Stipulations and Harmless Error: The Montana Supreme Court Refines Right-to-Counsel Violations, Tribal Transfer Motions, and ICWA Placement in In re I.R.S. & M.W.A.H.

Introduction

On 1 July 2025 the Supreme Court of Montana issued its opinion in Matter of I.R.S. & M.W.A.H., 2025 MT 139, a Youth-in-Need-of-Care appeal that raised four recurring questions in Indian child-welfare litigation:

What constitutes reversible error when a parent briefly appears without counsel during a critical stage?
When do informal comments about tribal jurisdiction amount to a statutorily cognizable “motion to transfer” under Montana’s Indian Child Welfare Act (MICWA)?
How do the intervention rules of § 41-3-422(9), MCA, interact with the federal Indian Child Welfare Act (ICWA) preference for “extended family” participation?
What qualifies as “good cause” to deviate from ICWA’s placement preferences where an extended-family member with prior abuse allegations seeks guardianship?

The Court affirmed the Yellowstone County District Court’s orders granting permanent guardianship of two Northern Cheyenne siblings to their long-term non-Indian foster parents. Although the children remain outside the ICWA preference hierarchy, the opinion crystallises three doctrinal refinements:

Harmless-Error Framework for Right-to-Counsel Violations—a missing attorney at a single critical hearing no longer commands automatic reversal where the parent stipulated and later fully participated with counsel.
Formal-Motion Requirement for Tribal Transfers—questions or exploratory remarks from a parent are insufficient; § 41-3-1310, MCA, requires an actual motion.
Suitability-Centered “Good Cause” Analysis—clear and convincing evidence that an ICWA-preferred placement is “unsuitable” (here, due to substantiated abuse of another child) supplies good cause to deviate after a diligent search.

Summary of the Judgment

Justice Katherine Bidegaray, writing for a unanimous Court, resolved the following:

Right to Counsel—Mother’s brief unrepresented appearance at the 2021 adjudication was statutory error, but harmless, because she had already stipulated to Youth-in-Need-of-Care (YINC) status, voiced no objection, and subsequently continued with appointed counsel.
Transfer to Tribal Court—Mother’s inquiries (“How would I transfer?”) did not amount to a motion; the District Court correctly told her counsel must file one. No motion was ever filed, so no error.
Intervention—Aunt voluntarily withdrew her motion to intervene after the Court set it for hearing; consequently, no ruling was made and the issue became moot.
ICWA Placement—The Department’s diligent, but fruitless, search for preferred placements and evidence of Aunt’s prior abuse case constituted clear-and-convincing proof of “good cause” to deviate. Guardianship with the foster parents was affirmed.

Analysis

1. Precedents Cited

In re J.J.L., 2010 MT 4 – declared YINC adjudication a “critical stage” requiring counsel.
A.W.S. v. A.W., 2014 MT 322 – recognised due-process right to counsel in adoption terminations; relied on here for harmless-error framing.
In re U.A.C., 2022 MT 230 – interpreted § 41-3-422(9)(b), MCA, restricting intervention to abandonment cases; cited when Aunt withdrew her motion.
In re P.E.W., 2025 MT 114 – recent ICWA precedent on “good cause” and diligent search, applied to the placement question.
Federal sources—25 U.S.C. §§ 1911, 1915; 25 C.F.R. § 23.132 & BIA Guidelines (2016), framing “good cause” and transfer standards.

2. Legal Reasoning

Harmless-Error Right-to-Counsel Doctrine
The Court acknowledged the absolute statutory right to counsel (§ 41-3-425, MCA; § 41-3-1316, MCA) but imported harmless-error logic: because Mother (a) stipulated pre-hearing, (b) voiced no objections, and (c) engaged with counsel at all later stages, “no substantial risk of unfairness” arose. This implicitly narrows prior readings that treated absence of counsel as structural error.
Formality of Tribal Transfer Motions
Under § 41-3-1310, MCA, transfer is triggered only “on the motion” of a parent, custodian, or tribe. The Court characterised Mother’s remarks as information-seeking, not a motion. It emphasised that a transfer involves reciprocal actions (court assessment of good cause, consent of both parents, tribal acceptance) and is not self-executing.
Intervention Under § 41-3-422
Because Aunt withdrew her motion, the Court declined to opine on the unresolved tension between ICWA’s broad “extended family” concept and Montana’s narrower statutory intervention regime. This leaves U.A.C. undisturbed but signals potential open questions.
Good Cause to Deviate From Placement Preferences
Applying 25 C.F.R. § 23.132(c)(5), the Court focused on (a) the Department’s thorough, multi-year search for placements, and (b) documented abuse findings against Aunt. Suitability—not mere availability—remains controlling. The Court noted, however, that agencies should still contemporaneously re-evaluate relatives before permanency decisions.

3. Impact of the Decision

Child-Welfare Litigation—Attorneys must treat stipulations with caution; once a parent stipulates, subsequent harmless-error analysis may foreclose reversal even if counsel missed the hearing.
Practice Before Tribal Transfer—Judges and counsel now have unequivocal instruction: a genuine motion (written or oral) is required; exploratory dialogue will not suffice.
ICWA Placement Disputes—Extended-family members with prior child-protection history face a higher evidentiary bar. Agencies should document suitability determinations carefully; courts may uphold deviations where clear safety concerns exist.
Unsettled Intervention Question—By resolving on mootness, the Court left practitioners without definitive guidance on whether ICWA’s “extended family” overrides § 41-3-422(9)(b)’s abandonment precondition. Future cases are likely.

Complex Concepts Simplified

Youth in Need of Care (YINC) – Montana designation that a child requires state intervention due to abuse, neglect, or abandonment.
ICWA / MICWA – Federal and state statutes establishing special rules to preserve Indian children’s ties to their tribe and culture.
Critical Stage – Any hearing where substantial rights may be affected (e.g., adjudication, disposition, termination).
Good Cause (Placement) – Limited exceptions allowing departure from ICWA’s preferred placement hierarchy, proven by clear & convincing evidence.
Diligent Search – Demonstrated, sustained efforts by the agency to locate and evaluate ICWA-preferred placements.
Harmless Error – A legal error that did not prejudice a party or affect the outcome; appellate courts may affirm despite the mistake.

Conclusion

Matter of I.R.S. & M.W.A.H. adds important contour to Montana child-welfare jurisprudence. It creates a pragmatic harmless-error test for brief right-to-counsel lapses, demands formal motions for tribal transfers, reinforces the suitability prong of ICWA’s “good cause” inquiry, and signals but does not resolve lingering questions on intervention by extended family. Collectively, the decision encourages:

Vigilance by trial courts to guarantee counsel’s presence and to develop a record showing lack of prejudice if counsel is momentarily absent.
Clear procedural practice when parents or tribes contemplate transfer.
Robust, well-documented placement searches that weigh both availability and safety.

The opinion thus balances procedural rigor with outcome-focused equity, safeguarding children’s welfare while respecting tribal sovereignty and parental rights—a nuanced precedent likely to guide Montana courts and practitioners for years to come.