417 P.3d 342
Mont.2018Background
- A.L.D., born July 2015, is an Indian child; both parents tested positive for controlled substances at birth and Department opened neglect proceedings.
- Father (M.D.) sought paternity testing, was intermittently incarcerated, missed many contacts and visits, and failed to engage in his treatment plan.
- The Department provided referrals for drug testing/treatment, arranged visits, contacted extended family and the tribe, and assisted the mother with tribal enrollment and services.
- The child was placed in non-ICWA-preference foster care after efforts to locate suitable ICWA-preferred placements (including tribal searches) were unsuccessful; placement was not permanent at time of termination.
- District Court terminated both parents’ rights after finding the Department made active efforts, father’s condition/behavior unlikely to change, and termination served the child’s best interests.
Issues
| Issue | Father’s Argument | Department’s Argument | Held |
|---|---|---|---|
| Whether the Department made the "active efforts" required by 25 U.S.C. § 1912(d) | Department failed to provide required active efforts specific to Father | Department made active efforts; Father’s criminal conduct and nonengagement curtailed efforts | Affirmed: District Court correctly found active efforts were made and unsuccessful |
| Whether placement violated ICWA placement preferences (25 U.S.C. § 1915) | Department did not conduct a diligent search or follow placement preferences; court’s "good cause" finding conclusory | Tribe and Department searched; no appropriate ICWA-preferred placement found; placement was temporary and searches continue | Affirmed: no reversible error; finding that searches failed is not clearly erroneous; preferences remain for future placement |
| Whether 2015 ICWA Guidelines / 2016 Regulations should alter review | Father urged court to apply Guidelines/Regulations to require additional steps | Court noted Guidelines/Regs apply automatically to subsequent proceedings; no separate adoption necessary | Court applied Guidelines as persuasive but found record adequate under existing law; no change in outcome |
| Whether Father's counsel was ineffective | Counsel failed to cross-examine ICWA expert on active efforts and failed to object to permanency plan/placement | Counsel’s omissions did not show prejudice; ICWA expert did not testify on active efforts; permanency hearing concern was not a placement decision | Affirmed: counsel not shown ineffective; no prejudice established |
Key Cases Cited
- In re K.B., 301 P.3d 836 (Mont. 2013) (standard for upholding ICWA-governed termination: proof beyond reasonable doubt that continued custody likely to cause serious harm)
- In re A.S., 87 P.3d 408 (Mont. 2004) (plenary review for ineffective-assistance claims in termination proceedings)
- In re M.S., 336 P.3d 930 (Mont. 2014) (parental criminal behavior can limit what active efforts a state can reasonably provide)
- In re D.S.B., 300 P.3d 702 (Mont. 2013) (court may consider efforts directed to the other parent when evaluating total active efforts)
- In re C.H., 997 P.2d 776 (Mont. 2000) (ICWA Guidelines are persuasive and may be applied in state ICWA cases)
- In re C.B.D., 394 P.3d 202 (Mont. 2017) (appeal of termination does not necessarily moot placement challenges)