In Re IB

April 20 2011

DA 10-0421

IN THE SUPREME COURT OF THE STATE OF MONTANA

2011 MT 82

IN THE MATTER OF

I.B.,

A Youth in Need of Care.

APPEAL FROM: District Court of the Twenty-First Judicial District,
In and For the County of Ravalli, Cause No. DN 08-11
Honorable James A. Haynes, Presiding Judge

COUNSEL OF RECORD:

For Appellants:

Robin A. Meguire, Attorney at Law, Great Falls, Montana

For Appellee:

Steve Bullock, Montana Attorney General; C. Mark Fowler, Assistant
Attorney General, Helena, Montana

Howard Recht, Department of Public Health and Human Services, Hamilton,
Montana

Submitted on Briefs: March 16, 2011
Decided: April 20, 2011

Filed:

__________________________________________
Clerk
Justice Brian Morris delivered the Opinion of the Court.

¶1 B.K. and C.B., natural mother and father of I.B., appeal the order of the Twenty-First

Judicial District Court, Ravalli County, terminating their parental rights. We affirm.

¶2 We review the following issues on appeal:

¶3 Does substantial evidence support the District Court’s adjudication of I.B. as a youth

in need of care?

¶4 Did the District Court abuse its discretion when it terminated B.K.’s and C.B.’s

parental rights to I.B.?

¶5 Did the District Court correctly conclude that the Department made active efforts to

prevent breakup of the Indian family?

¶6 Did the parents receive effective assistance of counsel?

FACTUAL AND PROCEDURAL BACKGROUND

¶7 The Montana Department of Public Health and Human Services (Department)

removed I.B. from his parents’ care on June 25, 2008. I.B. was about five months old at the

time of removal. The parents neglected to provide I.B. with necessary medical care. The

court adjudicated I.B. a youth in need of care and the parents stipulated to treatment plans in

July 2008. The court granted the Department’s petition to terminate B.K.’s and C.B.’s

parental rights on July 21, 2010.

¶8 B.K. and C.B. left three-month-old I.B. in the sun on May 5, 2008. I.B. suffered a

blistering facial sunburn and second degree burns on 20-30% of his body. I.B.’s sunburn

required hospitalization, including oxygen supplements, heart-monitoring, intravenous
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therapy, and blood draws. Community Medical Center in Missoula admitted I.B. on May 6,

2008. I.B. presented breathing difficulties, wheezing, a rapid heart rate, and possible

deafness and blindness. I.B.’s doctors refused to discharge I.B. until May 16, 2010, due in

part to concerns about the parents’ ability to care for I.B. I.B.’s doctors believed that B.K.

and C.B. could not understand, and were not following, medical care instructions that had

been given to them following I.B.’s premature birth. The Department received an abuse or

neglect referral and investigated.

¶9 Medical providers identified special medical needs of I.B. I.B.’s medical needs

related back to his premature birth. The record does not clearly indicate to what extent the

sunburn incident affected I.B.’s respiratory condition. The medical providers specifically

instructed B.K. and C.B. how to care for I.B. They instructed them that I.B. must be fed on a

rigid schedule and in a specific manner. The medical providers believed that I.B. would

aspirate and could possibly die if not fed in this specific manner. They instructed the parents

to hold I.B. in an upright position, hold his bottle, allow him to suck two to four times, and

then remove the nipple to allow him to breathe. They also instructed them to monitor I.B.’s

breathing closely and to keep a record of feeding times and breathing conditions. I.B.

required a closely monitored feeding schedule because he did not signal when he needed to

be fed.

¶10 Medical providers and the Department had concerns that B.K. and C.B. would not

follow the feeding routine and manner. The Department hired Family Concepts, an

independent organization that provides family support services, to assist in educating and
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training B.K. and C.B. to take care of I.B. Anna Marie White, a family support worker for

Family Concepts, provided B.K. and C.B. with supervised visitation, parenting classes, and

in-home services. White met the parents at the hospital and initially assisted them five times

a week in their home. White instructed the parents in the feeding technique ordered by I.B.’s

doctors and implemented a feeding schedule.

¶11 White also assisted B.K. and C.B. in cleaning up their yard and making it safe. The

yard contained pieces of metal, old fences, sharp tools, motor parts, and other trash that

presented safety concerns. Safety concerns also existed inside the home. The Department

found that the interior of the home needed to be cleaned. Many small items on the floor of

the home presented choking and safety hazards to I.B.

¶12 B.K. and C.B. consistently had difficulty implementing the correct feeding technique

or following the feeding schedule on their own. White suspected that the parents would not

feed I.B. properly without her direct supervision. She suspected that they left I.B.

unattended in his infant carrier with a bottle propped in his mouth. White confronted B.K.

about propping the bottle in this manner. B.K. admitted that she had been propping the

bottle. The bottle propping posed the risk that I.B. would choke or aspirate vomit. B.K. also

admitted that she had not been keeping the record of feeding times because she considered

the record-keeping to be “stupid.”

¶13 The Department’s social workers visited I.B.’s home unannounced on June 25, 2008,

and found I.B. with a bottle propped in his mouth in clear disregard of the specified feeding

technique. B.K. made no effort to hold or feed I.B. properly. B.K. busied herself instead by
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cleaning the kitchen. The Department determined that B.K. and C.B. were not able to meet

I.B.’s needs or provide for his health and safety. The Department removed I.B. from his

parents’ home and took him to the Marcus Daly Memorial Hospital due to respiratory

concerns, including wheezing. The Department later transferred I.B. to foster care, where he

had remained for about two years before the court ordered termination of parental rights.

¶14 The Department filed a petition seeking emergency protective services, adjudication

of I.B. as a youth in need of care, and temporary legal custody. The court held an

adjudication hearing. The court found that B.K. and C.B. had failed to follow simple feeding

instructions that I.B.’s medical doctors had ordered. The court adjudicated I.B. a youth in

need of care and granted temporary legal custody to the Department. The parents stipulated

to treatment plans proposed by the Department that addressed their care for I.B. and his

medical needs, the safety and condition of the parents’ home and yard, and I.B.’s attachment

to his parents. The parents agreed to complete the treatment plans’ tasks by January 15,

2009.

¶15 B.K. and C.B. did not realize that I.B. was eligible for enrollment in the Cherokee

Nation when the court adjudicated I.B. a youth in need of care. The parents apparently did

not know of their own Native American heritage until after the Department began

intervention proceedings. The parents enrolled I.B. in the Cherokee Nation sometime in

early 2009. The court held a hearing on March 11, 2009, and heard testimony from an

Indian Child Welfare Act (ICWA) expert, Eleanor LaMere. LaMere testified that physical

and emotional risks existed in the parents’ home and that I.B.’s immediate return to the
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parents’ care would result in serious emotional or physical harm to him. LaMere

recommended that I.B. remain in foster care and that the court give the parents time to finish

their parenting classes. The Cherokee Nation filed a notice of intervention on August 11,

2009, and later informed that it would monitor the proceedings. The Cherokee Nation did

not object to I.B.’s foster family placement or the Department’s efforts to provide

rehabilitation services.

¶16 The court heard testimony for five days in a termination hearing that extended from

October 2009 to May 2010. The Department presented the testimony of a clinical

psychologist, a neuropsychologist, a licensed clinical social worker, a pediatric nurse

practitioner, two family support workers from Family Concepts, the foster mother, a

Department social worker, a Department family support specialist, an ICWA expert, and the

Court Appointed Special Advocate (CASA). Several of the Department’s witnesses

recommended termination of B.K.’s and C.B.’s parental rights to I.B. The parents presented

the testimony of a clinical psychologist who opined that the parents could learn the necessary

parenting skills within a reasonable time. The trial testimony and other relevant facts will be

discussed further as needed.

¶17 The court determined that B.K. and C.B. had failed to complete or comply with their

treatment plans. B.K.’s and C.B.’s conduct and condition rendered them unfit to provide

adequate parental care to I.B. Their condition was unlikely to change within a reasonable

time. The court concluded that the evidence supported termination of B.K.’s and C.B.’s

parental rights to I.B. beyond a reasonable doubt.
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 STANDARD OF REVIEW

¶18 We review for abuse of discretion a district court’s termination of parental rights. In

re B.M., 2010 MT 114, ¶ 14, 356 Mont. 327, 233 P.3d 338. We determine whether the

district court’s findings of fact are clearly erroneous and whether the conclusions of law are

correct. Id. Where ICWA applies, we will uphold a district court’s termination of parental

rights if a reasonable fact finder could conclude beyond a reasonable doubt that continued

custody of the child by the parent is likely to result in serious emotional or physical damage

to the child. In re J.M., 2009 MT 332, ¶ 12, 353 Mont. 64, 218 P.3d 1213. This Court

exercises plenary review to determine whether a parent has been denied effective assistance

of counsel. In re B.M., ¶ 14.

DISCUSSION

¶19 Does substantial evidence support the District Court’s adjudication of I.B. as a youth

in need of care?

¶20 The State must present evidence to establish by a preponderance of the evidence that a

child has been abused, neglected, or abandoned in order for a district court to adjudicate a

child as a youth in need of care. Sections 41-3-437(2), -102(34), -422(5)(a), MCA; In re

B.S., 2009 MT 98, ¶ 22, 350 Mont. 86, 206 P.3d 565. The abuse may be actual physical or

psychological harm to a child or substantial risk of physical or psychological harm caused by

a parent’s acts or omissions. Section 41-3-102(7), MCA; In re A.S., 2006 MT 281, ¶ 30, 334

Mont. 280, 146 P.3d 778. ICWA standards of proof apply if the proceeding involves an

Indian child. Section 41-3-422(5)(b), MCA.
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¶21 The District Court concluded in its adjudication of I.B. as a youth in need of care that

ICWA did not apply. The parties did not know of I.B.’s eligibility for tribal enrollment

during the adjudication proceedings. The parents agree that the District Court could not have

incorrectly applied the evidentiary standard during the adjudication proceedings when no one

knew that I.B. potentially qualified as an Indian child. Jared P. v. Glade T., 209 P.3d 157,

161-62 (Ariz. App. 2009) (citations omitted). The parents argue nevertheless that substantial

evidence does not support by a preponderance of the evidence the court’s adjudication of I.B.

as a youth in need of care.

¶22 The court found that B.K. and C.B. had subjected I.B. to actual physical harm and a

substantial risk of physical harm. I.B. received a severe sunburn that required hospitalization

due to the parents’ neglect. The parents disregarded the specific feeding techniques ordered

by I.B.’s doctors. I.B.’s doctors had warned the parents of the risk of death presented by

I.B.’s respiratory condition if they did not follow the specified feeding manner. The doctors

and social worker from Family Concepts explained the required feeding method, emphasized

the choking and aspirating risks to I.B., and taught the method to the parents in the hospital

and in their home.

¶23 Despite the efforts to help B.K. and C.B. understand the importance of the feeding

method to I.B.’s health and life, the Department in an unannounced visit found I.B. with a

bottle propped into his mouth while B.K. cleaned in the kitchen. The parents argue that B.K.

had to prop the bottle in I.B.’s mouth so that she could clean the house to impress the

Department. The housecleaning excuse demonstrates their inability or refusal to understand
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the life-threatening risks presented by improperly feeding I.B. Substantial evidence supports

the District Court’s adjudication of I.B. as a youth in need of care.

¶24 Did the District Court abuse its discretion when it terminated B.K.’s and C.B.’s

parental rights to I.B.?

¶25 A district court may terminate an individual’s parental rights if (1) the child has been

adjudicated a youth in need of care, (2) an appropriate treatment plan has not been complied

with by the parent or has not been successful, and (3) the conduct or condition of the parent

rendering the parent unfit is unlikely to change within a reasonable time. Section 41-3-

609(1)(f), MCA. B.K. and C.B. enrolled I.B. in the Cherokee Nation prior to the termination

hearing. ICWA requires that the Department prove that B.K.’s and C.B.’s parental rights

should be terminated beyond a reasonable doubt. 25 U.S.C. § 1912(f); In re G.S., 2002 MT

245, ¶ 33, 312 Mont. 108, 59 P.3d 1063. ICWA also requires the court to find that the

Department made active efforts for reunification and that reunification presents a risk of

serious emotional or physical harm to the child. 25 U.S.C. § 1912; In re G.S., ¶ 26. The

parents appeal separately the active efforts requirement. We discuss the active efforts

requirement under the third issue.

¶26 The parents argue that substantial evidence does not support the court’s findings that

the parents failed their treatment plans. B.K. and C.B. stipulated to the Department’s

proposed treatment plans on July 30, 2008, and received updated plans on April 15, 2009.

The plans required B.K. and C.B. to understand and correct the circumstances causing

removal, to acquire necessary parenting skills, to provide a safe and stable environment for
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I.B., and to strengthen and preserve the parent-child relationship. The plans identified the

parents’ consistent failure to recognize safety hazards in the home, the failure to meet I.B.’s

developmental needs, and the lack of an appropriate parent-child attachment as conditions

that led to removal. The plans assigned the parents several tasks to address these problems.

¶27 A parent does not successfully complete a treatment plan by partial, or even

substantial, compliance. In re D.F., 2007 MT 147, ¶ 30, 337 Mont. 461, 161 P.3d 825. A

parent technically can complete all the tasks in a treatment plan and not necessarily be

successful in overall treatment. In re S.C., 264 Mont. 24, 29, 869 P.2d 266, 269 (1994). A

parent successfully completes a plan when he or she effectuates the purposes for which the

plan had been designed. Section 41-3-609(1)(f)(i), MCA; In re L.H., 2007 MT 70, ¶ 19, 336

Mont. 405, 154 P.3d 622. District courts must do more than mechanistically check items off

a task list. District courts must determine instead whether the parents have actually

effectuated the purposes of the treatment plan. Id.; In re L.H., ¶ 19.

¶28 The Department’s social worker, Kathryn Huber, testified about B.K.’s and C.B.’s

compliance with the treatment plan and its tasks. Huber testified that B.K. attended

parenting classes, participated in therapy, and could meet basic physical needs of I.B. Huber

also testified that B.K. did not recognize I.B.’s cues when he communicated his needs or that

he was upset. Huber testified that C.B. had not completed his parenting classes and failed to

understand child development.

¶29 Huber testified that B.K. and C.B. did not demonstrate the ability to meet I.B.’s

emotional needs and could not appropriately interact or communicate with I.B. B.K. often
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ended visitation sessions earlier than scheduled. Visitation supervisors did not believe that

B.K. and C.B. possessed the skills to permit unsupervised visitation with I.B. The parents

also did not demonstrate an independent ability to correct potential safety hazards in their

home, such as small items and cigarette butts that presented a choking hazard.

¶30 Huber testified that the parents had not been able to develop an appropriate, secure

attachment to I.B. I.B. exhibited symptoms of post-traumatic stress disorder on several

occasions after interacting with his parents. Early in her support services, Anna Marie White

of Family Concepts expressed concern with the lack of physical or emotional interaction

between I.B. and his parents. I.B. remained passive in his parents’ presence and would not

cry or signal his needs to his parents. When White began coaching the parents on interaction

methods, I.B. resisted his parents and would pull himself away from their care.

¶31 I.B.’s resistance escalated in the spring of 2009. He refused to eat or drink when his

parents tried to feed him. He resisted being held by them and turned away from them. He

often zoned out or entered staring spells. Benjamin Ross, a pediatric neurologist, evaluated

I.B. and conducted an EEG for the staring spells. Ross ruled out seizures and all other

possible medical conditions as causes of the staring spells.

¶32 I.B. would not engage with his parents. Social workers, visitation supervisors, and the

foster mom reported that I.B. demonstrated a complete change of demeanor in the presence

of B.K. and C.B. I.B.’s foster mother reported that I.B. seemed aggressive and resistant to

touch after supervised visits with B.K. and C.B. I.B. began vomiting and developed cyanosis

and a rash coincident with the parental visitations. I.B.’s pediatric nurse practitioner, Devry
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Garity, investigated I.B.’s vomiting and cyanosis. Garity ruled out anatomical causes and

other medical reasons for the vomiting. Garity determined that the cyanosis related to I.B.’s

vomiting episodes. Garity had no other explanation for the cyanosis. A pediatric allergist

evaluated I.B. and ruled out allergic reaction as a cause for the rashes. Garity indicated that

the episodes of vomiting, cyanosis, rash, and staring ceased after suspension of the visits

between I.B. and his parents.

¶33 B.K. underwent a psychological evaluation with Theresa Reed, a licensed clinical

psychologist. Reed found B.K.’s cognitive abilities to be in the low average range and

diagnosed B.K. with Personality Disorder Not Otherwise Specified. Reed reported that B.K.

lacks insight, tends to be defensive, exhibits low coping ability in her role as primary

caregiver, and exhibits ineffectual parenting. Reed reported that B.K.’s cognitive function

ranged in the low average, between fifth and sixth grade. Reed opined that B.K. presented a

poor candidate for therapy.

¶34 C.B. underwent a neuropsychological evaluation with Jacqueline Day, a

neuropsychologist. Day diagnosed C.B. with Cognitive Disorder Not Otherwise Specified

and Borderline Intellectual Functioning. C.B. has a full scale IQ of 72. Day noted cerebral

dysfunction that would adversely affect his parenting skills. Day opined that C.B.’s

condition would continue to qualify him for SSI disability benefits.

¶35 The Department hired Julie Telfer, a licensed clinical social worker, to conduct a

family systems analysis that evaluated the attachment and safety of the relationship between

I.B. and his parents. Telfer expressed many of the same concerns as Huber and White,
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determined that it was not safe for I.B. to be returned to his parents, and recommended

termination. Joni Kicking Woman, a qualified ICWA expert, testified that evidence proved

beyond a reasonable doubt that continued custody likely would result in serious emotional or

physical damage to I.B. The testimony of Telfer and Kicking Woman supported the

Department’s recommendation to terminate B.K.’s and C.B.’s parental rights. Sufficient

evidence supports the District Court’s conclusion that evidence proved beyond a reasonable

doubt that all the statutory requirements of § 41-3-609(1)(f), MCA, had been satisfied and

that continued custody by the parents likely would result in serious emotional or physical

harm to the child. 25 U.S.C. § 1912(f); In re G.S., ¶ 26.

¶36 The parents argue that the testimony of their clinical psychologist, Coleen Wall-

Hoeben, raised a reasonable doubt as to whether their conduct or condition rendering them

unfit was likely to change within a reasonable time. The parents argue that the District Court

should have agreed with Wall-Hoeben that no risk of harm existed in returning I.B. to his

parents because Wall-Hoeben had a doctorate degree whereas Julie Telfer, the licensed

clinical social worker hired by the Department, held only a masters degree. Despite the

disparity in educational credentials, the court found that Telfer had “specialized training

concerning infant mental and emotional health and attachment issues.” The court

highlighted this distinction when it found that “no other witness had the level of training”

comparable to Telfer. The court further found “persuasive Julie Telfer’s explanation that Dr.

Wall-Hoeben was hired by the parents to provide psychotherapy to them, rather than to serve

in a forensic role related to [I.B.’s] best interests.” This Court will not substitute its
13
judgment for that of the District Court’s regarding the credibility, persuasiveness, and weight

to be given to a witness’s testimony. In re K.J.B., 2007 MT 216, ¶ 23, 339 Mont. 28, 168

P.3d 629.

¶37 Did the District Court correctly conclude that the Department made active efforts to

prevent breakup of the Indian family?

¶38 ICWA requires the Department to make active efforts to provide remedial services

and rehabilitative programs designed to prevent the breakup of the Indian family. 25 U.S.C.

§ 1912(d). Active efforts imply a heightened responsibility for the Department to take

timely, affirmative action to avoid the breakup of the Indian family. In re T.W.F., 2009 MT

207, ¶ 27, 351 Mont. 233, 210 P.3d 174; In re G.S., ¶ 36. The parents agree that they cannot

dispute that the Department made active efforts and provided services to them throughout

these proceedings. We agree and believe it unnecessary to list the many services provided

by the Department. Those services began before removal and continued throughout these

proceedings.

¶39 The parents contend, however, that the Department’s “efforts and services were not

aimed at preventing the break-up of the family.” The parents argue that the Department’s

efforts and services “severely damaged the bond between I.B. and his parents and actually

prevented reunification of the family.” The parents argue that the Department provided

visitation services as “test sessions for the parents” and that I.B.’s stress resulted from the

infrequent and irregular visitation schedule, rather than from the parents’ lack of attachment

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to I.B. and poor parenting skills. The parents complain that the Department did not

adequately provide counseling, educational services, or therapy.

¶40 The record does not support the parents’ assertion that the Department set the parents

up for failure by not providing more visitation sessions and therapy. The Department

promptly explained why it removed I.B. from the parents’ home and what the parents needed

to provide before I.B. could be returned. The Department provided in-home trainings,

parenting classes, parenting coaching, psychological evaluations to understand better the

parents’ abilities and limitations, transportation, and visitation services. The record does not

support the parents’ argument that the many services provided by the Department actually

caused the family’s breakup.

¶41 We disagree with the parents that the Department actually caused these proceedings to

end in termination. ICWA requires heightened efforts by the Department. In re T.W.F., ¶

27. Nothing in ICWA guarantees, however, that those efforts will be successful. See e.g. In

re G.S., ¶ 37. The success of the remedial services and rehabilitative programs

concomitantly depends on the parents’ ability and willingness to develop the necessary skills

to provide their child with a safe living environment. In re T.W.F., ¶ 27. Substantial

evidence supports the District Court’s findings regarding the services and programs that the

Department provided to the parents. The District Court correctly concluded that the

Department made active efforts to provide remedial and rehabilitative services to the parents

that were designed to prevent the breakup of the family.

¶42 Did the parents receive effective assistance of counsel?
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¶43 The parents argue that their counsel provided ineffective assistance when she did not

secure an ICWA expert to rebut the Department’s ICWA expert’s testimony that returning

I.B. to his parents would likely result in serious harm. This Court determines a trial

counsel’s effectiveness by reviewing his or her 1) training and experience, and 2) advocacy

skills. In re B.M., ¶ 22. Only if the parent suffered prejudice, however, will this Court

determine that trial counsel’s ineffective performance warrants reversal. Id. Nothing in the

trial record reveals that the parents’ counsel lacked adequate training and experience to

represent them or that their counsel’s advocacy skills were ineffective.

¶44 The parents argue only that their trial counsel’s failure to present expert rebuttal

testimony on the ICWA standard prejudiced them. ICWA requires that a qualified expert

witness testify during termination hearings regarding whether continued custody of the child

by the parent likely would result in serious emotional or physical damage to the child. 25

U.S.C. § 1912(f). ICWA does not require both the Department and the parents to present

qualified expert witnesses. Such a requirement would create an impossible situation for

counsel if no qualified expert existed who would testify favorably for the parents. The trial

counsel’s decision not to present rebuttal testimony does not constitute ineffective assistance

of counsel.

¶45 Joni Kicking Woman, a qualified ICWA expert, testified that returning I.B. to his

parents’ care would result in serious harm beyond a reasonable doubt. B.K.’s and C.B.’s

trial counsel had an opportunity to cross-examine Kicking Woman. The parents have not

16
shown that their trial counsel’s cross-examination of Kicking Woman constituted ineffective

assistance of counsel or prejudiced their case.

¶46 Affirmed.

/S/ BRIAN MORRIS

We Concur:

/S/ JAMES C. NELSON
/S/ MICHAEL E WHEAT
/S/ PATRICIA COTTER
/S/ JIM RICE

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