The Indian Child Welfare Act (ICWA) was enacted to protect the best interests of Native American children and promote the stability of Native families and tribes. It requires that courts make efforts to keep families intact and prioritize putting children in out-of-home placements that are within the child’s family or community. Further, the child’s tribal nation and family have a right to participate in decisions regarding foster placements.
The ICWA applies to Native children who are the subjects of state custody proceedings, but they must also be tribal members or be eligible for membership and be the biological child of a tribal member.
Courts are required to make an active effort to place the child with a family or tribal member and to provide appropriate services to prevent breaking up the family. If out-of-home placement is needed, preference must be given, if there is no good cause to the contrary, to members of the Native child’s extended family, members of their tribe, or other Native American families. However, exceptions can be made if there is good cause, which is what occurred in the case of In re P.E.W.
In re P.E.W.
Mother of P.E.W. appealed an order terminating her parental rights, claiming that the Montana Department of Public Health and Human Services failed to make active efforts to reunify her with her Indian child. Additionally, the District Court approved a non-Native American foster placement, which Mother claimed was in violation of the Indian Child Welfare Act.
Mother’s children were removed from her care in October 2021 based on neglect and abuse allegations. In November 2021, the Montana Department of Public Health and Human Services (the Department) filed for Temporary Legal Custody, Emergency Protective Services, and Adjudication as Youth in Need of Care due to Mother’s exposure to domestic violence, methamphetamine dependency, and instability. At the time of the Child Protective Services investigation, P.E.W. was living with her paternal grandmother, where she stayed for a while after the investigation.
Status of the Mother
At the Emergency Protective Services hearing in November 2021, Mother was homeless and only kept in contact with P.E.W. via phone. In January 2022, the District Court determined that the terms of the ICWA applied, as P.E.W.’s father was an enrolled member of the Northern Cheyenne Tribe.
The Department submitted a treatment plan for Mother, which outlined tasks Mother needed to complete for reunification with P.E.W. The tasks included completing a chemical dependency evaluation and following the provider’s recommendations, completing random drug testing to pursue sobriety, attending individual counseling sessions, having regular visitation with P.E.W., and obtaining stable housing and a legal source of income. Mother failed to comply.
Actions by CPS
CPS identified three potential placements for P.E.W.: her paternal grandmother, an aunt, and an uncle. However, the aunt was unwilling to care for P.E.W., and the uncle was nineteen and unable to care for the child. P.E.W. remained with her paternal grandmother.
For several months, the Department noted that Mother tested positive for methamphetamine, cancelled visitations with P.E.W., entered and left numerous homeless shelters and treatment facilities, and otherwise failed to meet the requirements of the treatment plan. In July 2022, the Department requested a permanency hearing. An ICWA-qualified expert witness testified in October 2022 that custody by P.E.W.’s parents was likely to result in serious emotional or physical damage to the child. Although Mother was making progress on sobriety and in compliance with many terms of the treatment plan, she had failed to obtain stable housing.
Results of Status Hearing
A status hearing was set for December 2022, at which time Mother had relapsed. Further, the Department explained that P.E.W.’s paternal grandmother could no longer care for the child long term. P.E.W. was transferred to a non-Native American foster family’s home because of reported physical abuse by her grandmother’s boyfriend and because her father was living at the residence.
Numerous extension hearings were held, and the Department remained involved in working with Mother to help her comply with the terms of the treatment plan. However, Mother failed to make strides in her recovery and continued to be in violation of the plan. Additionally, P.E.W.’s mental health declined, and she required significant behavioral and emotional interventions.
Termination of Parental Rights
In February 2024, the Department filed for termination of parental rights and permanent legal custody, requesting the District Court find good cause to deviate from ICWA placement preferences.
Mother’s parental rights were terminated in November 2024, with the District Court noting P.E.W. had been in foster care for approximately 32.5 months, or 42% of her life. Non-Native foster placement was approved.
The Supreme Court of Montana reviewed the case and determined that the District Court did not abuse its discretion in terminating Mother’s parental rights. It also ruled that good cause existed to deviate from the ICWA because of P.E.W.’s needs and because there was a lack of suitable ICWA-compliant placements.