Here is the opinion in In the Matter of J.W.C.: J.W.C. Opinion
Here is the Court’s synopsis:
The Montana Supreme Court reversed and remanded the District Court’s order terminating parental rights to four Indian children. Mother, Father, and the children were all members of the Fort Peck Assiniboine and Sioux Tribes (Tribes). The Department of Public Health and Human Services petitioned the District Court for emergency protective services, adjudication as youths in need of care, and temporary legal custody for the children upon finding the parents unable to provide food or shelter. As allowed under the Indian Child Welfare Act (ICWA), the Tribes filed a Notice of Appearance and Intervention and Mother moved to transfer the case to the Fort Peck Tribal Court. The Tribes never affirmatively accepted or declined jurisdiction. Acknowledging this, the District Court maintained jurisdiction, terminated the parental rights of Mother and Father, and denied Mother’s request to continue the termination and appoint counsel for
the children.On appeal, Mother argued the District Court should have transferred the case to tribal court, as required by ICWA, and should have appointed counsel for the children, as required by Montana law. In child custody cases when Indian children reside off the reservation, a district court generally must transfer jurisdiction to the tribal court unless the tribal court affirmatively declines to accept jurisdiction, as specified by ICWA and its interpretive guidelines. The Tribal Court never declined jurisdiction and the District Court never held the requisite jurisdictional transfer hearing. On remand, the District Court was directed to properly determine jurisdiction, hold a transfer hearing, and appoint legal counsel for the children.
Here are the briefs:
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