In Re As

April 12 2011

DA 10-0448

IN THE SUPREME COURT OF THE STATE OF MONTANA

2011 MT 69

IN THE MATTER OF:

A.S. and T.S.,

Youths in Need of Care.

APPEAL FROM: District Court of the Sixteenth Judicial District,
In and For the County of Custer, Cause Nos. DN 2008-05 and
DN 2008-06
Honorable Gary L. Day, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Joslyn Hunt, Chief Appellate Defender, Matthew M. Wilcox, Assistant
Appellate Defender, Helena, Montana

For Appellee:

Steve Bullock, Montana Attorney General, Jonathan M. Krauss, Assistant
Attorney General, Helena, Montana

Anne Sheehy Yegen, Assistant Attorney General, Miles City, Montana

Submitted on Briefs: March 2, 2011

Decided: April 12, 2011

Filed:

__________________________________________
Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.

¶1 T.S. and A.S. are the young sons of S.T. (Mother). T.S. was born in 2002 and

A.S. was born in 2004. The children were removed from Mother’s care on December 20,

2007, and placed in foster care. Mother’s parental rights to these children were

terminated on June 18, 2010. She filed a timely appeal arguing the District Court abused

its discretion by terminating her rights in the absence of compliance with § 1912(e) of the

Indian Child Welfare Act (ICWA), 25 U.S.C. §§ 1901-1963. ICWA is the federal law

enacted in 1978, in part to protect the interests of Indian children and their families by

establishing minimum standards under which Indian children may be removed from their

homes. 25 U.S.C. § 1902. We affirm.

ISSUE

¶2 A restatement of the dispositive issue on appeal is:

¶3 Did the District Court abuse its discretion when it terminated Mother’s parental

rights?

FACTUAL AND PROCEDURAL BACKGROUND

¶4 This custody proceeding began in Fallon County but was subsequently transferred

to Custer County. When necessary to avoid confusion we will specifically refer to the

Fallon County District Court and the Custer County District Court. Otherwise, reference

to “District Court” alone is a reference to the Custer County District Court—the court

whose final order is being appealed. The Fallon County District Court records were not

provided to this Court on appeal.

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¶5 A.S. and T.S. are enrolled members of the Northern Cheyenne Tribe (Tribe)

through their father, who is also enrolled. As such, ICWA applies to this custody

proceeding. Mother is not an Indian. Father, whose contact with A.S. and T.S.

throughout their lives has been minimal and sporadic, had his rights to the boys

terminated at the same time Mother’s rights were terminated but Father does not appeal.

Department Involvement and Notice to the Tribe

¶6 Mother has chemical dependency problems including use of multiple illegal

substances and misuse of prescription drugs. She also has emotional issues that include

violence, rage, and obsessive compulsive personality disorder with schizoid personality

features. She has been unable to maintain a consistent and safe home for her children

with adequate food and clothing. She has been arrested on numerous occasions. As a

result, the Department of Public Health and Human Services, Child and Family Services

Division (Department or DPHHS) intervened in this family in October 2005 seeking

Emergency Protective Services (EPS) and Temporary Investigative Authority (TIA),

followed by a petition for Temporary Legal Custody (TLC). Notice of the proceeding

was given to the Tribe under § 1912(a) of ICWA. Subsequently the Tribe assumed

jurisdiction. The matter was transferred to Tribal Court and the proceeding was

dismissed in January 2007.

¶7 The Department once again became involved in the family when Mother gave

birth to another son, T.T., in April 2007 and the infant tested positive at birth for

tetrahydrocannabinol (THC), the primary psychoactive substance in marijuana. Mother

tested positive for THC and opiates at the time. DPHHS petitioned the Fallon County

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District Court and was granted emergency custody of the infant and his two older

half-brothers—A.S. and T.S. While the Department was ordered to return A.S. and T.S.

to their mother on April 17, 2007, it was granted TIA over the two young boys. T.T.

remained in Department custody. The custody and placement of T.T. are not before us in

this appeal.

¶8 At some time after initiation of this matter in Fallon County, the Department

notified the Tribe of the proceedings in accordance with ICWA. The Tribe entered a

Notice of Intervention indicating that it may again elect to transfer jurisdiction of the

matter to Tribal Court. The Tribe received copies of all filings in the matter but

ultimately chose not to exercise jurisdiction over this case.

¶9 The Department worked with Mother between April 17 and October 30, 2007.

Among other things, it conducted home visits, scheduled neuropsychological evaluations

for A.S. and T.S., and required Mother to undergo frequent urinalyses (UA) to monitor

and address her drug dependency. Mother was generally uncooperative with the

Department’s efforts and frequently failed the UA tests. In July 2007, the Department

filed a petition for adjudication of A.S. and T.S. as youths in need of care (YINC). A

hearing was scheduled in August 2007. The hearing was rescheduled to October 16,

2007. An ICWA expert had been subpoenaed by the Department to testify at this hearing

on both scheduled dates. On October 16, Mother signed a stipulation to the Department’s

petition for adjudication of A.S. and T.S. as YINC and granted the Department TLC.

Again, these proceedings took place in the Fallon County District Court whose records

were not provided to this Court on appeal. However, it appears from later Custer County

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District Court records that the October 16 hearing was not held and no ICWA expert

testified before the Fallon County District Court.

¶10 On October 31, 2007, pursuant to Mother’s stipulation, A.S. and T.S. were

adjudicated YINC by the Fallon County District Court and the court granted TLC to

DPHHS. A treatment plan was developed for Mother covering the period from October

31, 2007, to April 15, 2008. Between October 31 and November 16, the Department

monitored Mother and the children, provided services, and conducted UAs. On

November 16, Mother was evicted from her apartment.

¶11 In early December, Mother’s brother found her unconscious in Baker, Montana.

He told authorities he suspected a drug overdose. The children were present at the time.

Mother’s father took the children with him to the Northern Cheyenne Reservation. On

December 12, 2007, Mother left a “just checking in” message for her social worker but

did not tell the social worker where she and the children were or how to contact her. The

Department was unable to locate Mother or the children to check on their welfare

between December 3 and December 20, 2007.

¶12 On December 15, Mother was arrested in Ashland, Montana, for driving on a

suspended license and driving a car without license plates. On December 20, having

been informed by the Rosebud County sheriff’s office that Mother was in Ashland, two

DPHHS social workers traveled to Ashland to check on Mother and the children. They

found Mother without the children at a local service station. She reported that the

children were with their father in Miles City and that he would be returning the boys to

her the following day.

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¶13 To confirm Mother’s claim and check on the boys’ well-being, another DPHHS

social worker went to where Father had been staying in Miles City. The people with

whom Father had been residing said they “had kicked [him] out” and he had gone to his

brother’s house in Billings. They also reported that A.S. and T.S. had not been with their

father during this time and that Mother was hiding them from the authorities.

¶14 The social workers in Ashland, accompanied by a Rosebud County sheriff deputy

and a Northern Cheyenne ICWA worker, located where Mother was staying in Ashland.

They were forced to crawl under a locked fence and approach Mother’s house on foot.

Mother met them outside. Despite the children being visible through the windows,

Mother denied that her sons were present and refused to let the authorities inside the

house. The ICWA worker called the Bureau of Indian Affairs (BIA) and requested BIA

law enforcement. When Mother became verbally abusive to the authorities and

physically abusive to her dog, the deputy sheriff arrested her for disorderly conduct.

Upon arrival of BIA law enforcement, the boys were taken into custody and transported

to BIA offices where a BIA social worker placed them into foster care. The house in

which Mother and the boys had been living had no heat or electricity. The children were

dirty and hungry, claiming they had not eaten that day. T.S. did not have a coat and the

children had no clean clothes to take with them.

¶15 An emergency protective service and show cause hearing was scheduled for

January 8, 2008, but was continued at Mother’s request to January 28. The January 28

hearing was vacated by Mother. DPHHS had subpoenaed an ICWA expert to testify at

both of these scheduled hearings. Additionally, Mother had identified her own ICWA

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expert, Edie Adams, to testify on rebuttal. According to the minutes issued by the Fallon

County District Court, the judge ordered Mother’s counsel to arrange a hearing on foster

care placement that would satisfy the schedules of all parties. On February 11, 2008, the

Fallon County District Court granted DPHHS’s motion to transfer venue to Custer

County based on Mother’s change of residence. After the transfer, neither Mother nor the

Department requested the requisite foster care/TLC hearing with ICWA expert testimony.

Mother’s Treatment Plans and DPHHS’s “active efforts”

¶16 As noted above, in an attempt to allow the boys to remain with their mother,

DPHHS prepared and issued a court-approved treatment plan on October 31, 2007.

Mother was unsuccessful in addressing the tasks set forth in this plan. Subsequently,

Mother received two more treatment plans dated October 6, 2008, and March 2, 2009.

The goal of all three plans was to help Mother address her mental health needs and her

chemical dependency issues, and to provide her with the means to improve her parenting

skills and stabilize her environment. The goal of the latter two plans, issued after

removal of the boys, was to reunify her with her sons.

¶17 DPHHS worked with Mother throughout this time, providing her with numerous

services including but not limited to, medical care and treatment, chemical dependency

evaluations, Head Start, housing, food stamps, clothing for the children, visitation,

parenting classes, motel rooms when travel was required, automobile maintenance, gas

vouchers, mental health counseling, anger management and transportation. However,

after Mother’s continued failure to make progress with her treatment plans, as illustrated

in part by repeated positive drug tests and numerous missed visits with the children, on

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May 5, 2009, DPHHS petitioned for permanent legal custody (PLC) and to terminate

Mother’s parental rights.

Termination Proceedings and the ICWA § 1912(e) Hearing

¶18 The court scheduled the PLC hearing on June 26, 2009, but rescheduled the

hearing multiple times, primarily at Mother’s request. On October 28, 2009—before the

PLC hearing was held—DPHHS filed a motion notifying the District Court that a hearing

with testimony from an ICWA expert pertaining to the removal of the children and

placement into foster care had not been held in Fallon County District Court at the time

the children had been removed, nor had such a hearing been requested in Custer County

District Court. The Department asked for a hearing to confirm that removal of the

children was in conformance with ICWA. Mother, through counsel, concurred that such

a hearing must be held.

¶19 At the December 1, 2009 PLC hearing, the court approved the Department’s plan

for termination of parental rights. The court also held discussion on how to conduct a §

1912(e) ICWA expert hearing at that late stage in the proceeding. Mother argued that

DPHHS had to establish ICWA compliance at the time the children were removed.

Mother, DPHHS and the court ultimately determined that Edie Adams, the ICWA expert

designated by Mother for rebuttal during the vacated January 2008 hearings, would be

called to testify. Prior to the hearing, Adams would be provided with all relevant

information leading to the children’s removal, but would be given no subsequent

information about Mother and the children. Mother’s attorney expressly agreed to this

proposal. The court scheduled the ICWA expert hearing for January 15, 2010.

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¶20 At the hearing, Adams testified that she had reviewed the relevant material

provided and she did not feel she needed additional information to render a decision. She

testified to her belief that A.S. and T.S. “were in danger of serious emotional or physical

harm” due to Mother’s erratic behavior and her unwillingness to cooperate with the

various agencies. She also opined that the appropriate agencies had been engaged in 31

“active efforts” to keep the children with Mother. She stated that despite her decades as a

social worker, she knew of nothing else that could have been done to prevent removal of

the children under the circumstances in existence at that time.

¶21 Mother and DPHHS submitted post-hearing proposed findings of fact and

conclusions of law pertaining to removal of A.S. and T.S. Mother argued, for the first

time, that the failure to hold an ICWA expert hearing in a timely manner required

dismissal of the case against Mother. Alternatively, Mother repeated the argument she

had put forth when responding to the Department’s motion to hold the ICWA hearing.

Mother argued that the time period during which the children were in foster care should

be revised to begin with the ICWA hearing date. In other words, instead of counting the

months the children were in foster care from December 20, 2007—when the children

were actually removed—the TLC calendar should begin running on January 15, 2010, at

the time the ICWA expert hearing was conducted. Mother sought this alternative so as to

preclude the Department from terminating her parental rights based on the presumption in

§ 41-3-604, MCA. Section 41-3-604, MCA, provides that DPHHS must file a

termination petition when certain circumstances exist in conjunction with a child being in

foster care 15 out of the most recent 22 months.

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¶22 On March 2, 2010, the District Court issued its findings of fact following the

ICWA hearing (ICWA Order). The court noted the following: (1) removal of A.S. and

T.S. was on an emergency basis; (2) a show cause hearing with ICWA testimony was

scheduled on two separate dates in January 2008, just after placement of the children into

foster care; (3) Mother continued the first scheduled hearing and vacated the second one;

(4) no party objected to the failure to hold a show cause hearing on the petition for EPS;

(5) within days after the second hearing was vacated, the proceeding was transferred from

Fallon County to Custer County; and (6) Mother changed counsel shortly after the

transfer. The court found that state and federal law pertaining to removal of A.S. and

T.S. had been satisfied. It concluded that as of December 20, 2007, out-of-home care

was necessary for the boys and that continuation in the home would likely result in

serious emotional or physical harm to the children. The court also found that DPHHS

made satisfactory “active efforts” to provide remedial and rehabilitative programs to help

Mother and prevent the removal of the children.

¶23 On April 15, 2010, the court commenced the termination hearing. The hearing

was scheduled to continue on April 16 but was rescheduled for June 18, 2010, at

DPHHS’s request. ICWA expert Adams again testified on June 18. At the close of the

hearing on June 18, the court granted DPHHS’s motion and terminated Mother’s (and

Father’s) parental rights. It issued its order terminating parental rights (Termination

Order) on August 12, 2010. It is from this order that Mother appeals.

STANDARDS OF REVIEW

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¶24 We review a district court’s termination of parental rights for an abuse of

discretion. We determine whether the district court’s findings of fact are clearly

erroneous and whether the conclusions of law are correct. In re B.M., 2010 MT 114,

¶ 14, 356 Mont. 327, 233 P.3d 338 (citations omitted).

¶25 In an ICWA case, we will uphold the district court’s termination of custody if a

reasonable fact-finder could conclude beyond a reasonable doubt “that the continued

custody of the child by the parent or Indian custodian is likely to result in serious

emotional or physical damage to the child.” In the Matter of A.N., 2005 MT 19, ¶ 19,

325 Mont. 379, 106 P.3d 556 (citations omitted).

DISCUSSION

¶26 Did the District Court abuse its discretion when it terminated Mother’s parental
rights?

¶27 On appeal, Mother primarily argues that the failure to hold the ICWA expert

hearing before the children were removed from her home did not satisfy 25 U.S.C.

§ 1912(e) of ICWA. 1 She claims the resultant “unlawful removal” of her children started

a chain of events that resulted in her parental rights being terminated because the children

had been in foster care for more than 15 consecutive months. She asserts this is a

“structural error” warranting automatic reversal. She argues alternatively that the “clock

for calculating foster care residency in accordance with Mont. Code Ann. § 41-3-604”

1
ICWA § 1912(e) provides: No foster care placement may be ordered in such proceeding in the
absence of a determination, supported by clear and convincing evidence, including testimony of
qualified expert witnesses, that the continued custody of the child by the parent or Indian
custodian is likely to result in serious emotional or physical damage to the child.

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should be reset to January 15, 2010, thereby precluding termination in June 2010 based

upon the 15-month foster care presumption in § 41-3-604, MCA.

¶28 In response, DPHHS observes that despite numerous opportunities to do so,

Mother failed to object to the timing of the ICWA § 1912(e) hearing until after it had

been conducted. Therefore, Mother has not preserved this issue on appeal. The

Department also notes that Mother identified no factual or legal error in the District

Court’s order terminating her parental rights. Moreover, she did not acknowledge or

address the findings and conclusions set forth in the order entered by the District Court

following the ICWA expert hearing. DPHHS also argues that § 1912(e) does not “set

forth a time frame for making the necessary foster care finding, but only requires clear

and convincing evidence including qualified expert testimony.” The Department urges us

to affirm the District Court.

¶29 Upon comprehensive review of the record, we conclude Mother has failed to

preserve the issue of the “timeliness” of the ICWA hearing for appeal. On October 28,

2008, the State filed its Motion for Qualified Expert Testimony on Removal of Child. It

requested that a § 1912(e) ICWA hearing be held. On November 20, 2009, Mother filed

her Brief in Response to State’s Motion on Qualified Expert Testimony on Removal of

Child. In this brief, Mother agreed that such a hearing should be held but reserved the

right to challenge one specific issue, namely “should the [c]ourt find that ICWA was

complied with . . . Mother reserves the right to challenge whether that testimony

establishes a period of Legal Custody for the Department at the time of the [c]ourt’s New

Dispositional Order or at the time of the initial removal.”

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¶30 Not only did Mother acquiesce in the holding of the delayed ICWA hearing in her

brief, she acquiesced yet again at the commencement of the hearing. She did so even

after hearing Father’s counsel raise a timeliness objection. Father’s counsel stated:

I am objecting to the timeliness of this testimony and to whether or not the
[c]ourt can actually accept this type of testimony at this time for purposes
of the record. And also . . . whether or not the failure to have this testimony
presented at the time of the removal, if that is fatal to the State’s case.

Mother’s counsel then stated at the start of the ICWA hearing:

I don’t necessarily object to having this hearing. However, I do have a
position with respect to what the effect of this hearing is once the [c]ourt
makes a ruling on the evidence that it hears.

This vague comment does not serve as a contemporaneous and specific objection

(M. R. Evid. 103), nor does it alert the court that she has any objection to the timeliness

of the proceeding.

¶31 The record thus shows that on four occasions—in August and October 2007, and

twice in January 2008—the Department subpoenaed an ICWA expert to testify, only to

have Mother enter a stipulation and vacate subsequently scheduled hearings. When the

Department then scheduled the delayed hearing for the fifth time, Mother did not

challenge the timeliness of the hearing, either in pre-hearing briefing or at the time of the

hearing itself. Although we do not approve of the delay in the ICWA proceedings that

occurred here, and have previously stated that strict compliance with statutory

requirements governing termination proceedings is required (In re J.C., 2008 MT 127,

¶ 53, 343 Mont. 30, 183 P.3d 22), we conclude that under the circumstances here

presented, Mother has failed to preserve the issue of the timeliness of the ICWA hearing

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for appeal. As we have frequently held, “[w]e will not put a district court in error for an

action in which the appealing party acquiesced or actively participated.” State v. Holt,

2011 MT 42, ¶ 17, 359 Mont. 308, ___ P.3d ___.

¶32 Mother’s remaining restated argument on appeal is that the District Court erred by

not resetting the starting date of foster care to January 15, 2010. For this argument to

have merit, the District Court must have terminated Mother’s parental rights by relying

upon the 15-month presumption in § 41-3-604, MCA. As discussed below, the

Termination Order sets forth the District Court’s independent reasons for termination

without reliance on the presumption.

Termination Proceeding

¶33 We now address whether the District Court abused its discretion in terminating

Mother’s parental rights. It is well established that a “natural parent’s right to care and

custody of a child is a fundamental liberty interest which courts must protect with

fundamentally fair procedures at all stages of the proceedings for the termination of

parental rights.” In re B.N.Y., 2003 MT 241, ¶ 21, 317 Mont. 291, 77 P.3d 189, citing In

re T.C. and W.C., 2001 MT 264, ¶ 22, 307 Mont. 244, 37 P.3d 70; In re A.F.-C., 2001

MT 283, ¶ 31, 307 Mont. 358, 37 P.3d 724. As such, termination procedures must satisfy

the Due Process Clause of the Fourteenth Amendment. B.N.Y., ¶ 21. A parent may not

be placed at an unfair disadvantage during the termination proceedings. In re T.C., 2008

MT 335, ¶ 16, 346 Mont. 200, 194 P.3d 653.

¶34 Section 41-3-609, MCA, sets forth the criteria for terminating a parent’s right to a

child. The relevant provisions are:

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 (1) The court may order a termination of the parent-child legal relationship
upon a finding established by clear and convincing evidence . . . that any of
the following circumstances exist:

. . .

(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.

¶35 The District Court found that Mother failed to successfully complete three

court-approved treatment plans. Specifically, she failed to complete the tasks designed to

address her mental health and chemical dependency needs. Mother missed multiple

evaluation appointments or attended them while being “too high on drugs to complete

testing.” Also, while Mother attended inpatient treatment for chemical dependency at

Montana Chemical Dependency Center in July 2008, her discharge summary “indicated

no significant movement toward her goals in the treatment plan.” She also attended some

chemical dependency counseling sessions but arrived “too impaired to participate.” She

then quit attending sessions without notice. Mother continued to use alcohol and drugs

despite her treatment plan requirement to abstain. Mother was frequently uncooperative

with service providers and medical personnel in their attempts to aid her successful

completion of her treatment plans. Mother also failed to complete her treatment plan

tasks aimed at improving her parenting skills and stabilizing her environment.

¶36 The District Court concluded that the circumstances causing Mother to be unfit for

parenting were unlikely to change. The court heard testimony that there was very little

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change in Mother’s conduct and condition from her April 2005 evaluation to her January

2010 assessment. Notably, Mother does not contest the District Court’s findings of facts

and conclusions of law relative to her conduct or unfitness. In sum, the record clearly

supports the District Court’s findings of fact and conclusions of law. The District Court

did not abuse its discretion.

¶37 Notwithstanding our decision here, we urge DPHHS to diligently address the

requirements of ICWA § 1912(d) and (e) early in the proceeding, guaranteeing

compliance with state and federal law and providing the district court with adequate

information to render its decision on foster care placement.

CONCLUSION

¶38 For the foregoing reasons, we hold the District Court did not abuse its discretion in

terminating Mother’s parental rights. We therefore affirm the judgment of the District

Court.

/S/ PATRICIA COTTER

We concur:

/S/ BETH BAKER
/S/ JAMES C. NELSON
/S/ BRIAN MORRIS
/S/ JIM RICE

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