March 17 2015
DA 14-0406
IN THE SUPREME COURT OF THE STATE OF MONTANA
2015 MT 88N
IN THE MATTER OF:
N.B., C.B. and A.B.,
Youths in Need of Care.
APPEAL FROM: District Court of the Ninth Judicial District,
In and For the County of Glacier, Cause Nos. DN 12-09, DN 12-10, DN 12-11
Honorable Robert G. Olson, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Meri Althauser, Montana Legal Justice, PLLC; Missoula, Montana
For Appellee:
Timothy Fox, Montana Attorney General, Katie F. Schulz, Assistant Attorney
General; Helena, Montana
Carolyn Berkram, Glacier County Attorney; Cut Bank, Montana
Submitted on Briefs: February 18, 2015
Decided: March 17, 2015
Filed:
__________________________________________
Clerk
Justice James Jeremiah Shea delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d), 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 Montana Reports.
¶2 D.B. (Father) appeals three orders of the Ninth Judicial District Court, Glacier
County, which terminated his parental rights to each of his three children: N.B., C.B., and
A.B. The three children were each adjudicated youths in need of care on March 7, 2013, and
on June 5, 2014, Father’s parental rights were terminated. We affirm.
¶3 Father is the birth father of N.B., born 2001; C.B., born 2002; and A.B., born 2008.
M.K. (Mother 1) is birth mother of N.B. and C.B., and S.P. (Mother 2) is birth mother of
A.B. Only Father’s parental rights are at issue in this appeal. As of June 2014, Mother 1 has
been working on a treatment plan in South Dakota while N.B. and C.B. live with relatives.
Mother 2 completed a treatment plan with the Department of Public Health and Human
Services (Department), and she has been successfully parenting A.B. since November 2012.
¶4 On August 30, 2012, the Department received a report from the Cut Bank Police
Department, expressing concern about the condition of Father’s home. Upon executing a
search warrant for the home, the police discovered dirty clothes, soiled mattresses, a strong
smell of urine, and what the police believed was a pipe used to smoke methamphetamine.
The Department began working with Father on a voluntary basis after the report was filed.
On September 6, 2012, two Child Protection Specialists (CPS) from the Department visited
the home, and although the home was still very dirty, they found no immediate threats to the
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children’s safety. On September 20, 2012, the Department received a report that the home
had no running water, and the children had to wear the same clothes for several days in a
row.
¶5 On September 28, 2012, Father was arrested on charges of theft by embezzlement,
and was found in possession of methamphetamine. After Father’s arrest, the Department
went to the home and found cat and dog feces on the floor and old food and trash covering
the beds and floors. On September 30, 2012, all three children were sent to live with
relatives. On October 2, 2012, Father was charged with felony embezzlement, felony
criminal possession of dangerous drugs, and felony failure to register as a sex offender. On
December 19, 2012, Father was charged with sexual assault and sexual intercourse without
consent.
¶6 On February 22, 2013, the Department petitioned for all three children to be
adjudicated as youths in need of care, citing the dangerous conditions of the home and
Father’s criminal activity. The petitions were granted on March 7, 2013. On December 6,
2013, the Department petitioned to terminate Father’s parental rights pursuant to
§ 41-3-609(1)(f), MCA, alleging that the children were adjudicated youths in need of care, a
treatment plan had been approved by the Court, and Father did not or could not comply with
the plan due to his incarceration for felony sexual intercourse with a minor. On February 12,
2014, Father was given five concurrent sentences totaling 100 years at Montana State Prison
(MSP), with 60 years suspended, for the crimes of embezzlement, failure to register as a sex
offender, sexual assault, sexual intercourse without consent, and sexual abuse of children.
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¶7 On March 19, 2014, the District Court conducted a termination hearing regarding
Father’s parental rights. At the hearing, the Court took judicial notice of Father’s criminal
convictions and sentence of 100 years at MSP with 60 years suspended. A CPS from the
Department testified at the hearing that a treatment plan was ordered for Father on March 6,
2013, and Father was offered services while he was incarcerated to complete his treatment
plan. However, the CPS also testified that Father’s first attorney did not want Father
receiving services pursuant to his treatment plan while Father was incarcerated. The District
Court entered written orders terminating Father’s parental rights on June 5, 2014. Father
appeals.
¶8 We review a district court’s decision to terminate an individual’s parental rights to
determine whether the lower court abused its discretion. Our review for abuse of discretion
is whether the trial court acted arbitrarily, without employment of conscientious judgment, or
exceeded the bounds of reason resulting in substantial injustice. In re T.S.B., 2008 MT 23,
¶ 17, 341 Mont. 204, 177 P.3d 429.
¶9 We review a district court’s findings of fact to determine whether those findings are
clearly erroneous. We review the court’s conclusions of law to determine whether the court
correctly interpreted and applied the law. In re Declaring A.N.W., 2006 MT 42, ¶ 28, 331
Mont. 208, 130 P.3d 619. “A parent’s right to care and custody of a child is a fundamental
liberty interest.” In re J.A.B., 1999 MT 173, ¶ 14, 295 Mont. 227, 983 P.2d 387. When
determining whether to terminate parental rights, a district court’s factual findings must be
made in accordance with § 41-3-609, MCA. In re S. T., 2008 MT 19, ¶ 8, 341 Mont. 176,
176 P.3d 1054.
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¶10 Father argues that his due process rights were violated because the District Court’s
written order conflicted with the oral pronouncement of the termination of his parental rights,
meaning Father did not have notice of the proper basis for his termination. At the hearing on
March 19, 2014, the District Court cited several reasons for the termination of Father’s
parental rights: Father’s long-term incarceration and conviction for a sex offense, (where the
Department and the District Court erroneously cited to § 41-3-609(1)(c), MCA), Father’s
failure to complete a treatment plan and the unlikelihood of his behavior changing in a
reasonable time under § 41-3-609(1)(f), MCA, and the presumption supporting termination
under § 41-3-604, MCA (termination is presumed in the best interest of the child if the child
has spent 15 of the last 22 months in foster care). However, Father argues that the District
Court used a different statute in its written order as the basis for the termination,
§ 41-3-609(4)(c), MCA (no treatment plan is required if “the parent is or will be incarcerated
for more than 1 year and reunification of the child with the parent is not in the best interests
of the child because of the child’s circumstances”). Father argues that none of the statutes
cited by the District Court were applicable to his situation, and therefore the District Court
did not properly terminate his parental rights.
¶11 The Department notes that we have upheld terminations of parental rights where a
parent is facing long-term incarceration, despite procedural irregularities, citing In re B.H.M.,
245 Mont. 179, 799 P.2d 1090 (1990), in which we held:
While it is unclear from the District Court’s findings whether it was
proceeding under § 41-3-609(1)(c)(i), MCA[,] requiring proof of an
unsuccessful treatment plan, or under § 41-3-609(4), MCA, not requiring any
plan at all, we conclude that there is sufficient evidence in the record to justify
the District Court’s decision to terminate.
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In re B.H.M., 245 Mont. at 186, 799 P.2d at 1094. The Department asserts that in this case,
Father was not required to have a treatment plan under § 41-4-609(4)(c), MCA, because of
his incarceration over one year.
¶12 We agree with the Father that the procedural irregularities in this case were significant
and that he was not given adequate notice of the statutory basis for the Department’s claims.
Under the facts of this case, however, we are compelled to conclude that the error was
harmless. The children were adjudicated youths in need of care, and the Department was not
required to provide Father with reunification services under § 41-3-423(2)(a), MCA, due to
his conviction for sexual abuse of children. A conviction for sexual abuse of children is
sufficient grounds for termination of parental rights pursuant to § 41-3-609(1)(d), MCA.
Therefore, the District Court did not abuse its discretion when it terminated Father’s parental
rights to N.B., C.B., and A.B.
¶13 Father also alleges ineffective assistance of counsel because counsel failed to object to
the appropriateness of Father’s treatment plan, and counsel refused to allow Father to receive
services to complete his treatment plan while Father was incarcerated at MSP. Under
§ 41-3-609(1)(f)(i), MCA, the District Court must consider if the parent failed to comply
with an “appropriate treatment plan,” which must consider “the unique circumstances of each
case.” In re D.B., 2007 MT 246, ¶ 32, 339 Mont. 240, 168 P.3d 691. Father argues that the
treatment plan suggested by the Department was not appropriate because it did not consider
his incarceration. Father argues that counsel’s failure to object to this treatment plan and
refusal to allow him services while incarcerated were ineffective assistance of counsel.
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¶14 A parent must be able to show prejudice to sustain a claim for ineffective assistance of
counsel in a termination of parental rights proceeding. In re A.S., 2004 MT 62, ¶ 31, 320
Mont. 268, 87 P.3d 408. Father has failed to demonstrate such prejudice. Father has not
challenged his conviction for felony sexual abuse of a child or the fact that he is serving a 40
year sentence at MSP. Irrespective of whether Father’s counsel objected to the treatment
plan or allowed Father access to services in prison, there were multiple bases for termination
of Father’s parental rights which are undisputed. Father’s claim of ineffective assistance of
counsel must fail.
¶15 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our
Internal Operating Rules, which provides for memorandum opinions. The issues in this case
are legal and are controlled by settled Montana law, which the District Court correctly
interpreted. Therefore, the issue of the termination of Father’s parental rights was one of
judicial discretion and there clearly was not an abuse of discretion. Affirmed.
/S/ JAMES JEREMIAH SHEA
We Concur:
/S/ MIKE McGRATH
/S/ PATRICIA COTTER
/S/ JIM RICE
/S/ BETH BAKER
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