No. 93-049
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
IN THE MATTER OF W.L., C.L., and B.L.,
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Big Horn,
The Honorable Robert W. Holmstrom, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
James L. Vogel, Attorney at Law, Hardin,
Montana (for the Mother)
For Respondent:
Hon. Joseph P. Mazurek, Attorney General,
Deanne L. Sandholm, Assistant Attorney General,
Helena, Montana; James Torske, Special Big Horn
Deputy County Attorney, Hardin, Montana;
Natasha Morton, Attorney at Law, Hardin, Montana
(for the Father); Joe A. Rodriguez, Attorney at
Law, Lame Deer, Montana (Guardian Ad Litem)
Submitted on Briefs: April 30, 1993
Decided: September 16, 1993
Filed:
Justice William E. Hunt, Sr., delivered the opinion of the Court.
Appellant, the natural mother of W.L., C.L., and B.L., appeals
from an order of the Thirteenth Judicial District Court, Big Horn
County, denying her motion to transfer jurisdiction of dependency
and neglect proceedings to the Northern Cheyenne Tribal Court
pursuant to the Indian Child Welfare Act, 25 U.S.C. § 1911 (1978).
We affirm.
We determine the following issue to be dispositive:
Did the District Court err in denying appellant's motion to
transfer jurisdiction of dependency and neglect proceedings to the
Northern Cheyenne Tribal Court, pursuant to the Indian Child
Welfare Act, 25 U.S.C. $4 1911 (1978)?
This case came before the District Court on January 27, 1989,
when the Department of Family Services (DFS) filed a petition for
temporary investigative authority and protective services. The
subjects of the petition are three children of the natural mother,
G.Y., and the natural father, W.L. The petition alleged that G.Y.
neglected and physically abused the children. The petition also
alleged that she did not stop individuals from sexually abusing the
children.
The parents and the three children are enrolled members of the
Northern Cheyenne Tribe. From the time the couple married until
the time of their divorce in September 1987, the family lived with
the paternal grandparents off the Northern Cheyenne Reservation
(the Reservation) in Lodge Grass, which is within the boundaries of
the Crow Indian Reservation. G.Y. testified that she lived with
2
the children in Lame Deer, which is on the Reservation, from
September 1987 to April 1988. Afterward she moved to Hardin which
is off the Reservation. The children were often cared for by the
paternal grandparents in Lodge Grass. The children never had any
close contact with the Tribe or G.Y.'s family. At the time of the
filing of the petition, the youths resided in Hardin with their
mother.
On January 30, 1989, the District Court issued an order for
protective services and an order to show cause. On January 31,
1989, the District Court issued a notice to the Tribe, pursuant to
the Indian Child Welfare Act of 1978, 25 U.S.C. § 1912. On
February 13, 1989, the court granted the petition for temporary
investigative authority and protective services and directed that
provisions of the order issued January 30, 1989, should remain in
full force and effect until May 1, 1989. On April 19, 1989, a
motion to extend temporary investigative authority was filed. On
April 24, 1989, the motion was granted and the court extended the
order for protective services for 90 days.
On July 28, 1989, another petition for investigative authority
and protective senrices was filed. On July 31, 1989, an order for
protective services and order to show cause was issued. On
September 5, 1989, the court issued an order for protective
services modifying and extending the July 31, 1989, order for
90 days.
On November 13, 1989, a petition for temporary custody was
filed. On March 25, 1991, after several stipulated continuances,
3
a hearing on the petition was held. The court ordered the
temporary custody hearing continued until April 22, 1991, and
ordered that the existing order was to remain in effect. On
April 22, 1991, the hearing resumed during which the parties,
through counsel, stipulated to an extension of the temporary
custody for one year from January 30, 1991.
On September 11, 1991, G.Y. moved to transfer the case to the
Northern Cheyenne Tribal Court. The matter was continued for the
convenience of counsel and the court. On May 20, 1992, a second
motion to transfer was filed. The motion was noticed for hearing
on May 26, 1992. The motion was considered and continued until
June 22, 1992, in order to obtain transcripts of the proceedings
held on March 25, 1991, and April 22, 1991. On June 22, 1992, the
court issued an order continuing the January 30, 1990, temporary
custody order. On June 22, 1992, the Tribe's motion to intervene
was granted.
A hearing on the question of whether the District Court should
transfer jurisdiction of the case to the Tribe was held on
September 21, 1992. On October 19, 1992, the District Court issued
its order denying the motion to transfer jurisdiction. G.Y.
appeals the order.
G.Y. contends that the District Court lost jurisdiction on
January 22, 1992, because the State of Montana failed to continue
its intervention and custody of the children when it allowed the
court's oral order of April 22, 1992, granting temporary custody to
lapse while G.Y. was domiciled on the Reservation.
4
Section 1911 of the Indian Child Welfare Act establishes a
dual jurisdictional scheme between the State and the Indian Tribe.
Section 1911(a) provides that when an Indian child is domiciled
within the Reservation, the Indian Tribe:
[S]hall have jurisdiction exclusive as to any State over
any child custody proceeding involving an Indian child
who resides or is domiciled within the reservation of
such tribe, except where such jurisdiction is otherwise
vested in the State by existing Federal law. Where an
Indian child is a ward of a tribal court, the Indian
tribe shall retain exclusive jurisdiction, notwith-
standing the residence or domicile of the child.
In State court proceedings, where an Indian child is not
domiciled within the reservation of the child's Tribe, 5 1911(b)
provides that:
In any State court proceeding for the foster care
placement of, or termination of parental rights to, an
Indian child not domiciled or residing within the
reservation of the Indian child's tribe, the court, in
the absence of good cause to the contrary, shall transfer
such proceeding to the jurisdiction of the tribe, absent
objection by either parent, upon the petition of either
parent or the Indian custodian or the Indian child's
tribe: Provided, That such transfer shall be subject to
declination by the tribal court of such tribe.
The guiding light in determining domicile for the purpose of
jurisdiction is Mississippi Band of Choctaw Indians v. Holyfield
(1989), 490 U.S. 30, 104 L. Ed. 2d 29, 109 S. Ct. 1597. In that
case, the parents were enrolled members of the Tribe, residents on
the reservation, and both were domiciliaries of the reservation.
Holvfield, 490 U.S. at 37. The Court enunciated the rule that
since most minors are incapable of forming the requisite intent to
establish domicile, their domicile is determined by their parents.
Holvfield, 490 U.S. at 48.
5
In this case, G.Y. was domiciled off the Reservation in Hardin
at the commencement of the proceedings. The natural father had
objected to the transfer of jurisdiction to the Tribe, and the
Tribe declined to take jurisdiction of the matter. The District
Court has properly exercised jurisdiction over this case.
G.Y. maintains that the State did not strictly follow
procedures mandated by 5 41-3-401, MCA, by not requesting another
extension of temporary custody, and as a result, the District Court
lost jurisdiction over the case. In Matter of Guardianship of
Doney (1977), 174 Mont. 282, 570 P.2d 575, we stated that the
procedures established by 3 41-3-401, MCA, must be strictly
followed by the State before it may deprive natural parents the
custody of their children.
In this instance, the District Court did not lose jurisdiction
of the case. Under common principles of jurisprudence, after a
court has obtained jurisdiction, it retains that jurisdiction until
the final disposition of the case. 21 C.J.S. courts § 73 (1990).
In the absence of statutory language, an interlocutory order may be
amended, modified, or vacated, provided that no final judgment or
order has been rendered. 60 C.J.S hkZions and Orders 5 62(3) (c)
(1969). As we have stated:
[Wlhere the jurisdiction of a court is exclusive and has
once lawfully attached it cannot be ousted by subsequent
events or facts arising in the cause, but the court may
proceed to final judgment unless some constitution or
statute operates to divest that particular court of
jurisdiction.
Curry v. McCaffery (1913), 47 Mont. 191, 196, 131 P. 673, 675.
6
The court's temporary custody order of April 22, 1991, was not
the final judgment of the case. It was no more than an
interlocutory order which could be amended, modified, or vacated
until a final resolution of the case. The child abuse and neglect
statutes do not make provisions for the expiration of custody in
the state or the loss of jurisdiction by the court, other than by
a finding by the court that the children are not in danger of being
abused or neglected and vacating of any order made pursuant to
3 41-3-403, MCA. Section 41-3-404(4)(a), MCA. We hold that the
District Court did not lose jurisdiction of the case when the
temporary custody order expired.
Affirmed.
We concur:
September 16, 1993
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
James L. Vogel
Attorney at Law
P. 0. Box 525
Hardin, MT 59034
Natasha J. Morton
Attorney at Law
P. 0. Box 429
Hardin, MT 59034
Joe A. Rodriguez
Attorney at Law
P. 0. Box 820
Lame Deer, MT 59043
Hon. Joseph P. Mazorek, Attorney General
Deanne L. Sandhohn, Assistant
215 N. Sanders, Justice Building
Helena, MT 59620
James E. Torske
Special Deputy County Attorney
P. 0. Drawer F
Hardin, MT 59034
ED SMITH
CLERK OF THEBUPREME COURT