March 31 2009
DA 08-0478
IN THE SUPREME COURT OF THE STATE OF MONTANA
2009 MT 98
IN THE MATTER OF
B.S. and G.S.,
Youths in Need of Care.
APPEAL FROM: District Court of the Eighth Judicial District,
In and For the County of Cascade,
Cause Nos. DDJ 07-130-Y and DDJ 07-131-Y
Honorable Dirk M. Sandefur, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Jim Wheelis, Chief Appellate Defender;
Koan Mercer, Assistant Appellate Defender; Helena, Montana
(Attorneys for Appellant and Father)
For Appellee:
Hon. Steve Bullock, Montana Attorney General;
Jonathan M. Krauss, Assistant Attorney General, Helena, Montana
Submitted on Briefs: February 25, 2009
Decided: March 31, 2009
Filed:
__________________________________________
Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 The father of two minor children, B.S. and G.S., appeals from the termination of his
parental rights to those children. We affirm the judgment entered by the Eighth Judicial
District Court, Cascade County.
¶2 We restate the issues as:
¶3 1. Was the District Court within its authority to adjudicate B.S. and G.S. as youth in
need of care absent a request for that particular relief in the petitions for temporary
investigative authority (TIA) and emergency protective services?
¶4 2. Did the court err in finding the Department of Public Health and Human Services
(DPHHS) had presented sufficient evidence to establish that B.S. and G.S. were youth in
need of care?
¶5 3. Did the court err in denying the father’s request for a hearing regarding whether
placement with grandparents was in the children’s best interests?
¶6 4. Did the court abuse its discretion in terminating the father’s parental rights?
¶7 5. Is it necessary to remand this case for an evidentiary hearing regarding whether
appointed counsel provided ineffective assistance?
BACKGROUND
¶8 On August 23, 2007, the mother of B.S. and G. S. voluntarily placed the children in
DPHHS custody. DPHHS had received reports of domestic violence within the family prior
to that time, and the mother, who had obtained a restraining order against the father and
custody of the children, was staying at the Mercy Home shelter for domestic abuse victims in
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Great Falls, Montana. G.S., who was then 5 years old, had run away from the shelter three
times in one day and had been hitting other children there, and the mother was concerned
about her inability to handle him or her daughter, B.S., who was then 3 years old.
¶9 DPHHS petitioned for emergency protective services and TIA as to both children.
During the month between the mother’s placement of the children in DPHHS care and the
October 1, 2007 hearing on DPHHS’s petitions, criminal charges unrelated to these
proceedings were filed against both the mother and the father. At the hearing, the mother
stipulated to TIA for up to 90 days. The father, who by that time was incarcerated on the
pending criminal charges, contested DPHHS’s petitions.
¶10 At the time of the TIA hearing, B.S. was again living with her mother at Mercy
Home. G.S. was placed, temporarily, at a children’s receiving home, following breakdowns
of two foster care placements. DPHHS presented caseworkers’ testimony about the family’s
history of adjudicated domestic abuse in Washington state. A caseworker testified about
reports of an August 2007 tug-of-war with both parents pulling on B.S. outside the Great
Falls courthouse and the father slamming the mother’s hand in the car door. The mother also
testified. When she was questioned about her experiences during her marriage to the father,
she told the court that, during one argument, the father “had me up against a wall and
everything was going black, I felt like my eyes were going to pop out. And I was trying to
tell him our son was watching.” The mother testified about another incident that occurred
when she was living in a domestic violence shelter in Washington state. She and another
woman were walking B.S. and the other woman’s child down the sidewalk in a stroller when
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the father drove by and “somehow” drove his car into the stroller. In addition to the above
testimony, DPHHS presented testimony by Mercy Home staff members that G.S. exhibited
serious behavioral problems, including hitting another boy at the shelter, throwing a toy at
another child, and running away from the shelter. One shelter worker stated, “You know, he
seems very angry.” Finally, the caseworker testified that speech evaluation showed G.S. had
a 2-year speech deficit.
¶11 The District Court continued TIA and, sua sponte, based on a preponderance of the
evidence presented, found probable cause to believe that B.S. and G.S. were youth in need of
care and adjudicated them as such. Shortly thereafter, on DPHHS’s motion, the court
entered an order in which it found that DPHHS had made reasonable efforts to prevent the
removal of B.S. and G.S. from their home.
¶12 The father agreed to a treatment plan prepared by DPHHS and approved by the court.
By the date of the dispositional hearing in December of 2007, the father was in federal
custody on charges of conspiracy, credit card fraud, identity theft, and fraudulent use of a
social security number. At the dispositional hearing, the parties agreed to put most of the
father’s treatment plan on hold pending disposition of his criminal case, but the father agreed
to continue with his treatment plan tasks of staying in contact with the caseworker, signing
releases for DPHHS, and maintaining contact with B.S. and G.S. through the DPHHS
caseworker. Both parents stipulated to keeping temporary legal custody (TLC) with the
State of Montana for 6 months.
¶13 Placement of B.S. and G.S. with the father’s sister and her husband in the state of
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Washington failed when G.S. went to school with severe bruising on his face as a result of
reported abuse within that placement. The children were returned to Montana and placed in
non-relative foster care. In June of 2008, DPHHS petitioned for permanent legal custody of
B.S. and G.S. and for termination of both parents’ rights.
¶14 At the time of the August 2008 termination hearing, both parents were incarcerated in
federal prisons. Because the District Court was unable to establish a telephone connection
allowing the mother to participate in the hearing from prison, the court continued the
proceedings as to her, and conducted the hearing as to termination of the father’s parental
rights only. The father participated in the hearing by telephone.
¶15 The petition to terminate the father’s rights was based on failure of his court-ordered
treatment plan. Following the hearing, the District Court entered an order in which it found,
among other things, that the children had been in state custody since August of 2007; the
court had adjudicated the children youth in need of care; the father had not complied with his
court-ordered treatment plan in that he had failed to communicate on a monthly basis with
his caseworker and, through the caseworker, with his children; and the father was subject to
judicially-ordered long-term confinement by the United States government that was not
likely to expire until 2012. The court concluded, among other things, that termination of the
father’s parental rights was in the best interests of the children due to the length of time they
had been in foster care, and that the evidence showed, beyond a reasonable doubt, that the
father had not complied with an appropriate court-ordered treatment plan and that the
conduct of the father rendering him unfit was unlikely to change within a reasonable time,
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given his long-term federal incarceration.
DISCUSSION
¶16 Was the District Court within its authority to adjudicate B.S. and G.S. as youth in
need of care absent a request for that particular relief in the petitions for TIA and emergency
protective services?
¶17 The father points out that § 41-3-422(1)(a), MCA, requires that “[p]roceedings under
this chapter must be initiated by the filing of a petition” and that § 41-3-437(1), MCA,
authorizes a district court to adjudicate a child a youth in need of care (YINC) “[u]pon the
filing of an appropriate petition.” He argues that, because DPHHS did not request YINC
adjudication in its initial petitions for emergency protective services and TIA, the District
Court did not have authority to go beyond the relief requested and adjudicate B.S. and G.S.
as youth in need of care. In this regard, the father cites several Montana cases relating to
abuse and neglect proceedings. See In re D.A., 2008 MT 247, 344 Mont. 513, 189 P.3d 631;
In re T.C., 2001 MT 264, 307 Mont. 244, 37 P.3d 70; In re M.P.M., 1999 MT 78, 294 Mont.
87, 976 P.2d 988.
¶18 None of the cases cited by the father addresses the particular argument he raises here.
As a result, we examine the applicable statutory language to resolve this issue.
¶19 The relief sought in a petition filed under § 41-3-422, MCA, may include immediate
protection and emergency protective services, TIA, temporary legal custody, long-term
custody, termination of the parent-child legal relationship, appointment of a guardian, a
determination that preservation or reunification services need not be provided, any
combination of these, or “any other relief that may be required for the best interests of the
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child.” Section 41-3-422(1)(a), MCA. Additionally, § 41-3-422(1)(b), MCA, allows a
petition under the abuse and neglect statutes to be modified for different relief at any time
within the discretion of the court. Finally, § 41-3-432(9), MCA, allows a court to adjudicate
a child a youth in need of care at the show cause hearing for immediate protection and
emergency protective services. Based on these statutes, we conclude the form of the petition
and the relief sought therein did not foreclose the court from making a YINC adjudication
when it did.
¶20 We hold the District Court possessed authority to adjudicate B.S. and G.S. as youth in
need of care.
¶21 Did the District Court err in finding DPHHS had presented sufficient evidence to
establish that B.S. and G.S. were youth in need of care?
¶22 For a court to adjudicate a child a youth in need of care, the State must present
evidence sufficient to establish that the child has been abused, neglected, or abandoned.
Sections 41-3-102(34) and -422(5)(a), MCA. An adjudication that children are youth in
need of care must be based on a preponderance of the evidence, must determine the nature of
the abuse and neglect, and must establish facts that resulted in state intervention and upon
which disposition, case work, court review, and possible termination are based. Section 41-
3-437(2), MCA. The court must make written findings on issues including which allegations
of the petition have been proved or admitted, if any, whether there is a legal basis for
continued court and DPHHS intervention, and whether DPHHS has made reasonable efforts
to avoid protective placement of the child or to make it possible to safely return the child to
the child’s home. Section 41-3-437(7)(a), MCA.
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¶23 Although DPHHS took the position at the October 2007 hearing that it did not yet
have sufficient evidence to establish by a preponderance of the evidence that the children
were youth in need of care, the court found otherwise. Based on the evidence at the TIA
hearing, the District Court found there was a significant prior history of domestic violence
and domestic dispute between the parents in the presence of the children. It found the
mother left the family home with the children in August of 2007 and began staying at the
Mercy Home as a result of her distress with the father’s conduct and her own mental health
conditions. The court made detailed findings about the domestic abuse incidents about
which testimony had been presented. The court also found:
Whether it be linked or whether it has occurred independent of the domestic
hostility and violence between the parents, [G.S.] has exhibited various
behavior and developmental problems, including frequent escapes or run
aways, from the custody of the parent or supervisors, violent behavior by
throwing toys and pushing and hitting either a sibling or other children. The
child also exhibits anger control problems and poor language skills for his age.
In addition, the court found the father could not care for the children because of his
incarceration, and the mother, who was living at the Mercy Home and dealing with her own
mental health issues, had voluntarily surrendered the children to DPHHS care due to her
inability to adequately parent them. The court found DPHHS had made reasonable efforts to
avoid placement of the children or to make it possible to safely return the children to the
home, and that protective placement was required. Contrary to what the father argues on
appeal, we conclude the facts set forth in the District Court’s findings were sufficient to
establish by a preponderance of the evidence that the children were youth in need of care.
¶24 We hold the District Court did not err in finding that DPHHS had presented sufficient
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evidence to establish that the children were youth in need of care.
¶25 Did the court err in denying the father’s request for a hearing regarding whether
placement with grandparents was in the children’s best interests?
¶26 During his testimony at the termination hearing, the father asked the District Court to
delay its final determination on terminating his parental rights until a hearing could be held
at which his mother (the paternal grandmother of B.S. and G.S.) could testify regarding
placement of the children with her and her husband. The District Court did not grant that
request.
¶27 A trial court’s decision on whether to grant a continuance in an abuse and neglect
action is a matter of discretion. In re O.A.W., 2007 MT 13, ¶ 76, 335 Mont. 304, 153 P.3d 6.
The caseworkers testified DPHHS had looked into placement with the paternal grandmother
when the children were first placed in state custody, but had rejected that as a placement
option based on a prior sexual abuse claim against the grandmother’s husband. The matter
of possible placement with the grandmother and her husband was not a new issue. As noted,
a placement of the children with the father’s family members in Washington state had failed
and Washington state officials had returned the children to Montana. Further, the question of
possible placement with the paternal grandmother had no bearing on whether the statutory
criteria for terminating the father’s parental rights had been established—which, as discussed
below, was the purpose of this hearing.
¶28 We hold the District Court did not abuse its discretion in denying the father’s request
for a continuance to allow for a hearing regarding whether placement with grandparents was
in the children’s best interests.
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¶29 Did the court abuse its discretion in terminating the father’s parental rights?
¶30 Under the statutory circumstances pertinent to this case, a district court may terminate
an individual’s parental rights if it finds by clear and convincing evidence that (1) the child
has been adjudicated a youth in need of care; (2) an appropriate court-approved treatment
plan has not been complied with or has not been successful; and (3) the conduct or condition
rendering the parent unfit is unlikely to change within a reasonable period of time. Section
41-3-609(1)(f), MCA.
¶31 The father argues the District Court should have exercised its discretion to place B.S.
and G.S. in long-term DPHHS custody, instead of terminating his rights, on the basis that
terminating his rights was not in the children’s best interests. He contends the court should
have allowed the children to continue their relationship with their “loving, but temporarily
absent, father.”
¶32 The father is correct that the best interests of the child are a critical factor in
termination proceedings; the statutes give priority to the best interests of the child as the
primary and paramount statutory standard for termination. Section 41-3-609(3), MCA,
requires the district court to give “primary consideration to the physical, mental, and
emotional conditions and needs of the child.” Section 41-3-101(4), MCA, provides that the
child’s health and safety are of paramount concern. The best interests of the child take
precedence over parental rights, and the need for permanent placement in a loving and stable
home supersedes the parents’ interests. In re A.T., 2006 MT 35, ¶ 20, 331 Mont. 155, 130
P.3d 1249.
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¶33 The father relies on § 41-3-445(8)(e)(iv) and (v)(C), MCA, to support his argument
for long-term custody as opposed to termination of his parental rights. That reliance is
misplaced. Section 41-3-445(8)(e), MCA, applies to circumstances in which a child already
is in a “planned permanent living arrangement,” which is not the case here.
¶34 Further, while the father claims a “complete absence” of substantial evidence
regarding the particular conditions and needs of B.S. and G.S., we note the District Court
heard not only the evidence presented at the termination hearing, but also the evidence
presented at the TIA hearing and the dispositional hearing, including testimony concerning
G.S.’s behavioral and developmental difficulties. Throughout these proceedings, the court
was kept informed of G.S.’s placements and placement failures in a series of foster homes
and at Shodair Children’s Hospital, an inpatient treatment center for children with severe
emotional illness. That evidence was surely indicative of G.S.’s particular conditions and
needs.
¶35 Finally, the father points out, and DPHHS concedes, the District Court erred in
relying, in part, on the statutory presumption in favor of termination after children have been
in foster care for 15 of the most recent 22 months. DPHHS admits B.S. and G.S. had been in
foster care for only 12 months at the time of the father’s termination hearing. However,
given the father’s projected prison discharge date in 2012, the presumption would be
triggered before his release from custody.
¶36 Under these circumstances, we hold the father has not established that the District
Court abused its discretion in terminating his parental rights.
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¶37 Is it necessary to remand this case for an evidentiary hearing regarding whether
appointed counsel provided ineffective assistance?
¶38 The father argues this case should be remanded for consideration of whether he
received ineffective assistance of counsel, relying on a parent’s right to the effective
assistance of counsel in termination proceedings as recognized in In re A.S., 2004 MT 62, ¶
20, 320 Mont. 268, 87 P.3d 408. In making this argument, counsel for the father
acknowledges he has been unable to locate a decision of this Court specifically addressing an
ineffective assistance claim relating to termination proceedings where the claims are based,
in part, on events or omissions outside of the record on appeal. He analogizes to a civil
commitment case, In re K.G.F., 2001 MT 140, 306 Mont. 1, 29 P.3d 485, in proposing that
we remand for a fact-finding hearing on his claims.
¶39 In In re A.S., ¶ 26, we determined claims of ineffective assistance of counsel in cases
involving the termination of parental rights should be evaluated on the basis of two factors:
counsel’s training and the adequacy of counsel’s advocacy. The father’s claims about
testimony he could produce on remand all address the second of these factors, the adequacy
of his counsel’s advocacy. The father states his mother (the grandmother of B.S. and G.S.)
would testify that she heard the father speak with B.S. and G.S. by telephone while they were
placed with the father’s sister in Washington state; he contends this would prove that he
completed the “maintain contact with his children” task of his treatment plan. The father
also states his mother would testify that she had in the past provided care for the children for
several months at a time; he contends this would establish that his mother’s home was a
suitable placement for the children during his incarceration. The father says his mother
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would testify that the allegation of abuse against her husband was made in the mid-1990s by
her teenage daughter and has since been recanted. Further, the father says if B.S. and G.S.’s
mother had been called to testify at the termination hearing, she would testify that she was on
medication and participating in therapy while in custody. The father also says he would
testify that his trial counsel failed to communicate with him adequately, and that all of this
testimony he could produce on remand would establish that his counsel failed to adequately
advocate for him.
¶40 The father’s treatment plan task required him to maintain contact with B.S. and G.S.
through the DPHHS caseworker, not through his mother. Moreover, as we have stated
above, whether the children might be placed with their paternal grandparents or other
relatives was irrelevant as to whether statutory criteria for termination of the father’s parental
rights had been established. The same is true of the claimed evidence of the mother’s
therapeutic progress—it would be irrelevant as to whether statutory criteria for termination
of the father’s parental rights had been established. As a result, we conclude counsel’s
claimed failure to act to produce the testimony the father has described did not constitute
inadequate advocacy. We further conclude it is not necessary to remand this case for a
hearing concerning the father’s claims of ineffective assistance of counsel.
¶41 We affirm the judgment entered by the District Court.
/S/ MIKE McGRATH
We concur:
/S/ JAMES C. NELSON
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/S/ W. WILLIAM LEAPHART
/S/ PATRICIA COTTER
/S/ BRIAN MORRIS
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