In re M.S., 336 P.3d 930

Background

M.S., a 13-year-old eligible for enrollment in the Northern Cheyenne Tribe, was removed from her mother’s custody in July 2011; father G.S. is an enrolled Northern Cheyenne member serving a long federal prison sentence for aggravated sexual abuse.
The Department filed petitions leading to temporary custody and later sought termination of both parents’ rights; initial tribal notice was sent to the wrong tribe (Chippewa Cree) but the Northern Cheyenne was later notified and intervened.
The Department amended its termination theory from aggravated circumstances to abandonment and sought termination of G.S.’s parental rights; some filings and the motion to amend lacked certificates of service showing the Tribe was served.
The District Court terminated G.S.’s parental rights after a hearing on October 21, 2013, and issued detailed findings and conclusions on November 12, 2013; G.S. appealed.
The Tribe was aware of and had intervened in the case but did not actively participate in subsequent hearings; the Tribe advised against removing M.S. from her current placement.

Issues

Issue	Plaintiff's Argument (G.S.)	Defendant's Argument (Department)	Held
Whether ICWA notice to the Tribe of the termination proceeding was adequate	Department failed to give required registered-mail notice and proper service; lack of certificate of service violated §1912(a)	Tribe had been notified earlier and intervened; later service complied with civil procedure and parties received notice	Notice was inadequate as to proof of service, but error was harmless because Tribe knew of the case and would not have changed outcome
Whether Department satisfied ICWA "active efforts" requirement (§1912(d))	Active efforts insufficient, especially given tribal status and heightened ICWA duty	Department made active efforts practicable under the circumstances (assisted mother; father’s long incarceration limited reunification options)	Sufficient active efforts were shown given father’s long-term incarceration and practical inability to reunify
Whether court made required findings that continued custody would likely cause serious emotional or physical damage (§1912(f))	Findings were not specific enough under ICWA	Court took judicial notice of father’s conviction/incarceration and found continued custody would harm child by disrupting stable placement	Court made adequate findings; a reasonable fact-finder could conclude continued custody likely to cause serious harm
Whether procedural due process or improper use of summary judgment invalidated termination	Termination via summary-judgment procedure and reliance on prior testimony deprived G.S. of process	Court considered evidence, incorporated prior findings, and did not actually grant summary judgment	Claim undeveloped on appeal; court’s process and findings were adequate and not reversible

Key Cases Cited

In re K.B., 370 Mont. 254, 301 P.3d 836 (Mont. 2013) (ICWA notice and proof-of-service requirements; remand where termination notice record insufficient)
In re G.S., 312 Mont. 108, 59 P.3d 1063 (Mont. 2002) (standard for "active efforts" under ICWA)
In re D.S.B., 370 Mont. 37, 300 P.3d 702 (Mont. 2013) ("active efforts" requires heightened, affirmative steps; incarceration limits available services)
In re M.N.E., 752 N.W.2d 1 (Iowa 2008) (ICWA notice requirements are subject to harmless-error review)
In re G.L., 177 Cal. App. 4th 683 (Cal. Ct. App. 2009) (tribal-notice error reversible only if probably affected outcome)
Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 (U.S. 2013) (addresses parentage and ICWA-related principles)