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In re A.A.G.G.

Supreme Court of Montana

June 25, 2019

IN THE MATTER OF: A.A.G.G., A Youth in Need of Care.

          Submitted on Briefs: May 1, 2019

          APPEAL FROM: District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause No. DN 17-014(A) Honorable Amy Eddy, Presiding Judge

          For Appellant: Tracy Labin Rhodes, Attorney at Law, Missoula, Montana

          For Appellee: Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana Travis R. Ahner, Flathead County Attorney, Kalispell, Montana


          Dirk M. Sandefur, Justice

         ¶l Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, we decided this case by memorandum opinion which shall not be cited and does not serve as precedent. The title, cause number, and disposition of this case shall be included in our quarterly list of noncitable cases published in the Pacific and Montana Reporters.

         ¶2 S.A.G. (Father) appeals from the order of the Eleventh Judicial District Court, Flathead County, terminating his parental rights to his minor child A.A.G.G. We affirm.

         ¶3 Father and D.D.V.G. (Mother) are the natural birth parents of A.A.G.G., a minor born December 16, 2012.[1] Father last saw A.A.G.G. in 2013 when the child was eight months old. Father has had no relationship with A.A.G.G.--he does not know Father.

         ¶4 On January 21, 2016, Father pled guilty to Criminal Manufacture of Dangerous Drugs based on his admitted possession of 40 marijuana plants. Father subsequently received a five-year probationary sentence (deferred five-year commitment to the Montana Department of Corrections (DOC)).

         ¶5 On February 2, 2017, the Child and Family Services Division of the Montana Department of Public Health and Human Services (State) removed A.A.G.G. from Mother's custody based on actual or imminent risk of physical neglect resulting from Mother's illegal drug use and the child's exposure to domestic violence involving Mother and her boyfriend. Upon the State's subsequent petition and pursuant to §§ 41-3-427, -432, -437, -438, and -443, MCA, the District Court adjudicated A.A.G.G. as a youth in need of care, granted the State temporary legal custody (TLC), and imposed preservation-oriented treatment plans on Mother and Father. Father stipulated to the adjudication, grant of TLC, and imposition of his treatment plan.

         ¶6 In early June 2017, while this matter was pending prior to adjudication, Father was arrested on alleged probation violations (methamphetamine use, new offenses, et al.) in his criminal case. Following service of process in jail on June 5, 2017, Father appeared at the subsequent show cause hearing in custody, with counsel, and stipulated to adjudication of A.A.G.G. as a youth in need of care. On June 27, 2017, the District Court[2] released Father on bail pending a revocation hearing conditioned upon his compliance with the State's proposed treatment plan in this matter[3] and abstaining from further use of methamphetamine or other illegal drug.

         ¶7 On July 14, 2017, while out on bail, Father signed the State's proposed treatment plan. Father's counsel also co-signed the plan. After Father failed to appear for his scheduled criminal revocation hearing, the District Court issued a warrant for his arrest. Following his apprehension, Father appeared in custody for his criminal case revocation hearing on August 24, 2017. At the close of hearing, the District Court adjudicated the probation violation allegations as true, revoked Father's previously imposed sentence, and resentenced him to serve an unsuspended five-year term of commitment to DOC for placement in an appropriate correctional facility or program. The court recommended that DOC place him in the Connections Corrections program.[4] At a subsequent hearing in this matter on September 8, 2017, the District Court approved and imposed Father's previously stipulated treatment plan without objection or exception.

         ¶8 As recommended by the District Court, DOC placed Father in Connections Corrections, but he did not complete the program as contemplated. On October 29, 2017, Father absconded from custody at Connections Corrections. Upon his subsequent apprehension, DOC placed Father in a high security unit at the Montana State Prison (MSP) with only limited availability of an otherwise wide array of inmate services and programming. In 2018, following two extensions of the original six-month grant of TLC, the State petitioned for termination of both parents' parental rights pursuant to § 41-3-609(1)(f), MCA (treatment plan failure or non-compliance). Upon duly served prior notice, the petition came on for hearing on September 17, 2018.

         ¶9 Based on prior arrangement, Father appeared at the termination hearing through counsel and personally via telephone from MSP.[5] At the outset of hearing, without assertion of any justification for not sooner seeking relief, Father moved for a continuance for additional time to seek a transport order allowing him to personally appear and participate in the termination hearing. With reference to ...

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