No. 83-376 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1984 

IN THE MATTER OF DECLARING 

M.E.M., JR., a youth in need of care. 

APPEAL FROM: District Court of the Twelfth Judicial District, 

In and for the County of Hill, 

The Honorable Chan Ettien, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Mark A. Suagee, Havre, Montana 

For Respondent: 

Glen Driveness, Deputy County Attorney, Ijavre, 

Montana 

Brian Lilletvedt, Havre, Montana 

Theodore Thompson, Havre, Montana 

- 

Submitted on Briefs: December 15, 1983 

Decided: April 9, 1984 

Filed: %%! D- $384 

Clerk 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

The mother of M.E.M. appeals from the order of the 

Twelfth Judicial District Court, Hill County, terminating 

parental rights of both parents and awarding permanent legal 

custody to the Department of Social and Rehabilitation 

Services. We affirm. 

The dispositive issue is whether alleged violations of 

the Indian Child Welfare Act in temporary legal custody 

proceedings invalidate later permanent legal custody 

proceedings which comply with the Indian Child Welfare Act. 

The child subject to this action was born March 21, 

1981. Because the child and both parents are enrolled 

members of the Gros Ventre Tribe of the Fort Belknap Indian 

Reservation, the child is an Indian child for purposes of the 

Indian Child Welfare Act, 25 U.S.C. 81903 (4) . The child was 

born in Havre, Montana and has resided there since his birth. 

Both parents also resided in Havre, Montana at all times 

relevant to the proceedings. 

The Hill County Welfare Department initially became 

involved in this case in November of 1980 when the mother was 

pregnant with the child. Marsha Brunett, a social worker 

from the Hill County Welfare Department became involved 

because the parents had previously had a child permanently 

removed and because the hospital and the W.I.C. (Women, 

Infants and Children) program had reported that the mother 

had been drunk when she arrived for appointments. The 

Department continued its involvement because the mother 

continued to drink heavily during her pregnancy. The child 

weighed only four pounds when born and remained in the 

hospital for two weeks due to his low birth weight. 

After unsuccessfully attempting to arrange for the baby 

to go home with the parents, a Petition for Temporary 
Investigative Authority was filed on April 6, 1981, and an - ex 

parte order was issued on April 7, 1981. Because the parents 

continued to drink heavily and had neither a permanent 

residence nor adequate food for the baby, a Petition for 

Temporary Legal Custody was filed on April 9, 1981. The 

child was released from the hospital and was placed in foster 

care. 

On April 10, 1981, the parents were served with notice 

of a hearing scheduled for April 20, 1981 and a copy of the 

Petition for Temporary Legal Custody. Marsha Brunett orally 

notified them of the hearing date on at least two other 

occasions. 

On April 20, 1981, the hearing regarding temporary 

custody was held, but neither parent appeared. On April 22, 

1981, the court entered its order finding the child a youth 

in need of care and awarding temporary legal custody to the 

Department of Social and F-ehabilitation Services (the 

Department) . 

During the next two years the Department attempted to 

work with the parents to prepare them to regain custody of 

their child. A treatment plan was prepared and signed by 

both parents on March 10, 1982. A second plan was developed 

and signed by the mother on September 21, 1982. After the 

parents agreed to the plans, they were approved by the 

District Court. These treatment plans primarily required 

that the parents obtain alcoholism treatment or counseling 

and that they establish a permanent residence. However, both 

parents continued to drink heavily over the next two years 

and neither parent established a permanent residence. On 

December 8, 1982, the court continued the Department's 

temporary legal custody based upon written stipulation of 

both parents. 
M.E.M. has been in foster care since his birth. He is 

developmentally delayed in speech and language, gross motor 

skills and cognitive skills. He requires a special training 

program designed to address these developmental delays. 

Both parents were allowed liberal visitation with P4.E.M. 

during his foster care placement, although the mother 

allegedly visited the child only four times in 2-1/2 years 

and the father less. 

On March 14, 1983, a petition requesting termination of 

parental rights and granting of permanent legal custody of 

M.E.M. to the Department was filed with the court. The 

parents were served personally and were provided written 

notice by means of certified mail, return receipt requested. 

Counsel was appointed for each parent. 

On March 23, 1983, the mother filed a motion to dismiss 

on the basis of alleged violations of the Indian Child 

Welfare Act in prior proceedings. The motion was denied. 

The mother then filed a motion to transfer the case to tribal 

court, hut the tribal court declined jurisdiction. 

On May 4, 1983, the termination hearing was held. 

Neither parent attended, although their attorneys stated the 

parents had been notified of the hearing. After testimony 

from an experienced social worker, a certified dependency 

counselor, a physician and a family trainer, the court 

entered its Findings of Fact and Conclusions of Law on May 

27, 1983, terminating parental rights and awarding permanent 

legal custody to the Department. The mother appeals. 

Appellant alleges five specific violations of the Indian 

Child Welfare Act, 25 U.S.C. S1901, et seq., in the temporary 

legal custody proceedings and argues that these violations 

require invalidation of both the temporary and permanent 

custody proceedings. She does not contend that there were 
violations of the Act in the permanent custody proceedings, 

but argues that the District Court improperly relied upon 

invalid prior proceedings in terminating her parental rights. 

We disagree. 

For purposes of resolving this issue, we will assume 

arguendo that the alleged violations occurred, although we do 

not so hold. Because we conclude that the alleged violations 

of the Act in the temporary custody proceedings would not 

require inval-idation of the permanent custody proceedings, we 

need not decide whether the Act was violated. 

The Indian Child Welfare Act provides in part: 

"Any Indian child who is the subject of any action 

for foster care placement or termination of 

parental rights under State law, any parent or 

Indian custodian from whose custody such child was 

removed, and the Indian child's tribe may petition 

any court of competent jurisdiction to invalidate 

such action upon a showing that such action 

violated any provision of sections 1911, 1912, and 

1913 of this title." 25 U.S.C. S1914. 

This section provides for invalidation of an action which 

violates the provisions of the Act. Assuming that the 

violations alleged by appellant occurred, she would be 

entitled to invalidation of the temporary custody 

proceedings. However, this section does not provide for 

invalidation of a valid separate action because of an invalid 

prior one. On the facts of this case, we decline to extend 

the language of this section to provide such a remedy. 

The temporary and permanent custody proceedings in this 

case were separate actions resulting in court orders granting 

different forms of relief. They were initiated by separate 

petitions and were required to follow separate statutory 

guidelines. See sections 41-3-401, et seq., and 41-3-601, et 

seq., MCA. 

In terminating appellant's parental rights, the District 

Court did not rely upon the prior temporary custody 
proceedings. The court noted the temporary custody 

proceedings in its findings of fact, but emphasized separate 

testimony from the permanent custody hearing regarding the 

condition of the child and the parents' ability to care for 

the child. The permanent custody hearing involved entirely 

different witnesses and was conducted by a different judge 

than the temporary custody proceeding. The court heard 

testimony from various witnesses, including experts, and 

concluded that M.E.M. was a youth in need of care. This 

conclusion was based upon the parents' alcoholism, their 

refusal to respond to or seek alcoholism treatment, their 

inability to care and provide for the child, the likelihood 

of serious emotional or physical damage to the child, and 

other similar matters. 

Further, the temporary custody proceedings were not a 

legal prerequisite to termination of parental rights. The 

State may file a petition for permanent legal custody 

regardless of whether a temporary custody order has been 

granted. See section 41-3-401(10) and 41-3-601, et seq., 

MCA. The record is devoid of any suggestion that the court 

relied upon the temporary custody order in termination of 

appellant's parental rights. Rather, the District Court 

followed the separate requirements of section 41-3-609(1) (c), 

MCA. The record contains overwhelming evidence apart from 

the temporary custody order to support the findings required 

by this section and made by the court. Section 

41-3-609 (1) (c) , MCA does not require reliance upon a prior 

temporary custody order nor did the court in fact rely upon 

one here. 

Appellant further contends that the court improperly 

relied upon the parents' failure to comply with 

court-approved treatment plans. She argues that these 
treatment plans were part of the temporary custody 

proceedings and were therefore invalid because of the alleged 

violations of the Act. We disagree. 

The treatment plans were prepared, executed and approved 

by the court a year or more after the temporary custody 

orders were granted and were approved by the court without 

specific relationship to any proceeding. The treatment plans 

were neither required nor suggested by the temporary custody 

order. Court-approved treatment plans are not a prerequisite 

to a temporary custody order, but they were a prerequisite to 

termination of parental rights in this case. See sections 

41-3-401, et seq., and 41-3-609 (1) (c) (i) , MCA. The treatment 

plans were not a part of the temporary custody proceedings 

and the District Court did not err in relying upon the 

parents' failure to comply with the treatment plans as an 

additional basis for terminating parental rights. 

In affirming the order of the District Court, we 

emphasize that the permanent custody proceedings fully 

complied with the provisions of the Act. Individual counsel 

was appointed to represent the child and each parent, and 

notice was given to all concerned parties. Jurisdiction was 

offered to the tribal authorities but was declined. Even 

though the parents were given repeated notice of the 

proceedings by various individuals, including their 

attorneys, they failed to appear or express any interest in 

regaining custody of their child. Despite the diligent 

efforts of local welfare personnel, the parents refused to 

seek or respond to treatment for alcoholism, which so far as 

the record shows was the principal obstacle to their ability 

and desire to care for their child. 

Throughout her brief, appellant has emphasized the 

policies of the Indian Child Welfare Act to promote the 
stability and security of Indian tribes and families and to 

protect the best interests of the Indian child. See 25 

U.S.C. 51902. We recognize these and other policies of the 

Act and encourage the district courts to diligently follow 

the requirements of the Act. These objectives have been 

pursued in this case as far as permitted by the 

circumstances, but the conduct of the parents does not allow 

a continued family relationship. The District Court has 

therefore ordered that the child be placed with his extended 

Indian family, other members of the child's tribe, or other 

Indian families, as required by the Act. 25 U.S.C. §1915(a). 

The child's tribe has expressed a desire to arrange such a 

placement. The Act's policy of promoting tribal stability 

will therefore be carried out as far as the tragic facts of 

this case permit. To further prolong this proceeding would 

not be in the child's best interest. 

We hold that, under the facts of this case, alleged 

violations of the Indian Child Welfare Act in temporary legal 

custody proceedings do not invalidate the later permanent 

custody proceedings. In light of this conclusion, 

appellant's other issues are without merit. The District 

Court did not err in terminating parental rights. 

The order of the court is affirmed.