No. 93-049

IN THE SUPREME COURT OF THE STATE

1993

OF MONTANA

IN THE MATTER OF W.L., C.L., and B.L.,

APPEAL FROM: District Court of the Thirteenth Judicial District,

In and for the County of Big Horn,

The Honorable Robert W. Holmstrom, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

James L. Vogel, Attorney at Law, Hardin,

Montana (for the Mother)

For Respondent:

Hon. Joseph P. Mazurek, Attorney General,

Deanne L. Sandholm, Assistant Attorney General,

Helena, Montana; James Torske, Special Big Horn

Deputy County Attorney, Hardin, Montana;

Natasha Morton, Attorney at Law, Hardin, Montana

(for the Father); Joe A. Rodriguez, Attorney at

Law, Lame Deer, Montana (Guardian Ad Litem)

Filed:

Submitted on Briefs: April 30, 1993

Decided: September 16, 1993
Justice William E. Hunt, Sr., delivered the opinion of the Court.

Appellant, the natural mother of W.L., C.L., and B.L., appeals

from an order of the Thirteenth Judicial District Court, Big Horn

County, denying her motion to transfer jurisdiction of dependency

and neglect proceedings to the Northern Cheyenne Tribal Court

pursuant to the Indian Child Welfare Act, 25 U.S.C. § 1911 (1978).

We affirm.

We determine the following issue to be dispositive:

Did the District Court err in denying appellant's motion to

transfer jurisdiction of dependency and neglect proceedings to the

Northern Cheyenne Tribal Court, pursuant to the Indian Child

Welfare Act, 25 U.S.C. $4 1911 (1978)?

This case came before the District Court on January 27, 1989,

when the Department of Family Services (DFS) filed a petition for

temporary investigative authority and protective services. The

subjects of the petition are three children of the natural mother,

G.Y., and the natural father, W.L. The petition alleged that G.Y.

neglected and physically abused the children. The petition also

alleged that she did not stop individuals from sexually abusing the

children.

The parents and the three children are enrolled members of the

Northern Cheyenne Tribe. From the time the couple married until

the time of their divorce in September 1987, the family lived with

the paternal grandparents off the Northern Cheyenne Reservation

(the Reservation) in Lodge Grass, which is within the boundaries of

the Crow Indian Reservation. G.Y. testified that she lived with

2
the children in Lame Deer, which is on the Reservation, from

September 1987 to April 1988. Afterward she moved to Hardin which

is off the Reservation. The children were often cared for by the

paternal grandparents in Lodge Grass. The children never had any

close contact with the Tribe or G.Y.'s family. At the time of the

filing of the petition, the youths resided in Hardin with their

mother.

On January 30, 1989, the District Court issued an order for

protective services and an order to show cause. On January 31,

1989, the District Court issued a notice to the Tribe, pursuant to

the Indian Child Welfare Act of 1978, 25 U.S.C. § 1912. On

February 13, 1989, the court granted the petition for temporary

investigative authority and protective services and directed that

provisions of the order issued January 30, 1989, should remain in

full force and effect until May 1, 1989. On April 19, 1989, a

motion to extend temporary investigative authority was filed. On

April 24, 1989, the motion was granted and the court extended the

order for protective services for 90 days.

On July 28, 1989, another petition for investigative authority

and protective senrices was filed. On July 31, 1989, an order for

protective services and order to show cause was issued. On

September 5, 1989, the court issued an order for protective

services modifying and extending the July 31, 1989, order for

90 days.

On November 13, 1989, a petition for temporary custody was

filed. On March 25, 1991, after several stipulated continuances,

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a hearing on the petition was held. The court ordered the

temporary custody hearing continued until April 22, 1991, and

ordered that the existing order was to remain in effect. On

April 22, 1991, the hearing resumed during which the parties,

through counsel, stipulated to an extension of the temporary

custody for one year from January 30, 1991.

On September 11, 1991, G.Y. moved to transfer the case to the

Northern Cheyenne Tribal Court. The matter was continued for the

convenience of counsel and the court. On May 20, 1992, a second

motion to transfer was filed. The motion was noticed for hearing

on May 26, 1992. The motion was considered and continued until

June 22, 1992, in order to obtain transcripts of the proceedings

held on March 25, 1991, and April 22, 1991. On June 22, 1992, the

court issued an order continuing the January 30, 1990, temporary

custody order. On June 22, 1992, the Tribe's motion to intervene

was granted.

A hearing on the question of whether the District Court should

transfer jurisdiction of the case to the Tribe was held on

September 21, 1992. On October 19, 1992, the District Court issued

its order denying the motion to transfer jurisdiction. G.Y.

appeals the order.

G.Y. contends that the District Court lost jurisdiction on

January 22, 1992, because the State of Montana failed to continue

its intervention and custody of the children when it allowed the

court's oral order of April 22, 1992, granting temporary custody to

lapse while G.Y. was domiciled on the Reservation.

4
Section 1911 of the Indian Child Welfare Act establishes a

dual jurisdictional scheme between the State and the Indian Tribe.

Section 1911(a) provides that when an Indian child is domiciled

within the Reservation, the Indian Tribe:

[S]hall have jurisdiction exclusive as to any State over

any child custody proceeding involving an Indian child

who resides or is domiciled within the reservation of

such tribe, except where such jurisdiction is otherwise

vested in the State by existing Federal law. Where an

Indian child is a ward of a tribal court, the Indian

tribe shall retain exclusive jurisdiction, notwithstanding the residence or domicile of the child.

In State court proceedings, where an Indian child is not

domiciled within the reservation of the child's Tribe, 5 1911(b)

provides that:

In any State court proceeding for the foster care

placement of,

Indian

or termination of parental rights to, an

child not domiciled or residing within the

reservation of the Indian child's tribe, the court, in

the absence of good cause to the contrary, shall transfer

such proceeding to the jurisdiction of the tribe, absent

objection by either parent, upon the petition of either

parent or the Indian custodian or the Indian child's

tribe: Provided, That such transfer shall be subject to

declination by the tribal court of such tribe.

The guiding light in determining domicile for the purpose of

jurisdiction is Mississippi Band of Choctaw Indians v. Holyfield

(1989), 490 U.S. 30, 104 L. Ed. 2d 29, 109 S. Ct. 1597. In that

case, the parents were enrolled members of the Tribe, residents on

the reservation, and both were domiciliaries of the reservation.

Holvfield, 490 U.S. at 37. The Court enunciated the rule that

since most minors are incapable of forming the requisite intent to

establish domicile, their domicile is determined by their parents.

Holvfield, 490 U.S. at 48.

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In this case, G.Y. was domiciled off the Reservation in Hardin

at the commencement of the proceedings. The natural father had

objected to the transfer of jurisdiction to the Tribe, and the

Tribe declined to take jurisdiction of the matter. The District

Court has properly exercised jurisdiction over this case.

G.Y. maintains that the State did not strictly follow

procedures mandated by 5 41-3-401, MCA, by not requesting another

extension of temporary custody, and as a result, the District Court

lost jurisdiction over the case. In Matter of Guardianship of

Doney (1977), 174 Mont. 282, 570 P.2d 575, we stated that the

procedures established by 3 41-3-401, MCA, must be strictly

followed by the State before it may deprive natural parents the

custody of their children.

In this instance, the District Court did not lose jurisdiction

of the case. Under common principles of jurisprudence, after a

court has obtained jurisdiction, it retains that jurisdiction until

the final disposition of the case. 21 C.J.S. courts § 73 (1990).

In the absence of statutory language, an interlocutory order may be

amended, modified, or vacated, provided that no final judgment or

order has been rendered. 60 C.J.S hkZions and Orders 5 62(3) (c)

(1969). As we have stated:

[Wlhere the jurisdiction of a court is exclusive and has

once lawfully attached it cannot be ousted by subsequent

events or facts arising in the cause, but the court may

proceed to final judgment unless some constitution or

statute operates to divest that particular court of

jurisdiction.

Curry v. McCaffery (1913), 47 Mont. 191, 196, 131 P. 673, 675.

6
The court's temporary custody order of April 22, 1991, was not

the final judgment of the case. It was no more than an

interlocutory order which could be amended, modified, or vacated

until a final resolution of the case. The child abuse and neglect

statutes do not make provisions for the expiration of custody in

the state or the loss of jurisdiction by the court, other than by

a finding by the court that the children are not in danger of being

abused or neglected and vacating of any order made pursuant to

3 41-3-403, MCA. Section 41-3-404(4)(a), MCA. We hold that the

District Court did not lose jurisdiction of the case when the

temporary custody order expired.

Affirmed.

We concur:
September 16, 1993

CERTIFICATE OF SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the following

named:

James L. Vogel

Attorney at Law

P. 0. Box 525

Hardin, MT 59034

Natasha J. Morton

Attorney at Law

P. 0. Box 429

Hardin, MT 59034

Joe A. Rodriguez

Attorney at Law

P. 0. Box 820

Lame Deer, MT 59043

Hon. Joseph P. Mazorek, Attorney General

Deanne L. Sandhohn, Assistant

215 N. Sanders, Justice Building

Helena, MT 59620

James E. Torske

Special Deputy County Attorney

P. 0. Drawer F

Hardin, MT 59034

ED SMITH

CLERK OF THEBUPREME COURT