Matter of D.Y.H.-J. and R.J., YINC

Majority Laurie McKinnon

05/14/2024 DA 23-0551 IN THE SUPREME COURT OF THE STATE OF MONTANA 2024 MT 103N IN THE MATTER OF: D.Y.H.-J. and R.J., Youths in Need of Care. APPEAL FROM: District Court of the Eighth Judicial District, In and For the County of Cascade, Cause Nos. BDN-19-146 and BDN-19-147 Honorable Elizabeth A. Best, Presiding Judge COUNSEL OF RECORD: For Appellant: Austin Wallis, Hathaway Law Group, Whitefish, Montana For Appellee: Austin Knudsen, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana Josh Racki, Cascade County Attorney, Rachelle Lynn, Deputy County Attorney, Great Falls, Montana Submitted on Briefs: April 10, 2024 Decided: May 14, 2024 Filed: ( •,--c,---,f __________________________________________ Clerk  Justice Laurie McKinnon delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 Q.B.J. (Father) appeals from the Amended Order terminating his parental rights to his children, D.Y.H-J. and R.J., issued by the Montana Eighth Judicial District Court, Cascade County, on August 23, 2023. We affirm. ¶3 We first addressed the issues present in this case in our previous memorandum opinion In re D.Y.H-J, 2023 MT 156N, 413 Mont. 531, 533 P.3d 676 (hereinafter D.Y.H-J. 1). We refer to that opinion for the relevant factual background. D.Y.H-J. 1, ¶¶ 3-12. In that case, we held the record was insufficient for us to determine whether the District Court applied the correct evidentiary standard of beyond a reasonable doubt required by 25 U.S.C. § 1912(f) for terminating parent rights in an Indian Child Welfare Act (ICWA) case. D.Y.H-J. 1, ¶¶ 17, 20. Additionally, we found the District Court did not provide detailed findings as to whether the Department of Health and Human Services (Department) made active efforts to provide services and programs designed to prevent the breakup of the Indian family and that the efforts have proven unsuccessful as required by 25 U.S.C. § 1912(d). D.Y.H-J. 1, ¶ 20. We remanded to the District Court to “enter a new order to ‘document in detail’ if the Department met its burden of providing ‘active efforts’ by clear and convincing evidence prior to removal and beyond a reasonable doubt prior to termination pursuant to 25 U.S.C. § 1912(d) and 25 C.F.R. 23.2, and to conduct any additional proceedings it determines necessary to make this determination.” D.Y.H-J. 1, 2  ¶ 20. We stated if the District Court determined the Department’s efforts did meet the heightened evidentiary standard, then it could issue an order terminating Father’s parental rights detailing the efforts. D.Y.H-J. 1, ¶ 20. If the District Court found the Department did not meet the heightened standard of proof, then it must conduct further proceedings necessary to meet the standard. D.Y.H-J. 1, ¶ 20. The District Court issued a new order (Amended Order) on August 23, 2023, without conducting any additional hearings, finding beyond a reasonable doubt the Department had engaged in active efforts to prevent the breakup of the Indian family and that those efforts had been unsuccessful. The Amended Order identified specific active efforts the Department provided Father to prevent the breakup of the family, including counseling for both Father and the Youths; multiple referrals to housing, financial, and transportation providers; chemical dependency treatment for Father; different avenues for addressing Father’s cultural heritage; and more.1 1 The relevant portion of the Amended Order provided: Evidence beyond a reasonable doubt establishes that appropriate, active efforts were made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family. Those efforts included: a. This case began on May 1, 2019 after Father engaged in a strangling and other violence incident with his female companion in the family home in front of the Youth in this case. Another case was initiated in 2017 for similar behavior and the children were in foster care for about 7 months. Father was also shooting up drugs in the home, in the presence of the children. Mother was missing throughout this case. b. Because professionals had diagnosed at least one child (R.J.) with Reactive Attachment Disorder, associated with her need to have a “safe place” and her own space, and the need to move slowly to find a provider for Parent Child Interactive Therapy (PCIT) to gradually bring Father back into the Youths’ lives, the Department attempted to work with him and providers begin PCIT. R.J. was “adamant” that counseling was her safe space, and she expressed strong desire not to bring her Father into [] her own personal counseling. Both Youth were observed 3  ¶4 Father argues on appeal that the Department failed to make active efforts to provide him with services which would prevent the breakup of his Indian family. We review a district court’s termination of a person’s parental rights for an abuse of discretion under both ICWA, Title 25, Chapter 21, U.S.C. and Title 41, Chapter 3, MCA. In re B.Y., 2018 MT 309. ¶ 7, 393 Mont. 530, 432 P.3d 129. An abuse of discretion occurs when “the trial court to be extremely “dysregulated” when they did visit Father, and their uncontrolled behavior escalated significantly after each visit with him, resulting in deterioration of their mental health, school work, and social activities. c. Nearly all of the below efforts were made during the COVID pandemic, which hamstrung the Department, families, and the court system; d. actively assisting Father with multiple referrals to providers and community resources for housing, financial, transportation, mental health, substance abuse, and peer support services; e. arranging visits for Father when he lived in Great Falls, and when he suddenly left for Billings and Butte. He slept through or missed some of these visits; f. Arranging for treatment for chemical dependency and drug monitoring patches, the procedures for which with [] Father did not cooperate; g. Calling Father during the week to arrange weekend visits in Great Falls, at his request when he was living in Billings, which Father did not answer or respond; h. providing prepaid envelopes for the Father to write to his children during his incarceration; i. reaching out to relatives in South Dakota and Nebraska to establish a family tribal connection with the Youths. The relatives did not respond in a meaningful way to entreaties to visit; j. attempting to achieve a placement with family in Nebraska through an ICPC, which was unsuccessful through no fault of the Department, but rather because placements proposed were inappropriate; k. reaching out to the Tribe for feedback and input on appropriate tribal or cultural practices, again without any meaningful assistance, despite repeated attempts; l. encouraging and cultivating an interest in the foster family in providing appropriate cultural practices and education for the Youths; m. assigning to Father a culturally competent family advocate to incorporate culturally appropriate activities during visits, including smudging; n. continuing to engage Father in services for reunification significantly longer than the statutory presumption of seeking termination after fifteen (15) months; o. AnnaMarie White, the ICWA expert, testified that the Tribe made active efforts; p. The Tribe itself concluded that the Department had made active efforts; and q. Unfortunately, all active efforts were unsuccessful. 4  acted arbitrarily, without employment of conscientious judgement, or exceeded the bounds of reason resulting in substantial injustice.” In re D.B., 2007 MT 246, ¶ 16, 339 Mont. 240, 168 P.3d 691 (quoting In re K.J.B., 2007 MT 216, ¶ 22, 339 Mont. 28, 168 P.3d 629). We review a district court’s factual findings for clear error. In re D.E., 2018 MT 196, ¶ 21, 392 Mont. 297, 423 P.3d 586. A finding of fact is clearly erroneous when the finding is not supported by substantial evidence, the court misapprehended the effect of the evidence, or if review of the record convinces us a mistake was made. B.Y., ¶ 7. ¶5 We review a district court’s conclusion of law de novo for correctness. D.E., ¶ 21. “In a case governed by ICWA, we will uphold the district court’s termination of parental rights if a reasonable fact-finder could conclude beyond a reasonable doubt that continued custody by the parent is likely to result in serious emotional or physical damage to the child.” In re S.B., 2019 MT 279, ¶ 25, 398 Mont. 27, 459 P.3d 214 (quoting In re K.B., 2013 MT 133, ¶ 18, 370 Mont. 254, 301 P.3d 836). We will not reverse a district court’s termination of parental rights for an error that would not have a significant impact on the result. S.B., ¶ 25. ¶6 25 U.S.C. § 1912(d) provides: Any party seeking to effect a foster care placement of, or termination of parental rights to, an Indian child under State law shall satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proven unsuccessful. Foster care placement cannot be ordered in ICWA cases in the absence of a determination supported by clear and convincing evidence that the continued custody of the child by the 5  parent or custodian is likely to result in serious emotional or physical damage to the child. 25 U.S.C. § 1912(e). Similarly, a termination of parental rights cannot be ordered without a determination by evidence beyond a reasonable doubt that continued custody is likely to result in serious emotional or physical damage to the child. 25 U.S.C § 1912(f). The district court must document in detail in the record that active efforts have been made by the Department to prevent the breakup of the family by clear and convincing evidence prior to removal and beyond a reasonable doubt prior to termination. B.Y., ¶ 9 (citing 25 C.F.R. 23.120). ¶7 Federal regulation defines active efforts as: Active efforts means affirmative, active, thorough, and timely efforts intended primarily to maintain or reunite an Indian child with his or her family. Where an agency is involved in the child-custody proceeding, active efforts must involve assisting the parent or parents or Indian custodian through the steps of a case plan and with accessing or developing the resources necessary to satisfy the case plan. To the maximum extent possible, active efforts should be provided in a manner consistent with the prevailing social and cultural conditions and way of life of the Indian child’s Tribe and should be conducted in partnership with the Indian child and the Indian child’s parents, extended family members, Indian custodians, and Tribe. Active efforts are to be tailored to the facts and circumstances of the case and may include, for example: (1) Conducting a comprehensive assessment of the circumstances of the Indian child’s family, with a focus on safe reunification as the most desirable goal; (2) Identifying appropriate services and helping the parents to overcome barriers, including actively assisting the parents in obtaining such services; (3) Identifying, notifying, and inviting representatives of the Indian child’s Tribe to participate in providing support and services to the Indian child’s family and in family team meetings, permanency planning, and resolution of placement issues; (4) Conducting or causing to be conducted a diligent search for the Indian child’s extended family members, and contacting and consulting with 6  extended family members to provide family structure and support for the Indian child and the Indian child’s parents; (5) Offering and employing all available and culturally appropriate family preservation strategies and facilitating the use of remedial and rehabilitative services provided by the child’s Tribe; (6) Taking steps to keep siblings together whenever possible; (7) Supporting regular visits with parents or Indian custodians in the most natural setting possible as well as trial home visits of the Indian child during any period of removal, consistent with the need to ensure the health, safety, and welfare of the child; (8) Identifying community resources including housing, financial, transportation, mental health, substance abuse, and peer support services and actively assisting the Indian child’s parents or, when appropriate, the child’s family, in utilizing and accessing those resources; (9) Monitoring progress and participation in services; (10) Considering alternative ways to address the needs of the Indian child’s parents and, where appropriate, the family, if the optimum services do not exist or are not available; (11) Providing post-reunification services and monitoring. 25 C.F.R. §23.2. ¶8 We conclude the District Court did not abuse its discretion when it held the Department made active efforts to prevent the breakup of the Indian family by clear and convincing evidence prior to removal and beyond a reasonable doubt prior to termination. First, addressing active efforts to prevent removal, Father was arrested for domestic violence against his girlfriend and could not care for the children because of his detention. Father did not identify any possible family placements or caregivers for the children while Mother was in another state. Therefore, it was not possible for the Department to find a family placement for the children that night. The Department also conducted a search for extended family members, but none were available for placement at the time. The Department claimed that due to the emergent nature of the case, additional active efforts were not possible. We have previously held “[i]t is unrealistic, given the complex nature of 7  the issues involved with abuse and neglect proceedings as well as the often emergent circumstances, to require DPHHS to demonstrate compliance with § 1912(d) prior to a show cause hearing on the underlying proceeding.” In re G.S., 2002 MT 245, ¶ 34, 312 Mont. 108, 59 P.3d 1063. The District Court correctly concluded there was clear and convincing evidence the Department made active efforts to prevent the breakup of the family prior to the initial removal. ¶9 Second, we agree the Department made active efforts beyond a reasonable doubt to reunite the family before termination of Father’s parental rights. Father contends that after the initial removal, the children should have been placed back into his care as soon as possible and that the Department did not engage in active efforts to assist him with obtaining services. However, the children could not be returned to Father while he was homeless and did not have adequate housing for them. Additionally, even though the initial domestic violence incident was resolved when Father moved out from the girlfriend’s house, the Department still had to conduct due diligence in determining whether placement back with Father would be detrimental to the children’s physical and emotional interests, especially considering the children had been removed once before for domestic violence and drug use in 2017. See In re T.D.H., 2015 MT 244, ¶ 30, 380 Mont. 401, 356 P.3d 457. The ICWA expert Anna Fisher, at the first show cause hearing, testified the children would be at risk of emotional and physical harm if placed back with Father. At the first show cause hearing, the Department expressed willingness to assist Father in getting the children placed with him if he could secure housing at the Cameron Center and would continue attending treatment, but Father ultimately chose not to move into the Cameron Center. 8  ¶10 The Department attempted to work with Father to connect him with services and complete his treatment plan, but Father’s contact with the Department was sporadic and he was in legal trouble multiple times after the children’s removal for more domestic violence. When considering whether “active efforts” were made, a court may consider the parent’s failure to participate. In re D.B.S., 2013 MT 112, ¶ 15, 370 Mont. 37, 300 P.3d 702. Additionally, while the Department must still attempt to make active efforts if the parent is incarcerated, “we will not fault the State if its efforts are curtailed by the parent’s own criminal behavior.” D.B.S., ¶ 15. Father did in fact obtain mental health and chemical dependency services multiple times throughout the proceedings but often failed to complete them or got in more legal trouble for domestic violence. The Department also facilitated visits with Father throughout the whole process, though the Department eventually had to supervise visits after the children displayed increased behavioral issues following Father’s visits. Additionally, the Department only initiated termination proceedings after Father had failed to make tangible progress on his treatment plan during nearly three years of the Department attempting to reunify the family. ¶11 Father did request early during the proceedings that the children be placed with his mother, though she was in another state. While the Department could have initiated the process for the Interstate Compact for the Placement of Children (ICPC) sooner, the outcome would not have changed since the ICPC was attempted and denied later. An ICPC for an aunt was also indicated but rejected. Further, the Department was continuously in communication with the Rosebud Sioux Tribe about potential placements, though the Tribe did not have an ICWA-compliant placement available and did approve of the foster care 9  placement. There was also an attempt to place the children with their mother in another state but she was incarcerated and could not take care of them. Although some of these efforts to place the child with other family members may have been unnecessarily delayed, the Department still investigated all potential avenues to place the children with family members, and ultimately a suitable placement could not be found. ¶12 Further, in denying a motion to transfer to tribal court, the Rosebud Sioux Tribal Court Judge concluded that the Department had made active efforts to reunify the family but that Father had resisted these efforts toward unification. Father refers to tribal representative Lloyd Guy’s comments during some of the hearings as support that the Tribe did not actually think active efforts had been made. However, the Tribal Judge never issued a contrary determination and the district court was in the best position to weigh the Tribal Judge’s determination and Guy’s comments. We do not reweigh evidence on appeal or consider whether the evidence could have led to a different reasonable conclusion. In re A.K., 2015 MT 116, ¶ 31, 379 Mont. 41, 347 P.3d 711. ¶13 Substantial credible evidence supports the District Court’s finding beyond a reasonable doubt that the Department made active efforts to prevent the breakup of the Indian family. The District Court’s findings of fact are not clearly erroneous and its application of ICWA requirements in the amended order comply with the law. ¶14 Lastly, we address whether the amended order complies with the mandate of our previous order in D.Y.H-J. 1. Father alleges the failure of the District Court to hold a hearing after remand means it violated the directive to apply the correct burden of proof and document active efforts of the Department. However, our previous order did not necessitate 10  that a new hearing must be held, it only ordered the District Court to apply the correct burden of proof and document in detail the active efforts undertaken by the Department. We left it to the District Court’s discretion to determine if a new evidentiary hearing was necessary, and the court determined there was ample evidence to review without conducting another hearing. The amended order complied with our directive as it applied the correct standard of proof and provided detail about the Department’s alleged active efforts to prevent the breakup of the family. ¶15 We conclude the District Court’s order complies with our previous order in D.Y.H-J.1 and affirm the District Court’s conclusion that the Department did engage in active efforts to unify the family beyond a reasonable doubt before pursuing termination. ¶16 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules, which provides for memorandum opinions. In the opinion of the Court, the case presents a question controlled by settled law or by the clear application of applicable standards of review. ¶17 Affirmed. /S/ LAURIE McKINNON We Concur: /S/ MIKE McGRATH /S/ JAMES JEREMIAH SHEA /S/ DIRK M. SANDEFUR /S/ JIM RICE 11