Matter of B.D. & N.D., YINC

Majority Ingrid Gustafson

01/28/2025 DA 24-0119 IN THE SUPREME COURT OF THE STATE OF MONTANA 2025 MT 21N IN THE MATTER OF: B.D. and N.D., Youths in Need of Care. APPEAL FROM: District Court of the Eighth Judicial District, In and For the County of Cascade, Cause Nos. BDN-21-92 and BDN-21-94 Honorable Elizabeth A. Best, Presiding Judge COUNSEL OF RECORD: For Appellant: Kelli S. Sather, Attorney at Law, Missoula, Montana For Appellee: Austin Knudsen, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana Joshua A. Racki, Cascade County Attorney, Valerie Winfield, Deputy County Attorney, Great Falls, Montana Submitted on Briefs: September 11, 2024 Decided: January 28, 2025 Filed: ir,-6L-.--if __________________________________________ Clerk  Justice Ingrid Gustafson 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 precedent. Its case title, cause number, and disposition shall be included in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 T.B. (Mother) appeals from the February 5, 2024 Order issued in cause numbers BDN-21-92 and BDN-21-94 by the Eighth Judicial District Court, Cascade County, which terminated her parental rights to her children B.D. and N.D. We affirm. ¶3 L.D, B.D., and N.D. are the biological children of Mother and K.D. (Father). The family first became involved with the Montana Department of Public Health and Human Services, Child and Family Services Division (Department), in 2016, after the Department started receiving reports beginning in 2015 related to Mother and Father using drugs and exposing the children to domestic violence. The children were removed by the Department and placed into foster care in 2016 because of exposure to illegal drugs (a hair sample from N.D. tested positive for methamphetamine, while B.D. was born addicted to drugs and needed to be treated for withdrawal), before returning to the home after the parents engaged in chemical dependency treatment. The children were again removed from the home by the Department in 2018 due to physical neglect, before being returned after the parents addressed the concerns of the Department. ¶4 In March 2021, the Department received a report that Father tried to strangle Mother, but did not formally intervene because Mother and the children had moved out of 2  the home. The Department also received reports that the children had missed their well check appointments and that N.D. had missed 94 days of school. In May 2021, Father allegedly assaulted Mother while the children were present in the home they shared with the children’s paternal grandmother, O.B. Child Protection Specialist (CPS) Paige D’Arpini met with the parents and O.B. following the incident. O.B., who falsely told CPS D’Arpini that Father was not home when asked, said the parents had been fighting and that she believed Mother was using illegal drugs. Father denied throwing anything at Mother and refused drug testing. Mother refused to leave the house or submit to drug testing and told CPS D’Arpini to “just take my kids.” O.B. was also requested to provide urinalysis (UA) and a hair sample. O.B.’s hair sample tested positive for methamphetamine and she admitted to using “once . . . due to being stressed out.” Law enforcement informed CPS D’Arpini that they had recently responded to the home to investigate money laundering, drug use, and domestic violence. The Department removed the children from the home and placed them in the Great Falls Children’s Receiving Home (CRH) on May 6, 2021. ¶5 On May 13, 2021, the Department filed a Petition for Emergency Protective Services (EPS), Adjudication as Youth in Need of Care (YINC), and Temporary Legal Custody (TLC). The Department’s Petition was made under the heightened burden of the Indian Child Welfare Act (ICWA), 25 U.S.C. § 1901 et seq., as the Department had reason to believe the children were Indian children because Mother identified as a Native American and part of the Blackfeet Tribe and Father identified as a Native American and part of the Chippewa Cree Tribe. That same day, the District Court granted EPS, ordered the appointment of either a guardian ad litem (GAL)/court-appointed special advocate 3  (CASA) or an attorney-GAL for the children, and set a show cause hearing for June 24. The Department sent notices of the hearing and requests for verification of Indian child status to both the Blackfeet Tribe and the Chippewa Cree Tribe. Both tribes responded with letters informing the Department the children were neither enrolled nor eligible for enrollment. After O.B. informed the Department that Mother may be a part of the Northern Cheyenne Tribe, the Department also sent a request for verification to that tribe. The Department filed a letter from the Northern Chyenne Tribe that stated neither the children nor any of the family members were enrolled. ¶6 L.D. ran away from the CRH on May 10, 2021. Neither the parents nor O.B. would tell CPS D’Arpini L.D.’s whereabouts after he ran away. On June 10, law enforcement responded to the home after a report that Mother tried to hit Father with a golf club and shattered a window on Father’s car with the club. Mother was arrested for partner or family member assault (PFMA), and officers also observed extensive evidence of illegal drug use in the home. L.D. was discovered at the home on June 15 and returned to the CRH, before running away again the next day. ¶7 The initial show cause hearing was continued because Father could not be located to be served with the Petition, while the rescheduled hearing was continued because the Department’s witness was unavailable. Attorney Anders Blewett was appointed as attorney-GAL on August 18, 2021. The show cause hearing ultimately occurred on September 9, 2021. At that hearing, CPS Teresa Larson, who had taken over the case from CPS D’Arpini, testified regarding the children’s removal, the special needs of the children, and the concerns regarding domestic violence, drug use, and unsanitary living conditions. 4  CPS Larson noted it was “very hard to maintain contact with” Mother and Father. ICWA Qualified Expert Witness (QEW) Anna Fisher also testified at the show cause hearing. QEW Fisher testified that the parents continued custody would likely result in serious emotional or mental damage to the children. The District Court orally adjudicated the children as YINCs following QEW Fisher’s testimony. The Department then informed the court that it had “submitted documentation from all three tribes in this case that say the youth are not enrolled or eligible for Northern Cheyenne, Blackfeet, or Chippewa Cree” and that it did not believe ICWA was applicable to the case. QEW Fisher interjected to state that the children were eligible for enrollment, at least in the Northern Cheyenne Tribe, and that she did not “care what you got, documentation you got, but you’re wrong.” The District Court’s written Order adjudicating the children as YINCs and granting TLC to the Department until the dispositional hearing followed on September 15. That Order noted the Department had made diligent efforts to determine the applicability of ICWA and received documentation from all three tribes that the children were not enrolled or enrollable. The District Court therefore determined ICWA did not apply. ¶8 The District Court held a dispositional hearing on September 30, 2021. Mother did not personally attend the hearing. The District Court approved the proposed treatment plans for both Mother and Father and granted TLC to the Department. Mother’s treatment plan included tasks related to drug testing, chemical dependency, mental health, and family services. The court’s written Order approving the plans, issued on October 7, again found that ICWA did not apply. At a December 26, 2021 status hearing, CPS Larson reported that Mother had a negative drug patch in November, but did not return her next drug patch 5  for testing and stopped contact with the Department. The District Court held a review hearing on March 31, 2022. CPS Craig Patera, who had taken over the case from CPS Larson, provided an update noting L.D. was still a runaway and had not been found and he had “zero” contact with either parent. CPS Patera also stated the Department was seeking to find a placement for the children, which was difficult due to their high needs, and that O.B. was the only relative who could be a placement option, but the Department was unsure if it would be an appropriate placement because O.B. was “struggling” and would not have a place to live for another month. ¶9 The District Court held a status hearing on June 30, 2022. CPS Aimie Arnold was now assigned to the case and provided an update to the court. CPS Arnold noted both Mother and Father were not in contact with the Department. O.B. was in contact and attended visits with the children, but the children’s behavior at the CRH would worsen after the visits. CPS Arnold also noted the Department was concerned with O.B.’s safety capacity because she knew where L.D. was but refused to tell the Department. CPS Arnold informed the court she performed another Seneca search in hopes of finding a family placement and was also in contact with the Chippewa Cree Tribe regarding assistance in finding a placement. The court held a review hearing on September 29. At that time, neither parent had completed any of their treatment plan tasks and their locations were unknown to the Department. O.B. attended the hearing, and CPS Arnold related that, while O.B. wished to be a placement option, the Department still had concerns related to her protective capacity and O.B. did not currently have a home. The District Court again extended TLC. 6  ¶10 The District Court held a status and permanency plan hearing on January 5, 2023. The case had now been assigned to CPS Hailey Powell. CPS Powell informed the court she had sent another verification request to the Northern Cheyenne Tribe and that O.B. informed her she was filling out an application to enroll the children in the Chippewa Cree Tribe. CPS Powell stated she did not know L.D.’s whereabouts and that O.B. had spoken with him but did not have his contact information or location. CPS Powell further related that she found Mother through Facebook and had set up a meeting. For the first time, Mother personally appeared at this hearing. The court encouraged Mother to work with the Department and stay in contact with her attorney. The Department asked to continue the permanency plan hearing due to Mother’s reappearance. The continued permanency plan hearing occurred on February 16. Mother did not appear, but Father and O.B. were personally present for this hearing. CPS Powell informed the court she had set six meetings with Mother, who had no-called/no-showed five of them and was no longer in contact with her. Father and O.B. stated L.D. was with Father’s uncle in Havre, but neither could provide a phone number or address. The District Court approved the Department’s proposed permanency plan. ¶11 On March 1, 2023, the Department filed a Petition for Termination of Parental Rights, asserting termination of both Mother’s and Father’s parental rights was appropriate due to abandonment and the parents’ failure to comply with their treatment plans. The District Court held a review hearing on March 23. Mother and O.B. personally appeared at this hearing. CPS Powell informed the court the Department intended to let its petition related to L.D. lapse because he was turning 17. CPS Powell had again submitted 7  verification requests to the Northern Cheyenne Tribe, Blackfeet Tribe, and Chippewa Cree Tribe. Mother did not object to the extension of TLC, but noted she would likely contest the termination petition and questioned why O.B. was not a placement option. CPS Powell reiterated the Department’s safety concerns related to O.B. and noted O.B. had not been drug tested since the beginning of the case, when she tested positive for methamphetamine. The court asked if O.B. was willing to do a drug test, and O.B. replied she would. Though CPS Powell helped to arrange a drug test and offered to drive O.B., O.B. either did not show up or rescheduled several times and never took the test. ¶12 On July 1, 2023, the Montana Indian Child Welfare Act (MICWA), providing a state counterpart to the federal ICWA statute, took effect. 2023 Mont. Laws ch. 716, §§ 1-18. The District Court held a termination hearing on July 27, 2023. At the outset of that hearing, the State informed the court that B.D. and N.D. were now eligible for enrollment in the Chippewa Cree Tribe due to a new tribal resolution. Accordingly, all parties now agreed that B.D. and N.D. were Indian children and ICWA and MICWA applied to the case. Autumn Henderson, representing the Chippewa Cree Tribe, was present for this hearing. CPS Powell again related her difficulty with contacting the parents as neither would provide her with a current address or phone number. Father, who attended this hearing, provided CPS Powell with an address and phone number when prompted by the District Court. ¶13 The Department filed a new Petition for Termination of Parental Rights, pursuant to the heightened standard of ICWA, on July 28, 2023. The District Court held a termination hearing on September 7. Neither Mother nor Father personally appeared. At 8  that hearing, the court noted it was “trying really hard to comply with ICWA.” The termination hearing was continued as there was not a QEW present. On October 1, 2023, an amendment to § 41-3-425(2)(b), MCA, which removed a court’s discretion to appoint counsel for a child with an appointed GAL in a YINC case and required a court to appoint counsel for the child came into effect.1 2023 Mont. Laws ch. 655, § 1. At that time, the District Court did not appoint counsel for the children. The continued termination hearing resumed on October 26, 2023. QEW AnnaMarie White and Chippewa Cree Tribe representative Jaynah Gopher were both present. CPS Powell testified to her repeated, unsuccessful attempts to locate and serve the parents. CPS Powell made numerous trips to the addresses Mother and Father had provided to the court—the court referred to CPS Powell’s efforts to contact Mother as “herculean[.]”2 The District Court noted it was “requir[ing] explicit, to the letter following of the ICWA requirements,” but was “not going to allow parents who have decided they’re not going to play to weave their way through and avoid service and then cry foul.” Paige Thomas, a mental health and addiction counselor at Alluvion Health, testified regarding Mother’s participation in mental health and addiction services. While Mother completed her initial evaluations, she never returned for follow-up appointments. Father’s counsel again expressed O.B.’s desire to be a 1 Both Mother and the State incorrectly claim this provision came into effect on July 1, 2023, through the passage of MICWA. The amendment to § 41-3-425(2)(b), MCA, occurred not through MICWA, but via SB 148, which became effective on October 1, 2023. 2 When she arrived at the address given to the court by Father during the July 27 hearing, CPS Powell was informed by the person living there that they barely knew Father and that Father had never lived there. 9  placement option for the children. The District Court continued the termination hearing, which resumed on December 14. At that hearing, the matter was again continued, this time because counsel for the children needed to be appointed in accordance with § 41-3-425(2)(b), MCA. The District Court issued an Order to Appoint Counsel for the Youths on December 20. Attorney Allen Lanning was appointed to represent the children on January 30, 2024. ¶14 The termination hearing resumed on February 1, 2024. Neither Mother nor Father appeared at this hearing. Attorney Lanning, representing B.D. and N.D., informed the District Court that he supported the termination petition and it was in their best interests. Lanning stated he would have requested a continuance if it were a close case, but it was not and termination was necessary to improve the children’s chances at permanency due to their high needs and the fact the matter had already been ongoing for 33 months. Lanning further mentioned that he believed the Department worked with O.B. “as diligently as it could,” but she did not have the “assets or stability to be a viable placement” and did not cooperate with the court’s requested drug test. Counsel for the parents then raised the issue of whether O.B. may be considered an Indian custodian, which would give her party status and necessitate the appointment of an attorney for her. The District Court noted the “issue has never been raised before,” so it was going to “proceed as though we have all of the correct parties here.” The court heard the testimony of CPS Arnold, CPS Powell, and QEW White. CPS Arnold testified to her efforts to contact and consult with the tribes; to how difficult it was to communicate with the parents, including never meeting Mother in person; to Mother’s chronic skipping of scheduled visits with the children; and to her concerns 10  with O.B. as a placement option. CPS Powell testified to similar difficulties with contacting the parents, including Mother’s phone number often changing and/or being disconnected. In addition to attempting to reach out through phone and Facebook messages, CPS Powell visited Mother’s residence in person 19 times and Mother answered the door only 3 or 4 times. CPS Powell also testified to her contact with the tribes and efforts to find family placements. QEW White testified that the Department made active efforts to reunify the children with the parents but the efforts were unsuccessful and continued custody would likely result in serious emotional or physical damage to the children. The District Court determined the Department did make active efforts, which were unsuccessful due to the lack of engagement from the parents, and orally granted the State’s petition for termination. ¶15 On February 5, 2024, the District Court issued its written Order, which terminated Mother and Father’s parental rights. The court noted the specific active efforts the Department made to prevent the breakup of the Indian family, but found Mother and Father abandoned the children, did not complete their treatment plans, and that the conduct or condition rendering them unfit to parent was unlikely to change within a reasonable time. Mother appeals the termination of her parental rights. ¶16 We review a district court’s termination of a person’s parental rights for an abuse of discretion under both ICWA 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 a district court acts arbitrarily, without employment of conscientious judgment, or exceeds the bounds of reason resulting in substantial injustice. In re X.M., 2018 MT 264, ¶ 17, 393 Mont. 210, 11  429 P.3d 920 (citing In re K.A., 2016 MT 27, ¶ 19, 382 Mont. 165, 365 P.3d 478). We review a district court’s findings of fact for clear error and its conclusions of law for correctness. In re M.V.R., 2016 MT 309, ¶ 23, 385 Mont. 448, 384 P.3d 1058. ¶17 A court may order the termination of a parent-child relationship if a parent has abandoned the child. Section 41-3-609(1)(b), MCA. In addition, § 41-3-609(1)(f), MCA, protects a parent’s fundamental right to the care and custody of a child in termination proceedings. In re E.Y.R., 2019 MT 189, ¶ 26, 396 Mont. 515, 446 P.3d 1117. A court may terminate the parent-child relationship of a YINC when: (1) an appropriate courtapproved treatment plan was not complied with by the parents or was not successful; and (2) the conduct or condition of the parents rendering them unfit was unlikely to change within a reasonable time. Section 41-3-609(1)(f), MCA. Under ICWA, the criteria for termination under § 41-3-609(1)(f), MCA, must be supported by evidence beyond a reasonable doubt. In re K.L.N., 2021 MT 56, ¶ 19, 403 Mont. 342, 482 P.3d 650. Under both ICWA and MICWA, the district court is required to make a specific finding that “active efforts were made to prevent the breakup of the Indian family and the efforts were unsuccessful.” 25 U.S.C. § 1912(d); § 41-3-1320(2)(a), MCA. In addition, the district court must determine the continued custody of the child by the parent is “likely to result in serious emotional or physical damage to the child.” 1320(2)(b), MCA; § 41-3-609(5), MCA. 25 U.S.C. § 1912(f); § 41-3- This determination must be supported by evidence beyond a reasonable doubt, including the testimony of a QEW. 25 U.S.C. § 1912(f); § 41-3-1320(2)(b), MCA; § 41-3-609(5), MCA. 12  ¶18 In this case, Mother’s parental rights were terminated as the District Court found, beyond a reasonable doubt, that Mother had both abandoned the children and failed to complete her treatment plan. On appeal, Mother does not contest that the statutory criteria for termination were met in this case. Instead, Mother asserts the District Court failed to enforce the requirements of ICWA and MICWA. Specifically, Mother contends the Department failed to sufficiently investigate whether B.D. and N.D. were Indian children or make active efforts to reunify the family, including an assertion that O.B. should have been designated as an Indian custodian and appointed an attorney. ¶19 This case began as an ICWA case as, at the time of removal, the Department had a reason to know B.D. and N.D. may be Indian children subject to the act. The Department sent requests for verification to all three tribes implicated in the case, each of which responded with verification letters stating the children were not enrolled or eligible to be enrolled. “While the question of whether a child is eligible for tribal membership is a question of fact dependent on the child’s actual ancestry, it is a not a question of fact for de novo determination by district courts. Except as otherwise limited by federal statute or treaty, Indian tribes have the sole power to determine their membership and membership eligibility.” In re L.D., 2018 MT 60, ¶ 14, 391 Mont. 33, 414 P.3d 768. Accordingly, “[a]n Indian tribe’s determination of its membership or membership eligibility is conclusive as a matter of law.” In re L.D., ¶ 14 (citing In re Adoption of Riffle, 273 Mont. 237, 242, 902 P.2d 542, 545 (1995)); see also § 41-3-1306(7), MCA (“A written determination by an Indian tribe regarding the child’s status as an Indian child is conclusive that the child is an Indian child.”). The Department sent multiple requests for verification to the tribes after 13  the children’s removal and received letters from each that the children were not enrolled or enrollable prior to the September 9, 2021 show cause hearing. The District Court’s determination at that time that ICWA did not apply was not an abuse of discretion because the letters from the tribes stating the children were not enrolled or enrollable were conclusive as a matter of law. In re L.D., ¶ 14. The Department continued to follow up with the tribes and ultimately learned on July 27, 2023, that the children were eligible for enrollment in the Chippewa Cree Tribe. The District Court immediately applied ICWA to the case, the Department filed an ICWA-compliant Petition the next day, ICWA standards were followed at the termination hearing, and the court applied ICWA’s heightened requirements when finding termination appropriate. The court specifically listed 15 actions taken by the Department constituting “active efforts” to reunify the family, which failed due to the lack of engagement from the parents and their abandonment of the children. ¶20 Mother also asserts the District Court should have sua sponte declared O.B. an Indian custodian, made her a party to the case, and appointed her an attorney. Under ICWA, an Indian custodian is defined as an “Indian person who has legal custody of an Indian child under tribal law or custom or under State law or to whom temporary physical care, custody, and control has been transferred by the parent of such child[.]” 25 U.S.C. § 1903(6); see also § 41-3-1303(11), MCA. Mother contends O.B. meets this definition because she was living with Mother, Father, and the children at the time of removal and therefore was an Indian custodian pursuant to tribal custom. We are not persuaded by this argument. Nothing in the record shows either Mother or Father had transferred any type of custody to O.B., they were simply living in a house together—a house that, according 14  to the record, was apparently used by several people while they were committing various crimes. O.B. tested positive for methamphetamine at the start of the case. She later agreed to be drug tested upon request of the District Court, but missed all of her appointments and ultimately refused testing. O.B. attended some visits with the children, which were ultimately stopped because the children’s behavior would worsen after those visits. O.B. concealed L.D.’s whereabouts from the Department and the District Court and attempted to conceal Father’s whereabouts from the Department and the police. While she attended most hearings, O.B. made no claim that she was an Indian custodian. The first time the issue was even obliquely raised was during the February 1, 2024 termination hearing by counsel for the parents, who “[couldn’t] really argue either way” because neither parent was present. The District Court not sua sponte declaring O.B. an Indian custodian is not an abuse of discretion on this record. ¶21 Mother further asserts B.D. and N.D.’s constitutional and statutory rights to counsel were violated by not having an attorney appointed to represent them sooner. First, Mother lacks standing to assert B.D. and N.D.’s constitutional right to counsel. In re T.D.H., 2015 MT 244, ¶ 24, 380 Mont. 401, 356 P.3d 457. Second, the children’s statutory right to counsel came into being on October 1, 2023, not July 1, 2023, as claimed by Mother and the State, approximately 29 months after the children were removed by the Department. Section 41-3-425(2)(b), MCA (2023 Mont. Laws ch. 655, § 1). While the District Court should have appointed counsel that day, it did not. The court did issue an order appointing counsel on December 20, 2023, and the children were represented by counsel (who supported the petition for termination) during the termination hearing. In a case governed 15  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 and will not reverse a district court’s termination of parental rights for an error that would not have a significant impact on the result. In re S.B., 2019 MT 279, ¶ 25, 398 Mont. 27, 459 P.3d 214. The two-and-a-half-month delay in appointing the children counsel would not have had a significant impact on the result in this case and reversal based upon the court’s error in not appointing B.D. and N.D. counsel sooner than it did is unwarranted. ¶22 From our review of the record, and pursuant to the applicable standard of review, we conclude the District Court’s decision to terminate Mother’s parental rights was not an abuse of discretion. At the time of termination, the children had been in foster care for at least 15 of the most recent 22 months—33 out of the last 33 months in this case—and termination of Mother’s parental rights was presumed to be in the best interests of the children. Section 41-3-604(1), MCA. The record clearly demonstrates Mother’s failure to complete her treatment plan—while she eventually completed initial mental health and chemical dependency evaluations, she soon after completely disengaged and never returned for any sessions, repeatedly admitted to using methamphetamine, was nearly impossible for the Department to maintain contact with, and missed numerous scheduled visits with the children. Mother had not visited either of the children since 2022 and had not made efforts to demonstrate her intent to assume care and custody of the children. The District Court correctly found the conduct or condition rendering Mother unfit to parent was unlikely to change within a reasonable time. The District Court’s abandonment and 16  failure to complete treatment plan determinations are both supported by the evidence beyond a reasonable doubt. Any claimed errors related to not applying ICWA/MICWA sooner, O.B.’s status as an Indian custodian, or the children not being appointed counsel sooner—to the extent they may even be considered errors under the facts of this case— would not have a significant impact on the result. In re S.B., ¶ 25. Accordingly, the termination of Mother’s parental rights was not an abuse of discretion. ¶23 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. ¶24 Affirmed. /S/ INGRID GUSTAFSON We Concur: /S/ JAMES JEREMIAH SHEA /S/ BETH BAKER /S/ LAURIE McKINNON /S/ JIM RICE 17