December 8 2009
DA 09-0198
IN THE SUPREME COURT OF THE STATE OF MONTANA
2009 MT 420N
IN THE MATTER OF:
E.Z.V.,
A Youth in Need of Care.
APPEAL FROM: District Court of the Twentieth Judicial District,
In and For the County of Lake, Cause No. DN 07-07
Honorable C.B. McNeil, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Joslyn Hunt, Chief Appellate Defender; Helena, Montana
For Appellee:
Hon. Steve Bullock, Montana Attorney General; Matthew T. Cochenour,
Assistant Attorney General; Helena, Montana
Mitch Young, Lake County Attorney; Polson, Montana
Submitted on Briefs: October 21, 2009
Decided: December 8, 2009
Filed:
__________________________________________
Clerk
Justice W. William Leaphart delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal
Operating Rules, as amended in 2006, the following memorandum decision shall not be
cited as precedent. It shall be filed as a public document with the Clerk of the Supreme
Court and its case title, Supreme Court 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 Father, K.L.N., appeals the Order of the Twentieth Judicial District Court, Lake
County, terminating his parental rights to child, E.Z.V. We affirm.
¶3 This Court reviews a district court’s custodial determinations with deference,
affording it “all reasonable presumptions as to the correctness” of the custodial
determination. In re S.P., 241 Mont. 190, 194, 786 P.2d 642, 644 (1990). We will not
disturb such decisions unless there is a mistake of law or a finding of fact not supported
by substantial credible evidence that would amount to clear abuse of discretion. In re
S.P., 241 Mont. at 194, 786 P.2d at 644.
¶4 The question, restated on appeal, is whether the Department of Public Health and
Human Services (Department) properly sought to terminate Father’s parental rights under
Montana law rather than the Indian Child Welfare Act, 25 U.S.C. §§ 1901-1923 (2000)
(ICWA).
¶5 This case regards E.Z.V., a child born to K.L.N., the Father and Appellant, and
M.A.V., the Mother. On May 25, 2007, the Department petitioned for temporary
investigative authority and emergency protective services for E.Z.V. When the petition
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was filed, the Department did not know of K.L.N.’s paternity. The District Court granted
the Department’s petition and appointed a guardian ad litem for the child.
¶6 Mother has Native American ancestry in the Confederated Salish and Kootenai
Tribes of the Flathead Nation and possible, but unconfirmed, ties to the Oglala Sioux
Tribe of the Pine Ridge Reservation in South Dakota. Six days after initiating the abuse
and neglect proceedings, the Department sent a request to the Confederated Salish and
Kootenai Tribes seeking verification of whether E.Z.V. was eligible for tribe
membership.
¶7 In September 2007, the tribal court judge responded to the Department’s inquiry,
stating in a letter that the child did not meet the criteria for being defined as an “Indian
Child or Indian Youth.” The letter does state that E.Z.V. might be enrolled or enrollable
with the Oglala Sioux Tribe in South Dakota. The Department’s social worker in the
case noted on the face of the inquiry that the Sioux Tribe in South Dakota did not reply to
the Department’s inquiry letter regarding the child’s membership in that Tribe. In
September 2008, after reunification efforts and Mother’s repeated failure to comply with
treatment plans, the Department moved to terminate her parental rights, which she
relinquished voluntarily.
¶8 In early 2008, genetic testing determined that K.L.N. is E.Z.V.’s father. K.L.N.
indicated that he thought he was associated with the Confederated Salish and Kootenai
Tribes. The Department sent a letter to the tribes requesting verification. The
Department received a phone call from the Tribes’ ICWA specialist again indicating that
E.Z.V. was not enrollable with the Confederated Salish and Kootenai Tribes.
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¶9 In September 2008, the Department petitioned to terminate Father’s parental rights
to the child. The Department informed the District Court that reunification efforts and
treatment plan were not required under the statute because Father was in prison for
sexually assaulting a minor. In 2007, Father pleaded guilty to sexually assaulting his
9-year-old niece. He was sentenced to ten years in the Department of Corrections, with
five years suspended.
¶10 The District Court terminated Father’s parental rights to E.Z.V. under Montana
law, determining that the Department was not required to implement a treatment plan due
to the Father’s conviction for sexually abusing a child. The District Court approved the
Department’s permanency plan, in which E.Z.V. was placed with his kinship foster
parents on the Confederated Salish and Kootenai Reservation. K.L.N. now appeals from
the termination of his parental rights to E.Z.V.
¶11 Father argues that the Department and Lake County failed to follow the procedure
dictated by ICWA for giving notice to the two tribes allegedly involved. Under
25 U.S.C. § 1912(a), “[a]ny 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 . . . .” Father argues that the
proceedings should have been conducted under ICWA, and the Department and Lake
County failed to conform to the statute’s notice requirements. Because Father did not
raise this issue below, he asks this court to invoke plain error review because “the failure
to follow ICWA is clear, and ICWA in its terms involves a fundamental right.”
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¶12 The threshold question is whether the District Court knew or had reason to know
that an Indian child was involved, thus bringing the termination proceedings under
ICWA. The statute defines an “Indian child” 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 There is no evidence that E.Z.V. is an Indian child under the statute. The
Department first investigated whether E.Z.V. was within the statutory definition of
“Indian child” through his mother. The Department sent a “Request for Verification of
Status” to the Confederated Salish and Kootenai Tribes to determine whether the child
was eligible for membership or enrollment. The tribe responded, stating in the letter that
E.Z.V. did not meet the criteria for being defined as an Indian child under the tribal laws.
¶14 The letter does state that E.Z.V. might be enrolled or enrollable with the Oglala
Sioux Tribe in South Dakota. The Department’s social worker in the case noted on the
face of the inquiry that the Sioux Tribe in South Dakota did not reply to the Department’s
inquiry regarding the child’s membership in that Tribe. Notably, the only potential
connection on record to the Sioux Tribe is through Mother, who relinquished her parental
rights voluntarily. Therefore, the fact that the Department received no response has no
bearing on Father’s current appeal.
¶15 After learning of K.L.N.’s paternity, the Department inquired of the Confederated
Salish and Kootenai Tribes whether the child was eligible for tribal membership through
K.L.N. The face of the original inquiry reads: “Phone call from Bev Swaney [ICWA
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Specialist for the Confederated Salish and Kootenai Tribes] in July; 2nd gen. and non-
enrollable.”
¶16 Therefore, the District Court properly terminated K.L.N.’s parental rights under
Montana law because the court did not “know” or have “reason to know” that an Indian
child was involved. Notably, while there is no evidence that E.Z.V. is an “Indian child”
within the meaning of ICWA, the Department acted consistent with the spirit of the Act
by placing the child with extended family members on the Confederated Salish and
Kootenai Reservation.
¶17 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of
our 1996 Internal Operating Rules, as amended in 2006, which provides for
memorandum opinions.
¶18 Affirmed.
/S/ W. WILLIAM LEAPHART
We concur:
/S/ MIKE McGRATH
/S/ JIM RICE
/S/ PATRICIA O. COTTER
/S/ BRIAN MORRIS
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