IN THE MATTER OF: K.A.P. and A.R.P., Youths in Need of Care.
Submitted on Briefs: June 14, 2017
FROM: District Court of the Eleventh Judicial District, In
and For the County of Flathead, Cause Nos. DN 15-097A and DN
15-099A Honorable Amy Eddy, Presiding Judge
Appellant: Shannon Hathaway, Montana Legal Justice, PLLC,
Appellee: Timothy C. Fox, Montana Attorney General, Katie F.
Schulz, Assistant Attorney General, Helena, Montana Edward J.
Corrigan, Flathead County Attorney, Anne Lawrence, Deputy
County Attorney, Kalispell, Montana.
M. Sandefur Justice.
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
Internal Operating Rules, this case is decided by memorandum
opinion and shall not be cited and does not serve as
precedent. Its case title, cause number, and disposition
shall be included in this Court's quarterly list of
noncitable cases published in the Pacific Reporter and
M.P., the birth father of K.A.P. and A.R.P., appeals from the
Montana Eleventh Judicial District Court's order
terminating his parental rights. M.P. asserts that the
District Court's refusal to grant a continuance on the
eve of the termination hearing violated his right to due
process and deprived him of the fundamental right to parent
At the time of the hearing, M.P. was incarcerated following
his May 2016 arrest for assaulting the birth mother of K.A.P.
and A.R.P. He was sentenced to the Montana State Prison (MSP)
for three years on June 16, 2016. The Department of Public
Health and Human Services (DPHHS) first notified M.P. of its
intent to file a petition to terminate his parental rights on
July 22, 2016, but it did not actually file the petition
until August 15, 2016. M.P. was served on August 18, 2016.
Upon DPHHS's motion, the District Court continued the
termination hearing to September 16, 2016. The day before the
hearing, M.P.'s counsel filed a last-minute motion for a
continuance on the asserted ground that she had not yet
discussed the hearing with M.P. The motion explained that
counsel was unable to reach him despite multiple attempts to
contact him through the Department of Corrections staff at
his DOC Boot Camp placement.
The District Court took up the motion at the beginning of the
scheduled hearing. In response to questions from the District
Court, M.P.'s attorney verified that she had not
communicated with M.P. since his transfer from the county
detention center to MSP. The Montana DPHHS child protection
specialist assigned to administer the youth in need of care
case testified at the hearing that she could not verify
counsel's claim that M.P. was placed in the Boot Camp
program. The record contains no explanation of why
participation in Boot Camp would render M.P. unable to
respond to counsel's asserted contact attempts or why
counsel could not sooner have sought relief from the court
upon reasonable diligence.
The right to parent is a fundamental liberty interest
protected by federal and Montana constitutional rights to due
process. In re L.V.-B., 2014 MT 13, ¶ 15, 373
Mont. 344, 317 P.3d 191 (citing U.S. Const. amend. XIV;
Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct.
2054, 2061 (2000)). In a proceeding to terminate parental
rights, the State must provide the parent whose rights are at
stake with reasonable notice and opportunity to be heard.
L.V.-B., ¶ 15. We review a district court's
decision on whether to grant a continuance in an abuse and
neglect action for an abuse of discretion. In re
H.E., 2002 MT 257, ¶ 25, 312 Mont. 182, 59 P.3d 29
(citing In re R.F., 2001 MT 199, ¶ 24, 306
Mont. 270, 32 P.3d 1257). The court must "consider
whether the movant has shown good cause and whether the
continuance would be in the furtherance of justice."
H.E., ¶ 25 (citing R.F., ¶ 24);
accord § 25-4-503, MCA.
On appeal, M.P. does not fault the pre-hearing notice
provided to him by the State in advance of the termination
hearing, but asserts the District Court deprived him of due
process by declining to postpone the hearing. To justify the
requested continuance, M.P. had to show good cause why he was
unable to attend despite the sufficient advance notice
afforded. See § 25-4-503, MCA. Through counsel
who asserted that she had no contact with him, M.P. premised
his showing of good cause on two asserted facts: first, that
he was actually participating in the Boot Camp program, and
second, that he was completely incommunicado in that
placement. Even if the District Court accepted counsel's
assertion as sufficient proof of the first fact, nothing in
the record supports the second. M.P. failed to show good
cause for the requested continuance. The District Court did
not abuse its discretion in denying M.P.'s last-minute
motion to continue the termination hearing. We affirm.
We have determined to decide this case pursuant to Section I,
Paragraph 3(c) of our Internal Operating Rules, which
provides for memorandum opinions. In the opinion of the
Court, the case presents a question controlled by settled ...