No. 03-148
IN THE SUPREME COURT OF THE STATE OF MONTANA
2003 MT 308
IN THE MATTER OF C.H., S.H., and D.H.,
Youths in Need of Care.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and For the County of Yellowstone, Cause No. DN 2000–08,
Honorable Susan P. Watters, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Dorothea Boniello, LaRance, Syth & Associates, P.C., Billings, Montana
For Respondent:
Honorable Mike McGrath, Attorney General; Ilka Becker, Assistant
Attorney General, Helena, Montana
Dennis Paxinos, County Attorney; Richard Helm, Deputy County
Attorney, Billings, Montana
Patrick Kenney, Attorney at Law, Billings, Montana (Guardian Ad Litem)
Kevin T. Sweeney, Attorney at Law, Billings, Montana (For Father of C.H.)
Connie Camino, Attorney at Law, Billings, Montana (For Father of S.H.)
Nancy Wetherelt, Attorney at Law, Hardin, Montana (For Father of D.H.)
Submitted on Briefs: September 11, 2003
Decided: November 7, 2003
Filed:
__________________________________________
Clerk
Justice W. William Leaphart delivered the Opinion of the Court.
¶1 “Mother,” the natural mother of C.H., S.H., and D.H., appeals the Thirteenth Judicial
Court’s order of September 17, 2002, terminating her parental rights. The District Court
adjudicated the three children youths in need of care and terminated the parental rights of
Mother, as well as the parental rights of the respective fathers of each of the children. Only
Mother’s rights are at issue on appeal. We affirm the order of the District Court.
¶2 Mother raises the following issues on appeal:
1. Does the Indian Child Welfare Act apply to the termination of Mother’s rights to
C.H. and D.H.?
2. Did the District Court abuse its discretion when it terminated Mother’s parental
rights?
Factual Background
¶3 In 1992, Mother initiated contact with the Department of Health and Human Services
(the Department) because her oldest child, C.H.–who was then approximately twenty months
old–was uncontrollable. Since that time, Mother has had two more children, S.H., and D.H.,
and the Department has continued to provide Mother with parenting skills classes and other
services. Visits to Mother’s home revealed a situation of chaos and dysfunction. The home
was extremely messy and cluttered, with dirty dishes, old dried food, clothes and paper all
over. The Department responded to numerous reports of Mother’s poor judgment and
physical altercations amongst Mother and the children.
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¶4 Numerous mental health care professionals have interacted with the family members.
They report that although Mother can recite the lessons from parenting skills classes, she
displays a lack of decision-making ability. She does not know what needs to be done in the
next minute, hour or day. She misses the significance, severity and intensity of nonverbal
cues from her children. This results in a situation of neglect. Because of wild behavior, each
of the children has received various psychological diagnoses. C.H. was removed from
Mother’s care in April 2000. S.H. was removed in October 2000, and D.H. was removed in
March 2001. By all accounts, now placed in structured and stable environments, the children
are doing better outside of Mother’s care.
¶5 From January 2001 to July 2002, Mother had three different court-approved treatment
plans. Each plan required Mother to deal with her own mental health issues so that she
would be able to provide a safe, structured and stable environment for the children. The
plans had different benchmarks, such as being on time and attending all meetings for herself
and her children, submitting to urine analysis for drugs, allowing her mental health care
providers to share information with the Department, and keeping her house clean. The social
worker who devised the plans did not think Mother had successfully completed the plans.
None of the professionals who testified at the hearing were in favor of Mother keeping her
parental rights.
¶6 Also at issue is the Native American heritage of two of the children. At the hearing,
the Department provided Mylene Widner as a possible expert. Widner is an enrolled
member of the Crow Indian Tribe and is also a descendant of the Little Shell Band of the
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Chippewa. Based on her familiarity with the Little Shell and her review of the record,
Widner testified to the following. C.H.’s father qualifies and is enrolled for membership in
the Little Shell Band of the Chippewa, based on his one-quarter blood quantum, the
minimum blood quantum necessary to qualify for membership. C.H. has one-eighth blood
quantum and does not qualify for membership. Widner also explained that the abuse and
neglect of C.H. was not related to any Little Shell custom or tradition.
¶7 After the conclusion of the termination hearing, the District Court ordered briefs
concerning the Indian Child Welfare Act, 25 U.S.C. §§ 1901-1923 (“ICWA”) issues. Only
the Department filed a brief. Based on all of its knowledge of the case, the Department only
addressed the Indian heritage of C.H. On Mother’s proposed findings of fact and
conclusions of law, her counsel included a footnote stating that she had been told that D.H.’s
father was an enrolled member of the Northern Cheyenne Tribe. This was the first and only
indication that D.H. may be a Native American. On appeal, Mother raises ICWA issues for
both C.H. and D.H.
Standard of Review
¶8 We review a District Court’s decision to terminate parental rights to determine
whether the District Court abused its discretion. In re A.F., 2003 MT 254, ¶ 12, 317 Mont.
367, ¶ 12, 77 P.3d 266, ¶ 12. The test for abuse of discretion is “whether the trial court acted
arbitrarily, without employment of conscientious judgment, or exceeded the bounds of reason
resulting in substantial injustice.” In re D.V., 2003 MT 160, ¶ 14, 316 Mont. 282, ¶ 14, 70
P.3d 1253, ¶ 14. A district court must make specific fact findings in accordance with
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statutory requirements before terminating parental rights. In re J.V., 2003 MT 68, ¶ 7, 314
Mont. 487, ¶ 7, 67 P.3d 242, ¶ 7. We review those findings of fact to determine whether
they are clearly erroneous, and we review conclusions of law to determine whether the court
correctly interpreted the law. In re J.V., ¶ 7.
¶9 A parent’s right to the care and custody of a child is a fundamental interest. However,
a court’s paramount concern in a parental rights termination proceeding is the best interest
of the children. In re D.V., ¶ 15. Primary consideration shall be given to the physical,
mental, and emotional conditions and needs of the children. Section 41-3-609(3), MCA.
Discussion
¶10 1. Does the Indian Child Welfare Act apply to the termination of Mother’s rights to
C.H. and D.H.?
A. Policy of ICWA and applicable rules.
¶11 The principal purpose of ICWA is to “promote the stability and security of Indian
tribes by preventing further loss of their children; and to protect the best interests of Indian
children by retaining their connection to the tribes.” In re Baby Girl Doe (1993), 262 Mont.
380, 388, 865 P.2d 1090, 1095. Congress’s declaration of policy for ICWA states:
The Congress hereby declares that it is the policy of this Nation to protect the
best interests of Indian children and to promote the stability and security of
Indian tribes and families by the establishment of minimum Federal standards
for the removal of Indian children from their families and the placement of
such children in foster or adoptive homes which will reflect the unique values
of Indian culture, and by providing for assistance to Indian tribes in the
operation of child and family service programs.
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25 U.S.C. § 1902. ICWA is clear and unambiguous that “there is no resource that is more
vital to the continued existence and integrity of Indian tribes than their children.” 25 U.S.C.
§ 1901(3). ICWA recognizes the unique and privileged interest that Indian tribes have in the
welfare and upbringing of Indian children.
¶12 For the purpose of ICWA, an “Indian Child” is defined as:
any unmarried person who is under age eighteen and is either (a) a member of
an Indian tribe or (b) is eligible for membership in an Indian tribe and is the
biological child of a member of an Indian tribe.
25 U.S.C. § 1903(4).
¶13 For ICWA to apply, the Indian tribe in question must be recognized by the Secretary
of the Interior as eligible for services provided to Indians by the Secretary. 25 U.S.C. §
1903(8) and (11).
¶14 In state court proceedings for the termination of parental rights of Indian children,
notice must be given to the Indian child’s tribe. 25 U.S.C. § 1912. Any parent from whose
custody a child was removed may petition any court of competent jurisdiction to invalidate
such action based on the lack of proper notice to the tribe, 25 U.S.C. § 1914. Furthermore,
ICWA provides:
In any State court proceeding for the foster care placement of, or termination
of parental rights to, an Indian child, the Indian custodian of the child and the
Indian child’s tribe shall have a right to intervene at any point in the proceed-
ing.
25 U.S.C. § 1911(c).
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B. ICWA analysis for C.H.
¶15 The Department contends that ICWA does not apply in the present case. However,
in an abundance of caution, the Department had Mylene Widner testify as an ICWA expert.
Widner is a descendant of the Little Shell Band of the Chippewa and is an enrolled member
of the Crow. Widner testified that she was familiar with the Little Shell standards for
membership and their child-rearing practices. Her testimony was also based on her review
of the record.
¶16 According to Widner, C.H.’s father qualifies for enrollment as a member of the Little
Shell Band of the Chippewa by dint of his one-quarter blood quantum, the tribe’s minimum
standard. C.H., however, only has one-eighth blood quantum and does not qualify for
enrollment. Furthermore, Widner testified that the Little Shell Band is not a federally
recognized tribe.
¶17 We conclude ICWA does not apply to C.H. for two reasons. First, C.H. is not an
Indian child as defined by ICWA. ICWA requires that a child be eligible for membership
in the tribe. C.H. is not eligible because of her insufficient blood quantum. Second, ICWA
does not apply to tribes which have not yet been federally recognized. Although other bands
of Chippewa are recognized, the Little Shell Band is not currently recognized by the
Secretary of the Interior as eligible to receive services. 67 Fed. Reg. 46,328 (July 12, 2002).
C. ICWA analysis for D.H.
¶18 Prior to the proposed findings of fact there was no indication from any of the parties
or witnesses that one of the children other than C.H. might have qualified as an Indian Child
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under ICWA. We note that the initial order to show cause included notice of ICWA and was
served on both Mother and R.H., the natural father of D.H. The notice briefly summarized
the rights afforded under ICWA, and specifically stated, “your children’s Indian Tribe will
be contacted if you have made it known which Tribe your children are enrolled in or is [sic]
enrollable in.” Mother raised the ICWA issue in regard to D.H. in her proposed findings of
fact and conclusions of law in a footnote, which stated: “[Mother] has not alleged that she
is a member of an Indian Tribe, however, the undersigned counsel has been verbally advised
that [R.H.], [D.H.]’s father is an enrolled member of the Northern Cheyenne Tribe.” The
record reveals minimal participation of R.H. Although he was served with the order vacating
and resetting permanent custody hearing, he did not appear at the hearing. His court-
appointed counsel indicated R.H. did not want to parent D.H. or to work with the
Department. He did not sign his treatment plans. Thus, we are faced with a situation where
an important and legally significant fact was not effectively raised until after the trial was
over and the appeal was brought.
¶19 Normally, issues not raised at the trial court will not be addressed by this Court. See
In re G.S., 2002 MT 245, ¶ 48, 312 Mont. 108, ¶ 48, 59 P.3d 1063, ¶ 48. “It is fundamen-
tally unfair to fault the trial court for failing to rule correctly on an issue it was never given
the opportunity to consider.” City of Missoula v. Campbell, 2001 MT 271, ¶ 13, 307 Mont.
286, ¶ 13, 37 P.3d 670, ¶ 13. Mother cites no authority which would allow her to invalidate
the termination proceedings with nothing more than a belated footnote raising the possibility
of D.H.’s Indian child status. We will not overturn a child termination proceeding for failure
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to comply with ICWA when neither the Department nor the District Court had any notice of
the possibility that the child might qualify as an Indian child, the child’s alleged Indian father
gave no indication of Indian heritage or interest in the child, and the mother did not give
timely notice of the potential issue.
¶20 ICWA only requires notice to the tribe when “the court knows or has reason to know
that an Indian child is involved.” 25 U.S.C. § 1912(a). The Bureau of Indian Affairs has
issued nonbinding guidelines to assist courts in interpreting the foregoing. Mississippi Band
of Choctaw Indians v. Holyfield (1989), 490 U.S. 30, 53, 109 S.Ct. 1597, 1610, 104 L.Ed.2d
29, 49; and In re M.G., 2003 MT 60, ¶ 10, 314 Mont. 396, ¶ 10, 66 P.3d 312, ¶ 10, citing
to 44 Fed. Reg. 67,584 to 67,585 (1979). The guidelines list “[c]ircumstances under which
a state court has reason to believe a child involved in a child custody proceeding is an Indian
include but are not limited to the following,” the last of which is “[a]n officer of the court
involved in the proceeding has knowledge that the child may be an Indian child.” Guidelines
for State Courts; Indian Child Custody Proceedings, 44 Fed. Reg. at 67,586. Attorneys are
officers of the court. See, e.g., Steele v. McGregor, 1998 MT 85, ¶ 28, 288 Mont. 238, ¶ 28,
956 P.2d 1364, ¶ 28. If we were to give a strict interpretation to this guideline, the
knowledge of Mother’s counsel that D.H. might qualify as an Indian Child would arguably
be sufficient to undermine the entire termination proceeding. However, the guidelines are
not binding but are intended to assist state courts in application of ICWA. 44 Fed. Reg.
67,584-585. We have previously determined the guidelines are persuasive authority. In re
M.R.G., ¶ 10. Because ICWA is a remedial statute, its terms should be liberally construed
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to achieve their purpose. One purpose of ICWA is to afford tribes the opportunity to
intervene by providing that tribes receive notice before proceedings begin. In re Adoption
of Riffle (1995), 273 Mont. 237, 241, 902 P.2d 542, 544 (citing 25 U.S.C. § 1912). In the
present case, this purpose could not be honored because the court did not know or have
reason to know of the possibility of D.H.’s Indian heritage until after the termination hearing
had concluded. As pointed out below, this is not to say that, if D.H.’s Indian heritage
qualifies under ICWA, the tribe may not participate in future proceedings concerning D.H.’s
placement.
¶21 Although we deny Mother’s ICWA claim, we recognize the inherent remedial
character of ICWA and that we have a “responsibility to promote and protect the unique
Indian cultures of our state for future generations of Montanans.” In re K.H. and K.L.E.,
1999 MT 128, ¶ 20, 294 Mont. 466, ¶ 20, 981 P.2d 1190, ¶ 20. It behooves us to take great
pains to ensure that the prerequisites of ICWA have been satisfied. In re K.H., ¶ 29. ICWA
protects the best interests of Indian children by making sure that their unique cultural
heritage is taken into account. ICWA gives rights not only to parents of Indian children, but
also to their tribe(s). In re C.H., 2000 MT 64, 299 Mont. 62, 997 P.2d 776; 25 U.S.C. §
1914. ICWA recognizes that tribes have a unique interest and ability to provide services in
the upbringing of Indian children.
¶22 One very valid reason to give notice to the tribe is so that it may become involved in
the upbringing of its members and be allowed to provide the services for which it is uniquely
situated to provide. Also, in considering the best interests of the child in question, a court
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will necessarily consider the child’s ethnic and cultural heritage. But here, faced with a
silent record, we have no idea whether or not D.H. even qualifies as an Indian child, and if
he does, whether the tribe is interested in being involved in his case, and if it is, whether the
tribe might be able to locate extended family members who would be able to provide the
level of care necessary for D.H. If D.H. does qualify as an Indian child and his tribe is
interested in participating in placement proceedings, it should be afforded the opportunity
to do so even though the proceeding for termination of parental rights has already transpired
and concluded. “Even if a tribe fails to intervene at the beginning of a proceeding, it is not
precluded from intervening at a later point in the absence of an express waiver of the right
to intervene.” Adoption of Riffle, 273 Mont. at 241, 902 P.2d at 545.
¶23 Although the District Court did not know for the purposes of § 1912 that D.H. might
be an Indian child for the termination proceeding, we conclude that for any future proceeding
regarding D.H., this appeal itself sufficiently puts the District Court and the Department on
notice that D.H. might be an Indian child. Accordingly, notice must be given to the Northern
Cheyenne so that it may determine whether or not D.H. is or is not an Indian child. Only
after that determination has been made, and the tribe has been given actual notice and a
chance to become involved, will it be possible to determine what subsequent ICWA
proceedings are appropriate, if any.
¶24 2. Did the District Court exercise proper discretion in terminating Mother’s parental
rights?
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¶25 The District Court found that termination of Mother’s parental rights was proper
pursuant to § 41-3-609(1)(b) and (f), MCA, which provide:
(1) The court may order a termination of the parent-child legal
relationship upon a finding that any of the following circumstances exist:
...
(b) the child has been abandoned by the parents;
...
[or] (f) the child is an adjudicated youth in need of care and both of the
following exist:
(i) an appropriate treatment plan that has been approved by the court
has not been complied with by the parents or has not been successful; and
(ii) the conduct or condition of the parents rendering them unfit is
unlikely to change within a reasonable time.
Section 41-3-609(1)(b) and (f), MCA.
¶26 We have previously upheld termination of parental rights where substantial evidence
demonstrates a failure to meet the terms of the treatment plan. In In re K.S, although some
friends testified against termination of parental rights, the bulk of evidence demonstrated a
failure to meet the treatment plan. In re K.S., 2003 MT 212, ¶¶ 18-20, 317 Mont. 88, ¶¶ 18-
20, 75 P.3d 325, ¶¶ 18-20. Termination of parental rights was proper where there was a long
course and documented history of abuse and neglect and a likelihood the same conduct
would be repeated. In re G.S., 2002 MT 245, 312 Mont. 108, 59 P.3d 1063. We upheld the
termination of parental rights when the parent missed many mandatory meetings with the
children and the children began acting out again when the parent did make it to the meetings.
In re Custody and Parental Rights of A.L.R., 2002 MT 183, ¶ 18, 311 Mont. 76, ¶ 18, 54
P.3d 17, ¶ 18. Also, the likelihood of the parent to repeat the same conduct is a factor to
consider. A.L.R., ¶ 19.
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¶27 Mere compliance with the terms of a treatment plan does not always lead to successful
completion. In re S.M., 2001 MT 11, ¶ 44, 304 Mont. 102, ¶ 44, 19 P.3d 213, ¶ 44; Matter
of S.M., 1999 MT 36, ¶ 24, 293 Mont. 294, ¶ 24, 975 P.2d 334, ¶ 24. “[I]t is well
established that a treatment plan can be unsuccessful even when the tasks were completed.”
Matter of S.M., ¶ 25. “Partial compliance with a treatment plan is insufficient to preclude
termination of parental rights.” In re B.C. (1997), 283 Mont. 423, 430, 942 P.2d 106, 111.
In In re S.M., the mother had allowed her two children to be abused by two different men.
Her treatment plans were not successful because she remained unable to understand or to
anticipate the dangers her decisions posed to her children. In re S.M., 2001 MT 11, ¶ 45.
In In re D.H., the parents partially completed their treatment plans and attended the
mandatory counseling sessions, however, the plans were not “successful” in their completion
because the parents had not improved their parenting skills nor were they able to protect their
children. In re D.H., 2001 MT 200, ¶¶ 29-30, 306 Mont. 278, ¶¶ 29-30, 33 P.3d 616, ¶¶ 29-
30. In re Declaring E.W., the mother complied with the terms of the treatment plan but the
testimony was conflicting as to whether or not the plan had been successful. In re Declaring
E.W., 1998 MT 135, ¶¶ 19-25, 289 Mont. 190, ¶¶ 19-25, 959 P.2d 951, ¶¶ 19-25. The
children’s pediatrician testified that they were “high needs” children and the mother did not
have the ability to respond to their needs. In re Declaring E.W., ¶ 21. We concluded that
the lower court’s decision to terminate that mother’s parental rights was supported by
substantial evidence and was not clearly erroneous. In re Declaring E.W., ¶ 25.
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¶28 Here, Mother contends that she was complying with all of the terms of her latest court
approved treatment plan. The last two treatment plans had four goals for Mother: (1)
address her mental health issues; (2) establish a stable, consistent and safe environment; (3)
address her children’s mental health needs; and (4) establish a healthy relationship with her
children and effectively parent. The record indicates that over a long period of years, Mother
was the recipient of services under various and sundry social programs. She would show
improvement for a time but inevitably relapse into her previous ways of doing things as she
became overwhelmed. To successfully complete the treatment plan, it was vital that Mother
demonstrate she would no longer become overwhelmed with the stresses of her life. This
Mother did not do. Although she was addressing her underlying chemical dependency
issues, she was not in compliance with her treatment plan because she denied the Department
access to her mental health care providers. Just as in A.L.R., Mother missed meetings and
was likely to return to the lifestyle which gave rise to the proceedings. Most importantly,
Mother did not demonstrate sufficient mental stability to be able to parent her high needs
children.
¶29 The record clearly indicates that although Mother attempted to comply with the
treatment plan, she was not successful in doing so; it is also clear the conduct and conditions
which made Mother unfit were unlikely to change within a reasonable time. The findings
of fact of the District Court are not clearly erroneous.
¶30 Because of the foregoing, the judgment of the District Court is affirmed.
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/S/ W. WILLIAM LEAPHART
We concur:
/S/ KARLA M. GRAY
/S/ PATRICIA COTTER
/S/ JAMES C. NELSON
/S/ JOHN WARNER
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