In re S.B.C.

377 Mont. 400

340 P.3d 534

2014 MT 345

In the Matter of S.B.C., Jr., A Youth in Need of Care.

No. DA 14–0084.

Supreme Court of Montana.

Submitted on Briefs Oct. 15, 2014.

Decided Dec. 30, 2014.

For Appellants: Elizabeth Thomas, Elizabeth Cunningham Thomas, PLLC, Missoula, Montana (for Father), Carolynn M. Fagan, Fagan Law Office, P.C., Missoula, Montana (for Mother), Nathan St. Goddard, Blackfeet Indian Reservation of Montana, Browning, Montana (for Blackfeet Tribe).

For Appellee: Timothy C. Fox, Montana Attorney General; Katie F. Schulz, Assistant Attorney General; Helena, Montana, Fred R. VanValkenburg, Missoula County Attorney; Matthew B. Lowy, Deputy County Attorney, Missoula, Montana.

Opinion

Justice JIM RICE delivered the Opinion of the Court.

¶ 1 N.B. (Birth Mother) and S.B.C. (Biological Father) appeal from the order entered by the Fourth Judicial District Court, Missoula County, terminating both parents' rights to their minor child, S.B.C., Jr. (S.B.C.), and granting the Department of Public Health and Human Services, Child and Family Services Division (Child Services) permanent legal custody with right to consent to adoption. The Birth Mother and Biological Father also challenge the District Court's order denying transfer of jurisdiction to the Blackfeet Tribal Court. The Blackfeet Tribe (Tribe) has filed a cross-appeal likewise challenging the denial of its motion to transfer jurisdiction to the Blackfeet Tribal Court and the termination of Biological Father's parental rights. We affirm.

¶ 2 We address the following issues on appeal:

1. Did the District Court err by denying the Tribe's motion to transfer jurisdiction to the Blackfeet Tribal Court?

2. Did the District Court abuse its discretion by terminating Biological Father's parental rights?

3. Did the District Court abuse its discretion by terminating Birth Mother's parental rights?

PROCEDURAL AND FACTUAL BACKGROUND

¶ 3 S.B.C. is a Native American child, whose biological parents are enrolled members of the Blackfeet Tribe. Because of S.B.C.'s ancestry he is considered an “Indian child” under the Indian Child Welfare Act (ICWA), 25 U.S.C. § 1903(4).¹ Birth Mother gave birth to S.B.C. in June 2011. Birth Mother and Biological Father are not married. Biological Father's name did not appear on S.B.C.'s birth certificate and he has not pursued a parental relationship with S.B.C.

¶ 4 On July 28, 2011, Child Services filed a petition in Missoula County for emergency protective services and temporary investigative authority. Child Services became involved after law enforcement officers were summoned to Birth Mother's residence because Birth Mother's other minor child, S.B.C.'s half-sister, was found naked and unsupervised in the middle of a busy intersection. This was the fourth time in two weeks law enforcement officers had been called to Birth Mother's residence to deal with similar issues. Law enforcement discovered Birth Mother had left the residence and there was no adult to care for S.B.C. Child Services contacted Birth Mother and explained if she did not return home, S.B.C. would be placed in protective care. There was an outstanding arrest warrant for Birth Mother at that time and, when she failed to return home, S.B.C. was removed. He was then 27 days old. Biological Father knew of the removal, but declined to take custody of S.B.C.

¶ 5 At the time of removal, Child Services consulted with the Blackfeet Tribe's ICWA coordinator, Raquel Vaile, who advised that S.B.C.'s paternal grandparents had expressed an intention to become licensed foster care providers. However, until that could be arranged and Title IV–E funding initiated, Vaile asked that Child Services arrange for placement of S.B.C.²

¶ 6 In September 2011, Child Services placed S.B.C. back with Birth Mother. They lived together at Mountain Home (a shelter for homeless mothers and children) for approximately three weeks. Birth Mother voluntarily left Mountain Home because she felt there were too many rules to follow. Within days of leaving, Birth Mother was arrested for her fourth offense of Driving under the Influence of Alcohol. Child Services requested Biological Father to take custody, but he again refused and questioned his paternity. Child Services subsequently set up appointments for Biological Father to establish paternity, but he failed to attend the appointments. Following removal, S.B.C. was temporarily placed in six different residences and with five different primary care providers.

¶ 7 In October 2011, Vaile met with Sheila Finley, a social worker for Child Services, to discuss more permanent placement options for S.B.C. Vaile explained Biological Father was refusing to care for S.B.C. until paternity was established, she was still assessing the possibility of placing S.B.C. with his paternal grandparents, and that no other kinship placements had yet been identified. Child Services then located a Native American foster parent (Foster Mother) and placed S.B.C. in her care; Foster Mother is an ICWA-qualified foster parent and the adoptive mother of three Native American children. Vaile was advised that Child Services had placed S.B.C. with Foster Mother and approved of the placement on behalf of the Tribe. S.B.C. has been in Foster Mother's care since the placement in October 2011, and Foster Mother wishes to adopt S.B.C.

¶ 8 In December 2011, the District Court ordered Biological Father to submit to paternity testing. Biological Father eventually submitted and in March 2012 his paternity of S.B.C. was confirmed. Biological Father did not attempt to be a placement option for S.B.C. or visit the child in the nine months following the establishment of paternity.

¶ 9 In January 2012, the Tribe filed a notice of intervention in the action. On January 24, 2012, the District Court conducted a youth in need of care adjudication hearing. Vaile testified, in her capacity as the Blackfeet Tribe's ICWA coordinator, that she continued to support the placement of S.B.C. with Foster Mother; S.B.C. had “been placed [with Foster Mother] in, complian [ce] with the Indian Child Welfare Act”; there was “clear and convincing evidence that support[ed] that active efforts [had] been engaged in by [Child Services] to prevent the breakup of this Native American family”; and there was “clearing [sic] and convincing evidence that [placing S.B.C. with Birth Mother] would result in serious emotion or physical damage” to S.B.C. as Birth Mother was in custody for DUI. The court adjudicated S.B.C. a youth in need of care.

¶ 10 On February 29, 2012, the District Court ordered a treatment plan for Birth Mother to address her alcohol addiction and lack of attention and parenting skills in caring for her children. The treatment plan contained several specific requirements, including that Birth Mother successfully complete inpatient treatment; obtain a sober living environment, whether on her own or in a facility like the Carole Graham Home; inform her social worker of her plans for aftercare and obtain her social worker's approval for them; and successfully complete her aftercare.

¶ 11 On September 28, 2012, Child Services filed a motion to approve a permanency plan. Child Services' primary plan for S.B.C. was reunification with Birth Mother with a concurrent plan for adoption of S.B.C. if reunification failed. In December 2012, after successfully completing her inpatient treatment, Birth Mother enrolled in aftercare at the Carole Graham Home. However, before reunification with S.B.C. could be accomplished, Birth Mother was asked to leave because of her violations of house rules.

¶ 12 On February 27, 2013, during a status conference on the case, the attorney representing Child Services advised that the State would be pursuing termination of parental rights to S.B.C. The District Court set an initial hearing on the termination issue and all parties were served with a copy of the minute entry and “note of ruling” reflecting this development, including counsel for the Tribe. On March 6, 2013, the State filed a petition to terminate both biological parents' parental rights based on failed treatment plans and the best interests of the child, and also sought legal custody for the purpose of approving adoption of S.B.C. by Foster Mother.

¶ 13 On April 10, 2013, the Tribe filed a motion to transfer jurisdiction to the Blackfeet Tribal Court. Birth Mother joined the motion, which was opposed by the State. The District Court initially issued an order granting the motion, but rescinded that order after the State filed an objection indicating it had a right to respond to the motion. The District Court conducted a hearing on the motion on May 14, 2013. The Tribe's new ICWA coordinator, Anna Fisher, testified that she believed S.B.C. should be removed from his current placement and placed within the Tribe. Specifically, Fisher testified S.B.C. should be placed with Biological Father, who she believed would provide care for the child with the assistance of Biological Father's mother. Fisher stated, “I think that, right now, in the best interest of [S.B.C.], I think that he would be better off with his own relatives,” and affirmed that Blackfeet culture “does not agree, in any event, of [sic] termination of parental rights.” Fisher further opined that Foster Mother was not only unable to properly care for S.B.C., but was also unqualified to raise the other three Native American children she had already adopted because of cultural differences between the children's tribe and the Foster Mother's tribe.³ When asked by Birth Mother's counsel if she thought “this case should have been transferred to the Blackfeet Tribe a long time ago,” Fisher answered, “Yes, I do ... it was somebody's fault. It fell apart.”

¶ 14 On June 3, 2013, the District Court issued its findings of facts, conclusions of law, and order denying the request to transfer jurisdiction. The court noted that the transfer motion was filed “547–days after [S.B.C.] was placed in his...