IN RE: P.F. (2018)

¶ 1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

¶ 2 T.F. III (Father) appeals the Silver Bow County District Court’s January 5, 2018, Order terminating his parental rights to his child P.F. (born in 2014) (Child). Father also appealed the termination of his parental rights to Child’s half-siblings, K.F. and T.F. IV, under DA 18-0055 and DA 18-0056, respectively. All three cases share factual information and procedural histories. K.F. and T.F. IV are not Indian children, whereas there is potential P.F. is an Indian child, possibly raising Indian Child Welfare Act (ICWA) issues. As such, Father’s appeals regarding K.F. and T.F. IV were consolidated in a single opinion and this separate opinion is being issued to address the separate ICWA issues implicated herein. We reverse and remand for further action consistent with this opinion.

¶ 3 On September 11, 2015, the Child and Family Services Division of the Montana Department of Public Health and Human Services (Department) filed a Petition for Emergency Protective Services (EPS), Adjudication of Child as Youth in Need of Care (YINC), and Temporary Legal Custody (TLC) regarding the Child due to concerns of domestic violence, drug use, Father absconding from conditional release, and inappropriate people in the home with the Child. Child was placed with her maternal grandparents (Grandparents).

¶ 4 Child Protection Specialist (CPS) Crowson’s Affidavit dated September 4, 2015, states:

[t]o the best of my knowledge and believe[sic] the child maybe[sic] an Indian Child Subject to the Indian Child Welfare Act. The Child’s Indian Tribe may be Little Shell-Chippewa Cree. Efforts made to determine the child’s tribe includes[sic] the Department sending out letters to the Little Shell and Chippewa Cree Tribes. Maternal grandmother is enrolled [in] both tribes.

(Emphasis added.) There is no certificate of service in the record for this document or the Petition it was affiliated with, thus there is no way to know who received copies. On September 11, 2015, the Department filed a Notice of Involuntary Child Custody Proceeding In State Court that reiterated the same potential tribal memberships, but then served it only on Child’s guardian ad litem—not on counsel for Father or Mother, and not on either tribe. After this “Notice,” there is no further mention in the record of serving case documents on either tribe or making further attempts at confirming Child’s ICWA status.

¶ 5 On June 23, 2016, CPS Kindt filed an affidavit in support of EPS, Adjudication as YINC, and TLC re: Birthmother that stated she believed Child was “not an Indian Child subject to the Indian Child Welfare Act,” but provided no evidence in support of this belief. On October 10, 2017, CPS Ballenger filed an affidavit in support of termination of parental rights which reiterated CPS Kindt’s statement, again without a basis for the statement. Child’s ICWA status is not mentioned in the October 21, 2015, hearing transcript or the January 4, 2017, hearing transcript. At the December 6, 2017, termination hearing CPS Ballenger stated, without documentation or testimony from any tribe, that Child is not an Indian child.

¶ 6 Father stipulated throughout the matter to ongoing TLC and two consecutive treatment plans. On October 10, 2017, the Department petitioned to terminate Father’s parental rights (TPR) to Child based on § 41-3-609(1)(f), MCA, citing his failure to complete a treatment plan and asserting he was unlikely to change within a reasonable time. On January 5, 2018, the District Court issued an order terminating Father’s parental rights. Father appeals.

¶ 7 We have recently covered the ICWA tribal notice and involvement issue at length. In re D.E., 2018 MT 196, ¶ ¶  22-29, 392 Mont. 297, ––– P.3d ––––. We review a district court decision to terminate parental rights for an abuse of discretion under the applicable standards of Title 41, chapter 3, MCA, and ICWA, Title 25, Chapter 21, U.S.C. In re D.E., ¶  21. ICWA and § 41-3-609, MCA, impose different standards for termination of parental rights depending on whether a child is an “Indian child,” therefore district courts must first verify the Indian or non-Indian status of a child prior to termination hearing whenever the court has reason to believe that the child is an Indian child as defined by ICWA. In re D.E., ¶  24 (citations omitted). The question of whether Child is eligible for tribal membership is, except where limited by federal statute or treaty, in the sole power of the tribes. In re D.E., ¶  25. When a court has reason to believe a child may be an Indian child, proceeding to termination without a conclusive tribal determination of tribal membership or eligibility is an abuse of discretion. In re D.E., ¶  25.

¶ 8 Here the District Court had reason to believe the Child may be an Indian child because CPS Crowson’s affidavit states Child may be an Indian child under the ICWA and Child’s maternal Grandmother is enrolled in two tribes. There is nothing in the record evidencing either tribe was served with any notice or request to the tribes to confirm or dispel Child’s status as an Indian child, let alone that either confirmed Child’s Indian or non-Indian status. As such, we conclude the court abused its discretion when it proceeded to termination without a conclusive tribal determination of tribal membership or eligibility. We reverse and remand for an appropriate threshold determination of whether Child is an Indian child based on conclusive tribal determination of tribal membership and eligibility. If Child is conclusively identified as an Indian child subject to the requirements of ICWA, the District Court shall hold further proceedings as may be necessary to meet the evidentiary burdens of ICWA. If Child is conclusively identified as a non-Indian child then the District Court may re-enter the TPR order on the merits of its prior findings of fact and conclusions of law, with the addition of the ICWA result. The Department stipulates to this result.

¶ 9 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules, which provides for memorandum opinions. In the opinion of the Court, the case presents a question controlled by settled law or by the clear application of applicable standards of review.

¶ 10 Reversed and remanded for further action consistent with this opinion.

Ingrid Gustafson delivered the Opinion of the Court.

We concur: MIKE McGRATH, C.J. LAURIE McKINNON, J. BETH BAKER, J. DIRK M. SANDEFUR, J.