10/06/2020
DA 20-0192
IN THE SUPREME COURT OF THE STATE OF MONTANA
2020 MT 252N
IN THE MATTER OF:
C.H., N.H. and M.H.,
Youths in Need of Care.
APPEAL FROM: District Court of the Eighth Judicial District,
In and For the County of Cascade, Cause Nos. BDN 18-208, BDN 18-209,
and BDN 18-346
Honorable Elizabeth Best, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Katy Stack, Attorney at Law, Missoula, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Brad
Fjeldheim, Assistant Attorney General, Helena, Montana
Joshua A. Racki, Attorney at Law, Great Falls, Montana
Submitted on Briefs: September 9, 2020
Decided: October 6, 2020
Filed:
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__________________________________________
Clerk
Justice Ingrid Gustafson 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 D.H. (Father) appeals from the March 3, 2020 Order of the Eighth Judicial District
Court, Cascade County, terminating Father’s parental rights to C.H., M.H., and N.H.
(Children). We affirm.
¶3 Children were placed in protective custody in July 2018. They were adjudicated
Youths in Need of Care on September 20, 2018. On January 21, 2020, the Department of
Health and Human Services, Child and Family Services (the Department) petitioned to
terminate Father’s parental rights, asserting termination to be appropriate pursuant to
§ 41-3-423(2)(a), MCA, by subjecting the children to aggravated circumstances, namely
chronic abuse, and pursuant to § 41-3-423(2)(c), MCA, by committing aggravated assault
against a child. Following the termination hearing, the District Court terminated Father’s
parental rights, finding that N.H. and M.H. disclosed and demonstrated significant fear of
Father because of his prolonged abuse of them and the family, the children were exposed
to extensive domestic and sexual violence, and Father committed an aggravated assault
against C.H. Father appeals.
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¶4 Father asserts two issues on appeal—the District Court abused its discretion in
termination Father’s parental rights under §§ 41-3-609(1)(d) and -423(2)(c), MCA, and
that his counsel was ineffective.
¶5 In relation to an incident on February 9, 2018, Father was charged with two counts
of felony aggravated assault in Pima County, Arizona. The facts and circumstances alleged
were the same for both offenses—namely Father hit Mother several times and while
Mother was holding C.H., he grabbed a gun and pointed it at both of them. Mother was
the asserted victim under count one and C.H. was the asserted victim under count two.
Ultimately, Father pled guilty to count one, the aggravated assault charge against Mother,
and count two, the aggravated assault charge against C.H., was dismissed. Father asserts
that as count two was dismissed, the District Court abused its discretion by terminating
Father’s parental rights based on his conviction for aggravated assault on a child because
Father was not convicted of aggravated assault on a child. From our review of the record,
we are not persuaded by Father’s argument.
¶6 We review a court’s decision to terminate parental rights for abuse of discretion—
whether the court acted arbitrarily, without conscientious judgment, or exceeded the
bounds of reason, resulting in substantial injustice. In re A.S., 2016 MT 156, ¶ 11,
384 Mont. 41, 373 P.3d 848. The State must prove by clear and convincing evidence the
statutory criteria for termination. In re R.L., 2019 MT 267, ¶ 12, 397 Mont. 507, 452 P.3d
890. “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
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re R.L., ¶ 12. 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.
¶7 Pursuant to § 41-3-423(2)(a) and (c), MCA, a court may make a finding that the
Department need not make reasonable efforts to provide reunification services if the court
finds the parent has subjected a child to aggravated circumstances or committed aggravated
assault against a child. To establish the aggravated circumstances or an aggravated assault,
the State is not required to prove a criminal conviction, but rather establish such by clear
and convincing evidence. See In re R.L., ¶ 12. Here, the record contains substantial
evidence that Father subjected N.H. and M.H. to aggravated circumstances, namely chronic
abuse,1 and committed aggravated assault against C.H.2 Other than general denials, Father
provided no evidence contradicting these accounts. Additionally, Father pleaded guilty to
count one, the aggravated assault against Mother. The District Court without objection
took judicial notice of the charging document, which asserted Father pointed a gun toward
both Mother and C.H. As the girls reported Mother was holding C.H. when Father pointed
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M.H. reported a history of being slapped, hit with a belt, thrown, yelled at, and hit so hard on one
occasion by Father that it knocked her tooth out. After residing in foster care, N.H. expressed she
did not realize she did not have to be hit all the time, slapped in the face, or yelled at when she
spoke. Both M.H. and N.H. expressed significant, ongoing fear of Father with escalating behaviors
(N.H. cutting herself and M.H. exhibiting pressured speech and agitation) when they believed he
would be released from jail and come to exact retribution against them. Both expressed consistent
desire to never see Father again.
2
M.H. and N.H. provided forensic interviews in which both described that on February 9, 2018,
Father hit Mother several times and while Mother was holding C.H., he grabbed a loaded gun and
pointed it at Mother and C.H.
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the gun at her, the clear and convincing evidence supports Father was also committing
aggravated assault against C.H. The fact that he did not actually plead to count two, does
not negate the substantial evidence supporting the District Court’s conclusion Father
committed aggravated assault against a child.3
¶8 Next, Father asserts his due process rights were violated as his counsel was
ineffective by failing to inform the court Father was not convicted of aggravated assault on
a child in Arizona, failure to object to the Arizona judgment as hearsay, failure to renew
Father’s motion to continue to permit Father to attend the termination hearing, and failing
to assiduously advocate on Father’s behalf. From our review of the record, to the extent
any action of counsel could be potentially construed to be a failure of Father’s counsel to
assiduously advocate on Father’s behalf, it was resultant from Father’s negative behaviors
and demeanor, his poor communication abilities, and his failure to engage in a collaborative
relationship with his attorney to assiduously advocate for him. The record is replete with
Father’s hostile and aggressive communication style. Father’s counsel, bound as an officer
of the court to be candid toward the tribunal, repeatedly advised the court as to limitations
of his advocacy due to Father’s failure to meaningfully engage or communicate with him.
The record establishes Father did not engage with the Department, the court, or his counsel
throughout the proceedings. He engaged in communication that was vulgar, rude,
3
While the District Court should have more correctly concluded Father committed, rather than
was convicted of, aggravated assault against C.H. and then specifically related how Father’s
admission of the aggravated assault against Mother supported this conclusion, this error is
harmless as the record contains substantial evidence supporting termination of Father’s parental
rights pursuant to §§ 41-3-609(1)(d) and -423(2)(a) and (c), MCA.
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intimidating, threatening, and completely inappropriate. “We have long held that a parent
has an obligation to avail herself of services arranged or referred by the Department and
engage with the Department to successfully complete her treatment plan.” In re R.J.F.,
2019 MT 113, ¶ 38, 395 Mont. 454, 443 P.3d 387; see also In re R.L., ¶ 20; In re C.M.,
2019 MT 227, ¶ 19, 397 Mont. 275, 449 P.3d 806; In re C.B., 2014 MT 4, ¶¶ 19, 23,
373 Mont. 204, 316 P.3d 177; In re D.F., 2007 MT 147, ¶ 29, 337 Mont. 461, 161 P.3d
825; In re T.R., 2004 MT 388, ¶ 26, 325 Mont. 125, 104 P.3d 439; In re L.S., 2003 MT 12,
¶ 11, 314 Mont. 42, 63 P.3d 497. A parent has a similar obligation to engage with counsel
so that counsel can assiduously advocate for the parent. Here, Father chose not to engage
in a productive manner with his counsel and we decline to fault counsel for any failure to
assiduously advocate for Father.4
¶9 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.
¶10 Affirmed.
/S/ INGRID GUSTAFSON
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We further note that we do not find counsel’s performance to have been ineffective in regard to
any of the specific allegations made by Father. The District Court was free to take judicial notice
of official court documents, including charging documents and pleadings, filed in other courts.
The District Court was accurately advised as to Father’s conviction by the very records of which
it took judicial notice, and it is certainly not improper for counsel to not renew a motion to continue,
which was previously denied and which was objected to by all other parties.
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We concur:
/S/ MIKE McGRATH
/S/ JAMES JEREMIAH SHEA
/S/ DIRK M. SANDEFUR
/S/ JIM RICE
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