March 2 2010
DA 09-0483
IN THE SUPREME COURT OF THE STATE OF MONTANA
2010 MT 42
IN THE MATTER OF:
A.J.W.,
A Youth in Need of Care.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and For the County of Flathead, Cause No. DN 08-001C
Honorable Stewart E. Stadler, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Joslyn Hunt, Chief Appellate Defender; Lisa S. Korchinski,
Assistant Appellate Defender, Helena, Montana (for Father)
Joseph P. Howard; Attorney at Law, Great Falls, Montana
(for Mother)
For Appellee:
Hon. Steve Bullock, Montana Attorney General; Mark W. Mattioli,
Assistant Attorney General, Helena, Montana
Kimberly P. Dudik, Assistant Attorney General, Child Protection Unit,
Missoula, Montana
Submitted on Briefs: January 27, 2010
Decided: March 2, 2010
Filed:
________________________________________
Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 M.W. and E.J. are the birth parents of A.J.W. They each separately appeal from
the District Court’s Findings of Fact, Conclusions of Law and Order Terminating
Parental Rights filed July 30, 2009.
¶2 The father M.W. contends on appeal that he received ineffective assistance of
counsel in the District Court and requests that this Court reverse the Order Terminating
Parental Rights and “appoint effective counsel” to represent him. The mother E.J.
contends generally that the District Court erred in terminating her parental rights and
requests that the Order Terminating Parental Rights be reversed. We affirm.
BACKGROUND
¶3 In October, 2006, when she was two, A.J.W. was removed from her home and
placed in foster care because of her parents’ alcoholism and family violence, and because
both had been arrested. After the mother E.J. received alcohol counseling, A.J.W. was
returned to her parents in March, 2007. After this time the parents failed to address
A.J.W.’s health and developmental needs, including her need for speech therapy, her
need to fix a broken tooth, and follow-up care for a broken leg. She received no medical
attention for her failure to gain weight.
¶4 In December, 2007 A.J.W. was removed a second time and placed in foster care
after both parents were again incarcerated. The mother E.J. was in custody charged with
felony assault with a weapon against the father M.W. She was released in January, 2008,
and the charges were later dismissed when M.W. recanted his allegations. M.W. was
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arrested and incarcerated for failure to register as a sex offender based upon a prior
conviction in Texas. He was subsequently released, pled guilty, and received a three-year
suspended sentence.
¶5 In January, 2008, both parents stipulated to adjudication of A.J.W. as a youth in
need of care, and to a grant of temporary legal custody to the State. A.J.W. was
diagnosed with developmental deficiencies including failure to thrive, a speech deficit
resulting from “pure communication neglect” in the home, and fetal alcohol effect. She
has also been diagnosed with reactive attachment disorder and post-traumatic stress
disorder. These conditions arose from her exposure to the violent and volatile
relationship between her parents, from their substance abuse, and from their general
failure to care for and nurture her. In February, 2008 the District Court approved a
treatment plan for each parent with the ultimate goal of family re-unification. A.J.W.
remained in foster care.
¶6 E.J. did not complete her treatment plan. While she completed some of the steps,
she had substantial problems completing others. She dropped out of group therapy and
went to AA meetings as a substitute. She failed to obtain an AA sponsor and failed to
provide documentation that she attended AA meetings. She complied with urine testing
requirements for a period of time, but then submitted two specimens that indicated that
she had attempted to “flush” her system to dilute the results. After that she failed to
provide specimens. In July, 2008, she was involved in a road rage incident with another
driver, and an accident with a vehicle pulling a boat. As a result of that incident she was
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charged with three counts of felony criminal endangerment, felony theft, felony criminal
mischief and misdemeanor DUI. Her blood alcohol content at the time was .221.
¶7 E.J. pled guilty to criminal endangerment and criminal mischief, both felonies, and
to misdemeanor DUI. She was sentenced to the Department of Corrections for a term of
ten years with five suspended. She was still in custody for these charges when the
District Court issued the order appealed from in July, 2009. The District Court found that
E.J.’s history of alcohol abuse and anger issues “make her a high risk to, at a minimum,
violate the conditions of parole and any reunification with A.J.W. would be uncertain at
best.”
¶8 M.W. was also unable to complete his treatment plan. He is required to register as
a sex offender because of a prior felony conviction for a sex offense in Texas. This
conviction makes him ineligible for public housing, and securing adequate housing for
his daughter was a condition of his plan. While he was making some progress in therapy,
especially with his anger issues, he was arrested in November, 2008 and charged with
two counts of felony distribution of dangerous drugs arising from incidents that occurred
in June and July, 2008. In April, 2009 he pled guilty to one of the counts and was
sentenced to a term of six years, with three suspended, but with no eligibility for parole
during the three years of incarceration. He later claimed that he sold drugs to raise
money to pay for adequate housing required by his treatment plan. He was also still
incarcerated at the time of the District Court’s order.
¶9 On July 27-28, 2009, the District Court held a hearing on the State’s petition to
terminate the parental rights of M.W. and E.J. At the time of the hearing A.J.W. had
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been in foster care since December, 2007 and had been placed with relatives of E.J. in
California who were interested in adoption.
¶10 The District Court’s Findings of Fact, Conclusions of Law and Order Terminating
Parental Rights recounted the history summarized above. The District Court found:
Primarily because of their inability to remain law abiding and their present
incarceration but also considering the violent nature of their relationship
and that neither parent successfully completed their court approved
treatment plan, the court finds that both are unlikely to change within a
reasonable time. A.J.W. has as of the date of this Order been in the custody
of the Department for 19 months and currently is in a stable placement with
members of E.J.’s extended family in the State of California.
The District Court concluded that the parents’ conduct that rendered them unfit was
unlikely to change within a reasonable time, that the State had made reasonable efforts to
reunite the family, and that the best interests of A.J.W. would be served by terminating
the parental rights of both parents.
STANDARD OF REVIEW
¶11 A court may order the termination of parental rights upon a finding supported by
clear and convincing evidence that the child is a youth in need of care. Section 41-3-
609(1), MCA. The court must find that the parents’ conduct is unlikely to change in a
reasonable time, considering a list of factors, the primary one of which is the “physical,
mental and emotional condition and needs of the child.” Section 41-3-609(3), MCA; In
the Matter of C.J.K., 2005 MT 67 ¶ 14, 326 Mont. 289, 109 P.3d 232.
¶12 This Court reviews a district court’s order terminating parental rights for abuse of
discretion. In the Matter of J.V., 2003 MT 68, ¶ 7, 314 Mont. 487, 67 P.3d 242. A court
abuses discretion when it acts arbitrarily, without employment of conscientious judgment
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or in excess of the bounds of reason, resulting in substantial injustice. Matter of C.J.K., ¶
13. Findings of fact are reviewed under the clearly erroneous standard, and conclusions
of law are reviewed to determine whether they are correct. Id.
¶13 This Court exercises plenary review of whether a parent was denied effective
assistance of counsel in termination proceedings. In the Matter of A.S., 2004 MT 62, ¶ 9,
320 Mont. 268, 87 P.3d 408.
DISCUSSION
¶14 Issue One: Did the District Court properly terminate the parental rights of E.J.?
E.J. contends that the District Court relied on insufficient evidence and did not require the
State to meet its burden of proof in the termination proceeding.
¶15 A parent’s right to the care and custody of her child is a fundamental liberty
interest which must be protected by fundamentally fair proceedings. Matter of A.S., ¶ 12.
Accordingly, a court may terminate the parent-child legal relationship upon clear and
convincing evidence that:
(f) the child is an adjudicated youth in need of care and both of the
following exist:
(i) an appropriate treatment plan that has been approved by the court
has not been complied with by the parents or has not been successful; and
(ii) the conduct or condition of the parents rendering them unfit is
unlikely to change within a reasonable time.
Section 41-3-609(1)(f), MCA. Clear and convincing evidence is
simply a requirement that a preponderance of the evidence be definite,
clear, and convincing, or that a particular issue must be established by a
preponderance of the evidence or by a clear preponderance of the proof.
This requirement does not call for unanswerable or conclusive evidence.
The quantity of proof, to be clear and convincing, is somewhere between
the rule in ordinary civil cases and the requirement of criminal procedure—
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that is, it must be more than a mere preponderance but not beyond a
reasonable doubt.
In the Matter of E.K., 2001 MT 279, ¶ 32, 307 Mont. 328, 37 P.3d 690. The paramount
concern is the health and safety of the child, In the Matter of A.T., 2006 MT 35, ¶ 20, 331
Mont. 155, 130 P.3d 1249, and the district court must give “primary consideration to the
physical, mental and emotional conditions and needs of the child.” Section 41-3-609(3),
MCA.
¶16 In this case, it is uncontested that both parents stipulated that A.J.W. be
adjudicated a youth in need of care. It is also clear that E.J. never completed her
treatment plan, having been arrested and incarcerated for several felony offenses before
completing the plan. She also failed to follow her plan in other ways including failure to
obtain counseling, failure to attend AA and failure to provide clear urine samples. The
only issue, therefore, was whether E.J.’s conduct or condition that rendered her unfit was
unlikely to change in a reasonable time. E.J. argues that the District Court’s finding that
she was unlikely to change within a reasonable time was clearly erroneous because it was
not supported by substantial evidence.
¶17 To the contrary, there was substantial evidence that E.J. was unlikely to change
her behaviors in a reasonable time. As the District Court found, the State had been
involved in efforts to protect A.J.W. since 2006 when she was placed in foster care
because of the severe alcohol abuse and violence in the home. E.J. was deeply involved
in those behaviors. A.J.W. was back home from March to December, 2007, when she
was finally removed because E.J. was arrested on a charge of stabbing M.W.
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¶18 E.J. had substantial problems dealing with her anger and aggression, particularly
toward M.W., to the extent that it led to termination of marriage counseling that was
ordered as part of the treatment plan. She manipulated requirements of the treatment
plan, including avoiding group therapy by committing to participate in AA and then not
following through with that commitment. She tried to avoid the urine analysis
requirement by trying to flush her system to mask results, and then stopped providing
samples. She often threatened, intimidated and berated social workers who were
attempting to work with her.
¶19 In July, 2008, in the midst of the treatment plan, E.J. instigated a serious incident
in which she followed, tailgated, and then stopped another driver while screaming
obscenities and making threats. She left that site and was involved in a wreck with a
vehicle towing a boat. When arrested she had a blood alcohol content of .221,
substantially in excess of the legal limit of .08. The result of the incidents was that she
pled guilty to several offenses and was sentenced to a term of incarceration followed by
supervised release. The District Court found that E.J.’s history of alcohol abuse and
anger issues make her a high risk to violate conditions of parole and to return to prison.
¶20 Expert testimony at the hearing indicated that while E.J. had made some progress
in treatment programs while incarcerated, those successes did not qualify as completion
of the treatment plan, the point of which had been to stabilize E.J.’s life so that she could
be reunited with A.J.W. To the contrary, E.J.’s compliance with her treatment plan had
been a material failure. Treatment in a custodial setting, according to the expert
testimony, is not an indicator of change and E.J. would need a substantial period of time
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in a supervised community setting prior to any consideration of reunification with her
daughter.
¶21 In summary, the evidence showed that E.J. lacked the ability to change her
destructive behaviors for anything more than a short period of time. The road rage
incident that led to her felony convictions indicates that her anger and alcoholism issues
pervade her life, and are not just limited to her relationship with M.W.
¶22 The evidence showed that E.J. had substantial issues with alcohol addiction and
anger; that she was manipulative and resistant to change and that her behaviors—
including failure to provide the most basic care and nurturing to her daughter—had
caused substantial damage. The District Court properly found, based upon the evidence,
that E.J.’s behavior was not likely to change in a reasonable time.
¶23 Issue Two: Was M.W. denied the effective assistance of counsel? M.W. contends
that his trial court attorney was ineffective for failing to move the District Court to order
“long-term custody” for A.J.W. under § 41-3-445, MCA, or appointment of a guardian
for her under § 41-3-444, MCA, as an alternative to termination of parental rights. M.W.
asserts that there was “no plausible reason” for his attorney to not move for long-term
custody and asserts that “it is likely the district court would have entertained such a plea.”
As to the guardianship alternative, M.W. notes that there are many difficult statutory
conditions for such an appointment, and concedes that appointment of a guardian “may
have been a long shot.”
¶24 Parents have a due process right to the effective assistance of counsel in
proceedings seeking to terminate parental rights. Matter of A.S., ¶ 20. This Court has
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suggested the attorney’s training and experience and the quality of the attorney’s
advocacy as two non-exclusive factors for the evaluation of a claim of ineffective
assistance of counsel in termination proceedings. Even if there were ineffective
representation, it is inconsequential unless the parent suffered prejudice as a result.
Matter of A.S., ¶ 31.
¶25 M.W. does not make any argument that his attorney lacked the training and
experience to adequately represent him and so we need not consider that point. The
remaining arguments are all record based and can be sufficiently reviewed based upon
the record on appeal.
¶26 As to the guardianship alternative, the statute relied upon by M.W., § 41-3-444,
MCA, provides that the court may appoint a guardian “upon the petition of the
department or guardian ad litem.” The statute does not provide that the parent may
petition for appointment of a guardian. Here both the State and the guardian ad litem for
the children recommended termination of parental rights, and the State must consent to
the appointment of a guardian. Section 41-3-444(2)(a), MCA. Since there was virtually
no chance that a guardian would have been appointed for A.J.W. as an alternative to
terminating M.W.’s parental rights, any failure to seek an appointment did not constitute
ineffective assistance of counsel.
¶27 M.W.’s argument for long-term custody under § 41-3-445, MCA, is similarly
tenuous. Section 41-3-445(8), MCA, lists “permanency options” that a district court may
consider for the care of a neglected child. Those include reunification with a parent,
modification of an existing custody order, adoption, appointment of a guardian under §
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41-3-444, MCA, or long-term custody. M.W. makes no showing or argument that the
District Court in this case was unaware of the permanency options listed in the statute.
M.W. offers only speculation that long-term custody would have been ordered in this
case if only a motion had been made by his attorney.
¶28 The record fully reflects the physical and emotional effects A.J.W. suffered from
living in a household with M.W. and E.J. The child had been in foster care for about a
year when the State petitioned for termination and for a year and a half when M.W. was
sentenced to prison. She was recovering from the effects of her early years and forming a
bond with the foster parents (extended relatives of E.J.) who desired to adopt her. Both
M.W. and E.J. recognized the value of this placement for A.J.W. The professionals who
had been working with the parents for an extended period of time with the goal of family
re-unification unanimously recommended that the best interest of the child required
termination of parental rights. In this setting, M.W.’s contention that he was deprived of
the effective assistance of counsel is unsupportable.
¶29 The District Court’s order terminating parental rights is affirmed.
/S/ MIKE McGRATH
We concur:
/S/ PATRICIA O. COTTER
/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
/S/ BRIAN MORRIS
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Justice James C. Nelson concurs.
¶30 I concur in the Court’s Opinion.
¶31 I offer one additional observation that was raised in M.W.’s brief, but which we
did not need to address in our Opinion. Appellate counsel raises a valid point regarding
the training and experience of counsel representing a parent whose rights are the subject
of a termination proceeding. Specifically, while our decision in In re A.S., 2004 MT 62,
¶ 26, 320 Mont. 268, 87 P.3d 408, requires that trial counsel’s effectiveness be
evaluated based on training, experience and advocacy, trial counsel’s actual training and
experience is seldom, if ever, made a part of the record in the district court.
¶32 Accordingly, when ineffective assistance of counsel (IAC) claims are raised,
appellate counsel is unable to offer any argument on trial counsel’s training and
experience without going outside the record. Similarly, this Court is in no position to
evaluate those components of our In re A.S. test. While this Court is able to deal with the
evidentiary aspects of IAC claims in criminal cases in post conviction proceedings under
Title 46, chapter 21, MCA, no similar proceedings exist for the evaluation of IAC claims
in parental rights termination cases.
¶33 Appellate counsel suggests that, in termination cases, trial counsel’s training and
experience should be made part of the record and that it is the trial court’s duty to inquire
about counsel’s training and experience in termination cases. See In re A.S., ¶ 27. I
agree. Parents are entitled to effective assistance of counsel in termination cases;
appellate counsel is entitled to raise such claims; and this Court is required to evaluate
those claims based on a record properly preserved in the trial court. Since it is unlikely
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that trial counsel is going to make his or her own training and experience a matter of
record, it is the duty of the trial judge to make sure that information is made a part of the
record.
¶34 With that observation, I otherwise concur in the Court’s Opinion.
/S/ JAMES C. NELSON
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