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                                                                 No. 97-524



                               IN THE SUPREME COURT OF THE STATE OF MONTANA



                                                              1999 MT 142N




IN RE T.A.G.,

A Youth in Need of Care.




APPEAL FROM: District Court of the Twelfth Judicial District,

In and for the County of Hill,

The Honorable John Warner, Judge presiding.




COUNSEL OF RECORD:



For Appellant:



Jeremy S. Yellin, Attorney at Law; Havre, Montana


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For Respondent:



Hon. Joseph P. Mazurek, Attorney General; Jennifer Anders,

Assistant Attorney General; Helena, Montana



David G. Rice, Hill County Attorney; Havre, Montana



Guardian Ad Litem:



Robert M. Peterson, Attorney at Law; Havre, Montana




                                                                                                  Submitted on Briefs: March 18, 1999



                                                                                                                    Decided: June 15, 1999

Filed:




__________________________________________

Clerk



Justice Terry N. Trieweiler delivered the opinion of the Court.


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¶1. Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal
Operating Rules, the following decision shall not be cited as precedent but shall be
filed as a public document with the Clerk of the Supreme Court and shall be
reported by case title, Supreme Court cause number, and result to the State Reporter
Publishing Company and to West Group in the quarterly table of noncitable cases
issued by this Court.

¶2. The Hill County Attorney filed a petition on behalf of the Department of Public
Health and Human Services in the District Court for the Twelfth Judicial District,
Hill County, to terminate the parental rights of the mother of T.A.G. The District
Court granted the petition, ordered that the mother's parental rights were
terminated effective immediately, and gave the Department of Public Health and
Human Services permanent legal custody of T.A.G. with the right to consent to her
adoption. The mother appeals the District Court order. We affirm the judgment of
the District Court.

¶3. The following issues are presented on appeal:

¶4. 1. Did the District Court err when it found that evidence that T.A.G. was enrolled
or eligible for enrollment in the Fort Belknap Tribes was inconclusive?

¶5. 2. Did the District Court err when it denied the mother's motion to continue?

¶6. 3. Was the mother's counsel ineffective because he did not object to the State's
failure to notify the Tribe of the termination proceeding as mandated by 25 U.S.C. §
1911(b), because he failed to petition the court to transfer jurisdiction to the Tribal
Court, and because he did not raise the issue of the State's compliance with the
Americans with Disabilities Act?

¶7. 4. Did the District Court err when it found that the requirements of § 41-3-609(1)
(e)(i) and (2)(a), MCA, had been satisfied?

                                                FACTUAL BACKGROUND

¶8. T.A.G. was born May 6, 1994 with a rare inherited metabolic disorder,
phenylketonuria, commonly referred to as PKU. Children with PKU are unable to
break down proteins in food and buildup of phenylalanine in the blood and body

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tissues results. If not treated, children with PKU will suffer irreparable and
irreversible neurological damage, and become permanently mentally retarded and
unable to care for themselves. Treatment of children with PKU requires strict
adherence to special dietary needs which includes protecting the child from "natural
foods," and supplementing their diets with "medical foods." Afflicted children
cannot eat foods containing proteins, meats, dairy products, breads, and grain and
cereal products. Sheltering children from "natural foods," providing supplemental
foods in quantities sufficient to provide the calories and nutrients necessary, and
teaching the child how to eat properly is extremely difficult, and requires careful
monitoring and compliance. As the child grows older, teachers, friends and any other
people the child comes into contact with must also be educated about PKU and the
necessity of protecting the child from natural foods. When combined with the normal
rigors of child-rearing, a tremendous amount of organization and discipline is
required.

¶9. T.A.G.'s mother has a chronic organic brain disorder as a result of a craniotomy
to remove a fibrocystic tumor in her brain when she was thirteen. As a result of her
disability, she has memory problems, problems with recall and with processing
information, difficulty organizing her thoughts, and a low tolerance to stress.
Everyday living is a difficult task for the mother. She has difficulty keeping
appointments and staying on schedules. T.A.G.'s father formally relinquished his
parental rights because of disabilities caused by a motorcycle accident.

¶10. In September 1995, the Department of Public Health and Human Services
received a referral regarding the mother and T.A.G. They were at the Women's and
Family Shelter in Billings, and the mother was having trouble fixing a bottle. There
were concerns that the mother was not providing adequate care for T.A.G.
Apparently the mother planned to return to Havre where she resided, but lost the
money for the bus ticket. T.A.G. was placed in a foster home, and a maternal aunt
picked T.A.G. up from the foster home. A paternal uncle and aunt then took T.A.G.
to live with them, and she has remained with them since that time.

¶11. In an effort to return T.A.G. to her mother, the Department formulated a
treatment plan, which the court then imposed. The court ordered that temporary
custody of T.A.G. be continued with the aunt and uncle who live in Shelby.

¶12. The treatment plan required that the mother continue to work with the dietician


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that she had been working with since the birth of T.A.G. The plan was designed to
help the mother with her meal planning skills, and with T.A.G.'s strict dietary
requirements. She was required to develop meal plans and attend parenting classes.
Visitation times were then arranged during which the mother was required to keep a
list of foods she fed to T.A.G.

¶13. On March 21, 1997, the Hill County Attorney, on behalf of the Department,
filed a petition to terminate parental rights. Based upon all of the evidence presented
at trial, the District Court found that the mother's condition, "without fault on her
part," prevented her from providing the necessary care for T.A.G. Therefore, the
court ordered that the parental rights of the mother and father, who had previously
relinquished his parental rights, were to be terminated.

                                                  STANDARD OF REVIEW

¶14. We review a district court's decision in a youth in need of care case to determine
whether it correctly interpreted the law, and whether its findings of fact are clearly
erroneous. See In re A. W-M., 1998 MT 157, 289 Mont. 333, ¶¶ 8-9, 960 P.2d 779, ¶¶
8-9; see also Daines v. Knight (1995), 269 Mont. 320, 324, 888 P.2d 904, 906
(discussing three-part test for determining whether findings of fact are clearly
erroneous).

¶15. We have held that a parent's right to care for, and have custody of, their child is
a fundamental right, and that district courts must, therefore, adequately address all
applicable statutory requirements. See In re A. W-M., ¶¶ 8-9.

¶16. The standard of review of discretionary district court rulings is whether the
court abused its discretion. We have held that "[t]he abuse of discretion standard
applies to trial administration issues, post-trial motions and similar rulings." Lynch
v. Reed (1997), 284 Mont. 321, 326, 944 P.2d 218, 221-22 (quoting Montana Rail Link
v. Byard (1993), 260 Mont. 331, 337, 860 P.2d 121, 125).

                                                                 ISSUE 1

¶17. Did the District Court err when it found that evidence that T.A.G. was enrolled
or eligible for enrollment in the Fort Belknap Tribes was inconclusive?



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¶18. The threshold inquiry in this case is whether T.A.G. is an "Indian child" within
the meaning of the Indian Child Welfare Act (ICWA) of 1978, 25 U.S.C. §§1900-
1934. "Indian Child" is defined as "any unmarried person who is under age eighteen
and is either (a) a member of an Indian tribe or (b) is eligible for membership in an
Indian tribe and is the biological child of a member of an Indian tribe." 25 U.S.C.A.
§1903(4). Tribes have the power to determine tribal membership unless otherwise
limited by statute or treaty. See Adams v. Morton (9th Cir. 1978) 581 F.2d 1314.
Moreover, for ICWA determination purposes, tribes have ultimate authority to
decide who qualifies as an "Indian child." See In re Adoption of Riffle (1995), 273
Mont. 237, 242, 902 P.2d 542, 545 (discussing Department of Interior Guidelines
promulgated to aid state courts in ICWA cases).

¶19. In its order terminating parental rights, the District Court found that the
evidence in the record was inconclusive as to whether T.A.G. was enrolled or eligible
for enrollment in an Indian Tribe. At the commencement of the action, which was
originally filed in Yellowstone County, the Tribes of the Fort Belknap Reservation
were sent notices of the pending action. With the consent of both courts and all of the
parties, the case was then transferred to the Hill County District Court because the
mother resided in Havre. Notice of the action was again sent to the Fort Belknap
Tribes. The Tribes did not intervene or respond in any way to the notices. Without
the Tribes' intervention or response, T.A.G.'s status as an Indian child could not be
established.

¶20. At the hearing on the motion to terminate parental rights, which was held on
June 10, 1997, counsel for the mother, when questioned by the court, stated that T.A.
G. was not an enrolled Tribal member at that time. The mother then testified that T.
A.G. was enrolled. Upon further questioning, the mother testified that she had sent
the paperwork along with T.A.G.'s birth certificate to the U.S. Bureau of Indian
Affairs to have her enrolled. She further testified that she had not spoken with
anyone since sending the paperwork to the Bureau of Indian Affairs. There was no
evidence that the Fort Belknap Tribes had determined that T.A.G. was a member or
eligible for membership in the Tribes.

¶21. After a careful review of the record, we conclude that the District Court's
finding regarding T.A.G.'s status was not clearly erroneous.

                                                                 ISSUE 2


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¶22. Did the District Court err when it denied the mother's motion to continue?

¶23. The afternoon prior to the hearing on the petition to terminate parental rights,
the mother filed a motion to continue and a brief in support thereof. The supporting
brief stated that:

This motion was made on the ground . . . [that the mother] wishes to invoke the
protections of the Indian Child Welfare Act, 25 U.S.C.A. Sections 1901, et seq. . . . .


She wishes to have the Fort Belknap Tribe intervene and assume jurisdiction in the matter
of the custody of her child . . . .


The undersigned has been informed today that it is the practice of the Fort Belknap Tribe
to intervene in child protection matters in which the parent asks the Tribe to intervene.


(Emphasis added.) Additionally, the mother asserted that the Child Services Coordinator
of the Fort Belknap Tribe was at a training seminar and, therefore, was unavailable to
meet with her regarding intervention. She also asserted that the Child Services office of
Fort Belknap was in the process of moving at approximately the time that the notices of
the State court proceedings were sent to the Tribes, and that some documents may have
been misplaced because documents had been lost in the past. Therefore, the mother
asserted that it was possible that the Tribes' failure to intervene may not have been an
intentional decision not to intervene in the action, but was inadvertent.

¶24. At the hearing on the petition to terminate parental rights, the court stated that
under the circumstances, the motion to continue was denied and for the benefit of T.
A.G., the matter would proceed.

¶25. The Indian Child Welfare Act, 25 U.S.C. § 1911(b) and (c) allows for transfer to
tribal court or tribal intervention in the action, and states that:

(b) Transfer of Proceedings; declination by tribal court



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In any State court proceeding for the foster care placement of, or termination of parental
rights to, an Indian child not domiciled or residing within the reservation of the Indian
child's tribe, the court, in the absence of good cause to the contrary, 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.

(c) State court proceedings; intervention


In any State Court proceeding for the foster care placement of, or termination of parental
rights to, an Indian child, the Indian custodian of the child and the Indian child's tribe shall
have a right to intervene at any point in the proceeding.


Absent a clear determination that T.A.G. was eligible for enrollment, the Tribes would not
have had the authority to intervene or have the action transferred to tribal court.

¶26. Furthermore, the proceedings regarding the placement of T.A.G. originally
commenced in 1995. The Fort Belknap Tribes were notified two times of the pending
state court proceedings. The Tribes failed to respond to both notices. We have held
that Tribes effectively decline transfer of jurisdiction or intervention when they fail
to request transfer or to intervene in the state court proceedings after being notified
of such proceedings. See In re A.P., 1998 MT 176, ¶ 21, 289 Mont. 521, ¶ 21, 962 P.2d
1186, ¶ 21.

¶27. Finally, assuming the mother's motion to continue should be construed as a
motion to transfer or allow intervention, it was not made until nearly two years after
the state court proceedings had commenced. As the District Court stated, the motion
came at the "eleven and a half hour," late the afternoon prior to the hearing on the
petition to terminate parental rights. We have previously discussed the federal
guidelines addressing the promptness of tribal interventions in ICWA cases in state
courts. See In re A.P., ¶ 26. The federal guidelines state that:

This section [25 U.S.C. 1911(c)] specifies that requests are to be made promptly after


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receiving notice of the proceeding . . .While the Act permits intervention at any point in
the proceeding, it does not explicitly authorize transfer requests at any time. Late
interventions do not have nearly the disruptive effect on the proceeding that last minute
transfers do . . . . Although the Act does not explicitly require transfer petitions to be
timely, it does authorize the court to refuse to transfer a case for good cause. When a party
who could have petitioned earlier waits until the case is almost complete to ask that it be
transferred to another court and retried, good cause exists to deny the request.


In re A.P., ¶ 26 (quoting 44 Fed. Reg. 67590 (1979)) (emphasis added). The mother's
motion to continue stated that she wanted the "Fort Belknap Tribe to intervene and assume
jurisdiction in the matter," and that she "wishes to have questions regarding care and
custody of . . . [T.A.G.] decided by the Fort Belknap Tribal Court." Such language
indicates that the mother wanted not only intervention but ultimate transfer to the Tribal
court.

¶28. In this case, the District Court had good cause to deny the mother's request.
Ample evidence existed that the Tribes declined to intervene and would do so again if
asked by the mother. Additionally, the mother had more than sufficient time to
request the Tribes to intervene. Finally, and perhaps most importantly, as the court
stated at the commencement of the termination hearing, proceeding with the matter
was in the best interests of T.A.G.

¶29. We conclude that the District Court did not abuse its discretion when it denied
the mother's motion to continue.

                                                                 ISSUE 3

¶30. Was the mother's counsel ineffective because he did not object to the State's
failure to notify the Tribe of the termination proceeding as mandated by 25 U.S.C. §
1911(b), because he failed to petition the court to transfer jurisdiction to the Tribal
court, and because he did not raise the issue of the State's compliance with the
Americans with Disabilities Act?

A. WAS THE MOTHER'S COUNSEL INEFFECTIVE WHEN HE DID NOT OBJECT
TO THE STATE'S FAILURE TO NOTIFY THE TRIBE OF THE TERMINATION
PROCEEDING?

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¶31. On appeal, the mother contends that her court-appointed counsel in the
proceedings below was ineffective for not objecting to the court's failure to notify the
Tribes of the termination hearing. She contends that the Tribes were not notified of
the termination proceeding as mandated by the ICWA, 25 U.S.C. § 1912(a). 25 U.S.
C. § 1912(a) provides that:

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 . . . of the pending proceedings and of their right of
intervention . . . .

¶32. At the commencement of the state court proceedings, the Tribes were twice
notified of the pending state court action as required by the ICWA. The Tribes did
not respond and did not intervene at that time. Failure of the Tribes to intervene
could reasonably be interpreted to mean that they declined to intervene or assume
jurisdiction in the case. See In re A.P., ¶ 21. The State complied with the
requirements of the ICWA when it sent the first two notices of the pending state
court proceedings. The State was not required to send a third notice to the Tribes.

¶33. We conclude that the mother's counsel was not ineffective for failing to object to
the State's failure to notify the Tribes of the petition to terminate the mother's
parental rights.

B. WAS THE MOTHER'S COUNSEL INEFFECTIVE BECAUSE HE FAILED TO
PETITION THE COURT TO TRANSFER JURISDICTION TO THE TRIBAL COURT?


1. Failure to File a petition to Transfer.


¶34. The mother's counsel, rather than filing a petition to transfer jurisdiction to the
Tribal Court, filed a motion to continue. The brief in support of the motion to
continue stated that it was made on the "ground that . . . [the mother] wishes to
invoke the protections of the Indian Child Welfare Act, 25 U.S.C.A. Section 1901, et

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seq." The brief further stated that the mother is an enrolled tribal member, and that
she wished "to have the Fort Belknap Tribe intervene and assume jurisdiction in the
matter of the custody of her child." (Emphasis added.) In our previous discussion, we
assumed that the motion to continue was, in substance, a motion to transfer, and that
the court did not abuse its discretion when it was denied. Therefore, counsel for the
mother was not ineffective for failing to file a motion to transfer.

2. The District Court's Failure to Hold a Hearing On the Motion to Transfer.


¶35. The mother also argues that a hearing on the motion to transfer jurisdiction was
required but not conducted. In support of her argument, she cites to In re G.L.O.C.
(1983), 668 P.2d 235, 237. That case is inapposite to the present case, however,
because in that case, there had been a determination that the child was an "Indian
child" for ICWA purposes. We stated that:

[U]nder the Indian Child Welfare Act, a jurisdiction hearing is required before the court
can enter an order either granting or denying a request for the transfer of jurisdiction of
Indian children to tribal custody. Such a hearing is required whenever the Indian children
live outside of a reservation.


In re G.L.O.C., 205 Mont. at 356-57, 668 P.2d at 237. As we concluded in Issue 1, the
question of whether T.A.G. was an "Indian child" within the meaning of the ICWA was
the threshold question in this case. The District Court found that the evidence was
inconclusive that T.A.G. was an "Indian child," and we affirmed.

¶36. Therefore, we conclude that the District Court did not err when it did not hold a
hearing on the motion to transfer jurisdiction to the Tribal court.

C. WAS THE MOTHER'S COUNSEL INEFFECTIVE FOR FAILING TO RAISE THE
ISSUE OF COMPLIANCE WITH THE AMERICANS WITH DISABILITIES ACT?


¶37. On appeal, T.A.G.'s mother contends that her trial counsel was ineffective for
failing to assert that the State did not comply with the Americans with Disabilities


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Act (ADA), 42 U.S.C. §12132. The ADA in relevant part provides that:

[N]o qualified individual with a disability shall, by reason of such disability, be excluded
from participation in or be denied the benefits of the services, programs, or activities of a
public entity, or be subjected to discrimination by any such entity.


42 U.S.C. §12132.

¶38. Prior to receiving the petition to terminate parental rights, the District Court
ordered that T.A.G.'s mother successfully complete a formal treatment plan. The
treatment plan was designed by the State to help the mother plan appropriate meals
for T.A.G., protect her from the natural foods that are harmful to her, and
understand T.A.G.'s needs. During the months of treatment, and indeed from the
time of T.A.G.'s birth, the State provided special services to T.A.G.'s mother. The
formal treatment plan required that the mother continue to work with the dietician
that she had been working with since T.A.G.'s birth. She was required to develop
meal plans and record on a daily basis the foods she herself consumed. She was also
required to attend parenting classes. Visitation times were then arranged during
which the mother was required to keep a list of foods she fed to T.A.G. She also was
required to prepare meal plans prior to T.A.G.'s visits. Although the record indicates
that the mother sincerely attempted to follow the treatment plan, she was
unsuccessful in doing so.

¶39. The ADA requires that persons with disabilities shall not be excluded from
participation in or deprived of the benefits of services of public entities. See 42 U.S.C.
§ 12132. It also requires that persons with disabilities not be discriminated against by
public entities. See 42 U.S.C. § 12133. The Department did not deny T.A.G.'s mother
its services. The record indicates that the Department worked with the mother
extensively for several years in an attempt to help her acquire the skills necessary to
care for the extraordinary needs of T.A.G. The ADA requires that reasonable
accommodations be made to allow disabled persons to receive services or participate
in programs. See 28 C.F.R. § 35.130(b)(7) (emphasis added). After carefully
reviewing the record, the treatment plan, and the evaluations of physicians and
psychologists regarding the needs of T.A.G. and the abilities of her mother, we
conclude that the prescribed treatment plan was a reasonable attempt to
accommodate the mother's needs. The ADA demands nothing more.

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¶40. We conclude that trial counsel for the mother was not ineffective when he did
not argue that the ADA had been violated.

                                                                 ISSUE 4

¶41. Did the District Court err when it found that the requirements of § 41-3-609(1)
(e)(i) and (2)(a), MCA, had been satisfied?

¶42. In its order terminating the parental rights of T.A.G.'s mother, the District
Court found that "beyond a reasonable doubt the requirements for termination
required by § 41-3-609 have been met." The mother now asserts that the court erred
in its finding because the treatment plan provided was not appropriate because it did
not "enable her to meet her requirements." Section 41-3-609(1)(e)(i) and (2)(a), MCA
require that:

(1) The court may order a termination of the parent-child relationship upon a finding that
any of the following circumstances exist:


....


(e) the child is an adjudicated youth in need of care and both of the following exist:


(i) an appropriate treatment plan that has been approved by the court has not been
complied with by the parents or has not been successful;


(2) In determining whether the conduct or condition of the parents is unlikely to change
within a reasonable time, the court shall enter a finding that continuation of the parent-
child legal relationship will likely result in continued abuse or neglect or that the conduct
or the condition of the parents renders the parents unfit, unable, or unwilling to give the
child adequate parental care. In making the determinations, the court shall consider but is
not limited to the following:


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(a) emotional illness, mental illness, or mental deficiency of the parent of a duration or
nature as to render the parent unlikely to care for the ongoing physical, mental, and
emotional needs of the child within a reasonable time.


Subsection 3 of the statute in relevant part, goes on to provide that:


(3) In considering any of the factors in subsection (2) in terminating the parent-child
relationship, the court shall give primary consideration to the physical, mental, and
emotional conditions and needs of the child.


¶43. For the reasons stated in the previous sections of our opinion, we conclude that
the mother's treatment plan was appropriate. Furthermore, we conclude that the
District Court properly considered the provisions of § 41-3-609, MCA in arriving at
its decision, including the best interests of T.A.G. Accordingly, we affirm the
judgment of the District Court.


/S/ TERRY N. TRIEWEILER




We Concur:


/S/ J. A. TURNAGE

/S/ KARLA M. GRAY

/S/ JAMES C. NELSON


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/S/ JIM REGNIER




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