                                      No. 03-055

            IN THE SUPREME COURT OF THE STATE OF MONTANA

                                    2003 MT 197N


IN THE MATTER OF T.W.,

           Youth in Need of Care.



APPEAL FROM:      District Court of the Eighth Judicial District, Cause No. BDJ-01-111-Y
                  In and for the County of Cascade,
                  The Honorable Julie Macek, Judge presiding.


COUNSEL OF RECORD:

           For Appellant:

                  Carl Jensen, Attorney at Law, Great Falls, Montana

           For Respondent:

                  Hon. Mike McGrath, Attorney General; Ilka Becker,
                  Assistant Attorney General, Helena, Montana

                  Brant Light, Cascade County Attorney; Mary Ann Ries,
                  Deputy County Attorney, Great Falls, Montana


                                               Submitted on Briefs: July 10, 2003

                                                           Decided: August 5, 2003
Filed:


                  __________________________________________
                                    Clerk
Chief Justice Karla M. Gray delivered the Opinion of the Court.


¶1     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal

Operating Rules, the following decision shall not be cited as precedent. It 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 mother of T.W. appeals the termination of her parental rights to T.W. We affirm

the judgment entered by the Eighth Judicial District Court, Cascade County.

¶3     The issues are whether the District Court properly terminated the rights of the mother

when the father was given additional time to complete a treatment plan, and whether the

Department of Public Health and Human Services' (DPHHS) Indian Child Welfare Act

(ICWA) expert was properly qualified.

¶4     We review a district court's decision to terminate parental rights for abuse of

discretion. In re M.D.M., 2002 MT 305, ¶ 12, 313 Mont. 51, ¶ 12, 59 P.3d 1142, ¶ 12

(citations omitted). In addition to the requirements of state law for termination of parental

rights, termination in an ICWA case must be supported by evidence beyond a reasonable

doubt, including testimony of qualified expert witnesses, that the continued custody of the

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

25 U.S.C. § 1912(f).

¶5     With regard to the mother's argument that the grant of extra time to the father entitles

her to extra time to complete her treatment plan, we observe that DPHHS did not pursue

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termination of the father's parental rights concurrently with the mother's because he was

released from prison during these proceedings and may be capable of completing a treatment

plan and parenting T.W. The mother cites no statutory or case law, as required by Rule

23(a)(4), M.R.App.P., to support her position on this issue and, therefore, we decline to

address this matter further.

¶6     With regard to the mother's ICWA-related issue, it is undisputed that ICWA requires

qualified expert testimony that the continued custody of an Indian child by the parent or

Indian custodian is likely to result in serious emotional or physical damage to the child

before parental rights to the child may be terminated. 25 U.S.C. § 1912(f). In the present

case, DPHHS never conclusively determined that T.W. is an Indian child to whom ICWA

provisions apply, but it nevertheless addressed the ICWA requirements in presenting its case.

¶7     In this regard, DPHHS presented the testimony of its employee, Toby Whitaker, a

member of the Little Shell band of the Chippewa Cree Tribe who had been employed as a

tribal police officer working with children. Whitaker testified that she was familiar with

Native American cultural practices and had also been on the tribal council and the enrollment

committee for her tribe. She testified that she was aware of the childrearing practices of the

Chippewa Cree Tribe, in which she stated it was taboo to attempt to raise a child while

chemically dependent. Stating she had carefully reviewed the file on this case, Whitaker

also opined that, if the mother were allowed to have the care of T.W. without addressing her

chemical dependency issues, T.W. would be at great risk.




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¶8     The mother asserts that Whitaker was not qualified as an expert under ICWA because

she was unable to testify in any clinical capacity to the potential emotional or physical

damage to T.W. and did not have the background of an average social worker, let alone the

exceptional qualifications demanded by ICWA. The mother relies on In re H.M.O., 1998

MT 175, 289 Mont. 509, 962 P.2d 1191, and In re K.H., 1999 MT 128, 294 Mont. 466, 981

P.2d 1190.

¶9     Persons with any of the three following sets of characteristics may satisfy the

requirements for a qualified expert witness in ICWA proceedings: a member of the Indian

child's tribe who is recognized by the tribal community as knowledgeable in tribal customs

as they pertain to family organization and childrearing practices; a lay expert witness having

substantial experience in the delivery of child and family services to Indians and extensive

knowledge of prevailing social and cultural standards and childrearing practices within the

Indian child's tribe; or a professional person having substantial education and experience in

the area of his or her specialty. H.M.O., ¶ 30 (citing 44 Fed.Reg. 67584, 67593 (1979)). In

K.H., ¶¶ 16-18, we merely followed H.M.O.

¶10    H.M.O. and K.H. relate to experts qualified under the third set of characteristics set

forth above. In this case, while DPHHS did not identify the set of characteristics under

which it offered Whitaker as an ICWA expert witness, its questioning of her and her

testimony address the first two sets of characteristics set forth above. The District Court

ruled Whitaker was qualified but did not specify under which set of characteristics. On this

record, we conclude Whitaker was qualified under both the first and the second sets of


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characteristics. Therefore, we hold that she was properly qualified as an ICWA expert

witness.

¶11   Affirmed.


                                             /S/ KARLA M. GRAY


We concur:


/S/ JIM REGNIER
/S/ PATRICIA COTTER
/S/ W. WILLIAM LEAPHART




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Justice James C. Nelson specially concurs.

¶12    I concur in the Court's Opinion.

¶13    In this case, without ever definitively determining that T.W. was, in fact, an "Indian

child," the DPHHS and the District Court proceeded as if the ICWA applied. It goes without

saying, however, that if the child is not an Indian child, then the ICWA does not apply. See

25 U.S.C. § 1901, 1902, 1903(4) (“‘Indian child’ means 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.”); In re J.L.M.

(Neb. 1990), 451 N.W.2d 377, 387. And, in that event, there is no reason for the DPHHS

to go to the extra work of complying with the ICWA procedures and meeting its higher

burdens of proof.

¶14    The Attorney General urges us to suggest to the trial courts that, in the future, the

child's ethnicity status be determined definitively. As the Attorney General points out, under

federal law, either the ICWA applies or it does not; and, there is no point in complying with

the strict ICWA requirements if that law does not control the case.

¶15    I believe the Attorney General's suggestion makes sense. Making the ethnicity

determination one way or the other will ultimately conserve the DPHHS's and the District

Court's limited resources at trial and may very well eliminate grounds for appeal where--as

here--the argument revolves around what, as a matter of law, may have been a non-issue

from the outset.




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¶16   Accordingly, in concurring with the Court's Opinion, I reiterate the Attorney

General's suggestion here.



                                                  /S/ JAMES C. NELSON




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