Matter of MEM
COUNSEL OF RECORD:
For Appellant:
Mark A. Suagee, Havre, Montana
For Respondent:
Glen Driveness, Deputy County Attorney, Havre, Montana
Brian Lilletvedt, Havre, Montana
Theodore Thompson, Havre, Montana
Submitted on Briefs: December 15, 1983
Decided: April 9, 1984
Filed: APR 9 - 1984
Ethel M. Harrison Clerk
The mother of M.E.M. appeals from the order of the Twelfth Judicial District Court, Hill County, tеrminating parental rights of both parents and awarding permanent legal custody to the Department of Social and Rehabilitation Services. We affirm.
The dispositive issue is whether alleged violations of the Indian Child Welfare Act in temporary lеgal custody proceedings invalidate later permanent legal custody proceedings which comply with the Indian Child Welfare Act.
The child subject to this action was born March 21, 1981. Because the child and both parents are enrolled members of the Gros Ventre Tribe of the Fort Belknap Indian Reservation, the child is an Indian child for purposes of the Indian Child Welfare Act,
The Hill County Welfare Department initially became involved in this case in November of 1980 when the mother was pregnant with the child. Marsha Brunett, a social worker from the Hill County Welfare Department became involved because the parents had previously had a child permanently removed and because the hospital and the W.I.C. (Women, Infants and Children) program had reported that the mother had been drunk when she arrived for appointmеnts. The Department continued its involvement because the mother continued to drink heavily during her pregnancy. The child weighed only four pounds when born and remained in the hospital for two weeks due to his low birth weight.
After unsuccessfully attempting to arrangе for the baby to go home with the parents, a Petition for Temporary Investigative Authority was filed on April 6, 1981, and an ex parte order was issued on April 7, 1981. Because the parents
On April 10, 1981, the parents were served with notice of a hearing schеduled for April 20, 1981 and a copy of the Petition for Temporary Legal Custody. Marsha Brunett orally notified them of the hearing date on at least two other occasions.
On April 20, 1981, the hearing regarding temporary custody was held, but neither parent appeared. On April 22, 1981, the court entered its order finding the child a youth in need of care and awarding temporary legal custody to the Department of Social and Rehabilitation Services (the Department).
During the next two years the Deрartment attempted to work with the parents to prepare them to regain custody of their child. A treatment plan was prepared and signed by both parents on March 10, 1982. A second plan was developed and signed by the mother on September 21, 1982. After the parents agreed to the plans, they were approved by the District Court. These treatment plans primarily required that the parents obtain alcoholism treatment or counseling and that they establish a permanent residеnce. However, both parents continued to drink heavily over the next two years and neither parent established a permanent residence. On December 8, 1982, the court continued the Department‘s temporary legal custody based uрon written stipulation of both parents.
Both parents were allowed liberal visitation with M.E.M. during his foster care placement, although the mother allegedly visited the child only four times in 2-1/2 years and the father less.
On March 14, 1983, a petition requesting termination of parentаl rights and granting of permanent legal custody of M.E.M. to the Department was filed with the court. The parents were served personally and were provided written notice by means of certified mail, return receipt requested. Counsel was appointed for each parent.
On March 23, 1983, the mother filed a motion to dismiss on the basis of alleged violations of the Indian Child Welfare Act in prior proceedings. The motion was denied. The mother then filed a motion to transfer the case to tribаl court, but the tribal court declined jurisdiction.
On May 4, 1983, the termination hearing was held. Neither parent attended, although their attorneys stated the parents had been notified of the hearing. After testimony from an experienced social worker, a certified dependency counselor, a physician and a family trainer, the court entered its Findings of Fact and Conclusions of Law on May 27, 1983, terminating parental rights and awarding permanent legal custody to the Department. The mother appeals.
Appellant alleges five specific violations of the Indian Child Welfare Act,
For purposes of resolving this issue, we will assume arguendo that the alleged violations occurred, although we do not so hold. Because we conclude that the alleged violations of the Act in the temporary custody proceedings would not require invalidation of the permanent custody proceedings, we need not decide whether the Act was violated.
The Indian Child Welfare Act provides in part:
“Any Indian child who is the subject of any action for foster care placement or termination of рarental 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 1911, 1912, and 1913 of this title.”
25 U.S.C. § 1914 .
This section provides for invalidation of an action which violates the provisions of the Act. Assuming that the violations alleged by appellant occurred, she would be entitled to invalidation of thе temporary custody proceedings. However, this section does not provide for invalidation of a valid separate action because of an invalid prior one. On the facts of this case, we decline to extend the languаge of this section to provide such a remedy.
The temporary and permanent custody proceedings in this case were separate actions resulting in court orders granting different forms of relief. They were initiated by separate рetitions and were required to follow separate statutory guidelines. See
In terminating appellant‘s parental rights, the District Court did not rely upon the prior temporary custody
Further, thе temporary custody proceedings were not a legal prerequisite to termination of parental rights. The State may file a petition for permanent legal custody regardless of whether a temporary custody order has been granted. See
Appellant further contends that the court improperly relied upon the parents’ failure to comply with court-approved treatment plans. She argues that these
The treatment plans were prepared, executed and approved by the court а year or more after the temporary custody orders were granted and were approved by the court without specific relationship to any proceeding. The treatment plans were neither required nor suggested by the tempоrary custody order. Court-approved treatment plans are not a prerequisite to a temporary custody order, but they were a prerequisite to termination of parental rights in this case. See
In affirming the order of the District Court, we emphasizе that the permanent custody proceedings fully complied with the provisions of the Act. Individual counsel was appointed to represent the child and each parent, and notice was given to all concerned parties. Jurisdiction was offered to the tribal authorities but was declined. Even though the parents were given repeated notice of the proceedings by various individuals, including their attorneys, they failed to appear or express any interest in regaining custоdy of their child. Despite the diligent efforts of local welfare personnel, the parents refused to seek or respond to treatment for alcoholism, which so far as the record shows was the principal obstacle to their ability and desire to care for their child.
Throughout her brief, appellant has emphasized the policies of the Indian Child Welfare Act to promote the
We hold that, under the facts of this case, alleged violations of the Indian Child Welfare Act in temporary legal custody proceedings do not invalidate the later permanent custody proceedings. In light of this conclusion, appellant‘s other issues are without merit. The District Court did not err in terminating parental rights.
The order of the court is affirmed.
Justice
John Conway Harrison
Frank B. Morrison Jr.
John C. Sheehy
L. C. Gulbrandson
Justices