IN THE MATTER OF: H.T., A Youth in Need of Care.
DA 14-0076
IN THE SUPREME COURT OF THE STATE OF MONTANA
February 10, 2015
2015 MT 41
Honorable Julie Macek, Presiding Judge
FILED February 10 2015 Ed Smith CLERK OF THE SUPREME COURT STATE OF MONTANA Case Number: DA 14-0076
COUNSEL OF RECORD:
For Appellant:
Jeanne M. Walker, Hagen & Walker, PLLC, Billings, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Pamela P. Collins, Assistant Attorney General, Helena, Montana
John Parker, Cascade County Attorney, Jennifer Quick, Deputy County Attorney, Great Falls, Montana
Submitted on Briefs: December 24, 2014
Decided: February 10, 2015
Filed:
Clerk
¶1 B.T. (Mother) appeals an order of the Eighth Judicial District Court terminating her parental rights to her daughter, H.T. She asserts that the District Court failed to comply with both state and federal statutory requirements for terminating parental rights to an Indian child. We address the following issues on appeal:
- Whether the termination of Mother‘s rights must be reversed because the District Court failed to hold an adjudicatory hearing that complied with
§ 41-3-437, MCA . - Whether the District Court‘s failure to follow statutory requirements for proceedings subject to the Indian Child Welfare Act requires reversal.
¶2 We affirm on the first issue, and vacate and remand for entry of a new order on the issue of termination.
PROCEDURAL AND FACTUAL BACKGROUND
¶3 The Montana Department of Public Health and Human Services (Department) filed a petition for emergency protective services on October 10, 2012, alleging drug use by Mother and domestic violence between Mother and her boyfriend.1 The affidavit of a child protection specialist attached to the petition explained the circumstances. Law enforcement officers contacted the Department after being called to a Great Falls motel for a domestic violence incident. Seven-year-old H.T. told the specialist that Mother began drinking and arguing with her boyfriend on the night that H.T. was taken into emergency protective custody. Mother and H.T. left the motel to visit Mother‘s friend, from whom they obtained pills that they brought back to the room. H.T. reported that Mother and her boyfriend
¶4 The Department‘s petition sought immediate protection and temporary legal custody of H.T. to prevent further exposure to abuse and neglect. The petition stated that “the child may be an Indian Child for the purposes of the Indian Child Welfare Act [ICWA].” The accompanying affidavit further indicated that inquiry had been made of Mother and of the maternal grandparents regarding H.T.‘s tribal affiliation. Based on those inquiries, notices of the action were sent to the Blackfeet Tribe and to the Assiniboine and Sioux Tribes of the Fort Peck Indian Reservation. The affidavit also stated that a letter had been sent to the Bureau of Indian Affairs for confirmation of tribal affiliation.2 The District Court granted the motion for emergency protective services and temporary legal custody. The court‘s October 17, 2012 order found that the Department was justified in not making active efforts to prevent H.T.‘s removal from the home “because the child was in immediate or apparent danger of harm.”
¶5 Following the Department‘s efforts to locate a suitable kinship placement, H.T. was placed with a maternal great aunt on October 26, 2012. On November 15, 2012, the District Court held a show cause hearing. Mother did not contest probable cause at the show cause
¶6 The District Court initially set the adjudicatory hearing for February 7, 2013, but later rescheduled the hearing for April 25, 2013. The Department filed a supplemental affidavit on April 17 that updated information about H.T. and Mother since the child‘s removal. The affidavit indicated that the Department had received information that H.T. was eligible for enrollment in the Fort Belknap Tribe. At the commencement of the April 25 hearing, the court began by stating, “This is the time that has been set for a show cause hearing in the matter of [H.T.]” The Department‘s counsel indicated that the matter was set for disposition and that a treatment plan had been signed by all parties. The court then announced, “I stand corrected. This is a dispositional hearing.” The court inquired about Mother‘s stipulation to her treatment plan and about H.T.‘s current placement. Mother confirmed that she understood the treatment plan; her appointed counsel, who by that time had been substituted for Mother‘s previous attorney, indicated that there was no objection to temporary legal custody or to the treatment plan. The hearing never addressed H.T.‘s adjudication and the record contains no stipulation to adjudication of H.T. as a youth in need of care.
¶7 The District Court issued an order after the April 25, 2013 hearing that adjudicated H.T. a youth in need of care. The order also required Mother to comply with her treatment plan, approved of H.T.‘s current placement, and granted the Department temporary legal custody for six months.
¶9 The Department filed a petition for permanent legal custody and termination of parental rights on November 6, 2013. The termination petition alleged that Mother had not complied with her treatment plan and that H.T.‘s father had abandoned H.T. The Department filed a notice on November 18, 2013, establishing that Fort Belknap had confirmed receipt of the termination petition on November 13, 2013. The court held a termination hearing on January 9, 2014, and adopted and approved the termination petition. Fort Belknap did not participate in the proceedings. The court later issued a written order terminating both Mother‘s parental rights and the father‘s parental rights to H.T. and granting the Department permanent legal custody. Mother appeals.
STANDARDS OF REVIEW
¶10 Compliance with state statutory requirements presents a question of law that we review for correctness. State v. Parks, 2013 MT 280, ¶ 20, 372 Mont. 88, 310 P.3d 1088; In re B.N.Y., 2003 MT 241, ¶¶ 18, 28, 317 Mont. 291, 77 P.3d 189. We will not disturb a district court‘s decision on appeal unless there is a mistake of law or a finding of fact not supported by substantial evidence that would amount to a clear abuse of discretion. In re
¶11 “In a case governed by ICWA, we will uphold the district court‘s termination of parental rights if a reasonable fact-finder could conclude beyond a reasonable doubt that continued custody by the parent is likely to result in serious emotional or physical damage to the child.” In re K.B. & T.B., 2013 MT 133, ¶ 18, 370 Mont. 254, 301 P.3d 836. We review the court‘s application of the law to the facts of the case for correctness. Id., ¶ 18.
DISCUSSION
¶12 1. Whether the termination of Mother‘s rights must be reversed because the District Court failed to hold an adjudicatory hearing that complied with
¶13 Mother does not dispute that she did not raise before the District Court any of the issues on which she appeals. She argues that her appeal nevertheless is reviewable because it is based on violations of
¶14 Generally, this Court will not review an issue raised for the first time on appeal. In re D.K.D., 2011 MT 74, ¶ 16, 360 Mont. 76, 250 P.3d 856. We apply the common law plain
¶15 Under Montana law, a court may terminate a parent‘s rights for failure to successfully complete or to comply with a court-ordered treatment plan only if the child is first adjudicated a youth in need of care in accordance with
¶16 A parent may stipulate that the child meets the definition of a youth in need of care.
¶17 It appears from review of the record that the Department assumed, based on Mother‘s other stipulations, that she stipulated to adjudication and that the matter was set for disposition when the parties appeared in open court on April 25, 2013. As noted above, the record does not contain any such stipulation. The Department argues on appeal that Mother‘s stipulation to her treatment plan “necessarily meant that [Mother] also stipulated that H.T. was a Youth in Need of Care.” In In re M.J.W., 1998 MT 142, ¶¶ 12-13, 289 Mont. 232, 961 P.2d 105, however, we held that neither a finding sufficient to establish child abuse or neglect nor an order approving of the parents’ treatment plans constituted adjudication where the court did not address adjudication in any way. Likewise, we have observed that adoption of a stipulation for temporary legal custody “does not equate to an adjudication by the court that the children were youths in need of care.” In re the Matter of M.O., M.O., and M.O., 2003 MT 4, ¶ 19, 314 Mont. 13, 62 P.3d 265. Similarly, Mother‘s stipulation to her treatment plan, though containing admissions sufficient to meet the definition of child abuse or neglect under
¶18 Without a stipulation to adjudication, the District Court was required to conduct an adjudicatory hearing. The hearing held on April 25, 2013, did not comply with
¶19 We have determined, however, that a court‘s failure to conduct a formal adjudicatory hearing may be harmless error. In re J.C., ¶ 54. This Court continually has stated that “we will not fault a district court for failing to address statutory deficiencies that are not brought to its attention during the proceedings because doing so would encourage litigants to withhold objections rather than raise the issues appropriately in the district court.” In re A.S., 2006 MT 281, ¶ 35, 334 Mont. 280, 146 P.3d 778 (quoting In re A.N.W., 2006 MT 42, ¶ 41, 331 Mont. 208, 130 P.3d 619). In In re A.S., we pointed out that a parent acquiesced to a child‘s adjudication as a youth in need of care when there was no objection to the adjudication and the adjudication was referenced repeatedly in court documents leading up to the termination hearing. Id., ¶ 35.
¶20 Mother stipulated to her treatment plan, which stated that she “admittedly has a history of drug usage” and “needed treatment for alcohol and drugs.” Mother‘s treatment plan acknowledges that, on the night of H.T.‘s removal, she abused prescription medications and drank alcohol “to the point of being unable to care for her daughter.” The plan also
¶21 Mother‘s treatment plan stipulates that she was unable to care for H.T. Mother never raised an objection to the court‘s subsequent order adjudicating H.T. a youth in need of care, and she failed to point out the court‘s error until this appeal. Mother does not contest her failure to follow her treatment plan. “We have held consistently that a district court may protect a child‘s best interest despite procedural errors that would have no impact upon the result.” In re M.S., 2014 MT 265A, ¶ 22, 376 Mont. 394, 336 P.3d 930 (citations omitted). Although the court erred by not holding a proper adjudicatory hearing prior to the termination of Mother‘s parental rights, this error was not “plain” or obvious. As in In re A.S., we hold that Mother waived her right to appeal the adjudication issue because she did not timely object or raise the issue before the District Court. Under the circumstances, the error did not undermine the fundamental fairness of the proceedings and reversing the termination order on this ground is not justified. In re J.C., ¶¶ 42-43; In re A.S., ¶ 35.
¶22 2. Whether the District Court‘s failure to follow statutory requirements for proceedings subject to the Indian Child Welfare Act requires reversal.
¶23 Congress enacted ICWA in 1978 “to protect the best interests of Indian children and to promote the stability and security of Indian tribes.”
¶25 Although Mother raises these arguments for the first time on appeal,
Any Indian child who is the subject of any action for foster care placement or termination of parental rights under State law, any parent or Indian custodian from whose custody such child was removed, and the Indian child‘s tribe may petition any court of competent jurisdiction to invalidate such action upon a showing that such action violated any provision of sections 101, 102, and 103 of this Act [
25 U.S.C. §§ 1911 ,1912 , and1913 ].
A. Notice
¶26 ICWA specifies that notice of an involuntary proceeding in state court and of the right of intervention must be given to an Indian child‘s tribe when a party seeks the foster care
¶27 Mother first argues that Fort Belknap did not receive notice of the April 25, 2013 hearing, without which adjudication was in error. Second, Mother argues that Fort Belknap did not receive notice by registered mail of the January 9, 2014 termination hearing. We address these arguments in order.
¶28 ICWA imposes a specific notice requirement for pending proceedings involving “the foster care placement of, or termination of parental rights to, an Indian child[.]”
¶29 In this case, H.T. was taken from her mother under emergency circumstances and placed in kinship foster care before the first status conference. The Department made efforts promptly to identify and notify the proper tribe. The tribe that ultimately was determined to be the child‘s tribe was not notified before the initial placement, but ICWA does not prevent
¶30 In most circumstances, the Department must give notice before a foster care placement occurs. After an emergency removal, ICWA proceedings must be initiated “expeditiously,” meaning that the Department is excused from the normal notice requirement but is obligated to provide prompt notice in compliance with
¶31 Mother also argues that the record does not establish ICWA-compliant notice to Fort Belknap of the termination hearing, because notice was not sent “by registered mail with
¶32 Mother complains that the return receipt the Department filed made it impossible to verify whether the notice of the termination was adequate; she speculates that the Department may have provided insufficient or inaccurate information, citing In re Morris. However, the return receipt from Fort Belknap contained the word “Termination,” H.T.‘s last name, the date of delivery, and the case number. Receipt was acknowledged a week after the Department‘s termination petition was filed with the court. The return receipt confirms that Fort Belknap was informed of the pending termination in a timely manner. This stands in sharp contrast to In re Morris, where the Michigan Supreme Court observed that the record before it contained “no postal return receipts indicating whether notice was received and, if so, by whom.” In re Morris, 491 N.W.2d at 69.
¶33 We conclude that the Department‘s notice to Fort Belknap of the proceedings in this case did not violate ICWA requirements. The only delay occurred when the Department did
B. Evidentiary requirements for the April 25, 2013 hearing
¶34 ICWA requires that “[a]ny 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 unsuccessful.”
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.
¶35 Mother argues that testimony about active efforts was required at the adjudicatory stage. The court‘s written order adjudicating H.T. a youth in need of care found that the Department made “reasonable efforts,” not active efforts. Mother also claims that the court erred when it used a “preponderance of the evidence” standard in its order adjudicating H.T. a youth in need of care, instead of the “clear and convincing evidence” standard prescribed by
¶36 ICWA plainly requires evidence of active efforts and “clear and convincing evidence” of “serious emotional or physical damage to the child” before foster care placements. Montana adheres to this requirement by demanding such evidence at the show cause hearing that must be conducted after the filing of an initial child abuse and neglect petition.
¶37 When an Indian child has been removed under emergency circumstances, however, ICWA requires the following:
The State authority, official, or agency involved shall insure that the emergency removal or placement terminates immediately when such removal or placement is no longer necessary to prevent imminent physical damage or harm to the child and shall expeditiously initiate a child custody proceeding subject to the provisions of this title [
25 USCS §§ 1911 -1923 ], transfer the child to the jurisdiction of the appropriate Indian tribe, or restore the child to the parent or Indian custodian, as may be appropriate.
¶39 At the hearing on April 25, 2013, Mother stipulated to temporary legal custody, allowing the Department to maintain the child‘s kinship foster care placement without demanding the additional findings required for such an order by
C. Evidentiary requirements for the termination hearing
¶40 ICWA provides:
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.
¶41 We dispense quickly with the first two arguments. At the termination hearing on January 9, 2014, the District Court stated on the record:
The Court finds that . . . continued custody of the child by the mother would likely result in serious emotional or physical damage to the child in light of her drug usage and her failure to acknowledge that . . . domestic violence is an unsafe situation for children to be present at, be a party to, watch their mother be abused, those are all situations that are extremely dangerous to children, and detrimental to them.
¶42 Mother‘s final argument reveals that the District Court incorrectly applied a “clear and convincing evidence” standard in its written order on the termination of Mother‘s parental rights. At the termination hearing, although the court stated that it made all of its findings “[i]n accordance with the standards necessary for an ICWA case,” the court did not articulate the standard it was applying. The court‘s conclusions of law state that “the evidence shows, by clear and convincing evidence, that continuation of the parent-child legal relationship between the Youth and the Birth Mother will result in an ongoing risk of abuse and/or neglect to the Youth.” A noted above, ICWA prohibits a parent‘s rights from being terminated unless the court determines, “beyond a reasonable doubt, . . . that the continued
¶43 While we may uphold a district court‘s termination of parental rights if the evidence supports a determination “that continued custody by the parent is likely to result in serious emotional or physical damage to the child[,]” In re K.B. & T.B., ¶ 18, whether the Department proved the requisite standards beyond a reasonable doubt should be determined in the first instance by the District Court. Accordingly, we vacate the District Court‘s judgment and remand for entry of a new order to address whether the evidence established beyond a reasonable doubt, as required by
CONCLUSION
¶44 We conclude that Mother received fundamentally fair procedures prior to the termination of her parental rights. She never raised any objection to the lack of a formal adjudicatory hearing, and her stipulations reflect her assent to the determination that H.T. was abused or neglected. The child‘s Tribe was notified of the proceedings at the early stages, indicated its desire to monitor the case, and did not participate after it received appropriate, timely notice of the termination hearing. Proper expert testimony was presented at the termination hearing. Because the District Court applied the wrong statutory standards in its final order, however, its judgment is vacated. We remand for entry of a new order on the issue whether Mother‘s parental rights should be terminated.
/S/ MIKE McGRATH
/S/ PATRICIA COTTER
/S/ LAURIE MCKINNON
/S/ JAMES JEREMIAH SHEA
/S/ BETH BAKER