IN THE MATTER OF G.S., Jr., and S.S., Youths in Need of Care.
No. 02-282
IN THE SUPREME COURT OF THE STATE OF MONTANA
November 7, 2002
2002 MT 245
APPEAL FROM: District Court of the Sixth Judicial District, In and for the County of Park, The Honorable Wm. Nels Swandal, Judge presiding. COUNSEL OF RECORD: For Appellant: Daniel Minnis, Montana Legal Services Association, Billings, Montana For Respondent: Mike McGrath, Montana Attorney General, Jennifer Anders, Assistant Montana Attorney General, Helena, Montana; Tara Depuy, Park County Attorney, Brett D. Linneweber, Deputy Park County Attorney, Livingston, Montana; Dee Killion, Eastern Shawnee Tribe, Seneca, Missouri (Tribal Representative); Vuko Voyich, Livingston, Montana (Guardian ad Litem) For Amicus: Kristine C. Lizdas, Battered Women‘s Justice Project, Minnesota Program Development, Inc., Minneapolis, Minnesota Submitted on Briefs: August 8, 2002
Clerk
¶1 After a domestic violence incident between the natural parents of G.S. and S.S. and allegations the father assaulted G.S., the Department of Public Health and Human Services (DPHHS) removed G.S. and S.S. from the custody of their natural mother. The State petitioned the Sixth Judicial District Court for temporary legal custody, and since G.S. and S.S. are Indian children as defined under the Indian Child Welfare Act (ICWA), ICWA was applied. Following the hearing, the District Court found G.S. and S.S. to be youths in need of care and granted DPHHS temporary legal custody of the children for a period of 180 days. The children‘s natural mother, Jaime, appeals from this order. We affirm.
¶2 We restate the issues on appeal as follows:
- Whether the District Court erred in determining DPHHS employed active efforts to prevent breaking up the Indian family;
- Whether the District Court‘s order granting DPHHS temporary legal custody of the two Indian children was supported by clear and convincing evidence; and
- Whether
§ 41-3-438, MCA (2001) , is constitutional as applied in this matter.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 This case involves two minor children, G.S., now six years old, and S.S., now five, who were declared youths in need of care by the District Court and ultimately placed in therapeutic foster care. The children‘s natural father, Gary, and the oldest child, G.S., are enrolled members of the Eastern Shawnee Tribe of Oklahoma (Eastern Shawnee Tribe), while S.S. is eligible for enrollment with the Tribe. Therefore, ICWA is applicable to this
¶4 G.S. and S.S. came to the attention of DPHHS, following a report of domestic violence in Livingston, Montana. Gary, Jaime, and the children were on their way from Missouri to Washington, and stopped in Livingston for the night on November 20, 2001. Later that evening, the couple and their children were visiting downtown Livingston, when Gary allegedly assaulted Jaime outside a local bar, and the police were called. In the mean time, Gary, Jaime, and the children returned to their motel, where Gary again allegedly assaulted Jaime.
¶5 Livingston Police Officer, Eric Severson (Severson), responded to the report and located the family at a local motel. When Severson arrived, Jaime answered the motel room door, appearing quiet and subdued and Severson noted her shirt was torn at the right shoulder. Severson observed two small children in the room and described Gary as agitated. Although Jaime was reluctant to report what happened, both children told Severson that Gary had choked Jaime. Severson arrested Gary and transported him to the county jail, while Jaime and the two сhildren remained at the motel. Gary was charged with Partner Family Member Assault, to which he later plead guilty.
¶6 The day after the assault, Detective Michelle Morris (Morris) and social worker, Barbara Broughton (Broughton) interviewed the children. During the interview, G.S. explained that the previous night, after Gary assaulted Jaime outside the bar, Gary also grabbed G.S. by the throat and choked him when G.S. attempted to let his mother into the
¶7 Morris also interviewed Jaime, who was uncooperative at first. Morris explained there were incоnsistencies in Jaime‘s statements, particularly about prior incidents of Gary assaulting her. Morris also observed behavior consistent with lying (fidgeting, breathing heavily, no eye contact, acting nervous), and when she confronted Jaime about her untruthfulness, Jaime began to cry and then admitted that Gary had previously assaulted her on numerous occasions, including when she was pregnant with G.S. According to Morris, Jaime minimized Gary‘s abuse, explaining he was violent only when he was drunk or on drugs. While Jaime would not admit Gary abused the children, she did tell Morris he was a little overboard in punishments and would slap and drag the children.
¶8 Broughton, who had sixteen years of social work experience, was the initial social worker involved with the case. On November 21, 2001, after learning the family was traveling from Joplin, Missouri, Broughton inquired with social serviсes in Missouri before she interviewed Jaime and the children. While she discovered there were no records of child abuse or neglect in Joplin, she did learn that Gary and Jaime had left the area without contacting the office of public assistance, from which they had received assistance. Like Morris, Broughton interviewed both Jaime and the children. Broughton testified that in addition to the incident in the car, G.S. told her that at the motel, Gary threw food at them,
¶9 Broughton ultimately removed the children after concluding that Jaime had failed to protect the children. This decision was based on the children‘s prеsence during a domestic violence incident as well as Gary‘s physical abuse of G.S. In addition, Broughton noted there was an increased risk to the children considering they were under five years old at the time. Although Broughton knew Gary was incarcerated, after interviewing the children and Jaime, she decided to remove G.S. and S.S. from Jaime‘s care because of the children‘s exposure to unreasonable risk and Jaime‘s failure to protect them. Broughton also considered the fact that Jaime and Gary had left Missouri without notifying the public assistance office of their departure to be a risk factor, and an indication they may flee again. Broughton testified that she initially looked into the local battered women‘s shelter for Jaime, and admitted the children could have stayed with Jaimе at the shelter. However, Broughton was informed that while the shelter may have been secured, there was nothing preventing the residents from leaving, and given the flight risk Jaime posed, Broughton chose to remove the children.
¶10 On November 26, 2001, the State filed a Petition for temporary legal custody, and the next day, the District Court signed a temporary order, granting temporary legal custody to DPHHS and set a hearing on the petition for December 7, 2001. After learning G.S. and S.S. were either enrolled or eligible for enrollment with the Eastern Shawnee Tribe, the State filed an amended petition for temporary legal custody on December 3, 2001, and gave notice of
¶11 At the hearing, the State presented testimony from the arresting officer, the emergency room doctor who examined G.S., Morris, Broughton, Stacey Jesson (Jesson), the social worker assigned to the case, and two representatives from the Eastern Shawnee Tribe, Christy Mulholland (Mulholland), and Dee Killion (Killion). Jaime testified on her own behalf and called her counselor, Diane Boehm (Boehm), and Sandra Glenn (Glenn), who worked at the women‘s shelter, to testify. Gary neither testified, nor called any witnesses.
¶12 Jesson, who was assigned to the case after the children were removed, worked on finding placement for the children, and explained there were no family members in the Livingston area with whom she could place the children. Upon discovering that G.S. and S.S. may be Indian children, she contacted their Tribe and also inquired with specialists and resource workers around the state in an attempt to locate a suitable Native American home. According to Jesson, when she informed the Eastern Shawnee Tribe that she was unable to place the children with other tribal members, the Tribe told her that as long as the children were safe, DPHHS was in compliance with ICWA.
¶13 Jesson also testified about her interactions with Jaime, and explained that she did not feel Jaime was forthright with her, noting that Jaime initially told Jesson there was absolutely no history of abuse, leaving Jesson to later discover Gary‘s extensive history of domestic violence. She also noted that Jaime would change her story within minutes of giving a different story. Jesson explained that when she asked Jaime if the family had any previous
¶14 Jesson testified that because the family was passing through Montana, they had no family support nearby. Given that Jaime told Jesson she wanted to take the children back to Florida, and Jaimе‘s repeated reunifications with Gary following domestic abuse, Jesson considered Jaime a flight risk. According to Jesson, S.S. was very angry and aggressive. She explained that both children were fearful and talked constantly about the abuse cycle, being slapped and pushed around, and also about protecting their mother. Jesson conceded that DPHHS was not alleging that Jaime directly abused either G.S. or S.S. Rather, Jesson explained that DPHHS was concerned with Jaime‘s inability to protect the children from Gary‘s abuse and from witnessing Gary‘s abuse of Jaime, noting the repeated patterns of abuse and Jaime consistently returning to Gary.
¶15 Jesson explained that services such as chemical dependency evaluation and counseling and self study parenting materials were provided for Gary while he was incarcerated. Jesson testified that once the children were placed in a therapeutic foster home in Bozeman, she suggested Jaime stay at the Bozeman women‘s shelter to be near them. However, Jaime
¶16 Mulholland, who worked with the Eastern Shawnee Tribe child protection services, interviewed Gary, Jaime, and the children and also reviewed all the reports of domestic violence from Florida, Maine, and the current Montana incident. She described some inconsistencies in Jaime‘s account of the events and was concerned that Jaime knew there was a pattern of domestic violence, but still refused to divulgе all the information pertaining to the domestic violence. Mulholland considered the inconsistencies in Jaime‘s statements as indications that Jaime minimized the dangers associated with domestic violence. Mulholland testified that on several occasions when Gary had been arrested, Jaime either bailed him out or automatically let him back into the home, which just continued the cycle of abuse. Based on her review of the case files from other states, Mulholland observed that when family
¶17 Killion, who works with the Eastern Shawnee Tribe‘s Department of Children and Family Services, as Dirеctor of Indian Child Welfare, was accepted as an Indian Child Welfare Expert under
¶18 Killion explained that based on the family services reports and history of domestic violence, she had concerns about returning the children to Jaime, particularly since the cycle of domestic abuse is not broken quickly and it appeared Jaime had difficulty admitting domestic abuse occurred. Killion explained that until an abused person admits it occurs and that they need help, it is difficult to break the cycle of domestic abuse, and added that because the children were present for much of the domestic violence, they experienced emotional abuse. Killion, taking into account the Tribe‘s cultural norms, opined that giving continued custody of G.S. and S.S. to Jaime would likely result in serious emotional or physical damage to the children. However, when asked what empirical studies showed the
¶19 According to Killion, without intervention, neither Gary nor Jaime would modify their behavior and would likely repeat the same behaviors involved with the cycle of abuse. Killion recommended that the children remain in a therapeutic foster home under the temporary legal custody of DPHHS, that Jaime continue to work on her treatment plan and that Gary be provided a treatment plan developed by Killion and DPHHS. Killion testified that in her opinion, Jaime would be unable to break the domestic violence cycle without a treatment plan that emphasized counseling, and further explained it was too soon to reunite the children with Jaime, because adding the responsibility of the children on top of Jaime‘s commitments under the treatment plan would be overwhelming and perhaps set Jaime back in her progress.
¶20 Boehm, a licensed clinical professional counselor, testified on behalf of Jaime and explained that one component of the cycle of abuse was the “learned helplessness” syndrome, explaining that after exposure to traumatic events it is typical for the person being traumatized to feel there is no way out of the situation, and to seek to preserve the family. Boehm explained that victims of “learned helplessness” syndrome often develop safety plans for their children, adding that when Gary became intoxicated, Jaime would generally make sure the children were not in the room. Boehm diagnosed Jaime with Post-Traumatic Stress
¶21 At the hearing, Jaime admitted there was a history of domestic abuse between her and Gary, but explained that alcohol and drugs are the only triggers of Gary‘s violence, and that she tries to protect the children from Gary by keeping them away from him when he drinks, usually by putting them to bed early. However, Jaime conceded that she does not have an ability to anticipate when Gary will get angry and that the ability to determine how much liquor is too much is not very precise. Jaime also explained that five months before the hearing she realized she should end the relationship with Gary, but after he purportedly completed a treatment program, she reunited with him. Jaime testified that since the children‘s removal, she had secured a home and a job, was taking parenting and GED classes, and also participating in counseling.
¶23 A dispositional hearing, pursuant to
¶24 We review a district court‘s findings of fact to determine whether they are clearly erroneous. In re M.P.M., 1999 MT 78, ¶ 12, 294 Mont. 87, ¶ 12, 976 P.2d 988, ¶ 12 (citing Daines v. Knight (1995), 269 Mont. 320, 324, 888 P.2d 904, 906). Findings of fact are clearly erroneous if they are not supported by substantial evidence; or, if so supported, the district court misapprehended the effect of the evidence; or, if so supported and the district court did not misapprehend the effect of the evidence, this Court is left with the definite and firm conviction that a mistake has been committed. In re S.M., 1999 MT 36, ¶ 15, 293 Mont. 294, ¶ 15, 975 P.2d 334, ¶ 15 (citing In re E.W., 1998 MT 135, ¶ 10, 289 Mont. 190, ¶ 10, 959 P.2d 951, ¶ 10). We review a district court‘s conclusions of law to determine whether its conclusions are correct. In re M.P.M., ¶ 12 (citing Matter of J.J.G. (1994), 266 Mont. 274, 281, 880 P.2d 808, 812).
DISCUSSION
Issue 1
¶25 Did the District Court err in determining DPHHS employed active efforts to prevent breaking up the Indian family?
¶26 The Indian Child Welfare Act applies only to child custody proceedings in state courts. See
(d) Any party seeking to effect a foster care placement of, or termination of parental rights to, an Indian child under State law shall satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccеssful.
(e) No foster care placement may be ordered in such proceeding in the absence of a determination, supported by clear and convincing evidence, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.
(f) No termination of parental rights may be ordered in such proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.
¶27 Jaime contends DPHHS failed to implement any remedial or rehabilitative programs designed to prevent breakup of the family as required under
¶28 In its Findings of Fact, the District Court found that Broughton initially attempted to prevent removal of the children and had investigated the possibility of Jaime and the children residing together at the women‘s shelter. However, the court found that Broughton correctly concluded that without removal, there was no way to ensure the children‘s safety and welfare, referring to the fact the family was in transit, Jaime denied any abuse when the evidence was clear to the contrary, and Jaime failed to take active steps to protect the children. The court also found that Jaime was a flight risk if the children were returned to her, and also found DPHHS properly attempted to locate suitable placement for the children with Native American homes or extended family. Finally, the court found that remedial and rehabilitative programs were provided to both Jaime and Gary in an effort to prevent breaking up the family, which included counseling, assistance in placement at the shelter, parenting classes, and employment.
¶29 While
¶30 Unlike
¶31 There is a split of authority as to what evidentiary standard is required under
¶32 Our statutes provide that, if an abuse and neglect preceding under Chapter 3, Title 41 of the Montana Code “involves an Indian child, as defined in the federal Indian Child Welfare Act,
¶33 Therefore, given the intent of Congress in preserving Indian families and this State‘s commitment to preserving Indian culture, we conclude that the proper evidentiary standard for determining “active efforts” under
¶34 First, we disagree with that part of Jaime‘s argument thаt infers remedial and rehabilitative programs should have been offered before the children were removed. It is unrealistic, given the complex nature of the issues involved with abuse and neglect proceedings as well as the often emergent circumstances, to require DPHHS to demonstrate compliance with
¶35 At the time G.S. and S.S. were removed from their mother‘s care, their father was incarcerated and their mother had no financial security, with her only option for living quarters being the local women‘s shelter. However, in the opinions of Broughton, Jesson and Mulholland, Jaime posed a flight risk based on the family‘s transitory situation and the couple‘s history of leaving other states where they were receiving assistance. Broughton‘s decision to remove the children was based on several factors, including Jaime‘s flight risk, the shelter‘s policy to allow residents to leave, and Jaime‘s failure to protect her children as evidenced by Jaime‘s repeated reunification with Gary following domestic abuse incidents. Significantly, oncе Jesson realized the children were Indian children as defined under ICWA, she inquired about placement with local Native American families as well as the possibility of other placements with the Eastern Shawnee Tribe. Finally, it is clear that DPHHS also began implementing services for both Jaime and Gary prior to the show cause hearing.
¶36 Moreover, we conclude the efforts employed by DPHHS were designed to remedy Jaime‘s problems that were associated with removal of the children. See, Letitia v. Superior Court (Cal.App. 4th Dist. 2000), 97 Cal. Rptr. 2d 303, 309 (Common sense construction of the meaning of “active efforts” requires only that “timely affirmative steps be taken to accomplish the goal which Congress has set: to avoid the breakup of Indian families whenever possible by providing services designated to remedy problems which might lead to
¶37 We conclude the District Court‘s findings concerning the efforts made by DPHHS were not clearly erroneous and that while it did not identify and apply a specific evidentiary standard, clear and convincing evidence supported the court‘s determination that DPHHS employed active, yet unsuccessful, efforts to provide remedial and rehabilitative services designed to prevent the breakup of the family.
Issue 2
¶38 Was the District Court‘s order granting DPHHS tеmporary legal custody of the two Indian children supported by clear and convincing evidence?
¶39 The Indian Child Welfare Act states in relevant part,
(e) No foster care placement may be ordered in such proceeding in the absence of a determination, supported by clear and convincing evidence, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.
that a preponderance of the evidence be definite, clear, and convincing, or that a particular issue must be clearly established by a preponderance of the
evidence or by a clear preponderance of proof. This requirement does not call for unanswerable or conclusive evidence. The quality of proof, to be clear and convincing, is somewhere between the rule in ordinary civil cases and the requirement of criminal procedure-that is, it must be more than a mere preponderance but not beyond a reasonable doubt.
In re E.K., 2001 MT 279, ¶ 32, 307 Mont. 328, ¶ 32, 37 P.3d 690, ¶ 32 (citing In re J.N., 1999 MT 64, ¶ 12, 293 Mont. 524, ¶ 12, 977 P.2d 317, ¶ 12).
¶40 The District Court found that Gary had an extensive criminal history including several assaults on Jaime, Gary and Jaime historically failed to take advantage of child protective services in other states, preferring to flee the area instead, and Jaime downplayed Gary‘s violence toward her. The court also found Jaime denied any domestic abuse when the evidence was clear to the contrary and found Jaime failed to take active steps to protect the children from domestic violence. Based on the testimony of Killion, a qualified ICWA expert who took the cultural norms of the Tribe and community into consideration, the court found that given the continued cycle of abuse, Jaime did not realize the children were being damaged psychologically and had suffered serious emotional damage.
¶41 The District Court concluded there was clear and convincing evidence that allowing Jaime and Gary continued custody of the children would likely result in serious emotional or physical damage to the children. In addition, the court concluded that without intervention, including treatment plans and services, Gary and Jaime would likely repeat their previous behaviors, thus subjecting the children to domestic violence which causes physical and psychological damage. Such damage, concluded the court, was not a cultural norm of any culture, let alone the Tribe.
¶43 We disagree that the past conduct of Gary and Jaime was not relevant, or that the court relied on mere speculation in making its conclusions. In proceedings to terminate parental rights under
¶44 Even though Gary was incarcerated, DPHHS had legitimate reason to believe that Jaime might flee with the children given the opportunity. Moreover, considering her
¶45 We conclude that the District Court‘s order granting DPHHS temporary legal custody of the children was supported by clear and convincing evidence.
Issue 3
¶46 Is
¶47 Citing Title 41 of the Montana Code, Jaime argues that Montana‘s abuse and neglect statutes are unconstitutional as applied because they allow separation of children from their parents when there is no danger of future harm. The State contends Jaime failed to adequately preserve her constitutional challenge and is thus barred from raising it. Jaime counters that she made sеveral references to this constitutional issue in the record, citing her reply brief, proposed findings of fact, and an assertion of due process violations during the hearing.
¶48 While the record does reflect some “references” to constitutional issues, they were general in nature and failed to alert the District Court to the specific statute and constitutional
¶49 Moreover, we emphasize that Jaime‘s constitutional argument on appeal is an “as applied” challenge, and as we concluded above, the record supports the District Court‘s conclusion that continued custody by Jaime was likely to result in serious emotional or physical damage to G.S. and S.S. While Jaime contested the psychological/emotional harm issue throughout the hearing, and even elicited a concession from Killion that she knew of no empirical studies showing a correlation between witnessing domestic abuse and emotional or psychological harm, we conclude the evidence presented to the District Court was nonetheless sufficient for it to conclude that returning the children to Jaime would likely
¶50 For these reasons, we decline to address Jaime‘s constitutional challenge. Accordingly the District Court‘s judgment, granting temporary legal custody of G.S. and S.S. to DPHHS is affirmed.
/S/ PATRICIA COTTER
We Concur:
/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ TERRY N. TRIEWEILER
/S/ JIM RICE