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July 01, 2011

Montana Child Welfare Agency Made Active Efforts to Prevent Breakup of Indian Family

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

In re I.B., 2011 WL 1491902 (Mont.)

Evidence showed beyond a reasonable doubt that parents’ rights to Indian child should be terminated and that child welfare agency made active efforts to reunify the family. Numerous experts testified regarding parents’ failure to follow their treatment plans and their continued threat to child’s emotional and physical well-being, and agency made extensive efforts to promote reunification.

A five-month-old baby was removed from his parents’ care in June 2008 based on his parents’ failure to provide proper medical care. Two months earlier the parents had left the baby in the sun, resulting in severe sunburn that required hospitalization, oxygen support, heart monitoring, intravenous therapy, and blood draws. The baby was released to the parents’ care under close monitoring.

The child welfare agency hired a home health organization to provide the parents family support services and teach them how to properly care for and feed the baby. Despite the support, the parents had trouble feeding the child and following a strict feeding schedule. They would leave the baby unattended with a bottle propped in his mouth, causing a risk of choking or aspirating. They also dismissed the need to keep detailed feeding records.

The agency determined the parents were unable to meet the baby’s specific needs or provide for his health and safety. The agency then removed the baby from the parents’ home and took him to the hospital, later placing him in foster care.

At the adjudication hearing, the trial court found the parents failed to follow simple feeding instructions and granted the agency temporary legal custody and ordered treatment plans for the parents.

Upon learning of their Indian heritage, the parents enrolled the baby in the Cherokee Nation in early 2009. A hearing was held at which an Indian Child Welfare Act (ICWA) expert testified. The expert testified that returning the child to his parents’ care would result in serious emotional or physical harm and recommended the child stay in foster care and the parents be given time to complete parenting classes.

In August 2009, the Cherokee Nation informed the trial court that it would monitor the proceedings and supported the child’s continued foster care placement and rehabilitation services for the parents.

Two months later, the agency petitioned to terminate the parents’ rights. Several witnesses testified on behalf of the agency in support of termination of the parents’ rights, including mental health and medical professionals, service providers, an agency social worker, the foster mother, an ICWA expert and others. The court concluded the parents had failed to comply with their treatment plans and would be unable to properly care for the children in a reasonable time. It further found the evidence supported termination beyond a reasonable doubt. The parents appealed.

The Supreme Court of Montana affirmed. ICWA requires that the child welfare agency prove the parents’ rights should be terminated
beyond a reasonable doubt. It also requires the court to find the agency made active efforts for reunification and that reunification poses a risk of serious emotional or physical harm to the child.

The supreme court found sufficient evidence supported the trial court’s conclusion that evidence proved beyond a reasonable doubt that continued custody by the parents would be likely to result in serious emotional or physical harm to the child. The agency social worker testified that the parents were unable to meet the child’s emotional needs and could not interact or communicate appropriately with the child.

Visitation supervisors said the parents lacked the skills to visit with their children unsupervised and failed to create a safe home for their children. Service and mental health providers testified regarding the lack of a healthy parent-child attachment and the child’s passive nature and resistance in his parents’ presence. A qualified ICWA expert also testified that continued custody would result in serious emotional or physical damage to the child.

The supreme court found the trial court correctly concluded the agency had made active efforts to prevent the breakup of an Indian family. The parents claimed the agency’s efforts and services harmed the bond between them and their child and prevented reunification. They claimed the child’s stress resulted from irregular visits not their lack of attachment, and that the agency did not provide counseling, education services, or therapy.

The court found the agency had clearly explained what the parents needed to do for the child to be returned and provided extensive reunification services. Nothing in the record supported the parents’ claim that the services actually caused the family’s breakup.

While the ICWA requires “heightened efforts” by the agency, nothing in ICWA guarantees those efforts will succeed. The court noted that success depends on the parents’ willingness and ability to develop the skills to give their child a safe home. In this case, the evidence clearly showed the agency made active efforts to prevent the breakup of the family but that the parents were unable to benefit from those services.