IN THE MATTER OF C.H., A Youth in Need of Care.
No. 99-146
IN THE SUPREME COURT OF THE STATE OF MONTANA
March 16, 2000
2000 MT 64 | 299 Mont. 62 | 997 P. 2d 776
APPEAL FROM: Distriсt Court of the Eighteenth Judicial District, In and for the County of Gallatin, The Honorable Thomas A. Olson, Judge presiding.
For Intervenors and Appellants Scott and Tena Ehret:
Trudy Flamand Miller, Attorney at Law, Helena, Montana
For Intervenor and Appellant Confederated Tribes of Siletz Indians:
Maylinn Smith, Indian Law Clinic, Missoula, Montana
For Respondent State of Montana:
Hon. Joseph P. Mazurek, Attorney General, Helena, Montana;
Marty Lambert, Gallatin County Attorney, Bozeman, Montana
For Intervenors and Respondents Doug and Janinie Burrows-Alberda:
For Amicus Curiae National Indian Child Welfare Association:
Michelle L. Clark, Student Attorney, Anita Fineday, Supervising Attorney, Indian Child Welfare Law Center, Minneapolis, Minnesota
Debra DuMontier, Attorney at Law, Confederated Salish and Kootenai Tribes, Pablo, Montana
For Amicus Curiae National Council for Adoption:
Christine D. Esser, Attorney at Law, Milwaukee, Wisconsin
Submitted on Briefs: August 26, 1999
Decided: March 16, 2000
Filed:
__________________________________________
Clerk
Justice Karla M. Gray delivered the Opinion of the Court.
¶1.The Confederated Tribes of Siletz Indians of Oregon (the Tribe) and Scott and Tena Ehret (the Ehrets) appeal from the order of the Eighteenth Judicial District Court, Gallatin County, continuing the foster care placement of C.H., a youth in need of care, with Janine and Doug Alberda (the Alberdas) and authorizing the Montana Department of Public Health and Human Services (DPHHS) to commence proceedings for the Alberdas to formally adopt C.H. We reverse and remand with instructions.
¶2.The dispositive issue is whether the District Court erred in concluding that good cause exists to deviate from the adoptive placement preferences set forth in
BACKGROUND
¶4.DPHHS then discovered that C.H. is enrollable as a member of the Tribe and, consequently, that the abuse and neglect proceeding involving C.H. was subject to the Indian Child Welfare Act (ICWA),
¶5.On July 21, 1998, DPHHS petitioned thе District Court to terminate the parental rights of C.H.‘s birth parents on the basis that they had signed stipulations voluntarily relinquishing their parental rights. The District Court entered its order terminating parental rights and granting custody of C.H. to DPHHS, with the right to consent to her adoption, on August 10, 1998. The court also scheduled a review hearing in January of 1999 at which DPHHS was to report regarding the permanent placement of C.H. in an adoptive home. Two days following entry of this order, the Ehrets moved to intervene in the proceeding as interested parties on the basis that Tena Ehret is a member of C.H.‘s extended family, as well as a member of the Tribe, and they intended to initiate proceedings to formally adоpt C.H. The District Court granted the motion.
¶6.In September of 1998, the Tribe renewed its motion to transfer jurisdiction of the case to the Siletz Tribal Court based on its concerns that DPHHS was not properly considering
¶7.At the evidentiary hearing in December of 1998, the Tribe and the Ehrets contended that, in determining the adoptive placement of C.H. pursuant to
¶8.The District Court subsequently entered its findings of fact, conclusions of law and order, in which it concluded that C.H. had extraordinary physical and emotional needs which constituted good cause to deviate from the ICWA placement preferences. The court denied the proposed adoptive placement with the Ehrets and ordered that C.H. remain in her current foster care placement pending her formal adoption by the Alberdas. The Tribe and the Ehrets appeal.
STANDARD OF REVIEW
¶9.The District Court supported its determination that good cause existеd to deviate from the ICWA adoptive placement preferences with findings of fact and conclusions of law. The Tribe and the Ehrets do not dispute any of the court‘s findings of fact. Rather, they contend that the District Court‘s conclusion that those findings constitute good cause to avoid the placement preferences is erroneous. A district court‘s application of the law to the facts of a case is a legal conclusion which we review to determine whether the interpretation of the law is correct. Bank of Baker v. Mikelson Land Co., 1999 MT 76, ¶ 26, 294 Mont. 64, ¶ 26, 979 P.2d 180, ¶ 26.
DISCUSSION
¶11.The express policy of the ICWA is to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture . . . .
25 U.S.C. § 1902 . One method by which the ICWA implements this policy is to provide preferences for the adoptive placement of Indian children.
In any adoptive placement of an Indian child under State law, a preference shall be given, in the absence of good cause to the contrary, to а placement with (1) a member of the child‘s extended family; (2) other members of the Indian child‘s tribe; or (3) other Indian families.
25 U.S.C. § 1915(a) . A court is required to order an adoptive placement of an Indian child in accordance with these preferences unless it concludes that good cause exists to deviate from them. Thus, the ICWA expresses the presumption that it is in an Indian child‘s best interests to be placed in an Indian home in conformance with the§ 1915 placement preferences. Matter of Adoption of Riffle (1996), 277 Mont. 388, 393-94, 922 P.2d 510, 514 (Riffle II).
¶12.The ICWA does not define the term “good cause” as used in
¶13.The BIA‘s statement of policy regarding the ICWA and the guidelines is as follows:
Congress through the [ICWA] has expressed its clear preference for keeping Indian children with their families, deferring to tribal judgment on matters concerning the custody of tribal children, and placing Indian children who must be removed from their homes within their own families or Indian tribes. Proceedings in state courts involving the custody of Indian children shall follow strict procedures and meet stringent requirements to justify any result in an individual case contrary to these preferences. The [ICWA], the federal regulations implementing the [ICWA], the recommended guidelines and any state statutes, regulations or rules promulgated to implement the [ICWA] shall be liberally construed in favor of a result that is consistent with these preferences.
(a) For purposes of foster care, preadoptive or adoptive placement, a determination of good cause not to follow the order of preferеnce . . . shall be based on one or more of the following considerations:
(i) The request of the biological parents or the child when the child is of sufficient age.
(ii) The extraordinary physical or emotional needs of the child as established by testimony of a qualified expert witness.
(iii) The unavailability of suitable families for placement after a diligent search has been completed for families meeting the preference criteria.
(b) The burden of establishing the existence of good cause not to follow the order of preferences . . . shall be on the party urging that the preferences not be followed.
In a few cases a child may need highly specialized treatment services that are unavailable in the community where the families who meet the preference criteria live. Paragraph (ii) recommends that such considerations be considered as good cause to the contrary.
¶15.Briefly stated, the pertinent facts relating to C.H.‘s physical and emotional condition, as set forth in the District Court‘s findings of fact, are as follows. C.H. currently is developing normally for a child of her age and is thriving. Although she may have been exposed to drugs and alcohol in utero, she exhibits no symptoms of fetal alcohol syndrome or effect; nor are there indications of other physical or psychological problems. However, as a result of the possible drug and alcohol exposure, she is at high risk for neurodevelopmental problems and emotional disorders which may not surface until later in her life.
¶16.The District Court further found that, as a result of C.H.‘s emotional bond with the Alberdas and the abuse she experienced early in life, she is at risk for developing an attachment disorder should she be removed from the Alberdas’ home. Although there was extensive testimony regarding attachment disorders in general, none of the expert witnesses testified that C.H. was certain to develop an attаchment disorder should she be moved or that any emotional harm resulting from a change in custody would be irreparable. The record reflects that, to date, C.H. has shown great emotional resiliency.
¶17.The District Court also found that the Alberdas were experienced foster care parents who have given C.H. a safe, stable and loving home. On the other hand, the court found that, although the Ehrets had received training and were currently licensed to give foster care, they had limited experience handling children with the type of emotional problems
¶18.Based on these findings, the District Court entered a number of conclusions of law which we address in turn. In its first two conclusions, the court correctly concluded that the ICWA is applicable to this case,
¶19.The guidelines provide that а determination of good cause to avoid the preferences “shall be based on one or more of” three stated factors.
¶20.In its fourth conclusion, the District Court listed, in side-by-side format, record-based positive and negative factors relative to permanently placing C.H. with the Alberdas as opposed to placing her with the Ehrets. With regard to continuing custody with the Alberdas, the court listed the following positive factors: C.H.‘s dramatiс healing from physical abuse while in the Alberdas’ care and the hopeful prospects of emotional healing;
¶21.The District Court also listed the following positive factors regarding placing C.H. with the Ehrets: a promise by the Ehrets to continue C.H.‘s physical and emotional healing; the Ehrets’ hope to cope with fetal alcohol effect, compounded by the effect of an attachment disorder; their hope to cope with adoption and cultural issues; and exposure to C.H.‘s Indian culture. As negative factors, the court noted the Ehrets’ lack of experience caring for abused children; the emotional trauma to C.H. resulting from the custody change; the risk of an attachment disorder; and C.H.‘s exposure to hostile family members.
¶22.The District Court then determined that “[i]f the competing factors are balanced, the scale weighs heavily, by clear and convincing evidence, in favor of retention in the Alberda home . . . ” and that the listed factors “favor a finding of good cause” to avoid the ICWA placement preferences. The court‘s application of a balancing test weighing the benefits and detriments of placing C.H. with the Alberdas as opposed to the Ehrets is, in essence, a straightforward determination of C.H.‘s best interests. See In re J.J.G., 1998 MT 28, ¶ 25, 287 Mont. 313, ¶ 25, 954 P.2d 1120, ¶ 25. However, while the best interests of the child is an appropriate and significant factor in custody cases under state law, it is improper to apply a best interests standard when determining whether good cause exists to avoid the ICWA placement preferences, because the ICWA expresses the рresumption that it is in an Indian child‘s best interests to be placed in conformance with the preferences. Riffle II, 277 Mont. at 393-95, 922 P.2d at 514-15. Consequently, the District Court‘s conclusion that the stated factors weigh in favor of a determination that good cause exists is an incorrect application of the law. As a result, we conclude that the District Court‘s fourth conclusion of law does not support a determination that good cause exists to avoid the
¶23.In its fifth conclusion, the District Court listed nine items it concluded were extraordinary physical and emotional needs of C.H. which constituted good cause to avoid the statutorily-preferred placement with the Ehrets and place her permanently with the Alberdas. We address each in turn to determine whether the court correctly concluded it is an extraordinary physical or emotional need.
¶25.Next, the cоurt stated that “[t]he likelihood of an attachment disorder if the child is moved, compounded by the potential [sic] for Fetal Alcohol Effect” constitutes an extraordinary physical or emotional need. We disagree.
¶26.First, while it is undisputed that C.H. is at risk for developing emotional or physical disorders, there is no evidence of record that such disorders exist currently or are inevitable. It has been held that emotional or physical trauma to a child resulting from a change in custody can constitute good cause to avoid the ICWA placement preferences. See Matter of Baby Boy Doe (Idaho 1995), 902 P.2d 477, 487. There, however, the expert witnesses testified unanimously that trauma was cеrtain to result from a transfer of custody. Matter of Baby Boy Doe, 902 P.2d at 487. Here, the record is devoid of testimony that C.H. was certain to develop an attachment disorder if removed from the Alberdas’ home. Nor was there testimony that she was certain to suffer from other neurodevelopmental problems.
¶27.The risk that a child might develop such problems in the future is simply too nebulous and speculative a standard on which to determine that good cause exists to avoid the ICWA placement preferences. Indeed, it could be said that any child who has been abused, removed from its parents’ care at a young age and placed in foster care might be at risk for developing emotional or psychological disorders. To allow such an indefinite standard to meet the good cause test for avoiding the preferences would essentially ignore the preferences set forth in
¶28.As its third and fourth items in the list of C.H.‘s extraordinary physical and emotional
¶29.Next, the District Court concluded that C.H.‘s strong emotional bond with the Alberdas constituted an extraordinary emotional need. It is undisputed that C.H. has bonded with the Alberdas and that a change in custody would be emotionally painful. As stated above, however, the parties seeking to avoid the ICWA placement preferences have the burden of establishing that C.H.‘s emotional bond with the Alberdas is an extraordinary emotional need constituting good cause, and the Alberdas and DPHHS advance no authority under which emotional bonding properly may be considered an extraordinary emotional need. Indeed, the emotional attachment between a non-Indian custodian and an Indian child should not necessarily outweigh the interests of the Tribe and the child in having that child raised in the Indian community. See Mississippi Band of Choctaw Indians v. Holyfield (1989), 490 U.S. 30, 54, 109 S.Ct. 1597, 1611, 104 L.Ed.2d 29, 49, 50; see also In re Adoption of M.T.S. (Minn. App. 1992), 489 N.W.2d 285, 288. Moreover, a conclusion that an Indian child should be placed with a non-Indian foster parent because of a strong emotional bond is essentially a determination that it is in the child‘s best interests to be so placed. See M.T.S., 489 N.W.2d at 288. As stated above, while the best interests of the child is an appropriate and significant factor in custody cases under state law, it is an improper test to use in ICWA cases because the ICWA expresses the presumption that it is in an Indian child‘s best interests to be placed in accordance with the statutory preferences. Riffle II, 277 Mont. at 393-94, 922 P.2d at 514-15. To allow emotional bonding--a normal and desirable outcome when, as here, a child lives with a foster family for several years--to constitute an “extraordinary” emotional need would essentially negate the ICWA presumption. Consequently, we conclude that C.H.‘s emotional attachment to the Alberdas does not constitute an extraordinary emotional need sufficient to establish good cause to avoid the ICWA placement preferences.
¶30.The District Court stated the sixth item constituting an extraordinary physical or emotional need of C.H. as “[t]he fact that C.H. is deemed to be a high risk child because of
¶31.As the seventh item in its list of extraordinary physical or emotional needs, the court concluded that C.H. needs “a safe, secure and stable environment particularly during this critical phase of her life” and that such an environment had been--and will continue to be--provided by the Alberdas. It is undisputed that C.H. needs a safe, secure and stable environment and that the Alberdas are able to provide such a home. However, the District Court made no findings that the Ehrets would not or could not provide a stable and loving home environment for C.H. Moreover, the record reflects the Ehrets have received training on caring for children with emotional and physical problems and are currently caring for a young child with possible fetal alcohol effect. In other words, on this record, both the Ehrets and the Alberdas are capable of providing the type of home which the court determined C.H. needs. The District Court‘s conclusion that the Alberdas’ histоry with C.H. and their experience in caring for disturbed children weighed in their favor amounts to a determination that it is in C.H.‘s best interests to remain with the Alberdas. Again, however, such an approach ignores the presumption expressed by the ICWA that it is in the child‘s best interests to be placed in a home meeting one of the
¶32.Furthermore, the District Court‘s focus on “this critical phase” of C.H.‘s life appears to relate to earlier findings of fact based on expert witness testimony that a secure and stablе environment for a child with C.H.‘s history is most important during the first two years of her life and an attachment disorder is most likely to occur where a child is moved between two or three different homes during those first two years. In this regard, we observe that C.H. was born in March of 1997, placed with the Alberdas in June of 1997 and was nearing her second birthday at the time of the District Court hearing. Thus, C.H. had been in the Alberdas’ home--a stable and secure environment--for almost all of what the court characterized as the “critical phase of her life” and, as a result, the likelihood of C.H. experiencing an attachment disorder upon removal from the Alberdas is diminished. On
¶33.The District Court also concluded that C.H.‘s need to be protected from the family member who abused her constituted an extraordinary physical or emotional need and that, if placed with the Ehrets, who are extended family members, the potential exists that she would come into contact with her abuser. In this regard, the Idaho Supreme Court has held that the need to avoid contact with a family member which could result in emotional or physical damage to a child can be an extraordinаry physical or emotional need justifying placement outside the ICWA placement preferences. See Matter of Baby Boy Doe, 902 P.2d at 488. There, the trial court had found beyond a reasonable doubt that custody by the natural father was likely to cause the child serious emotional damage and the evidence established that, if the child were placed with the proposed Indian family consisting of a paternal aunt and uncle, the natural father would have contact with--and a role in teaching--the child. Matter of Baby Boy Doe, 902 P.2d at 488. In other words, direct and ongoing contact with the undesirable parent was certain to occur if the placement preferences were followed.
¶34.Herе, the District Court determined that C.H.‘s abuser, although never specifically identified, necessarily was one of several immediate family members living in the Bozeman, Montana, area where the Alberdas also reside. If placed with the Ehrets, however, C.H. would live in Oregon, a great enough distance from Bozeman to substantially lessen the chance of contact with her unidentified abuser. Moreover, Tena Ehret testified she was not close to her immediate family in Montana and saw them, at most, once a year. The District Court also noted in its findings of fact that Tena Ehret testified she would get a restraining order against those persons suspected of abusing C.H. and would call the police if any of them showed up in Oregon.
¶35.Consequently, while the District Court‘s determination that potential exists for C.H. to come into contact with her abuser if she is placed with the Ehrets is not incorrect, there is no evidence that such contact is certain, or even likely, to occur. In addition, the potential for C.H. to come in contact with her abuser also exists if she remains with the Alberdas in Bozeman. Finally, any potential contact with her unidentified abuser while residing with the Ehrets hundreds of miles from Bozeman would be in passing rather than direct and ongoing. Matter of Baby Boy Doe is distinguishable on these bases. As with the risk of future physical and emotional problems, a slight risk of passing contact with an unidentified abuser in the future is too nebulous a standard on which to determine that
¶36.As the final item in the District Court‘s list of C.H.‘s extraordinary physical and emotional needs, the court stated that “[t]he balance described above, fall[s] convincingly in favor of the Alberdas.” This statement clearly reflects the court‘s application of a best interests of the child balancing test which, as discussed above, is inappropriate in an ICWA proceeding. See Riffle II, 277 Mont. at 393-95, 922 P.2d at 514-15. Moreovеr, the statement makes no reference to C.H.‘s needs, either physical or emotional, and we conclude it does not amount to an extraordinary physical or emotional need.
¶37.Based on the record before us, we conclude that none of the nine items listed in the District Court‘s fifth conclusion of law constitutes an extraordinary physical or emotional need of C.H. as contemplated by the guidelines. Consequently, we hold that the District Court‘s ultimate conclusion that good cause exists to deviate from the adoptive placement preferences set forth in
¶38.In light of our holdings, it is clear that proceedings must be initiated for the Ehrets, who are a statutorily-preferred family under
¶39.Reversed and remanded to the District Court for entry of an order directing DPHHS to promptly commence proceedings for the Ehrets to formally adopt C.H.
/S/ KARLA M. GRAY
We concur:
/S/ J. A. TURNAGE
/S/ TERRY N. TRIEWEILER
/S/ JAMES C. NELSON