Deputy County Attorney, Ijavre,
Montana
Brian Lilletvedt, Havre, Montana
Theodore Thompson, Havre, Montana
-
Submitted on Briefs: December 15, 1983
Decided: April 9, 1984
Filed: %%! D - $8
34
Clerk
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
The mother of M.E.M. appeals from the order of the
Twelfth Judicial District Court, Hill County, terminating
parental rights of both parents and awarding permanent legal
custody to the Department of Social and Rehabilitation
Services. We affirm.
The dispositive issue is whether alleged violations of
the Indian Child Welfare Act in temporary legal custody
proceedings invalidate later permanent legal custody
proceedings which comply with the Indian Child Welfare Act.
The child subject to this action was born March 21,
1981. Because the child and both parents are enrolled
members of the Gros Ventre Tribe of the Fort Belknap Indian
Reservation, the child is an Indian child for purposes of the
Indian Child Welfare Act, 25 U.S.C. .
81903 (4) The child was
born in Havre, Montana and has resided there since his birth.
Both parents also resided in Havre, Montana at all times
relevant to the proceedings.
The Hill County Welfare Department initially became
involved in this case in November of 1980 when the mother was
pregnant with the child. Marsha Brunett, a social worker
from the Hill County Welfare Department became involved
because the parents had previously had a child permanently
removed and because the hospital and the W.I.C. (Women,
Infants and Children) program had reported that the mother
had been drunk when she arrived for appointments. The
Department continued its involvement because the mother
continued to drink heavily during her pregnancy. The child
weighed only four pounds when born and remained in the
hospital for two weeks due to his low birth weight.
After unsuccessfully attempting to arrange for the baby
to go home with the parents, a Petition for Temporary
Investigative Authority was filed on April 6, 1981, and an -
ex
parte order was issued on April 7, 1981. Because the parents
continued to drink heavily and had neither a permanent
residence nor adequate food for the baby, a Petition for
Temporary Legal Custody was filed on April 9, 1981. The
child was released from the hospital and was placed in foster
care.
On April 10, 1981, the parents were served with notice
of a hearing scheduled for April 20, 1981 and a copy of the
Petition for Temporary Legal Custody. Marsha Brunett orally
notified them of the hearing date on at least two other
occasions.
On April 20, 1981, the hearing regarding temporary
custody was held, but neither parent appeared. On April 22,
1981, the court entered its order finding the child a youth
in need of care and awarding temporary legal custody to the
Department of Social and F-ehabilitation Services (the
Department) .
During the next two years the Department attempted to
work with the parents to prepare them to regain custody of
their child. A treatment plan was prepared and signed by
both parents on March 10, 1982. A second plan was developed
and signed by the mother on September 21, 1982. After the
parents agreed to the plans, they were approved by the
District Court. These treatment plans primarily required
that the parents obtain alcoholism treatment or counseling
and that they establish a permanent residence. However, both
parents continued to drink heavily over the next two years
and neither parent established a permanent residence. On
December 8, 1982, the court continued the Department's
temporary legal custody based upon written stipulation of
both parents.
M.E.M. has been in foster care since his birth. He is
developmentally delayed in speech and language, gross motor
skills and cognitive skills. He requires a special training
program designed to address these developmental delays.
Both parents were allowed liberal visitation with P4.E.M.
during his foster care placement, although the mother
allegedly visited the child only four times in 2-1/2 years
and the father less.
On March 14, 1983, a petition requesting termination of
parental rights and granting of permanent legal custody of
M.E.M. to the Department was filed with the court. The
parents were served personally and were provided written
notice by means of certified mail, return receipt requested.
Counsel was appointed for each parent.
On March 23, 1983, the mother filed a motion to dismiss
on the basis of alleged violations of the Indian Child
Welfare Act in prior proceedings. The motion was denied.
The mother then filed a motion to transfer the case to tribal
court, hut the tribal court declined jurisdiction.
On May 4, 1983, the termination hearing was held.
Neither parent attended, although their attorneys stated the
parents had been notified of the hearing. After testimony
from an experienced social worker, a certified dependency
counselor, a physician and a family trainer, the court
entered its Findings of Fact and Conclusions of Law on May
27, 1983, terminating parental rights and awarding permanent
legal custody to the Department. The mother appeals.
Appellant alleges five specific violations of the Indian
Child Welfare Act, 25 U.S.C. S1901, et seq., in the temporary
legal custody proceedings and argues that these violations
require invalidation of both the temporary and permanent
custody proceedings. She does not contend that there were
violations of the Act in the permanent custody proceedings,
but argues that the District Court improperly relied upon
invalid prior proceedings in terminating her parental rights.
We disagree.
For purposes of resolving this issue, we will assume
arguendo that the alleged violations occurred, although we do
not so hold. Because we conclude that the alleged violations
of the Act in the temporary custody proceedings would not
require inval-idation of the permanent custody proceedings, we
need not decide whether the Act was violated.
The Indian Child Welfare Act provides in part:
"Any Indian child who is the subject of any action
for foster care placement or termination of
parental rights under State law, any parent or
Indian custodian from whose custody such 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 sections 1911, 1912, and
1913 of this title." 25 U.S.C. S1914.
This section provides for invalidation of an action which
violates the provisions of the Act. Assuming that the
violations alleged by appellant occurred, she would be
entitled to invalidation of the temporary custody
proceedings. However, this section does not provide for
invalidation of a valid separate action because of an invalid
prior one. On the facts of this case, we decline to extend
the language of this section to provide such a remedy.
The temporary and permanent custody proceedings in this
case were separate actions resulting in court orders granting
different forms of relief. They were initiated by separate
petitions and were required to follow separate statutory
guidelines. See sections 41-3-401, et seq., and 41-3-601, et
seq., MCA.
In terminating appellant's parental rights, the District
Court did not rely upon the prior temporary custody
proceedings. The court noted the temporary custody
proceedings in its findings of fact, but emphasized separate
testimony from the permanent custody hearing regarding the
condition of the child and the parents' ability to care for
the child. The permanent custody hearing involved entirely
different witnesses and was conducted by a different judge
than the temporary custody proceeding. The court heard
testimony from various witnesses, including experts, and
concluded that M.E.M. was a youth in need of care. This
conclusion was based upon the parents' alcoholism, their
refusal to respond to or seek alcoholism treatment, their
inability to care and provide for the child, the likelihood
of serious emotional or physical damage to the child, and
other similar matters.
Further, the temporary custody proceedings were not a
legal prerequisite to termination of parental rights. The
State may file a petition for permanent legal custody
regardless of whether a temporary custody order has been
granted. See section 41-3-401(10) and 41-3-601, et seq.,
MCA. The record is devoid of any suggestion that the court
relied upon the temporary custody order in termination of
appellant's parental rights. Rather, the District Court
followed the separate requirements of section 41-3-609(1) (c),
MCA. The record contains overwhelming evidence apart from
the temporary custody order to support the findings required
by this section and made by the court. Section
41-3-609 (1) (c), MCA does not require reliance upon a prior
temporary custody order nor did the court in fact rely upon
one here.
Appellant further contends that the court improperly
relied upon the parents' failure to comply with
court-approved treatment plans. She argues that these
treatment plans were part of the temporary custody
proceedings and were therefore invalid because of the alleged
violations of the Act. We disagree.
The treatment plans were prepared, executed and approved
by the court a year or more after the temporary custody
orders were granted and were approved by the court without
specific relationship to any proceeding. The treatment plans
were neither required nor suggested by the temporary custody
order. Court-approved treatment plans are not a prerequisite
to a temporary custody order, but they were a prerequisite to
termination of parental rights in this case. See sections
41-3-401, et seq., and 41-3-609 (1)(c)(i), MCA. The treatment
plans were not a part of the temporary custody proceedings
and the District Court did not err in relying upon the
parents' failure to comply with the treatment plans as an
additional basis for terminating parental rights.
In affirming the order of the District Court, we
emphasize that the permanent custody proceedings fully
complied with the provisions of the Act. Individual counsel
was appointed to represent the child and each parent, and
notice was given to all concerned parties. Jurisdiction was
offered to the tribal authorities but was declined. Even
though the parents were given repeated notice of the
proceedings by various individuals, including their
attorneys, they failed to appear or express any interest in
regaining custody of their child. Despite the diligent
efforts of local welfare personnel, the parents refused to
seek or respond to treatment for alcoholism, which so far as
the record shows was the principal obstacle to their ability
and desire to care for their child.
Throughout her brief, appellant has emphasized the
policies of the Indian Child Welfare Act to promote the
stability and security of Indian tribes and families and to
protect the best interests of the Indian child. See 25
U.S.C. 51902. We recognize these and other policies of the
Act and encourage the district courts to diligently follow
the requirements of the Act. These objectives have been
pursued in this case as far as permitted by the
circumstances, but the conduct of the parents does not allow
a continued family relationship. The District Court has
therefore ordered that the child be placed with his extended
Indian family, other members of the child's tribe, or other
Indian families, as required by the Act. 25 U.S.C. §1915(a).
The child's tribe has expressed a desire to arrange such a
placement. The Act's policy of promoting tribal stability
will therefore be carried out as far as the tragic facts of
this case permit. To further prolong this proceeding would
not be in the child's best interest.
We hold that, under the facts of this case, alleged
violations of the Indian Child Welfare Act in temporary legal
custody proceedings do not invalidate the later permanent
custody proceedings. In light of this conclusion,
appellant's other issues are without merit. The District
Court did not err in terminating parental rights.
The order of the court is affirmed.