Lead Opinion
delivered the Opinion of the Court.
¶1 D.M. appeals from an order of the Eighth Judicial District Court, Cascade County, terminating her parental rights. We affirm.
¶2 We review the following issue on appeal:
¶3 Did the District Court abuse its discretion by terminating D.M.’s parental rights, based in part on its reliance on D.M.’s stipulation, where J.M. had not been determined to be an Indian child for purposes ofICWA until after the adjudication of J.M. as a youth in need of care?
FACTUAL AND PROCEDURAL BACKGROUND
¶4 D.M. has a decade long history with the Department of Public Health and Human Services
1. The Adjudication of J.M. as a ‘Youth in Need of Care”
¶5 The Department removed J.M. from D.M.’s care at birth under emergency circumstances and placed her at Benefis Hospital in Great Falls due to medical conditions. The Department attempted to contact the Blackfeet Social Services to seek culturally-appropriate placement options for J.M. on her release based on the Department’s belief that J.M. might be an Indian child for purposes of the Indian Child Welfare Act (ICWA).
¶6 The Department petitioned for adjudication of J.M. as a youth in need of care and temporary legal custody on February 7, 2008, in response to alleged neglect and ongoing drug abuse by D.M. The Department also cited the failure of prior efforts to provide remedial services and rehabilitation programs to D.M. The Department notified the Blackfeet Tribe of the proceeding and the possibility that J.M. might be an Indian child. The Department based its belief that J.M. might be a member of the Blackfeet Tribe on D.M.’s identification of three possible putative fathers, including V.D., to whom D.M. was married at the time of J.M.’s conception. D.M. and V.D. divorced before the Department initiated these proceedings. Montana law presumes J.M. to be the natural child of V.D., however, because she was born within 300 days of the termination of D.M.’s marriage to V.D. Section 40-6-105(a), MCA. D.M.’s marriage to V.D. does not determine definitively J.M.’s status for purposes of ICWA. We nevertheless note D.M.’s marital status as it prompted the Department to notify the Blackfeet Tribe of J.M. as a possible Indian child. The Department had not completed DNA testing of V.D. or the other surviving putative father at the time of the petition.
¶7 The Department appeared at the adjudicatory hearing on May 13, 2008, with a social worker and an ICWA expert who were prepared to testify on the need for temporary legal custody of J.M. D.M. instead stipulated through counsel to the adjudication of J.M. as a youth in need of care and temporary legal custody. D.M. stipulated to granting temporary legal custody of J.M. to the Department for a period of up to six months to allow D.M. to complete her court approved treatment plan. Counsel for D.M. also recognized the potential application of ICWA and waived testimony of the Department’s ICWA expert.
¶8 The court adjudicated J.M. as a youth in need of care on May 15, 2008, and granted the Department temporary legal custody. The court observed that the Blackfeet Tribe had not indicated whether J.M. was an Indian child for purposes of ICWA and noted D.M.’s stipulation pursuant to §41-3-434(l)-(2), MCA. The court concluded that ‘based on these facts and the stipulation of the Mother, a legal basis exists for continued court and [Department intervention.”The court cited D.M.’s continuing substance abuse, the prior terminations of her parental rights, and her stipulations in the instant case as clear and convincing evidence in support of its adjudication and temporary custody order.
2. The Termination of D.M.’s Parental Rights
¶9 The Department petitioned for termination of D.M.’s parental rights in November 2008, based on D.M.’s lack of progress with her court ordered treatment plan. The Department submitted a Permanency Plan Report in January 2009, reflecting the fact that J.M.’s paternity had been established, and that J.M. was an Indian child for purposes of ICWA. The Department stated that a Blackfeet Tribal Services representative would be invited to the Foster Care Review Committee meeting scheduled for February 19, 2009.
¶11 The Blackfeet Tribe filed a notice of intention to intervene to monitor the proceeding on February 16, 2009. The court issued an order granting the Blackfeet Tribe’s motion to intervene on February 24, 2009. The court filed its order terminating D.M.’s parental rights on the following day.
STANDARD OF REVIEW
¶12 We review a district court’s decision to terminate parental rights to determine whether the court abused its discretion. In re F.M.,
DISCUSSION
¶13 Did the District Court abuse its discretion by terminating D.M.’s parental rights, based in part on its reliance on D.M.’s stipulation, where J.M. had not been determined to be an Indian child for purposes of ICWA until after the adjudication of J.M. as a youth in need of care?
¶14 D.M. argues that the District Court violated 25 U.S.C. § 1913 when it accepted D.M.’s stipulation of J.M. as a youth in need of care without first explaining the consequences and then obtaining her written consent. Section 1913 provides that a parent’s consent to the foster care placement of a child or termination of parental rights is invalid unless executed in writing and with procedural safeguards designed to ensure that the parent understands the consequences of her consent. 25 U.S.C. §1913(a). D.M. argues that the District Court’s failure to follow the requirements of § 1913(a) invalidated the court’s adjudication of D.M. as a youth in need of care.
¶15 Whether § 1913(a) applies to D.M. turns on the issue of whether the proceedings were “voluntary.”D.M. argues that §1913’s failure to distinguish between “voluntary” and ‘Involuntary” proceedings supports her claim that §1913(a) applies to all voluntary “acts of foster care placement or termination of parental rights ... regardless of the type of underlying procedure at issue.” Thus, D.M. argues that her consent to adjudication and temporary placement triggered § 1913 notwithstanding the adversarial nature of the Department’s petition. ¶16 D.M. argues against our adoption of the reasoning in a recent decision of the Washington Court of Appeals that held that § 1913(a) did not apply to an involuntary custody proceeding. In re Welfare of M.G.,
¶17 D.M. correctly observes that §1913 does not distinguish on its face between voluntary and involuntary proceedings. Section 1913 by its terms, however, implicates voluntarily initiated termination or foster care proceedings.
¶18 Moreover, the Bureau of Indian Affairs titled its guidelines to § 1913 ‘Voluntary Proceedings” and clearly distinguished the § 1913 consent provisions from the procedure and rules applicable to ‘Involuntary Proceedings”to which §1912 applies. See 44 Fed. Reg. 67, 593 (1979) (BIA Guideline E). If § 1913(a) were applied here, the court’s temporary placement of J.M. with the Department would be deemed voluntary and revocable by D.M. This scenario makes no sense in light of D.M.’s extensive history of drug abuse, and her failure to complete the most recent in a series of court approved treatment plans. These circumstances prompted the Department to initiate the adjudication. Allowing D.M. to characterize her stipulation as a voluntary act triggering §1913 would ignore this history.
¶19 We faced an analogous situation in In re P.S.,
¶20 We turn now to the primary issue of whether the District Court abused its discretion by relying, in part, on D.M.’s stipulation in the adjudication of J.M. as a youth in need of care and its subsequent termination of D.M.’s parental rights. Any involuntary proceeding triggers ICWA’s procedural safeguards “where the court knows or has reason to know that an Indian child is involved.” 25 U.S.C. § 1912(a). The court must verify the child’s status with the Bureau of Indian Affairs or the child’s tribe when it ‘has reason to believe that a child involved in a child custody proceeding is an Indian.” Guidelines for State Courts; Indian Child Custody Proceedings B.l. (a) 44 Fed. Reg. 67, 586 (1979). In accordance with these guidelines, ICWA applies when a court has reason to know that a child may be an Indian child. In re
¶21 Where, as here, the Department had reason to believe that it might be dealing with an Indian child, and in fact notified the tribe to that effect, we have held that a district court abused its discretion when it failed to resolve definitively the threshold question of whether the children at issue were ‘Indian children” within the meaning of ICWA. A.G., ¶ 15. We determined that the district court should have delayed final adjudication pending a determination of the children’s status once it had initiated proceedings to discover the Indian status of the children. A.G., ¶ 16. The court instead unilaterally determined that the children were not “Indian children” despite responses from the Tribes indicating that further research was needed. A.G., ¶ 5. The court also heard evidence from the mother and the children’s
¶22 These facts distinguish this case from A. G. First, D.M. stipulated to the youth in need of care adjudication and to the treatment plan. A parent’s valid stipulation under § 41-3-434, MCA, can satisfy the required findings for the adjudication of a youth in need of care even absent an evidentiary hearing. In re M.W.,
¶23 Second, the Department notified the Blackfeet Tribe in this case of the proceedings at an early stage. The Court in A. G., by contrast, terminated the mother’s parental rights before the Tribe had made a final determination of the child’s status. The record indicates that the Department attempted to work with Blackfeet Social Services to find a culturally-appropriate placement for J.M. in anticipation of her release from the hospital. These actions reflect the Department’s belief that J.M. qualified as an Indian child for purposes of ICWA. The District Court’s order adjudicating J.M. as a youth in need of care reflects that D.M. stipulated that ICWA applied and that D.M. “waived the testimony of the ICWA expert who was in court.” The record further reflects that the Department had invited a tribal representative to the permanency plan hearing. A qualified ICWA expert testified at the termination hearing that “continued custody of the Youth by the Mother would likely result in serious emotional or physical damage to the child.” Finally, the Blackfeet Tribe gave notice of its intention to exercise its right of intervention under 25 U.S.C. § 1911(c) to “monitor the custody proceeding.” The Blackfeet Tribe tellingly has not interceded on D.M.’s behalf or objected to the termination of her parental rights.
¶24 The District Court complied with ICWA in finding by clear and convincing evidence that J.M. was a youth in need of care. The court found beyond a reasonable doubt-also as required by ICWA-that J.M.’s physical, mental, and emotional best interests would be served by termination of the parent-child legal relationship. The fact that the court accepted D.M.’s stipulation to the adjudication of J.M. as a youth in need of care before it had definitively established J.M.’s Indian status does not invalidate the proceedings. The District Court did not abuse its discretion when it terminated D.M.’s parental rights.
¶25 Affirmed.
Concurrence Opinion
concurs.
¶26 I concur in the result of the Court’s Opinion and for much of what is said therein. I do not agree, however, with the discussion that at the time the Blackfeet Tribe was first notified, the paternity of J.M. was yet to be decided. V.D. was one of J.M.’s putative fathers. As D.M. points out, however, she was married to V.D. at the time of J.M.’s conception. The District Court even referred to V.D. as the birth father. As noted in the Opinion, §40-6-105(l)(a), MCA, provides that a person is presumed to be the natural father of a child if the person and the child’s natural mother are or have been married to each other and the child is born during the marriage or within 300 days after the marriage is terminated. See In re Marriage of K.E.V.,
¶27 Additionally, and without going into the detail that appellate counsel did, I agree that the law was not entirely followed in this
¶28 Finally, with regard to appellate counsel, in my view, she wrote excellent, thoroughly researched briefs on appeal, and she zealously and professionally represented her client. For that, unfortunately, she was sharply criticized by the State in its appellate brief. Over several pages, the State took her to task for her
very unfair decision to renege on the stipulation and waiver of OSPD counsel [Office of State Public Defender] below ....
Furthermore, it is patently unfair for the OSPD (Appellate Defender) to attack as plain error a stipulation an OSPD lawyer made below. It is unfair to Judge Neill and it [is] also unfair to J.M. and her foster parents.... The Appellate Defender’s decision to renege on its stipulation also does not promote Indian cultural or tribal interests....
[Trial counsel’s] stipulation, which was made before Indian child status was ascertained, should be honored by the Appellate Defender. At the very least, the district court... cannot be accused of plain error....
State’s counsel also accused the OSPD of pursuing a trial strategy of not making objections so that the error can then be raised under a plain error argument on appeal-fehus causing delay in child abuse cases, discouraging the OSPD from training its lawyers to raise timely objections, and being unfair to the trial judge. I could not disagree more with the State’s comments.
¶29 In the first place, appellate counsel has no moral, legal or ethical obligation to roll over and play dead for the convenience of the District Court or the State when she finds in the record legitimate appellate issues-regardless that her client’s OSPD trial attorney might have been part of the problem. Indeed, Montana Rule of Professional Conduct (M.R.P.C.) 1.1 demands that an attorney provide competent representation to a client4hat is, representation which encompasses legal knowledge, skill, thoroughness and preparation. Appellate counsel provided her client with competent representation on appeal in this case within that definition. Moreover, appellate counsel advocated for her client within the parameters of M.R.P.C. 3.1,3.3 and 3.4.1 can find no basis for the State’s criticism here. Secondly, it is the litigants in our system of justice that are entitled to due process and to fundamental fairness, not the trial judge. Indeed, the trial judge is supposed to make sure that each litigant is accorded procedural and substantive due process and that the law is followed. And, finally, instead of railing on the OSPD, the Attorney General’s training people might take the occasional opportunity to remind prosecutors of what this Court said in State ex rel. Fletcher v. Dist. Court,
[t]he prosecutor’s role is a unique one within the criminal justice system. Though the [county] attorney must diligently discharge the duty of prosecuting individuals accused of criminal conduct, the prosecutor may not seek victory at the expense of the defendant’s constitutional rights. Thus, the prosecution is obligated to respect the defendant’s right to a fair and impartial trial in compliance with due process of law. Moreover, the prosecutor may not bring criminal charges against anindividual unless supported by probable cause, and, once charges are instituted, must reveal to the court any information which negates the existence of probable cause. ...
[T]he role of the prosecutor ... [is not] simply a specialized version of the duty of any attorney not to overstep the bounds of permissible advocacy .... In all his activities, his duties are conditioned by the fact that he is the representative not of any ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all.... Thus, the prosecutor must execute the duties of his representative office diligently and fairly, avoiding even the appearance of impropriety that might reflect poorly on the state. [Internal quotations and citations omitted.]
While I do not excuse mistakes and sloppy work by the OSPD, I also do not excuse the prosecutor taking advantage of that where the fundamental constitutional rights of parents and the best interests of abused and neglected children are involved. Given the prosecutor’s unique obligations as described above and, presumably, greater expertise, trial courts might be dissuaded from heading down the wrong path if the county attorney gave the judge a heads-up warning. ¶30 I appreciate the sort of well-written, well-researched, and well-argued briefs that appellate counsel filed in this case. That she did not prevail is more a function of a losing cause; not for her lack of diligence or admirable effort.
¶31 Quote-worthy, too, is appellate counsel’s response in her reply brief to the State’s criticism. She stated:
Finally, the Department’s insinuation that “OSPD” intentionally fails to train trial counsel as part of an agency-wide strategy to gain a tactical advantage on appeal is preposterous.1 Appellate counsel for the mother has an obligation to zealously represent the mother and to raise on her behalf nonfrivolous appellate issues, including claims of plain error by the trial court and ineffective assistance of trial counsel. Appellate counsel does not have the same obligation to ensure the system is ‘fair” to the district court judge, the child, or the child’s foster parents. Moreover, the idea that it is somehow “unfair” to expect district court judges to follow the law is absurd. People make mistakes, even district court judges. It is appellate counsel’s job to ensure those mistakes are presented to this Court for review, and it is this Court’s job to review them, if circumstances warrant. When the law is plain, the district court nonetheless makes a decision in contravention of that law, and that decision compromises the integrity of the judicial process and affects the mother’s fundamental right to parent, appellate counsel has the duty to raise the issue before this Court on appeal, regardless of what trial counsel’s position below may have been. The mother contends this is the case here and urges the Court to exercise its inherent power to review these important issues now. [Internal citations omitted.]
I agree.
¶32 With those caveats, I concur.
Notes
As Appellate Counsel also notes, given OSPD’s record on appeals in abuse and neglect proceedings since its inception three years ago, had OSPD enacted such a system-wide strategy, it could fairly be deemed a failure at this point.