                            No.    90-057

          IN THE SUPREME COURT OF THE STATE OF MONTANA
                                  1990



IN THE MATTER OF T.S.
     Youth in Need of Care.
                                                       1
                                                    WG'L
                                                              2 .$/
                                               CLERK O f SUPREME COURT
                                                  STA'CP:OF fi1oEirihg
APPEAL FROM:   District Court of the Tenth Judicial District,
               In and for the County of Fergus,
               The Honorable Peter L. Rapkoch, Judge presiding.


COUNSEL OF RECORD:
          For Appellant:
               Daniel Duame; Kawerak, Inc.; Nome, Alaska
               D. Michael Eakin; Montana Legal Services Assn.;
               Billings, Montana
          For Respondent:
               Bradley B. Parrish, Lewistown, Montana, Guardian ad
               litem
               Marc Racicot, Attorney General, Helena, Montana
               Clay R. Smith, Asst. Atty. General, Helena, Montana
               Jon A. Oldenberg, Lewistown, Montana

                              Submitted on Briefs:         August 23, 1990
                                            Decided: November 20, 1990
Filed:                               *
Justice Fred J. Weber delivered the Opinion of the Court.

       King Island Native Community, an Eskimo tribe located in Nome,
Alaska, appeals from a judgment of the District Court, Tenth
Judicial District, Fergus County, denying the Tribe's motion to
transfer jurisdiction of child custody proceedings of an Eskimo
child under the Indian Child Welfare Act.                     We affirm.
       The issues presented are:
       1.   D i d t h e D i s t r i c t C o u r t err w h e n it h e l d t h a t t h e r e w a s

good    cause    not     to    transfer        jurisdiction         of    child      custody
proceedings to King Island Tribal Court?
       2.   Did the District Court err when it failed to remove the
guardian ad litem from the case when the guardian ad litem
expressed misgivings about the ICWA?
       T.S. was born in Alaska to a mother who is part Eskimo and is
eligible for membership              in the King Island Native Community
(Tribe). Neither Mother nor T.S. is a member of the Tribe and
neither have ever resided on the reservation during the lifetime
of T.S.     The record reveals a long history of transient lifestyle
which was punctuated with domestic violence and physical abuse
during the marriage of Mother and Stepfather.                               The evidence
indicates that Mother was abused by Stepfather and T.S. was abused
by both Mother and Stepfather.
       Mother and Stepfather were residing in Fergus County, Montana
on August 31, 1988, when T.S. was placed in protective custody by
the Montana Department of Family Services (Department). T.S. was
three and     a half years old at the time. A petition for temporary
                                              2
investigative authority was filed and on              September 2, 1988, the
District Court appointed a guardian ad litem for T.S. and issued
its order for protective services and order to show cause.
     Shortly after T.S. was placed in a temporary foster home,
Mother returned to Alaska.           Mother contacted the Tribe and
requested that the Tribe intervene in her case pursuant to the
Indian Child Welfare Act (ICWA). On December 27, 1988, the Tribe
filed a motion to intervene in the proceedings pursuant to 25
U.S.C. 5 1911(c) of the ICWA and intervention was granted the
following day.    On December 29, 1988, the Department of Family
Services filed a petition for permanent legal custody of T.S. and
for termination of Mother's parental rights. On February 21, 1989,
the Tribe filed a motion to transfer jurisdiction               to its tribal
court pursuant to 25 U.S.C. 5 1911(b)        .    Mother joined the transfer
request   on   March   10,   1989.       A       hearing   to   determine   the
jurisdictional issue was held on July 19, 1989. The District Court
denied the Tribe's motion to transfer jurisdiction, holding that
there was good cause not to transfer because 1) it would not be in
T.S. Is best interests to transfer jurisdiction, and 2) it would
constitute an undue hardship to the parties and witnesses in
Montana to appear in tribal court in Alaska.
                                     I
     Did the District Court err when it held that there was good
cause not to transfer jurisdiction of child                custody proceedings
to King Island Tribal Court?
     Section 1911(a) and      (b) of the Indian Child Welfare Act
states:
                    (a) Exclusive jurisdiction
         An Indian tribe shall have jurisdiction exclusive
    as to any State over any child custody proceeding
    involving an Indian child who resides or is domiciled
    within the reservation of such tribe, except where such
    jurisdiction is otherwise vested in the State by existing
    Federal law. Where an Indian child is a ward of a tribal
    court, the Indian tribe shall retain exclusive
    jurisdiction, notwithstanding the residence or domicile
    of the child.
    (b) Transfer of proceedings; declination by tribal court
         In any State court proceeding for the foster care
    placement of, or termination of parental rights to, an
    Indian child not domiciled or residinq within the
    reservation of the Indian child's tribe, the court jn the
    absence of qood cause to the contrarv, shall transfer
    such proceeding to the jurisdiction of the tribe, absent
    objection by either parent, upon the petition of either
    parent or the Indian custodian or the Indian child's
    tribe; Provided, That such transfer shall be subject to
    declination by the tribal court of such tribe. (Emphasis
    supplied.)
25 U.S.C. 5 1911(a), (b).
    Since   T.S.   was   not   domiciled   or   residing   within   the
reservation, subsection (b) applies which requires transferring
jurisdiction in the absence of good cause to the contrary.          This
Court has held that in cases that fall under subsection (b):
    The burden of showing "good cause to the contrary1'must
    be carried by the State with clear and convincing
    evidence that the best interests of the child would be
    injured by such a transfer. We direct the District Court
    to consider the guidelines for state courts established
    by the Department of the Interior in its determination,
    although in addition thereto the best interest of the
    child could prevent transfer of jurisdiction upon a
    "clear and convincing" showing by the State.
In the Matter of M.E.M. Youth in Need of Care (1981), 195 Mont.
      The guidelines for state courts referred to in M.E.M. state:
           Determination of Good Cause to the Contrary
           (a) Good cause not to transfer the proceeding exists
      if the Indian child's tribe does not have a tribal court
      as defined by the Act to which the case can be
      transferred.
           (b) Good cause not to transfer the proceeding may
      exist if any of the following circumstances exists:
           (i) The proceeding was at an advanced stage when the
      petition to transfer was received and the petitioner did
      not file the petition promptly after receiving notice of
      the hearing.
           (ii) The Indian child is over twelve years of age
      and objects to the transfer.
           (iii) The evidence necessary to decide the case
      could not be adequately presented in the tribal court
      without undue hardship to the parties or the witnesses.
           (iv) The parents of a child over five years of age
      are not available and the child has had little or no
      contact with the child's tribe or members of the child's
      tribe.
           (c) Socio-economic conditions and the perceived
      adequacy of tribal or Bureau of Indian Affairs social
      services or judicial systems may not be considered in a
      determination that good cause exists.
           (d) The burden of establishing good cause to the
      contrary shall be on the party opposing the transfer.


      These guidelines were drafted by the Bureau of Indian Affairs
(BIA) and represent the Department of Interior's interpretation of
what grounds would establish good cause. In the introduction, the
Department of Interior states the guidelines are "not published as
regulations because     they   are    not    intended   to   have   binding
legislative effect.I1 44 Fed.Reg. 67584 (1979).         Courts are "free
to act contrary to what the Department has said if they are
convinced that the Department's guidelines are not required by the
statute itself.It Id.    "Primary responsibility for interpreting         .
. .   language used in the Act       . . .   rests with the courts that
decide Indian child custody cases.       For example, the     legislative
history of the Act states explicitly that the use of the term 'good
cause1 was designed to provide state courts with flexibility in
determining the disposition of a placement proceeding involving an
Indian child.I1 Id.
     In exercising this flexibility, this Court has determined that
the "best interests of the childu test will be applied in Montana
in determining good cause not to transfer jurisdiction of custody
proceedings of Indian children under    §   1911(b). M.E.M. at 336, 635
P.2d at 1317.    This @#bestinterests of the childM test should not
be confused with the "best interests of the childN test applied
under 5 40-4-212, MCA, in custody determinations between parents
in a dissolution. It should also not be confused with the criteria
used to determine child abuse, neglect, and dependency and to
terminate parent-child legal relationships under Title 41, Chapter
3, MCA.
     In Indian child cases such as this, the first step is to
determine the 5 1911(b) jurisdiction issue by applying the "best
interests of the child" test and considering the BIA Guidelines to
determine good cause.    M.E.M.   at 336, 635 P.2d at 1317.   The next
step is to hold a temporary dispositional hearing under 5 41-3-
404, MCA, and a dispositional hearing under 5 41-3-406, MCA, to
determine whether the child is abused, neglected or is a dependent
youth.    These proceedings require the appointment of a guardian ad
litem under 5 41-3-303, MCA, to represent the child's interests.
The final step under Title 41, Chapter 3, is for the court to
determine whether the parent-child legal relationship should be
terminated under the criteria listed in 3 41-3-609, MCA.         This
stage of the proceedings also requires the appointment under 3 41-
3-607(3), MCA, of a guardian ad litem to represent the child's best
interests.
     In this case the proceedings are still at the jurisdictional
level and the District Court properly applied the jurisdictional
"best interests of the      childn test and   considered   the    BIA
Guidelines.
     The uncontroverted evidence at the hearing in this case
strongly indicates that any transfer of T.S. from her present
environment would lldevastatell child and would have long-term
                             the
harmful effects upon her.    This is the longest, most stable and
protected environment she has ever known.      The District Court
properly considered the only loving environment T.S. has ever known
in its application of the best interests test.    She resides in a
home where the mother is Native American and fully capable and
willing to teach T.S. about her Indian heritage. T.S. has adapted
to her home and the family desires to adopt her as soon as
possible.
     The Tribe argues that there is a profound difference between
the culture of the Eskimo and the Indian culture of the foster
mother and that difference makes it in T.S.'s best interests that
jurisdiction be transferred.   In essence the Tribe argues that 9
1915 of the ICWA presumes that it is in the best interests of T.S.
that jurisdiction be transferred.    25 U.S.C. 3 8 1915, 1303 (1)
(iii), (iv).   Section 1915 (b) suggests preferential foster care
placement of an Indian child.    That section states:
     (b) Foster care or preadoptive placements; criteria;
     preferences
          Any child accepted for foster care or preadoptive
     placement shall be placed in the least restrictive
     setting which most approximates a family and in which his
     special needs, if any, may be met. The child shall also
     be placed within reasonable proximity to his or her home,
     taking into account any special needs of the child. In
     any foster care or preadoptive placement, a preference
     shall be given, in the absence of good cause to the
     contrary, to a placement with--
           (i) a member of the Indian child's extended family;
           (ii) a foster home licensed, approved, or specified
     by the Indian child's tribe;
           (iii) an Indian foster home licensed or approved by
     an authorized non-Indian licensing authority; or
           (iv) an institution for children approved by an
     Indian tribe or operated by an Indian organization which
     has a program suitable to meet the Indian child's needs.
In this case T.S. Is maternal grandmother is unable to provide a
home for T.S. and there are no other available family members known
to the court.    The Department of Family Services has made a good
faith attempt to comply with the recommended preferential treatment
by placing T.S. in a foster home within reasonable proximity to the
child's home in Fergus County and with an Indian foster mother who
is fully capable and willing to teach T.S. about her Indian
heritage.    This Court notes that at the time of the placement,
Fergus County was the child's home.     Mother did not move to Alaska
until after the     child was placed in the temporary foster home
pending     temporary   investigative    authority   and   protective
proceedings under 5 41-3-402, MCA.      The Tribe has not had contact
with T.S. and never shown any interest or concern for the living
conditions that T.S. has been subjected to. The Tribe insists that
it has had contact with T.S. and her Mother and also insists it has
not intervened in T.S.'s behalf because it did not know of T.S.'s
plight.   The Tribe cannot have it both ways. There was no evidence
in the record to indicate the Tribe has had any contact with T.S.
or her Mother until it received notice of the pending matter in
Montana courts. The District Court pointed out:

     ...   it is obvious from testimony adduced at the hearing
     and the record that the Tribe showed little or no
     interest in [T.S.] and [her mother] prior to this action
     being filed. There is a long and sad history of abuse
     and neglect of [T.S. ] in the State of Alaska. There was
     also Social Service involvement with this family in
     Alaska with no intervention or help for [T.S.] by the
     Tribe.
The District Court correctly concluded that it was not in the
child's best interest to remove her from the only stable, loving
home she had known and send her to an isolated community with which
she had never had previous contact.    The Tribe claims there has
been an intentional delay resulting in a greater period in which
bonding has occurred in the foster home, thus suggesting that the
failure to immediately transfer jurisdiction has been improper.
The record does not demonstrate any intentional delay.   The record
does demonstrate careful examination by both the Department and the
District Court and a vital and proper concern for this Indian child
who has been abused for the greater part of her life. While it is
true that Mother has joined the Tribe's request for transfer, the
evidence unfortunately shows Mother to be unable to adequately
protect and care for this child. We note that the Tribe submitted
no factual basis to allow the District Court to find under the BIA
Guidelines or under the best interests of the child test other than
that it is in the child's best interests that jurisdiction remain
in Montana.   We detect nothing in the proceedings to indicate
animosity or lack of respect for the Tribe.      Concern for the best
interests of the child has been the motivating force for both the
Department and the District Court.
     Under the Guidelines the District Court determined that
subsection (b)(iii) applies, which states that good cause not to
transfer exists if the evidence necessary to decide the case could
not be adequately presented to the court without undue hardship to
the parties or the witnesses. 44 Fed.Reg. 67591 (1979).             The
witnesses and evidence upon which the Department of Family Sewices
action was filed   are all located in Montana.     The District Court
concluded that it would constitute an undue hardship if the parties
and witnesses were required to travel from Montana in order to
appear in Tribal Court in Alaska. We conclude there is substantial
evidence to support that conclusion.
     The   Tribe   argues   that   the   court   has   overlooked   the
recommendation of the Department's Indian Child Welfare Specialist
concerning transfer of jurisdiction.      The Specialist's testimony
was not presented at the jurisdictional hearing.            The Tribe
attempted to bring in the Specialist's recommendation through a
post-hearing motion to reconsider on grounds of new evidence.       No
evidence was presented in the subsequent hearing on the motion to
reconsider to show that the Specialist's testimony was unavailable
at the time of the jurisdictional hearing, and therefore the
evidence is not properly before the Court.        In addition, cross
examination of the Specialist at the hearing on the motion for
rehearing,     revealed    that     the    Specialist    had     reviewed   some
unidentified        file material    but   not   the    entire    file or the
transcript of the jurisdictional hearing.              No evidence indicated
the Specialist had interviewed T.S., her mother, or the foster
parents.   Without a proper foundation to support the Specialist's
recommendation, the court would have properly not considered the
Specialist's recommendation when applying the best interests of the
child test had the evidence been properly before the court.                 The
court correctly denied the motion for reconsideration and properly
disregarded the Specialist's recommendation.
     The Tribe argues that a 1989 United States Supreme Court
ruling mandates transfer of jurisdiction.               Mississippi Band of
Choctaw Indians v. Holyfield, No. 87-980, slip op. (U.S.Sup.Ct.,
Apr. 3, 1989)   .    Holyfield was a 5 1911 (a) case that dealt with the
definition of wdomiciled." Because T.S. had not been domiciled on
the tribal reservation in Alaska, we agree with the conclusion of
the District Court that        5 1911(a) and Holyfield do not control.
There is a valid distinction between a 5 1911(b) case such as we
have here and a 5 1911(a) case such as Holyfield.                When the child
has been domiciled on the reservation and has significant contacts
with the Tribe it is reasonable to assume that jurisdiction should
be transferred to the Tribe.          In this case we have the opposite
circumstances which 5 1911(b) is meant to address. T.S. has never
lived on the reservation, is not a member of the Tribe and has
never had any contact whatsoever with the Tribe.                    The record
demonstrates a total absence of evidence demonstrating that it is
in T.S.'s best interests that jurisdiction be transferred to the
Tribe.
     We hold that the District Court did not err in   determining
that the best interests of T.S. and undue hardship on parties and
witnesses constitutes good cause not to transfer jurisdiction.
                                I1
     Did the District Court err when it failed to remove the
guardian ad      litem from the case when the guardian ad litem
expressed misgivings about the ICWA?
     The Tribe did not request the removal of the guardian ad
litem and may     not now predicate error on the District Court's
failure to take such action.     In addition, the District Court
admonished the guardian ad litem that his thoughts on the ICWA
were irrelevant and would be treated as such by the court. We hold
the District Court did not err by failing to remove the guardian


     Affirmed.



We Concur:         -/--
Justice John C. Sheehy, dissenting:

     It is improper and somewhat patronizing to assume that since
the child is now placed with an Indian mother, though of a
different tribe and territory, that the purpose of the Indian Child
Welfare Act is fulfilled, and good cause shown for not assenting
to the jurisdiction of the Eskimo tribe.
     The very purpose of the Indian Child Welfare Act was to enable
the several tribes to maintain their individuality and their
cultures in a mobile and fast-changing national society. I daresay
without investigation that the culture, mores, religious beliefs
and mode of life is substantially different between the Eskimo
tribe of the King Island Native Community and the Plains Indian
Tribe to which the foster mother presumably belongs.     The majority
has determined "best interest" of the child lacking even a smidgeon
of information of what the King Island Native Community has to
offer.   I would hold that the Eskimo tribe has a right to reach out
and touch us where eligible members of the Eskimo tribe are
concerned. One thing is certain:    the culture of the Eskimos will
not be preserved or prolonged in Montana.     I believe you have to
start with whale and seal meat, and the derivatives of these
creatures, that made Eskimo life uniquely possible.
     I would transfer jurisdiction to the Tribal Court of the
Eskimo tribe.                       n


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                                               Justice       (1
