In re M.T.

401 Mont. 518

474 P.3d 820

2020 MT 262

In the MATTER OF: M.T. and L.T., Youths in Need of Care.

DA 20-0075

Supreme Court of Montana.

Submitted on Briefs: August 19, 2020

Decided: October 20, 2020

For Appellant: Kelly Driscoll, Driscoll Hathaway Law Group, Missoula, Montana

For Appellee: Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana Eileen Joyce, Silver Bow County Attorney, Mark Vucurovich, Special Deputy County Attorney, Butte, Montana

Justice Jim Rice delivered the Opinion of the Court.

¶1 C.T. (Mother) appeals from a judgment entered in the Second Judicial District Court, Silver Bow County (District Court), terminating her parental rights to her children, M.T. and L.T.

¶2 We restate the issues raised on appeal as follows:

1. Did the District Court err by terminating Mother's parental rights in absence of a conclusive tribal determination regarding the children's status as Indian Children of the United Keetoowah Band of Cherokee Indians?

2. Did the Department engage in reasonable efforts to prevent removal and reunite Mother with Children?

3. Did the District Court err by determining that the conduct or condition rendering Mother unfit, unable, or unwilling to parent was unlikely to change within a reasonable time?

¶3 We affirm Issues 2 and 3, but remand for further consideration under the Indian Child Welfare Act, 25 U.S.C. §§ 1901 – 63 (ICWA).

FACTUAL AND PROCEDURAL BACKGROUND

¶4 M.T. was born in the spring of 2015. On July 14, 2016, the Montana Department of Public Health and Human Services (Department) petitioned the District Court for Emergency Protective Services, Adjudication of Child as Youth in Need of Care, and Temporary Legal Custody of M.T. The Department based the petition upon allegations of Mother and Father's¹ physical neglect, specifically, domestic violence and methamphetamine drug use, while caring for M.T. Three days earlier, a Department Child Protection Specialist (CPS) removed M.T. from Mother's care because Mother was exhibiting "aggressive and erratic" behavior that suggested drug use. The District Court granted the Department emergency protective services over M.T. the same day the Department filed its petition. L.T. had not yet been born.

¶5 In September 2016, the District Court approved a treatment plan for Mother. Under the plan, Mother was required to complete mental health and psychological assessments, attend mental health counseling, sign release forms allowing the Department and providers to discuss her case, complete parenting classes, exercise supervised visitation, complete a chemical dependency evaluation, abstain from drugs and alcohol, maintain safe and stable housing, and maintain contact with the Department. The Department agreed to provide referrals and help coordinate evaluation appointments, communicate weekly with Mother, meet bi-monthly with Mother, monitor treatment plan progress, and advise the court on treatment plan progress, problems, or changes.

¶6 In February 2017, the Department returned M.T. to Mother's care under an in-home safety plan. Mother had successfully addressed all aspects of her treatment plan. According to an affidavit filed in the proceeding to terminate Father's parental rights to M.T., CPS Ciana Dale (Dale) attested that M.T. "is doing well in birth mother's home ... [t]here are no concerns with [M.T.] at this time." Mother gave birth to L.T. in June of 2017 and, in August, the District Court dismissed the proceeding, ending the Department's temporary legal custody of M.T.

¶7 In January 2018, the Department received a report that Mother had placed M.T. and L.T. in the care of their maternal grandmother (Grandmother) and left to reunite with Father. The Department suspected drug relapse and its attempts to locate Mother were unsuccessful. Grandmother did not have custodial authority over the children, and the Department removed them. Nine days after removal, the District Court granted the Department emergency protective services over the children. Three months later, the District Court adjudicated the children as youths in need of care and granted the Department temporary legal custody. The District Court also approved an uncontested treatment plan for Mother containing provisions like those in Mother's first treatment plan. Throughout 2018, Mother was sporadic and inconsistent with visitation, sometimes appearing under the influence of drugs or failing to notify the provider that she was unable to attend scheduled visitation times.

¶8 After being arrested on an outstanding warrant in August 2018, Mother entered the Montana Chemical Dependency Center (MCDC) in Butte, Montana, for treatment in lieu of incarceration. However, MCDC discharged Mother shortly thereafter following an incident in which she threatened another MCDC client. Mother then relapsed. The next month, while Mother was again living with Grandmother, a domestic violence incident occurred between Grandmother and Mother's brother. L.T. was involved in the incident. Mother promptly removed the children from Grandmother's home and brought them to the Department.

¶9 In December 2018, Mother was admitted again to MCDC. She engaged with treatment only minimally and left MCDC in early January 2019 after being involved in an aggressive verbal dispute with another MCDC client. At that point, the Department advised Mother that it intended to file a petition for termination of parental rights. In February, the Department moved for permanent legal custody and termination.

¶10 In January 2019, the children's foster care placement in Butte deteriorated, and the Department moved the children to Havre, Montana for a kinship placement. Mother exercised visitation with the children there, making scheduled round trips between Butte and Havre. The Department provided a travel voucher every other week. Ultimately, the Department did not license the kinship placement because of concerns that the placement parents did not vaccinate their children. At this time, Mother began sessions with Karen Reynolds, a clinical social worker, attending twenty-three appointments through early August 2019. Mother demonstrated sobriety during this time and sought out-patient treatment on her own.

¶11 A termination hearing was scheduled for April 11, 2019. M.T. and L.T.’s guardian ad litem originally opposed termination and advocated instead for transfer of Mother's case to Butte Family Drug Court. Dale, who was then handling Mother's case, testified at a later hearing, "so at that point I had agreed that, okay, I would give her one more chance, and this was her opportunity to really prove if she can parent the children." During the hearing, the Department sought dismissal of the termination proceeding, and moved for extension of temporary legal custody to provide Mother with additional time to engage in her treatment plan. At the time of the initial petition for termination, the Department had not ceased providing Mother services, and visitation was occurring regularly in Havre.

¶12 In early April, Mother was admitted to Willow Way, part of the Rimrock Foundation in Billings, Montana, a treatment program designed for parents and their children. On April 11, the District Court ordered that Mother be enrolled in the Butte-Silver Bow Family Drug Court. The Drug Court accepted Mother on the condition that she successfully complete the Willow Way program. The Department initially resisted transfer of the children from Havre to Willow Way, but after advocacy by the guardian ad litem, the Department moved the children to Willow Way on April 17 to promote reunification. However, on May 19, Rimrock discharged Mother from Willow Way for program violations—Mother was confrontational with other clients and decided to leave the program—and the Department again removed the children from Mother. On June 4, the District Court dismissed Mother from Drug Court. The following day, June 5, 2019, the Department re-filed for termination of Mother's parental rights and permanent legal custody, and the District Court held a hearing on the Department's petition to approve permanency plans.

¶13 The termination hearing was held in August, and Dale testified that Mother had not been compliant with her treatment plan and abandoned her children through inconsistent contact and communication with them. As she explained:

[Mother] just really hasn't been consistent with contact and communication throughout the kids’ life. She has struggled to come and go from the kids’ life. Her children really struggle with relationships due to the coming and going and the promises of, "Oh, you'll come home." And the kids just don't have the consistency to understand. They're four and two years old. They don't understand what all of this means. And to be jerked back and forth really has been very difficult on the kids.

Although Mother was then demonstrating sobriety, the Department sought termination of parental rights because Mother had failed specific components of her treatment plan—maintain safe housing, communicate with the department, parenting and visitation, and chemical dependency. At the time of the hearing, M.T. and L.T. had been placed in a stable foster home where they have since resided. M.T. continues to receive therapy, as she has since she was three years old.

¶14 Also at the termination hearing, Dale testified that Reynolds received a call from Grandmother stating Mother's father was a member of the Cheyenne Tribe. Mother testified she was potentially affiliated with a tribe, possessing 1/16th Cherokee blood quantum. The Department conducted further investigation and reported that, as of November 5, 2019, it had sent verification requests to the Cherokee Nation of Tahlequah, Oklahoma; the Eastern Band Cherokee of Cherokee, North Carolina; and the Catawaba Indian Nation of Rock Hill, South Carolina. In an affidavit, Dale attested that, "[t]o the best of my knowledge and belief, the child MAYBE an Indian...