Matter of AP

No

No. 98-070

IN THE SUPREME COURT OF THE STATE OF MONTANA

1998 MT 176

IN THE MATTER OF A.P.,

A Youth in Need of Care.

APPEAL FROM: District Court of the Eighth
Judicial District,

In and for the County of Cascade,

The Honorable Thomas M. McKittrick, Judge presiding.

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COUNSEL OF RECORD:

For Appellant:

Terryl Healy, Cut Bank, Montana

For Respondent:

Bethany F. Schendel, Great Falls, Montana; Patrick Watt, Jardine, Stephensen, Blewett &
Weaver, Great Falls, Montana; Joseph P. Mazurek, Attorney General, Sarah A. Bond,
Assistant Attorney General, Helena, Montana; Brant Light, Cascade County Attorney,
Great Falls, Montana

Submitted on Briefs: June 11, 1998

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Decided: July 16, 1998

Filed:

__________________________________________

Clerk

Justice James C. Nelson delivered the Opinion of the Court.

¶ This is an appeal from the December 8, 1997 Findings of Fact, Conclusions of Law
and Order of the Eighth Judicial District Court, Cascade County, denying the
motion of the Gros Ventre and Assiniboine Tribes of the Fort Belknap Community
Council (Tribes) to transfer jurisdiction of this matter to the Fort Belknap Tribal
Court (Tribal Court). We affirm the decision of the District Court.

Background

¶ A.P. was born in Great Falls, Montana, on March 27, 1995. He and his biological
mother, J.P., were domiciled in and residents of Great Falls. Great Falls is not
located within the exterior boundaries of any Indian reservation. A.P.'s father has
had no contact with the child or his mother since A.P. was born. J.P. is listed as one-
half "Indian" in the Fort Belknap Tribal enrollment book; other evidence presented
to the District Court indicates that she is part Assiniboine.

¶ Whether A.P. is eligible for tribal membership, and is, thus, an "Indian Child" for
purposes of the Indian Child Welfare Act (ICWA), 25 U.S.C. §§ 1901-63, is in

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dispute. According to Bureau of Indian Affairs records, A.P. is not eligible for
enrollment in the Fort Belknap Indian Community. A Tribal historian, however,
testified that A.P. may be enrollable as either an Assiniboine or as a Gros Ventre by
reason of his quantum of Indian blood. The Tribes' motion to transfer alleges that A.
P. is eligible for enrollment in the Assiniboine Tribe. For purposes of our decision
here, we assume, arguendo, that A.P. is eligible for membership in one of these tribes
and is, thus, an "Indian Child" for purposes of the ICWA, 25 U.S.C. § 1903(4). See
also Adoption of Riffle (1995), 273 Mont. 237, 242, 902 P.2d 542, 545 (Riffle I) (tribe is
the ultimate authority on eligibility for tribal membership).

¶ In September 1995, based upon information that A.P. was in danger as a result of J.
P.’s long-standing chemical abuse problems, the Montana Department of Public
Health and Human Services (DPHHS) obtained an order for temporary investigative
authority (TIA) and custody from the District Court. DPHHS notified the Tribes of
these proceedings in accordance with the ICWA, 25 U.S.C. § 1912(a), and counsel
was appointed for J.P., 25 U.S.C. § 1912(b). Counsel was also appointed for A.P.

¶ DPHHS maintained custody of A.P. and worked with J.P. in an attempt to
reconcile mother and child. Ultimately, however, J.P. was unable to complete her
treatment plan. Various court proceedings with respect to A.P. occurred between
September 1995 and before the closing of the case on DPHHS's petition for
permanent custody and approval of preadoptive placement on June 9, 1997.
Specifically, there was a show cause hearing on September 27, 1995, with respect to
continuing the TIA; there was an adjudicatory hearing on the state's petition for
legal custody on April 25, 1996; there was a hearing on October 22, 1996, to
terminate A.P.'s father's parental rights and to terminate J.P.'s parental rights, the
latter by consent; and the permanent custody award and permanency plan were set
for review on June 5, 1997. On June 9, 1997, the court issued its written order
awarding the state permanent legal custody and closing the matter, acknowledging
that DPHHS had made an appropriate plan for A.P.'s permanency.

¶ The Tribes were given timely notice of each proceeding in accordance with 25 U.S.
C. § 1912(a). Furthermore, the Tribes received copies of the various petitions and
motions filed in the state court proceedings along with copies of the District Court's
orders resulting therefrom. Notwithstanding, the Tribes did not move to transfer A.
P.'s case to Tribal Court, did not move to intervene, and did not appear or file
documents in any of these proceedings prior to the court's June 9, 1997 order. On

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July 7, 1997, however, approximately one month after the case was closed and
twenty-two months after first receiving notice of the proceedings involving A.P., the
Tribes first appeared, moving to transfer A.P.’s case to Tribal Court under the
ICWA.

¶ Apart from the proceedings in District Court, once custody had been awarded to
DPHHS, this agency exercised its authority to make administrative placement
decisions for A.P. In accordance with the placement preferences and spirit of the
ICWA, DPHHS worked with the Tribes to attempt placement on the reservation and
in accordance with J.P.’s wishes. In March 1997, DPHHS placed A.P. with a Fort
Belknap Reservation family in accordance with the Tribes’ request. That placement
failed when the family requested that the State remove A.P. from their home. The
Tribes offered no other appropriate placements on the reservation.

¶ Finally, in the summer of 1997, A.P. was placed with his fifth and, thus far, last
placement. A.P.’s present placement is with an Indian custodian and her husband
who reside in Great Falls. The Indian custodian intervened in these proceedings in
October 1997. The Indian custodian is a member of the Turtle Mountain Band of the
Chippewa Tribe, and she has contacted the Tribes to attempt to enroll A.P. in his
Tribe. The Indian custodian testified in District Court that, as an Indian, she
understands the need for A.P. to be raised to appreciate his affiliation with the Gros
Ventre Tribe and she has testified that she will maintain ties with the Fort Belknap
Reservation and raise A.P. to understand the culture of the Tribes of which he is a
part. A.P. remains with this family in Great Falls. It appears that they are providing
a secure and loving home for him and that he is thriving.

¶ The instant appeal is from the District Court’s denial of the Tribes' July 7, 1997
motion to transfer which was followed by a jurisdictional hearing held over three
days on October 14, October 30 and November 13, 1997. In summary, 25 U.S.C. §
1911(b) of the ICWA allows the tribe of an Indian child to move to transfer state
court foster care placement and parental rights termination proceedings to tribal
court. This statute provides that the tribal court is the preferred forum, but allows a
state court to refuse to transfer based on a showing that good cause exists not to
transfer, based upon objection by either parent or based upon declination by the
tribal court.

¶ In the case at bar, the District Court found that it was not in A.P.'s best interests to

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transfer his case. The court concluded that § 1911(b) did not apply as there was no
state court proceeding when the Tribes’ transfer motion was filed; because the
Tribes' transfer motion was not filed during a foster care placement of or
termination of parental rights proceeding; and because this section is not applicable
to a preadoptive placement proceeding. From the District Court's denial of the
Tribes’ motion to transfer, this appeal followed.

Issues

¶ The issues on appeal, as framed by the State, are as follows:

¶ 1. Did the District Court correctly conclude that 25 U.S.C. § 1911(b) of the ICWA
does not provide for transfer to tribal court of a state administrative preadoptive
placement occurring after state court proceedings had closed and parental rights had
terminated?

¶ 2. If 25 U.S.C. § 1911(b) of the ICWA is applicable, did the court correctly
conclude that good cause existed not to transfer jurisdiction because the proceedings,
having commenced two years earlier and having closed one month prior to the
motion to transfer, were at an advanced stage?

¶ 3. Did the District Court correctly apply this Court’s rule in In the Matter of T.S.
(1990), 245 Mont. 242, 801 P.2d 77, and In the Matter of M.E.M. (1984), 209 Mont.
192, 679 P.2d 1241, in considering the best interests of the child as modified by the
considerations listed in the Bureau of Indian Affairs Guidelines, to find that it was
not in the child’s best interests to transfer?

¶ Since our discussion of Issue 1 is dispositive, we decline to address Issues 2 or 3.

Standard of Review

¶ The issues raised in this case involve questions of law. We review a district court’s
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conclusions of law simply to determine whether the court’s interpretation of the law
is correct. Adoption of Riffle (1996), 277 Mont. 388, 391, 922 P.2d 510, 512 (Riffle II).

Discussion

¶ For purposes of our discussion, it is important to bear in mind that the progression
of A.P.'s case involved different state court proceedings, each with its own statutory
requirements. With its September 1995 petition for TIA, DPHHS proceeded under §
41-3-404, MCA, and obtained temporary custody in April 1996. The agency then
proceeded under §§ 41-3-601 to -612, MCA, for termination of parental rights and
for permanent custody. On June 5, 1997, the court reviewed DPHHS permanency
plan for A.P., closed the final case petition for permanent custody, and approved
DPHHS to proceed with adoption and preadoptive placements. Following this order,
the agency placed A.P. in a preadoptive placement with his present Indian custodian
and her husband.

¶ These distinctions are important in our determination of whether the requirements
of the ICWA have been met as regards the particular state court proceedings at
issue. See M.E.M., 209 Mont. 192, 679 P.2d 1241; Riffle II, 277 Mont. 388, 922 P.2d
510.

¶ In relevant part, 25 U.S.C. § 1911, provides:

(b) Transfer of proceedings; declination by tribal court

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.

As can be seen from the plain language of this statute, state court proceedings are required
to be transferred to tribal jurisdiction where "foster care placement" or "termination of

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parental rights" is the matter at issue. As noted by the Supreme Court in Mississippi Band
of Choctaw Indians v. Holyfield (1989), 490 U.S. 30, 109 S.Ct. 1597, 104 L.Ed.2d 29:

At the heart of the ICWA are its provisions concerning jurisdiction over
Indian child custody proceedings. Section 1911 lays out a dual jurisdictional
scheme. . . . Section 1911(b) . . . creates concurrent but presumptively tribal
jurisdiction in the case of children not domiciled on the reservation: on
petition of either parent or the tribe, state-court proceedings for foster care
placement or termination of parental rights are to be transferred to the tribal
court, except in cases of "good cause," objection by either parent, or
declination of jurisdiction by the tribal court.

Holyfield, 490 U.S. at 36 (emphasis added).

¶ Foster care placement is defined in 25 U.S.C. § 1903(1)(i) and involves temporary
placement of the child "but where parental rights have not been terminated."
Section 1903(1)(ii) defines termination of parental rights as "any action resulting in
the termination of the parent-child relationship." Accordingly, under § 1911(b), the
ICWA provides only for transfer of state court proceedings prior to termination of
parental rights.

¶ In the instant case, prior to the termination of parental rights, there was no petition
by either of A.P.'s parents for transfer of the state court proceedings to Tribal Court.
Moreover, there was no challenge or objection by A.P.'s parents or the Tribes to such
proceedings taking place in state court, to the temporary and permanent custody
orders or to the termination of parental rights order issued by the court in October
1996. Indeed, the Tribes effectively declined transfer of jurisdiction by failing to
request transfer in the state court proceedings under § 1911(b) and by failing to
intervene under § 1911(c) despite being given actual notice of the proceedings.

¶ By the time the Tribes first appeared and moved to transfer, A.P.'s case had
progressed to the point where his parents' rights had been terminated and to the
point where custody had been permanently placed with DPHHS with approval for
preadoptive placements and adoption. In fact, state court proceedings had
terminated altogether before the Tribes' motion was filed. Accordingly, we conclude

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that the District Court correctly determined that § 1911(b) did not apply to the
Tribes' transfer motion because, at the time it was filed, there was no ongoing state
court proceeding for foster care placement or termination of parental rights.

¶ Rather, what was extant at the time the Tribes' motion to transfer was filed was A.
P.'s preadoptive placement with the Indian custodian and her husband. Section 1903
(1)(iii) defines "preadoptive placement" as "the temporary placement of an Indian
child in a foster home or institution after the termination of parental rights, but prior
to or in lieu of adoptive placement. [Emphasis added.]" The District Court concluded
that § 1911(b) does not apply to preadoptive placement proceedings. We agree.

¶ Our prior cases involving preadoptive and adoptive placements have involved only
the intervention and placement preference provisions of 25 U.S.C. § 1915, rather
than transfer issues. See e.g., Riffle II, 277 Mont at 392, 922 P.2d at 513; Matter of
Baby Girl Jane Doe (1993), 262 Mont. 380, 385-86, 865 P.2d 1090, 1093. Other courts
faced with this question, however, have concluded that § 1911(b) only applies to
foster care placements and termination of parental rights proceedings. See Matter of
J.B. (Okla.App. 1995), 900 P.2d 1014 (transfer authority under § 1911(b) is limited to
proceedings for "foster care placement" and "termination of parental rights" and
not to "preadoptive placements" as § 1903(1) defines those terms); Matter of Ashley
Elizabeth R. (N.M.App. 1993), 863 P.2d 451 (since children were neither residents nor
domiciled on the reservation, § 1911(b) applies to the tribe's motion to transfer the
foster care placement at issue).

¶ The Tribes argue that we should disregard the plain language of § 1911(b), and,
because § 1911(c) empowers a tribe to intervene "at any point in the proceedings,"
that we should allow the motion to transfer despite the fact that the foster care
placement proceedings and termination of parental rights proceedings were
completed prior to the motion being filed. We decline to do so.

¶ We have stated that a tribe's right to intervene in a proceeding is not impaired if it
does not intervene promptly after receiving notice. Riffle I, 273 Mont. at 241, 902
P.2d at 544. However, timeliness aside, the Tribes' argument fails to recognize the
fundamental difference between transferring a case to an entirely different court
system, on the one hand, and granting participation by way of intervention in
ongoing proceedings in the state court that already has had a substantial and lengthy
involvement in various aspects of the case, on the other. As discussed in the BIA

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guidelines at 44 Fed. Reg. 67590 (1979):

This section specifies that requests are to be made promptly after receiving
notice of the proceeding. . . . While the Act permits intervention at any point
in the proceeding, it does not explicitly authorize transfer requests at any time.
Late interventions do not have nearly the disruptive effect on the proceeding
that last minute transfers do. A case that is almost completed does not need to
be retried when intervention is permitted. . . . Although the Act does not
explicitly require transfer petitions to be timely, it does authorize the court to
refuse to transfer a case for good cause. When a party who could have
petitioned earlier waits until the case is almost complete to ask that it be
transferred to another court and retried, good cause exists to deny the request.

See also People in Interest of J.J. and S.J. (S.D.1990), 454 N.W.2d 317 (tribal motion to
intervene in an extant proceeding was granted; but appropriate, though untimely, § 1911
(b) motion to transfer was denied because, citing the BIA guidelines, intervention is far
different than transfer and would subject children to potentially dangerous situations and
not be in their best interest).

¶ Here, as to the foster care placements and termination of parental rights, A.P.'s
case was not "almost completed," but, rather, these proceedings had been completed
and closed for a month when the Tribes' transfer motion was filed. Even if § 1911(b)
allowed transfer at that point in time (which it does not), the disruptive effect of
transfer to an entirely new court system for more litigation and possible retrial is
manifest and is hardly in the best interest of the parents or the child.

¶ We conclude that the District Court properly denied the Tribes' § 1911(b) transfer
motion inasmuch as it was filed at a time when there was no foster care placement
nor termination of parental rights proceedings before the court, those proceedings
having been completed. Moreover, we conclude that, in the context of a preadoptive
placement following the termination of parental rights, the court properly
determined that § 1911(b) is inapplicable. Accordingly, we hold that the District
Court's denial of the Tribes' motion to transfer jurisdiction of A.P.'s case to Tribal
Court was correct as a matter of law.

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¶ Affirmed.

/S/ JAMES C. NELSON

We Concur:

/S/ J. A. TURNAGE

/S/ JIM REGNIER

/S/ KARLA M. GRAY

/S/ TERRY N. TRIEWEILER

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