author: STEGNER, Justice.

text:
    STATE of Idaho Plaintiff-Respondent, v. Jeffrey Allen JESKE, Defendant-Appellant.
    Docket No. 45989
    Supreme Court of Idaho, Boise, September 2018 Term.
    Filed: March 8, 2019
    State Appellate Public Defender's office, Boise, for appellant. Brian R. Dickson argued.
    Idaho Attorney General's office, Boise, for respondent. Theodore S. Tollefson argued.
   STEGNER, Justice.

Jeffrey Allen Jeske (Jeske) appeals from his conviction of felony driving under the influence (DUI). Jeske contends the district court erred when it made two evidentiary rulings: the first when it allowed the deputy prosecutor to comment on his refusal to consent to a blood draw to test it for alcohol; the second regarding testimony of uncharged misconduct. Jeske also alleges the district court erred when it allowed the State to amend the charges against him the morning of the trial and in refusing to give a requested jury instruction. Finally, Jeske asserts that the cumulative error doctrine requires his conviction to be vacated. For the reasons set forth in this opinion, we reject Jeske's arguments and affirm the district court's judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

Shortly before midnight on January 12, 2016, a Coeur d'Alene police officer, Caleb Hutchison (Officer Hutchison), noticed a Dodge Dakota pickup traveling on Sherman Avenue with only one working headlight. Officer Hutchison effected a traffic stop. The pickup was being operated by Jeske. When Officer Hutchison got to the truck, Jeske's response was delayed. When asked for his driver's license, Jeske told Officer Hutchison he did not have one. When asked why not, he rubbed his thumb and forefinger together. Jeske fumbled with other paperwork, dropping the truck's registration at one point.

According to Officer Hutchison: Jeske's speech was marked by slurring and mumbling; Jeske's eyes were glassy and he had what the officer described as a "thousand yard" stare; and, he had a lethargic expression and was "excessively relaxed."

Because Officer Hutchison suspected Jeske of driving under the influence, he asked Jeske to step out of the truck and perform field sobriety tests. Jeske ultimately complied with the request to get out of the truck; however, he refused to comply with the field sobriety tests. During his interaction with Jeske, Officer Hutchison purportedly noticed the slight odor of alcohol and that Jeske was unsteady on his feet. After continued refusal to perform the tests, Jeske turned away from the officer, placed his hands behind his back, and asked the officer to place him under arrest. At that time, the officer arrested Jeske and drove him to the Kootenai County Jail.

At the jail, Officer Hutchison asked Jeske to perform a breath alcohol test. Jeske refused. After refusing to take the breath test, Officer Hutchison asked Jeske if he would submit to a blood test. Jeske remained silent in response to the officer's request. Upon receiving no response, the officer obtained a search warrant from a magistrate judge. The warrant authorized a blood draw, which was effected by a nurse at Kootenai Medical Center.

On January 13, 2016, the State filed a criminal complaint, charging Jeske with felony driving under the influence in violation of Idaho Code section 18-8004. The Criminal Complaint alleged that Jeske had been impaired while driving under the influence of alcohol. No mention was made of the impending results of the blood draw Jeske had undergone earlier that same day. On February 5, 2016, Jeske waived his preliminary hearing. On February 8, 2016, the State filed the original Information, charging Jeske with felony DUI under an impairment theory, making no mention of the blood draw performed on January 13. The blood draw results were received by the State on February 24, 2016. The test showed Jeske's blood alcohol content to be 0.182, more than twice the per se limit of .08. The State shared the results of the test with Jeske's counsel the same day.

On June 6, 2016, the morning of Jeske's jury trial, the State moved to amend the Criminal Information to include the per se theory, to allege Jeske had been operating a motor vehicle with a blood alcohol content above the statutorily proscribed level of 0.08. The district court granted the motion to amend and the case proceeded to trial that same day.

The jury found Jeske guilty of driving under the influence. In a proceeding following the jury's verdict, the judge concluded Jeske had been found guilty of felony DUI twice within the preceding fifteen years, which rendered the DUI he committed on January 12, 2016, a felony. In addition, the district court found Jeske's sentence was also subject to statutory enhancement.

Jeske filed a timely appeal. The Court of Appeals affirmed the district court's judgment and Jeske's conviction. Jeske petitioned this Court for review which we granted.

II. ISSUES PRESENTED ON APPEAL

A. Whether the district court violated Jeske's Fourth Amendment rights when it allowed evidence and argument regarding Jeske's refusal to consent to a blood draw.
B. Whether the district court abused its discretion by granting the State's motion to amend the Information on the morning of trial.
C. Whether the district court erred by refusing to give Jeske's requested jury instruction regarding impairment.
D. Whether the district court abused its discretion when it admitted evidence of other uncharged misconduct.
E. Whether the cumulative error doctrine requires reversal of Jeske's conviction.

III. STANDARD OF REVIEW

"When reviewing a case on petition for review from the Court of Appeals this Court gives due consideration to the decision reached by the Court of Appeals, but directly reviews the decision of the trial court." State v. Schmierer , 159 Idaho 768, 770, 367 P.3d 163, 165 (2016). "Constitutional issues are pure questions of law over which this Court exercises free review." Estrada v. State , 143 Idaho 558, 561, 149 P.3d 833, 836 (2006). The decision to permit an amendment to a charging document is a matter within the discretion of the trial court. State v. Severson , 147 Idaho 694, 708, 215 P.3d 414, 428 (2009).

When reviewing the trial court's evidentiary rulings, this Court applies an abuse of discretion standard. State v. Anderson , 162 Idaho 610, 614, 402 P.3d 1063, 1067 (2017). When reviewing a lower court's decision for an abuse of discretion, this Court must analyze "whether the trial court: (1) correctly perceived the issue as one of discretion; (2) acted within the outer boundaries of its discretion; (3) acted consistently with the legal standards applicable to the specific choices available to it; and (4) reached its decision by the exercise of reason." Lunneborg v. My Fun Life , 163 Idaho 856, 863, 421 P.3d 187, 194 (2018) (citing Hull v. Giesler , 163 Idaho 247, 250, 409 P.3d 827, 830 (2018) ).

IV. ANALYSIS

A. Any potential error in allowing evidence regarding Jeske's refusal to allow a warrantless blood draw was harmless.

During Jeske's interaction with Officer Hutchison, he was asked to undergo the following tests: field sobriety tests; a breath alcohol test; and, after having refused to undergo the first two, a blood alcohol test. During the last, he remained silent.

On the first day of trial, Jeske moved to have various portions of the officer's video recording redacted. Specifically, Jeske sought to have his refusal to engage in the tests sought by Officer Hutchison redacted. The trial judge rejected his efforts stating, "the refusals to engage in the field sobriety test [sic], the breathalyzer, and to submit to a blood draw goes to consciousness of guilt. " (Italics added.)

Jeske contends on appeal that his Fourth Amendment rights were violated when the trial judge allowed testimony to be presented regarding his refusal to submit to a blood draw. Jeske relies on State v. Christiansen , 144 Idaho 463, 470, 163 P.3d 1175, 1182 (2007) for the proposition that a prosecutor may not constitutionally comment on a defendant's invocation of his Fourth Amendment rights.

The State concedes that commenting on a defendant's exercise of a constitutional right is improper; however, the State maintains Jeske did not make a proper objection specific to the blood draw and therefore whatever error was not preserved. As an alternative, the State argues that if preserved the error was harmless.

"This Court will not consider issues raised for the first time on appeal." State v. Garcia-Rodriguez , 162 Idaho 271, 275, 396 P.3d 700, 704 (2017) (citation omitted). However, if the issue was argued to, or decided by, the district court it can form the basis for review by this Court. State v. DuValt , 131 Idaho 550, 553, 961 P.2d 641, 644 (1998). "Th[is] Court recognizes a distinction between issues not formally raised below and issues that 'never surfaced' below." Kolar v. Cassia Cty. Idaho , 142 Idaho 346, 354, 127 P.3d 962, 970 (2005).

Here, even though Jeske's counsel did not explicitly mention the blood draw at one point in time, the judge specifically identified the blood draw in her ruling. The district court stated, "the refusal ... to submit to a blood draw goes to consciousness of guilt." (Italics added.) Consequently, the issue regarding Jeske's refusal to submit to the blood draw was ruled on, preserved, and will be addressed in this appeal.

The State acknowledges that the trial judge specifically ruled on the propriety of commenting on the blood draw; however, it next argues the judge's ruling was superfluous and unnecessary, citing State v. Abdullah , 158 Idaho 386, 482-83, 348 P.3d 1, 97-98 (2015). In Abdullah , this Court held that because the defendant withdrew his motion, the district court's ruling was not necessary and did not form the basis of appeal. Id. This case is not analogous to Abdullah. Here, defense counsel continued to argue against the admission of all three of Jeske's test refusals, including the blood test. Consequently, it cannot be said that the issue was intentionally withdrawn. Thus, the judge's ruling was neither superfluous nor unnecessary. The issue was preserved and will therefore be analyzed.

The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects against unreasonable seizures." U.S. Const. amend. IV. A blood draw is a search and seizure under the Fourth Amendment. State v. Wulff , 157 Idaho 416, 418, 337 P.3d 575, 577 (2014) (citing Schmerber v. California , 384 U.S. 757, 767, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) ; State v. Diaz , 144 Idaho 300, 302, 160 P.3d 739, 741 (2007) ). The United States Supreme Court and this Court have clarified that there is a constitutional right to refuse a warrantless blood draw. Birchfield v. North Dakota , --- U.S. ----, 136 S.Ct. 2160, 2184-85, 195 L.Ed.2d 560 (2016) ; Missouri v. McNeely , 569 U.S. 141, 165, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013) ; Wulff , 157 Idaho at 419, 337 P.3d at 578.

The issue here is whether there is a constitutional violation if the prosecution introduces evidence or comments on the refusal as evidence of consciousness of guilt. The State conceded that it was improper to comment on Jeske's refusal. Given the State's concession, we assume, without deciding, that there was a constitutional violation.

Nonetheless, any error in allowing evidence to be introduced or argument made relating to Jeske's refusal of the warrantless blood draw was harmless. When this Court finds an error that was objected to at trial, this Court reviews the error under the harmless error test. State v. Perry , 150 Idaho 209, 222, 245 P.3d 961, 974 (2010). In Perry , this Court adopted the harmless error test outlined in Chapman v. California , 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). "Under the Chapman harmless error analysis, where a constitutional violation occurs at trial, and is followed by a contemporaneous objection, a reversal is necessitated, unless the State proves 'beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.' " Perry , 150 Idaho at 221, 245 P.3d at 973 (italics in original) (quoting Chapman , 386 U.S. at 24, 87 S.Ct. 824 ).

Here, the State met its burden in proving the error did not contribute to the verdict obtained. There was uncontradicted scientific evidence properly presented at trial that demonstrated to the jury that Jeske had committed a DUI. The most compelling of which was evidence that Jeske's blood, following a legal blood draw, was 0.182, more than twice the per se legal limit of 0.08. Inclusion of the refusal to submit to a blood draw to show a consciousness of guilt is immaterial considering Jeske had a blood alcohol content of 0.182. Thus, any error was harmless.

B. The district court did not err in allowing the State to amend the Criminal Information on the first day of trial.

On the morning of the trial, the State moved to amend the Criminal Information to include the per se theory of DUI, alleging that Jeske had been operating a motor vehicle with a blood alcohol content of .08 or above. The district court granted the State's motion. The district court found that Jeske was not prejudiced because he had received the blood alcohol content test results in February, roughly four months before trial. Further, the district court found that the per se theory was not an additional charge, but rather an alternate way to prove the same offense.

Jeske argues adding the per se theory the morning of trial altered the nature of the crime charged, and thus, violated his constitutional rights in two ways. First, the amendment prejudiced Jeske's right to due process by depriving him of adequate notice of the manner in which he was alleged to have violated the law and a meaningful opportunity to prepare a defense. He argues that he should have been given sufficient notice of what theory the State planned to pursue. Second, Jeske argues that the late amendment prejudiced his state constitutional and statutory right to a preliminary hearing on those new facts and new theory of liability.

The State argues that the two theories charged in the Amended Criminal Information, the per se theory and the impairment theory, do not charge separate offenses. Rather, they are alternate ways to prove the same offense. Further, the State argues that Jeske was not prejudiced by the amendment because Jeske knew of the blood draw and was apprised of the results of the blood draw the same day the State received that information.

On appeal, the Court of Appeals, relying on a footnote in State v. Kralovec , 161 Idaho 569, 575 n.2, 388 P.3d 583, 589 n.2 (2017), held that Jeske failed to state any standard of review, and such failure was fatal to Jeske's claim regarding his objection to the amending of the Information. The Court of Appeals seems to indicate that there is a formalistic requirement that the standard of review be recited and the party claiming error attack a particular prong of that standard of review.

In Kralovec , this Court took issue with the fact that the appellant did not attempt to explain how the district court abused its discretion. Id. at 575, 388 P.3d at 589. This Court emphasized that when a party

does not contend that the district court failed to perceive the issue as one of discretion, that the district court failed to act within the boundaries of this discretion and consistent with the legal standards applicable to the specific choices available to it or that the district court did not reach its decision by an exercise of reason, such a conclusory argument is "fatally deficient" to the party's case.

Id. at 575 n.2, 388 P.3d at 589 n.2 (internal quotation marks omitted) (quoting Cummings v. Stephens , 160 Idaho 847, 853, 380 P.3d 168, 174 (2016) ).

In Cummings , this Court held that the defendant did "not identify the applicable standard of review, much less attempt to apply it." Cummings , 160 Idaho at 853, 380 P.3d at 174. This Court further noted,

Cummings makes no attempt to address the matters we consider when evaluating a claimed abuse of discretion. He does not contend that the district court failed to perceive the issue as one of discretion, that the district court failed to act within the boundaries of this discretion and consistent with the legal standards applicable to the specific choices available to it or that the district court did not reach its decision by an exercise of reason.

Id. (italics added) (citations omitted).

While one could glean from reading footnote 2 in Kralovec that we require a formalistic recitation of the abuse of discretion standard in order to review a claim of abuse of discretion, such a reading would be too technical. The real concern of this Court is whether an appellant's arguments are supported with relevant argument and authority. See Bach v. Bagley , 148 Idaho 784, 790, 229 P.3d 1146, 1152 (2010) ("We will not consider an issue not 'supported by argument and authority in the opening brief.' " (quoting Jorgensen v. Coppedge , 145 Idaho 524, 528, 181 P.3d 450, 454 (2008) )); see also I.A.R. 35(a)(6) ("The argument shall contain the contentions of the appellant with respect to the issues presented on appeal, the reasons therefor, with citations to authorities, statutes and parts of the transcript and the record relied upon."). Therefore, this Court's main concerns are the use of conclusory arguments, lack of authority to support those arguments, or failure to make any attempt to address the factors this Court considers. Consequently, Kralovec should not be read to require a formalistic recitation of the standard of review.

Although Jeske did not recite the standard of review in his opening brief, he clearly argued regarding "whether the lower court acted within the boundaries of such discretion and consistently with any legal standards applicable to the specific choices before it." Kralovec, 161 Idaho at 574-75, 388 P.3d at 588-89. He identified the legal standard that was applicable to the choices before the district court by citing I.C.R. 7(e), Idaho Code section 19-1420, and relevant case law. Next, Jeske presented an analysis of how the above stated authority was not followed by the district court. Therefore, his was not merely a conclusory argument, as was this Court's concern in Cummings and Kralovec. Rather, Jeske argued that the district court failed to comply with the second and third prongs of the abuse of discretion standard. Consequently, the amendment issue will be decided on its merits.

The decision to permit an amendment is a matter within the discretion of the trial court. State v. Severson , 147 Idaho 694, 708, 215 P.3d 414, 428 (2009). A court may allow an amendment of an information at any time before the prosecution rests, so long as doing so does not prejudice the defendant's substantial rights or charge the defendant with a different offense. I.C.R. 7(e) ; see also I.C. § 19-1420 ; State v. O'Neill , 118 Idaho 244, 249, 796 P.2d 121, 126 (1990). An amendment that merely alleges additional means by which the defendant committed the crime is permissible if it does not prejudice the defendant. Severson , 147 Idaho at 709, 215 P.3d at 429 (an amendment of an information to allege an alternative way to commit first-degree murder did not violate the standards of due process).

The trial court did not abuse its discretion in allowing the amendment of the Information. First, the amendment did not charge Jeske with a new offense. Idaho's DUI statute, as codified in Idaho Code section 18-8004(1), has been interpreted as creating one crime with two alternate ways of proving its violation. State v. Robinett , 141 Idaho 110, 112, 106 P.3d 436, 438 (2005) (citing State v. Garrett , 119 Idaho 878, 881-82, 811 P.2d 488, 491-92 (1991) ). Generally, a statutory provision that lists alternative ways to prove commission of a crime does not create separate offenses for purposes of amendment. State v. Palmer , 138 Idaho 931, 937, 71 P.3d 1078, 1084 (Ct. App. 2003).

Both the original Information and the Amended Information charged Jeske with DUI. When the State added the per se theory, it did not charge Jeske with a new and separate offense. Rather, the amendment added an alternate method of proving the charge of DUI with which Jeske had already been charged. Therefore, the district court correctly concluded that the per se theory was not a separate offense.

Jeske argues that the Amended Information is only permissible if it alleges the same facts as the original. For this proposition, he relies on State v. O'Neill , 118 Idaho 244, 249, 796 P.2d 121, 126 (1990) ("[T]he facts alleged rather than the designation of the offense, control.") In O'Neill , the defendant was charged with violating Idaho Code section 18-1508, lewd conduct with a minor. Id. at 245, 796 P.2d at 122. Later, the State amended the Information, changing the violation to Idaho Code section 18-1506, sexual abuse of a minor, which is a lesser-included crime of Idaho Code section 18-1508. Id. This Court held that because he pleaded guilty to the same facts that the Amended Information charged, the amendment did not violate his constitutional rights. Id. at 249, 796 P.2d at 126. Jeske's reliance on O'Neill is inapposite because that case dealt with an amendment that alleged a violation of a different statutory provision, rather than the same provision. See Severson , 147 Idaho at 709-10 n.17, 215 P.3d at 429-30 n.17. Here, both indictments charged Jeske with a DUI. Thus, O'Neill is not apposite precedent.

Second, the amendment did not prejudice any of Jeske's substantive rights. Factors relevant to determining whether the defendant was prejudiced include whether the amendment surprised the defendant, impaired the defendant's ability to adequately prepare his defense, necessitated extensive further preparation by the defendant, or subjected him to double jeopardy. Severson , 147 Idaho at 709, 215 P.3d at 429.

A defendant ... cannot legitimately claim that he was surprised to his substantial prejudice by the absence in the information of specific details relating to an offense where those details are already known to the defendant or provided to the defendant by a means other than through the language in the information.

See State v. Dorsey , 139 Idaho 149, 151, 75 P.3d 203, 205 (Ct. App. 2003) (citing State v. Gumm , 99 Idaho 549, 552, 585 P.2d 959, 962 (1978) ).

For example, in State v. LaMere , 103 Idaho 839, 841, 655 P.2d 46, 48 (1982), the defendant was charged with rape under Idaho Code section 18-6101. The Information charged him with forcible rape, however, there was no allegation regarding the victim's age. Id. On the day before the trial, the State amended the Information to include facts regarding the victim's age to allege a violation of statutory rape. Id. On appeal, this Court held that even though the amendment was filed on the eve of trial, the defendant was not prejudiced because he was aware of the victim's age. Id. at 842, 655 P.2d at 49.

Jeske was obviously aware his blood had been drawn. The parties discussed the potential results of the blood draw on January 26, 2016, the date originally scheduled for his preliminary hearing. The defense received the results of the blood draw on February 24, 2016, three months prior to trial. The jury instructions requested by the State on May 26, 2016, included the per se theory instructions. Thus, as in LaMere , there was no prejudice to Jeske because he was aware of the facts underlying the Amended Information well in advance of trial.

Jeske also argues that by allowing the Amended Information, the district court violated his right to a preliminary hearing. In making this claim, Jeske relies on State v. Palmer , 138 Idaho 931, 936, 71 P.3d 1078, 1083 (Ct. App. 2003).

A defendant has a right to a preliminary hearing if he is charged with a felony. State v. Stewart , 149 Idaho 383, 387, 234 P.3d 707, 711 (2010) ; Idaho Const. art. I, § 8 ; I.C. § 19-804 ; I.C.R. 5.1.

Where an information is ... amended charging a defendant with a crime of a greater degree or of a different nature than that for which he or she was held by the committing magistrate, the defendant is denied his or her constitutional and statutory right to a preliminary hearing ....

Palmer , 138 Idaho at 936, 71 P.3d at 1083.

Jeske's reliance on Palmer is misplaced. The Court of Appeals held in Palmer that because the defendant was charged with the same offense, it was "unnecessary for a preliminary hearing to be conducted on the basis of the amendment." Id. at 937, 71 P.3d at 1084. As previously noted, the per se theory and the impairment theory are alternate ways to prove the crime of DUI. Consequently, the amendment did not charge Jeske with a different offense. After discussions with the State regarding a potential resolution, and the pending lab results, Jeske waived his preliminary hearing. Because he was not charged with a different offense, he was not entitled to a second opportunity to have a preliminary hearing.

C. The district court did not err by refusing Jeske's requested jury instruction regarding impairment.

Prior to trial, Jeske requested that the district court instruct the jury: "To prove that someone was under the influence of alcohol ... [t]he influence must be noticeable or perceptible and impair a physical or mental function that relates to one's ability to drive." Near the close of evidence, Jeske renewed his request and objected to the trial court's proposed instruction. The district court denied Jeske's request to add his proffered language to the approved Idaho Criminal Jury Instruction (ICJI). In overruling Jeske's objection, the district court gave the following ICJI instruction:

To prove that someone was under the influence of alcohol, it is not necessary that any particular degree or state of intoxication be shown. Rather, the State must show that the defendant had consumed sufficient alcohol and/or intoxicating substances to influence or affect the defendant's ability to drive the motor vehicle.

ICJI 1006.

Jeske argues that his requested jury instruction more "adequately, accurately, or clearly state[s] the law." The State argues that the jury was properly instructed and that Jeske's requested language is covered by the language in the instruction.

A trial court presiding over a criminal case must instruct the jury on all matters of law necessary for the jury's information. Severson , 147 Idaho at 710, 215 P.3d at 430 (citing I.C. § 19-2132 ). Either party may present any written instruction and request it be given. I.C. § 19-2132(a). If the instruction is "correct and pertinent[,]" it must be given. Id. An instruction is not "correct and pertinent" if it is (1) an erroneous statement of the law; (2) adequately covered by other instructions; or (3) "not supported by the facts of the case." Severson , 147 Idaho at 710-11, 215 P.3d at 430-31 (quoting State v. Olsen , 103 Idaho 278, 285, 647 P.2d 734, 741 (1982) ).

The State, in its opposition, relies on the Court of Appeals decision in State v. Lewis , 126 Idaho 282, 284-85, 882 P.2d 449, 451-52 (Ct. App. 1994), which rejected the noticeable and perceptible language as mandatory for a DUI jury instruction. Instead, Lewis held that the proper instruction for DUI was stated in State v. Glanzman , 69 Idaho 46, 49, 202 P.2d 407, 408 (1949). The State contends that under Lewis , Jeske's requested instruction would be an erroneous statement of law and would fail the first prong of the "correct and pertinent" test.

However, Lewis is distinguishable from this case. First, there was no objection to the jury instruction in Lewis . Id. at 284, 882 P.2d at 451. The test for a requested instruction is different from an unobjected to instruction. Compare Severson , 147 Idaho at 710-11, 215 P.3d at 430-31 (three-prong test for requested jury instruction), with Perry , 150 Idaho at 221, 245 P.3d at 973 (fundamental error test for unobjected-to jury instruction).

Also, the Court of Appeals recognized that the noticeable and perceptible language was not mandatory, but did not hold that noticeable and perceptible was an erroneous statement of law in all cases. Lewis , 126 Idaho at 285, 882 P.2d at 452. This is further demonstrated by that court's later decision in State v. Schmoll , 144 Idaho 800, 804, 172 P.3d 555, 559 (Ct. App. 2007), defining "under the influence" to "include[ ] impairment of driving ability to the slightest degree; the impairment must be noticeable or perceptible , but does not need to rise to a level where the defendant is incapable of driving safely or prudently." Id. (citing State v. Andrus , 118 Idaho 711, 714-15, 800 P.2d 107, 110-11 (Ct. App. 1990) ). The fact that a particular instruction is not required in every case does not mean that it is an erroneous statement of law in all cases. See Stephen M. Rice, Conspicuous Logic: Using the Logical Fallacy of Affirming the Consequent as a Litigation Tool , 14 BARRY L. REV. 1, 10-12 (2010). Therefore, the noticeable and perceptible language satisfies the first prong, as it is not an "erroneous statement of the law."

However, Jeske likely does not satisfy the second prong, because the given instruction adequately covers the requested instruction. The impairment instruction given by the district court instructed that "the State must show that the defendant had consumed sufficient alcohol and/or intoxicating substances to influence or affect the defendant's ability to drive the motor vehicle." Thus, the State had to present evidence that alcohol was influencing or affecting Jeske's ability to drive. This would include the officer's testimony about his observations and the video showing Jeske's behavior. Any observations or video evidence would have been "noticeable or perceptible." Consequently, the proposed instruction is redundant and adequately covered by the instructions given. Therefore, there was no error in the district court's refusal to give Jeske's requested jury instruction.

D. The district court erred in admitting evidence of Jeske's lack of a driver's license, but the error was harmless.

During trial, Jeske moved to have a portion of the video regarding his lack of a driver's license redacted, arguing it was uncharged misconduct and would be prejudicial to him. (While Jeske's counsel did not specifically refer to Rule 404(b) of the Idaho Rules of Evidence, referring to uncharged misconduct and prejudice to the defendant necessarily implicates Rule 404(b), I.R.E.). When asked about his lack of a driver's license, Jeske made the motion of rubbing his fingers and thumb together, suggesting he did not have a license because he could not afford one. The State argued that identification of the defendant was an issue in the case, that the assertion was not prejudicial, and that it was "intertwined" with other conversations, making it difficult to redact. The district court denied Jeske's motion. The district court stated,

It appears that the other issues with respect to the question about the driver's license, the response is not prejudicial. Mr. Jeske did not give a reason, such as he had a suspended driver's license, you know, for other reasons, and I do find that it is sufficiently intertwined with other issues that it would be-that it also goes to reasonable suspicion and probable cause.

On appeal, Jeske argues the district court erred in admitting the evidence under the doctrine of res gestae and that the challenged portion should have instead been analyzed under I.R.E. 404(b). The State argues that the officer's conversation with Jeske regarding the driver's license is relevant to Jeske's behavior during the stop and whether he was impaired.

This Court recently rejected res gestae as a standard for admitting evidence and concluded that evidence is only admissible if it meets the criteria established by the Idaho Rules of Evidence. See Kralovec , 161 Idaho at 574, 388 P.3d at 588. Res gestae

has been an exception to the general prohibition against use of other misconduct evidence. In this context, res gestae refers to other acts that occur during the commission of or in close temporal proximity to the charged offense which must be described to "complete the story of the crime on trial by placing it in the context of nearby and nearly contemporaneous happenings. "

State v. Blackstead, 126 Idaho 14, 17-18, 878 P.2d 188, 191-92 (Ct. App. 1994) (citations omitted).

It is not clear what test the district court used to determine the admissibility of the lack of a driver's license. However, the court's use of the phrase "intertwined with other issues" suggests that the district court used an improper res gestae analysis.

It is of note that the district court did not have the benefit of this Court's decision in Kralovec when it made its ruling, as Kralovec was released nearly seven months after the district court's decision. This Court has held that "appellate courts should decide and dispose of the case in accordance with the law existing at the time of its own decision." Davis v. Prof'l Bus. Servs., Inc., 109 Idaho 810, 818, 712 P.2d 511, 519 (1985) ; see also Shabinaw v. Brown , 125 Idaho 705, 708, 874 P.2d 516, 519 (1994). Generally, this would require reversal for the district court to reconsider its decision in light of the new law. Davis , 109 Idaho at 818, 712 P.2d at 519. However, in this case, any potential error under res gestae was harmless.

Under current case law, the district court would have committed error in admitting the evidence under a theory of res gestae. As evidence can no longer be admitted under res gestae , any admission of the evidence as res gestae would be improper.

However, as noted previously, there was overwhelming, uncontradicted scientific evidence demonstrating that Jeske's blood alcohol content was 0.182, more than twice the per se legal limit of 0.08. Thus, any inclusion of Jeske's lack of a driver's license was harmless.

E. The cumulative error doctrine does not require reversal in Jeske's case.

Jeske next argues that even if this Court determines that each of the errors discussed was harmless by itself, this Court should still vacate Jeske's conviction under the cumulative error doctrine. The State argues that Jeske showed no error, and thus, cannot claim cumulative error.

"Under the doctrine of cumulative error, a series of errors, harmless in and of themselves, may in the aggregate show the absence of a fair trial." Perry , 150 Idaho at 230, 245 P.3d at 982 (citations omitted). "The presence of errors, however, does not by itself require the reversal of a conviction, since under due process a defendant is entitled to a fair trial, not an error-free trial." State v. Moore , 131 Idaho 814, 823, 965 P.2d 174, 183 (1998) (citing Bruton v. United States , 391 U.S. 123, 135, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) ).

Here, the district court erred in allowing comments on Jeske's refusal to allow a warrantless blood draw and by allowing evidence of uncharged misconduct in relation to his lack of a driver's license. However, the aggregate effect of these errors, in the light of the evidence properly presented at trial, is not of such magnitude that Jeske was denied a fair trial. See State v. Johnson , 163 Idaho 412, 428, 414 P.3d 234, 250 (2018). Therefore, the cumulative error doctrine does not require reversal of Jeske's conviction.

V. CONCLUSION

For the reasons articulated in this opinion, the judgment of conviction is affirmed.

Chief Justice BURDICK, Justices HORTON, BRODY and BEVAN, concur.

      The apparent implication was that he, Jeske, could not afford a driver's license.

      In the probable cause affidavit submitted by Officer Hutchison, he wrote: "I detected the slight odor of an alcoholic beverage on Jeske's person." However, the recording device used by him contradicts his affidavit. In the recording, Officer Hutchison, in discussing the situation with another officer, stated: "He says he hasn't been drinking and I don't get any odor ...."

      The charge was a felony because Jeske had two prior felony DUI convictions within the preceding fifteen years. In fact, only one felony DUI in the previous fifteen years is sufficient to form the necessary predicate for a subsequent DUI to be a felony. I.C. § 18-8005(9). In addition, the State sought a sentencing enhancement based on Idaho Code section 19-2514 for the new charge, alleging this was Jeske's third felony conviction and, as such, it exposed him to additional imprisonment. If convicted of a third felony, Idaho Code section 19-2514 provides that an individual subject to such enhancement "shall be sentenced to a term in the custody of the state board of correction which term shall be for not less than five (5) years and said term may extend to life."

      The Amended Criminal Information alleged Jeske's blood alcohol content was 0.0182. If Jeske's blood alcohol content had been 0.0182, he would not have been in violation of the per se limit of .08. While it is not clear from the record how this error was corrected, Jury Instruction No. 2 correctly indicates that Jeske's blood alcohol content was 0.182 when it was tested.

      The language added to the Criminal Information was: "and/or in the alternative, did drive the above described motor vehicle at the above described location, with an alcohol concentration of .08 percent or more, to-wit: .0182 [sic], as shown by an analysis of his blood ...."

      The instruction in Glanzman stated, "To constitute [a DUI], it is not necessary that the driver of the motor vehicle be shown to have been in any particular degree or state of intoxication, but only that such driver at the time charged had consumed intoxicating liquor to such an extent as to influence or affect his driving of the motor vehicle."

      It should also be noted that if the State had charged Jeske with driving without privileges, which was clearly an option, and the misdemeanor had been joined for trial with the DUI charge, the evidence would have been admissible. While this scenario did not play out in this case, it supports the conclusion that the admission of the evidence was harmless.


source: Caselaw Access Project

license: Public Domain

text:
    In the MATTER OF: S.R. and C.R., Youths in Need of Care.
    DA 18-0188
    Supreme Court of Montana.
    Submitted on Briefs: October 24, 2018 Decided: February 21, 2019
    For Appellant: Briana E. Kottke, Stack & Kottke, PLLC, Missoula, Montana
    For Appellee: Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana
   Justice Dirk Sandefur delivered the Opinion of the Court.

¶1 Birth mother C.C. appeals the judgment of the Montana Second Judicial District Court, Silver Bow County, terminating her parental rights to her minor children, S.R. and C.R., for failure to comply with a reunification-oriented treatment plan. We restate the dispositive issue as:

Whether the District Court erroneously terminated Mother's parental rights without properly determining whether the children were Indian children?

¶2 We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 Appellant C.C. (Mother) and P.R. (Father) are the birth parents of two children (S.R. and C.R.). The Child and Family Services Division of the Montana Department of Public Health and Human Services (Department) first became involved with S.R. and C.R. (then ages four and ten respectively) under Title 41, ch. 3, MCA, in October 2016 upon information that Mother and Father were using and distributing dangerous drugs (unauthorized prescription drugs, methamphetamine, and marijuana) in and out of the family home. The Department initially worked with the parents on a voluntary basis under a voluntary protection plan but later filed district court petitions seeking emergency protective services (EPS), adjudication of the children as youth in need of care, and temporary legal custody (TLC). The petitions essentially alleged that the children were neglected, or in danger of neglect, based on the parents' illegal drug use and activity, and related concerns regarding the cleanliness of the family home. The Department's supporting affidavits further alleged that, to the best of the Department's knowledge and belief, the children were not Indian children as defined by the federal Indian Child Welfare Act (ICWA), 25 U.S.C. § 1901, et seq.

¶4 On December 21, 2016, Mother and Father respectively appeared, personally and through assigned counsel, for the initial show cause hearing. Through counsel, Mother asserted that S.R. and C.R. may be Indian children for the purposes of ICWA based on Mother's belief that she may be eligible for enrollment in the Crow Indian Tribe. Father's counsel similarly asserted that the children may be eligible for tribal enrollment. The Department social worker responded that she had no reason to believe that the children were Indian children due to the parents' lack of cooperation and her assertion that the paternal grandparents had told her that neither parent was eligible for tribal enrollment. The Department thus moved the District Court to proceed on a non-ICWA basis pending further information.

¶5 The parents did not dispute the central allegations of neglect set forth in the Department's petitions. However, as an alternative to proceeding to youth in need of care adjudications and TLC, Mother requested that the court instead grant the Department temporary investigative authority (TIA) pending notice and receipt of conclusive Crow Tribe determination of the enrollment eligibility of the children. The Department opposed the interim TIA proposal, asserting that it would serve no purpose other than to delay adjudication, TLC, and imposition of reunification-oriented treatment plans. The Department social worker nonetheless assured the court that she would meet with Mother after the hearing to discuss Mother's asserted Crow Tribe affiliation and then make inquiry as appropriate. The District Court thus rejected the interim TIA proposal and instead elected to proceed with adjudications as requested by the Department. By subsequent stipulation, the court granted the Department EPS, adjudicated the children as youth in need of care as defined by § 41-3-102(34), MCA, and granted the Department TLC for a period of six months. At the subsequent dispositional hearing on February 8, 2017, the court adopted and imposed Department-proposed treatment plans for the parents.

¶6 Four months later, on June 12, 2017, the Department petitioned the court to extend TLC for an additional six months to allow the parents more time to work on their treatment plans. Inter alia , and without reference to what efforts, if any, the Department had made to obtain determinations of enrollment eligibility from the Crow Tribe, the Department's supporting affidavit again asserted that the children were not Indian children to the best of its knowledge. The District Court subsequently granted the requested extension of TLC at hearing on July 19, 2017.

¶7 In November 2017, the Department petitioned the court for termination of the parents' respective parental rights and permanent legal custody based on alleged treatment plan failure. At the termination hearing on February 28, 2018, the District Court admitted into evidence a March 2017 letter from the Crow Tribe informing the Department that the child C.R. was neither enrolled nor enrollable in the Tribe based on the fact that neither parent was enrolled or enrollable. The letter did not reference S.R. The Department social worker testified that the Department had received a separate letter from the Crow Tribe stating that S.R. was similarly not enrolled or eligible for tribal enrollment. However, the Department did not offer the purported letter into evidence at the hearing. The social worker explained that she did not bring the letter regarding S.R. to court because she thought the letter regarding C.R. would suffice since the children had the same parents.

¶8 On the evidence presented at hearing, the District Court issued findings of fact, conclusions of law, and judgments terminating the parents' respective parental rights to the children due to treatment plan failure and thus granted the Department permanent legal custody. In pertinent part, the written judgments indicated that the court terminated the parents' respective parental rights based on the non-ICWA standard of proof (clear and convincing evidence) specified by § 41-3-609(1), MCA. The court's findings, conclusions, and judgments did not reference ICWA or include any finding regarding the tribal enrollment eligibility of either child. Mother timely appeals.

STANDARD OF REVIEW

¶9 We review parental rights terminations under Title 41, ch. 3, MCA, for an abuse of discretion based on compliance with applicable Montana statutory and ICWA standards. In re L.D. , 2018 MT 60, ¶ 10, 391 Mont. 33, 414 P.3d 768 ; In re D.B. , 2007 MT 246, ¶ 16, 339 Mont. 240, 168 P.3d 691. An abuse of discretion occurs if a court exercises discretion based on a clearly erroneous finding of fact, erroneous conclusion of law, or otherwise acts arbitrarily, without employment of conscientious judgment, or in excess of the bounds of reason resulting in substantial injustice. In re D.E. , 2018 MT 196, ¶ 21, 392 Mont. 297, 423 P.3d 586 ; D.B. , ¶¶ 16-18. Findings of fact are clearly erroneous only if not supported by substantial evidence, the lower court misapprehended the effect of the evidence, or upon our review of the record we have a definite and firm conviction that the district court was mistaken. L.D. , ¶ 10 ; In re D.H. , 2001 MT 200, ¶ 14, 306 Mont. 278, 33 P.3d 616. We review conclusions of law de novo for correctness. In re M.W. , 2004 MT 301, ¶ 16, 323 Mont. 433, 102 P.3d 6.

DISCUSSION

¶10 Whether the District Court erroneously terminated Mother's parental rights without properly determining whether the children were Indian children?

¶11 The United States Congress enacted ICWA in 1978 to "protect the best interests of Indian children and to promote the stability and security of Indian tribes and families. ..." 25 U.S.C. § 1902. ICWA manifests the Congressional determination and policy that the preservation and protection of the relationship between Indian children and related Indian tribes is in the best interests of the children and essential to the continued existence of the tribes. Miss. Band of Choctaw Indians v. Holyfield , 490 U.S. 30, 49-53, 109 S.Ct. 1597, 1609-11, 104 L.Ed.2d 29 (1989) (noting that ICWA vests Indian tribes with a right and interest in related Indian children "distinct from but on a parity with the interest of the parents"). See also 25 U.S.C. § 1901(5) (states "have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families"); 25 U.S.C. § 1902 ; 25 C.F.R. § 23.3. In furtherance of this clearly stated federal policy, ICWA imposes heightened federal standards for the removal of Indian children from Indian families. See , e.g. , 25 U.S.C. §§ 1902, 1911, and 1912(d) - (f) (policy, tribal jurisdiction and right of intervention in state court proceedings, and over-arching requirements for active remedial efforts, qualified expert testimony, and proof beyond a reasonable doubt). ICWA broadly applies to state law "child custody proceedings," as defined by 25 U.S.C. § 1903(1), involving "Indian child[ren]," as defined by 25 U.S.C. § 1903(3) - (8). See 25 U.S.C. § 1912.

¶12 Like all parents, Indian parents have fundamental federal and Montana constitutional rights in the custody and care of their children. In re A.R.A. , 277 Mont. 66, 70-71, 919 P.2d 388, 391 (1996) ; In re Guardianship of Doney , 174 Mont. 282, 286, 570 P.2d 575, 577 (1977) ; Troxel v. Granville , 530 U.S. 57, 65-67, 120 S.Ct. 2054, 2059-60, 147 L.Ed.2d 49 (2000) ; Stanley v. Ill. , 405 U.S. 645, 652, 92 S.Ct. 1208, 1213, 31 L.Ed.2d 551 (1972). Regardless of Montana's compelling interest in protecting children from abuse and neglect, state and federal constitutional rights to due process of law at a minimum require that state legal processes for suspension or termination of parental rights be fundamentally fair and that states substantially comply with all applicable state and federal statutory requirements for suspension or termination of parental rights. See In re M.A.E. , 1999 MT 341, ¶ 18, 297 Mont. 434, 991 P.2d 972 ; In re J.N. , 1999 MT 64, ¶ 12, 293 Mont. 524, 977 P.2d 317 ; In re R.B. , 217 Mont. 99, 103, 703 P.2d 846, 848 (1985). Thus, in suspending or terminating parental rights based on abuse, neglect, or abandonment as defined by §§ 41-3-102(1) and (3), MCA, district courts must substantially comply, and make sufficient findings of fact manifesting compliance, with applicable requirements of Title 41, ch. 3, MCA, and ICWA. L.D. , ¶ 13 ; D.B. , ¶¶ 17-18 ; In re J.V. , 2003 MT 68, ¶ 7, 314 Mont. 487, 67 P.3d 242 ; M.A.E. , ¶ 18 ; J.N. , ¶ 12 ; R.B. , 217 Mont. at 103, 703 P.2d at 848.

¶13 Whether ICWA applies to a proceeding under Title 41, ch. 3, MCA, depends on whether a child is an Indian child. See 25 U.S.C. § 1912(a). ICWA defines an "Indian child" as an unmarried person under the age of eighteen who is either "a member of an Indian tribe" or "eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe." 25 U.S.C. § 1903(4). See also 25 U.S.C. § 1903(3), (5) (defining related terms "Indian" and "Indian child's tribe"). The threshold determination of whether a child is an Indian child is equally critical and determinative of the governing legal standards for temporary "foster care placement" and termination of parental rights proceedings. See 25 U.S.C. §§ 1903(1)(i)-(ii) and 1912(a) ; 25 C.F.R. § 23.2 ("foster care placement" and termination proceedings are separate "proceedings" for purposes of ICWA).

¶14 Emergency removals, "foster care placement" proceedings, and termination proceedings are distinct "proceedings" under ICWA. See 25 U.S.C. §§ 1903(1)(i)-(ii), 1912(a), 1922 ; 25 C.F.R. § 23.2. A "foster care placement" is a temporary court-ordered placement, or proceeding therefor, of "an Indian child [away] from [a] parent or Indian custodian ... where the parent or Indian custodian cannot have the child returned upon demand. ..." 25 U.S.C. §§ 1903(1)(i), 1912(e) ; 25 C.F.R. § 23.2 (defining "child-custody proceeding"). Except where not involving a temporary removal and placement of the child, proceedings under Title 41, ch. 3, MCA, for EPS, TIA, and TLC are "foster care placement" proceedings as defined by 25 U.S.C. § 1903(1)(i) and referenced in 25 U.S.C. § 1912. See 25 U.S.C. §§ 1912(a), (d) - (f) ; In re H.T. , 2015 MT 41, ¶¶ 36-38, 378 Mont. 206, 343 P.3d 159. See also §§ 41-3-109, -301(7), -422(5)(b), (6)(a), -423(2), -427(1), (2), -432, -433, -437(2), (8), -438(3)(f), -442, MCA ; In re A.K.H. , 502 N.W.2d 790, 792-93 (Minn. App. 1993) (temporary placement of child in physical custody of a person not a parent or Indian custodian is a "temporary placement in ... the home of a guardian or conservator" as referenced in 25 U.S.C. § 1903(1)(i) -state law definitions of guardian or conservator not determinative).

¶15 If and when the court "has reason to know that an Indian child is involved" in an EPS, TIA, or TLC proceeding not involving a temporary removal and placement of the child, the Department must immediately, by registered mail with return receipt requested, "notify ... the Indian child's tribe" of "the pending proceedings and of [the tribe's] right of intervention." 25 U.S.C. § 1912(a). "If the identity or location of ... the tribe cannot be determined, such notice shall be given to the Secretary [of the Interior] in like manner, who shall have fifteen days after receipt to provide the requisite notice to ... the tribe." 25 U.S.C. § 1912(a). The court may not thereafter proceed with any "foster care placement ... proceeding ... until at least ten days after receipt of notice by ... the tribe or the Secretary ...." 25 U.S.C. § 1912(a) (emphasis added). However, ICWA does not prohibit district courts from continuing a pre-petition emergency removal and placement by the Department under § 41-3-301, MCA, pending tribal notice and determination of a child's tribal enrollment eligibility. See 25 U.S.C. §§ 1903(1), 1912, 1915, 1922 ; 25 C.F.R. § 23.2. See also H.T. , ¶¶ 36-38.

¶16 Unless a reason is manifest on the face of the Department's petition or supporting affidavit(s), the initial show cause hearing is generally the first occasion for the court to have "reason to know that an Indian child is involved" in an EPS, TIA, or TLC proceeding. See §§ 41-3-109, -301(7), -422(1)(a), -427(4), -432, -433, -437(1), 438(3)(f), -442, MCA. At the "commencement" of the show cause hearing, the court "must ask each participant" in the proceeding "whether the participant knows or has reason to know that the child is an Indian child." 25 C.F.R. § 23.107(a). See also 25 U.S.C. § 1912(a) ("[n]o foster care placement ... proceeding shall be held until at least ten days after receipt of notice by the ... tribe or the Secretary" of the Interior). The court must make this inquiry "on the record" and require record responses from "each participant ." 25 C.F.R. § 23.107(a) (emphasis added). For purposes of 25 U.S.C. § 1912, a "reason to know that an Indian child is involved" is no more than awareness of a reasonable basis upon which to believe that a child may be an Indian child. In re Gerardo , 119 Cal.App.4th 988, 14 Cal.Rptr.3d 798, 802 (2004) ; In re Kahlen , 233 Cal.App.3d 1414, 285 Cal.Rptr. 507, 511 (1991). See also 25 C.F.R. §§ 23.107(a), (c), -108(a). Accord In re Joseph P. , 140 Cal.App.4th 1524, 45 Cal.Rptr.3d 591, 595-96 (2006). For example, a court "has reason to know that an Indian child is involved" if, inter alia , "[a]ny participant" or "officer of the court involved in the proceeding" either "informs the court that the child is an Indian child" or that the person has "information indicating that the child is an Indian child." 25 C.F.R. § 23.107(c).

¶17 When there is reason to know that an EPS, TIA, or TLC proceeding not involving a temporary removal and placement of the child may involve an Indian child, "the court must ensure that" the Department "promptly sends notice" of the proceeding to "[e]ach tribe" in which the child may be eligible for enrollment or the Secretary in accordance with 25 C.F.R. § 23.111. 25 C.F.R. §§ 23.111(a)-(c). See also 25 U.S.C. § 1912(a). The court must further "ensure" that the Department promptly files a copy of the notice(s) "with the court together with any return receipts or other proof of service." 25 C.F.R. § 23.111(a)(2). When it "does not have sufficient evidence" to conclusively confirm or dispel a reason to know that a child may be an Indian child, the court must:

[c]onfirm, by way of a report, declaration, or testimony included in the record that the [Department ] used due diligence to identify and work with all of the Tribes of which there is reason to know the child may be a member (or eligible for membership), to verify whether the child is in fact a member (or a biological parent is a member and the child is eligible for membership).

25 C.F.R. § 23.107(b)(1) (emphasis added). When there is reason to know that an EPS, TIA, or TLC proceeding not involving a temporary removal and placement of the child may involve an Indian child, the court may proceed only after compliance with the tribal notice and enrollment eligibility requirements of 25 U.S.C. § 1912(a) and 25 C.F.R. §§ 23.107(a) and 23.111(a)-(c). In any event, the court must make findings of fact sufficient to manifest compliance with 25 U.S.C. § 1912(a) and 25 C.F.R. §§ 23.107(a), (b)(1), and 23.111(a)-(c). See L.D. , ¶ 13 ; D.B. , ¶¶ 17-18 ; J.V. , ¶ 7 ; M.A.E. , ¶ 18 ; J.N. , ¶ 12 ; R.B. , 217 Mont. at 103, 703 P.2d at 848. If unable to obtain a conclusive tribal determination of a child's tribal enrollment eligibility upon compliance with U.S.C. § 1912(a) and 25 C.F.R. §§ 23.107(a), (b)(1), and 23.111(a)-(c), the court must thereafter "[t]reat the child as an Indian child, unless and until " it conclusively determines "on the record that the child" is not an ICWA-defined Indian child. 25 C.F.R. § 23.107(b)(2) (emphasis added).

¶18 Whether a child is eligible for tribal membership and is thus an Indian child is a question of fact for exclusive determination by the Indian tribe(s) in regard to which the court has reason to know the child may be related. L.D. , ¶ 14 ; 25 C.F.R. § 23.108(b). A tribal determination of membership eligibility is conclusive as a matter of law. L.D. , ¶ 14 ; 25 C.F.R. § 23.108(b). A district court may not independently determine whether a child is eligible for membership in an Indian tribe. L.D. , ¶ 14 ; 25 C.F.R. § 23.108(b). When there is reason to know that a child may be eligible for tribal enrollment, it is the Department's duty and burden to diligently investigate, provide formal notice to the suspected Indian tribes or the Secretary of the Interior, and obtain a conclusive tribal determination of a child's eligibility for tribal membership. See 25 U.S.C. § 1912(a) ; 25 C.F.R. §§ 23.2, 23.107(a), 23.111(a)-(c), 23.112(a), (b)(2). However, in that circumstance, it is ultimately the duty of district courts to demand, ensure, and manifest, through sufficient findings of fact, Department compliance with all applicable ICWA tribal notice and enrollment eligibility requirements. See L.D. , ¶¶ 15-17 ; 25 U.S.C. § 1912(a) ; 25 C.F.R. §§ 23.107(b)(1), 23.111(a)-(c). Proceeding without doing so is an abuse of discretion. See , e.g. , In re L.A.G. , 2018 MT 255, ¶¶ 11-29, 393 Mont. 146, 429 P.3d 629 ; D.E. , ¶¶ 22-38 ; L.D. , ¶¶ 13-17 ; In re A.G. , 2005 MT 81, ¶¶ 14-18, 326 Mont. 403, 109 P.3d 756.

¶19 Here, Mother asserts that the District Court abused its discretion in failing to timely and properly confirm or dispel a reason to know that S.R. and C.R. were ICWA-defined Indian children. The Department contrarily asserts that the court did not have sufficient "reason to know" that the children were Indian children and that, even if it did, any resulting non-compliance with ICWA was harmless error in any event.

¶20 The record of the initial show cause hearing on December 21, 2016, fairly manifests that the parents separately asserted their respective beliefs that the children may qualify for enrollment in the Crow Tribe through their mother. The record further fairly reflects that the parents accordingly asserted that the Department should thus give notice and obtain a determinative response from the Tribe prior to the case proceeding beyond a grant of TIA. While the parents' assertions were not supported by evidentiary fact and were less than certain or unequivocal, the standard for triggering ICWA's tribal notice and enrollment eligibility determination requirements is low-the court must merely have a "reason to know," i.e., a reasonable basis upon which to believe that a child may be an Indian child. Gerardo , 14 Cal.Rptr.3d at 802 ; Kahlen , 285 Cal.Rptr. at 511. See also 25 U.S.C. § 1912(a) ; 25 C.F.R. §§ 23.107(a), (c), 23.108(a). What constitutes a reasonable basis upon which to believe that a child may be eligible for tribal enrollment is a factual matter that will vary based on the particular record in each case.

¶21 Contrary to the Department's assertion and the apparent corresponding view of the District Court, the "reason to know" standard does not necessarily require an evidentiary showing, and certainly not by the parents, that a child or parent may be eligible for tribal membership. See 25 U.S.C. § 1912(a) ; 25 C.F.R. §§ 23.107-08.

Nor does ICWA require that an assertion of potential tribal eligibility be certain. Gerardo , 14 Cal.Rptr.3d at 802 ; Kahlen , 285 Cal.Rptr. at 511. See also 25 C.F.R. §§ 23.107(a), (c), -108(a). Any more stringent construction as suggested by the State would defeat ICWA's manifest purpose and command. Certainly, a "reason to know" is a low standard, but not an unlimited one. In re Jeremiah G. , 172 Cal.App.4th 1514, 92 Cal.Rptr.3d 203, 207-08 (2009) ; In re Z.H. , 740 N.W.2d 648, 653-54 (Iowa App. 2007). A "reason to know" requires something more than a bare, vague, or equivocal assertion of possible Indian ancestry without reference to any identified Indian ancestors with a reasonably suspected tribal connection. See Jeremiah G. , 92 Cal.Rptr.3d at 207-08 ; Z.H. , 740 N.W.2d at 653-54. Pursuant to 25 C.F.R. § 23.107(c)(1), Mother's asserted belief that she may be eligible for enrollment in the Crow Tribe was minimally sufficient to constitute a reason to know that the children were Indian children under the circumstances of this case.

¶22 We are further troubled by the Department's apparent view that it has no affirmative duty to make further inquiry or provide tribal notice and inquiry when parents are not cooperative. Lack of parental cooperation is immaterial, is not a basis for equitable waiver or estoppel, and does not otherwise relieve state agencies and courts of the duty to comply with ICWA requirements. Kahlen , 285 Cal.Rptr. at 512. ICWA vests Indian children and related Indian tribes with a federal right, independent of but on par with the right of Indian parents, to specified tribal notice and eligibility determinations regardless of the conduct or disregard of the parents. Miss. Band of Choctaw Indians , 490 U.S. at 49-53, 109 S.Ct. at 1609-11 ; Kahlen , 285 Cal.Rptr. at 512. The practical difficulty or inability of a state agency to identify the correct tribe or substantiate an assertion of requisite Indian ancestry does not relieve the agency of its duty to comply with ICWA requirements. See Kahlen , 285 Cal.Rptr. at 512.

¶23 In addition to the parents' assertions of possible Crow Tribe eligibility at the initial show cause hearing in this case, the considerable record colloquy between court and counsel that followed further manifests a reasonable basis upon which to believe that the children may be Indian children, regardless of whether the reason was not uncertain or based on an affirmative evidentiary showing. In disregard of that reason, the court failed to: (1) ensure that the Department promptly noticed and made inquiry of the Crow Tribe; (2) ensure that the Department then either obtained conclusive tribal enrollment eligibility determinations or made an affirmative record showing of why and on what basis it was unable to do so on due diligence; and (3) treat the children as Indian children pending tribal notice and determination of enrollment eligibility. We hold that the District Court abused its discretion in proceeding on from the show cause hearing in non-compliance with the requirements of 25 U.S.C. § 1912(a) and 25 C.F.R. §§ 23.107(b) and 23.108.

¶24 Turning to the termination stage of the proceedings, Mother asserts that the District Court further erred by terminating her parental rights to S.R. under non-ICWA standards without sufficient evidence of the child's ineligibility for tribal enrollment and an associated finding of fact. The tribal notice and enrollment eligibility requirements of 25 U.S.C. § 1912(a) and 25 C.F.R. §§ 23.107(b) and 23.108 apply equally to preliminary "foster care placement" and termination of parental rights proceedings. See 25 U.S.C. §§ 1903(1)(i)-(ii), 1912(a) ; 25 C.F.R. § 23.2(2). Within that framework, Mother correctly asserts that the Department failed to present and offer into evidence a purportedly in-hand conclusive determination of S.R.'s tribal enrollment ineligibility from the Crow Tribe. Mother further correctly asserts that the District Court failed to make any finding of fact manifesting the Department's compliance with the tribal notice and enrollment eligibility requirements of 25 U.S.C. § 1912(a) and 25 C.F.R. §§ 23.107(b) and 23.108.

¶25 However, while district courts may not substitute their judgment for a conclusive tribal determination, L.D. , ¶¶ 14-17 ; 25 C.F.R. § 23.108(b); they may, in determining whether a child is an Indian child, nonetheless "rely on facts or documentation indicating a Tribal determination of membership or eligibility." 25 C.F.R. § 23.108(c) (emphasis added). Here, regardless of the Department's failure to offer into evidence a purported in-hand tribal eligibility determination for S.R. and the court's concomitant failure to make any finding of fact regarding the tribal eligibility or Indian status of either child, prominent in the termination hearing record was a conclusive Crow Tribe determination that C.R. was not eligible for tribal membership. Based on that determination and the undisputed record fact that S.R. and C.R. were siblings with the same birth parents, the record clearly manifests that, based on a conclusive tribal determination, neither child was an ICWA-defined Indian child. Thus, the District Court's failure to make a sufficient finding of fact regarding S.R.'s ineligibility for tribal enrollment did not substantially prejudice Mother under the circumstances of this case.

¶26 Harmless error is not reversible error. H.T. , ¶ 10 ; In re A.N. , 2000 MT 35, ¶¶ 39, 55, 298 Mont. 237, 995 P.2d 427. See also § 25-11-102(1), MCA (standard for new trial); M. R. Civ. P. 61 ("errors and defects" not affecting a "party's substantial rights" are harmless); M. R. Evid. 103(a). Procedural or substantive error in civil proceedings is generally reversible only if it materially prejudiced the outcome of the proceeding. See H.T. , ¶ 10 ; A.N. , ¶¶ 39, 55 ; M. R. Civ. P. 61. However, otherwise harmless technical non-compliance with an express statutory requirement affecting a fundamental constitutional liberty interest may nonetheless be reversible if strict compliance is necessary to ensure a fundamentally fair process. See L.A.G. , ¶¶ 13-19 (required ICWA "Indian child" determination); D.E. , ¶¶ 22-38 (required ICWA "Indian child" determination); L.D. , ¶¶ 11-17 (required ICWA "Indian child" determination); In re D.L.B. , 2017 MT 106, ¶ 10, 387 Mont. 323, 394 P.3d 169 (involuntary mental health commitment criteria); In re R.M.T. , 2011 MT 164, ¶ 27, 361 Mont. 159, 256 P.3d 935 (parental rights termination criteria); In re J.C. , 2008 MT 127, ¶¶ 37-55, 343 Mont. 30, 183 P.3d 22 (TLC proceedings) ; D.B. , ¶¶ 17-18 (termination proceeding findings).

¶27 Here, the termination hearing record manifests that, based on a conclusive tribal determination, S.R. and C.R. were not ICWA-defined Indian children. The District Court's initial failure to comply with 25 U.S.C. § 1912(a) and 25 C.F.R. §§ 23.107(b) and 23.108 was thus harmless. The court's subsequent failure, upon terminating Mother's parental rights, to make any finding regarding S.R.'s ineligibility for tribal enrollment was likewise at most harmless error under the facts and circumstances of this case.

CONCLUSION

¶28 We hold that the District Court abused its discretion in proceeding on from the initial show cause hearing in non-compliance with the requirements of 25 U.S.C. § 1912(a) and 25 C.F.R. §§ 23.107(b) and 23.108. However, based on a subsequent and ultimately conclusive tribal determination that neither child was eligible for tribal enrollment, we hold that the abuse of discretion was harmless. We further hold that the District Court's subsequent failure, upon terminating Mother's parental rights, to make any finding of fact regarding S.R.'s ineligibility for tribal enrollment was at most harmless error under the facts and circumstances of this case.

¶29 Affirmed.

We concur:

INGRID GUSTAFSON, J.

JAMES JEREMIAH SHEA, J.

JIM RICE, J.

Justice Laurie McKinnon, specially concurring.

¶30 I disagree with certain aspects of the Court's legal analysis as well as its application of law to the facts of this case. I specially concur, however, because I agree with the Court's ultimate decision to affirm the District Court. Portions of the Court's legal analysis are unclear and overlook the fact that the interaction between ICWA and Montana's child abuse and neglect statutes, Title 41, chapter 3, MCA (Chapter 3), depends greatly on the specific facts of each case. I further disagree with the Court's application of the law in this case, specifically its unwarranted criticism of the Department's actions.

¶31 While not directly at issue here, the Court's general statements about which Montana proceedings constitute "emergency removals" and "foster care placement proceedings" under ICWA are confusing and may lead to misunderstanding. See Opinion, ¶ 14. I therefore feel the need to clarify when ICWA's emergency removal exception applies to child abuse and neglect proceedings in Montana before addressing the specific facts of this case. The Court states that "[e]xcept where not involving a temporary removal and placement of the child," an EPS proceeding is a " 'foster care placement' proceeding." Opinion, ¶ 14. The Court then clarifies in a footnote that "[a]n emergency removal pursuant to § 41-3-301, MCA,"-the statute entitled, "Emergency protective service," or "EPS"-"is not an ICWA-defined 'child custody proceeding' subject to ICWA's pre-hearing tribal notice and kinship placement requirements." Opinion, ¶ 14 n.9.

¶32 I agree with the Court's conclusion that EPS removals pursuant to § 41-3-301, MCA, are emergency removals that ICWA shall not be construed to prevent. See 25 U.S.C. § 1922. The Court's explanation is confusing, however, because the term EPS, and the various Montana statutes explaining EPS, encompass actions that are both emergency removals and foster care placement proceedings under ICWA. The point at which an EPS removal pursuant to § 41-3-301(1), MCA, ceases to constitute an emergency removal under § 1922 varies from case-to-case. Once a foster care placement proceeding commences and the court knows or has reason to know that a child is an Indian child, the court should ensure the Department provides notice to the tribe and then wait the obligatory ten days from when the tribe received the notice before holding a foster care placement proceeding. 25 U.S.C. § 1912(a). That ICWA requirement may not be construed, however, to limit the court's ability to make interim decisions to provide for a child's care on an emergency basis. 25 U.S.C. § 1922.

¶33 Chapter 3 contains Montana's child abuse and neglect statutes. Relevant to the discussion here, Chapter 3 includes part 3, "Protective Care," and part 4, "Abuse or Neglect Proceedings." In many cases, the Department utilizes part 3's protective care statutes as a precursor to part 4's abuse or neglect proceeding statutes. Part 3 provides for the emergency removal of a child in danger: if a Department social worker "has reason to believe any child is in immediate or apparent danger of harm," she "may immediately remove the child and place the child in a protective facility." Section 41-3-301(1), MCA.

¶34 Those types of emergency removals are not limited by ICWA's notice and kinship placement requirements- § 1922 provides, "Nothing in [ICWA] shall be construed to prevent the emergency removal of an Indian child ... from his parent ... or the emergency placement of such child in a foster home ... under applicable State law, in order to prevent imminent physical damage or harm to the child." Accordingly, ICWA shall not be construed to prevent the emergency removal of a child in Montana under § 41-3-301(1), MCA.

¶35 Within five working days of the emergency removal, the county attorney must file an abuse and neglect petition. Section 41-3-301(6), MCA. In many cases, a foster care placement proceeding, as defined by ICWA, will begin once the county attorney files that petition: "Proceedings under [Chapter 3] must be initiated by the filing of a petition. A petition may request ... immediate protection and emergency protective services, as provided in 41-3-427." Section 41-3-422(1)(a)(i), MCA (emphasis added). If the circumstances of the case meet the definition of a "foster care placement proceeding" under ICWA, and if the court knows or has reason to know that an Indian child is involved in the proceeding, the case is subject to § 1912 's notice requirement-the court must ensure the Department notifies the child's tribe of the pending proceedings and wait the requisite ten days.

¶36 However, § 1922 's emergency removal exception does not necessarily end the moment the county attorney files a petition initiating a foster care placement proceeding. Section 1922 's emergency removal exception terminates "when such removal or placement is no longer necessary to prevent imminent physical damage or harm to the child." 25 U.S.C. § 1922. Shortly after the Department removes a child on an emergency basis pursuant to § 41-3-301(1), MCA, the county attorney must file a petition for immediate protection and EPS. Section 41-3-301(6), MCA.

¶37 In many cases, the emergency removal and placement will still be necessary at that time to prevent imminent physical damage or harm to the child. ICWA shall not be construed to limit the court's ability to continue to protect the child on an emergency basis after the county attorney initiates a foster care placement proceeding by filing a petition for immediate protection and EPS. The court may make decisions to ensure the child is protected and cared for after the emergency removal or placement until the removal or placement is no longer necessary to prevent imminent physical damage or harm to the child. See 25 U.S.C. § 1922. That moment will be different in each case and is, by definition, not tied to the commencement of a foster care placement proceeding. ICWA does not limit the court's ability to make decisions while the removal or placement is still necessary to prevent imminent damage or harm to the child and the Opinion, ¶¶ 14-15, creates confusion by failing to clearly identify the court's authority after an emergency removal. ¶38 Having clarified the way ICWA should apply in EPS removals in Montana, I turn to the facts of this case and take issue with how the Court applied the law. On October 11, 2016, the Department received a report expressing concerns with the parents' drug use and distribution, lack of child supervision, and the cleanliness of the family's home. The Department struggled to contact the parents for multiple days, and eventually spoke with them on October 18, 2016, after visiting S.R. at school. At that time, Mother and Father agreed to work with the Department on a voluntary basis and they both signed a protection plan. The Department placed the children in their paternal grandparents' care. Thereafter, the Department struggled to contact the parents and Father's drug test came back positive for amphetamines and methamphetamines. The Department tested the children's hair follicles for substances. S.R. tested negative but C.R. tested positive for opiates, methamphetamine, morphine, and amphetamine.

¶39 On November 14, 2016, the Department filed a petition for EPS, adjudication of the children as youths in need of care (YINC), and TLC based on concerns about drug use, concerns that the parents were selling drugs out of the family home, and lack of contact with the Department to work on the voluntary protection plan. The court continued the show cause hearing once at Father's request but eventually held it on December 21, 2016. At the hearing, the parents stipulated to the children being found YINC but suggested TIA was more appropriate than TLC. The Department maintained it needed TLC to ensure the children's safety. The Department's social worker (Burk) testified about all of the events leading up to its request for TLC. Burk stated that TIA was inappropriate in this case because the Department did not need an investigatory period-it had already obtained enough information to demonstrate the children's circumstances required TLC.

¶40 The Department asked Burk, "Do you feel that ... return of the children to the home would create a substantial risk of harm to the children?" She responded, "I do." Counsel further inquired, "[D]o you believe that dismissal of the petition would create a substantial risk of harm to the children or would be a detriment to their physical or psychological well-being?" Burk again responded, "I do."

¶41 The court first became aware of the possibility that the children could be Indian children when Father's counsel cross-examined Burk. He asked, "Do you know whether either of the parents have any Indian descent?" Burk responded that she had not yet asked the parents because of her inability to contact them but that the children's paternal grandparents indicated the children did not. When Mother's counsel questioned Burk, she inquired, "[A]re you aware that [Mother] is eligible for enrollment in the Crow Tribe?" Burk responded, "I am not due to not being able to have that type of conversation with her," and then further explained her problems communicating with Mother. Burk further opined that TIA would be inappropriate in this case because it would not obligate the parents to follow through on requested improvements, whereas TLC would.

¶42 Mother's counsel subsequently argued that, because the children may be Indian children, ICWA may apply to the case and therefore the Department must provide active, not reasonable, efforts. Mother's counsel indicated Mother would stipulate to TIA in order to give the Department more time to investigate and follow-up on certain things. The Court asked counsel whether Mother was asserting that ICWA applied in this case and counsel responded, "Yes, Your Honor. [Mother is] not enrolled in the Crow Tribe but she's eligible for enrollment. So, again, I think that there's always a process when ICWA possibly applies, when the Department investigates and confers with the Tribe, and I think that step needs to be taken." After asking more questions of the Department, the Court concluded, "So the Department has not made efforts to determine whether or not ICWA applies at this point given that lack of communication, we haven't sent notices to the Tribe or Tribes at issue. That's a matter that would be resolved down the road if, in fact, the parents provided us with information or even an allegation that ICWA applies." Father's counsel stated that the children were potentially eligible for tribal enrollment based on Mother's ancestry and that the Tribe needed to be notified.

¶43 The court summarized the evidence presented at the proceeding and stated it had significant concerns about drug presence, drug use, and possible drug distribution in the family home. The court concluded the environment was unsafe and unhealthy for the children and that, at that point, there was no need to further investigate the situation but, instead, the court needed to act to protect the children and work with the parents to remedy the situation. The court adjudicated the children as YINC. It decided to not apply the ICWA standard at that time because there was no evidence that the children were enrolled or enrollable, noting that the only argument made at the show cause hearing was that Mother may be enrollable but was not enrolled. The court stated, "We're going to need more information to see the connection that the children have with the Tribe and whether or not the connection is of a sufficient degree that the Tribe actually tells us they are enrolled or enrollable." The court instructed that, if it granted TLC, "examination of the ICWA question is going to be a priority concern. There's been a suggestion that ICWA's applicable, and if, in fact, we actually have evidence of that, then we're probably going to have to reconvene .... At the present time, there's no evidence that that's the case with respect to these children."

¶44 The court then asked the Department if it wanted to proceed with a disposition hearing, the Department responded that it did, and neither parent requested the court continue the disposition pending ICWA's notice requirement. Instead, the parents asserted that TIA was more appropriate pending tribal notice. Burk testified again, stating that the Department would develop treatment plans and that, regarding the ICWA issue, she would send notifications to the Tribe that day. The court ultimately granted the Department TLC for six months and specifically found that dismissing the petition at that time would "create an unreasonable risk of continued abuse or neglect of the children." The court stated, "With respect to the ICWA issue, ... the parents are obligated under statute to talk with or to work with the Department, to provide information about the children's backgrounds .... This includes any information that would relate to the children's Indian heritage and their enrollment in or enrollability in a Native American Tribe." The court directed the parents to "specifically cooperate and provide to the Department information about what Tribe or Tribes are at issue, what the status of the children are as far as the parents' know, any contact information the parents may have with representatives of the Tribe or Tribes, and any other corollary information that will assist in that determination." The court concluded, "I do want those ICWA investigation ... efforts to be part of the Department's immediate exercise of temporary custody over the children." Following the hearing, the Department sent notice of the pending case to the Crow Tribe. The Tribe received the notice and, in March 2017, notified the Department that the children were not eligible for enrollment.

¶45 The Court concludes the District Court abused its discretion when it did not comply with ICWA's notice requirements before proceeding on from the show cause hearing. Opinion, ¶ 23. I agree with the Court that as soon as the parents made the District Court aware of the possibility that the children were Indian children, the court needed to ensure that the Department provided notice to the Tribe as required by § 1912(a). However, the court was within its discretion to order TLC in the interim-it found, based on substantial credible evidence, that returning the children to the parents would subject them to an unreasonable risk of continued abuse or neglect. ICWA cannot be construed as to prevent the court's authority on an emergency basis, and I believe the Court errs when it finds the District Court abused its discretion by ordering TLC at the show cause hearing. The District Court was not precluded from making decisions to ensure the children remained safe, even if the Tribe had not yet received notice. See 25 U.S.C. § 1922.

¶46 I am further troubled by the Court's unnecessary criticism of the Department's actions. First, the Court criticizes the Department for not giving enough consideration to whether there was reason to know the children were Indian children at the show cause hearing. Opinion, ¶¶ 20-21. Review of the show cause hearing transcript, however, demonstrates that both the Department and the District Court thoroughly considered whether ICWA applied in these proceedings. The District Court further emphasized that the Department's first priority needed to be an ICWA inquiry, and the Department assured the District Court that it would be. Second, the Court views the Department's actions as perpetuating an attitude that it had "no affirmative duty to make further inquiry or provide tribal notice and inquiry when parents are not cooperative." Opinion, ¶ 22. Review of the record however, does not support the Court's recitation of the facts-the Department expressed frustration with the parents' lack of cooperation but nonetheless affirmatively stated at the show cause hearing that it would send the Tribe notices that day, and it did so. Child abuse and neglect cases present sensitive, emotionally-charged, and complicated issues. This Court should not be unnecessarily critical of the Department's actions when the record demonstrates the Department's respect for and consideration of the applicable laws.

¶47 While identifying errors that I do not, the Court ultimately affirms the District Court on the basis that its errors were harmless. I accordingly agree with the Court's disposition and specially concur to voice my concerns as stated above.

      The children were the subjects of separately filed youth in need of care proceedings conducted in tandem in district court which are consolidated here on appeal.

      The Department was previously involved with this family on a voluntary basis in 2012-13 upon the parents' arrests for criminal possession and distribution of dangerous drugs (unauthorized prescription medication, methamphetamine, and marijuana).

      The matter came on for initial show cause hearing on December 7, 2016, which was reset to December 21st when Father failed to appear due to illness.

      See § 41-3-101, MCA (declaration of state policy).

      An emergency removal is the removal of a child from a parent or Indian custodian for temporary protective placement "to prevent imminent physical damage or harm to the child" pending initiation of ICWA-defined "child custody proceeding[s]." See 25 U.S.C. § 1922 ; State ex rel. Juvenile Dep't of Multnomah Cty. v. Charles , 70 Or.App. 10, 688 P.2d 1354, 1358 (1984) (express allowance by 25 U.S.C. § 1922 of emergency removals and placements of reservation-resident children located off-reservation implicitly allows similar emergency removal and placement of non-reservation-resident Indian children). See also 25 C.F.R. § 23.2 (defining "emergency proceeding"); § 41-3-301(1), MCA (emergency removals and placement pending hearing).

      See §§ 41-3-422(1)(a)(i), -427, -432, MCA.

      See §§ 41-3-422(1)(a)(ii), -432, -433, MCA.

      See §§ 41-3-422(1)(a)(iii), -432, -442, MCA.

      An emergency removal pursuant to § 41-3-301, MCA, is not an ICWA-defined "child custody proceeding" subject to ICWA's pre-hearing tribal notice and kinship placement requirements. See 25 U.S.C. §§ 1903(1), 1912, 1915, 1922 ; 25 C.F.R. § 23.2. Accord H.T. , ¶¶ 36-38.

      See also 25 C.F.R. § 23.105 (if unable to obtain "accurate contact information for a Tribe" or a Tribe "fails to respond," Department "should seek assistance in contacting the Indian Tribe from the [Bureau of Indian Affairs (BIA) ] local or regional office or the BIA's Central Office in Washington, DC (see www.bia.gov) [https://perma.cc/GYB2-E6UL]").
      If the identity or location of the child's parents, the child's Indian custodian, or the Tribes in which the Indian child is a member or eligible for membership cannot be ascertained, but there is reason to know the child is an Indian child, notice of the child-custody proceeding must be sent to the appropriate Bureau of Indian Affairs Regional Director (see www.bia.gov) [https://perma.cc/GYB2-E6UL]. To establish Tribal identity, as much information as is known regarding the child's direct lineal ancestors should be provided. The Bureau of Indian Affairs will not make a determination of Tribal membership but may, in some instances, be able to identify Tribes to contact.
      25 C.F.R. § 23.111(e). Effective November 5, 2018, "where the identity and location of the child's parent or Indian custodian or Tribe is known," the Department must send copies of the notices required by 25 U.S.C. § 1912(a) to the "Billings Regional Director, Bureau of Indian Affairs, 316 N. 26th Street, Billings, Montana 59101" except that "[n]otices to the Confederated Salish and Kootenai Tribes of the Flathead Reservation, Montana, must be sent to the Portland Regional Director at the address listed in" 25 C.F.R. § 23.11(b)(11). 25 C.F.R. § 23.11(a), (b)(5).

      Upon this inquiry, courts must further "instruct the parties to inform the court if they subsequently receive information that provides reason to know the child is an Indian child." 25 C.F.R. § 23.107(a).

      We previously noted that reference to the discrete phrase "reason to believe" in the since-superseded 2015 BIA Guidelines inexplicably differed from the phrase "reason to know" as referenced in 25 U.S.C. § 1912(a). In re J.J.C. , 2018 MT 317, ¶ 15 n.2, 394 Mont. 35, 432 P.3d 149. Without need to elaborate on the extent to which the phrases substantively differ, we clarified that our prior cases have used the phrase "reason to believe" interchangeably with the phrase "reason to know," as referenced in 25 U.S.C. § 1912(a) and 25 C.F.R. § 23.107, without intent to deviate from the statutory standard. J.J.C. , ¶ 15 n.2.

      See also 25 C.F.R. §§ 23.105, 23.11(a).