No. 02-311
IN THE SUPREME COURT OF THE STATE OF MONTANA
2002 MT 257
IN THE MATTER OF H.E.,
Youth in Need of Care.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Russell C. Fagg, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Nancy L. Wetherelt, Attorney at Law, Billings, Montana (for natural Mother)
Kevin Gillen; Gillen Law Office, Billings, Montana (for natural Father)
For Respondent:
Hon. Mike McGrath, Attorney General; Jennifer Anders, Assistant
Attorney General, Helena, Montana
Submitted on Briefs: October 17, 2002
Decided: November 21, 2002
Filed:
__________________________________________
Clerk
Chief Justice Karla M. Gray delivered the Opinion of the Court.
¶1 The Thirteenth Judicial District Court, Yellowstone County,
terminated the parental rights of H.E.'s mother and father. Both
parents appealed, but the father's counsel has moved to be allowed
to withdraw on the basis that there are no nonfrivolous grounds for
his appeal. We grant the motion of the father's counsel, dismiss
the father's appeal and affirm the termination of the mother's
parental rights.
¶2 We address the following issues:
¶3 1. Are there nonfrivolous grounds to support the father's
appeal?
¶4 2. Did the District Court abuse its discretion when it
implicitly denied the mother's motion to continue the permanent
custody hearing or, in the alternative, to grant an extension of
temporary legal custody for six months to allow the Department to
conduct a home study on the woman the parents proposed for foster
care placement of H.E.?
BACKGROUND
¶5 H.E. was born in Billings, Montana, on April 24, 2001.
Because both of her parents were incarcerated at the Yellowstone
County Detention Facility pending resolution of federal felony drug
charges, H.E. was placed in foster care when she was one day old.
¶6 In May of 2001, the District Court adjudicated H.E. a youth in
need of care and granted the Department of Public Health and Human
Services (Department) temporary legal custody for six months. The
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Department subsequently moved for permanent custody and termination
of both parents' rights.
¶7 At the start of the permanent custody hearing in November of
2001, the mother moved to continue the hearing or, in the
alternative, to grant the Department an extension of temporary
legal custody so it could conduct a home study of Jimmie Sue
Helzer, a woman proposed by the parents as a temporary placement
for H.E., until the mother's release from incarceration. The
District Court questioned Pam Weischedel, the Department social
worker assigned to the case, who stated she had learned of the
parents' proposal for placement with Helzer only after she had
placed H.E. in foster care. The court decided to proceed with the
hearing, and to consider the motion and the proposed placement
after hearing the evidence.
¶8 A federal probation officer was the first witness. He
testified that the father, whose felony criminal record extended
back to 1988, would not be released from federal custody for seven
to eight years. According to the officer, the mother was scheduled
to complete a state prison sentence on a probation revocation in
April of 2002, and then would begin serving a 60-month federal
prison sentence.
¶9 Weischedel testified that child protective services had
removed the mother's three older children from her custody before
H.E. was born. She testified she had originally planned to place
H.E. in emergency foster care until the situation regarding the
criminal charges against the parents was resolved, but it became
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clear very early on that both parents would be sentenced to
extensive time in prison. Because both parents told her that they
did not want H.E. placed in an adoptive home, Weischedel considered
a family placement. However, neither the father nor the mother
identified a family member able and willing to care for H.E. and,
as a result, Weischedel placed H.E. in foster care with a couple
willing to adopt her.
¶10 Weischedel further testified she had offered the mother and
the father two treatment plans each, but neither parent was able to
complete a treatment plan. The father provided verification of
having taken a parenting class, but "didn't do most of the tasks on
the treatment plan." The mother did not complete chemical
dependency treatment or provide verification that she had completed
a parenting class.
¶11 Weischedel also testified the mother had told her she was
making plans for H.E. through a church group. At some time after
H.E. was placed in foster care, Weischedel received a copy of a
letter the father had written to the District Court--but which is
not in the District Court file--proposing Helzer, who the mother
met while in prison, as a temporary foster care placement for H.E.
until the mother's release. Helzer did not contact Weischedel and
Weischedel did not do any background checks on Helzer. Weischedel testified she had
been very clear with both parents that, under the law, they must be able to parent H.E. within
one year or H.E. would be placed in an adoptive, permanent home.
¶12 Weischedel's written report dated August 14, 2001, also was
before the court. The report detailed both parents' arrest
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records, the mother's history with child protective services and
the removal of her three older children from her care. The
mother's history of drug use included stealing morphine prescribed
for her own mother, who was dying of brain cancer. The mother was
pregnant with H.E. when she was arrested on federal charges of
possession with intent to distribute methamphetamine, cocaine, and
marijuana. She tested positive for methamphetamine, cocaine and
marijuana at that time.
¶13 LaVain Frank, who was involved in prison ministry, testified
the mother had been attending his Monday night church services at
the women's prison. He testified both parents had told him they
wanted H.E. placed with Helzer. Frank acknowledged, however, that
he would not recommend a child wait until age three to start being
cared for by a parent who is unavailable until that time.
Furthermore, he opined that it would be better for H.E. to stay in
her current foster care rather than move to Helzer’s home and then
move again when the mother is released from prison.
¶14 Helzer testified that she was a fellowship volunteer at the
prison and had met the mother in a Bible studies group. She
expressed her willingness to care for H.E. on a short- or long-term
basis, but confirmed that she had neither contacted the Department
to seek approval as a foster care parent nor ever met H.E.
¶15 The mother also testified. She described her unsuccessful
efforts to get into a federal prison program which allows new
babies to stay with their mothers in prison for up to nine months.
She testified that although she had serious drug problems in the
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past--having used marijuana, cocaine, LSD, and crank--she had hit
bottom after her arrest on the federal charges and everything had
changed for her. She had been having weekly visits with H.E. at
the women's prison.
¶16 The father, who was incarcerated in a federal prison in
another state, was not able to participate in the hearing in person
and chose not to participate via telephone. His counsel was
present, however.
¶17 H.E.'s guardian ad litem recommended termination of both
parents' rights to H.E. He opined that, given the mother's
"difficult past," he would not be willing to risk H.E.'s future
welfare and well-being by an interim placement.
¶18 The District Court entered findings of fact, conclusions of
law and an order terminating both parents' rights to H.E. As part
of its decision, the court found it would not be in H.E.'s best
interests to place her in foster care with Helzer until the
mother's release from prison. In so doing, the court effectively
denied the mother's motion for a continuance or extension of time.
DISCUSSION
¶19 1. Are there nonfrivolous grounds to support the father's
appeal?
¶20 Under very limited circumstances, appointed counsel on appeal
may seek to withdraw from further representation without denying an
indigent client the fair representation guaranteed by the
constitution. If, after the notice of appeal is filed and the
client's right to an appeal is protected, counsel concludes that no
nonfrivolous issues exist in the appeal, counsel may seek leave to
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withdraw. Anders v. California (1967), 386 U.S. 738, 87 S.Ct.
1396, 18 L.Ed.2d 493. Counsel must file a supporting brief
referring to anything in the record that might arguably support the
appeal. Anders, 386 U.S. at 744, 87 S.Ct. at 1400, 18 L.Ed.2d at
498.
¶21 In the present case, the father's counsel moved to withdraw
and filed a brief in support of his motion pursuant to Anders. We
gave the father time to respond to his counsel's motion, but he did
not do so. The next step is for this Court to conduct a full
examination of all the proceedings to decide whether the appeal is
wholly frivolous. See Anders, 386 U.S. at 744, 87 S.Ct. at 1400,
18 L.Ed.2d at 498. If we so decide, we grant counsel's motion and
dismiss the appeal. See Anders, 386 U.S. at 744, 87 S.Ct. at 1400,
18 L.Ed.2d at 498.
¶22 The father's counsel suggests that the father may wish to
argue on appeal that the evidence is insufficient to support
termination of his parental rights. We have reviewed the record
and it reveals no potential nonfrivolous issues for the father to
raise on appeal. Therefore, pursuant to Anders, we grant the
motion of the father's counsel to withdraw and dismiss the father's
appeal.
¶23 2. Did the District Court abuse its discretion when it
implicitly denied the mother's motion to continue the permanent
custody hearing or, in the alternative, to grant an extension of
temporary legal custody for six months to allow the Department to
conduct a home study on the woman the parents proposed for foster
care placement of H.E.?
¶24 The mother argues that, by denying her motion for a
continuance or extension of time, the District Court deprived her
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of fundamentally fair procedures. She states that, when parents
are unable to care for their children but guardianship placement
options such as proposed by H.E.'s parents are available, those
options should be reviewed prior to placing the child with foster
parents willing to adopt the child. The mother relies on § 41-3-
440, MCA, which provides that the Department shall determine the
appropriate placement for a child alleged to be a youth in need of
care "in the absence of a dispute between the parties to the action
regarding the appropriate placement[.]"
¶25 A trial court's decision on whether to grant a continuance
in an abuse and neglect action is a matter of discretion. The
court should consider whether the movant has shown good cause and
whether the continuance would be in the furtherance of justice. In
re R.F., 2001 MT 199, ¶ 24, 306 Mont. 270, ¶ 24, 32 P.3d 1257, ¶ 24
(citations omitted).
¶26 In addition to the language relied upon by the mother and
quoted above, § 41-3-440, MCA, provides "[t]he court shall settle
any dispute between the parties to an action regarding the
appropriate placement." The statute was enacted in 2001 and has an
effective date of October 1, 2001--after H.E. was placed in foster
care, but before the date of the hearing.
¶27 Assuming arguendo that § 41-3-440, MCA, applies here, we
conclude its requirements were met when the Department originally
placed H.E. because no "dispute between the parties" over the
appropriate placement existed at that time. The statutory
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requirements were met again when the District Court settled the
dispute regarding an appropriate placement for H.E.
¶28 H.E.'s need for placement when she was born to an incarcerated
mother was urgent and immediate. In the absence of family members
willing to intervene, the Department was obliged to provide
protective services. See § 41-3-302, MCA (1999). The mother did
not bring Helzer's name to the Department's attention before H.E.
was placed, and Helzer did not contact the Department to arrange
for a home study for approval as a foster parent. In fact, the
mother did not formally object to the placement arranged by the
Department until the permanent custody hearing, when H.E. was over
six months old. All of these facts weigh against a conclusion that
the mother showed good cause for a continuance.
¶29 Further, and in relation to "the furtherance of justice," the
Department was obligated to form a permanency plan for H.E.
incorporating the presumption that if a child has spent 15 of the
last 22 months in foster care, that child's best interests will be
served by termination of the parents' rights. See § 41-3-604(1),
MCA. The mother was scheduled to be in prison for much longer than
that, since she would be in federal custody for 60 months after she
finished serving her state time. Even Frank, testifying on the
mother's behalf, agreed it would be better for H.E. to stay where
she was rather than be uprooted to the home of Helzer–who had never
met H.E.--and then be uprooted again when the mother is released
from prison.
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¶30 We conclude the mother did not show good cause for a
continuance and a continuance would not have been in the
furtherance of justice. We hold that the District Court did not
abuse its discretion when it implicitly denied the mother's motion
for a continuance or an extension of temporary legal custody to
allow the Department to conduct a home study.
¶31 Affirmed.
/S/ KARLA M. GRAY
We concur:
/S/ JAMES C. NELSON
/S/ TERRY N. TRIEWEILER
/S/ JIM RICE
/S/ W. WILLIAM LEAPHART
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