Background
The Montana Department of Public Health and Human Services removed two-year-old D.J.L. from his mother’s care in July 2024 after she was found intoxicated and unable to care for her children. Because available information suggested possible affiliation with several tribes, the Department asked about the child’s ancestry, served the incarcerated father with a detailed notice, and sent notices and supporting information to the Chippewa Cree Tribe and the Bureau of Indian Affairs. The Chippewa Cree and Blackfeet Tribes determined that D.J.L. was not enrolled or eligible for enrollment.
Father had been incarcerated for nearly all of D.J.L.’s life and participated minimally in the dependency proceedings. He did not provide ancestry information, respond to the Department’s attempts to contact him, or offer a reunification plan. The District Court terminated his parental rights under Montana law after finding that he had been incarcerated for more than one year and that reunification was not in D.J.L.’s best interests. At that point, D.J.L. had spent 36 of his 38 months in foster care.
The Court’s Holding
The Montana Supreme Court affirmed, holding that the Department conducted a reasonably diligent investigation into whether the Indian Child Welfare Act applied. The Department sought information from the parents, provided the known family and ancestry information to the appropriate tribal authorities, and received conclusive determinations that D.J.L. was not an Indian child. Father’s tattoos reading “Chippewa Cree” and “Rocky Boy” did not establish tribal membership or eligibility and did not undermine the tribe’s determination.
The Court also rejected Father’s ineffective-assistance claim. The record showed that counsel attempted to communicate with Father, while Father’s own nonparticipation prevented counsel from developing evidence or a reunification plan. Even assuming counsel should have raised Father’s possible parole within several months, Father could not establish prejudice: the parole date was speculative, and there was no evidence that he had housing, employment, sobriety, parenting ability, a relationship with D.J.L., or the capacity to care for the child immediately upon release.
Key Takeaways
- An ICWA inquiry was sufficiently diligent where the Department sought ancestry information, notified tribal authorities using the information available, and received conclusive determinations that the child was not enrolled or eligible for enrollment.
- Tattoos referencing a tribe or reservation do not establish tribal membership or eligibility and do not override a tribe’s membership determination.
- Father could not prove ineffective assistance or prejudice where his lack of communication hindered counsel and a speculative parole date would not have changed the termination analysis.
Why It Matters
The decision illustrates that ICWA diligence is assessed from the Department’s concrete investigative and notice efforts, the information reasonably available to it, and the tribes’ responses. A parent’s failure to supply additional ancestry information does not invalidate an otherwise adequate inquiry.
It also underscores that a parent challenging termination based on counsel’s performance must show a reasonable probability of a different result. Possible early release from incarceration, without evidence of an ability to parent or a workable reunification plan, was insufficient here. The memorandum opinion is noncitable and does not serve as precedent under the Montana Supreme Court’s Internal Operating Rules.