In re D.D.

403 Mont. 376

482 P.3d 1176

2021 MT 66

In the MATTER OF: D.D., A Youth in Need of Care.

DA 20-0347

Supreme Court of Montana.

Submitted on Briefs: February 10, 2021

Decided: March 16, 2021

For Appellant: Taryn Gray, Driscoll Hathaway Law Group, Missoula, Montana

For Appellee: Austin Knudsen, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana, Kathryn McEnery, Powell County Attorney, Deer Lodge, Montana

Justice Ingrid Gustafson delivered the Opinion of the Court.

¶1 D.D. (Father), father of D.D. (Child), appeals from the June 4, 2020 Order Terminating Father's Parental Rights and Granting Permanent Legal Custody issued by the Montana Third Judicial District Court, Powell County, which terminated his parental rights to Child.

¶2 We restate the issues on appeal as follows:

1. Whether the District Court's failure to obtain a written confirmation directly from the Tribe regarding Child's enrollment eligibility constitutes reversible error.

2. Whether the District Court erred in terminating Father's parental rights pursuant to § 41-3-609(1)(f), MCA.

¶3 We affirm.

PROCEDURAL AND FACTUAL BACKGROUND

¶4 The Montana Department of Health and Human Services, Child and Family Services Division (Department) became involved when Child was born March 16, 2018, and tested positive for marijuana. Initially, the Department entered into an in-home safety plan with T.S. (Mother) whereby she would reside with Child in her father's (Grandfather) home. This plan was unsuccessful as Mother stayed only one night in Grandfather's home before returning to reside with Father. Additionally, Father refused to sign the in-home safety plan. The Department filed its petition for emergency protective services (EPS), show cause, adjudication, and temporary legal custody (TLC) on April 25, 2018, asserting concerns of drug use by the parents and domestic violence on Father's part.

¶5 Although Father initially arrived at the courthouse prior to the show cause hearing on May 15, 2018, he left on advice of his counsel as he was too upset to remain and participate. Father did, however, contest EPS and adjudication. The Department then presented evidence as to the following: Mother initially presented to the Anaconda Community Hospital for delivery of Child. At the hospital, Father made quite a scene storming out of the delivery room, yelling, banging on doors, and punching walls.¹ After Child's birth, Mother and Child were transferred to the Missoula hospital. Upon Father's arrival there, a similar scene ensued when a charge nurse asked Father if he was sick and when he replied that he was, she related he could not be there. Father then began yelling, swearing, and slapping walls as he left. Child Protection Specialist (CPS) Sandy Cisneros testified to concerns about Father's violence based on his erratic and aggressive behaviors at the hospitals and Mother's report of violence against her during the relationship. CPS Cisneros also testified to concerns regarding the parents use of drugs with Father testing positive for marijuana and benzodiazepine on April 19, 2018. Finally, CPS Cisneros testified although she met with Father after the Department filed its petition and he indicated a desire to work with the Department, she had not had much contact with Father. At the conclusion of the hearing, the District Court found EPS to be warranted, adjudicated Child as a youth in need of care (YINC), and granted the Department TLC for a period of six months.

¶6 The District Court held a treatment plan hearing on June 29, 2018. Father's treatment plan—signed by him, his counsel, CPS Linda Huffaker, the Department's counsel, Child's attorney, and the guardian ad litem—was presented to and approved by the court. Following approval of his treatment plan, Father for the most part disengaged and did not appear at further court proceedings until his termination hearing. Father did not successfully complete any of the agreed tasks of his treatment plan. Specifically, Father failed to obtain a chemical dependency evaluation with a Department-approved evaluator. Father failed to obtain a mental health evaluation with a provider approved by the Department. Father failed to engage in drug testing with providers referred by the Department with some positive tests and several "no shows." Father failed to complete an approved parenting class. Father failed to maintain consistent visits with Child seeing him less than a dozen times over a two-year period. Father failed to maintain contact with the Department. Father failed to maintain contact with his counsel. Father failed to remain law abiding and was convicted of a second Partner or Family Member Assault (PFMA) during the pendency of the case and was then revoked and removed from pre-release. Father failed to maintain safe and stable housing and, at the time of the termination hearing, Father was incarcerated and only at the outset of participation in the Sanction, Treatment, Assessment, Revocation, and Transition (START) program.

¶7 On February 20, 2020, the Department filed its petition to terminate Father's parental rights asserting termination pursuant to § 41-3-609(1)(f), MCA —failure to successfully compete his court-ordered treatment plan combined with lack of likelihood of successful change within a reasonable time—was warranted. Following the termination hearing on May 15, 2020, the District Court issued its Order Terminating Father's Parental Rights and Granting Permanent Legal Custody on June 4, 2020, finding Child was previously adjudicated a YINC, Father failed to successfully complete his treatment plan, and the conduct or conditions rendering Father unfit, unable, or unwilling to parent were unlikely to change in a reasonable time.

¶8 Father raises two issues on appeal: whether the Department failed to obtain conclusive determination regarding Child's enrollment eligibility with the Turtle Mountain Band of Chippewa Tribe (Tribe) and whether the District Court erred in concluding that continuation of the parent-child relationship would result in continued abuse or neglect and that Child's best interests were served by terminating Father's parental rights.

STANDARDS OF REVIEW

¶9 We review a district court's decision to terminate parental rights for an abuse of discretion, considering the applicable standards of Title 41, chapter 3, MCA, and the Indian Child Welfare Act (ICWA), 25 U.S.C. §§ 1901 - 1963. In re D.E. , 2018 MT 196, ¶ 21, 392 Mont. 297, 423 P.3d 586. A court abuses its discretion if it terminates parental rights based on clearly erroneous findings of fact, erroneous conclusions of law, or otherwise acts arbitrarily, without employment of conscientious judgment, or exceeds the bounds of reason resulting in substantial injustice. In re D.E. , ¶ 21 (citing In re D.B. , 2007 MT 246, ¶ 18, 339 Mont. 240, 168 P.3d 691 ). Findings of fact are clearly erroneous if not supported by substantial evidence, the court misapprehended the effect of the evidence, or this Court has a definite and firm conviction that the lower court was mistaken. In re D.E. , ¶ 21 (citing In re D.H. , 2001 MT 200, ¶ 14, 306 Mont. 278, 33 P.3d 616 ). We review conclusions of law for correctness. In re D.E. , ¶ 21.

DISCUSSION

¶10 1. Whether the District Court's failure to obtain a written confirmation directly from the Tribe regarding Child's enrollment eligibility constitutes reversible error.

¶11 ICWA and § 41-3-609, MCA, impose different standards for termination of parental rights depending on whether a child is an "Indian child," therefore whenever the court has reason to believe that the child is an Indian child as defined by ICWA, district courts must first verify the Indian or non-Indian status of a child prior to the termination hearing. In re D.E. , ¶ 24 (citations omitted). The question of whether a child is eligible for tribal membership is, except where limited by federal statute or treaty, in the sole power of the tribes. In re D.E. , ¶ 25 (citing In re A.G. , 2005 MT 81, ¶ 13, 326 Mont. 403, 109 P.3d 756 ). When a court has reason to believe a child may be an Indian child, proceeding to termination without a conclusive tribal determination of tribal membership or eligibility is an abuse of discretion. In re D.E. , ¶ 25. 25 U.S.C. § 1914 allows "any parent ... from whose custody [an Indian] child was removed" to "petition any court of competent jurisdiction to invalidate such action upon a showing that such action violated any provision of [ 25 U.S.C. §§ 1911, 1912, and 1913 ]." 25 U.S.C. § 1914. Upon such a showing, "the court must determine whether it is appropriate to invalidate the action." 25 C.F.R. § 23.137(b) (2020). "This rule does not require the court to invalidate an action, but requires the court to determine whether it is appropriate to invalidate the action under the standard of review under applicable law." In re S.B ., 2019 MT 279, ¶ 28, 398 Mont. 27, 459 P.3d 214 (internal quotation marks omitted); see also Bureau of Indian Affairs, Guidelines for Implementing the Indian Child Welfare Act 76 (Dec. 2016), https://perma.cc/2JZM-YAUZ. 25 U.S.C. § 1912(a) requires the Department provide an Indian child's tribe notice of proceedings to place an Indian Child in foster care or terminate the parental rights to the Indian child at least ten days before any hearing. In re S.B ., ¶ 32 ; see also 25 C.F.R. § 23.111 (2020). The Department must provide notice "by registered or certified mail with return receipt requested," and "the court must ensure that ... [a]n original or a copy of each notice sent under this section is filed with the court together with any return receipts or other proof of service." 25 C.F.R. § 23.111(a)(2), (c) ; In re S.B ., ¶ 32. We have explained, however, that "ICWA's notice requirements are not jurisdictional and are subject to harmless error review." In re S.B ., ¶ 32 (quoting In re M.S. , 2014 MT 265, ¶ 22, 376 Mont. 394, 336 P.3d 930 ). "An error involving notice...