                                                                                         December 30 2014
                                         DA 14-0084

            IN THE SUPREME COURT OF THE STATE OF MONTANA                                 Case Number: DA 14-0084


                                        2014 MT 345



IN THE MATTER OF:

S.B.C., Jr.,

         A Youth in Need of Care.


APPEAL FROM:          District Court of the Fourth Judicial District,
                      In and For the County of Missoula, Cause No. DN 11-30
                      Honorable Edward P. McLean, Presiding Judge


COUNSEL OF RECORD:

               For Appellants:

                      Elizabeth Thomas, Elizabeth Cunningham Thomas, PLLC, Missoula,
                      Montana (for Father)

                      Carolynn M. Fagan, Fagan Law Office, P.C., Missoula, Montana
                      (for Mother)

                      Nathan St. Goddard, Blackfeet Indian Reservation of Montana, Browning,
                      Montana (for Blackfeet Tribe)

               For Appellee:

                      Timothy C. Fox, Montana Attorney General; Kat ie F. Schulz, Assistant
                      Attorney General; Helena, Montana

                      Fred R. VanValkenburg, Missoula County Attorney; Matthew B. Lowy,
                      Deputy County Attorney, Missoula, Montana



                                                  Submitted on Briefs: October 15, 2014
                                                             Decided: December 30, 2014


Filed:

                      __________________________________________
                                        Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1     N.B. (Birth Mother) and S.B.C. (Biological Father) appeal from the order entered

by the Fourth Judicial District Court, Missoula County, terminating both parents’ rights

to their minor child, S.B.C., Jr. (S.B.C.), and granting the Department of Public Health

and Human Services, Child and Family Services Division (Child Services) permanent

legal custody with right to consent to adoption. The Birth Mother and Biological Father

also challenge the District Court’s order denying transfer of jurisdiction to the Blackfeet

Tribal Court. The Blackfeet Tribe (Tribe) has filed a cross-appeal likewise challenging

the denial of its motion to transfer jurisdiction to the Blackfeet Tribal Court and the

termination of Biological Father’s parental rights. We affirm.

¶2     We address the following issues on appeal:

       1. Did the District Court err by denying the Tribe’s motion to transfer
jurisdiction to the Blackfeet Tribal Court?

      2. Did the District Court abuse its discretion by terminating Biological Father’s
parental rights?

      3. Did the District Court abuse its discretion by terminating Birth Mother’s
parental rights?

                 PROCEDURAL AND FACTUAL BACKGROUND

¶3     S.B.C. is a Native American child, whose biological parents are enrolled members

of the Blackfeet Tribe. Because of S.B.C.’s ancestry he is considered an “Indian child”




                                         2
under the Indian Child Welfare Act (ICWA), 25 U.S.C. § 1903(4).1 Birth Mother gave

birth to S.B.C. in June 2011. Birth Mother and Biological Father are not married.

Biological Father’s name did not appear on S.B.C.’s birth certificate and he has not

pursued a parental relationship with S.B.C.

¶4     On July 28, 2011, Child Services filed a petition in Missoula County for

emergency protective services and temporary investigative authority. Child Services

became involved after law enforcement officers were summoned to Birth Mother’s

residence because Birth Mother’s other minor child, S.B.C.’s half-sister, was found naked

and unsupervised in the middle of a busy intersection. This was the fourth time in two

weeks law enforcement officers had been called to Birth Mother’s residence to deal with

similar issues. Law enforcement discovered Birth Mother had left the residence and there

was no adult to care for S.B.C. Child Services contacted Birth Mother and explained if

she did not return home, S.B.C. would be placed in protective care. There was an

outstanding arrest warrant for Birth Mother at that time and, when she failed to return

home, S.B.C. was removed. He was then 27 days old. Biological Father knew of the

removal, but declined to take custody of S.B.C.

¶5     At the time of removal, Child Services consulted with the Blackfeet Tribe’s ICWA

coordinator, Raquel Vaile, who advised that S.B.C.’s paternal grandparents had

expressed an intention to become licensed foster care providers. However, until that


1
  The term “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.”
                                             3
could be arranged and Title IV-E funding initiated, Vaile asked that Child Services

arrange for placement of S.B.C.2

¶6     In September 2011, Child Services placed S.B.C. back with Birth Mother. They

lived together at Mountain Home (a shelter for homeless mothers and children) for

approximately three weeks. Birth Mother voluntarily left Mountain Home because she

felt there were too many rules to follow. Within days of leaving, Birth Mother was

arrested for her fourth offense of Driving under the Influence of Alcohol. Child Services

requested Biological Father to take custody, but he again refused and questioned his

paternity. Child Services subsequently set up appointments for Biological Father to

establish paternity, but he failed to attend the appointments. Following removal, S.B.C.

was temporarily placed in six different residences and with five different primary care

providers.

¶7     In October 2011, Vaile met with Sheila Finley, a social worker for Child Services,

to discuss more permanent placement options for S.B.C. Vaile explained Biological

Father was refusing to care for S.B.C. until paternity was established, she was still

assessing the possibility of placing S.B.C. with his paternal grandparents, and that no

other kinship placements had yet been identified. Child Services then located a Native

American foster parent (Foster Mother) and placed S.B.C. in her care; Foster Mother is

an ICWA-qualified foster parent and the adoptive mother of three Native American
2
  Title IV-E is an entitlement program authorized under the Social Security Act that provides
federal funding to assist states and Indian Tribes in providing foster care, adoption assistance,
and kinship caregiver payments for children who meet the program’s eligibility criteria. See 42
U.S.C. §§ 671-679(b).

                                            4
children. Vaile was advised that Child Services had placed S.B.C. with Foster Mother

and approved of the placement on behalf of the Tribe.          S.B.C. has been in Foster

Mother’s care since the placement in October 2011, and Foster Mother wishes to adopt

S.B.C.

¶8       In December 2011, the District Court ordered Biological Father to submit to

paternity testing. Biological Father eventually submitted and in March 2012 his paternity

of S.B.C. was confirmed. Biological Father did not attempt to be a placement option for

S.B.C. or visit the child in the nine months following the establishment of paternity.

¶9       In January 2012, the Tribe filed a notice of intervention in the action.        On

January 24, 2012, the District Court conducted a youth in need of care adjudication

hearing. Vaile testified, in her capacity as the Blackfeet Tribe’s ICWA coordinator, that

she continued to support the placement of S.B.C. with Foster Mother; S.B.C. had “been

placed [with Foster Mother] in, complian[ce] with the Indian Child Welfare Act”; there

was “clear and convincing evidence that support[ed] that active efforts [had] been

engaged in by [Child Services] to prevent the breakup of this Native American family”;

and there was “clearing [sic] and convincing evidence that [placing S.B.C. with Birth

Mother] would result in serious emotion or physical damage” to S.B.C. as Birth Mother

was in custody for DUI. The court adjudicated S.B.C. a youth in need of care.

¶10      On February 29, 2012, the District Court ordered a treatment plan for Birth

Mother to address her alcohol addiction and lack of attention and parenting skills in

caring for her children. The treatment plan contained several specific requirements,

                                          5
including that Birth Mother successfully complete inpatient treatment; obtain a sober

living environment, whether on her own or in a facility like the Carole Graham Home;

inform her social worker of her plans for aftercare and obtain her social worker’s

approval for them; and successfully complete her aftercare.

¶11    On September 28, 2012, Child Services filed a motion to approve a permanency

plan. Child Services’ primary plan for S.B.C. was reunification with Birth Mother with a

concurrent plan for adoption of S.B.C. if reunification failed. In December 2012, after

successfully completing her inpatient treatment, Birth Mother enrolled in aftercare at the

Carole Graham Home.           However, before reunification with S.B.C. could be

accomplished, Birth Mother was asked to leave because of her violations of house rules.

¶12    On February 27, 2013, during a status conference on the case, the attorney

representing Child Services advised that the State would be pursuing termination of

parental rights to S.B.C. The District Court set an initial hearing on the termination issue

and all parties were served with a copy of the minute entry and “note of ruling” reflecting

this development, including counsel for the Tribe. On March 6, 2013, the State filed a

petition to terminate both biological parents’ parental rights based on failed treatment

plans and the best interests of the child, and also sought legal custody for the purpose of

approving adoption of S.B.C. by Foster Mother.

¶13    On April 10, 2013, the Tribe filed a motion to transfer jurisdiction to the Blackfeet

Tribal Court. Birth Mother joined the motion, which was opposed by the State. The

District Court initially issued an order granting the motion, but rescinded that order after

                                         6
the State filed an objection indicating it had a right to respond to the motion. The District

Court conducted a hearing on the motion on May 14, 2013. The Tribe’s new ICWA

coordinator, Anna Fisher, testified that she believed S.B.C. should be removed from his

current placement and placed within the Tribe.         Specifically, Fisher testified S.B.C.

should be placed with Biological Father, who she believed would provide care for the

child with the assistance of Biological Father’s mother. Fisher stated, “I think that, right

now, in the best interest of [S.B.C.], I think that he would be better off with his own

relatives,” and affirmed that Blackfeet culture “does not agree, in any event, of [sic]

termination of parental rights.” Fisher further opined that Foster Mother was not only

unable to properly care for S.B.C., but was also unqualified to raise the other three Native

American children she had already adopted because of cultural differences between the

children’s tribe and the Foster Mother’s tribe.3 When asked by Birth Mother’s counsel if

she thought “this case should have been transferred to the Blackfeet Tribe a long time

ago,” Fisher answered, “Yes, I do . . . it was somebody’s fault. It fell apart.”

3
 Fisher so opined during her direct testimony, and then again under cross-examination by the
State’s counsel:
        Q:     It’s your position that the foster mother cannot meet the cultural needs of
               [S.B.C.]?
        A:     That’s my position, yes.
        Q:     And, she can’t meet the cultural needs of the three Crow children, that’s
               [sic] she has already adopted, either, correct?
        A:     Actually - not.
        Q:     You’ll have to clarify your answer for me. I didn’t understand.
        A:     Actually, she can’t teach them Crow culture.
        Q:     She can, or she cannot?
        A:     She cannot.
        Q:     Okay. So, she cannot teach her three children, that’s [sic] she has adopted,
               Crow culture, and she can’t teach [S.B.C.] Blackfeet culture, right?
        A:     No, she cannot.
                                               7
¶14    On June 3, 2013, the District Court issued its findings of facts, conclusions of

law, and order denying the request to transfer jurisdiction. The court noted that the

transfer motion was filed “547-days after [S.B.C.] was placed in his present foster home,”

and found that “transfer of jurisdiction to the Tribe at this stage of the State court

proceedings would deny the Youth a permanent adoptive home, and the only home he

has ever known, and would create a substantial risk of harm to [S.B.C.] and be a

detriment to his physical and psychological well-being.” The court reasoned that “the

disruptive effect of transfer of jurisdiction, just before the termination and adoption

proceedings were eminent [sic], to an entirely new court system for rehearings of matters

already decided is manifest . . . .” The court concluded that the State has shown good

cause to deny the motion seeking transfer of jurisdiction “at this advanced stage of these

proceedings,” describing the motion as “untimely.”

¶15    On July 17, 2013, Biological Father filed a Petition for Supervisory Control to the

order denying request to transfer jurisdiction. On August 20, 2013, this Court denied the

petition, reasoning that this Court’s review of the District Court’s good cause

determination “does not raise a purely legal question” and therefore was not suited for the

exercise of supervisory control.

¶16    On January 15, 2014 the District Court entered its order terminating both

biological parents’ parental rights and granting legal custody to Child Services with the

right to consent to the adoption of S.B.C.

                               STANDARD OF REVIEW

                                         8
¶17     We review a district court’s findings of fact to determine if they are clearly

erroneous. In re J.W.C., 2011 MT 312, ¶ 15, 363 Mont. 85, 265 P.3d 1265. Findings of

fact are clearly erroneous if they are not supported by substantial evidence, if the district

court misapprehended the effect of the evidence, or if we are left with the definite and

firm conviction that a mistake has been committed. In re G.S., 2002 MT 245, ¶ 24, 312

Mont. 108, 59 P.3d 1063.

¶18     We review a district court’s conclusions of law for correctness. In re J.W.C., ¶ 15

(citation omitted). 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 J.W.C., ¶ 15 (quotations omitted).

¶19     We review for an abuse of discretion a district court’s termination of parental

rights. In re J.M., 2009 MT 332, ¶ 12, 353 Mont. 64, 218 P.3d 1213. A district court

abuses its discretion if it “acts arbitrarily, without employment of conscientious

judgment, or exceeds the bounds of reason resulting in substantial injustice.” In re J.M.,

¶ 12.

¶20     We have not previously stated with particularity the standard of review this Court

applies to a district court’s determination of “good cause” regarding a motion to transfer

jurisdiction to a tribal court.     While we exercise de novo review of good cause

determinations in certain contexts, see, e.g., BNSF Ry. Co. v. Cringle, 2012 MT 143,

¶ 16, 365 Mont. 304, 281 P.3d 203, the good cause determination made pursuant to a

motion to transfer is based on the best interests of the child, as further discussed herein.

                                           9
Although the best interest inquiry is somewhat unique in this context, we apply an abuse

of discretion standard to best interest determinations when reviewing a district court’s

termination of parental rights. See In re M.A.L., 2006 MT 299, ¶ 17, 334 Mont. 436, 148

P.3d 606. Under ICWA, “the term ‘good cause’ was designed to provide state courts

with flexibility” in addressing transfer issues. In re T.S., 245 Mont. 242, 246, 801 P.2d

77, 80 (1990) (quotations omitted). Other appellate courts employ an abuse of discretion

standard of review for this issue, noting this flexibility. See, e.g., In the Interest of D.M.,

2004 SD 90, ¶ 5, 685 N.W.2d 768 (S.D. 2004) (“Denial of a motion to transfer

jurisdiction under 25 USC § 1911(b) is reviewed under the abuse of discretion

standard.”).4 While a district court’s interpretation of ICWA is an issue of law that we

review for correctness, In re J.W.C., ¶ 15, a determination of good cause is itself not a

purely legal question, as we noted in our denial of supervisory control over this matter.

In this context, the good cause decision will be based upon subjective and personal facts

regarding a child’s best interest. In view of the nature of the issue, the best interest of the

child standard, and the acknowledged flexibility given to states under ICWA to resolve

transfer determinations, we adopt the abuse of discretion standard.

                                       DISCUSSION

¶21 1. Did the District Court err by denying the Tribe’s motion to transfer jurisdiction
to the Blackfeet Tribal Court?


4
  See also, In re Zylena R. v. Elise M., 284 Neb. 834, 840, 825 N.W.2d 173, 178 (Neb. 2012); In
re Appeal in Maricopa Cnty. Juv. Action No. JS-8287, 171 Ariz. 104, 828 P.2d 1245, 1248 (Ariz.
Ct. App. 1991); People ex rel. A.T.W.S., 899 P.2d 223, 225, 227 (Colo. App. 1994); In re
Welfare of Children of R.M.B., 735 N.W.2d 348, 351 (Minn. Ct. App. 2007).
                                             10
       A. Indian Child Welfare Act and Jurisdiction

¶22    ICWA established “minimum Federal standards for the removal of Indian children

from their families and the placement of such children in foster or adoptive homes.”

25 U.S.C. § 1902. Congress sought to achieve two goals with the passage of ICWA:

(1) “protect the best interests of Indian children,” and (2) “promote the stability and

security of Indian tribes and families.” 25 U.S.C. § 1902.

¶23    At the core of ICWA are its provisions concerning jurisdiction over Indian child

custody proceedings. Miss. Band of Choctaw Indians v. Holyfield, 109 S. Ct. 1597, 1601,

490 U.S. 30, 36, 104 L. Ed. 2d 29, 38 (1989). ICWA created a dual jurisdictional scheme

for child custody proceedings involving Indian children. 25 U.S.C. § 1911. Section

1911(a) establishes exclusive jurisdiction within tribal courts for child custody

proceedings involving an Indian child “who resides or is domiciled within the

reservation.” In contrast, § 1911(b) creates presumptively tribal yet concurrent state

jurisdiction over proceedings involving an Indian child who, as in this case, is “not

domiciled or residing within the reservation of the Indian child’s tribe.” Section 1911(b)

further provides that presumptive tribal court jurisdiction may be overcome upon a

showing of “good cause to the contrary.”5 Good cause is not specifically defined within

ICWA.


5
  25 U.C.S. § 1911(b) provides in its entirety as follows: “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
                                              11
       B. Determination of Good Cause

¶24    We have explained, as noted above, that “the use of the term ‘good cause’ was

designed to provide state courts with flexibility in determining the disposition of a

placement proceeding involving an Indian child.” In re T.S., 245 Mont. at 246, 801 P.2d

at 80 (citing 44 Fed. Reg. 67584). We have held that, pursuant to this flexibility given to

state courts, “the ‘best interests of the child’ test will be applied in Montana in

determining good cause not to transfer jurisdiction of custody proceedings of Indian

children under § 1911(b).” In re T.S., 245 Mont. at 247, 801 P.2d at 80 (citing In re

M.E.M., 195 Mont. 329, 336, 635 P.2d 1313, 1317, (1981)). We have called this a

“jurisdictional ‘best interests of the child’ test” that “should not be confused with” other

best interests of the child tests used in different contexts. In re T.S., 245 Mont. at 247,

801 P.2d at 80. In order to satisfy the jurisdictional best interests of the child test, “the

State must provide ‘clear and convincing evidence that the best interests of the child

would be injured by such a transfer.’” In re J.W.C., 2011 MT 312, ¶ 28, 363 Mont. 85,

265 P.3d 1265 (citing In re T.S., 245 Mont. at 245, 801 P.2d at 79).6

¶25    To aid state courts in interpreting and applying ICWA, the Bureau of Indian

Affairs has published guidelines, with accompanying commentary, in the Federal

Register. Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed. Reg.

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.”
6
  The Tribe argues that a brief statement made by the District Court during the hearing—“that’s
the burden I see on the tribe”—demonstrates that the court improperly shifted this burden from
the State to the Tribe. However, despite the possible legal error that could be inferred by the
statement, it is clear from its written order that the District Court properly required the State to
meet this burden.
                                              12
67584-67595 (Nov. 26, 1979) (hereinafter, Guidelines).          The Guidelines are “not

published as regulations because they are not intended to have binding legislative effect.”

In re T.S., 245 Mont. at 246, 801 P.2d at 80 (citation omitted). However, the Guidelines

are persuasive authority and this Court considers them when interpreting ICWA.          In re

C.H., 2000 MT 64, ¶ 12, 299 Mont. 62, 997 P.2d 776.

¶26   The Guidelines provide a non-exhaustive list of criteria that may be considered in

good cause determinations. Under section (b) of the Guidelines, good cause to deny

transfer may exist under any of the following circumstances:

      (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 little or no contact with the child’s tribe or members of the child’s
      tribe. 44 Fed. Reg. 67591.

The Guidelines also provide that “[s]ocio-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.” 44 Fed. Reg. 67591.

      C. The District Court’s Denial of Transfer of Jurisdiction

¶27   Birth Mother, Biological Father, and the Tribe advance several arguments

challenging the District Court’s determination that good cause existed to deny transfer to

                                        13
Tribal Court. First, they argue the court erred by concluding that the proceeding was in

an advanced stage when the Tribe filed the motion for transfer, thereby making the

motion untimely. This argument is in reference to subsection b(i) of the Guidelines,

which provides that “[g]ood cause not to transfer the proceeding may exist” if 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.” 44 Fed.

Reg. 67591. This timeliness criterion is “designed to encourage the prompt exercise of

the right to petition for transfer in order to avoid unnecessary delays.” 44 Fed. Reg.

67591.

¶28      The District Court was careful to acknowledge that nothing in the actual text of

ICWA explicitly requires a tribe’s transfer motion to be timely, but the Tribe makes a

valid point with which we concur: the proceeding had not advanced to a stage that

rendered the Tribe’s motion, filed about 30 days after the petition for termination,

untimely as a matter of law. ICWA does not set concrete timeliness for either tribal

intervention or transfer requests.      However, ICWA’s purposes include sensitivity to

delays in requesting transfers to tribal court. The commentary to the Guidelines explains:

         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.


                                            14
44 Fed. Reg. 67590.7,8 We thus consider the circumstances here, including the delay and

the potential harm to the child that could occur by granting a transfer at the time the

request was made.

¶29     The Tribe received notice of S.B.C.’s placement in foster care and intervened in

January 2012. At the time of the Tribe’s intervention, the problems identified with the

biological parents’ ability to care for S.B.C. were readily apparent: Birth Mother had

forfeited the care of S.B.C., been arrested for her fourth DUI, and had failed in attempts

to    reunite   with   S.B.C.;   similarly,   Biological   Father    had   denied    paternity,

refused to voluntarily undergo paternity tests, and exhibited no interest in caring for

S.B.C.—leading ultimately to the development of a concurrent plan for adoption of

S.B.C. later that year. Given the emergent care situation, and the lack of a tribal option,

Child Services located an ICWA-qualified foster home and conferred with the Tribe’s

representative about this placement, which Vaile approved.             S.B.C. went there in

October 2011 and progressed well in the care of Foster Mother.                The Tribe was


7
 The comment’s reference to avoiding having a case “retried” is a further demonstration that the
Tribe’s motion was not untimely as a matter of law. The termination matter here had not yet
been “tried.”
8
  We acknowledge a split in authority regarding the propriety of considering the time the child
spent in foster care in determining whether the proceeding is at an advanced stage. Compare In
re A.B., 2003 ND 98, ¶ 18, 663 N.W.2d 625 (N.D. 2003) (“advance stage” determination must
separately consider termination proceeding) with People ex rel. T.E.R., 2013 COA 73, ¶ 14, 305
P.3d 414, 417 (Colo. Ct. App. 2013) (“advanced stage” based on considering the time child spent
in foster care placement). However, we need not resolve this issue here, as the parties do not
argue the point, but rather focus on whether the District Court’s good cause determination was
supported by sufficient evidence and based on improper considerations. See City of Billings v.
Peterson, 2004 MT 232, ¶ 45, 322 Mont. 444, 97 P.3d 532 (“It is not this Court’s obligation to
develop parties’ arguments for them.”).
                                           15
continually advised and approved of the situation. The Tribe filed a transfer motion in

April 2013, 18 months after S.B.C.’s foster care placement, and 15 months after the Tribe

intervened. The record does not demonstrate any reason that would have prohibited the

Tribe from requesting transfer earlier. Although Fisher’s testimony, that things “fell

apart,” infers that tribal disorganization played a role, those problems, if any, should not

accrue against S.B.C. and the permanency he achieved in the meantime. The evidence

supports the District Court’s conclusion that both the legal proceeding and S.B.C.’s

progress in his placement had significantly advanced by the time the Tribe filed its

motion to transfer.

¶30    The Tribe next argues the District Court improperly found clear and convincing

evidence the best interests of the child would be injured by a transfer to Tribal Court.

The commentary to the Guidelines states that the motion for transfer should be prompt

and avoid delay because “[l]ong periods of uncertainty concerning the future are

generally regarded as harmful to the well-being of children.        For that reason, it is

especially important to avoid unnecessary delays in child custody proceedings.” 44 Fed.

Reg. 67591-67592. This Court has likewise stated that “custody of children should be

quickly fixed” and “subject[ing] a child to protracted custodial litigation” is harmful to a

child’s best interests. In re Matter of D.A., 2003 MT 109, ¶ 16, 315 Mont. 340, 68 P.3d

735 (citations omitted).

¶31    The District Court found from testimony that separation from his current

placement would be very traumatic for S.B.C. The court found Foster Mother is the only

                                         16
parent he has ever known and that removal would create a substantial risk of harm to

him, and be a detriment to his physical and psychological well-being. It found that Foster

Mother fully appreciates the laudable goals of ICWA, understands and is capable of

helping S.B.C. learn his own heritage, culture and customs, and is willing to travel with

him to participate in important tribal activities and rituals unique to his Blackfeet Tribe.

The District Court did not err by finding there was clear and convincing evidence that

subjecting S.B.C. to another court system and beginning the proceeding anew in Tribal

Court would injure S.B.C.’s best interests.

¶32    Lastly, the Tribe argues the District Court improperly considered the

socio-economic conditions of the Tribal Court. Subsection (c) of the Guidelines prohibit

the consideration of the “[s]ocio-economic conditions and the perceived adequacy” of the

tribal court system in making a determination of good cause. 44 Fed. Reg. 67591. In an

attempt to demonstrate that the court based its decision on the inadequacy of the Tribal

Court system, the Tribe draws our attention to a number of assertions the District Court

made in its findings of fact and conclusions of law.         The District Court remarked

throughout its findings of fact and conclusions of law that the Tribe “chose to sit on its

hands and delay seeking jurisdiction over [S.B.C.] for tribal financial reasons.” Further,

the court insinuated that the Tribe believes its children are sacred “only when it is in its

best financial interests to do so.”

¶33    We agree that the District Court made comments that were both unnecessary and

inappropriate. While the court’s financial comments validly reflected the testimony of

                                         17
Fisher to the extent she testified that the availability of funding necessarily factors into

the Tribe’s custody decisions, there was no reason to question the Tribe’s motives with

regard to the sacredness with which it views S.B.C. or other Blackfeet children, or that it

“exercise[s] its sovereign rights as a Nation . . . only when it is in its best financial

interests to do so.” Despite the inappropriateness of some of the court’s statements, none

were directed at the efficacy of the Blackfeet Tribal Court system itself. We conclude

that the statements are not a basis for reversal. We affirm the District Court’s denial of

the motion for transfer.

¶34 2. Did the District Court abuse its discretion by terminating Biological Father’s
parental rights?

¶35    Biological Father argues the District Court abused its discretion by terminating his

parental rights. Biological Father asserts that there was no “testimony of qualified expert

witnesses, that continued custody” of S.B.C. would result in serious damage to the child

as is required by ICWA. The State, citing the Supreme Court’s decision in Adoptive

Couple v. Baby Girl, 133 S. Ct. 255, 186 L. Ed. 2d 729 (2013), argues that no qualified

expert testimony was required because Biological Father did not ever have custody of

S.B.C., as the District Court held.

¶36    Section 1912(f) of ICWA addresses the requisite expert testimony necessary to

involuntarily terminate parental rights with respect to Indian children.       Specifically,

§ 1912(f) provides that “no termination of parental rights may be ordered . . . in the

absence of . . . testimony of qualified expert witnesses, that the continued custody of the

child by the parent or Indian custodian is likely to result in serious emotional or physical
                                         18
damage to the child.” (Emphasis added.) In Baby Girl, the Supreme Court held that

“§ 1912(f) does not apply in cases where the Indian parent never had custody of the

Indian child.” Baby Girl, 133 S. Ct. at 2560, 186 L. Ed. 2d at 740 (emphasis in original).

The Supreme Court reasoned the phrase “continued custody” as referenced in § 1912(f)

necessarily implies a prior term of “custody that a parent has” or “had at some point in

the past” that could be continued. Baby Girl, 133 S. Ct. at 2560, 186 L. Ed. 2d at 739.

See also In re J.S., 2014 MT 79, ¶ 31, 374 Mont. 329, 321 P.3d 103.

¶37       The record supports the District Court’s determination that Biological Father never

had custody of S.B.C. Biological Father was given opportunities to exercise custodial

rights regarding S.B.C., but he steadfastly was unwilling or unable to do so. Biological

Father initially denied paternity and failed to appear for paternity tests. Even after

paternity was established by court order, Biological Father did not attempt to be a

placement option for S.B.C., did not object to S.B.C.’s placement elsewhere, and in nine

months following the establishment of paternity, did not visit S.B.C. While he did have

minimal visits with S.B.C., Biological Father testified he “never had [S.B.C.] in [his]

care.” Given this record, there was never any “custody” by Biological Father that could

be continued within the meaning of § 1912(f). Therefore, § 1912(f) is inapplicable and

the District Court did not abuse its discretion by terminating Biological Father’s parental

rights.

¶38 3. Did the District Court abuse its discretion by terminating Birth Mother’s
parental rights?


                                           19
¶39    Birth Mother argues the District Court abused its discretion by terminating her

parental rights. Birth Mother offers that there is insufficient evidence to support the

District Court’s finding that she failed to complete her treatment plan. Pursuant to

§ 41-3-609(1)(f), MCA, a court may order termination of the parent-child relationship if

the child is an adjudicated youth in need of care and both of the following exist: (1) “an

appropriate treatment plan that has been approved by the court has not been complied

with by the parents or has not been successful,” and (2) “the conduct or condition of the

parents rendering them unfit is unlikely to change within a reasonable time.”

¶40    It is undisputed S.B.C. was adjudicated a youth in need of care, and that he had

been in foster care for 30 consecutive months. Pursuant to § 41-3-604(1), MCA, “[i]f a

child has been in foster care under the physical custody of the state for 15 months of the

most recent 22 months, the best interests of the child must be presumed to be served by

termination of parental rights.”

¶41    The treatment plan ordered by the District Court required Birth Mother to address

her alcohol addiction issues and lack of parenting skills.     The treatment plan listed

specific tasks which included, among other things, that Birth Mother achieve a sober

living environment, whether on her own or in a facility like the Carole Graham Home;

inform her social worker of her plans for aftercare and obtain her social worker’s

approval for them; and successfully complete her aftercare.

¶42    The record supports the District Court’s determination that Birth Mother failed to

comply with her treatment plan. Birth Mother did enroll in the Carole Graham Home,

                                        20
but she was asked to leave because of rules violations. Birth Mother’s social worker

testified at the termination hearing that Birth Mother still has “an alcohol problem,”

“warrants are out for her arrest for absconding from probation,” and she “failed to last in

a structured environment for two weeks.” The record indicates Birth Mother was not

present at the termination hearing of her parental rights and her whereabouts were

unknown. The District Court found that her condition rendered her unfit, unable or

unwilling to provide adequate parental care for S.B.C., which condition was unlikely to

change within a reasonable time, and that continued custody of S.B.C. by Birth Mother

would be harmful to him.      Birth Mother’s social worker further testified that Birth

Mother’s parental rights should be terminated “due to two failed reunifications” with

S.B.C. and because she is “not invested in developing that relationship with [her] son,

and following a treatment plan, successfully.”

¶43    There is sufficient evidence to conclude that Birth Mother had not complied with

her treatment plan, and it was not successful. Accordingly, we hold that the District

Court did not abuse its discretion by terminating Birth Mother’s parental rights.

¶44    Affirmed.

                                                 /S/ JIM RICE

We concur:

/S/ MICHAEL E WHEAT
/S/ PATRICIA COTTER
/S/ LAURIE McKINNON




                                         21
Chief Justice Mike McGrath, dissenting.

¶45   I dissent as to Issue 1. I would not reach the remaining issues and would remand

this case with instructions to grant the Tribe’s motion to transfer jurisdiction to the

Blackfeet Tribal Court.

¶46   Congress enacted the Indian Child Welfare Act of 1978 (ICWA) to address the

widespread concern over the removal of Indian children from their families. Miss. Band

of Choctaw Indians v. Holyfield, 490 U.S. 30, 32, 109 S. Ct. 1597, 1600 (1989).

Testimony at the Congressional hearings emphasized the significant impact that removal

of Indian children has on the tribe’s role as a sovereign community, as well as the future

of Native American society and heritage. Holyfield, 490 U.S. at 34, 109 S. Ct. at 1601

(citations omitted). ICWA expresses a “clear preference for keeping Indian children with

their families, deferring to tribal judgment on matters concerning the custody of tribal

children, and placing Indian children who must be removed from their homes within their

own families or Indian tribes.” In re C.H., 2000 MT 64, ¶ 13, 299 Mont. 62, 997 P.2d

776 (citing 44 Fed. Reg. 67,585-86 (Nov. 26, 1979)). Federal regulations, guidelines,

and any rules or statutes governing ICWA should be liberally construed in favor of the

preferences. 44 Fed. Reg. 67,586; In re C.H., ¶ 13.

¶47   As the Court correctly notes (Opinion, ¶ 23), this case implicates 25 U.S.C.

§ 1911(b), which provides for presumptively tribal, but concurrent state, jurisdiction.

Under § 1911(b), the State bears the burden of establishing “good cause” to block a

transfer to tribal court. 44 Fed. Reg. 67,591; see also In re J.W.C., 2011 MT 312, ¶ 28,

                                        22
363 Mont. 85, 265 P.3d 1265. Although “good cause” is not defined in ICWA, the

Bureau of Indian Affairs Guidelines for State Courts (“Guidelines”) provide guidance to

state courts. Good cause may exist if “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.” 44 Fed. Reg. 67,591.

¶48     The purpose of the “advanced stage” rule is to avoid improper manipulation of the

system. The Guidelines note that a party should not be permitted to use transfer as a

“tactic to wear down the other side by requiring the case be tried twice.” 44 Fed. Reg.

67,590. While the Act allows intervention at any point in the proceeding, this guideline

suggests that a parent whose rights have been terminated should not be permitted to

transfer jurisdiction after the fact.

¶49    I disagree with the majority’s analysis of the “advanced stage” guideline. The

State filed its termination petition on March 6, 2013. The Tribe, having intervened early

in the case, moved to transfer jurisdiction on April 10, 2013, thirty-five days later. The

District Court order faulted the Tribe for seeking transfer after “all the critical court

proceedings [were] completed and decisions made,” yet the District Court had not

conducted a hearing nor made a decision to terminate the parents’ rights. The hearing

was not held until September 10, 2013, and the order of termination was not signed until

January 15, 2014, eight months after the motion to transfer was filed. This situation does

not implicate the dangers the “advanced stage” rule is designed to protect against and

there is no indication of manipulation by any party.

                                         23
¶50    The majority opinion purports to concur with the Tribe that the case was not at an

advanced stage (Opinion, ¶ 28); however, the majority later faults the Tribe for not acting

earlier, noting that the case “had significantly advanced by the time the Tribe filed its

motion.” (Opinion, ¶ 29). Blaming the Tribe for not seeking transfer earlier, when

problems with the parents were “readily apparent” (Opinion, ¶ 29), ignores the interests

the Tribe sought to protect. The Tribe intervened early in this case, but did not move to

transfer until it became clear that the plan to reunite the family would not be

accomplished. When it became apparent that the Indian family relationship would likely

be terminated, the Tribal interest in adjudicating the case became more significant, as its

interest in retaining the child in the Blackfeet community and culture became more

critical. This concern was not present prior to the State’s motion to terminate the parents’

rights. In my view, the good cause standard is not satisfied by the delay in this case.

¶51    In Montana, courts must consider the best interest of the child in its determination

of “good cause.” In re T.S., 245 Mont. 242, 247, 801 P.2d 77, 80 (1990). However, the

“best interest” test used in the ICWA context differs from the “best interest” test used in

custody determinations and termination of parental rights cases. In re T.S., 245 Mont. at

247, 801 P.2d at 80 (1990); see also In re C.H., ¶ 29. ICWA “expresses the presumption

that it is in an Indian child's best interests to be placed in accordance with the statutory

preferences.” In re C.H., ¶ 29 (citations omitted).

¶52    The State bears the burden of establishing that a transfer to the tribal court would

be against the child’s best interest as considered by ICWA. In re T.S., 245 Mont. at 245,

                                         24
801 P.2d at 79. Here, however, the District Court improperly shifted the burden to the

Tribe, stating:

       that’s the burden I see on the tribe, when we start talking- what’s the best
       interest of the child under the ICWA Act. There’s no question that the
       priority for protecting the Indian heritage is very high. But, we, also, have
       the emotional wellbeing of the child, that probably has priority, and that’s
       the burden I see on the Blackfeet Tribe, right now.

¶53    As we stated in In re Marriage of Skillen, “ICWA indicates that regardless of the

child's residence, tribal courts are uniquely and inherently more qualified than state courts

to determine custody in the best interests of an Indian child.” 1998 MT 43, ¶ 39, 287

Mont. 399, 956 P.2d 1 (overruled, in part, on other grounds by Big Spring v. Conway,

2011 MT 109, 360 Mont. 370, 255 P.3d 121). There is no reason to believe that the

Blackfeet Tribal Court would not fulfill its obligation to S.B.C. and determine what is in

his best interest. The decision to deny the transfer to tribal court reflects an ethnocentric

belief that state courts are better situated to determine the best interests of the Indian child

and ignores the policy set by the ICWA.

¶54    Certainly, the foster mother must be commended for her generosity and

willingness to welcome children into her home. However, the majority ignores the

distinct cultural difference between native communities, the child’s interest in being

raised in his own culture, and the Blackfeet Tribe’s interest in educating its own children.

Moreover, there is no reason to assume that the Tribal Court would automatically

discontinue the child’s current placement. The Tribal Court would necessarily need to

examine the same factors in deciding the child’s best interest as the state court did.

                                           25
¶55    Finally, I agree with the majority that the District Court’s repeated statements that

the Tribe “sat on its hands” until it had a financial reason to seek jurisdiction were

inappropriate. The BIA Guidelines specifically provide that a state court cannot base the

“good cause” determination on “socio-economic conditions and the perceived adequacy

of tribal social services or judicial system.” 44 Fed. Reg. 67,591. These statements

reflect, at best, a refusal to comply with the Guidelines and, at worst, a strong bias against

the Tribe and the Tribal judicial system. Such statements have no place in the District

Court’s order and were highly inappropriate.

¶56    For these reasons, I dissent. The State did not carry its burden of establishing

good cause to block the presumptive jurisdiction in favor of the tribal court. The District

Court abused its discretion when it failed to grant the Tribe’s request to transfer

jurisdiction. On remand, the District Court should grant the Tribe’s motion to transfer

jurisdiction to the Blackfeet Tribal Court.


                                                  /S/ MIKE McGRATH


Justice Beth Baker and Justice James Jeremiah Shea join in the dissenting Opinion of

Chief Justice McGrath.


                                                  /S/ BETH BAKER
                                                  /S/ JAMES JEREMIAH SHEA




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