07/11/2017
DA 16-0765
IN THE SUPREME COURT OF THE STATE OF MONTANA
2017 MT 173N
IN THE MATTER OF:
K.A.P. and A.R.P.,
Youths in Need of Care.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and For the County of Flathead, Cause Nos. DN 15-097A and DN 15-099A
Honorable Amy Eddy, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Shannon Hathaway, Montana Legal Justice, PLLC, Missoula, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant
Attorney General, Helena, Montana
Edward J. Corrigan, Flathead County Attorney, Anne Lawrence, Deputy
County Attorney, Kalispell, Montana
Submitted on Briefs: June 14, 2017
Decided: July 11, 2017
Filed:
__________________________________________
Clerk
Justice Dirk M. Sandefur delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), 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 M.P., the birth father of K.A.P. and A.R.P., appeals from the Montana Eleventh
Judicial District Court’s order terminating his parental rights. M.P. asserts that the District
Court’s refusal to grant a continuance on the eve of the termination hearing violated his
right to due process and deprived him of the fundamental right to parent his children.
¶3 At the time of the hearing, M.P. was incarcerated following his May 2016 arrest for
assaulting the birth mother of K.A.P. and A.R.P. He was sentenced to the Montana State
Prison (MSP) for three years on June 16, 2016. The Department of Public Health and
Human Services (DPHHS) first notified M.P. of its intent to file a petition to terminate his
parental rights on July 22, 2016, but it did not actually file the petition until August 15,
2016. M.P. was served on August 18, 2016. Upon DPHHS’s motion, the District Court
continued the termination hearing to September 16, 2016. The day before the hearing,
M.P.’s counsel filed a last-minute motion for a continuance on the asserted ground that she
had not yet discussed the hearing with M.P. The motion explained that counsel was unable
to reach him despite multiple attempts to contact him through the Department of
Corrections staff at his DOC Boot Camp placement.
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¶4 The District Court took up the motion at the beginning of the scheduled hearing. In
response to questions from the District Court, M.P.’s attorney verified that she had not
communicated with M.P. since his transfer from the county detention center to MSP. The
Montana DPHHS child protection specialist assigned to administer the youth in need of
care case testified at the hearing that she could not verify counsel’s claim that M.P. was
placed in the Boot Camp program. The record contains no explanation of why participation
in Boot Camp would render M.P. unable to respond to counsel’s asserted contact attempts
or why counsel could not sooner have sought relief from the court upon reasonable
diligence.
¶5 The right to parent is a fundamental liberty interest protected by federal and
Montana constitutional rights to due process. In re L.V.-B., 2014 MT 13, ¶ 15, 373 Mont.
344, 317 P.3d 191 (citing U.S. Const. amend. XIV; Troxel v. Granville, 530 U.S. 57, 65,
120 S. Ct. 2054, 2061 (2000)). In a proceeding to terminate parental rights, the State must
provide the parent whose rights are at stake with reasonable notice and opportunity to be
heard. L.V.-B., ¶ 15. We review a district court’s decision on whether to grant a
continuance in an abuse and neglect action for an abuse of discretion. In re H.E., 2002 MT
257, ¶ 25, 312 Mont. 182, 59 P.3d 29 (citing In re R.F., 2001 MT 199, ¶ 24, 306 Mont. 270,
32 P.3d 1257). The court must “consider whether the movant has shown good cause and
whether the continuance would be in the furtherance of justice.” H.E., ¶ 25 (citing R.F.,
¶ 24); accord § 25-4-503, MCA.
¶6 On appeal, M.P. does not fault the pre-hearing notice provided to him by the State
in advance of the termination hearing, but asserts the District Court deprived him of due
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process by declining to postpone the hearing. To justify the requested continuance, M.P.
had to show good cause why he was unable to attend despite the sufficient advance notice
afforded. See § 25-4-503, MCA. Through counsel who asserted that she had no contact
with him, M.P. premised his showing of good cause on two asserted facts: first, that he was
actually participating in the Boot Camp program, and second, that he was completely
incommunicado in that placement. Even if the District Court accepted counsel’s assertion
as sufficient proof of the first fact, nothing in the record supports the second. M.P. failed
to show good cause for the requested continuance. The District Court did not abuse its
discretion in denying M.P.’s last-minute motion to continue the termination hearing. We
affirm.
¶7 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our
Internal Operating Rules, which provides for memorandum opinions. In the opinion of the
Court, the case presents a question controlled by settled law or by the clear application of
applicable standards of review.
/S/ DIRK M. SANDEFUR
We concur:
/S/ MIKE McGRATH
/S/ MICHAEL E WHEAT
/S/ JAMES JEREMIAH SHEA
/S/ LAURIE McKINNON
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