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In re B.H.

Supreme Court of Montana

January 14, 2020

IN THE MATTER OF: B.H. and G.H. Youths in Need of Care.

          Submitted on Briefs: November 13, 2019

          District Court of the Fourth Judicial District, In and For the County of Missoula, Cause Nos. DN 17-1 and DN 17-2 Honorable Robert L. Deschamps, III, Presiding Judge

          For Appellant: Daniel V. Biddulph, Ferguson Law Office, PLLC, Missoula, Montana

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

          Kirsten H. Pabst, Missoula County Attorney, Jessica Finley, Deputy County


          Ingrid Gustafson, Justice.

         ¶1 B.H. (Father) appeals from the termination of his parental rights issued April 23, 2019, by the Fourth Judicial District Court, Missoula County. We reverse and remand for the Department to consider Father as the first placement option for B.H. and G.H. (Children) consistent with statute, 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.


         ¶3 On January 4, 2017, the Montana Department of Health and Human Services, Child and Family Services Division (Department), filed a petition for each child, titled Petition for Emergency Protective Services, Adjudication as a Youth in Need of Care and Temporary Legal Custody after it removed Children from Mother's care, asserting Mother subjected Children to circumstances of abuse or neglect including the possession, consumption, and distribution of methamphetamine around the Children. Immediately after removal, the Department placed Children, along with a half-sibling who was also removed from Mother's care, with their maternal grandparents. The Department also alleged a history of Mother's involvement with child protective services dating back to 2014.

         ¶4 There were no allegations of abuse or neglect by Father who had been Children's primary parent most of their lives. Father was living in North Dakota and not involved in a relationship with Mother. At the time the Department removed Children from Mother, she had taken them from Father for a two-week visit but had refused to return them to Father's care. Father testified at the termination hearing that prior to the Department's intervention, Children lived with him and he was their primary care provider. When Children were in his care, he recognized they had high needs and had enrolled Children in services with Healthy Steps. In 2016, Mother checked into Mountain Home, a residential treatment center for individuals with children. He had been talking with Mother and she was getting sober and wanted to see Children. They agreed to a two-week visit where Children could stay with Mother at Mountain Home. While on his way to retrieve Children from Mother, she texted him he could not have them back and she would call the police if he came. Despite her refusal to return Children to him, Father stayed in regular contact with Mother and Children while Mother pursued sobriety at Mountain Home. When the Department intervened, Mother texted him requesting he help her get Children back.

         ¶5 The court set an intervention conference, which Father attended on January 23, 2017, which was followed by a show cause and adjudication hearing on January 24, 2017. Father indicated to the standing master at the intervention conference his desire to have Children in his care.[1] At the January 24th hearing, the State reported both Mother and Father stipulated to its petitions[2] and asked to set a dispositional hearing. There was no discussion of Children's current placement status or Father's desire for immediate custody of Children. Despite Father's desire to have Children in his care, his counsel did not object to the placement with the maternal grandparents and did not request the court set a placement hearing to settle the dispute over placement.

         ¶6 Father then appeared at the dispositional hearing on February 14, 2017. At that hearing, the Department related the children were under the age of four and had a substantial relationship with Father and that, since the intervention conference, the Department had received "some documents from North Dakota that does [sic] present some concerns . . . or there might be more concerns" but did not elaborate as to any specific concerns the Department had with regard to Father. The Department also proclaimed as Father resided in North Dakota an ICPC was required to place Children with him. The Department also informed the court it was not going to develop a treatment plan for Father until the ICPC was completed. Father's counsel did not object to the ICPC or request a placement hearing, but rather expressed concern that without a treatment plan in place for Father, he could not be working on potential tasks during the ICPC. Counsel also advised the court that Father had custody of Children for the majority of their lives and the Department's concerns were based on unsubstantiated reports previously investigated in North Dakota. The Department then indicated that if its non-specific concerns were alleviated after the ICPC and Children could be safely placed with Father, there would be no further need for a dependent neglect (DN) case to be open on Children, and presumably no need for any treatment plan for Father. Father's counsel did not advise the court of applicable statutes and Department policy mandating Father be considered as the first placement option. The court advised Father it did not expect him to appear in-person at every court proceeding because of the travel distance and advised Father to remain sober, stay employed, and have housing-which he was already doing. Thereafter, the Department requested an expedited ICPC.

         ¶7 At status hearing on March 21, 2017, the Department reported it was still waiting on the ICPC to be completed "before seeing if there's any identified concerns" regarding Father. Father's counsel again made no objection to the ICPC, did not request a placement hearing, and did not provide the Department any additional information to assist it in assessing Father, the non-offending parent, as a safe and appropriate placement. Similarly, at the status hearing on April 11, 2017, the Department again related the ICPC was not completed relating to the court "they're just finishing the process" and, upon the court asking if there was something Father needed to do to complete it, the Department assured the court there was not. Again, Father's counsel made no objection to the ICPC, did not request a placement hearing, and did not provide the Department any additional information to assist in assessing Father as a safe and appropriate placement.

         ¶8 At the May 30, 2017 status hearing the Department reported that the ICPC was not completed. Despite the Department's representations that an ICPC was necessary to assure Father was safe and appropriate before Children could be in his care, the Department also reported Children were currently in North Dakota for a week-long visit with Father, relating "from what I hear, that's going well." Again, Father's counsel failed to object to the ICPC, failed to request a placement hearing, and failed to point out the Department's incongruous position that permitted Father care of Children for an extended visitation but denied him immediate placement of Children in his care.

         ¶9 On July 11, 2017, the court held a status and extension of TLC hearing. At this hearing, Father's counsel acquiesced to extension of TLC by not responding when the court asked if it was correct that all parties stipulated to extension of TLC. The Department additionally advised that although it had provided Father some financial assistance to accomplish prior visits with Children, it was discontinuing this assistance such that he would have to find his own resources to accomplish visitation with Children. Father's counsel did not object to this discontinuation of visitation assistance nor did she pose any objection to the ICPC. Again, she did not request a placement hearing or provide any other advocacy for placement of Children with Father.

         ¶10 At the status hearing on September 12, 2017, Father's counsel advised the court, although she had not spoken to Father about the issue, the ICPC process had to be started over as Father did not submit fingerprints in time. Following this representation, the court commented, "Well, it sounds like both of these parents are kind of irresponsible, you know, and helter skelter, and not very - not very well-organized. And, you know, that doesn't bode well. If a guy can't even keep a schedule to go down and get fingerprinted, I don't see how he's possibly going to take care of two kids." Rather than advising the court Father had a consistent work history, a long-term stable residence, his long-term girlfriend's two children currently resided in his home with no apparent safety concerns, and he had successfully parented Children over an extended visitation, Father's counsel did nothing to correct the court's impression of Father's inadequacy. Again, Father's counsel did not object to the ICPC, did not request a placement hearing, and did not otherwise advocate for placement of Children with Father.

         ¶11 At the November 7, 2017 status hearing, nearly a year after the commencement of the case, the District Court noted a motion to approve a treatment plan for Father had just been filed. To this point, the State had still not alleged any abuse or neglect on Father's part nor identified any documented evidence to indicate that Children should not be placed with Father because of safety concerns. The State then reported a treatment plan had not been previously offered as the Department was using the ICPC to investigate Father as a possible safe placement, but was now requesting a treatment plan as the ICPC had been canceled.[3] Father's counsel again did not object to the ICPC and acquiesced to considering a treatment plan for Father and another status hearing was set for December 5, 2017. At the December 5, 2017 status hearing-which the District Court thought was a dispositional hearing-rather than object to the need for a treatment plan or request a placement hearing, Father's counsel related she would be meeting with Father's caseworker later in the day to try to address issues with the proposed treatment plan and the court set a hearing on the treatment plan for December 12, 2017.

         ¶12 At hearing on December 12, 2017, rather than object to the need for a treatment plan, Father's counsel indicated Father agreed to the treatment plan-which required he cooperate with and complete the ICPC process; maintain contact with Children; complete a chemical dependency evaluation; and complete parenting classes. Nearly twelve months into the case and still without indication of particular safety or parenting deficiencies on Father's part, a treatment plan was ordered for Father.

         ¶13 At the permanency hearing on January 23, 2018, Father's counsel advised the court as to the miscommunication regarding Father's fingerprints, which Father believed had been appropriately submitted to North Dakota, and that Father had already completed a chemical dependency evaluation.[4] Father's counsel noted that prior to removal Father was an active participant in the lives of and the primary caregiver for Children. Rather than object to the need for an ICPC, Father's counsel indicated another ICPC would need to be done in order to return Children to Father. The Department reported Mother had just been released from jail after pleading guilty to a felony in Minnesota.[5] The District Court commented, "It sounds like [Mother's] making some progress. She's probably the most hopeful of the bunch here, it sounds like." Again, Father's counsel did not refute this perception and failed to provide the court information as to Father's situation. The court approved the permanency plan of reunification with Mother or Father with the alternative of adoption by the maternal grandmother. The court extended TLC for an additional six months.

         ¶14 On February 20, 2018, the Department renewed its request for North Dakota to conduct an ICPC. At the March 13, 2018 status hearing, the Department related there were miscommunication errors which led to the prior ICPC not being completed and the District Court suggested perhaps Father could take all three children, rather than just his two Children, expressing it would be nice to keep all the children together.

         ¶15 Donal Anderson, North Dakota's ICPC worker, contacted Father on March 20, 2018. Father and his significant other again completed fingerprinting in April 2018. On May 14, 2018, North Dakota Child and Family Services (CFS) mailed Father the kinship care study paperwork, which Father completed and returned by May 17, 2018.

         ¶16 In late May 2018, Father picked Children up for an extended visitation and took them to his home in North Dakota where they stayed with Father for approximately three weeks. During this time, North Dakota CFS had evaluated Father's home and found his home appropriate and suitable for children. North Dakota CFS requested Father provide it proof of his chemical dependency evaluation, [6] vaccinations of his dogs, and completion of parenting classes. As Father testified at the termination hearing, during this time he was working, caring for Children on their extended visitation, and waiting for his paycheck so he could complete the final dog vaccination when North Dakota CFS closed the ICPC for Father's failure to provide this documentation. The Department admitted by the time Children went to North Dakota for a three-week visit with Father the North Dakota home study was complete, his home was safe and suitable for Children, there were no drug or alcohol concerns, Father's criminal background was for a remote DUI before Children were born, and there were no safety concerns. Despite this, the Department seemed to fault Father for caring for Children, rather than having his parents, who the Child Protection Specialist (CPS) believed to be safe, care for Children during the extended visit.[7]

         ¶17 At status hearing May 29, 2018, Children's attorney expressed concern that if Children were reunified with Father, there needed to be a plan for the maternal grandparents-who had been Children's placement throughout the case-to keep contact with Children. Despite Children being on an extended visitation with Father and no identified safety concerns, it was related to the court that maternal grandmother was not open to a guardianship as it was not as permanent as adoption and the court then expressed, "you know, my inclination is to proceed with permanent placement with the grandmother." Father's counsel again failed to object to the ICPC, failed to request a placement hearing, and failed to advocate for reunification of Children with Father.

         ¶18 In early July 2018, Father suffered a significant work-related injury, requiring hospitalization and precluding him from returning to work for four months. At the status hearing on July 24, 2018, the Department reiterated North Dakota CFS had closed the ICPC and, as such, advised it would be seeking termination of Father's parental rights. At this point, Father, rather than his counsel, expressed objection, as the non-offending parent, to having to complete an ICPC.

THE FATHER: Okay, I am so confused about all this. Like, I -- I have - I seen worst parents than me. And I have done nothing wrong in this situation, to lose my kids. The mother (audio cutting out) I did. So how is it that I'm getting terminated because of this?
THE COURT: Well, apparently --
THE FATHER: And I have -- I have no prior things with kids or got in any trouble. There's worst parents out there that get their kids back. I don't get this crap.
THE COURT: Well, this "crap" is, you got to participate.
THE FATHER: I have been participating the whole time.
THE COURT: According to North Dakota, you're not. I - they're there and you're there; I'm not. I'm just -- all I can tell you is what they report. So you can talk to your attorney. Maybe she can give you more information than that. But that's the reason we're where we're at.
THE FATHER: Okay. So I'm going to get my kids taken because of --
because I have done nothing wrong?
THE COURT: Well, because you've done nothing, apparently, yes. But, the--
THE FATHER: I shouldn't -- I shouldn't even have to do an ICPC. I didn't do anything wrong to get them taken away from me.
THE COURT: Unfortunately, we have to follow the law.
. . .
THE FATHER: The law - there's nothing against me that should be against me. I didn't get my kids taken; the mother did.

         ¶19 At the termination hearing on January 28, 2019, CPS Jessica Sorenson, who was the Department case worker assigned to the case from March 2018 until August 2018, testified Father was defiant toward getting tasks completed and he did not understand why he had to do an ICPC when he had not done anything wrong and had parented his children the majority of their lives.

         ¶20 Despite an absence of allegations in the petitions for adjudication and TLC and no treatment needs identified by Father's chemical dependency evaluation, CPS Sorenson asserted Father potentially had drug or alcohol problems. This concern centered around prior reports to North Dakota CFS. These reports were investigated and all unsubstantiated. North Dakota CFS determined they did not rise to the level supporting Department intervention. The Department was in possession of the North Dakota CFS reports at the intervention conference at the outset of the case. Although Father had a remote DUI occurring before Children were born, the Department did not request Father drug test and did not have any positive drug or alcohol tests to suggest a current drug or alcohol problem. Further, prior to renewing the ICPC request Father had undergone a chemical dependency evaluation which did not identify Father to have any treatment needs.

         ¶21 CPS Sorenson faulted Father for not having lined up speech or other therapists for Children; but admitted on cross-examination that when Father had previously had Children in his care, he had been able to identify issues and obtain services. She also admitted Father was not given any information as to when Children would be in his care and he could not feasibly set up such services without this information.

         ¶22 Jill Patton, the CPS case worker who took over the case after CPS Sorenson left, testified her primary concern was that Father struggled to call Children weekly. She related Father had not shown effort to understand his children's needs. As an example, she related that she had heard that during his summer visit with Father in 2018, B.H. was upset about Father throwing him in the pool and that Father ignored B.H. being upset. On cross-examination though she admitted she had no contact with Father or with Father's mother about what actually occurred during the summer visit, that she was not on the case at that time, and that the Department had no communication with Father to determine what his reaction was.

         ¶23 At the termination hearing, Father testified he was currently employed at Siewert Farms and had been so for the past four months. This was his first job after he was off for about four months recovering from a broken back sustained in a work-related accident. Prior to that, he was steadily employed in the construction industry. He had lived in his current residence for the past six years and his girlfriend, Hannah, and her two children, aged seven and twelve, had resided with him the last four years. He related he and Hannah made several trips to Montana at the outset of the case but had to stop as the trips were too expensive. Father testified that shortly after B.H. was born in 2013, Mother left him for another guy and left B.H. in his care. Later, when G.H. was born, Mother cared for her for a short time before Mother disappeared leaving G.H. in his sole care. When Children were in his care, he arranged daycare, secured services to address Children's needs, and provided their primary care.[8] Father related that during the pendency of the case, Children had extended visits with him in which they hung out at the house and went to his mother's home, and he took them camping and fishing. He thought the visits went well and was never contacted about any concerns after the visits. On the way back to Montana from their summer 2018 visit, Children expressed they did not want to go back to their maternal grandmother. Finally, Father admitted he did not timely complete the first ICPC, and he had not been consistent with telephone calls to Children, explaining they were first going to be on Mondays but that did not work for him and the maternal grandmother, then they were going to be on Saturdays, but he started working on the weekends and got off too late to call. Maternal grandmother testified she does not like Father as a human being, did not contact him with any concerns about his visits, and faulted his girlfriend for having G.H. call her mom.

         ¶24 At the conclusion of the termination hearing, Mother's counsel argued that if the court did not terminate Father, it should not terminate Mother. The court then responded this was a reasonable request and related, "it's unfortunate that we didn't have this hearing about 18 months ago so that we could really see what they were up against and what they needed to do." Father's counsel did not make or even request to make closing argument to advocate placement of Children with Father. The District Court determined Father failed to complete his treatment plan and the conduct or condition rendering him unfit to parent was not likely to change within a reasonable period of time and terminated Father's parental rights. Although the District Court terminated Father's parental rights, it indicated the ...

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