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In re E.Y.R.

Supreme Court of Montana

August 13, 2019

IN THE MATTER OF: E.Y.R., A Youth in Need of Care.

          Submitted on Briefs: June 26, 2019

          District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause No. DN 17-003(d) Honorable Dan Wilson, Presiding Judge

          For Appellant: Meri K. Althauser, Forward Legal, PLLC, Missoula, Montana

          For Appellee: Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana

          Travis R. Ahner, Flathead County Attorney, Alex M. Neill, Deputy County Attorney, Kalispell, Montana

          OPINION

          Ingrid Gustafson, Justice.

         ¶1 M.R. (Father) appeals from the termination of his parental rights issued December 7, 2018, by the Eleventh Judicial District Court, Flathead County. We reverse and remand for the Department to conduct initial preliminary assessment of Father as the first placement option for E.Y.R. (Child) consistent with its policies and this opinion.

         ¶2 We restate the issue on appeal as follows:

Whether Father's due process rights were infringed by ineffective assistance of counsel resulting in his parental rights being inappropriately terminated.

         FACTUAL AND PROCEDURAL BACKGROUND

         ¶3 The Montana Department of Public Health and Human Services, Child and Family Services Division (Department), removed Child, along with Child's two half-siblings, in November 2016. They were removed from Mother's care for exposure to domestic violence between Mother and her boyfriend, unstable living conditions, and concerns of substance abuse by Mother. There were no allegations of abuse or neglect by Father. Father was living in California and uninvolved with Mother. Father learned of the Montana proceeding and Child's placement in foster care on December 23, 2016. Father was contacted and told Child was in foster care, but was not advised as to how to get her in his care. Father immediately went to the family court in California to obtain an order to return Child to his care.

         ¶4 The District Court in Montana held a show cause hearing on January 23, 2017, at which Father appeared telephonically and was represented by Ms. Travis, who sat in for Father's court-appointed counsel, Ms. Marvin. During this hearing, attorney Travis reported Father stipulated to temporary legal custody (TLC) and advised there was a pending family court action in the Superior Court of California, San Diego County, Case No. D531866, in which a January 18, 2017 court order recognized Mother was in violation of the court's prior parenting plan order and set hearing thereon in May 2017. Ms. Travis further represented "discussions with the Department, and I understand that an ICPC is beginning to be conducted to look at him as a placement for [Child] in California." Ms. Travis further indicated Father did not stipulate to any placement recommendation of the Department and that he was requesting to be the placement for Child. The Department advised all of the children were placed with maternal grandmother and step-grandfather and that it would continue that placement. The District Court then responded, "Very well. There appearing no objection it's so ordered as well. All right. Last call. Anything further from anyone." Ms. Travis, despite previously indicating Father sought to be the placement for Child, did not object to the placement with the maternal grandmother and step-grandfather, did not object or otherwise indicate there was no need for an ICPC to place Child with Father, and did not request the District Court set a placement hearing. Further, she did not advise the court of the provisions of § 40-6-221, MCA, which provide that father and mother are equally entitled to parent and if either is unable to exercise parenting, the other is entitled to parent the child. Counsel also did not advise the court of the Department's policy 304-1 which provides "the non-custodial parent is the first placement option for the child" when the child is removed from the home of the custodial parent. Child and Family Services Policy Manual, § 304-1 (DPHHS 2014), https://perma.cc/95CE-7DBY.

         ¶5 On February 24, 2017, the District Court held a hearing to approve a treatment plan for Mother. During this hearing, no mention was made as to Father. In May, Father appeared in family court in California to modify the parenting plan between Mother and him. At that time, the California court inquired as to the status of this matter in Montana. Father related that he was previously advised an ICPC was requested but had not occurred and he had not been contacted by anyone in California with regard to this.

         ¶6 Presumably in response to this proceeding, the judge in California contacted the department in California and learned no ICPC had been requested and that the Department in Montana had not yet contacted the department in California. In July 2017, Judge Braner, a Superior Court Judge in San Diego County working in the Family Law Department sent the District Court a letter. At the outset, Judge Braner asserted, "I believe that the Uniform Child Custody [Jurisdiction] Enforcement Act (UCCJEA), California, and more particularly this Court, has custody jurisdiction over [Child]."[1] The California court expressed concern that Father had been attempting to enforce the California parenting order in California. The California court also related Father's frustration with the Montana dependency action in that Father "maintains he has not seen his daughter in more than six months" and "he has essentially been kept in the dark regarding the Montana proceedings and that while he has been appointed a State Public Defender, that person has failed to apprise Father of anything in connection with the Montana proceedings."

         ¶7 In response to the communication from the California court, the District Court issued an Order to Show Cause and Notice of Hearing, setting hearing on August 9, 2017, and advising the parties to appear at that time to show cause as to whether Montana should seek continuing jurisdiction or whether the case should be dismissed and returned to California. Despite the District Court's show cause order advising as to the nature of the hearing, neither the Department's counsel, counsel for Mother, nor Ms. Marvin were prepared for meaningful discussion or legal analysis of the UCCJEA and they provided little, if any, accurate information regarding such. The Department asserted that UCCJEA consideration was not needed, arguing a Title 41 action trumps a parenting plan. The District Court correctly rejected this argument because a Title 41 action must still comply with the UCCJEA. Section 40-7-103, MCA. Father's counsel indicated she had no legal authority to cite but that Father felt the case should be in California. Commendably, the District Court attempted to work through the UCCJEA statutory scheme. It correctly noted Montana had temporary emergency jurisdiction and California was the home state pursuant to § 40-7-204, MCA, such that jurisdiction would need to continue in California unless counsel could point to an exception in the UCCJEA that permitted Montana to continue to exercise jurisdiction. The District Court then concluded Montana could maintain jurisdiction "if this Court were to determine that Montana should be deemed the more convenient forum for determining the custody of [Child]." Although the District Court asked counsel if she had any authority to suggest the court's reading of the statutory scheme was wrong, Father's counsel did not respond and failed to point out to the court that §§ 40-7-201(1)(b) and -203(1), MCA, require the home state of the child-here, California-to make the determination that the court of another state would be a more convenient forum.[2]

         ¶8 The District Court then requested the parties argue why Montana was the more convenient forum. For the first time in this case, Mother's attorney asserted Mother came to Montana due to a fear of Father. Father then interjected that he had been attempting to find and serve Mother with a parenting action ever since she left California. He reported Mother was absconding and not permitting him the parenting ordered by the California court. Father also volunteered he had discovered the Department's representation to the court eight months prior that it had made a request for an ICPC was inaccurate. Father explained he had been trying in California to obtain an order to return Child to California and through that process the California court contacted the California department to inquire about the status of the ICPC and learned no such request had been made. Other than expressing Father felt if the case was not retained in California he would lose all of his rights, counsel made no argument advocating Father's position.

         ¶9 The District Court then reviewed the statutory factors set forth in § 40-7-108, MCA, to determine which jurisdiction-Montana or California-was the most convenient forum. Ultimately, the District Court found Montana to be the more convenient forum as witnesses and Mother, who was working a treatment plan, resided in Montana. In its consideration of the statutory factors set forth in § 40-7-108, MCA, the District Court specifically considered whether placing Child under Montana's jurisdiction versus California's would place Child at risk for experiencing domestic violence and concluded, "I haven't heard any representation, offer of proof, or evidence today that would suggest that California is a place where there would likely be domestic violence." Further, in its response letter to Judge Braner, the District Court related, "I found no convincing evidence or record-based representation which suggests that [Child] would be subjected to a home life marked by domestic violence were she to reside in California." At this time, eight months into the cause and following the Department's Petition for First Extension of Temporary Legal Custody, the Department had made no allegations regarding Father and the District Court had specifically found no safety issues regarding the Child were she to reside in California. Despite this, and Father's repeated protestations that there were no allegations against him, Father's counsel did not further request hearing or any other action to accomplish placement of Child with Father.

         ¶10 Father appeared telephonically at the extension of TLC hearing on August 25, 2017. At that hearing, the Department advised California had rejected doing an ICPC regarding Father as Father was the non-custodial parent. The Department stated California would not do an ICPC unless Father had a treatment plan and then asserted the only available option was to give Father a treatment plan. Father related he did not believe he needed to complete a treatment plan as he had previously completed a 52-week domestic violence prevention program in conjunction with prior court proceedings between Mother and him in California and done everything else the court there had required of him. Father's counsel appeared to acquiesce in the imposition of a treatment plan for Father and did not dispute the Department's claim that there was no other option than to impose a treatment plan on Father. In light of this discussion, Father indicated he would be willing to consider a treatment plan. The Department reported it had not yet developed a treatment plan for Father.[3] Based on the hearing discussion, the District Court indicated it was inclined to grant extension of TLC and set a treatment plan hearing.

         ¶11 The treatment plan hearing was held November 3, 2017. Father and his counsel voiced objection to the allegation contained in the treatment plan-concern for Father's present ability to safely parent Child based on past drug use, criminal records, and domestic violence-to which the District Court responded its understanding of the allegation was "that Father's ability to provide an appropriate parenting situation and shelter for [Child] is in question." Father again disputed this. The Department then explained, "It's always difficult in these cases when a non-offending parent is living out of state" and iterated a treatment plan to be the only means of getting information regarding Father's housing, income, history, and criminal and child protective services backgrounds. After Father again indicated he did not understand why he was now being required to complete a treatment plan, as well as his concerns he had not been provided resources similar to Mother throughout the case and had not been provided visitation over the past eleven months, the District Court requested his counsel summarize her client's legal position. Father's counsel responded, "It's hard for me to tell, Your Honor, because I don't quite understand it."

         ¶12 The District Court then explained to Father he had heard his objection, "it's a matter of record, I've not been asked to make a ruling based on your objection," explained it was necessary to have a treatment plan to obtain an ICPC, and then asked Father if he would sign the treatment plan. Thereafter, Father relented and agreed to the proposed treatment plan. Throughout this proceeding, Father's counsel did not object to imposition of a treatment plan; did not advocate any other options or means by which the Department could obtain information about Father's history, income, or living environment; and did not object to any of the proposed tasks of the treatment plan or question their appropriateness.

         ¶13 On February 16, 2018, Father appeared telephonically at a status hearing. At that hearing, the District Court explained to Father that the Department had the impression he was not cooperating with it. Again, Father explained he did not understand the Department's case-Child was removed from Mother's care and the allegations of concern for Father's present ability to safely parent Child underlying the treatment plan were not correct and were never proven. Father further asserted he had previously completed a 52-week domestic violence prevention program which the Department then seemingly accepted as completion of the domestic violence counseling, but indicated Father still needed to complete a mental health evaluation. Father responded that Child Protection Specialist (CPS) Lindal had sent him an email stating he did not have to complete the mental health evaluation. Via telephone, CPS Lindal confirmed she had told Father he did not need to complete a mental health evaluation, but he should do domestic violence counseling. The Department's attorney then indicated the Department now also wanted Father to complete a mental health evaluation. Throughout the discussion at this hearing, Father's counsel did not object to re-imposition of tasks the Department conceded were completed or unnecessary and did not advocate on Father's behalf to specify any remaining treatment plan tasks.

         ¶14 Father again appeared telephonically at the hearing on the Department's petition for a second extension of TLC on March 9, 2018. At the outset of the hearing, in response to the District Court's inquiry as to Father's position, Father's counsel admitted she did not know his position. Thereafter, CPS Lindal testified Father had been employed since November 2016 and that he had safe and stable housing. She testified the Department had concerns of domestic violence and chemical dependency, but did not testify as to any recent or current behaviors evidencing these concerns, mentioning only that Father had a remote drug conviction and Mother had obtained a restraining order in 2011.[4] CPS Lindal also explained that California had not started an ICPC as Father had not yet finished his treatment plan. CPS Lindal admitted Father provided her documentation of completing the 52-week domestic violence prevention program with "as expected" mastery of the materials, but she indicated it was from 2012 or 2013 and there was a notation therein that he did not take responsibility for his actions.[5] CPS Lindal admitted, however, that the Department's concerns regarding domestic violence stemmed only from Mother's report as to when she lived with Father approximately six years previously.[6] Father's counsel did not follow up on California's reported demand that Father complete his treatment plan prior to initiating an ICPC, did not request the court issue an order for immediate completion of an ICPC before Father completed all treatment plan tasks, did not advocate any other options for obtaining the information which would be gathered through an ICPC, [7] and did not follow up with CPS Lindal to ascertain what efforts she made to determine what the domestic violence program provider meant when it indicated successful completion of the program despite the notation Father did not admit any "abusive/aggressive" behaviors in the past. At the end of the hearing, the District Court granted the extension of TLC.

         ¶15 On April 23, 2018, the District Court heard the Department's petition to terminate Mother's parental rights. Although Father did not appear, he was represented by newly-appointed counsel, Mr. Hinchy. At the conclusion of the hearing, the District Court terminated Mother's parental rights and the Department stated its intention for Child to remain with the grandparents on a long-term basis.

         ¶16 In June 2018, the Department requested the District Court adopt a permanency plan which provided for Child to be adopted by her maternal grandparents. Hearing on the permanency plan request was held July 13, 2018. Attorney Larson, filling in for Mr. Hinchy, represented Father. Prior to connecting with Father telephonically, it was disclosed that while Child was residing with her maternal grandmother, Child had been sexually assaulted by her half-brother who had now been removed from the residence.[8]Upon being connected telephonically to the hearing, Father again reiterated his belief that the Department had failed to substantiate any allegations of abuse or neglect against him. Father also outlined his considerable frustration in trying to work with the Department to complete treatment plan tasks. He asserted the Department failed to provide funding for services and sent him for services but when he arrived there was no referral for him to receive the services. He had also been sent to providers who were no longer at the location where he was directed to go. Father also asserted he had recently become aware of some type of incident detrimental to Child occurring while in the maternal grandmother's care but had been unable to get more information as to exactly what occurred. Father became so frustrated during this hearing that the District Court had to terminate his participation in the hearing.

         ¶17 Hearing on the Department's petition to terminate Father's parental rights was held November 7, 2018, where Father appeared telephonically and was represented by Hinchy. CPS Lindal testified the Department had concerns Father used methamphetamine and engaged in domestic violence. She claimed to have "numerous papers" indicating restraining orders and violations of such by Father. Contrarily, CPS Lindal was then forced to admit the only information she had about Father's purported domestic violence was what Mother had asserted in her restraining order request in 2011 and that she had made no independent investigation with regard to the veracity of Mother's assertions. Further, she admitted she did not undertake any follow-up with Father's prior domestic violence prevention counselor who certified Father's prior successful completion of a 52-week program with above expectation in taking "initiative, consistent presentation/progress in attitude, thought[, ] feeling, [and] behavior," but instead concluded from one sentence in his report that Father did not take responsibility, Father's completion was specious and he needed to re-do domestic violence prevention counseling. Father testified again that the restraining order event with Mother in 2011 did not involve violence, but rather he determined it best not to contest her request for a restraining order. He testified he violated the restraining order when he called Mother to check on her and Child when he believed Mother was using drugs and not providing stability for Child. He testified he then successfully completed the 52-week domestic violence counseling program, but did not admit to committing violence as he had not engaged in any violence against Mother. Throughout this case, the Department has not entered evidence of any domestic violence incident or specific concern arising regarding Father occurring after Father completed the 52-week domestic violence prevention program in May 2013.

         ¶18 With regard to Father's criminal history, CPS Lindal admitted a background check was not even requested until June 2018, and not received by the Department until July 2018. By the time the background check was requested, the Department had already indicated its permanency plan to be termination of Father's parental rights followed by adoption with the maternal grandparents. Father's background check and CPS history did not demonstrate recent or current dangerous criminal, domestic violence, or child protective history for Father. Rather, Father's criminal background check showed the remote felony drug conviction from 2000, a single restraining order violation in 2012, and a misdemeanor drug possession charge in 2016. Father again testified to the remote nature of the felony drug offense, and that he had completed a prison sentence and discharged probation prior to Child's birth. He further testified he received a misdemeanor drug charge in early 2016 which he did not contest because a passenger in his car had a small amount of an unknown drug in his car. He testified this was resolved by his attendance at some NA classes.

         ¶19 CPS Lindal also asserted Father did not show a desire to care for Child as he had not seen Child for some months before her removal from Mother, but did not elaborate as to any investigation she did to determine why this may have occurred. Father testified he had been repeatedly attempting to obtain his parenting time with Child through the California court system, but Mother had failed to comply with the California parenting orders, refusing to bring Child to California and keeping her whereabouts in Montana unknown to him.[9]

         ¶20 At the conclusion of the termination hearing, the District Court terminated Father's parental rights, finding Father had stipulated to a treatment plan and therefore accepted the allegations contained therein and waived any further right to contest them. The District Court then found Father failed to complete the treatment plan and his excuses for not completing the treatment plan tasks were not credible and further concluded that because of Father's continued insistence that the court lacked jurisdiction, his non-compliance was more willful than circumstantial. Based primarily on the misdemeanor offense from 2016, the District Court concluded Father's behaviors were unlikely to change within a reasonable time. Father appeals.

         STANDARD OF REVIEW

         ¶21 This Court reviews a district court's decision to terminate parental rights for an abuse of discretion. In re K.A., 2016 MT 27, ¶ 19, 382 Mont. 165, 365 P.3d 478. The Department has the burden of proving by clear and convincing evidence that the statutory criteria for termination have been satisfied. In the context of parental rights cases, clear and convincing evidence is the requirement that a preponderance of the evidence be definite, clear, and convincing. In re K.L., 2014 MT 28, ¶ 14, 373 Mont. 421, 318 P.3d 691. This Court reviews a district court's findings of fact for clear error and conclusions of law for correctness. In re M.V.R., 2016 MT 309, ¶ 23, 385 Mont. 448, 384 P.3d 1058. A finding of fact is clearly erroneous if it is not supported by substantial evidence, if the court misapprehended the effect of the evidence, or if review of the record convinces this Court a mistake was made. In re E.Z.C., 2013 MT 123, ¶ 19, 370 Mont. 116, 300 P.3d 1174. "To reverse a district court's evidentiary ruling for an abuse of discretion, this Court must determine the district court either acted arbitrarily without employment of conscientious judgment or exceeded the bounds of reason resulting in substantial injustice." In re I.M., 2018 MT 61, ¶ 13, 391 Mont. 42, 414 P.3d 797 (citation omitted).

         ¶22 "[P]arents have a due process right to effective assistance of counsel in termination proceedings." In re A.S., 2004 MT 62, ¶ 20, 320 Mont. 268, 87 P.3d 408. Whether assistance was effective requires review of counsel's training, experience, and advocacy. IAC requires reversal only if the parent suffered prejudice. In re B.M., 2010 MT 114, ¶ 22, 356 Mont. 327, 233 P.3d 338 (citation omitted). Effectiveness is evaluated by the non-exclusive factors of training and experience and advocacy. In re A.S., ¶ 26. Effective advocacy requires investigating the case, researching and understanding the law, meeting with the client, and assiduously advocating for the client. In re A.S., ¶ 28.

         DISCUSSION

         ¶23 Whether Father's due process rights were infringed by ineffective assistance of counsel resulting in his parental rights being inappropriately terminated.

         ¶24 Father asserts he received ineffective assistance of counsel when his court-appointed counsel, Ms. Marvin, failed to assiduously advocate for him throughout the entirety of her representation.[10] Father asserts he "was a non-offending parent with no credible or recent allegations that he was unable to parent [Child]," that California was the proper place for jurisdiction as the family court in California had already entered a parenting plan, and that he was "qualified to have this matter dismissed in favor of custody to him under Title 41, the ICPC, and the UCCJEA." Father asserts his counsel failed to recognize or advocate for placement with him and dismissal and instead "acquiesced in the Department's incorrect assertion that Father was required to have a treatment plan."

         ¶25 The Department contends Father cannot establish how his counsel failed to advocate for him by not advocating for placement of Child with Father outside the demands of an ICPC as the District Court was presented with sufficient reasons to agree with the Department that Father's capacity to safely parent should be evaluated. Further, the Department asserts that even if Father can establish ineffective assistance of counsel for counsel's failure to pursue placement with Father and dismissal of the case, he cannot establish how the outcome would have been different as the District Court was advised of Father's wishes to have Child placed with him at the show cause hearing.

         Legal Framework

         ¶26 In termination proceedings, § 41-3-609(1)(f), MCA, protects a parent's fundamental right to the care and custody of a child. In re D.B., 2007 MT 246, ¶ 17, 339 Mont. 240, 168 P.3d 691. A district court may only terminate the parent-child relationship of an adjudicated YINC if it finds "by clear and convincing evidence that: (1) an appropriate court-approved treatment plan was not complied with by the parents or was not successful; and that (2) the conduct or condition of the parents rendering them unfit was unlikely to ...


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