IN THE MATTER OF: J.M., A Youth in Need of Care.
DA 09-0178
IN THE SUPREME COURT OF THE STATE OF MONTANA
October 14, 2009
2009 MT 332
Honorable Kenneth R. Neill, Presiding Judge
APPEAL FROM: District Court of the Eighth Judicial District, In and For the County of Cascade, Cause No. CDJ 08-063-Y
For Appellant:
Jim Wheelis, Chief Appellate Defender; Tammy A. Hinderman, Assistant Appellate Defender, Helena, Montana
For Appellee:
Hon. Steve Bullock, Montana Attorney General; Mark W. Mattioli, Assistant Attorney General, Helena, Montana
John Parker, Cascade County Attorney; Sarah Corbally, Deputy County Attorney, Great Falls, Montana
Submitted on Briefs: August 5, 2009
Decided: October 13, 2009
Filed:
Clerk
¶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 of ICWA 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 Health and Human Services (Department), including multiple instances of drug abuse and involvement with law enforcement. The courts have terminated D.M.‘s parental rights to five other children after she failed to follow previous treatment plans with respect to two children and voluntarily relinquished her rights to three others following the initiation of termination proceedings by the State.
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.
¶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
¶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
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.
¶10 The termination hearing commenced on December 16, 2008, and concluded February 10, 2009. The Department presented evidence that D.M. had failed to complete treatment
¶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., 2002 MT 180, ¶ 21, 311 Mont. 35, 53, P.3d 368. A trial court abuses its discretion when it “acts arbitrarily, without employment of conscientious judgment, or exceeds the bounds of reason resulting in substantial injustice.” In re the Matter of A.G., 2005 MT 81, ¶ 12, 326 Mont. 403, 109 P.3d 756. Where ICWA applies, we will uphold a district court‘s termination of parental rights if a reasonable fact finder could conclude beyond a reasonable doubt that continued custody of the child by the parent is likely to result in serious emotional or physical damage to the child. In the Matter of T.W.F., 2009 MT 207, ¶ 18, 351 Mont. 233, 210 P.3d 174.
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
¶14 D.M. argues that the District Court violated
¶15 Whether
¶16 D.M. argues against our adoption of the reasoning in a recent decision of the Washington Court of Appeals that held that
¶17 D.M. correctly observes that
¶18 Moreover, the Bureau of Indian Affairs titled its guidelines to
¶19 We faced an analogous situation in In re P.S., 2006 MT 4, 330 Mont. 239, 127 P.3d 451. The Department had initiated termination proceedings. The father, in an effort to forestall the involuntary termination and its attendant consequences for future children, sought to relinquish voluntarily his parental rights. P.S., ¶ 8. An involuntary termination leads to a presumption in favor of termination of parental rights to future children. Id.;
¶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.”
¶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. Id., ¶ 16. The court instead unilaterally determined that the children were not “Indian children” despite responses from the Tribes indicating that further research was needed. Id., ¶ 5. The court also heard evidence from the mother and the children‘s grandmother concerning the children‘s eligibility for tribal enrollment, including a letter from the tribe indicating that it would intervene on the mother‘s behalf. Id., ¶ 7.
¶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
¶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
¶24 The District Court complied with ICWA in finding by clear and convincing evidence
¶25 Affirmed.
/S/ BRIAN MORRIS
We Concur:
/S/ MIKE McGRATH
/S/ PATRICIA O. COTTER
/S/ JOHN WARNER
Justice James C. Nelson 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,
¶27 Additionally, and without going into the detail that appellate counsel did, I agree that the law was not entirely followed in this case. I have joined the Court‘s Opinion, but perhaps, for the wrong reason. Quite simply, given D.M.‘s dismal track record and the unlikelihood that she will ever be able to parent J.M., I simply cannot find a good reason to send this case back to the District Court for further proceedings. I do not believe that would be in J.M.‘s best interest when the likely outcome would be exactly the same. Moreover, given J.M.‘s Indian status, her tribe had substantial input and involvement throughout this case. Therefore, the spirit, if not the letter, of ICWA was followed. Though my decision is, admittedly, result-oriented, that is not to say that I disagree with appellate counsel‘s arguments on appeal.
¶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—thus 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 client—that 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. I can find no basis for the State‘s criticism here.
[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 an individual 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
¶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.
/S/ JAMES C. NELSON