In the Matter of J.W.C., L.W.C., K.W.C., and C.W.C., Youths in Need of Care

Summary

The Montana Supreme Court reversed and remanded an order terminating the parental rights of the mother and father of four Indian children. The Court held that, after a parent petitions for transfer under the Indian Child Welfare Act, the state court must transfer the proceeding unless the tribal court affirmatively declines jurisdiction, a parent objects, or good cause is established for denying transfer. The Court also directed the district court to appoint counsel for the children on remand and declined to reach the ineffective-assistance claim.

Holdings

1. When a parent petitions under 25 U.S.C. § 1911(b) to transfer a state proceeding involving an Indian child to tribal jurisdiction, the state court must transfer the proceeding unless a parent objects, the tribal court declines jurisdiction, or the state court determines that good cause exists to deny transfer. An affirmative declination by the tribal court, not merely inaction or a position taken by the tribe, is required before the state court may proceed.
2. The court did not decide whether the district court's prior appointment of one attorney as both guardian ad litem and legal counsel violated the statutory or constitutional requirements because the ICWA reversal made the issue unnecessary to resolve. On remand, however, the district court was directed to appoint counsel for the children because their wishes and best interests would again be at issue.

Questions Presented

1. Whether the district court complied with the Indian Child Welfare Act's requirements for transferring a state foster-care or termination proceeding to tribal court after a parent petitioned for transfer.
2. Whether the district court erred by failing to appoint separate legal counsel for the children.
3. Whether Mother's due process right to effective assistance of counsel was violated by counsel's failure to require the Department to carry its burden of proof at the adjudication hearing.

Disposition

reversed_and_remanded