In re J.J.C.

Chief Justice Mike McGrath delivered the Opinion of the Court.

APPEAL FROM: District Court of the Eighth Judicial District, In and For the County of Cascade, Cause Nos. BDN 16-112 and BDN 17-104 Honorable Elizabeth Best, Presiding Judge COUNSEL OF RECORD: For Appellant: Kelly M. Driscoll, Montana Legal Justice, PLLC, Missoula, Montana For Appellee: Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana Joshua A. Racki, Cascade County Attorney, Valerie M. Winfield, Deputy County Attorney, Great Falls, Montana Filed: /s/_________
Clerk Chief Justice Mike McGrath delivered the Opinion of the Court. ¶1 M.J. (Mother) appeals from an Eighth Judicial District Court order terminating her parental rights to her two children, J.J.C. and R.G., ages nine and three, respectively. We affirm. ¶2 We restate the issue on appeal as follows:

Whether the District Court abused its discretion when it continued with child custody proceedings before conclusively determining the children's Indian status.

¶3 In 2009, due to concerns about Mother's drug use, the Department of Public Health and Human Services, Child and Family Services Division (the Department) became involved with Mother. In 2011, Mother entered into a voluntary services agreement with the Department. Between 2011 and 2016, the Department continued to receive reports alleging Mother was using drugs. In 2016, after receiving a report that Mother was using methamphetamine and dealing drugs out of her apartment, the Department petitioned for Temporary Investigative Authority (TIA) and later adjudication as youths in need of care (YINC) and temporary legal custody (TLC) of Mother's three children: J.J.C., K.J., and R.G. The children's birth Fathers are: J.C., W.H., and T.G., respectively. The Department alleged that a hair follicle test performed on J.J.C. tested positively for methamphetamine. with the children, did not complete a substance treatment program, and tested positively for methamphetamine. ¶8 On February 12, 2018, the Department filed its Petition for Permanent Legal Custody and Termination of Parental Rights concerning Mother's parental rights to J.J.C. and R.G. The petition alleged that Mother failed to complete her treatment plan and sought termination pursuant to § 41-3-609(1)(f), MCA. The petition further noted: "Petitioner believes that the above-named Youths are NOT Indian Children subject [to] [ICWA]." The supporting CPS affidavit affirmed this statement. ¶9 Following a termination hearing on May 24, 2018, the District Court terminated Mother's parental rights to J.J.C. and R.G. The District Court's order stated: "Youths are NOT Indian Children subject to the provisions of [ICWA]."

¶10 This Court reviews a district court's decision to terminate parental rights for an abuse of discretion. In re T.S., 2013 MT 274, ¶ 21, 372 Mont. 79, 310 P.3d 538. A district court abuses its discretion only if it acts arbitrarily, without employment of conscientious judgment, or exceeds the bounds of reason resulting in substantial injustice. In re Declaring A.N.W., 2006 MT 42, ¶ 29, 331 Mont. 208, 130 P.3d 619. We review a district court's findings of fact to determine whether they are clearly erroneous and its conclusions of law to determine whether they are correct. In re T.S., ¶ 21. A finding of fact is clearly erroneous if it is not supported by substantial evidence, if the court misapprehended the effect of the evidence, or if this Court is left with a definite and firm conviction that the district court made a mistake. In re T.W.F., 2009 MT 207, ¶ 17, 351 Mont. 233, 210 P.3d 174.

¶11 Whether the District Court abused its discretion when it continued with child custody proceedings before conclusively determining the children's Indian status. ¶12 A court may terminate parental rights when (1) a child has been adjudicated as a YINC; (2) an appropriate treatment plan approved by the court has not been complied with by the parent or has not been successful; and (3) the conduct or condition of the parent rendering him or her unfit is unlikely to change within a reasonable time. Section 41-3-609(1)(f), MCA. Each factor must be supported by clear and convincing evidence. Section 41-3-609(1), MCA. ¶13 On appeal, Mother argues the CPS affidavit declaring that J.J.C. and R.G. were Indian children gave the District Court reason to know the children may be subject to ICWA. Therefore, Mother asserts, the District Court erred when it categorized J.J.C. and R.G. outside the scope of ICWA without first making a conclusive determination, corroborated by a tribe, that the children were not Indian children pursuant to ICWA. Mother requests that the matter be reversed and remanded back to the District Court to determine the children's Indian status and ICWA applicability. ¶14 ICWA provides heightened federal standards for child custody proceedings involving Indian children. Congress enacted ICWA with the goal "to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families. . . ." 25 U.S.C. § 1902. ICWA applies only if a child meets the definition of an ¶18 Even if the October 2016 affidavits were sufficient to meet the reason to know threshold, Mother provides no facts, other than the statements in the October 2016 affidavits, that J.J.C. and R.G. are Indian children. She has not alleged that the children are enrolled members of a tribe, or that she or the children's fathers are enrolled. Remanding the matter for determination of the children's status would have no significant impact on the result.

¶19 The District Court's findings were not based on misapprehension of the evidence, and review of the record does not establish that a mistake was made. The District Court's conclusion of law, that ICWA is inapplicable, is correct. ¶20 Affirmed.

/S/ MIKE McGRATH We Concur: /S/ JAMES JEREMIAH SHEA
/S/ LAURIE McKINNON
/S/ BETH BAKER
/S/ JIM RICE