No. 93-641
IN THE SUPREME COURT OF THE STATE OF MONTANA
IN THE MATTER OF L.F. and D.F.,
Youths in Need of Care.
SF,P 20 1994
APPEAL FROM: District Court of the Thirt
In and for the Countv of Ye
The Honorable G. ~ o d &Baugh, Judge p;esiding.
COUNSEL OF RECORD:
For Appellant:
Paul E. Toennis; Oliver, Graves, Toennis &
Gustafson, Billings, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General, Mike
Wellenstein, Ass't Attorney General, Helena, Mo
For Guardian At Litem:
Damon Gannett; Gannett Law Firm, Billings, Montana
Submitted on Briefs: June 2, 1994
Decided: September 20, 1994
Filed:
Justice John Conway Harrison delivered the Opinion of the Court.
Appellant, E.F., appeals the Thirteenth Judicial District
Court, Yellowstone County, order which transferred legal custody of
her two children to the Department of Family Services (the
Department) for six months. We affirm.
The sole issue presented is whether the District Court erred
when it concluded that appellant's retention of custody at the
present time would likely result in emotional and physical damage
to her children.
Appellant is the natural mother of D.F. and L.F. D.F. was
born December 12, 1987, and L.F. was born June 6, 1992. The
natural fathers of D.F. and L.F. did not participate in the
temporary custody proceedings.
Appellant was in a recovery program for alcohol and drug
abuse prior to the birth of her son, L.F. Unfortunately, during
her pregnancy she relapsed into using sedatives and marijuana.
Appellant herself had admitted to the Department that she had taken
a valium and smoked marijuana a week before L.F. was born. On June
12, 1992, the Department filed a petition for temporary
investigative authority (TIA) to investigate appellant's history of
drug use and to monitor the welfare of her children. On June 18,
1992, the District Court granted the TIA and then filed an order
for protective services and order to show cause.
DF'
..s foster mother noted unusual behavior for a child of
DF'
..s age, and reported these incidents to the Department during
the TIA investigation. Several counselors and doctors observed and
examined D.F. Most of the doctors and counselors were in agreement
that D.F. was a traumatized, fearful, and confused child. Some
conceded that, although there was a possibility that D.F. had been
sexually abused, interviewing a four-year-old entails special
training and technique to avoid wcoachingtl
the four-year-old into
a false confession.
The Department, as part of its stated policy to investigate
any "roommate situation," investigated G.M., a man with whom the
appellant and her children were residing. D.F. had indicated that
she felt uneasy around G.M., and also had made some negative
statements to the Department about G.M. that the Department
concluded warranted investigation. The appellant and her children
had already moved out of G.M.'s home in July, 1992 because the
Department had been, as appellant stated, "focusing in on G.M."
instead of appellant's drug and alcohol abuse which appellant felt
were her real problems. By moving out, appellant felt that the
Department would refocus on her addictions and not on G.M. During
the Department's investigation of G.M., appellant was made aware
that if she moved back in with G.M. she would risk having her
children removed from her care. Soon after that admonition from
the Department, on August 14, the appellant and her two children
were found in G.M. ' home.
s At that time, the children were
temporarily removed from appellant's care and placed in a foster
home.
On September 8, 1992, appellant filed an application for order
to show cause in the District Court requesting that the Department
show cause why her children should not be returned to her physical
custody. The District Court, upon stipulation of the parties,
extended the initial TIA period another 90 days--until December 9,
1992. On December 10, 1992, the Department filed a petition
seeking adjudication of appellant's two children as youths in need
of care, temporary custody for six months, and continued authority
for foster care placement. Evidentiary hearings were held on these
motions and both parties submitted proposed findings of fact and
conclusions of law. On June 27, 1993, the District Court granted
the Department's request for temporary custody of the children for
six months. Appellant appeals.
Did the District Court err when it concluded that appellant's
retention of custody of her two children at the present time would
likely result in emotional or physical damage to the two children?
Appellant, a Native American, is an enrolled member of the
Mandan, Hidatsa, and Arikara Tribes of the Fort Berthold
Reservation--also referred to as the Three Affiliated Tribes.
Appellant's two children are both enrollable members. In
accordance with the Federal Indian Child Welfare Act of 1978, 25
U.S.C. §§ 1901-1963 (ICWA), the Tribes were notified of the
proceedings concerning appellant's children. The Tribes filed a
motion to intervene in the child custody proceedings pursuant to
ICWA, 25 U.S.C. 5 1911(c). There is no indication of further
involvement on the part of the Tribes in the District Court record.
However, because both children are enrollable members of the Three
Affiliated Tribes, and the mother is an enrolled member, we apply
the ICWA standard for foster care placement of the children.
The applicable standard of review under ICWA for foster care
placement of an Indian child is whether clear and convincing
evidence exists, including testimony of qualified expert witnesses,
to support the determination that llcontinuedcustody of the child
by the parent . . . is likely to result in serious emotional or
physical damage to the child." 25 U.S.C. 5 1912(e).
Several qualified doctors and social workers testified about
D.F. One of the doctors testified concerning D.F.'s statements
that she had been injured by a "hammert1 her "pee-pee" by a man.
on
When shown an anatomically correct picture of a man, D.F.
identified the penis of the man in the picture as being a "hammer."
She also colored in the vaginal and perianal area on an
anatomically correct picture of a girl, indicating that those same
areas on her own body were touched by a llhammer." Another doctor,
after questioning and observing D.F., concluded that she was a
traumatized child, raised in an environment surrounded by violence,
chemical abuse, and inconsistent caretakers. This doctor also
indicated that D.F.'s statements were, in general, sometimes
confusing and "overlaid," and, therefore, her statements concerning
the "hammer" hurting her "pee-pee" could possibly be interpreted in
other ways that would not indicate sexual abuse. However,
regardless of whether sexual abuse had occurred, the majority of
D.F.'s doctors and counselors concluded that she was a traumatized
child.
Appellant selected a counselor to interview D.F. That
counselor testified that D.F. was an **unattachednchild who
desperately needed a stable, secure environment immediately in
order to prevent irreparable damage. The foster mother of D.F. and
L.F. also testified. She stated that when she first began caring
for L.F. his ribs were showing and he vomited after eating. Now he
is greatly improved. The foster mother also stated that D.F. still
appears to have no concept of belonging with anyone and often
"flinchesg*
when people are too physically close to her. One of the
social workers testified that, during a visit with appellant, D.F.
and L.F., appellant was not attentive to L.F. During that visit
L.F. had accidentally hit himself in the mouth with a plastic key
and was crying from the pain. Appellant did not respond on her own
initiative. The social worker felt the need to comfort L.F., and
placed the child in appellant's arms. On another visit, the social
worker testified that appellant did not pick up or cuddle L.F.
until fifty minutes into the visit.
Appellant's chemical dependency counselor testified that
appellant had not completed her aftercare program because appellant
could not afford to pay for the entire program. The counselor
recommended that another chemical dependency evaluation be
performed to assess whether appellant was drug-free since so much
time had elapsed since her last evaluation. The counselor
testified that because of appellant's relapse during her last
pregnancy, it is essential that she complete her aftercare program
and be reevaluated.
In order to terminate the parental rights of an Indian parent,
as distinguished from placing the child in foster care, the
evidence must indicate "beyond a reasonable doubt" that the
continued custody of the child by the parent is likely to result in
serious emotional or physical damage to the child. 25 U.S.C. 5
1912(f). When, however, as here, the decision has been made to
place the children in foster care for several months rather than
terminate the mother's rights, the lesser Itclear and convincing"
burden is used to protect the best interests of the children.
People in Interest of S.R. (S.D. l982), 323 N.W.2d 885, 886-87.
Here, as in Interest of S.R., although the trial court did not
specifically state the ICWA standard of proof, we hold that a
careful review of the record, including the testimony of several
qualified experts, indicates that the lfserious emotional or
physical damage" requirement of 25 U.S.C. 5 1912(e) was proven by
clear and convincing evidence. See Interest of S.R., 323 N.W. at
887. Accordingly, we affirm the District Court's conclusion that
legal custody of appellant's children be transferred to the
Department for a period of six months.
7
prepaid, to the
COURT