In the Matter of KB and TB

In the Matter of KB and TB, 2013 MT 133 (May 15, 2013) (5-0) (Baker, J.)

Issue: Whether the termination of CB’s parental rights complied with statutory requirements governing proceedings involving Indian children.

Short Answer: No.

Reversed and remanded

Facts: CB, mother of KB and TB, is an enrolled member of the Chippewa Cree tribe. KB and TB qualify as “Indian children” under the Indian Child Welfare Act (ICWA), 25 USC § 1903(4). In January 2011, mother took the children, two and five years old, outside for a walk in the cold. She was “extremely intoxicated.” She tipped the stroller over, and the children fell into the snow and sleet. There were transported to the ER, treated for hypothermia, and placed in a protective facility. Mother was arrested for criminal endangerment. The children were placed with their maternal grandmother by DPHHS. The tribe was notified, and appeared in June 2011.Over the next year, CB made limited progress in complying with the treatment plan.

Procedural Posture & Holding: In September 2012 the county attorney filed a petitioner for permanent custody of the children and termination of CB’s parental rights. The court held a hearing Oct. 22, 2012, at which CB appeared but the tribe did not. At the end of the hearing the court terminated CB’s parental rights. CB appeals and the Supreme Court reverses and remands for a new termination hearing.

Reasoning: CB argues neither she nor the tribe received adequate notice under ICWA, an issue that may be raised for the first time on appeal. Although the petition to terminate mother’s rights indicates copies were “cc’d” to CB and the tribe, there are no certificates of service, and no record of whether timely service was accomplished. Notice was therefore insufficient under ICWA. Moreover, expert testimony was necessary to establish that mother’s custody was “likely to result in serious emotional or physical damage to the children,” and the state was required to show that “active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family,” and that those efforts were unsuccessful.