In re J.S., 374 Mont. 329

Background

J.S., an enrolled member of the Curyung Tribe, was removed from his mother’s care in 2001 and placed in Department custody; paternity for S.F. (father) was confirmed in 2004.
J.S. lived with foster parents since 2006 and expressed a long-standing preference to remain with them; several siblings were with the same foster family.
The Department pursued termination of S.F.’s parental rights multiple times; proceedings included treatment plans, a permanency plan, and a guardianship petition filed in 2012.
The Curyung Tribe intervened in 2008, later declined to assume jurisdiction, and supported guardianship with the foster family.
At the guardianship hearing a tribal worker testified as an ICWA expert supporting guardianship; the district court awarded guardianship to the foster family.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether ICWA notice to father and tribe was defective	S.F.: notices lacked required ICWA content and were untimely (many key filings after paternity lacked ICWA notice), impairing tribal participation	State: father received notice of relevant proceedings from 2006 on; tribe was notified from 2008 and actively participated; any earlier defects were cured	Court: any initial notice defects were cured; both father and tribe later received notice and participated — no reversible ICWA notice violation
Whether State failed to make ICWA “active efforts” to prevent breakup of Indian family	S.F.: State delayed and did not actively assist him to complete treatment plans for years, violating §1912(d)	State: provided services, created treatment plans, arranged counseling and contact; father was largely unengaged and sometimes said he would relinquish rights	Court: Baby Girl controlling — because father never had custody or an established parent–child relationship, §1912(d) inapplicable; no reversal on this ground
Whether ICWA-required expert testimony was lacking to support continued out-of-parent placement	S.F.: expert testimony did not identify specific father conduct likely to cause serious harm as required by §1912(e)	State: tribal expert was qualified; court properly considered expert testimony plus other evidence and child’s wishes	Court: §1912(e) (like §1912(f)) applies to “continued” custody; because father never had custody, the provision does not apply — guardianship stands
Whether ICWA noncompliance tainted the final guardianship order overall	S.F.: cumulative ICWA failures (notice, active efforts, expert proof) tainted the process	State: any defects were cured; Supreme Court precedent limits ICWA application where parent never had custody; tribe participated and supported guardianship	Court: cumulative arguments fail; guardianship affirmed

Key Cases Cited

Adoptive Couple v. Baby Girl, 570 U.S. 637 (2013) (Supreme Court construing ICWA’s “active efforts” and “continued custody” requirements and holding they do not apply where an Indian parent never had custody)
In re M.E.M., 679 P.2d 1241 (Mont. 1984) (prior procedural ICWA defects do not invalidate subsequently properly conducted final dispositional proceedings)
In re G.S., 59 P.3d 1063 (Mont. 2002) (interpreting "active efforts" as requiring affirmative, timely steps to prevent breakup of Indian families)
In re A.N., 106 P.3d 556 (Mont. 2005) (parent’s apathy may be considered in assessing whether the State made active efforts)