                                                                                    September 30 2014


                                    DA 13-0790

          IN THE SUPREME COURT OF THE STATE OF MONTANA
                                  2014 MT 265



IN THE MATTER OF:

M.S.,

         A Youth in Need of Care.


APPEAL FROM:     District Court of the Eighth Judicial District,
                 In and For the County of Cascade, Cause No. DDN-11-128
                 Honorable Dirk M. Sandefur, Presiding Judge


COUNSEL OF RECORD:

          For Appellant:

                 Julie Brown; Montana Legal Justice, PLLC; Missoula, Montana

          For Appellee:

                 Timothy C. Fox, Montana Attorney General; C. Mark Fowler, Appellate
                 Services Bureau Chief; Helena, Montana

                 John Parker, Cascade County Attorney; Matthew W. Robertson, Deputy
                 County Attorney; Great Falls, Montana



                                             Submitted on Briefs: August 13, 2014

                                                        Decided: September 30, 2014


Filed:




                                     Clerk
Justice Beth Baker delivered the Opinion of the Court.

¶1    G.S. appeals an order of the Eighth Judicial District Court, alleging that the court

terminated his parental rights without following the statutory requirements of the Indian

Child Welfare Act (ICWA), 25 U.S.C. § 1901 et. seq., and without providing due

process. We restate the issue on appeal as follows: Whether the termination proceedings

complied with statutory requirements for proceedings involving an Indian child.

¶2    We affirm.

                 PROCEDURAL AND FACTUAL BACKGROUND

¶3    Thirteen-year-old M.S. was removed from her mother’s care and placed into

emergency protective custody on July 18, 2011, after her mother was arrested for

Possession of Dangerous Drugs with Intent to Distribute. M.S.’s father, G.S., has been

incarcerated in a federal prison in Arizona since 2009, serving a 480-month sentence with

an additional 20 years of supervised release for aggravated sexual abuse. G.S. is an

enrolled member of the Northern Cheyenne Tribe (Tribe).

¶4    On July 25, 2011, the Department of Public Health and Human Services

(Department) filed a Petition for Emergency Protective Services, Adjudication as Youth

in Need of Care and Temporary Legal Custody. Although the Department initially

placed M.S. with another family member, by August 2011, M.S. had moved to Billings to

live with her grandmother’s ex-husband.

¶5    On July 28, 2011, the District Court set a date for a show cause hearing and issued

a citation to the mother directing her to appear at the hearing. The Department sent

notice of the pending show cause hearing to the Chippewa Cree Tribe, mistakenly

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believing that M.S. was a member or eligible for membership with that tribe. The

Chippewa Cree responded that M.S. was not enrolled or eligible for enrollment with that

tribe.

¶6       The District Court held the show cause hearing on December 5, 2011. G.S. did

not personally attend, but he had been served and was represented at the hearing by his

attorney. Both parents stipulated that M.S. was a Youth in Need of Care. The District

Court issued an order on December 21, 2011, adjudicating M.S. a Youth in Need of Care

and granting the Department Temporary Legal Custody.

¶7       On July 26, 2012, the Department filed a Petition for Permanent Legal Custody

and Termination of Parental Rights for both parents. At the disposition hearing on the

petition, G.S., through counsel, informed the court that he was a member of the Northern

Cheyenne Tribe. The District Court denied and dismissed the Department’s petition

without prejudice on the grounds that the petition contained inaccurate information

regarding M.S.’s tribal affiliations and granted the Department leave to file a new petition

to terminate G.S.’s parental rights.

¶8       On September 12, 2012, the Department sent notice of the proceedings by

registered mail to the Northern Cheyenne Tribe in Lame Deer, Montana.                   The

Department filed a Notice of Filing with the court, stating that the Tribe received copies

of the Petition for Temporary Legal Custody, Social Worker’s Affidavit, Order to Show

Cause Hearing, and Tribal Notice.            The Tribe filed a notice of intervention

acknowledging that M.S. was an Indian child under ICWA and was eligible for

enrollment in the tribe. While the Tribe expressed interest in transferring the case to

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tribal court and provided contact information, the Tribe did not appear at any subsequent

hearings.

¶9     On December 4, 2012, the Department filed a modified petition for the termination

of G.S.’s parental rights and for permanent legal custody of M.S. The Department

asserted a theory of aggravated circumstances under § 41-3-609(1)(d), MCA. A hearing

on this petition was held on March 25, 2013. The court determined that a continuance

was necessary because the Tribe was not properly notified of the hearing.              The

termination hearing was rescheduled and held on April 22, 2013. The only indication

that the Tribe received notice of the rescheduled hearing was that the court’s order

indicated that the Tribe was “cc’d” with a copy of the order. At the April 22 hearing, the

Department then moved to dismiss its petition and refile for termination solely on the

issue of abandonment because it had concluded that, under § 41-3-423(2), MCA,

aggravated circumstances are not a ground for termination where the proceeding is

subject to ICWA.

¶10    On April 30, 2013, the Department filed a motion to amend the petition to

terminate G.S.’s parental rights and for summary judgment. The District Court issued an

order granting the Department’s motion to amend. Although the Department’s motion

indicated that a copy was “cc’d” to the Tribe, neither the motion nor the court’s

subsequent order contained a certificate of service confirming that the documents were

served on the Tribe.

¶11    At the Department’s request, the District Court issued an order setting a summary

judgment hearing for October 21, 2013, on the petition to terminate G.S.’s parental rights.

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This order indicated that it was sent to the parties by a certificate of mailing signed by the

clerk of court. At the hearing, the District Court ordered G.S.’s parental rights terminated

and awarded the Department permanent legal custody of M.S. The District Court issued

its findings of fact, conclusions of law, and order terminating G.S.’s rights on

November 12, 2013. G.S. appeals.

                               STANDARD OF REVIEW

¶12    This Court reviews the District Court’s decision to terminate parental rights for an

abuse of discretion. In re K.B., 2013 MT 133, ¶ 18, 370 Mont. 254, 301 P.3d 836. “In a

case governed by ICWA, we will uphold the district court’s termination of parental rights

if a reasonable fact-finder could conclude beyond a reasonable doubt that continued

custody by the parent is likely to result in serious emotional or physical damage to the

child.” In re K.B., ¶ 18. We review a district court’s application of the law to the facts of

the case for correctness. In re K.B., ¶ 18.

                                       DISCUSSION

¶13 Whether the termination proceedings complied with statutory requirements for
proceedings involving an Indian child.

¶14    ICWA establishes the minimum federal standards for the removal of an Indian

child from her family and the placement of such a child in a foster or adoptive home.

M.S. is eligible for enrollment with the Tribe and, under ICWA, M.S. is an Indian child.

ICWA must be followed strictly by state courts, to “protect the best interests of Indian

children and promote the stability and security of Indian tribes and families.” 25 U.S.C.

§ 1902.


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¶15    ICWA provides that “any parent or Indian custodian from whose custody such

[Indian] child was removed, and the Indian child’s tribe may petition any court of

competent jurisdiction to invalidate such action upon a showing that such action violated

any provision of sections 1911, 1912, and 1913 of this title.” 25 U.S.C. § 1914. Section

1912 of ICWA requires:

       In any involuntary proceeding in a State court, where the court knows or
       has reason to know that an Indian child is involved, the party seeking the
       foster care placement of, or termination of parental rights to, an Indian child
       shall notify the parent or Indian custodian and the Indian child’s tribe, by
       registered mail with return receipt requested, of the pending proceedings
       and of their right of intervention. . . . No foster care placement or
       termination of parental rights proceeding shall be held until at least ten days
       after receipt of notice by the parent or Indian custodian and the tribe or the
       Secretary . . . .

25 U.S.C. § 1912(a).

¶16    A recent case decided by this Court involved problems with notice under

25 U.S.C. § 1912(a). In re K.B., ¶¶ 22-25. In that case, the tribe received proper notice

of the youth in need of care proceeding by registered mail, but did not receive proper

notice of the termination petition and hearing. In re K.B., ¶ 24. Although the termination

petition and the court’s order setting the termination hearing indicated by notation that

copies were “cc’d” to the mother and the tribe, the record did not include an

accompanying certificate of service or other documentation that could prove that timely

service was accomplished. In re K.B., ¶ 24.

¶17    We held that the notice was insufficient under 25 U.S.C. § 1912(a) because the

record did not reflect that the mother and the tribe received notice ten days in advance of

the termination hearing. In re K.B., ¶ 25. We reversed the district court’s termination

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order and remanded for a new hearing because the State gave insufficient notice and also

because the State did not adequately develop the record with regard to whether it

demonstrated “active efforts” under 25 U.S.C. § 1912(d) or whether continued custody of

the child by the parent was “likely to result in serious emotional or physical damage to

the child” under 25 U.S.C. § 1912(f). In re K.B., ¶ 34.

¶18    The procedure followed in this case with regard to notice was remarkably similar

to that in In re K.B. After the Department realized its mistake concerning M.S.’s tribal

affiliation, the Department properly notified the Tribe by registered mail of the

involuntary child custody proceeding. The Tribe promptly filed a notice of intervention.

The petition for termination of parental rights filed on April 30, 2013, however, indicates

only that it was “cc’d,” without any certificate of service. The court’s order granting the

amendment also did not contain a certificate of service. No other proof of service was

filed in the record.

¶19    ICWA requires that “the party seeking the foster care placement of, or termination

of parental rights to, an Indian child” first notify the Tribe of “any involuntary proceeding

in a State court, where the court knows or has reason to know that an Indian child is

involved . . . .” 25 U.S.C. § 1912(a). ICWA also provides that “[n]o foster care

placement or termination of parental rights proceeding shall be held until at least ten

days after receipt of notice by the parent or Indian custodian and the tribe or the

Secretary . . . .” 25 U.S.C. § 1912(a) (emphasis added). If there is “any question about

whether notice had to be given both before the department sought to put the child in

foster care and when it sought to terminate parental rights, that question should be

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resolved in favor of giving notice twice.” People ex rel. S.R.M., 153 P.3d 438, 442

(Colo. Ct. App. 2006), cited in In re K.B., ¶ 25.

¶20    Here, while the initial notice to the tribe was adequate, the Tribe was not properly

served with notice of the termination of parental rights proceeding. The Department’s

indication that it “cc’d” the Tribe with its motion to amend the termination petition did

not include a certificate of service, and no other proof of service appears in the record.

Although the court’s order setting the termination hearing was served on the Tribe, that

document was styled as an order setting a summary judgment hearing and virtually all of

the evidence considered by the court already had been presented in prior hearings.

Consistent with In re K.B., ¶¶ 24-25, we conclude that the Department failed to provide

adequate evidence of proper notice.1

¶21    We do not hold that the State must send notice of termination proceedings to the

Tribe by registered mail if, as here, notice of the initial proceedings already has been

effected in that manner. Where the Tribe already has intervened in the case, notice of

termination will be sufficient if it is given in compliance with the Rules of Civil

Procedure governing notice to other parties. Thus, the notice to the Tribe must, at a

minimum, comply with M. R. Civ. P. 5; Rule 5 states that all documents listed in

Rule 5(a)(1) must be served on every party. Service may be accomplished by “mailing it

to the person’s last known address—in which event service is complete upon mailing.”


1
  It is incumbent upon counsel for the Department to ensure that the Tribe receives proper service
of the District Court’s orders. If an order does not indicate that the court served a copy of the
order on the Tribe, the Department should serve the order on the Tribe to guarantee that the Tribe
receives a copy, and file a Certificate of Service.
                                            8
M. R. Civ. P. 5(b)(2)(C). If service is made by mail, a certificate of service must be filed.

M. R. Civ. P. 5(d)(1). Once a tribe has filed a notice of intervention, it has appeared as a

party in the case and is entitled to proper service under this rule. Compliance with Rule 5

ensures that a certificate of service will be filed in the record of the district court.

M. R. Civ. P. 5(d). That did not occur here.

¶22    We have held consistently that a district court may protect a child’s best interest

despite procedural errors that would have no impact upon the result. In re J.C., 2008 MT

127, ¶ 43, 343 Mont. 30, 183 P.3d 22; In re F.H., 266 Mont. 36, 39, 878 P.2d 890, 892

(1994); In re A.N., 2000 MT 35, ¶ 39, 298 Mont. 237, 995 P.2d 427 (2000). We agree

with the line of cases holding that ICWA’s notice requirements are not jurisdictional and

are subject to harmless error review. In re N.N.E., 752 N.W.2d 1, 10 n.3 (Iowa 2008); In

re Christian P., 208 Cal. App. 4th 437 (Cal. App. 2d Dist. 2012); In re G.L., 177 Cal.

App. 4th 683, 695-96 (Cal. App. 4th Dist. 2009). An error involving notice to a tribe is

not ground for reversal unless the appellant shows a “reasonable probability that he or she

would have obtained a more favorable result in the absence of the error.” In re G.L., 177

Cal. App. 4th at 696.

¶23    Despite the Department’s failure to provide adequate notice, the record shows that

the Tribe was aware of the case but, after evaluating the circumstances, did not assume an

active role or interest in participating in the matter. “ICWA recognizes that tribes have a

unique interest and ability to provide services in the upbringing of Indian children.” In re

C.H., 2003 MT 308, ¶ 21, 318 Mont. 208, 79 P.3d 822. The ICWA expert testified,

however, that she had “spoken to the Tribe and they said that at this point, there would be

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turmoil if we removed her from the place that she’s at [sic].”           The Tribe did not

participate in this appeal and G.S. has not provided any evidence that the Tribe intended

to actively participate had it properly been notified of the termination hearing. This is not

a case where the court ignored a child’s Indian ancestry or deprived a tribe of its right to

intervene. “It would serve no purpose to require the [District Court] to terminate [G.S.’s]

parental rights all over again.” In re N.N.E., 752 N.W.2d at 10. Because G.S. has not

demonstrated a reasonable probability that he would have obtained a more favorable

result in the absence of the Department’s error regarding proper ICWA notice, we hold

that the error in this case was harmless.

¶24    G.S. argues next that the Department failed to meet ICWA’s “active efforts”

requirement. The Department has an obligation to demonstrate active efforts to prevent

the breakup of an Indian family:

       Any party seeking to effect a foster care placement of, or termination of
       parental rights to, an Indian child under State law shall satisfy the court that
       active efforts have been made 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). “‘Active efforts’ implies a heightened responsibility compared to

passive efforts.” In re D.S.B., 2013 MT 112, ¶ 15, 370 Mont. 37, 300 P.3d 702. If the

underlying proceeding is a termination of parental rights under § 1912(f), proof of “active

efforts” must be satisfactory “beyond a reasonable doubt.” In re G.S., 2002 MT 245,

¶ 33, 312 Mont. 108, 59 P.3d 1063.

¶25    As we have noted before, a common sense understanding of “active efforts”

“requires only that ‘timely affirmative steps be taken to accomplish the goal which

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Congress has set: to avoid the breakup of Indian families whenever possible by providing

services [designed] to remedy problems which might lead to severance of the parent-child

relationship.’” In re G.S., ¶ 36 (quoting Letitia v. Superior Court, 81 Cal. App. 4th 1009,

1016, 97 Cal. Rptr. 2d 303, 309 (Cal. App. 4th Dist. 2000)).           Further, “a parent’s

incarceration may limit the remedial and rehabilitative services that the State can make

available to the parent to prevent the breakup of the Indian family.” In re D.S.B., 2013

MT 112, ¶ 15, 370 Mont. 37, 300 P.3d 702. We do not excuse the state’s obligation to

make active efforts if a parent is incarcerated, but “we will not fault the [Department] if

its efforts are curtailed by the parent’s own criminal behavior.” In re D.S.B., ¶ 15.

¶26    The District Court expressly addressed whether ICWA’s heightened standard for

active efforts was met, noting that the Department worked with the mother to create a

treatment plan and that reunification with the father was a practical impossibility because

of G.S.’s long-term incarceration. The Department assisted M.S.’s mother in complying

with her court-ordered treatment plan before she consented to the termination of her

rights. The Department paid for the mother to visit M.S. in Billings and made efforts to

help her locate an appropriate residence. No treatment plan was ordered for G.S. due to

his long-term incarceration. The court found that the father had failed to develop and

maintain a parental relationship with M.S., and that his incarceration left “virtually no

likelihood or prospect that [G.S.] will ever be in a position to parent, or even establish a




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parental relationship, as a matter of fact, with the child prior to the time that she turns

18.”2

¶27     The court concluded that “the [Department] has actively intervened in this matter

and endeavored, to the extent practical, under the facts and the law, to effect reunification

of the child with either or both parents.” The court held as a matter of law that the

Department’s “efforts to effect reunification are reasonable under State law and they have

been active under the federal law within the meaning of the ICWA on the same findings

of fact.”   We hold that a reasonable trier of fact could have concluded that the

Department made sufficient active efforts to provide remedial services and rehabilitative

programs designed to prevent the breakup of this Indian family. Substantial evidence

supports the court’s finding that G.S. will not be able to parent his daughter at any time

before she reaches the age of majority. The District Court did not err in concluding that

the Department met ICWA’s “active efforts” requirement in this circumstance.

¶28     G.S. asserts that the District Court did not make specific findings of fact required

by 25 U.S.C. § 1912(f) that continued custody of the child by the parent was “likely to

result in serious emotional or physical damage to the child.” The Department presented

evidence that the continued parental custody of the children would result in serious

2
  The record does not clarify whether G.S. ever had custody of M.S. The record is silent
regarding G.S.’s relationship with M.S. prior to his incarceration. We recognize that 25 U.S.C.
§ 1912(d) does not apply where the “breakup of the Indian family” has long since occurred. In
re J.S., 2014 MT 79, ¶ 29, 374 Mont. 329, 321 P.3d 103 (citing Adoptive Couple v. Baby Girl,
570 U.S. __, 133 S. Ct. 2552, 2559 (2013)). Although the District Court asked during the
April 22, 2013 hearing, before Baby Girl was decided, how the ICWA standard for termination
applies in a situation where the child was never in the parent’s custody, the parties did not
dispute that ICWA’s active efforts were required. Because this potential issue was not raised, we
will not address it in this appeal. See Stevens v. Novartis Pharms. Corp., 2010 MT 282, ¶ 78,
358 Mont. 474, 247 P.3d 244.
                                           12
emotional or physical damage to the children. The District Court took judicial notice that

G.S. has been convicted of aggravated sexual abuse of another daughter, who was four

years old at the time, and that he is serving a term of forty years in prison. The District

Court found that, even if the father were to leave prison, continued custody of the child

with the father likely would result in serious emotional or physical harm to the child by

removing her from her current placement in a stable environment. The District Court

made sufficient findings regarding the child’s well-being and reasonably concluded that

continued custody by G.S. would likely result in “serious emotional or physical damage

to the child.” In re K.B., ¶ 18.

¶29    Finally, although G.S.’s issue statement alleges a violation of the right to

procedural due process, he did not present any due process arguments or develop this

allegation in any way and we do not further consider it. M. R. App. P. 12(1)(f); In re

Estate of Harmon, 2011 MT 84, ¶ 28, 360 Mont. 150, 253 P.3d 821. G.S. does argue that

the Department cannot terminate a parent’s rights through a summary judgment motion,

and that the District Court improperly relied on testimony from prior proceedings. The

District Court made specific findings of fact during the April 22 hearing and expressly

incorporated those findings, “so as not to waste the time and effort” of the parties and

witnesses. The court reasonably sought “to avoid duplication” of the testimony presented

at an earlier termination hearing.    Although G.S. is correct that the statutes do not

contemplate any summary judgment process for a termination proceeding, the court did

not grant summary judgment.        It is clear that the court based its decision on the

presentation of evidence by the parties; it properly considered the statutes in Title 41,

                                        13
MCA, and ICWA; and it entered detailed findings of fact and conclusions of law

explaining its decision to terminate G.S.’s parental rights.

                                      CONCLUSION

¶30    The District Court did not err in determining that the Department satisfied the

“active efforts” requirement and made sufficient findings of fact pursuant to 25 U.S.C.

§ 1912(f). Although we hold that the Department did not provide appropriate proof that

the father’s tribe received proper notice of the termination hearing, that error was

harmless under the circumstances of this case. We affirm.

                                                  /S/ BETH BAKER

We concur:

/S/ PATRICIA COTTER
/S/ MICHAEL E WHEAT
/S/ LAURIE McKINNON
/S/ JAMES JEREMIAH SHEA




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