NO. 82-239
I N THE SUPREME COURT OF TEE STATE OF MONTANA
1983
IN THE MATTER OF : G. L. 0 . C , T. J .X.,
e t al. , Youth i n Xeed o f C a r e .
APPEAL FROM: D i s t r i c t Court of t h e T h i r t e e n t h J u d i c i a l D i s t r i c t ,
I n and f o r t h e County o f Y e l l o w s t o n e ,
The H o n o r a b l e D i a n e G. B a r z , J u d g e p r e s i d i n g .
COUNSEL O RECORD:
F
For Appellant:
Megan Combs & D . Michael Eakin argued, B i l l i n g s ,
Montana
For Respondent:
Urban J . B e a r D o n ' t Walk, B i l l i n g s , Montana
H a r o l d F. H a n s e r a r g u e d , County A t t o r n e y ,
B i l l i n g s , Montana
Submitted: A p r i l 2 2 , 1983
Decided: August 1 3 , 1 9 8 3
Filed:
A liG 1 3 1983
P
Clerk
Mr. Justice Daniel J. Shea delivered the Opinion of the
Court.
The father of the children involved in this proceeding,
a non-Indian, appeals an order of the Yellowstone County
District Court that deprived him of the right to have a
hearing and to have counsel before the cause was transferred
to the Crow Indian Tribal Court under the provisions of the
Indian Child Welfare Act, 25 U.S.C. § 1901, et seq. Before
the District Court ordered the transfer pursuant to the Crow
Tribe petition, the father had filed a request for
appointment of counsel because he was indigent. The father,
at the same time, did not expressly declare he would contest
the transfer of the children to the jurisdiction of the Crow
Tribe. Without acting on the father's request for counsel,
the court simply ordered the transfer. The father, through
the Yellowstone County Legal Services, filed a request for
reconsideration. The trial court denied this, however, on
the ground that it was too late to do anything about it--the
court had already entered the transfer order. The Crow
Tribe, however, did not actually take custody of the
children. The children are still in the care of a foster
home in Yellowstone County pending the outcome of this
appeal. The father, after the District Court refused to
reconsider its transfer order, filed an appeal to this Court.
The father raises two issues. First, the father argues
that the trial court erred in transferring the proceeding to
Crow Tribal Court without giving him an adequate opportunity
to be heard. Second, the father argues the trial court erred
by failing to appoint counsel for him. We vacate the
transfer order and remand to the District Court for further
proceedings.
After the trial court had entered its transfer order,
and before it had acted on the father's request for
reconsideration, the Yellowstone County Attorney's office
urged the court to deny the father's request. The brief of
the county attorney also takes this position. However, in
oral argument, the Yellowstone County Attorney backed away
from this position and simply took the position that the
trial courts need guidance in this area and agreed that
appointment of counsel was necessary for one to effectively
assert his legal rights. The Crow Tribe, which did not
appear for oral argument, argues in its brief that because
the father did not actually object to the transfer, the trial
court had a duty to transfer the matter to the tribe. On the
counsel issue, the Crow Tribe argues that because the action
in the trial court did not involve an action for removal,
placement, or termination of parental rights, appointment of
counsel was not required.
We reverse the trial court and hold that before the
trial court could transfer jurisdiction, a hearing was
required. Further, because the request for appointment of
counsel is so inextricably connected with asserting the
rights of one who may object to a transfer, we hold that the
trial court first had to determine whether the father was
entitled to court-appointed counsel before it could proceed
with a hearing and enter an order on the transfer question.
The tragic backgrounds of these children's lives only
emphasizes the need for procedural fairness in determining
whether Indian children should be transferred to the
jurisdiction of a tribe upon that tribe's removal request
pursuant to the Indian Child Welfare Act. The procedural
fairness was not granted here.
The three children involved are aged 3, 7 and 8. All
three children are enrolled members of the Crow Tribe.
Before any legal action was started, they were living off the
reservation with their mother who is a full-blooded Crow
Indian. There is some question as to whether the father is
actually the father of all three children, although that
determination is not essential to our holding in this case.
It is undisputed that he is the father of at least one of the
children. The children's young lives are fraught with
misfortune.
While the young children were living with their mother,
the father was in prison in Deer Lodge. After reports that
the mother abused and neglected the children, the State of
Montana filed a petition for temporary investigative
authority on June 17, 1981, in District Court. The court
granted the petition for 90 days, and on September 11, 1981,
after the 90 day period had expired, the court placed the
children in temporary foster care in Yellowstone County.
They have been in temporary foster care ever since.
Less than a month later, while the father was still in
prison, the children's mother was murdered. The State then
filed on October 9, 1981, a second petition for temporary
investigative authority, and the children remained in a
foster home. The father had by then been paroled from state
prison and while he was at the Yellowstone County Sheriff's
office, the State served him with a copy of the second
petition for temporary investigative authority. The trial
court granted this second petition and extended it twice.
While these extensions were in effect, the father visited the
children at the foster home from time to time.
Later, acting in accordance with the Federal Indian
Child Welfare Act of 1978 (25 U.S.C. S 1901, et seq.), the
State notified the Crow Tribe of the Youths in Need of Care
proceedings pending in the state District Court. A couple of
months later, on April 6, 1982, the Crow Tribe responded by
petitioning the state District Court for a transfer of the
proceedings to Tribal Court pursuant to 25 U.S.C. § 1911 (b)
of the Indian Child Welfare Act. The Tribe served copies of
the petition on all attorneys of record and also served the
father with a copy.
On April 13, 1983, the father petitioned the District
Court for appointment of counsel on the grounds that he was
indigent. However, the court did not act on this petition.
Rather, on April 14, 1982, without even acknowledging the
father's petition or giving the father a chance to object to
the transfer of jurisdiction, the court ordered a transfer of
jurisdiction to the Crow Tribal Court. The father then
obtained the services of Montana Legal Services and
petitioned the court to reconsider its order on the grounds
that he had not received adequate notice and had been unable
to find an attorney to represent him. The court held a
hearing, but on June 1, 1982, ruled that the transfer to Crow
Tribal Court would remain in effect because the court had
lost jurisdiction to reconsider its transfer decision. This
appeal followed.
We are at a loss in trying to understand why the trial
court ignored our opinion in In Re the Matter of M.E.M.
(19811, - Mont . ,
- 635 P.2d 1313, 38 St.Rep. 1895. There
we held that the express language of the Indian Child Welfare
Act requires appointment of counsel for an indigent parent or
Indian custodian. The statute declares that:
"In any case in which the court determines
indigency, the parent or Indian custodian shall
have the
-- i t to court-appointed counsel in any
removal, place men^, or termination proceeding. The
court may, in its discretion, appoint counsel for
the child upon a finding that such appointment is
in the best interest of the child . ..
(Emphasis
added.) 25 U.S.C. S 1912(b)." In the Matter of
M.E.M., 635 P.2d at 1316, 38 St.Rep. at 1898.
Based on this statute, we held that indigency status
required appointment of counsel. M.E.M., 635 P.2d at 1317,
38 St.Rep. at 1899. In requesting appointment of counsel
based on indigency status, the father, along with his
petition, filed an affidavit setting forth his indigency
status. His status as an indigent was never questioned. Yet
the trial court proceeded to rule as though the petition had
never been filed.
Nor can we understand how the trial court avoided a
hearing on the question of whether jurisdiction should be
turned over to the Crow Tribe. We also held in M.E.M., 635
P.2d at 1317, 38 St.Rep. at 1900, that under the Indian Child
Welfare Act, a jurisdictional hearing is required before the
court can enter an order either granting or denying a request
for the transfer of jurisdiction of Indian children to tribal
custody. Such a hearing is required whenever the Indian
children live outside of a reservation. Here no hearing was
held, and the trial court simply entered an order
transferring jurisdiction to Tribal Court. This order was in
flat contravention of our holding in M.E.M.
The trial court must have known that a hearing was
required and appointment of counsel for an indigent was
required--for the trial judge presiding here also presided in
M.E.M. Nonetheless, the trial court proceeded in flat
contravention of our holding in M.E.M. on the hearing
requirement and on the appointment of counsel requirement.
To avoid a hearing and the appointment of counsel to make
that hearing meaningful by the expedient of transferring
jurisdiction in an effort to divest itself of jurisdiction
would defeat one of the purposes of the Indian Child Welfare
Act--that of granting due process to those involved in the
process.
As we recognized in M.E.M., 635 P.2d at 1316, 38 St.Rep.
1897, the Indian Child Welfare Act has an underlying thread
of preventing the removal of Indian children from their
Indian parents and culture. But that objective must be
achieved in a manner that comports with due process for all
those concerned. We cannot ignore here that at least one of
the children, and perhaps all of them, have a mixed ancestry.
The mother, who was Indian, was dead, but the father of at
least one of the children, and possibly two of the children,
was of Caucasion ancestry. He also claimed stepfather status
of the third child. The father apparently wanted the state
courts to retain jurisdiction. The children resided outside
the reservation and may have been totally divorced from
Indian culture and have established social and other ties
completely divorced from tribal life.
A transfer of jurisdiction to a Tribal Court, without
giving a parent the right to object to a transfer of
jurisdiction, may have the effect of plunging the children
into circumstances that are traumatic or otherwise not in
their best interest. That is precisely why a jurisdictional
hearing is required before a transfer order is entered, and a
hearing can in many instances be meaningless if an indigent
parent is deprived of the right to have counsel appointed.
Certainly one of the purposes of the Indian Child Welfare Act
is to give due process to all those involved. There can be
no due process where no hearing is held and a legitimate
request for appointment of counsel is ignored.
The order of the District Court is vacated, and this
cause is remanded for proceedings consistent with this
opinion.
We Concur: