                                                                                            December 13 2011


                                        DA 11-0227

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                       2011 MT 312



IN THE MATTER OF:

J.W.C., L.W.C., K.W.C., and C.W.C.,

           Youths in Need of Care.



APPEAL FROM:        District Court of the Thirteenth Judicial District,
                    In and For the County of Yellowstone, Cause Nos. DN 09-062,
                    DN 09-063, DN 09-064, and DN 09-065
                    Honorable Ingrid G. Gustafson, Presiding Judge


COUNSEL OF RECORD:

             For Appellant:

                    Joslyn Hunt, Chief Appellate Defender, Koan Mercer, Assistant Appellate
                    Defender, Helena, Montana

             For Youths:

                    Elizabeth Thomas, Attorney at Law, Missoula, Montana

             For Appellee:

                    Steve Bullock, Montana Attorney General, John Paulson, Assistant
                    Attorney General, Helena, Montana

                    Scott J. Pederson, Assistant Attorney General, Child Protection Unit,
                    Billings, Montana



                                                  Submitted on Briefs: October 19, 2011

                                                             Decided: December 13, 2011


Filed:

                    __________________________________________
                                      Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.

¶1     The mother of four Indian children appeals from the order of the Thirteenth

Judicial District Court, Yellowstone County, Montana, terminating her parental rights to

J.W.C., L.W.C., K.W.C., and C.W.C. (children). S.W.C. (Mother) had moved to transfer

the case to the Fort Peck Tribal Court, as allowed under the Indian Child Welfare Act

(ICWA). 25 U.S.C. § 1911(b). However, the case was never transferred. The District

Court maintained jurisdiction, terminated Mother’s and C.W.C.’s (Father) parental rights,

and denied Mother’s request to continue the termination hearing and appoint counsel for

the children.

¶2     Mother appeals. She argues that the District Court failed to comply with the

jurisdictional ICWA transfer requirements because the Tribal Court should have had

jurisdiction over the proceedings upon her petition to transfer jurisdiction. She also

argues that the District Court erred when it failed to appoint counsel for the children as

required by statute and due process. Lastly, she argues that she was denied her due

process right to the effective assistance of counsel when her counsel did not require the

Montana Department of Public Health and Human Services (Department) to carry its

burden of proof at the adjudication hearing.

¶3     We reverse and remand.

                                         ISSUES

¶4     Three issues are raised on appeal. A restatement of the dispositive issues is:

¶5     1.   Did the District Court comply with the jurisdictional ICWA transfer

requirements?


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¶6     2. Did the District Court err in failing to appoint counsel for the children?

                  FACTUAL AND PROCEDURAL BACKGROUND

¶7     Mother, Father, and their four children are members of the Fort Peck Assiniboine

and Sioux Tribes (Tribes). In August 2009, the four children were between the ages of

one and nine years old. Father was incarcerated and Mother could not provide food or

shelter for the children. Mother voluntarily placed the children in foster care on August

26, 2009, and they were all returned to Mother’s care by August 31, 2009, when she was

able to secure temporary housing for herself and the children at the Gateway House in

Billings. They resided there until September 3, 2009, when Mother was taken to an

emergency room for reportedly taking pills and making suicidal threats. Mother was then

arrested on an existing warrant and banned from returning to the Gateway House for six

to twelve months due to drug paraphernalia found in her room. The children were

returned to foster care.

¶8     Later that month, the Department’s Child and Family Services Division filed a

petition in the Thirteenth Judicial District Court for emergency protective services,

adjudication as youths in need of care (YINC), and temporary legal custody for the four

children. As required by ICWA, notice of the involuntary child custody proceedings was

sent to the Tribes. 25 U.S.C. § 1912(a). On September 9, 2009, the District Court

appointed one attorney to be both the guardian ad litem (GAL) and legal counsel for the

children, pursuant to §§ 41-3-112 and -425(2)(b), MCA (2009), and ordered the

assignment of counsel to Mother and Father, pursuant to § 41-3-425(2)(a), MCA (2009).

The District Court granted emergency protective services for the children and set a show


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cause hearing. In March 2010, the Tribes filed a Notice of Appearance and Intervention

to assist the court in its deliberations and reserve its right to move for a transfer of

jurisdiction if necessary. The court granted the Tribes’ motion to appear at the hearings

telephonically.

¶9     On May 6, 2010, Mother moved to transfer the cases to the Fort Peck Assiniboine

and Sioux Tribal Court, as allowed under 25 U.S.C. § 1911(b), and neither Father nor the

GAL objected.         The Tribes advised the District Court that they were seriously

considering a transfer of jurisdiction, but they needed more time to make an informed

decision. The GAL argued that a delay was not in the best interests of the children, and

the District Court, while recognizing this, allowed the Tribes an additional six weeks to

file the motion. The Tribes did not file documents for a jurisdictional transfer within the

six weeks, so the District Court granted the Department’s request to vacate further

consideration of the transfer. The District Court acknowledged that the Tribes could still

file a motion with the District Court for transfer but noted the Tribes did not seem

interested in taking jurisdiction at that point.

¶10    At a hearing on June 17, 2010, all parties except Mother stipulated that the alleged

facts were sufficient for the District Court to find that the children had been abused,

neglected, or abandoned, that the children were YINC, and that the Department should be

given temporary legal custody of the children. Mother was not present at the hearing.

Mother had disappeared after being released from custody on other charges, and she

failed to maintain contact with anyone. Mother’s counsel was present and did not object

to the stipulation.


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¶11   The following month, the District Court found that the children had been exposed

to physical neglect, and consequently adjudicated them as YINC, granted the Department

temporary legal custody, and ordered a treatment plan for Mother. Again, Mother’s

attorney did not object. Mother was assigned new counsel in August 2010 but her

counsel was unable to contact her. Though the Department attempted to work with

Mother and Father towards reunification, the lack of contact with Mother and her absence

from hearings, her lack of visitation with the children, and her inability to finish the

treatment plan led the Department to work toward termination of parental rights.

Moreover, neither Mother nor Father appeared for the subsequent permanency hearing in

October.

¶12   At the termination hearing on February 24, 2011, the GAL recommended

terminating Mother’s and Father’s parental rights.     Counsel for Mother requested a

continuance of the hearing so counsel could be appointed for the children, and the

District Court denied the motion, reasoning that Mother had numerous previous

opportunities to request counsel for the children, and she had not done so. Additionally,

in order to expedite the process for the sake of the children, the court stated it would

assume the children wished to be returned to their parents, as the GAL reported that the

three older children had expressed that preference and the youngest one was too young to

express a preference. The ICWA director for the Tribes testified that the current foster

care placements of the children complied with ICWA. She further testified that though

the Tribes had made an affirmative decision about transferring the case to tribal




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jurisdiction, the necessary paperwork had not been done. Again, neither Mother nor

Father was present for the hearing.

¶13     The District Court concluded that the children had been adjudicated as YINC, the

treatment plan for Mother was appropriate, Mother failed to complete the required

treatment plan, and Mother’s unfitness was unlikely to change within a reasonable time.

The court awarded the Department permanent legal custody after determining that

termination was in the best interests of the children.

¶14     Mother appealed. The cases of the four children were consolidated, and this Court

appointed independent appellate counsel for the children.

                               STANDARD OF REVIEW

¶15     We review a district court’s termination of parental rights for abuse of discretion.

In re R.M.T., 2011 MT 164 ¶ 26, 361 Mont. 159, 256 P.3d 935. “A district court abuses

its discretion when it ‘acts arbitrarily, without employment of conscientious judgment, or

exceeds the bounds of reason resulting in substantial injustice.’ ” R.M.T., ¶ 26 (citing In

re J.M., 2009 MT 332, ¶ 12, 353 Mont. 64, 218 P.3d 1213). We review findings of fact

to determine if they are clearly erroneous and we review conclusions of law for

correctness. In re C.M.C., 2009 MT 153, ¶ 19, 350 Mont. 391, 208 P.3d 809. “A district

court’s application of the law to the facts of a case is a legal conclusion which we review

to determine whether the interpretation of the law is correct.” In re C.H., 2000 MT 64,

¶ 9, 299 Mont. 62, 997 P.2d 776. We exercise plenary review to determine “whether a

parent was denied effective assistance of counsel in termination proceedings.” C.M.C.,

¶ 20.


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                                      DISCUSSION

¶16    Issue One: Did the District Court comply with the jurisdictional ICWA transfer
       requirements?

¶17    On appeal, Mother argues that the District Court should have transferred the case

to the Tribal Court upon her motion, and it committed jurisdictional error when it did not

do so. The State argues that the Tribes were on actual notice of all the state court

proceedings, as required by ICWA’s notice provisions, and declined the jurisdictional

transfer by failing to request a transfer. Further, the State asserts that Mother “anticipated

that a tribal court order accepting jurisdiction would be a prerequisite for the transfer of

jurisdiction to the Tribes.” While ICWA provides for concurrent jurisdiction between

state and tribal courts, we conclude that the District Court should have transferred

jurisdiction to the Tribal Court, or determined after a hearing that there was good cause

not to do so.

¶18    The policy of ICWA is

       to protect the best interests of Indian children and to promote the stability
       and security of Indian tribes and families by the establishment of minimum
       Federal standards for the removal of Indian children from their families and
       the placement of such children in foster or adoptive homes which will
       reflect the unique values of Indian culture . . . .

25 U.S.C. § 1902; see C.H., ¶ 11. An “Indian child,” as defined by 25 U.S.C. § 1903(4),

is “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.” It is undisputed that the children are Indian children

under this definition.



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¶19    Jurisdiction over Indian child custody proceedings is at the heart of ICWA. Miss.

Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 36, 109 S. Ct. 1597, 1601 (1989).

Specifically, ICWA provides:

       (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 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.

25 U.S.C. § 1911(a)-(c).

¶20    Since the case at hand involves Indian children apparently residing in Billings, not

on the Tribes’ reservation, we apply 25 U.S.C. § 1911(b) to these proceedings.

Therefore, upon petition of a parent, the custodian, or the tribe, and unless good cause to

the contrary is shown, a parent objects, or the tribal court declines the transfer, the

proceedings must be transferred to the jurisdiction of the tribe. 25 U.S.C. § 1911(b).

This section “creates concurrent but presumptively tribal jurisdiction in the case of

children not domiciled on the reservation.” Choctaw Indians, 490 U.S. at 36, 109 S. Ct.


                                         8
at 1602. Consequently, “the extraterritorial jurisdiction of the tribe created by [ICWA]

must first be adjudicated” in a transfer hearing before a request for the transfer of

jurisdiction can be granted or denied. In re M.E.M., 195 Mont. 329, 335, 635 P.2d 1313,

1317 (1981); In re G.L.O.C., 205 Mont. 352, 356-57, 668 P.2d 235, 237 (1983).

¶21    We look to the guidelines promulgated by the Bureau of Indian Affairs in 1979 to

help state courts interpret and apply ICWA. In re M.B., 2009 MT 97, ¶ 16, 350 Mont. 76,

204 P.3d 1242; see Guidelines for State Courts; Indian Child Custody Proceedings, 44

Fed. Reg. 67584-95 (Nov. 26, 1979) [hereinafter Guidelines]. This Court has previously

determined that these Guidelines are persuasive and that we will apply them when

interpreting ICWA. M.B., ¶ 16; C.H., ¶ 12.

¶22    The Guidelines’ commentary regarding petitions for jurisdictional transfers to

tribal court states:

            Although [ICWA] 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.

Guidelines, C.1. Commentary, 44 Fed. Reg. at 67590.

¶23    The Guidelines for ruling on 25 U.S.C. § 1911(b) transfer petitions state:

            (a) Upon receipt of a petition to transfer by a parent, Indian custodian
       or the Indian child’s tribe, the court must transfer unless either parent
       objects to such transfer, the tribal court declines jurisdiction, or the court
       determines that good cause to the contrary exists for denying the transfer.
            (b) If the court believes or any party asserts that good cause to the
       contrary exists, the reasons for such belief or assertion shall be stated in
       writing and made available to the parties who are petitioning for transfer.
       The petitioners shall have the opportunity to provide the court with their
       views on whether or not good cause to deny transfer exists.


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Guidelines, C.2. Criteria and Procedures for Ruling on 25 U.S.C. § 1911(b) Transfer

Petitions, 44 Fed. Reg. at 67590-91 (emphasis added).

¶24    Regarding a tribal court’s declination of transfer, the Guidelines state:

            (a) A tribal court to which transfer is requested may decline to accept
       such transfer.
            (b) Upon receipt of a transfer petition the state court shall notify the
       tribal court in writing of the proposed transfer. The notice shall state how
       long the tribal court has to make its decision. The tribal court shall have at
       least twenty days from the receipt of notice of a proposed transfer to decide
       whether to decline the transfer. The tribal court may inform the state court
       of its decision to decline either orally or in writing.

Guidelines, C.4. Tribal Court Declination of Transfer, subsections (a)-(c), 44 Fed. Reg. at

67592 (emphasis added). The associated commentary used to explain that the prior

Guidelines “provided that the state court should presume the tribal court has declined to

accept jurisdiction unless it hears otherwise.” Guidelines, C.4. Commentary, 44 Fed.

Reg. at 67592. The Guidelines were revised in 1979, however, and now require

       the tribal court to decline the transfer affirmatively if it does not wish to
       take the case. . . . The language in [ICWA] providing that transfers are
       “subject to declination by the tribal court” indicates that affirmative action
       by the tribal court is required to decline a transfer.

Guidelines, C.4. Commentary, 44 Fed. Reg. at 67592 (emphasis added).

¶25    An important distinction we recognize is the difference between “Indian tribe” and

“tribal court.” See In the Interest of Shawnda G., 634 N.W.2d 140, 145 n. 8 (Wis. App.

2001). They are separate entities, and are separately defined by ICWA. 25 U.S.C.

§ 1903(8), (12). “ ‘Indian tribe’ means any Indian tribe, band, nation, or other organized

group or community of Indians recognized as eligible for the services provided to Indians



                                         10
by the Secretary because of their status as Indians.” 25 U.S.C. § 1903(8). “ ‘[T]ribal

court’ means a court with jurisdiction over child custody proceedings and which is either

a Court of Indian Offenses, a court established and operated under the code or custom of

an Indian tribe, or any other administrative body of a tribe which is vested with authority

over child custody proceedings.” 25 U.S.C. § 1903(12).

¶26    As indicated in In the Interest of C.Y., 925 P.2d 447 (Kan. App. 1996), “[i]t is the

tribe which has the right to intervene under 25 U.S.C. § 1911(c), and it is the tribal court

which must decline to exercise jurisdiction over a case transferred to it under § 1911(b).”

C.Y., 925 P.2d at 449 (emphasis in original). Under the clear language of § 1911(b) and

as explained in the Guidelines, the district court, upon petition of either parent, shall

transfer the proceeding to the jurisdiction of the tribe, absent circumstances not present

here. If the tribal court decides not to accept jurisdiction, it is incumbent on the tribal

court to affirmatively decline the transfer. It is the tribal court, and not the Tribes, which

must decline the transfer of jurisdiction in order for the state court to thereafter proceed.

Because the Tribal Court did not affirmatively decline to receive this case, it remains ripe

for transfer from the District Court to the Tribal Court.

¶27    In Shawnda G., the court recognized that “[t]he guidelines indicate that once a

state court is asked to transfer jurisdiction, the court has an obligation to ascertain

whether the tribal court is declining jurisdiction.” Shawnda G., 634 N.W.2d at 145. The

circuit court must “first ascertain whether the tribal court will accept jurisdiction. If the

tribal court indicates that it will accept jurisdiction, then the circuit court must transfer

jurisdiction unless it determines that good cause exists for denying the transfer.”


                                          11
Shawnda G., 634 N.W.2d at 146. The trial court therefore must transfer the case to tribal

court unless it either “obtain[s] a declination of jurisdiction from the tribal court or

make[s] a finding that good cause exists not to transfer the case to the tribal court.” C.Y.,

925 P.2d at 449 (emphasis in original).

¶28    For a jurisdictional transfer to be precluded for good cause, the State must provide

“clear and convincing evidence that the best interests of the child would be injured by

such a transfer.” In re T.S., 245 Mont. 242, 245, 801 P.2d 77, 79 (1990) (citing M.E.M.,

195 Mont. at 336, 635 P.2d at 1317). In the case at hand, the issue of good cause was

never reached, so we need not further address this exception.

¶29    We conclude that the District Court misinterpreted the ICWA requirement to

require an affirmative acceptance of the transfer by the Tribes. Instead, an affirmative

declination of the transfer by the Tribal Court was required, and this did not occur.

Mother petitioned for a transfer early in the proceedings, no one objected to Mother’s

petition, and the State did not argue good cause existed so as to preclude the transfer to

the Tribal Court. The Guidelines provide that “[u]pon receipt of a transfer petition the

state court shall notify the tribal court in writing of the proposed transfer” and the tribal

court then has at least twenty days to decide whether to accept or decline the transfer.

Guidelines, C.4. Tribal Court Declination of Transfer, subsection (b), 44 Fed. Reg. at

67592. However, the state court notified the Tribes, not the Tribal Court, and as we have

already stated, these are separate entities. We therefore conclude that under the clear

language of 25 U.S.C. § 1911 and the Guidelines, the District Court was obligated to

obtain a declination of jurisdiction from the Tribal Court, or make a finding that good


                                          12
cause existed not to transfer the case to the Tribal Court. Because neither course of

action was taken, we must reverse and remand in order that the requisites of ICWA may

be met.

¶30   Finally, the District Court must hold a jurisdictional transfer hearing before it can

grant or deny a request for a jurisdictional transfer of Indian children to tribal custody.

G.L.O.C., 205 Mont. at 356-57, 668 P.2d at 237. Mother filed her motion to transfer

jurisdiction to the Tribal Court on May 6, 2010, and all parties were willing to transfer

the case at that time. However, the State changed its position by the June 17 hearing and

sought to vacate the transfer of jurisdiction hearing portion of the case. While Mother

argues that these two hearings were sufficient to satisfy the procedural requirement of

holding a transfer hearing and that a new transfer hearing is unnecessary, we decline to

make that determination.

¶31   We therefore reverse the District Court’s conclusion as to the jurisdictional ICWA

transfer requirements and remand so that jurisdiction may properly be determined

according to our findings and a transfer hearing may be held.

¶32   Issue Two:     Did the District Court err in failing to appoint counsel for the
      children?

¶33   On appeal, Mother argues for the first time that the District Court was required to

appoint counsel for the children, as statutorily mandated by § 41-3-425(2)(b), MCA

(2009), and constitutionally mandated by the Montana Constitution, Article II, Sections

15 and 17. She further maintains that the GAL was not legal counsel for the children,

and that these errors require reversal. The children argue the same, and emphasize the



                                        13
necessity of protecting their liberty interests.    The State, while recognizing that the

District Court was required to immediately appoint or assign counsel for the children

under § 41-3-425(2)(b), MCA (2009), argues that the District Court adequately complied

with the mandate by appointing an attorney as both a GAL and legal counsel for the

children.

¶34    We conclude that in light of our reversal of the decision terminating Mother’s and

Father’s parental rights to the children and remand for further proceedings under ICWA,

we need not address whether the District Court erred by failing to appoint counsel for the

children. However, we do note an apparent conflict between the children’s wishes and

what the GAL concluded to be in the children’s best interests. Because the children’s

wishes and their best interests will once again be at issue, we direct the court to appoint

counsel for the children on remand.

¶35    Finally, Mother argues that her constitutional right to due process was violated

because her counsel failed to advocate for her during the adjudicatory hearing. Because

we are reversing and remanding this case for further proceedings, we deem it unnecessary

to reach this issue.

                                      CONCLUSION

¶36    For the foregoing reasons, we reverse and remand for further proceedings

consistent with this Opinion.


                                                   /S/ PATRICIA COTTER




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We concur:

/S/ MIKE McGRATH
/S/ JAMES C. NELSON
/S/ BETH BAKER
/S/ JIM RICE




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