DA 07-0203
IN THE SUPREME COURT OF THE STATE OF MONTANA
2007 MT 285N
IN THE MATTER OF
K.S.,
Youth in Need of Care.
APPEAL FROM: District Court of the Eighth Judicial District,
In and For the County of Cascade, Cause No. CDJ-04-170-Y
Honorable Kenneth R. Neill, Presiding Judge
COUNSEL OF RECORD:
For Appellant Father:
Cathleen O. Sohlberg, Office of Public Defender, Missoula, Montana
For Appellant Mother:
Jim Wheelis, Chief Appellate Defender; Lisa S. Korchinski, Assistant
Appellate Defender, Helena, Montana
For Appellee:
Hon. Mike McGrath, Attorney General; Sheri K. Sprigg, Assistant Attorney
General, Helena, Montana
Brant S. Light, Cascade County Attorney; Sarah Corbally, Deputy County
Attorney, Great Falls, Montana
Submitted on Briefs: October 17, 2007
Decided: November 6, 2007
Filed:
__________________________________________
Clerk
Justice John Warner delivered the Opinion of the Court.
¶1 Pursuant to Section 1, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal
Operating Rules, as amended in 2003, the following memorandum decision shall not be cited
as precedent. It shall be filed as a public document with the Clerk of the Supreme Court and
its case title, Supreme Court 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 A.P. and R.F. appeal from the judgment of the Eighth Judicial District, Cascade
County, terminating their parental rights to K.S. We affirm.
¶3 K.S. was born in May 2004. A.P. (the mother) and R.F. (the father) had a relationship
that ended before she was born. At the time of K.S.’s birth, R.F. was incarcerated and
unaware that A.P. had given birth to a child.
¶4 The Department of Health and Human Services received reports that A.P. was not
meeting K.S.’s medical needs. On October 8, 2004, the State petitioned for temporary
investigative authority and emergency protective custody over K.S. and her two siblings. 1
R.F. appeared at the initial hearing and expressed interest in gaining custody of K.S. once his
incarceration ended. The District Court granted the State’s petition, but K.S. remained in
A.P’s custody. On December 13, 2004, the Department received a report that K.S. was
suffering from “failure to thrive,” and subsequently placed K.S. in protective custody.
¶5 In January 2005, the State petitioned for adjudication of K.S. as a youth in need of
care. On February 8, 2005, the District Court granted the petition, but K.S. was returned to
A.P.’s custody. The District Court approved a treatment plan for A.P. on February 22, 2005.
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In April 2005, the District Court appointed counsel to represent A.P., and she had
representation from then forward. On April 1, 2005, R.F. was released from prison and
visited K.S. on April 2. The next day he was involved in an altercation and fled. In July
2005, he was apprehended, convicted of aggravated assault, and sentenced to five years with
three years suspended.
¶6 On November 8, 2005, during a visit by a social worker, A.P. had left K.S. in the care
of an unknown man and woman. The social worker placed K.S. in protective custody. Over
the next year, A.P. sporadically attended scheduled visits with K.S. and did not make
significant progress on the objectives of her treatment plan, such as improving her parenting
skills and maintaining a safe residence for K.S.
¶7 On November 9, 2006, the State petitioned for a termination of the parental rights of
A.P. and R.F. On February 6, 2007, and February 13, 2007, the District Court held a hearing
on the termination petition. A.P. and R.F. had appointed counsel throughout the termination
proceedings. On March 1, 2007, the District Court entered its judgment, terminating the
parental rights of both A.P. and R.F. They now separately appeal the judgment.
¶8 We review a District Court’s ultimate decision to terminate parental rights for abuse of
discretion. In re M.A.L., 2006 MT 299, ¶ 17, 334 Mont. 436, ¶ 17, 148 P.3d 606, ¶ 17. We
review the findings of fact to determine if they are clearly erroneous and the conclusions of
law to determine if they are correct. In re A.N.W., 2006 MT 42, ¶ 28, 331 Mont. 208, ¶ 28,
130 P.3d 619, ¶ 28.
¶9 A.P. argues that the District Court violated her due process rights because it did not
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A.P. has two other children with different fathers. Her parental rights to both those children
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appoint counsel for her until after the treatment plan was in place. Her contention is without
merit. The applicable statute in effect when this proceeding began provided that during an
abuse and neglect proceeding, the court “may at any time . . . appoint counsel for any
indigent party.” Section 41-3-422(11), MCA (2003) (emphasis added). Under the 2003
version of the statute, the District Court was not required to appoint counsel for a parent until
the State initiated termination proceedings. Section 41-3-607(4), MCA (2003). As A.P.
notes, the statute was amended in 2005 to require counsel at all stages of an abuse and
neglect proceeding. Section 41-3-425(1), MCA (2005). However, this is simply irrelevant to
the case before us.
¶10 Pursuant to the earlier version of the statute, we concluded that due process does not
necessarily require appointed counsel at pre-termination proceedings. In re A.M., 2001 MT
60, ¶ 50, 304 Mont. 379, ¶ 50, 22 P.3d 185, ¶ 50. However, we have also recognized that in
particular circumstances, appointed counsel may be appropriate prior to termination
proceedings. In re A.F.-C., 2001 MT 283, ¶ 44, 307 Mont. 358, ¶ 44, 37 P.3d 724, ¶ 44. The
circumstances of this case did not require that A.P. have appointed counsel earlier in the
proceedings. A.P. had counsel for a year and a half before the State filed to terminate her
rights, and she was represented by counsel throughout the termination proceedings. The
District Court’s appointment of counsel after the treatment plan was in place complied with
the statute in effect at the time the abuse and neglect proceeding began and adequately
protected A.P.’s due process rights.
¶11 R.F. argues for the first time on appeal that the District Court erred in its interpretation
have also been terminated and are not at issue here.
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of § 41-3-609(4)(c), MCA. This provision allows the State to petition for a termination of
parental rights without putting a treatment plan in place if “the parent is or will be
incarcerated for more than 1 year.” Section 41-3-609(4)(c), MCA. He argues the District
Court misapplied the statute because, although he had been incarcerated more than a year at
the time the termination petition was filed, he was scheduled for release less than a year later.
R.F. concedes that he did not raise this issue before the District Court. This Court will not
address arguments presented for the first time on appeal. In re A.N.W., ¶ 41. We decline to
address R.F.’s argument that the District Court misinterpreted § 41-3-609, MCA.
¶12 Our review of the entire record reveals that the findings of fact are supported by
substantial credible evidence and the legal issues are clearly controlled by settled Montana
law that the District Court correctly applied. The District Court did not abuse its discretion
in terminating A.P.’s and R.F.’s parental rights.
¶13 Affirmed.
/S/ JOHN WARNER
We Concur:
/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ BRIAN MORRIS
/S/ JIM RICE
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