IN THE MATTER OF M.B., E.B., and B.B., Youths in Need of Care.
DA 08-0443
IN THE SUPREME COURT OF THE STATE OF MONTANA
March 31, 2009
2009 MT 97
APPEAL FROM: District Court of the Second Judicial District, In and For the County of Silver Bow, Cause Nos. DN-2006-041, DN-2006-042, and DN-2007-031, Honorable Brad Newman, Presiding Judge
For Appellant:
Nancy L. Rohde, Rohde Law & Associates, LLC, Billings, Montana
For Appellee:
Steve Bullock, Montana Attorney General, Matthew T. Cochenour, Assistant Attorney General, Helena, Montana
Submitted on Briefs: February 11, 2009
Decided: March 31, 2009
Filed:
Clerk
¶1 Appellants Roberta and Thomas Rawson (the Rawsons), Intervenors in these three consolidated causes of action, appeal from the final judgment and order of the Second Judicial District, Silver Bow County, denying Intervenors’ motion for new trials or for amended judgments and denying Intervenors’ motion to stay the judgments. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 In December 2006, the Department of Public Health and Human Services (DPHHS) filed a petition for emergency protective services, adjudication as youths in need of care and temporary legal custody for two children, one-year-old E.B. and three-week-old M.B. In September 2007, DPHHS filed another such petition for four-day-old B.B. The first petition was based on a report that the mother tested positive for methadone when she gave birth to M.B. and the second was based on the mother‘s admitted drug use while pregnant with B.B. All three children were placed in foster care with the Rawsons, who live in Whitehall, Montana. E.B. was born in May 2005 and was nineteen months old when placed with the Rawsons, M.B. was born in November 2006 and was nineteen days old when placed with the Rawsons, and B.B. was born in November 2007 and was removed from his mother‘s care at birth and, after a month in the hospital, was placed with the Rawsons.
¶3 After the children were placed in temporary foster care with the Rawsons, DPHHS designed a number of treatment plans for the birth mother and birth father, which provided remedial services and rehabilitative programs, with the hope of eventually returning the children to their parents. Both parents repeatedly failed the treatment plans
¶4 In May 2008, the Rawsons filed motions to intervene “to enable them to be heard for the purposes of permanency and placement” for the three children. The motions stated that “[i]mportantly, this matter involves an Indian Child as defined in the Indian Child Welfare Act (ICWA) of 1978 (
¶5 All three children are eligible for enrollment as members of the Little Shell Tribe of Chippewa Indians (Little Shell Tribe). The tribe is recognized in Montana but is not a federally recognized tribe. Their enrollment status is due to their father being an enrolled member of the Little Shell Tribe.
¶7 After the termination hearing, the Rawsons filed a motion to continue the placement hearing. The motion stated, among other things, that the court had failed to comply with ICWA‘s requirement to notify the Little Shell Tribe of its rights to intervene in the proceedings. The motion stated there is “some concern with ICWA issues that could pose future problems.” The Rawsons noted that they “did not intend or want undue delay in effectuating the permanency of these children” but that “it would be the children who would suffer the most ill effects of any challenge or invalidation of an adoption . . . .” The motion also pointed out that the standard of proof ICWA required for the
¶8 In July 2008, the court held a hearing on the Rawson‘s motion for an order restraining DPHHS from removing M.B., E.B. and B.B. from their care and also on the issue of whether the Rawsons could demonstrate good cause to deviate from the adoptive placement preferences set forth in ICWA. The Rawsons presented a number of witnesses including an occupational therapist for the children, a family support specialist who has worked with the children, an ICWA qualified expert in the area of Indian culture, and testimony from foster mother Roberta Rawson. DPHHS presented testimony from a child protection specialist and an ICWA qualified expert in the area of Indian culture. The children‘s guardian ad litem was present and did not testify but submitted a report concerning placement. The court also noted that the Little Shell Tribe was given notice of the July 2008 hearing, as well as notice of numerous prior hearings, and that no representative of the Little Shell Tribe appeared or otherwise indicated an interest in having the tribe represented in these proceedings.
¶9 In August 2008, the District Court entered findings of fact, conclusions of law and an order concluding that the Nesbitts qualified as “extended family members” under ICWA, placing the children with the Nesbitts satisfied the purpose of ICWA and the Rawsons failed to show good cause to deviate from ICWA‘s preferred placements. The
ISSUES
¶10 The sole issue on appeal is whether the District Court abused its discretion when it approved DPHHS‘s adoptive placement of M.B., E.B. and B.B. with Doug and Trudie Nesbitt.1
STANDARD OF REVIEW
¶11 The same standard of review applies to both termination of parental rights and custodial determinations. In both instances, the District Court‘s decision is afforded “all reasonable presumptions as to the correctness of the determination” and therefore such
DISCUSSION
¶12 Did the District Court abuse its discretion when it approved DPHHS‘s adoptive placement of M.B., E.B. and B.B. with Doug and Trudie Nesbitt?
¶13 The Rawsons argue the District Court erred when it found there was not substantial credible evidence to show “good cause” to deviate from the adoptive placement preferences as set forth in ICWA. The Rawsons also argue the District Court‘s conclusions of law were incorrect. More specifically, the Rawsons argue they meet all three factors in the Bureau of Indian Affairs (BIA) guidelines that demonstrate a “good cause” exception to the adoptive placement preferences set forth in ICWA. First, the Rawsons argue the District Court should have deviated from the placement preferences because “both biological parents indicated directly to the district court their desires to have their three children remain with the Rawson[s].” They also maintain that the State‘s argument that it was not appropriate for the court to consider the parents’ wishes in this case, was based on the BIA guidelines being “taken out of context.” Second, the Rawsons argue the District Court abused its discretion when it did not
¶14 DPHHS asserts that “[s]ubstantial credible evidence supports the district court‘s findings” and DPHHS urges this Court to affirm the placement of the children with the Nesbitts. DPHHS argues that the “good cause” exceptions in the BIA guidelines do not apply because the exception regarding the request of the biological parents “is inapplicable in this case and provides no grounds to deviate from ICWA‘s placement preferences.” Furthermore, DPHHS argues that the exception regarding the children‘s extraordinary physical or emotional needs does not apply because “the witnesses’ testimony does not indicate that the children have ‘extraordinary physical or emotional needs’ that require ‘highly specialized treatment.‘” Finally DPHHS claims that “[c]ontrary to the [Rawsons‘] assertion, the court‘s conclusion that the [Nesbitts] qualified as ‘extended family members’ does not amount to a new definition of extended family.”
¶15 The policies behind the passage of ICWA include the finding that “there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children and that the United States has a direct interest . . . in protecting Indian children who are members of or are eligible for membership in an Indian tribe . . . .”
[I]t is the policy of this Nation 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 . . . .
¶16 Following the passage of ICWA, the BIA promulgated guidelines to assist state courts in the interpretation and application of ICWA.
¶17 The Rawsons make three separate arguments as to why ICWA‘s adoptive placement preferences should not be followed. We will address each in turn. First, the Rawsons argue that the first of the criteria for establishing good cause is met because “both biological parents indicated directly to the district court their desires to have their three children remain with the Rawson[s].” The text in the Federal Register contains a footnote with commentary elaborating on the three “good cause exceptions.” In reference to the first exception, the footnote reads: “[p]aragraph (i) is intended to permit parents to ask that the order of preference not be followed because it would prejudice confidentiality or for other reasons.” 44 Fed. Reg. at 67,594, Fn. 3. This text indicates the purpose of this exception is to protect the biological parents’ confidentiality, if they so choose. In this case, the biological parents were not seeking to protect their confidentiality. The Rawsons interpret the language “the request of the biological parents” to mean that their request that the children be placed with the Rawsons should be considered in determining good cause. This interpretation, however, does not fit within the plain language contained in the guidelines. Thus, this exception does not apply, and the Rawsons did not argue any “other reasons.”
¶19 In this case, the testimony of both the occupational therapist and the family support therapist indicated that overall the children were doing well. The occupational therapist had “terminate[d] services” to the children unless something came up and she agreed that the “kids are doing pretty well.” The family support therapist said that E.B. has made “great gains,” M.B. is “doing great now” and no longer qualifies for her
¶20 While the therapists spoke to the gains the children had made, both expressed concerns about possible regression if the children were moved to a different home and were required to begin anew with forming trust bonds with caregivers. They based these concerns on their observations of the children after they had returned from visits to the Nesbitts. The occupational therapist testified that when she met with E.B. after such visits, E.B. exhibited “severe tantrums,” had “regressed in all of her motor skills and in her sensory issues, was not able to self-regulate, was a very angry child, at times became mute . . . .” The occupational therapist noted M.B. showed “[v]ery clingy behavior” and that in general the children exhibited “clinginess” and “anger” and an “inability to self-regulate and feel safe.” She also concluded that her ongoing concern was with “consistency.” The family support therapist indicated her concerns about the children, E.B. in particular, being removed from the Rawsons’ care because she is “concerned about disrupting this bond that [E.B.] has created that‘s very strong with [the Rawsons], and that that could cause regression in so many of those skill areas” that she has worked on with E.B. And, with M.B. and B.B. she is concerned because “they have created a bond and they‘re young, and if that bond was broken, then exhibiting similar characteristics [as E.B. did when she first began working with the therapists].”
¶21 While the concerns expressed by the therapists certainly show potential impacts on the children if ICWA‘s placement preferences are followed, these needs do not rise to the level of “extraordinary physical or emotional needs” requiring “highly specialized
¶22 Third, the Rawsons did not address the third good cause exception but argue the District Court erred in its legal conclusion that ICWA‘s definition of “extended family” includes adult persons who have adopted other siblings. The Rawsons assert that “[s]ibling connections are important but they do not rise to making new definitions of extended family.” ICWA states that an “‘extended family member’ shall be as defined by the law or custom of the Indian child‘s tribe or, in the absence of such law or custom, shall be a person who has reached the age of eighteen and who is the Indian child‘s grandparent, aunt or uncle, brother or sister, brother-in-law or sister-in-law, niece or nephew, first or second cousin, or stepparent . . . .”
¶23 The District Court made the following conclusion of law: “[a]bsent case law to the contrary, and in light of the testimony of the Little Shell Tribe ICWA expert witness, it is reasonable and logical to conclude that the adoptive parents of a Little Shell Indian child‘s full-blood birth sibling qualify as ‘extended family members’ within the meaning of the Act.” Before the District Court made this conclusion, each side presented testimony from a qualified ICWA expert as to the interpretation of the definition of “extended family member.” The witness for the Rawsons testified that, in her knowledge of ICWA as well as tribal culture, the Nesbitts would not fall under the definition of “extended family member” in ICWA. She testified that even though sibling relationships are important, that doesn‘t mean all the siblings have to be in the same home. She also
¶24 The District Court determined this testimony was sufficient to support the conclusion that the Nesbitts would be considered “extended family member[s]” under ICWA. Absent caselaw to the contrary and because we afford a district court‘s decision “all reasonable presumptions as to the correctness of the determination” we agree there exists substantial credible evidence to determine the Nesbitts fit within ICWA‘s definition of “extended family member.”
CONCLUSION
¶25 The District Court did not abuse its discretion in determining good cause did not exist to deviate from the placement preferences in ICWA and in placing the children with the Nesbitts. The District Court‘s findings and conclusions were supported by substantial credible evidence that there was not good cause to deviate from ICWA‘s placement preferences or to conclude the Nesbitts did not fit into the definition of “extended family member” as contemplated by ICWA.
/S/ JAMES C. NELSON
We Concur:
/S/ JOHN WARNER
/S/ PATRICIA COTTER
/S/ W. WILLIAM LEAPHART
/S/ BRIAN MORRIS