In the Matter of HT, 2015 MT 41 (Feb. 10, 2015) (Baker, J.) (5-0, aff’d and rev’d)
Issue: (1) Whether the termination of Mother’s parental rights must be reversed because the district court failed to hold an adjudicatory hearing that complied with § 42-3-437, MCA; and (2) whether the district court’s failure to follow statutory procedural requirements subject to the Indian Child Welfare Act (ICWA) requires reversal.
Short Answer: (1) No; (2) yes. The Court reverses and remands for entry of a new order on the termination of Mother’s parental rights using the proper standard.
Affirmed in part, reversed and remanded in part
Facts: Montana DPHHS petitioned for emergency protective services for 7-year-old HT in October 2012 on the basis of domestic violence between Mother and her boyfriend as well as Mother’s drug use. The petition stated HT may be an Indian child for purposes of ICWA, with an affidavit stating inquiry had been made of Mother and maternal grandparents regarding HT’s tribal affiliation. Notice of the action was sent to the Blackfeet Tribe and the Assiniboine and Sioux Tribes, and a letter was sent to the Bureau of Indian Affairs for confirmation of tribal affiliation.
The district court granted the petition and found the Department was justified in not making active efforts to prevent HT’s removal from her home because the child was in “immediate or apparent danger of harm.” ¶ 4. HT was placed with a maternal great aunt, and the district court held a show cause hearing. Mother did not contest probable cause but requested a separate adjudicatory hearing. The court accepted the parties’ stipulation that probable cause of abuse or neglect existed and advised it would set a date for an adjudicatory hearing.
Procedural Posture & Holding: The district court set the adjudicatory hearing for February 2013 but rescheduled for late April 2013. The Department filed a supplemental affidavit indicating HT was eligible to enroll in the Fort Belknap Tribe. At the April hearing the court announced it was a dispositional hearing. It never addressed HT’s adjudication, nor did Mother stipulate to adjudication of HT as a youth in need of care. Nonetheless, the district court issued an order adjudicating HT as a youth in need of care and requiring Mother to comply with her treatment plan.
Reasoning: (1) Mother stipulated to her treatment plan and to temporary custody, but not to adjudication. Without a stipulation, the district court was required to conduct an adjudicatory hearing. However, Mother waived her right to appeal this issue because she did not object to raise the issue at the district court.
(2) ICWA establishes minimum federal standards for removing an Indian child from her family, and the placement of the child in a foster or adoptive home. ICWA notice requirements may be raised for the first time on appeal. Once the state pursued termination of Mother’s parental rights, Fort Belknap received actual and timely notice of the proceedings. However, the district court incorrectly applied a clear and convincing evidence standard in its written order terminating Mother’s parental rights. ICWA requires the court to find beyond a reasonable doubt that the continued custody of the child is likely to result in serious emotional or physical damage to the child.