08/16/2016
DA 15-0513
IN THE SUPREME COURT OF THE STATE OF MONTANA
2016 MT 198N
IN THE MATTER OF:
B.J.T.H. and B.H.T.H.
Youths in Need of Care.
APPEAL FROM: District Court of the Third Judicial District,
In and For the County of Deer Lodge, Cause Nos. DN 11-03 and
DN 11-04
Honorable Ray Dayton, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Myshell Lyday, Lyday Law, PLLC, Missoula, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant
Attorney General, Helena, Montana
Karen P. Kane, Assistant Attorney General, Child Protection Unit,
Missoula, Montana
Submitted on Briefs: June 15, 2016
Decided: August 16, 2016
Filed:
__________________________________________
Clerk
Justice Laurie McKinnon 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 S.H.V.H. (Mother) appeals from an order entered by the Third Judicial District
Court, Deer Lodge County, denying her Motion to Set Aside Relinquishment Due to
Undue Influence.1 She argues that (1) the District Court erred when it failed to find
consent was obtained by duress and fraud, and (2) that she was denied the effective
assistance of counsel during the hearing on her motion. We affirm.
¶3 Mother is the birth mother of twins, B.H.T.H. and B.J.T.H., born in July of 2009.
On September 12, 2012, the District Court terminated Mother’s parental rights finding
that Mother had executed a knowing and voluntary relinquishment after receiving
counseling. Mother failed to appeal, but subsequently filed a request for an out-of-time
appeal. We granted her request and appointed counsel. In her first appeal, Mother raised
the following issues: (1) Did the District Court err in denying Mother’s request to
discharge her court-appointed counsel; (2) Did the District Court err in accepting
Mother’s relinquishment; and (3) Did the District Court err in denying Mother’s request
to modify the treatment plan and stay the termination hearing. We observed that
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On June 15, 2016, this Court entered an order consolidating, for purposes of appeal, In the
Matter of B.J.T.H., Cause No. 15-0513, and In the Matter of B.H.T.H., Cause No. 15-0514.
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“Mother . . . argues that the District Court erred in accepting her relinquishment because
her consent was obtained by duress and she was not offered the required three hours of
relinquishment counseling.” In re B.J.T.H., 2013 MT 366, ¶ 11, 373 Mont. 85, 314 P.3d
911 (hereinafter, B.J.T.H. I). Mother had not raised the issue of duress in the District
Court. This Court affirmed the judgment of the District Court terminating Mother’s
parental rights, B.J.T.H. I, ¶¶ 17, 22, but remanded for a determination to be made on the
single issue of whether Mother had received the required relinquishment counseling. We
did not specifically determine whether plain-error review was appropriate to allow review
of Mother’s remaining duress claims, if any.
¶4 Following remand, the District Court conducted a hearing on January 22, 2014, to
determine whether the counseling received by Mother satisfied the provisions of
§ 42-2-409(1), (2), MCA. Mother again did not raise any claims of duress. The District
Court determined that Mother had received the requisite counseling. Mother appealed,
arguing that the District Court’s decision was not supported by substantial evidence and
that the counselor had failed to produce a written report in compliance with the
provisions of § 42-2-409(4), MCA. We again affirmed the judgment of the District Court
terminating Mother’s parental rights, In re B.J.T.H., 2015 MT 6, 378 Mont. 14, 340 P.3d
557 (hereinafter B.J.T.H. II), concluding that all statutory requirements regarding
counseling had been satisfied.
¶5 On February 18, 2015, Mother filed a Motion to Set Aside Relinquishment Due to
Undue Influence arguing that, during a court recess at the September 5, 2012 termination
hearing, she was coerced into signing the relinquishment and fraudulent allegations were
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made to her by her family about future contact Mother would have with the children. At
a hearing on June 17, 2015, the District Court began by expressing its opinion that
Mother had multiple opportunities to raise the issue of undue influence by family
members. The District Court opined that Mother could have asserted such a claim at the
termination hearing; any time prior to the entry of the District Court’s initial judgment
terminating her parental rights pursuant; on her first appeal; in a petition for rehearing
before this Court; or in her second appeal. In an abundance of caution, however, and to
prevent further delay of permanency, the District Court received evidence pertaining to
Mother’s allegations of undue influence by family members. Following the hearing, the
District Court entered a comprehensive order stating its reasons why it did not accept
Mother’s fraud theory. Mother has now filed the instant appeal from the District Court’s
order—her third attempt to set aside the termination of her parental rights and prevent
adoption.
¶6 Regarding Mother’s allegation that family members induced her to relinquish the
twins because of fraudulent promises, we cannot ignore the chronology of these
proceedings and the delay in achieving permanency for the children. The events giving
rise to Mother’s claim arose on September 5, 2012, when Mother signed her affidavit of
relinquishment. Six days elapsed before the State’s petition to terminate was filed.
Another 128 days elapsed between the time the District Court entered its order
terminating parental rights and the entry of judgment. At no time did Mother make a
claim of duress based upon fraudulent allegations made to her by family members.
Mother’s claim of duress was for other reasons.
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¶7 Mother allowed the time period for filing an appeal to expire. This Court
nonetheless granted her an out-of-time appeal and appointed counsel. Mother did not
indicate in her motion that she had been coerced into signing the relinquishment affidavit
as a result of undue influence, but instead represented that she had made significant
changes in her life and was now fit to parent her children. In her first appeal, Mother’s
opening brief made a claim of duress based upon the alleged deficiencies in the affidavit
and was not based upon undue influence or fraud exerted upon her by family members.
On remand, Mother was represented by counsel and again did not raise allegations of
undue influence or fraud by family members. Mother also did not assert such a claim in
her second appeal before this Court.
¶8 We are indeed cognizant that § 42-2-417(1)(a), MCA, allows a court to set aside a
relinquishment based upon “clear and convincing evidence, before a decree of adoption
is issued, [on the basis that] the consent was obtained by fraud or duress . . . .” (Emphasis
added.) However, Mother has already raised an issue of duress and voluntariness of her
relinquishment, which this Court has considered and denied. Mother merely seeks today
to assert a different theory of duress and/or fraud. We will not allow such a piecemeal
splitting of issues, especially given that permanency of these children has been
undeniably withheld as a result of this prolonged litigation. We observe that the only
reason an adoption decree has not been entered for these children is because of Mother’s
several appeals.
¶9 Mother also asserts that she was denied the effective assistance of counsel during
the June 17, 2015 hearing, on her motion to set aside her relinquishment. To the extent
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we have already determined that Mother’s claims of duress were considered and denied
prior to the June 17, 2015 hearing, it is unnecessary to address the effectiveness of
counsel at the hearing on her motion. We observe, however, that Mother fails to cite any
deficient conduct by counsel during the hearing or advance a basis upon which we could
find she was prejudiced by counsel’s deficient conduct. In re C.M.C., 2009 MT 153,
¶ 31, 350 Mont. 391, 208 P.3d 809. Mother’s argument that counsel “would have been
able to testify (on a limited basis) to what was [sic] transpired during the unrecorded
meeting” and that it would “bolster” her testimony is based upon pure speculation.
Significantly, the District Court specifically found that the testimony of family members
was credible and that Mother’s was not. The District Court was correct to deny Mother’s
ineffective assistance of counsel claim.
¶10 The children were removed from Mother two years after birth, and now nearly five
years later, B.J.T.H. and B.H.T.H. still have not achieved permanency. Mother cannot
assert a claim of duress in a split and piecemeal manner as she attempts to do. We do not
favor such manner of litigation “as it creates a needless waste of judicial resources.
Moreover, in the context of the welfare of the child involved, it is clearly not in [the
child’s] best interest to prolong this litigation.” In re B.G.B., 183 Mont. 347, 352, 599
P.2d 375, 378 (1979).
¶11 We have determined to decide this case pursuant to Section I, Paragraph 3(c) 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.
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¶12 Affirmed.
/S/ LAURIE McKINNON
We Concur:
/S/ MICHAEL E WHEAT
/S/ BETH BAKER
/S/ JAMES JEREMIAH SHEA
/S/ JIM RICE
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