--- Am. Tribal Law ----, 2025 WL 80075 (Fort Peck C.A.)
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Fort Peck Court of Appeals.
In the MATTER OF: J.M.J-M. (DOB: X/XX/XXXX) Minor Indian Child.
And Concerning: Marcus Muniz Appellant
v.
Fort Peck Tribes, Appellee
CAUSE NO. AP 873
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FILED JANUARY 10, 2025
Appeal from the Fort Peck Tribal Court, Lonnie Headdress, Presiding Judge.
Before Justices E. Shanley and B.J. Jones, Justice Grijalva excused.
OPINION
BACKGROUND AND FACTS PRESENTED
¶ 1 This matter comes before this Court on Appellant Marcus Muniz’s appeal from an order of the Tribal Court terminating his parental rights issued on March 11, 2024. Appellant submits that the Tribal Court violated his right to due process by not considering evidence that he successfully completed many requirements of his service plan with Child and Family Services (CFS). Appellant further contends that CFS failed to make efforts to identify an extended family kinship placement.
¶ 2 The minor child, J.M.J-M., was initially placed in foster care on July 26, 2022 due to drug and alcohol abuse by the parents, unsuitable living conditions, and domestic violence. The minor child remained in foster care for twenty months preceding the hearing on the Petition for Termination of Parental rights. The mother of the minor child voluntarily terminated her parental rights at the hearing held on February 12, 2024, however the Appellant objected to the termination of his rights during the hearing. During the hearing, both parents, CFS Social Worker, and a Tribal Prosecutor were present and presumably had an opportunity to testify and provide evidence. After hearing evidence, the Court granted the Petition and terminated the parental rights of both parents. Appellant requested a stay of the Tribal Court Order Terminating Parental Rights, which was granted on March 14, 2024.
STATEMENT OF JURISDICTION
¶ 3 According to CCOJ Title II, Chapter 2, § 202,
The jurisdiction of the Court of Appeals shall extend to all appeals from final orders and judgments of the Tribal Court, appeals of administrative decision where a provision of this Code expressly vests such jurisdiction in the Court of Appeals.
STANDARD OF REVIEW
¶ 4 This Court reviews de novo all determinations of the lower court on matters of law, but shall not set aside any factual determinations of the Tribal Court if such determinations are supported by substantial evidence. 2 CCOJ § 202.
¶ 5 This Court reviews the Tribal Court’s termination of parental rights for an abuse of discretion. In re R.J.F., 2019 MT 113, ¶ 20, 395 Mont. 454, 443 P.3d 387 (citing In re A.S., 2016 MT 156, ¶ 11, 384 Mont. 41, 373 P.3d 848). An abuse of discretion occurs when the Tribal Court acted “arbitrarily, without employment of conscientious judgment, or exceeded the bounds of reason resulting in substantial injustice.” In re D.B. & D.B., 2007 MT 246, ¶ 16, 339 Mont. 240, 168 P.3d 691. The Tribal Court has abused its discretion if its findings of fact are clearly erroneous, or its conclusions of law are incorrect. In re D.B., ¶ 16. “A factual finding is clearly erroneous if it is not supported by substantial evidence, if the court misapprehended the effect of evidence, or if review of the record convinces the [Appellate] Court a mistake was made.” In re J.B., 2016 MT 68, ¶ 10, 383 Mont. 48, 368 P.3d 715.
ISSUES
1. Did the Tribal Court violate Appellant’s constitutional rights to due process by failing to consider his achievements in completing his case service plan with Child and Family Services?
2. Did the Tribal Court violate Tribal law by not placing the minor child in an available kindship placement in accordance with Indian Child Welfare Act and Tribal placement preferences?
DISCUSSION
I. Did the Tribal Court violate Appellant’s constitutional rights by failing to consider his achievements in completing his case service plan with Child and Family Services?
¶ 6 The Indian Civil Rights Act (ICRA), 25 U.S.C. § 1301 et seq., does not expressly discuss parental rights, however the fundamental liberty rights and due process rights provided therein ensure that parental rights are not terminated absent due process of the law. This Court has consistently upheld a strong value on maintaining appropriate parent-child relationships.1 Therefore, the Tribal Court must provide sufficient findings of fact to demonstrate that its decision was supported by substantial evidence.
¶ 7 The Termination of Parental Rights are conducted pursuant to the Fort Peck Comprehensive Code of Justice (CCOJ), Title 9, Chapter 8. After a hearing on a Petition to Terminate Parental Rights, the Court must find by clear and convincing evidence that: a) the youth has continuously or repeatedly been abused, neglected, abandoned or dependent for a period of one (1) year or more; and either b) the services available cannot adequately reduce the likelihood of further abuse, neglect, abandonment or dependency or there is no other way to protect the youth from the risk of serious physical injury; or c) the parent whose rights are to be terminated consented and has not withdrawn that consent for over one (1) year. Title 9, Section 808. The Court’s Order for Termination of the Parental Rights of Appellant fails to make any of the above-required findings.
¶ 8 Section 808-A further sets out the criteria for termination of parental rights, and as relevant here, provides that the court may order a termination of parental rights upon a finding established by clear and convincing evidence that “... (6)(A) An appropriate treatment plan that has been approved by the Court has not been complied with by the parents or has not been successful; and (B) the conduct or condition of the parents rendering them unfit is unlikely to change within a reasonable time.” 9 CCOJ Section 808-A(6)(A) and (B). Likewise, the Order terminating Appellant’s parental rights failed to indicate what the requirements of Appellant’s treatment plan were and how he failed to comply with those requirements. While Appellant submits numerous documents in favor of his rehabilitation to this Court, it is not clear whether that information was submitted or considered by the Tribal Court.
¶ 9 Furthermore, the Court in its conclusions of law recognizes that the Court is required to find the social service agency made active efforts at reunification. While the Court does indicate that CFS provided “all active and reasonable efforts,”2 it fails to provide specific findings regarding those active efforts and how the Appellant was not compliant. The CCOJ provides a comprehensive definition of active efforts. Title 9, Section 506-C(b) provides that:
Active efforts mean affirmative, active, thorough, and timely efforts intended primarily to maintain or reunite a child with his or her family. Where an agency is involved in the child-custody proceeding, active efforts mut involve assisting the parent or parents or custodian through the steps of a case plan and with accessing or developing the resources necessary to satisfy the case plan. To the maximum extent possible, active efforts should be provided in a manner consistent with the prevailing social and cultural conditions and way of life of the child’s Tribe if applicable and should be conducted in partnership with the child and the child’s parents, extended family members, custodians, and the Tribe.
¶ 10 Section 506-C(c) provides a thorough list of examples of actions taken by an agency that would constitute active efforts. This Court recognizes that this case has been ongoing for several years with numerous previous hearings. The active efforts of CFS may have been thoroughly identified in prior Court Orders throughout this matter, however the Order for Termination of Parental Rights issued on March 11, 2024 fails to reflect any of the active efforts made by CFS and only contains a short statement in paragraph 10 of its findings regarding the parents’ non-compliance.
¶ 11 For the reasons stated above, we remand this matter to the Tribal Court to make further findings of fact to demonstrate that its decision and application of Tribal law was supported by substantial evidence.
II. Did the Tribal Court violate Tribal law and abuse its discretion by not placing the minor child in an available kindship placement in accordance with Indian Child Welfare Act placement preferences?
¶ 12 The Indian Child Welfare Act (ICWA), 25 U.S.C. §§ 1901 et seq., was passed by Congress to address the disproportionate removal of Native children from Tribal communities and governs the jurisdiction and procedures for the removal of Native American children from their families. ICWA provides that Native American children placed in adoptive placement shall be placed in accordance with the following preferences: (1) a member of the Indian child’s extended family; (2) other members of the Indian child’s tribe; or (3) other Indian families. 25 U.S.C. § 1915(a). ICWA states that a Tribe may determine a different order of preference by resolution as well.
¶ 13 The CCOJ, Section 506 provides that in making a placement, the Tribal Court shall make such disposition in the best interests of the youth and order placement as follows: (1) to the custody of the parents or legal guardian or custodian; (2) to the custody of the non-custodial parent; (3) to the custody of an extended family member on the Reservation; (4) to the care and supervision of an appropriate social service agency which shall be responsible for appropriate placement; (5) to the custody of an extended family member off the Reservation; or (6) to the custody of a Tribal group home. Appellant argues that the placement of the child with a non-Indian family was contrary to the legal preferences when a family kinship placement may have been available. The placement of the child would have been authorized in the initial fact-finding hearing and it appears that the Court placed the minor child with CFS and granted CFS placement authority in compliance with the placement preferences. However, this Court lacks sufficient information from the record of the termination proceeding to determine whether CFS made efforts to locate a relative placement prior to placing the minor child in a non-Indian foster care home.
¶ 14 In Hawk v. Reum, APP 043 (January 25, 1988), the Appellants argued they were denied due process of law by the Tribal Court’s failure to consider preference for the adoption by the extended family. The Court in Hawk v. Reum found that the ICWA preferences had not been violated by the Tribal Court under the circumstances of that case. Here, the Tribal Court was required to follow the placement preferences provided under Tribal Law, however the record is not clear as to whether a preferred family member placement was available.
CONCLUSION
¶ 15 This Court will not overturn the Tribal Court’s judgment based upon factual findings unless a review of the entire record shows that such judgment was not supported by substantial evidence. 2 CCOJ 204; In Re J.B., APP 316 (March 5 2001). This Court has determined that, “it is important to us that all of our litigants, not only are dealt with justly, but to the extent possible, understand the reasons and rationale underlying the laws that impact upon them.” Payne, Symington, MacDonald, Payne, Urbaniak and Whiteman v. Payne, APP 253 (April 1997). When a Tribal Court Order is deficient of sufficient factual findings to meet the requirements of Tribal Law, the Court system has failed to provide the litigants with the reasons and rationale underlying its decision and prevents this Court from reviewing the Court Order to determine whether the Tribal Court had sufficient evidence in the record to support its decision.3 Here, we are unable to determine whether the Tribal Court abused its discretion in applying the factors required by 9 CCOJ 808 or in approving the adoptive placement. We are not suggesting that the Tribal Court erred in its decision, but rather that the Tribal Court failed to provide sufficient findings in its Order terminating Appellant’s parental rights to show its compliance with Tribal law.
¶ 16 For the above reasons, this matter must be remanded to Tribal Court to establish further findings supporting its decision to terminate Appellant’s parental rights.
ORDER
¶ 17 THEREFORE IT IS HEREBY ORDERED that this matter be remanded to the Tribal court for further findings as required by Tribal law and consistent with this order.
SO ORDERED this 4th day of January 2025.
All Citations
--- Am. Tribal Law ----, 2025 WL 80075
Footnotes |
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See In Re R.F. and J.F., App 80 (1990); Bauer v. Bauer, App 59 (1989); In Re CMY, APP 143 (1992); |
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See Order Termination of Parental Rights, Conclusions of Law, 7, p.2. |
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See In Re J.B., APP 316 (March 5, 2001); In the Matter of D.R.B., APP 327 (March 8, 2001); Charboneau v. Falls Down, APP 401 (July 8, 2002). |
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