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Date: 01-17-2020
Case Style:
IN THE MATTER OF: B.H. and G.H. Youths in Need of Care
Case Number: 2020MT 4
Judge: Ingrid Gustafson
Court: SUPREME COURT OF THE STATE OF MONTANA
Plaintiff's Attorney: Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana
Kirsten H. Pabst, Missoula County Attorney, Jessica Finley, Deputy County Attorney, Missoula, Montana
Defendant's Attorney:
Description:
Need help finding a lawyer for representation for the termination of parental rights in Montana.
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On January 4, 2017,the Montana Department of Health and Human Services, Child
and Family Services Division (Department), filed a petition for each child, titled Petition
for Emergency Protective Services, Adjudication as a Youth in Need of Care and
Temporary Legal Custody after itremovedChildren from Mother’s care,asserting Mother
subjected Children to circumstances of abuse or neglect including the possession,
consumption, and distribution of methamphetamine around the Children. Immediately
after removal, the Department placed Children, along with a half-sibling who was also
removed from Mother’s care, with their maternal grandparents. The Department also
alleged a history of Mother’s involvement with child protective services dating back to
2014.
¶4 There were no allegations of abuse or neglect by Father who had been Children’s
primary parent most of their lives. Father was living in North Dakotaand not involved in
a relationship with Mother. At the time the Department removed Children from Mother,
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she had taken them from Father for a two-week visit but had refused to return them to
Father’s care. Father testified at the termination hearing that prior to the Department’s
intervention, Children lived with him and he was their primary care provider. When
Children were in his care, he recognized they had high needs and had enrolled Children in
services with Healthy Steps. In 2016, Mother checked into Mountain Home, a residential
treatment center for individuals with children. He had been talking with Mother and she
was getting sober and wanted to see Children. They agreed to a two-week visit where
Children could stay with Mother at Mountain Home. While on his way to retrieve Children
from Mother, she texted him he could not have them back and she would call the police if
he came. Despite her refusal to return Children to him, Father stayed in regular contact
with Mother and Children while Mother pursued sobriety at Mountain Home. When the
Department intervened, Mother texted him requesting he helpher get Children back.
¶5 The court set an intervention conference, which Father attended on January 23,
2017, which was followed by a show causeand adjudicationhearing on January 24, 2017.
Father indicated to the standing master at the intervention conference his desire to have
Children in his care.1 At the January 24th hearing, the State reported both Mother and
Father stipulated to its petitions2 and asked to set a dispositional hearing. There was no
1 Notes from the intervention conference state that Father “seeks placement of the children with him however the state is obligated to initiate an [Interstate Compact on the Placement of Children (ICPC)] as he lives in North Dakota.” There is no recordthat Father’s counsel objected. 2 The Minute Entry reflects the parents stipulated to adjudication as Youths in Need of Care (YINC)and to Temporary Legal Custody (TLC)being granted to the Department. A written order adjudicating Children as YINC and granting the Department TLC was issued February 16, 2017.
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discussion of Children’s current placement statusor Father’s desire for immediate custody
of Children. Despite Father’s desire to have Children in his care, his counsel did not object
to the placement with the maternal grandparents and did not request the court set a
placement hearingto settle the dispute over placement.
¶6 Father then appeared at the dispositional hearing on February 14, 2017. At that
hearing, the Department related the children were under the age of four and had a
substantial relationship with Father and that, since the intervention conference, the
Department had received “some documents from North Dakota that does[sic]present some
concerns . . . or there might be more concerns” but did not elaborate as to any specific
concerns the Department had with regard to Father. The Department also proclaimed as
Father resided in North Dakota an ICPC was required to place Children with him. The
Department also informedthe courtit was not going to develop a treatment plan for Father
until the ICPC was completed. Father’s counsel did not object to the ICPC or request a
placement hearing, but rather expressed concern that without a treatment plan in place for
Father, he could not be working on potential tasks during the ICPC. Counsel also advised
the court that Father had custody of Children for the majority of their lives and the
Department’s concerns were based on unsubstantiated reports previously investigated in
North Dakota. The Department then indicated that if its non-specific concerns were
alleviated after the ICPC and Children could be safely placed with Father, there would be
no further need for a dependent neglect (DN)case to be open on Children, and presumably
no need for any treatment plan for Father. Father’s counsel did not advise the court of
applicable statutes and Department policy mandating Father be considered as the first
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placement option. The court advised Father it did not expect him to appear in-person at
every court proceeding because of the travel distance and advised Father to remain sober,
stay employed, and have housing—which he was already doing. Thereafter, the
Department requested an expedited ICPC.
¶7 At status hearing on March 21, 2017, the Department reported it was still waiting
on the ICPC to be completed “before seeing if there’s any identified concerns” regarding
Father. Father’s counsel again made no objection to the ICPC, did not request a placement
hearing, and did not provide the Department any additional information to assist it in
assessing Father, the non-offending parent, as a safe and appropriate placement. Similarly,
at the status hearing on April 11, 2017, the Department again related the ICPC was not
completed relating to the court “they’re just finishing the process” and, upon the court
asking if there was something Father needed to do to complete it, the Department assured
the court there was not. Again, Father’s counsel made no objection to the ICPC, did not
request a placement hearing, and did not provide the Department any additional
information to assist in assessing Father as a safe and appropriate placement.
¶8 At the May 30, 2017 status hearing the Department reported that the ICPC was not
completed. Despite the Department’s representations that an ICPC was necessary to assure
Father was safe and appropriate before Children could be in his care, the Department also
reported Children were currently in North Dakota for a week-long visit with Father,
relating “from what I hear, that’s going well.” Again, Father’s counsel failed to object to
the ICPC, failed to request a placement hearing, and failed to point out the Department’s
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incongruous position that permitted Father care of Children for an extended visitation but
denied him immediate placement of Children in his care.
¶9 On July 11, 2017, the court held a status and extension of TLC hearing. At this
hearing, Father’s counsel acquiesced to extension of TLC by not responding when the court
asked if it was correct that all parties stipulated to extension of TLC. The Department
additionally advised that although it had provided Father some financial assistance to
accomplish prior visits with Children, it was discontinuing this assistance such that he
would have to find his own resources to accomplish visitation with Children. Father’s
counsel did not object to this discontinuation of visitation assistance nor did she pose any
objection to the ICPC. Again, she did not request a placement hearing or provide any other
advocacy for placement of Children with Father.
¶10 At the status hearing on September 12, 2017, Father’s counsel advised the court,
although she had not spoken to Father about the issue, the ICPC process had to be started
over as Father did not submit fingerprintsin time. Following this representation, the court
commented, “Well, it sounds like both of these parents are kind of irresponsible, you know,
and helter skelter, and not very – not very well-organized. And, you know, that doesn’t
bode well. If a guy can’t even keep a schedule to go down and get fingerprinted, I don’t
see how he’s possibly going to take care of two kids.” Rather than advising the court Father
had a consistent work history, a long-term stable residence, his long-term girlfriend’s two
children currently resided in his home with no apparent safety concerns, and he had
successfully parented Children over an extended visitation, Father’s counsel did nothing to
correct the court’s impression of Father’s inadequacy. Again, Father’s counsel did not
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object to the ICPC, did not request a placement hearing, and did not otherwise advocate
for placement of Children with Father.
¶11 At the November 7, 2017 status hearing, nearly a year after the commencement of
the case, the District Court noted a motion to approve a treatment plan for Father had just
been filed. To this point, the State had still not alleged any abuse or neglect on Father’s
part nor identified any documented evidence to indicate that Children should not be placed
with Father because of safety concerns. The State then reported a treatment plan had not
been previously offered as the Department was using the ICPC to investigate Father as a
possible safe placement, but was now requesting a treatment plan as the ICPC had been
canceled.3 Father’s counsel again did not object to the ICPC and acquiesced to considering
a treatment plan for Father and another status hearing was set for December 5, 2017. At
the December5, 2017 status hearing—whichthe District Court thought was a dispositional
hearing—ratherthan object to the need for a treatment plan or request a placement hearing,
Father’s counsel related she would be meeting with Father’s caseworker later in the dayto
try to address issues with the proposed treatment plan and the court set a hearing on the
treatment plan for December 12, 2017.
¶12 At hearing on December 12, 2017, rather than object to the need for a treatment
plan, Father’s counsel indicated Father agreed to the treatment plan—which required he
3 At the termination hearing, the Department endorsed the explanation it provided in Father’s treatment plan for the failure of the first ICPC request: The ICPC was not completed as Father submitted fingerprints which needed to be redone because there was smearingand Father reported he was not told of the need to resubmit fingerprints until North Dakota canceled the initial ICPC for failure to resubmit the fingerprints.
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cooperate with and complete the ICPC process; maintain contact with Children; complete
a chemical dependency evaluation; and complete parenting classes. Nearly twelve months
into the case and still without indication of particular safety or parenting deficiencies on
Father’s part, a treatment plan was ordered for Father.
¶13 At the permanency hearing on January 23, 2018, Father’s counseladvisedthe court
as to the miscommunication regarding Father’s fingerprints, which Father believed had
been appropriately submitted to North Dakota, and that Father had already completed a
chemical dependency evaluation.4 Father’s counsel noted that prior to removal Father was
an active participant in the lives of and the primary caregiver for Children. Rather than
object to the need for an ICPC, Father’s counsel indicated another ICPC would need to be
donein order to return Children to Father. The Department reportedMother had just been
released from jail after pleading guilty to a felony in Minnesota.5 The District Court
commented, “It sounds like [Mother’s] making some progress. She’s probably the most
hopeful of the bunch here, it sounds like.” Again, Father’s counsel did not refute this
perception and failed to provide the court information as to Father’s situation. The court
approved the permanency plan of reunification with Mother or Father with the alternative
of adoption by the maternal grandmother. The court extended TLC for an additional six
months.
4 The evaluation did not recommend Father participate in any additional treatment or chemical dependency services, completely refuting the vague concerns the Department expressed at the outset of the case that Father possibly had drug or alcohol issues. 5 Mother was in and out of jail throughout the pendency of the case.
9
¶14 On February 20, 2018, the Department renewed its request for North Dakota to
conduct an ICPC. At the March 13, 2018 status hearing, the Department related there were
miscommunication errors which led to the prior ICPC not being completed and the District
Court suggested perhaps Father could take all three children, rather than just his two
Children, expressing it would be nice to keep all the children together.
¶15 Donal Anderson, North Dakota’s ICPC worker, contacted Father on March 20,
2018. Father and his significant other again completed fingerprinting in April 2018. On
May 14, 2018, North Dakota Child and Family Services (CFS) mailed Father the kinship
care study paperwork,which Father completed and returned by May 17, 2018.
¶16 In late May 2018, Father picked Children up for an extended visitation and took
them to his home in North Dakota where they stayed with Father for approximately three
weeks. During this time, North Dakota CFS had evaluated Father’s home and found his
home appropriate and suitable for children. North DakotaCFSrequested Father provide it
proof of his chemical dependency evaluation,6 vaccinations of his dogs, and completion of
parenting classes. As Father testified at the termination hearing, during this time he was
working, caring for Children on their extended visitation, and waiting for his paycheck so
he could complete the final dog vaccination when North Dakota CFS closed the ICPC for
Father’s failure to provide this documentation. The Department admitted by the time
Children went to North Dakota for a three-week visit with Father the North Dakota home
6 The Department admitted it had Father’s completed chemical dependency evaluation at the time it re-requested North Dakota CFS conduct an ICPC,but that evaluation was not provided to North DakotaCFS.
10
study was complete, his home was safe and suitable for Children, there were no drug or
alcohol concerns, Father’s criminal background was for a remote DUI before Children
were born, and there were no safety concerns. Despite this, the Department seemed to fault
Father for caring for Children, rather than having his parents, who the Child Protection
Specialist(CPS)believed to be safe, care for Childrenduring the extended visit.7
¶17 At status hearing May 29, 2018, Children’s attorney expressed concern that if
Children were reunified with Father, there needed to be a plan for the maternal
grandparents—who had been Children’s placement throughout the case—to keep contact
7 [CPS Sorenson] No. The only concerns were the – you know, the dogs not being vaccinated. But as far as safety concerns, no. [Father’s Counsel] Okay. And by that point as well, Mr. Anderson [the North Dakota ICPC case worker] had the background checks and the fingerprints, correct? [CPS] Yes. [Father’s Counsel] Okay. And were any concerns noted to you prior to the kids going over to North Dakota? [CPS] No. . . .
[Father’s Counsel] Okay. So would you agree that by the time the kids went, Child and Family Services, whether in North Dakota or in Montana, had more information about [Father’s] home than they did about his parents’? [CPS] Yes. [Father’s Counsel] Okay. So there likely were not safety concerns for the children while in [Father’s]care in North Dakota? [CPS] Likely, probably not, yeah. [Father’s Counsel] Okay. And if the visit was in the first two weeks in June and they were primarily with [Father], does it surprise you, then, that he – do you suspect that he was probably fairly busy during that time frame? [CPS] Yes. He was working quite a bit. [Father’s Counsel] And spending time with the kids? [CPS] Yep. [Father’s Counsel] Okay. And so, he’s being faulted in the ICPC over three weeks, from June 1st to June 21st, for not appropriately getting back to Mr. Anderson in North Dakota, correct? [CPS] Correct.
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with Children. Despite Children being on an extended visitation with Father and no
identified safety concerns, it was related to the court that maternal grandmother was not
open to a guardianship as it was not as permanent as adoption and the court then expressed,
“you know, my inclination is to proceed with permanent placement with the grandmother.”
Father’s counsel again failed to object to the ICPC, failed to request a placement hearing,
and failedto advocate for reunification of Children with Father.
¶18 In early July 2018, Father suffered a significant work-related injury, requiring
hospitalization and precludinghim from returning to work for four months. At the status
hearing on July 24, 2018, the Department reiterated North Dakota CFS had closed the ICPC
and, as such, advised it would be seeking termination of Father’s parental rights. At this
point, Father, rather than his counsel,expressed objection, as the non-offending parent, to
having to complete an ICPC.
THE FATHER: Okay, I am so confused about all this. Like, I -- I have -- I seen worst parents than me. And I have done nothing wrong in this situation, to lose my kids. The mother (audio cutting out) I did. So how is it that I’m getting terminated because of this? THE COURT: Well, apparently -THE FATHER: And I have -- I have no prior things with kids or got in any trouble. There’s worst parents out there that get their kids back. I don’t get this crap. THE COURT: Well, this “crap”is, you got to participate. THE FATHER: I have been participating the whole time. THE COURT: According to North Dakota, you’re not. I –they’re there and you’re there; I’m not. I’m just --all I can tell you is what they report. So you can talk to your attorney. Maybe she can give you more information than that. But that’s the reason we’re where we’re at. THE FATHER: Okay. So I’m going to get my kids taken because of -because I have done nothing wrong? THE COURT: Well, because you’ve done nothing, apparently, yes. But, the-
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THE FATHER: I shouldn’t -- I shouldn’teven have to do an ICPC. I didn’t do anything wrong to get them taken away from me. THE COURT: Unfortunately, we have to follow the law.
. . .
THE FATHER: The law –there’s nothing against me that should be against me. I didn’t get my kids taken; the mother did.
¶19 At the termination hearing on January 28, 2019, CPS Jessica Sorenson,who was the
Department case worker assigned to the case from March 2018 until August 2018,testified
Father was defiant toward getting tasks completed and he did not understand why he had
to do an ICPC when he had not done anything wrong and had parented his children the
majority of their lives.
¶20 Despite an absence of allegations in the petitions for adjudication and TLC and no
treatment needs identified by Father’s chemical dependency evaluation, CPS Sorenson
asserted Father potentially had drug or alcohol problems. This concern centered around
prior reports to North Dakota CFS. These reports were investigated and all
unsubstantiated. North Dakota CFS determined they did not rise to the level supporting
Department intervention. The Department was in possession of the North Dakota CFS
reports at the intervention conference at the outset of the case. Although Father had a
remote DUI occurring before Children were born, the Department did not request Father
drug test and did not have any positive drug or alcohol tests to suggest a current drug or
alcohol problem. Further, prior to renewing the ICPC request Father had undergone a
chemical dependency evaluation whichdid not identify Father to have any treatment needs.
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¶21 CPS Sorenson faulted Father for not having lined up speech or other therapists for
Children; but admitted on cross-examination that when Father had previously had Children
in his care,he had been able to identify issues and obtain services. She also admitted Father
was not given any information as to when Children would be in his care and he could not
feasibly set up such services without this information.
¶22 Jill Patton, the CPS case worker who took over the case after CPS Sorenson left,
testified her primary concern was that Father struggled to call Children weekly. She related
Father had not shown effort to understand his children’s needs. As anexample, she related
that she had heard that during his summer visit with Father in 2018, B.H. was upset about
Father throwing him in the pool and that Father ignored B.H. being upset. On
cross-examination though she admitted she had no contact with Father or with Father’s
mother about what actually occurred during the summer visit, that she was not on the case
at that time,and that the Department had no communication with Father to determine what
his reaction was.
¶23 At the termination hearing, Father testified he was currently employed at Siewert
Farms and had been so for the past four months. This was his first job afterhe was off for
about four months recovering from a broken back sustained in a work-related accident.
Prior to that, he was steadily employed in the construction industry. He had lived in his
current residence for the past six years and his girlfriend, Hannah, and her two children,
aged sevenand twelve, had resided with him the last four years. He related he and Hannah
made several trips to Montana at the outset of the case but had to stop as the trips were too
expensive. Father testified that shortly after B.H. was born in 2013, Mother left him for
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another guy and left B.H. in his care. Later, when G.H. was born, Mother cared for her for
a short time before Mother disappeared leaving G.H. in his sole care. When Children were
in his care,he arranged daycare, secured services to address Children’s needs, and provided
their primary care.8 Father related that during the pendency of the case, Children had
extended visits with him in which they hung out at the house and went to his mother’s
home, and he took them camping and fishing. He thought the visits went well and was
never contacted about any concerns after the visits. On the way back to Montana from
their summer 2018 visit, Childrenexpressed they did not want to go back to their maternal
grandmother. Finally, Father admitted he did not timely complete the first ICPC, and he
had not been consistent with telephone calls to Children, explaining they were first going
to be on Mondays but that did not work for him and the maternal grandmother, then they
were going to be on Saturdays,but he started working on the weekends and got off toolate
to call. Maternal grandmother testifiedshe does not like Father as a human being, did not
contact him with any concerns about his visits, and faulted his girlfriend for having G.H.
call her mom.
¶24 At the conclusion of the termination hearing, Mother’s counsel argued that if the
court did not terminate Father, it should not terminate Mother. The court then responded
this was a reasonable request and related, “it’s unfortunate that we didn’t have this hearing
about 18 months ago so that we could really see what they were up against and what they
needed to do.” Father’s counsel did not make or even request to make closing argument to
8 Father testified Children did spend some time with their grandparents as he thought it was normal for children to visit and spend time with their grandparents.
15
advocate placement of Children with Father. The District Court determined Father failed
to complete his treatment plan and the conduct or condition rendering him unfit to parent
was not likely to change within a reasonable period of time and terminated Father’s
parental rights. Although the District Court terminated Father’s parental rights, it indicated
the contrary inits oral order, “that if the parents establish some kind of showing that they’re
safe and consistent and solid, that they can continue to have contact with the children.”9
Father appeals.
STANDARD OF REVIEW ¶25 The Department has the burden of proving by clear and convincing evidence that
the statutory criteria for termination of parental rights have been satisfied. In re E.Y.R.,
2019 MT 189, ¶ 21, 396 Mont. 515, 446 P.3d 1117; In re K.L., 2014 MT 28, ¶ 14, 373Mont.
421, 318 P.3d 691. For parental rights cases, clear and convincing evidence is the
requirement that a preponderance of the evidence bedefinite, clear, and convincing. In re
E.Y.R.,¶ 21(citingIn re K.L., ¶ 14).
¶26 This Court reviews a district court’s findings of fact for clear error and conclusions
of law for correctness. In re M.V.R., 2016MT 309, ¶ 23, 385 Mont. 448, 384 P.3d 1058. A
factual finding is clearly erroneous if it is not supported by substantial evidence, if the court
misapprehended the effect of the evidence, or if review of the record convinces the Court
a mistake was made. In re J.B., 2016 MT 68, ¶ 10, 383 Mont. 48, 368 P.3d 715. If the
9 This Court has previously held that district courts have the discretion to rule it is in a child’s best interest to maintain contact with a parent post-termination. However, a district court cannot order visitation, but can require the Department to give consideration to an adoptive family voluntarily allowing contact with the birth parent prior to consenting to adoption. In re D.G., 244 Mont. 17, 22-23, 795 P.2d 489, 492(1990); In re V.B., 229 Mont. 133, 137, 744 P.2d 1248, 1250 (1987).
16
court’s findings of fact are not clearly erroneous and if the court’s conclusions of law are
not incorrect, we will not reverse a district court’s decision to terminate parental rights
unless we determine the district court abused its discretion. In re E.Y.R., ¶ 21; In re K.L.,
¶ 16.
¶27 Parents have a due process right to effective assistance of counsel. In re A.S.,
2004 MT 62, ¶ 20, 320 Mont. 268, 87 P.3d 408. Whether a parent has been denied his or
her right to due process is a question of constitutional law over which our review is plenary.
In re A.S., ¶ 9.
DISCUSSION ¶28 Whether Father’s due process rights were infringed by ineffective assistance of counsel resulting in his parental rights being inappropriately terminated.
¶29 Fatherasserts he received ineffective assistance of counsel as it relates to placement
of Children through the ICPC, the disposition of the case, and Father’s stipulation to a
treatment plan. Father asserts this case is analogous to In re E.Y.R. in that he was the
non-offending, non-custodial parent. There were no allegations of abuse or neglect ever
brought by the Department in this case against him. He had priority to be considered as
the first placement option. Similar to the circumstances in In re E.Y.R., Father asserts that
but for his counsel’s failure to advocate for him to correct legal misunderstandings, failure
to object to an unnecessary treatment plan containing tasks not supported by evidence, and
failure to request a placement hearing to require the Department to present objective,
demonstrable circumstances of imminent safety risk to Children if placed in his care and
request dismissal, his parental rights would not have been terminated.
17
¶30 Father was the non-custodial parent at the time Children were removed and the
initial petitionsfor EPS, adjudication, and TLC contained no allegations of abuse or neglect
on Father’s part. As such, Father asserts his counsel was ineffective in failingto object to
the Department’s requirement that placement with him be subject to an ICPC. Statements
made by the Department at the intervention conference and dispositional hearing indicate
Father was subject to an ICPC rather than immediate placement only becausehe lived out
of state. Father asserts his counsel ineffectively failed to object to the ICPC and instead
advised him to agree to an unnecessary ICPC. Counsel did not request documentation from
the Department or otherwise hold the Department to its own standard of investigating
Father or presenting Father or the court with documentation of imminent safety concerns
which would prevent placement with him or necessitate more in-depth assessment through
an ICPC. Father asserts his counsel ineffectively failed to request a placement hearing,
which could have provided the court an opportunity to receive evidence on any imminent
safety concerns and determine placement with Father did not require an ICPC. As the
Department presented no evidence at disposition that Father was unfit, Father asserts his
counsel should have advocated for placement with him and dismissal of the case pursuant
to § 41-3-438(3)(d), MCA. By his counsel’s continued failureto object to the ICPC, failure
to put the Department to its evidentiary burden, failureto request a placement hearing,and
failure to advocate for immediate placement and dismissal combined with counsel’s
advising him to agree to an ICPC and a treatment plan and then failing to object to tasks
therein not supported by evidence, Father was placed on a path to termination.
18
¶31 The State asserts Father cannot establish how this case is analogous to In re E.Y.R.
when In re E.Y.R. did not come out until months after thetermination hearing in this case.
The State asserts Father’s arguments related to In re E.Y.R. are unavailing as it is
unreasonable to fault Father’s counsel for not advocating for standards and procedures that
did not exist until this Court’s decision in In re E.Y.R. The State asserts the process and
standards for evaluating placement with a non-custodial parent set forth in In re E.Y.R.do
not incorporate relevant statutes and Department policy. Finally, the State asserts the
Department was aware of good cause to indicate Children’s safety could not be assured if
they were immediately placed with Father. A. Under relevant legal authority, the Department did not prove the existence of good cause to deny immediate placement with Father. ¶32 The State asserts the framework set forth in In re E.Y.R., ¶ 29, requiring the
Department “determine if there are any observable or substantiable imminent safety risks
to the child if the child is placed in the care of the non-custodial parent” or “objective,
demonstrative circumstances indicative of an imminent safety threat,” is too narrow of a
standard and is not supported by §§41-3-101(1)(e) (“all children have a right to a healthy
and safe childhood in a permanent placement”) and -101(3), MCA (“whenever it is
necessary to remove a child from the child’s home, the [D]epartment shall, when it is in
the best interests of the child, place the child with the child’s noncustodial birth parent”).
We do not agree.
19
¶33 Section 41-3-101, MCA, sets forth, in pertinent part, the policy for the state of
Montana in child dependency cases:10
(1)It isthepolicyofthestateofMontanato: (a) provide for the protection of children whose health and welfare are or may be adversely affected and further threatened by the conduct of those responsibleforthechildren’scareandprotection; (b) achieve these purposes in a family environment and preserve the unity andwelfareofthefamilywheneverpossible; (c) ensure that there is no forced removal of a child from the family based solely on an allegation of abuse or neglect unless the department has reasonablecausetosuspectthatthechildisatimminentriskofharm; (d)recognizethatachildisentitledtoassertthechild’sconstitutionalrights; (e) ensure that all children have a right to a healthy and safe childhood in a permanentplacement[.]
§41-3-101(1),MCA(emphasisadded).
¶34 Consistent with the mandate of § 41-3-101(1), MCA, that there be reasonable cause
to suspect a child is at “imminent risk of harm” for the Department to remove the child
from his/her parent, in assessing existence of imminent risk, the Department has
implemented the Montana Safety Assessment and Management System (SAMS) model.
See Child and Family Services Policy Manual, § 201-2 (DPHHS 2015),
https://perma.cc/MCD9-2HQV. To determine if removal based on imminent risk of
harm—present or impending danger—is supported, the Department intake CPS completes
a safety assessment. See Child and Family Services Policy Manual, § 201-2 (DPHHS
10 Title41, chapter 3, MCA, further, lays out detailed procedural requirements for the Department for investigating reports of child abuse and neglect, § 41-3-202, MCA, for providing Emergency Protective Services, §§ 41-3-301, -427, and -432, MCA, for adjudicating a youth in need of care, § 41-3-437, MCA, for determining disposition of the child after adjudication, § 41-3-438, MCA, and for seeking temporary legal custody of a child, § 41-3-442, MCA, as well as the Department’s requisite burdens of proof at each stage, § 41-3-422, MCA.
20
2015), https://perma.cc/MCD9-2HQV. “The purpose of [the] safety assessment is to
determine if there is present and/or impending danger, i.e., are there safety factors that meet
the safety threshold?” See Child and Family Services Policy Manual, § 201-2 (DPHHS
2015), https://perma.cc/MCD9-2HQV. The safety threshold is met when five criteria
apply: (1) the danger can result in a severe effect, such as significant pain, serious injury,
disablement, grave or debilitating physical health or physical conditions, acute or grievous
suffering, terror, impairment, or death; (2) the danger is likely to occur in the immediate to
near future; (3) the danger is observable, that is, it is “real, can be seen, can be reported,
and is evidenced in explicit, unambiguous ways”; (4) there is a vulnerable child; and
(5)family conditions which can affect a child are out of control. Child and Family Services
Policy Manual, § 201-2 (DPHHS 2015), https://perma.cc/MCD9-2HQV. Contrary to the
State’s assertion, the Department does recognize there must be observable and imminent
safety risks—danger—to keep a child from being cared for by the child’s natural parent.
¶35 Section 41-3-101(3), MCA, provides:
Inimplementingthischapter,wheneveritisnecessarytoremoveachildfrom the child’s home, the department shall, when it is in the best interests of the child, place the child with the child’s noncustodial birth parent or with the child’s extended family, including adult siblings, grandparents, great-grandparents, aunts, and uncles, when placement with the extended family is approved by the department, prior to placing the child in an alternativeprotectiveorresidentialfacility. Priortoapprovingaplacement, thedepartmentshallinvestigatewhetheranyonelivinginthehomehasbeen convictedofacrimeinvolvingseriousharmtochildren.
The State argues § 41-3-101(3), MCA, allows the Department to place a child with a
third-party caregiver rather than a safe, fit birth parent if the Department believes such is
in the best interest of the child. We are not persuaded by this argument nor is it supported
21
by the Department’s own policy that, “Placement with a non-custodial parent is presumed
to be in the best interest of the child.” Child and Family Services Policy Manual, § 304-1
(DPHHS 2013), https://perma.cc/8FXV-62VS; see also In re J.H., 2016 Mont. 35, ¶ 23,
382 Mont. 214, 367 P.3d 339. Further, this Court has also held to the contrary in In re
A.J.C., 2018 MT 234, ¶ 41, 393 Mont. 9, 427 P.3d 59:
Father contends, “It is not the function of the State to choose better or different parents for children whose natural parents pose no safety risk, even where, in the State’s subjective view, more desirable options may be available. Such a role is not to be played by the State even at the behest of children who may wish for different parents.” We agree. There is a presumption that the best interests of the child are served in the custody of the
natural parent. In re J.H.,¶ 23. Thus, the State’s argument that the Department may choose
a third-party caregiver over a fit parent because it believes this is in the best interest of a
child is incorrect.
¶36 In addition to the presumption the custody of a natural parent is in the child’s best
interests, the natural parent’s right to the care and custody of his or her children is a
fundamental constitutional interest protected by both the United States Constitution and
the Montana Constitution. See In re A.S.A., 258 Mont. 194, 197, 852 P.2d 127, 129 (1993)
(citing Article II, § 17, of the Montana Constitution); In re R.B., 217 Mont. 99, 102-03,
703 P.2d 846, 848 (1985); Santosky v. Kramer, 455 U.S. 745, 753-54, 102 S. Ct. 1388,
1394-95 (1982) (citing the Due Process Clause of the Fourteenth Amendment); Stanley v.
Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212-13 (1972) (citing the Due Process Clause
of the Fourteenth Amendment, the Equal Protection Clause of the Fourteenth Amendment,
and the Ninth Amendment to the United States Constitution). The United States Supreme
22
Court “has frequently emphasized the importance of the family. The rights to conceive
and to raise one’s children have been deemed ‘essential,’ ‘basic civil rights of man,’ and
‘rights far more precious . . . than property rights.’” Stanley, 405 U.S. at 651, 92 S. Ct.
at 1212 (internal citations omitted). Both natural parents have the constitutional right to
custody of their children. See Stanley, 405 U.S. at 651, 92 S. Ct. at 1212 (“The private
interest here, that of a man in the children he has sired and raised, undeniably warrants
deference and, absent a powerful countervailing interest, protection.”).
¶37 The State undeniably also has powerful interests to “provide for the protection of
childrenwhosehealthandwelfareareormaybeadverselyaffectedandfurtherthreatened
by the conduct of those responsible for the children’s care and protection.”
Section 41-3-101(1)(a), MCA. But when the State moves to intervene in a family for the
protection of a child, the state “must provide the parents with fundamentally fair
procedures.” See In re R.B., 217 Mont. at 103, 703 P.2d at 848 (quoting Santosky, 455U.S.
at 754, 102 S. Ct. at 1395); see also Stanley, 405 U.S. at 649, 92 S. Ct. at 1211.
Furthermore, when the State intervenes and removes a child from one parent, it assumes a
good-faith duty to provide reasonable efforts to reunite the child with the other parent. In
re A.J.C., ¶ 40. Thus, if a state has legitimate concerns regarding the safety of a child in a
parent’s custody, it must plead those concerns and prove them to the court. Here, the
Department did not do so, offering only the vague assertion that there might be some
concerns about Father, and depending on the ICPC to turn up concerns to retroactively
justify the Department’s assertion.
23
¶38 These constitutional rights to parent one’s own children find protection in our
statutes. Section 40-6-221, MCA, recognizes the mother and father of a child “are equally
entitled to the parenting, services, and earnings of the child.” And if one parent is “unable
or refuses to exercise parenting or hasabandoned the family, the other parent is entitled to
the parenting, services, and earning of the child.” Section 40-6-221, MCA. Title 41,
chapter 3, MCA, provides procedural protections throughout the Department’s intervention
into a family to strike the delicate balance between ensuring the safety of children and
respecting the fundamental constitutional rights of parents.
¶39 Contrary to the State’s assertion, this legal framework is consistent with our prior
caselaw, and this Court’s recognition of the constitutional rights of a natural parent to
parent his/her child and the child’s right to be placed with his/her legal/birth parents unless
that parental authority has been abused. “This careful protection of parental rights is not
merely a matter of legislative grace, but is constitutionally required. The integrity of the
family unit has found protection in the Due Process Clause of the Fourteenth Amendment,
the Equal Protection Clause of the Fourteenth Amendment, and the Ninth Amendment.”
In re A.R.A.,277 Mont. 66, 70, 919P.2d 388, 391 (1996) (internal quotations and citations
omitted).
¶40 “It has long been the law in Montana that where a third party seeks custody to the
exclusion of a natural parent, the right of the natural parent prevails until a showing of
forfeiture of that right.” Babcock v. Wonnacott, 268 Mont. 149, 152, 885 P.2d 522, 524
(1994). A finding of abuse, neglect, or dependency is the jurisdictional prerequisite for
24
any court-ordered transfer of custody from a natural parent to the Department.11 See
Babcock, 268 Mont. at 152, 885 P.2d at 524. While § 41-3-101(3), MCA, provides for
consideration of the best interest of the child, we have previously held that use of the best
interest standard without more is improper to grant a nonparent custody over a natural
parent, in that any showing that a nonparent may be able to provide a better environment
than can a natural parent is irrelevant to the question of custody between the two in view
of the constitutional rights of a parent to custody. See Cromwell, ¶ 22. A district court
may not use the best interest of the child standard as authority to deprive a natural parent
of his or her constitutionally protected rights in favor of the Department absent a finding
of abuse and neglect or dependency on the part of that parent. See Cromwell, ¶ 22; In re
A.R.A., 277 Mont. at 72, 919 P.2d at 392. Interpreting § 41-3-101(3), MCA, to allow the
Department to use the best interest of the child test to award custody to a nonparent absent
a court finding of abuse or neglect or dependency regarding the natural parent, could raise
constitutionalconcerns.
¶41 The State asserts placement with Father was not required as the Department
documented good cause not to immediately place Children with Fatherunder Department
11Babcock and In re A.R.A.both involved a child custody dispute between a nonparent, third party and a natural parent. These cases were decided before the1999 revisions to §§40-4-211(4)(b) and 40-4-228, MCA, which allow a court to award a parental interest to a person other than a natural parent if the natural parent engaged in conduct contrary to the parent-child relationship, the nonparent has established a child-parent relationship with the child, and it is in the best interests of the child to continue that relationship. Section 40-4-228(2), MCA. Section 40-4-228, MCA, however, does not apply when an action is pending under Title 41, chapter 3, MCA. See § 40-4-228(1), MCA. Thus, these cases are still valid precedent that a finding of abuse, neglect, or dependency is required to transfer custody to the Department when an action is pending under Title 41, chapter 3, MCA, as is the case here. See Cromwell v. Shaefer, 2018 MT 235, ¶¶ 21-22, 393 Mont. 22, 427 P.3d 67.
25
Policy § 304-1, which states thereis no requirement to place a child with the non-custodial
parent if good cause to the contrary exists. This argument, too, is not persuasive.
¶42 Consistent with our statutory framework, a parent’s fundamental rightto parent, and
the requirements of § 40-6-221, MCA, the Department has adopted a policy regarding
non-custodial parents:
When a child must be removed from the home of the custodial parent because of child abuse or neglect, the non-custodial parent is the first placement option for the child considered by the Child Protection Specialist. In general, placement of the child with the non[-]custodial parent is more favored than placement with a member of the child’s extended family. Placement with a non-custodial parent is presumed to be in the best interests of the child. Unless the Department has documented evidence to indicate that the child should not be placed with the non-custodial parent because of safety concerns, the non-custodial parent should be the first placement option considered.
Legal/birth parents have the right to parent their children unless a court finding or circumstances negate that right. As a corollary, children have the right to be placed with their legal/birth parents unless that parental authority has been abused.
. . .
[W]hen the parental rights of one parent are terminated, the parent whose rights have not been terminated has legal custody of the child (absent an adjudication of youth in need of care based upon the parenting behavior of the parent whose rights ha[ve]not been terminated).
. . .
The non-custodial parent is the first placement option for the child unless the Child Protection Specialist has documented good cause to the contrary exists indicating placement with the non-custodial parent could not assure the child’s safety. The Child Protection Specialist must document and provide a written copy to the non-custodial parent as to why such placement is not in the child’s best interests.
26
Child and Family Services Policy Manual, § 304-1 (DPHHS 2013),
https://perma.cc/8FXV-62VS (emphasis added).
¶43 Department Policy § 304-1, which according to the State, expounds on § 41-3
101(3), MCA, delineates seven circumstances under which the Department may determine
“good cause to the contrary” exists that the child’s safety could not be assured if the child
were immediately placed with the non-custodial parent:
(a) Child Protective Services history which poses risk to the child; (b) Parental rights terminatedunder a dissolution decree; (c) Parental rights involuntarily terminated to a child other than the child who is the subject of the current proceeding; (d) Conviction within the last five years for a felony which indicates a risk to the child including, but not limited to: (1) child abuse or neglect; (2) spousal abuse; (3) crimes against children (including child pornography); (4) crime involving violence; or (5) drug-related offense. (e) Non-custodial parent refuses placement; (f) Documented mental illness which would impair the non-custodial parent’s parenting ability; or (g) Putative parent denies paternity.
Child and Family Services Policy Manual, § 304-1 (DPHHS 2013),
https://perma.cc/8FXV-62VS. When the non-custodial parent requests custody of the
child, “documentation of good cause would result in immediate implementation of a
Treatment Plan for the non-custodial parent to address current and past issues.”12 Child
12 This follows from the requirements of §§ 41-3-442(1) and -443(6), MCA. To award temporary legal custody to the Department, the court must find by a preponderance of the evidence that (a) dismissing the petition would create a substantial risk of harm to the child or would be detrimental to the child’s physical or psychological well-being; and (b) reasonable services have been provided to the parent or guardian to prevent the removal of the child from the home or to
27
and Family Services Policy Manual, § 304-1 (DPHHS 2013), https://perma.cc/8FXV
62VS. But the policy reiterates “[p]lacementof the childwith his/hernon-custodial parent
is presumed to be in the best interests of the child. Therefore, if good cause to the contrary
does not exist, the child shall be placed with the non-custodial parent.” Child and Family
Services Policy Manual, § 304-1 (DPHHS 2013), https://perma.cc/8FXV-62VS. Here, the
Department did not immediately implement a treatment plan for Father as would have been
required had the Department shown placement with Father to be an immediate safety risk
—good cause to the contrary.
¶44 Montana has adopted the ICPC, which prohibits placing children across state lines
for “foster care or as a preliminary to a possible adoption unless the sending agency shall
comply with” the requirements of the ICPC statutes. Section 41-4-101, MCA. The
Department adopted the regulations promulgated by the Association of Administrators of
the Interstate Compact on the Placement of Children, which “include clarifications of the
applicability of the interstate compact on the placement of children.” See Admin. R. M.
37.50.901 (2012). Regulation 3 provides limited exceptions to its applicability for
make it possible for the child to safely return home, except as provided under § 41-3-423. See § 41-3-442(1), MCA. Section § 41-3-443(6), MCA, requires the court to order a treatment plan for an offending parent of a child adjudicated as a youth in need of a care within thirty days of the dispositional hearing, except for good cause shown. The treatment plan must identify the problems or conditions that resulted in the abuse or neglect of the child. Section 41-3-443(2)(a), MCA. Thus it follows, that when the non-custodial parent whose parental rights are intact is a possible and willing temporary or permanent placement, the court must award temporary or permanent legal custody to that non-custodial parent, unless it first makes the findings required under § 41-3-442(1), MCA, in regard to that parent to justify the need for a treatment plan under §41-3-443(2)(a), MCA.
28
placement with non-custodial parents.13 See ICPC Regulation No. 3 (Association of
Administrators of the Interstate Compact on the Placement of Children 2011)
https://perma.cc/YC6U-5RTX. The State asserts if the exception under Regulation 3
applied, the Department would not have been able to continue working with Mother as
Regulation 3 contemplates dismissal of the case without further jurisdiction. We reject use
of an ICPC to thwart a fit, safe,custodial parent from being the placement for his/her child
while the Department works with the offending parent—a specific disposition provided for
in § 41-3-438(3)(c), MCA.14 Such would impermissibly expand the scope of the ICPC
13 As we did in In re E.Y.R., we assume, without deciding, that the ICPC can be applied to non-custodial natural parents under some circumstances, because no party has challenged such application. We note, however, that a growing number of states have rejected the validity of applying the ICPC and Regulation 3 to non-custodial parents because Regulation 3 “impermissibly expand[s] the scope of the ICPC beyond the” language of the statute and results in a system that violates the State’s “constitutional responsibility to safeguard parents’ fundamental right to raise their children.” In re R.S, 215 A.3d 392, 407, 409(Md. Ct.Spec. App. 2019); see also McComb v. Wambaugh, 934 F.2d 474, 481 (3d Cir. 1991); Ark. Dep’t of Human Servs. v. Huff, 65 S.W.3d 880, 887-88 (Ark. 2002); In re C.B., 116 Cal. Rptr. 3d 294, 299-302 (Cal. Ct. App. 2010); In re Emoni W., 48 A.3d 1, 6-11 (Conn. 2012); D.B. v. Ind. Dep’t of Child Servs., 43 N.E.3d 599, 603-04 (Ind. Ct. App. 2015); In re S.R.C.-Q., 367 P.3d 1276, 1279-82 (Kan. Ct. App. 2016); In re A.X.W., 2011 Mich. App. LEXIS 983, *27-31 (Mich. Ct. App. 2011);In re Alexis O., 959 A.2d 176, 181-85 (N.H. 2008); In re Rholetter, 592 S.E.2d 237, 243-44 (N.C. Ct. App. 2004); In re C.R.-A.A., 521 S.W.3d 893, 903-908 (Tex. Ct. App. 2017); In re Dependency of D.F.-M., 236 P.3d 961, 966-67 (Wash. Ct. App. 2010); Vivek S. Sankaran, Out of State and Out of Luck: The Treatment of NonCustodial Parents Under the Interstate Compact on the Placement of Children, 25 Yale L. & Pol’y Rev. 63 (2006); Josh Gupta-Kagan, The Strange Life of Stanley v. Illinois: A Case Study in Parent Representation and Law Reform, 41 N.Y.U. Rev. L. & Soc. Change 569 (2017). Or have significantly limited the application of the ICPC in relation to non-custodial parents. See Donald W. v. Dep’t of Child Safety, 444 P.3d 258, 269-71(Ariz. Ct. App. 2019).
14 This determination is not inconsistent with In re R.J.F., 2019 MT 113, ¶ 37, 395 Mont. 113, 443 P.3d 387, where we noted the Department to have an obligation to place the child in close enough proximity to a parent to arrange visitation in sufficient frequency and duration to make it possible for a parent to establisha bond between the parent and the child. InIn reR.J.F.there was no identified non-offending father for the Department to consider in making the placement determination. The Department has to evaluate each case based on the particular circumstances, recognizing the statutory protections afforded each parent.
29
beyond the language of our statute and violate the non-custodial parent’s fundamental
rights.
¶45 Upon removal of a child from a custodial parent, the Department must first consider
placement of the child with the non-custodial parent. Child and Family Services Policy
Manual, § 304-1 (DPHHS 2013), https://perma.cc/8FXV-62VS. In conformance with the
statutes and its own policies discussed above, the Department should determine if there are
any imminent safety concerns supported by documented evidence to indicate the child
should not be placed with the non-custodial parent—observable or substantiable imminent
safety risks to the child if the child is placed in the care of the non-custodial parent. As we
noted in In E.Y.R., ¶ 29, this determination does not at the outset require full investigation
of or implementation of an ICPC or a treatment plan for the non-custodial parent, but rather
occurs along a continuum. The Department may conduct a child protective serviceshistory
and potentially a criminal background check as well as gather information from the non
custodial parent as to his/her circumstances, and potential collateral contacts who can
verify the information provided. In addition, the Department may request a courtesy check
of the out-of-state, non-custodial parent’s home from that parent’s home state. These
avenues can provide the Department with a wealth of information to determine an out-of
state parent’s fitness and ability to carefor a child. See, e.g., In re R.S., 215 A.3d at 371-72.
¶46 Although the Department is obligated to initially provide the custodial parent a
treatment plan and services designed to ameliorate his/her parenting deficiencies when a
child has been adjudicated a youth in need of care, such does not suspend or reduce the
non-custodial parent’s fundamental right to parent. If there are no objective, demonstrable
30
circumstances of imminent safety risk to the child upon the Department’s preliminary
investigation, the Department must place the child with the non-custodial parent or
document good cause to the contrary indicating how the non-custodial parent could not
assure the safety of the child. If the child has been adjudicated a youth in need of care, and
no objective, demonstrable circumstances of imminent safety risk to the child have been
identified, upon disposition the court may either “order the temporary placement of the
child with the noncustodial parent, superseding any existing custodial order, and keep the
proceeding open pending completion by the custodial parent of any treatment plan” or
order the placement of the child with the noncustodial parent, superseding any existing custodial order, and dismiss the proceeding with no further obligation on the part of the department to provide services to the parent with whom the child is placed or to work toward reunification of the child with the parent or guardian from whom the child was removed in the initial proceeding.
Section 41-3-438(3)(c) and(d), MCA. The Department cannot use the ICPC process to
weaken or eliminate the statutory protections under Title 41, chapter 3, MCA, that protect
a non-custodial parent’s constitutional rights, simply because a non-custodial parent lives
in another state.
¶47 Here, the State asserts the Department had good cause not to immediately place
Children as there were prior reports made to North DakotaCFS. Recognizing these reports
were investigated, not substantiated, and no intervention was made by the North Dakota
CFS, the State asserts “‘unsubstantiated’does not mean the report was proven untrue” and
the Department’s policy does not require circumstances related to child protective services
history to be “substantiated” or to indicate “imminent safety risk.”
31
¶48 The State in essence, asserts the prior unsubstantiated child protective services
history provided good cause under the Department’s policy to deny placement of Children
with Father. Without more evidence and without allegations of current or intervening
abuse or neglect, prior unsubstantiated reports without more do not provide basis to deny
a non-custodial parent placement. Whether prior child protective services history is
unsubstantiated or substantiated is important given the Department’s burden of proof. See
§ 41-3-422, MCA. Department Policy § 101-1 defines an “Unsubstantiated Report” to
mean, “After an investigation, the investigator was unable to determine by a preponderance
of the evidence that the reported abuse, neglect, or exploitation has occurred.” Child and
Family Service Policy Manual, § 101-1 (DPPHS 2015), https://perma.cc/Q2VQ-ATSB.
The Department must establish probable cause to remove a child from a parent on an
emergent basis and must then prove by a preponderance of the evidence the child meets
the definition of a youth in need of care to attain temporary legal custody of the child.
Sections41-3-427(1)(b), -437(2), MCA. In this case, the prior unsubstantiated reports did
not pose a safety risk to Children justifying Department intervention at that time and cannot
now, without more evidence, “indicate that [Children’s] safety could not be assured if
[Children] were immediately placed with [Father]” in this action. See Child and Family
Services Policy Manual, § 304-1 (DPHHS 2013), https://perma.cc/8FXV-62VS.
Additionally, it is disingenuous for the State to assert the Department established “good
cause” to not place Children with Father when the Department did not then immediately
32
implement a treatment plan for Father as required by its policy.15 A request for an ICPC
cannot be used to diminish the protections for parents provided in Title 41, chapter 3, MCA,
simply because the parent lives across state lines.
B. Father’s fundamental rights were prejudiced by ineffective assistance of counsel. ¶49 Given the legal authority which applies to this case, we turn to Father’s argument
that he received ineffective assistance of counsel which resulted in termination of his
parental rights. “[P]arents have a due process right to effective assistance of counsel in
termination proceedings.” In re E.Y.R., ¶ 22(quotingIn re A.S., ¶ 20). Whether assistance
was effective requires review of counsel’s training, experience, and advocacy. In re A.S.,
¶ 26. I neffective assistance of counsel requires reversal only if the parent suffered
prejudice. In re E.Y.R., ¶22; In re B.M., 2010 MT 114, ¶ 22, 356 Mont. 327, 233P.3d 338.
Effective advocacy requires investigating the case, researching and understanding the law,
meeting with the client, and assiduously advocating for the client. In re E.Y.R., ¶ 22; In re
A.S., ¶ 28. To provide effective assistance of counsel, attorneys representing parties and
entities involved in abuse and neglect proceedings involving a non-offending,
non-custodial parent must understand and assiduously advocate the legal framework and
Department policy set forth in the prior section.
¶50 Here, the record is silent as to counsel’s training and experience. However, our
examination of the record leaves us convinced counsel’s advocacy was ineffective:
counsel either failed to investigate the case and research and understand the law or failed
15 The Department did not implement a treatment plan with Father for nearly a year after filing its petition and during that time did not assert prior reports established “good cause” as now asserted.
33
to communicate that information to the District Court, and counsel failed to assiduously
advocate for Father. From the adjudication through to Father’s termination hearing, these
failures caused Father prejudice—termination of his parental rights to Children. At the
outset, Father’s counsel did not assiduously advocate for placement with Father despite the
provisions of § 40-6-221, MCA, and the Department’s policy that “the non-custodial parent
is the first placement option for the child.” Child and Family Services Policy Manual,
§304-1 (DPHHS 2013), https://perma.cc/8FXV-62VS. Counsel did not seek a placement
hearing under § 41-3-440, MCA, which authorizes the Department to determine the
appropriate placement for children alleged to be or adjudicated as youths in need of care, unlessthere is a dispute between the parties regarding the appropriate placement—in such
cases, the court must settle the placement dispute. From the record, it is clear Father wanted
Children placed in his care, but his counsel did notadvocate for the court to place Children
immediately in Father’s care—despite the fact the Department’s petition and supporting
affidavit failed to allege any abuse or neglect against Children on the part of Father. Rather,
Father’s counsel advised him to stipulate to adjudication and TLC and to evaluate Father
as a possible caretaker under §41-3-438(3)(b), MCA. Although Father’s counsel advised
the standing master at the intervention conference that Father desired placement of
Children with him, counsel did not inform the District Court at the adjudication hearing
and did not assiduously advocate for this placement but instead acquiesced to the
representations and position of the Department that immediate placement with Father was
not possible and the parties had stipulated to the placement. Upon stipulating to
adjudication of Children as YINC, counsel did not advocate for an immediate placement
34
order with Father, superseding any existing custodial order and either dismissal of the
proceeding with no further obligation on the part of the Department to work toward
reunification with Mother or to keep the proceeding open pending Mother’s completion of
her treatment plan. See § 41-3-438(3)(c)-(d), MCA. Counsel voiced no opposition to the
Department’s representation that an ICPC was required to place Children with Father.
Counsel evidenced no knowledge or understanding of ICPCs, including Regulation 3,
which provides exceptions to the need for an ICPC for placement with a parent from whom the child was notremoved. Counsel did not advocate for Father’s rights as a natural parent
under Montana’s DN statutes.
¶51 By the time of the disposition hearing, the Department had received documents
regarding prior North Dakota CFS reports involving Father which were investigated and
found to be unsubstantiated. The Department was also aware Father had no criminal
history that indicated an imminent safety risk to Children if they were placed in his care.
Statements made by the Department at the intervention conference and dispositional
hearing indicate Father was subject to an ICPC only because he lived out of state. Father’s
counsel did not object to the ICPC, or advocate for a 30-day visitation with Father while
sorting out the ICPC issue.16 Counsel did not educate the court regarding exceptions to
obtaining an ICPC with regard to placement of a child with a parent from whom the child
was not removed (a non-offending parent). Again, counsel did not request a placement
16 Pursuant to Department Policy § 402-7, no ICPC is required to effectuate a visitation of 30 or less days. See Child and Family Services Policy Manual, § 402-7 (DPHHS 2012), https://perma.cc/4QVU-WXTL.
35
hearing to require the Department to meet its burden to present documented evidence that
Children should not be placed with Father because of safety concerns consistent with
§§41-3-438 and -440, MCA, and Department Policy § 304-1. In essence, Father’s counsel
did not understand Father’s legal rights and did not assiduously advocate for Father in order
to enforce or protect his parental rights.
¶52 We hold Father’s counsel was ineffective for advising Father to stipulate to TLC
and placement outside of Father’s home when Father’s stated intent was to have custody
of Children and the Department had not alleged any abuse or neglect against Father in its
petition and supporting affidavit. Counsel’s error stemmed from a misunderstanding of
the law that an ICPC was required even if it precluded Father from pursuing immediate
placement to which he was entitled under the statutes and the Montana and federal
constitutions. Given the weighty constitutional rights at stake, it was ineffective to stipulate
to the placement with the maternal grandparents and not to insist the Department meet its
burden under the statutes and Department policy to overcome the presumption that
placement with Father was in the best interests of Children. These errors were further
compounded when counsel negotiated and then advised Father to stipulate to a treatment
plan to complete an ICPC.
¶53 A request for an ICPC cannot be used to diminish the protections for parents
provided in Title 41, chapter 3, MCA, simply because the parent lives across state lines.
Counsel was ineffective when she waived her client’s statutory and constitutional rights on
the mistaken presumption an ICPC was required and defeated Father’s statutory and
constitutional rights.
36
¶54 As Father’s counsel was ineffective resulting in prejudice to Father—termination of
his parental rights—it is appropriate to reverse Father’s termination of parental rights and
rewind proceedings in this case.17 At the time of adjudication, given Mother’s parental
rights remained intact, and in light of In re S.S., 2012 MT 78, 364 Mont. 437, 276 P.3d
883, it was appropriate for Father to stipulate to adjudication as he and his counsel would
have at that time had a reasonable belief the Department would look to immediately placing
Children with him and the court would look to disposing of the cause pursuant to
§41-3-438(3)(c) or (d), MCA. Thereafter, counsel’s advocacy fell short as outlined above.
Similar to In re E.Y.R., we conclude it appropriate to rewind this case to the point where
the court accepted Father’s stipulation for adjudication and adjudicated Children as YINC.
As Mother’s parental rights have now been terminated,18 consistent with our holdings in In
reJ.B.and In reE.Y.R., to maintain TLC the court must determine that Children are youths
in need of care on the basis of evidence of Father’s abuse or neglect. To make that
determination, the Department will need to conduct investigation of Father along a
continuum, if necessary, as outlined above.
Outcome: Because of counsel’s ineffective assistance, Father was prejudiced and his parental
rights were terminated. WereversetheterminationofFather’sparentalrights,rewindthis
case to the point where the court accepted Father’s stipulation for adjudication and
adjudicated Children as YINC, and remand to the District Court for further proceedings consistentwiththisopinion.
Reversed and remanded.
Plaintiff's Experts:
Defendant's Experts:
Comments: