                                                                                            March 8 2016


                                           DA 15-0413

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2016 MT 59N



IN THE MATTER OF:

E.O. and N.B.,

           Youths in Need of Care.



APPEAL FROM:            District Court of the Sixth Judicial District,
                        In and For the County of Park, Cause Nos. DN 13-11 and DN 13-12
                        Honorable Brenda R. Gilbert, Presiding Judge


COUNSEL OF RECORD:

                 For Appellant:

                        Paul Sullivan, Measure, Sampsel, Sullivan & O’Brien, P.C.,
                        Kalispell, Montana

                 For Appellee:

                        Timothy C. Fox, Montana Attorney General, Micheal S. Wellenstein,
                        Assistant Attorney General, Helena, Montana

                        Bruce E. Becker, Park County Attorney, Livingston, Montana



                                                    Submitted on Briefs: January 13, 2016

                                                                Decided: March 8, 2016


Filed:

                        __________________________________________
                                          Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.


¶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     This case pertains to the parental rights of M.B. over her two children, E.O. (born

in 2001) and N.B. (born in 2007). E.O. and N.B are Indian children with different

fathers, and neither of the fathers is a party to the case. On November 13, 2013, the

Department of Public Health and Human Services (“DPHHS”) filed petitions for

emergency services, adjudication as youths in need of care, and temporary legal custody

regarding E.O. and N.B. The petitions arose out of reports that M.B.’s consumption of

alcohol and medications was interfering with her ability to care for the children. M.B.

had a history with child protective services both in Montana and South Dakota prior to

November 2013.

¶3     The District Court granted the petition for emergency protective services on

November 14, 2013, and by February 20, 2015, the District Court had adjudicated the

children as youths in need of care and granted DPHHS legal custody of the children for

six months. DPHHS developed a treatment plan for the benefit of the children, which

included a number of tasks for M.B. She stipulated to the plan and the District Court

approved it on April 3, 2014. On September 24, 2014, DPHHS requested a six-month


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extension of the temporary legal custody, to which M.B. agreed and the court granted on

November 24, 2014. DPHHS then filed a petition to terminate M.B.’s parental rights on

January 26, 2015. A hearing was conducted over the course of three days. The District

Court made oral findings of fact and conclusions of law that terminated M.B.’s parental

rights on June 2, 2015. A written order was issued on June 12, 2015; M.B. appeals from

this order. We affirm.

¶4     The District Court found that M.B. had failed to complete several integral parts of

the treatment plan. The treatment plan required M.B. to keep an adequate home for the

children, stop using controlled substances and alcohol, and continue seeing a trauma

therapist for treatment, all of which M.B. failed to successfully perform. M.B. argues

that DPHHS failed to properly consider the root causes of her addiction and substance

abuse issues. Consequently, M.B. posits that since DPHHS did not adequately provide

her with assistance for the treatment of abuse and trauma, they failed to make reasonable

efforts to reunite her with her children.

¶5     We review a district court’s decision to terminate parental rights for an abuse of

discretion. In re C.J.M., 2012 MT 137, ¶ 10, 365 Mont. 298, 280 P.3d 899. We review a

district court’s findings of fact under the clearly erroneous standard. In the Matter of

J.C., 2008 MT 127, ¶ 34, 343 Mont. 30, 183 P.3d 22. We review a district court’s

application of the law for correctness. In re C.J.M., ¶ 10.

¶6     In cases involving the termination of parental rights over Indian children, there are

federal obligations imposed on the State pursuant to the Indian Child Welfare Act

(“ICWA”). 25 U.S.C. § 1912. Congress enacted ICWA to protect and preserve Indian

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culture and curtail the high rate of non-tribal agencies’ breakup of Indian families.

“ICWA sets minimum federal standards that must be followed strictly by state courts.”

In re H.T., 2015 MT 41, ¶ 42, 378 Mont. 206, 343 P.3d 159 (quoting In re K.B., 2013 MT

133, ¶ 21, 370 Mont. 254, 301 P.3d 836); 25 U.S.C. § 1902. Under ICWA, the State

must show that it made active efforts to “provide remedial services and rehabilitative

programs designed to prevent the breakup of the Indian family and that these efforts have

proved unsuccessful.” 25 U.S.C. § 1912(d). Additionally, ICWA requires the State to

prove beyond a reasonable doubt that absent termination of parental rights, the children

would suffer serious physical or emotional harm.        25 U.S.C. § 1912(f).      We have

previously held that ICWA obligates the State to take timely and affirmative steps to

prevent the breakup of Indian families. In re J.S., 2014 MT 79, ¶ 25, 374 Mont. 329, 321

P.3d 103.

¶7     E.O. and N.B. are Indian children, and M.B. does not dispute that ICWA applies

in this case. However, in her brief, she contends that in addition to the “active efforts”

standard required by ICWA, the State must also follow a “reasonable efforts” standard

required by state law.    See § 41-3-423(1), MCA.        However, in our previous cases

concerning the termination of parental rights over Indian children, we have never

combined federal and state standards. See e.g., In re H.T., ¶ 42; In re K.B., ¶ 21. Rather,

we have held that ICWA outlines the correct procedure for handling the adjudication of

parental rights involving Indian children. In re H.T., ¶ 42; In re K.B., ¶ 21. In this case,

the District Court assessed whether DPHHS had made active efforts to keep the family



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together, which is an application of the correct standard under federal law. Thus, we

cannot agree that the District Court made an error in law.

¶8     We have construed “active efforts” to mean that timely steps be taken by the

agency to prevent the breakup of Indian families. In re J.S., ¶ 25. ICWA also requires a

heightened responsibility on the part of the agency seeking to protect the children. In re

J.S., ¶ 25. The State cannot simply issue a treatment plan and wait for the parent to

complete it. Under ICWA, there is a burden on the State to encourage and provide

assistance to the parent to ensure the highest chance of successful completion of the

treatment plan. In re A.N., 2005 MT 19, ¶ 23, 325 Mont. 379, 106 P.3d 556. Still, the

parent must demonstrate a willingness to comply and to conform his or her lifestyle to the

best interests of the child. In re A.N., ¶ 23.

¶9     M.B. argues that DPHHS’s efforts on her behalf were inadequate because her

mental state in the aftermath of her rape in early 2013 needed to be addressed before she

could treat her substance abuse issues. She also posits that the District Court erred in

concluding that it was unlikely that M.B. would make significant progress on her

treatment plan within a reasonable amount of time. However, the record shows that M.B.

had substance abuse problems before 2013 and that she started using controlled

substances in her teenage years. Consequently, tying her current substance abuse issues

with the trauma she suffered in 2013 confuses the source of her addiction. Further,

DPHHS referred M.B. to a licensed professional counselor for therapy weeks after E.O.

and N.B. were adjudicated as youths in need of care. This demonstrates DPHHS’s timely

action in attempting to keep the family together. The counselor began therapy at the end

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of January 2014 and DPHHS provided these services to M.B. at its cost before ultimately

incorporating it in the April 3, 2014 treatment plan. M.B. attended therapy for 16

sessions and was diagnosed with PTSD. The counsellor noted that M.B. had suffered

abuse and violence as a youth and needed more treatment, but the counseling sessions

stopped when M.B. moved from Livingston to Billings in July 2014. The counselor

recommended continued treatment in Billings, and DPHHS would have paid for it.

During this process DPHHS was actively monitoring M.B.’s development and treatment.

After moving to Billings, M.B. did not independently seek further therapy. Nevertheless,

DPHHS encouraged M.B. to enter chemical dependency programs at the Indian Health

Board in Billings.      Eventually, after providing financial assistance, rent money,

encouragement, and careful monitoring, the DPHHS’s efforts to provide assistance were

hampered by M.B.’s decision to move to Minneapolis.

¶10    Furthermore, an ICWA expert testified that DPHHS had met its “active efforts”

burden in M.B.’s case. DPHHS made a concerted effort to encourage and facilitate

M.B.’s need for trauma and addiction treatment. The Department did not simply write a

plan and wait for M.B. to follow through. Rather, it provided active monitoring and

logistical and financial assistance until M.B. moved to Minneapolis. DPHHS’s actions

were both timely and affirmative, and they continued over the span of two years. In re

J.S., ¶ 25. Confronted with that record, the District Court concluded that DPHHS had

met its “active effort” burden as required under ICWA. Upon review we cannot agree

that the District Court’s findings were clearly erroneous.



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¶11    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, this case presents a question controlled by settled law or by the clear

application of applicable standards of review.

¶12    Affirmed.


                                                 /S/ MIKE McGRATH

We Concur:

/S/ LAURIE McKINNON
/S/ PATRICIA COTTER
/S/ JIM RICE
/S/ JAMES JEREMIAH SHEA




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