In re K.B.
370 Mont. 254
Mont.2013Background
- C.B. (Mother) is Chippewa Cree; two Indian children (K.B. and T.B.) subjected to ICWA custody proceedings.
- Department filed emergency petition Jan 28, 2011; children placed with maternal grandmother.
- Mother stipulated youths in need of care at a March 7, 2011 hearing; temporary custody to Department.
- Tribe filed Notice of Appearance and Intervention (Jun 29, 2011); Tribe reserved right to transfer jurisdiction.
- From 2011–2012, Mother failed to meaningfully engage with treatment plan; multiple extensions of temporary custody and status hearings.
- Termination petition filed Sep 17, 2012; termination hearing held Oct 22, 2012; District Court terminated Mother’s parental rights.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ICWA notice requirements were satisfied for the termination | Mother argues notice to Tribe not timely or properly served | State contends proper notice was provided; record supports service | Notice deficient; remand for new termination hearing |
| Whether there was sufficient expert evidence that continued custody would cause serious harm | State/Mother lacked expert testimony showing likely serious damage | State relied on ICWA expert about risk and best interests | Insufficient expert testimony; reversal and remand for new hearing under ICWA §1912(f) and §41-3-609(5) |
| Whether active efforts to prevent breakup of the Indian family were shown | State failed to prove active efforts beyond treatment plan | Active efforts evidence existed via safety plan and services | Record insufficient; remand to develop active efforts findings |
| Whether the termination proceeding complied with ICWA’s timing and record-keeping requirements | Notice and records did not reflect proper ten-day advance notice with receipts | Court followed some procedural steps; lack of complete documentation | Procedural deficiencies require reversal and new termination hearing |
Key Cases Cited
- In re J.W.C., 363 Mont. 85 (2011 MT) (ICWA standards and reviewing court's role on appeal)
- In the Matter of T.W.F., 210 P.3d 174 (2009 MT) (abuse of discretion standard; active efforts and ICWA compliance)
- A.N., 106 P.3d 556 (2005 MT) (need for expert testimony in termination under ICWA)
- G.S., 312 Mont. 108, 59 P.3d 1063 (2002 MT) (active efforts interpreted; timing and services context)
- In re Gabriel G., 206 Cal. App. 4th 1160 (2012 Cal. App.) (noting appellate authority to review ICWA notice on appeal)