Summary
The Montana Supreme Court affirmed an order awarding guardianship of an Indian child to foster parents. The court addressed notice, active-efforts, and qualified-expert-testimony requirements under the Indian Child Welfare Act and concluded that the alleged deficiencies did not warrant reversal.
Topics
Practice areas
Questions Presented
- Whether the State violated ICWA by failing to provide proper notice to S.F. and the Curyung Tribe.
- Whether the State violated ICWA's active-efforts requirement by failing to provide services and promote the relationship between S.F. and J.S.
- Whether the State violated ICWA by failing to present proper qualified-expert testimony concerning guardianship and J.S.'s continued placement outside S.F.'s care.
Holdings
- The State's initial failures to provide notice to S.F. and the Curyung Tribe did not require reversal because the deficiencies were subsequently cured before the guardianship hearing, and both S.F. and the Tribe received notice and participated extensively in the later proceedings.
- The alleged failure to make active efforts did not provide a basis to overturn the guardianship because § 1912(d) does not apply where the Indian parent never had legal or physical custody and no preexisting parent-child relationship existed that could be broken up.
- ICWA's qualified-expert-testimony requirement in § 1912(e) did not apply because S.F. never had custody of J.S.; therefore, there was no custody to continue, and the guardianship order was not invalidated.
Key quotations
“Any initial shortcomings on the part of the State were subsequently cured, satisfying the notice requirements of ICWA at the time of the guardianship hearing.” (374 Mont. at 337)
“Although Baby Girl dealt with termination of parental rights instead of a guardianship, § 1912(d), by its terms, applies equally in both instances.” (374 Mont. at 340)
“Because there is no custody to “continue,” we conclude that § 1912(e) does not apply and does not serve to invalidate the District Court’s award of guardianship.” (374 Mont. at 342)
Factual background
J.S. was removed from his mother's care as a young child and spent approximately six years living with foster parents who had adopted two of his siblings. S.F., an enrolled member of the Curyung Tribe, was identified as J.S.'s biological father several years after the removal, but he never had legal or physical custody and had only limited contact with J.S. The Department provided treatment plans and attempted to facilitate contact, but S.F. failed to complete significant portions of the plans and expressed a desire at times to relinquish his parental rights. J.S. wished to remain with the foster family, and a Curyung Tribe representative supported the guardianship.
Procedural history
J.S. was removed from his mother's care in 2001 and adjudicated a youth in need of care in 2002. After paternity was established, the State pursued and later dismissed or unsuccessfully pursued several termination proceedings and treatment plans. The District Court denied S.F.'s request to transfer jurisdiction to the Curyung Tribe, held a guardianship hearing, and entered a decree awarding guardianship to the foster family. The Montana Supreme Court affirmed.