No. 89-126
IN THE SUPREME COURT OF THE STATE OF MONTANA
1989
IN THE MATTER OF
A.R., Youth in Need of Care.
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APPEAL FROM: District Court of the Eighth Judicial District,
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In and for the County of Cascade,
The Honorable Joel Roth, Judge presiding.
COUNSEL OF RECORD:
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For Appellant: 7 -
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Bell & Marra; Antonia P. Marra, Great Falls, Montana
For Respondent :
Hon. Marc Racicot, Attorney General, Helena, Montana
James Yellowtail, Asst. Atty. General, Helena
Patrick L. Paul, County Attorney; Tammy Plubell, Deputy,
Great Falls, Montana
Billy Miller, Great Falls, Montana (Mother)
June Lord, Great Falls, Montana ( A . B )
Leota Standing Rear, Box Elder, Montana (Tribal Rep.)
Submitted on Briefs: Aug. 24, 1989
Decided: September 29, 1989
Filed:
Justice John Conway Harrison delivered the Opinion of the
Court.
This is an appeal from the District Co.urt of the Eighth
Judicial District, Cascade County, State of Montana. The.
appellant/father appeals the District Court's December 20,
1988 order terminating his parental rights in regard to his
daughter, A.B. We affirm.
On September 25, 1987, approximately one week before
A.Bts first birthday, the Montana Department of Family
Services, (Family Services) filed for temporary legal custody
of A.B. The petition alleged that A.B. was abused, neglected
or dependent within the meaning of $ 41-3-102, MCA. The
petition requested that A.B. be declared a youth in need of
care and that A.B. 's temporary legal custody be granted to
Family Services until further order of the court.
The District Court on September 28, 1987, issued its
order and granted temporary legal custody of A.R. to Family
Services until further order of the court. The District
Court's September 28, 1987 order further ordered A.B.'s
father and mother to appear before the court on October 14,
1987, "to show cause, .. . why they . .. have not complied
with this Order." The order also stated that "An
Adjudicatory Hearing will be held in conjunction with the
Show Cause hearing. "
Two attempts were made by a deputy county attorney to
serve A.B.'s natural parents with a citation for them to
appear in court for the show cause hearing. However, the
deputy county attorney was unable to make service due to the
unknown addresses of A.B. 's parents. Therefore, A.B.'s
parents were served by publication.
The adjudicatory hearing was held November 17, 1987.
During that hearing pediatrician, Jack Haling, M.D., and a
county social worker testified as to the cause of A.B.'s
injuries being the result of physical abuse of the child.
The following facts were testified to by Dr. Haling during
that adjudicatory hearing:
Q When you saw her [A.B.] in May [I9871
when she was transferred from Missoula,
can you briefly summarize for the Court
what you discovered from your examination
of her?
A [By Dr. Haling] Sure. The history
was that the child was allegedly well
until she had an episode on the 17th of
May, [I9871 and the child at that time
was found by her father to be gasping and
choking and had no respiratory effort.
She allegedly was resuscitated by hitting
her on the back several times and given
mouth to mouth resuscitation and taken to
White Sulphur to see Dr. Laurence
Casazza ...
Dr. Haling testified further to the extent of A.B. 's
injuries, including:
[Tlhe workup in the hospital essentially
showed she had a closed head injury which
really couldn't be explained by any kind
of single traumatic event. She had
cerebral edema brain swelling and we did
X-rays of her entire body, and she was
found to have fractured or dislocated the
left elbow, and there were some fractures
of the right fourth, fifth, sixth and
seventh ribs. She had some fractures of
the tibias... and had some evidence of
trauma to the right femur which possibly
could be from old fractures, and she had
a fracture of the shaft or midportion of
the left forearm. And, all of these
X-ray findings of this boney [sic] trauma
was of varying stages and various stages
of healing.
Finally, Dr. Haling testified as to A.B.'s prognosis:
Well, her prognosis is very regarded
because ... of the brain damage which
is the main problem. The boney [sic]
things will heal up pretty well, but she
has significant brain damage. She has
brain atrophy, and that her brain has
been damaged to the point that it's
becoming smaller instead of growing which
it is supposed to do at this age. She is
an abnormally -- she has consultations in
Helena, and the child is doing well with
the rehab program, but certainly does not
appear that she will ever have a
perfectly normal life neurologically.
A.B.'s parents, although served by publication did not appear
at the November 17, 1987, hearing.
The District Court on November 23, 1987, issued its
order and declared A.B. a youth in need of care and granted
temporary custody of A.B. to Family Services until further
order of the court. The court also set the disposition
hearing to be held on December 11, 1987 at which time Family
Services was ordered to submit for the court's approval a
proposed treatment plan for A.B.'s mother and father.
The disposition hearing was held on December 11, 1987,
and a treatment plan was ordered and counsel appointed for
A.B.'s mother and father. The treatment plan for A.R.'s
mother and father was approved on December 28, 1987, neither
the father nor counsel objected to the treatment plan nor
attempted to modify its terms.
The father failed to comply with a single requirement
of the plan, despite the efforts of social worker Lorna
Antonsen to explain its requirements and assist the father in
compliance. The father failed to comply with the treatment
plan when he failed to maintain contact with the social
worker assigned to A.B.'s case; and failed to maintain both
reasonable visitation of A.B. and knowledge of her medical
condition. Finally, the father attempted to visit A.R. only
one time during the eighteen month period of time between
A.B.'s hospitalization on May 21, 1987 and the termination
hearing on December 9, 1988, another failed compliance to his
treatment plan.
On behalf of both parents, appointed counsel, Billy B.
Miller, filed motions with the District Court on June 27 and
July 5, 1988. On July 26, 1988, a review hearing was held,
counsel Miller appeared for the mother, June Lord appeared on
A.B.'s behalf, and, at the State's request, the District
Court appointed counsel, Michael R. Tramelli, to represent
the father in any further proceedings. Thereafter, on August
29, 1988, a petition for permanent legal c,ustody and
termination of parental rights of the father was filed with
the court. Counsel Tramelli was permitted to withdraw as
counsel for the father by order of the District Court filed
October 5, 1988, and Antonia Marra was appointed to represent
the father on that date.
On December 9, 1988, the hearing on the petition for
termination of the father's parental rights was held in the
District Court. Testimony was presented by Bill J. Tacke,
M.D., a physician specializing in physical medicine and
rehabilitation; Lorna Antonsen, social worker with Blaine
County Human Services; and Randy Koutnik, social worker for
Family Services in Cascade County. Also, Deputy Cascade
County Attorney Tamrny K. Plubell, counsel Marra, for the
father, and counsel Lord on behalf of A.B. were present. The
father was not present, as he was serving a twenty-year
prison sentence in the Montana State Prison. He had been
convicted in Flathead County for aggravated assault of his
daughter, A.B.
Thereafter, on December 20, 1988, the District Court
entered its findings of fact and conclusions of law and order
terminating the parental rights between the father and A.B.
The father now appeals from the December 0 , 1988,
order and presents three issues on appeal:
1. Whether a parent has a statutory or constitutional
right to appointed counsel at every stage of child protective
proceedings resulting in termination of parental rights.
2. Whether the treatment plan was impossible to
complete and therefore an abuse of discretion.
3. Whether § 41-3-609 ( 2 ) (el , MCA , authorizes
consideration of criminal convictions and sentences of
long-term incarceration unconfirmed by appellate review.
On appeal the father alleges he has a constitutional
right to appointed counsel at every stage of a child
protective proceeding which resulted in the termination of
his parental rights. Throughout the proceedings upon the
petition for permanent legal custody and termination of his
parental rights, the father was represented by appointed
counsel.
For the October and November, 1987 hearings, the father
was served by publication because his whereabouts were
unknown despite efforts to locate him. However, he claims
that the absence of appointed counsel during the initial
phases of the child custody proceedings violated his rights
and was prejudicial to him. He also alleges that his rights
were violated because he was not personally served with
notice of the October and November, 1987, hearings.
In child protective proceedings culminating in the
termination of parental rights, due process of law requires
only that the parents have counsel prior to the permanent
custody hearings. Due process does not require that the
parents have counsel durinq the initial stages of the
proceedings. Matter of M.F. (19821, 201 Mont. 277, 653 P . 2 d
1205. In sc, holding, this Court relied upon the United
States Supreme Court in Lassiter v. Department of Social
Services (1981), 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640.
The record indicates that counsel was appointed to
represent both parents December 14, 1987. The father had the
benefit of appointed counsel almost one full year prior to
the termination of his parental rights. Furthermore, at the
father's termination of parental rights hearing on December
9, 1988, the father was represented by appointed counsel.
The test approved by the court under the circumstances
of this case does not warrant the conclusion that the
appointment of counsel at the inception of this case was
necessary or mandatory. Every effort was made to provide
legal assistance at appropriate times and several times it
was necessary to locate the parents, parents who showed
little or no interest in their child, A.B. We find no merit
in the father's first issue.
The second issue raised by the father is that the
court's treatment plan was impossible to complete and
therefore an abuse of discretion. The father objects that
the plan's timetable was too short, roughly one and one-half
months. He also contends that when the plan was submitted,
the State was aware that he had advised counsel of his
disagreement with its central objective, that is of course
the removal of the child.
Parental rights of the father were terminated ,under
S 41-3-609(1) (c), MCA. Under that statute the court may
order a termination of the parent-child relationship upon the
finding that "an appropriate treatment plan that has been
approved by the court has not been complied with by the
parents or has not been successful; . . ." Section
41-3-609 (1)(c)(i), MCA.
In Matter of C.L.R. (1984), 211 Mont. 381, 685 P . 2 d
926, this Court made clear its preference for the use of a
treatment plan:
[W]e sound a stern warning that this
Court will not permit the termination of
parental rights without first
establishing a treatment plan unless a
showing of facts clearly proves the
impossibility of any workable plan.
Matter of C.L.R., 211 Mont. at 386, 685 P.2d at 928.
Here, the treatment plan was approved by the District
Court on December 28, 1987. It required the father to obtain
psychological and alcohol dependency evaluations by January
15, 1988, and to comply with the associated recommendations.
It also required that the father visit A.B., meet with A.B.'s
doctors, and maintain contact with the social worker and keep
the social worker informed of his current address. The plan
also advised the parents that noncompliance by February 15,
1988, could result in the potential loss of their parental
rights.
In view of the District Court's finding that the father
failed to comply with a single requirement of the plan, we
find the District Court did not err when it ordered treatment
objectives of the plan completed by February 15, 1988.
Further, the father claims that because of the criminal
charges he was facing in Flathead County, and under the
advice of his criminal defense counsel, he did not comply
with the psychological evaluation. We find no merit in this
contention. The record indicates that the father was
represented by at least three different attorneys throughout
these proceedings and the record is completely devoid of any
objection to the terms of the treatment plan, and equally
devoid of any attempt to modify its requirements or time
limits.
The final objection is that S 41-3-609 (2)(e), MCA,
authorized consideration of criminal convictions and
sentences providing for long-term incarceration. The father
argues that the trial court may not, in the termination of
parental rights, rely upon a criminal conviction and sentence
of imprisonment unconfirmed by appellate review. No
authority is offered in support of the foregoing proposition.
We find no provision authorizing consideration of "long-term
confinement" under the provisions of S 41-3-609 (2)(e), MCA.
Therefore we find no abuse of discretion.
The judqrnent is affirmed.
We concur:
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