In the Matter of DA and MA

In the Matter of DA and MA, 2013 MT 191 (July 16, 2013) (5-0) (Morris, J.)

Issues: (1) Whether DHHS made sufficient efforts under the Indian Child Welfare Act (ICWA) to reunite mother and the children; (2) whether DHHS provided sufficient evidence that reuniting children with mother would cause serious physical or emotional damage to the children; (3) whether the district court properly determined that mother had stipulated to the treatment plan; and (4) whether all stipulations in ICWA involuntary termination proceedings must be in writing.

Short Answers: (1) Yes; (2) yes; (3) yes, and (4) no.

Facts: TA is the natural mother of MA, 9, and DA, 7. All are enrolled members of the Chippewa Cree Tribe. Mother has a log history of illegal drug use. She tested positive for methamphetamine in August 2005 when she was six months pregnant with DA. The department removed MA from mother’s case the next day.

The district court previously adjudicated MA a youth in need of care and granted temporary legal custody to the department. The department removed DA from mother at birth due to her drug use during pregnancy. MA and DA were returned to mother in 2007 after mother successfully completed a treatment plan.

When mother’s third child, AA, was around 5 months old, the department placed her with her birth father, with whom she still resides. MA’s and DA’s maternal aunt and uncle agreed to care for them in 2008 so that mother could go into treatment. Mother left treatment after two days. The children remained with their aunt and uncle until April 2010 when the uncle told DHHS they could no longer care for the children.

MA and DA were placed in protective custody in April 2010. MA lived with her paternal grandmother throughout most of these proceedings. DA has been moved a number of times.

Procedural Posture & Holding: The district court held a permanent legal custody and termination of parental rights hearing in August 2012. Mother appeared with counsel. Several witnesses testified. The Court granted the petition in September 2012, and Mother appeals. The Supreme Court affirms.

Reasoning: (1) The Court reviews the record and determines that it established beyond a reasonable doubt that DHHS undertook active efforts to reunite mother with MA and DA, as required under ICWA. The department worked around Mother’s incarceration, her supervision, and her chemical dependency problems.

(2) ICWA requires testimony of qualified expert witnesses that the continued custody by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child. Montana requires an ICWA expert’s opinion that serious emotional or physical damage is likely to result to the child. Here, that expert offered that opinion, and provided the basis for her opinion. Ample other evidence supported the district court’s determination.

(3) The district court correctly determined that Mother had stipulated to the terms of the treatment plan.

(4) ICWA requires that a parent’s voluntary consent to terminate parental rights be reduced to writing. The Supreme Court determined that this requirement has no applicability to non-voluntary termination proceedings in In re JM, 2009 MT 332, and declines to reconsider that holding.