Matter of J.S. YINC
COUNSEL OF RECORD:
For Appellant:
Elizabeth Thomas, Attorney at Law; Missoula, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General; Katie F. Schulz, Assistant Attorney General; Helena, Montana
Mitchell Young, Lake County Attorney; Polson, Montana
Emily Von Jentzen, Assistant Attorney General; Kalispell, Montana
Submitted on Briefs: February 5, 2014
Decided: March 25, 2014
Filed:
Clerk
¶1 S.F. appeals the decision of the Twentieth Judicial District Court, Lake County, to award guardianship of his minor son, J.S., to foster parents. Because J.S. is an “Indian child,” as defined in
¶2 1. Did the State violate ICWA by failing to provide proper notice to S.F. and his tribe?
¶3 2. Did the State violate ICWA by failing to make active efforts to provide services and promote the relationship between S.F. and J.S.?
¶4 3. Did the State violate ICWA by failing to provide proper expert testimony for establishing guardianship and the continued placement of J.S. outside S.F.‘s care?
FACTUAL AND PROCEDURAL BACKGROUND
¶5 J.S.‘s father, S.F., is an enrolled member of the Curyung Tribe, located in Dillingham, Alaska. J.S.‘s biological mother, B.S., is an enrolled member of the Confederated Salish and Kootenai Tribes. J.S. was born in 1998 and is currently an enrolled member of the Curyung Tribe (J.S. enrolled on June 11, 2008). In 2001, the State removed J.S. from B.S.‘s care, in Ronan. At that time, J.S.‘s father was unknown. In February 2002, J.S. was adjudicated a youth in need of care, and temporary legal
¶6 In March 2003, B.S.‘s parental rights were terminated. The Department made several attempts to conclusively identify J.S.‘s father, but it was not until September 2004 that a paternity test confirmed that S.F. was J.S.‘s biological father. On March 22, 2006, the Department facilitated contact between S.F. and J.S. On May 31, 2006, the Department placed J.S. in foster care with D.Y. and S.Y. (the foster family), along with other of J.S.‘s siblings. The foster family had previously adopted two of J.S.‘s siblings.
¶7 On August 21, 2006, the Department filed a petition to terminate S.F.‘s parental rights, alleging that he had failed to establish a relationship with J.S. or prove that he intended to care for him. S.F. was personally served with notice of the termination hearing, but there is no evidence that the Curyung Tribe ever received notice. S.F. appeared at the hearing and obtained counsel. The District Court extended the hearing three times to allow S.F. to complete a treatment plan. In October 2006, the Department filed a motion to dismiss its petition to terminate S.F.‘s parental rights.
¶8 In December 2007, the Department again moved to terminate S.F.‘s parental rights due to his failure to maintain contact with the Department. S.F. was served, and notice
¶9 On March 15, 2011, the Department filed a Motion for Hearing to Address Treatment Plan. The Curyung Tribe received notice of the hearing by certified mail. During the hearing, the Department sought to obtain court approval of a treatment plan. S.F. objected and stated that he would not work certain components of the plan because “he could teach the classes that they want him to attend.” The court approved a treatment plan.
¶10 On November 16, 2011, the Department filed another motion to terminate S.F.‘s parental rights. The child protection specialist‘s report to the court indicated that S.F. had made no effort to visit with J.S., was unwilling to complete the treatment plan, and had made representations through counsel that he wished to relinquish his rights. The court denied the Department‘s termination request during an April 12, 2012 hearing because the Department had failed to call an ICWA expert familiar with the customs and culture of the Curyung Tribe. Instead, the court extended temporary legal custody over J.S. for three months and ordered that the treatment plan be revised to include specific dates for
¶11 On July 3, 2012, the Department filed a Notice of Filing indicating that S.F. had completed many aspects of his treatment plan, but failed to follow through on several others. On July 19, 2012, the court held a permanency plan hearing. J.S., then fourteen years old, indicated to the court that he wished to remain with his siblings and the foster family, where he had been living for the past six years. The court approved a permanency plan in the alternative—reunification with S.F. or guardianship with the foster family. On July 30, 2012, the Department filed a petition requesting an additional six months for S.F. to complete his treatment plan. In August 2012, S.F. and J.S. met with their attorneys present, and then attended two counseling sessions during the fall of 2012.
¶12 On November 14, 2012, the Department filed a Petition for Legal Guardianship. S.F. objected and petitioned to transfer jurisdiction to the Curyung Tribe. On December 13, 2012, the court sent notice by certified mail to the Curyung Tribe. A transfer hearing was held, wherein tribal representatives testified that the Curyung Tribe did not wish to accept jurisdiction and supported granting guardianship of J.S. to the foster family. The court denied S.F.‘s transfer request and conducted a guardianship hearing on March 14, 2013. Testimony was received from Nikki Grossberg (Grossberg),
¶13 On July 26, 2013, the court issued its Findings of Fact and Conclusions of Law and Decree of Guardianship. The court ultimately determined to grant guardianship over J.S. to the foster family. S.F. appeals.
STANDARD OF REVIEW
¶14 We review a district court‘s findings of fact to determine if they are clearly erroneous. In re J.W.C., 2011 MT 312, ¶ 15, 363 Mont. 85, 265 P.3d 1265. Findings of fact are clearly erroneous if they are not supported by substantial evidence, if the district court misapprehended the effect of the evidence, or if this Court is left with the definite and firm conviction that a mistake has been committed. In re G.S., 2002 MT 245, ¶ 24, 312 Mont. 108, 59 P.3d 1063. We review a district court‘s conclusions of law for correctness. In re M.P.M., 1999 MT 78, ¶ 12, 294 Mont. 87, 976 P.2d 988. “‘A district court‘s application of the law to the facts of a case is a legal conclusion which we review to determine whether the interpretation of the law is correct.‘” In re J.W.C., ¶ 15 (quoting In re C.H., 2000 MT 64, ¶ 9, 299 Mont. 62, 997 P.2d 776).
¶15 Under Montana law, a guardian may be appointed for a child who has been placed in the custody of the Department during a child abuse or neglect proceeding.
(a) the department has given its written consent to the appointment of the guardian, whether the guardianship is to be subsidized or not;
(b) if the guardianship is to be subsidized, the department has given its written consent after the department has considered initiating or continuing financial subsidies pursuant to subsection (9);
(c) the child has been adjudicated a youth in need of care;
(d) the department has made reasonable efforts to reunite the parent and child, further efforts to reunite the parent and child by the department would likely be unproductive, and reunification of the parent and child would be contrary to the best interests of the child;
(e) the child has lived with the potential guardian in a family setting and the potential guardian is committed to providing a long-term relationship with the child;
(f) it is in the best interests of the child to remain or be placed with the potential guardian;
(g) either termination of parental rights to the child is not in the child‘s best interests or parental rights to the child have been terminated, but adoption is not in the child‘s best interests; and
(h) if the child concerning whom the petition for guardianship has been filed is an Indian child, as defined in the Indian Child Welfare Act, 25 U.S.C. 1901, et seq., the child‘s tribe has received notification from the state of the initiation of the proceedings.
[a]ny 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 . .. this Act.
¶18
In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child‘s tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention. If the identity or location of the parent or Indian custodian and the tribe cannot be determined, such notice shall be given to the Secretary in like manner, who shall have fifteen days after receipt to provide the requisite notice to the parent or Indian custodian and the tribe. No foster care placement or termination of parental rights proceeding shall be held until at least ten days after receipt of notice by the parent or Indian custodian and the tribe or the Secretary: Provided, That the parent or Indian custodian or the tribe shall, upon request, be granted up to twenty additional days to prepare for such proceeding.
(Emphasis added.) ICWA, therefore, requires that notice be provided to both the “parent” and the “Indian child‘s tribe.” The “parent” means “any biological parent or parents of an Indian child or any Indian person who has lawfully adopted an Indian child, including adoptions under tribal law or custom. It does not include the unwed father where paternity has not been acknowledged or established.”
¶19 S.F. argues that “[a]lthough the State did provide notice to [S.F.], the notice did not comply with the ICWA” because it did not contain information about “his right to
¶20 The State responds that S.F. was not initially considered a “parent” under
¶22 The Curyung Tribe received notice of the State‘s petition to terminate S.F.‘s parental rights in December 2007 and formally intervened in February 2008. The record establishes that the Curyung Tribe continued to receive notice of all subsequent proceedings and actively participated in this case. During the guardianship hearing, tribal
¶23 As noted above, we generally will not overturn valid proceedings based on invalid prior proceedings. In re M.E.M., 209 Mont. at 195-96, 679 P.2d at 1243. We conclude that the State‘s failure to provide notice at the outset of these proceedings does not provide a basis to overturn the District Court‘s ultimate guardianship order. Both S.F. and the Curyung Tribe participated extensively in this case, and S.F. was afforded numerous opportunities to complete a treatment plan, but failed to do so. Any initial shortcomings on the part of the State were subsequently cured, satisfying the notice requirements of ICWA at the time of the guardianship hearing.
¶24 2. Did the State violate ICWA by failing to make active efforts to provide services and promote the relationship between S.F. and J.S.?
¶25 ICWA provides 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.
¶26 S.F. claims that from the time he was identified as J.S.‘s putative father in 2002, through April 2012, the State failed to satisfy its duty to make “active efforts.” S.F. explains that “more than five (5) years passed between the establishment of paternity and the time that the State moved the district court to adopt a treatment plan.” He argues that after the Court ordered the treatment plan, the State did not assist him in completing it, and cites the following statements of the District Court during the termination hearing on April 12, 2012:
So the issue that remains is did the State do what they had agreed to on the parenting plan so that they actually handled their responsibilities especially under ICWA. And it appears to the Court based on the testimony that they did not.
. . .
I think the problem I‘ve got, though, based on the testimony, unless there‘s testimony from the State with regard to the active involvement of the child protective specialist. I mean, based on the testimony of the State‘s expert in that area she indicated that she did not in fact do any of those things. That makes it very difficult for the Court to find that.
¶27 The State responds that the Department provided services specific to S.F., but S.F. “failed to avail himself of those services and showed little or no interest in parenting J.S.” The State notes that it created three informal treatment plans for S.F. between 2006 and 2012, and set up “family counseling, encourag[ed] letter writing, and connect[ed] the foster family with S.F. to further open up communication opportunities.” The State points out that S.F. made clear that he did not intend to participate in parenting education, advised the court that he wished to relinquish his parental rights, failed to maintain consistent contact with the Department, and communicated minimally with J.S. Finally, the State argues that we must consider its efforts to provide services for B.S., J.S., and his siblings—“[t]he Department made active efforts with the mother (provided treatment plans, visits, consulted with the CSKT, etc.) and placed the children with approval of the children‘s tribes throughout these proceedings.” Alternatively, the State draws our attention to the United States Supreme Court‘s recent holding in Baby Girl, which the District Court also discussed at length.
¶28 While the State made efforts to connect S.F. with J.S.—specifically, following the April 2012 termination proceeding—we conclude that the holding in Baby Girl is dispositive. In Baby Girl, Biological Father and Birth Mother2 separated after Birth Mother became pregnant with Baby Girl, an Indian child. Via text message, Birth
¶29 On appeal, the United States Supreme Court reversed, concluding that § 1912(d) did not apply to Baby Girl‘s situation. The Court held that “§ 1912(d) applies only in cases where an Indian family‘s ‘breakup’ would be precipitated by the termination of the parent‘s rights.” Baby Girl, 570 U.S. at ___, 133 S. Ct. at 2562. The Court defined “breakup” to mean “‘the discontinuance of a relationship‘” or “‘an ending as an
¶30 The facts in Baby Girl are similar to those here. Like Biological Father, S.F. never obtained legal or physical custody of J.S. and did not initiate a relationship with J.S. until many years after his birth. The record indicates that the State first facilitated a visit between S.F. and J.S. on March 22, 2006, nearly two years after paternity had been established and over eight years after J.S. was born—a long delay that occurred despite the fact that S.F. acknowledged, “I was aware before [J.S.] was born [J.S.] was my son.” After he made initial contact with J.S., S.F. refused to complete remedial parenting classes and indicated multiple times during multiple hearings that he wished to relinquish his parental rights. The District Court accurately described the relationship between S.F. and J.S. as “non-existen[t],” and recognized that the Department “cannot force the creation of a personal relationship between a Youth and his estranged father where none has previously existed.”
¶31 Although Baby Girl dealt with termination of parental rights instead of a guardianship, § 1912(d), by its terms, applies equally in both instances. Where, as here,
¶32 3. Did the State violate ICWA by failing to provide proper expert testimony for establishing guardianship and the continued placement of J.S. outside S.F.‘s care?
¶33 ICWA requires testimony from a qualified expert in order to effect the foster care placement of a child:
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 The State responds that Itumulria was a qualified ICWA expert, with personal knowledge of the Curyung Tribe‘s customs and cultural standards, and over twenty years of experience. According to the State, the District Court properly considered Itumulria‘s testimony in conjunction with the testimony of others, the case record, and J.S.‘s wishes when it concluded that “permitting S.F. to have custody of J.S. would likely result in serious emotional or physical injury to the child.” Alternatively, the State again cites the District Court‘s discussion of Baby Girl and its determination that § 1912(e) does not apply in this case because S.F. never had custody of J.S.
¶36 In addition to addressing the “active efforts” requirement of § 1912(d), Baby Girl analyzed the “continued custody” provision in
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.
The Supreme Court explained that § 1912(f) “conditions the involuntary termination of parental rights on a showing regarding the merits of ’continued custody of the child by the parent.‘” Baby Girl, 570 U.S. at ___, 133 S. Ct. at 2560 (emphasis in original). Because the “adjective ‘continued’ plainly refers to a pre-existing state . . . [t]he phrase ‘continued custody’ [] refers to custody that a parent already has (or at least had at some point in the past).” Baby Girl, 570 U.S. at ___, 133 S. Ct. at 2560. Given this construction, the Supreme Court held that “§ 1912(f) does not apply in cases where the Indian parent never had custody of the Indian child.” Baby Girl, 570 U.S. at ___, 133 S. Ct. at 2560 (emphasis in original).
¶37 The similar provision of § 1912(e) conditions the placement of a child into foster care “on a showing regarding the merits of ’continued custody.‘” The only substantive difference between § 1912(f) and § 1912(e) is their respective standards of proof—§ 1912(f) requires evidence beyond a reasonable doubt, while § 1912(e) requires clear and convincing evidence. As we have discussed above, the record in this case clearly establishes that S.F. never had custody of J.S. Indeed, the District Court found that S.F. “was not involved in the child‘s life for the significant part of 15 years and only became interested in the action ten years after significant State involvement refocused his attention to the matter.” Because there is no custody to “continue,” we conclude that § 1912(e) does not apply and does not serve to invalidate the District Court‘s award of guardianship.
¶39 Affirmed.
/S/ JIM RICE
We concur:
/S/ MIKE McGRATH
/S/ PATRICIA COTTER
/S/ MICHAEL E WHEAT
/S/ BETH BAKER