Matter of K.M. T.M. L.M. , 2007 MT 151N ( 2007 )

IN THE SUPREME COURT OF THE STATE OF MONTANA
2007 MT 151N
____________________________________
IN THE MATTER OF K.M.,
DA 06-0783
A Youth in Need of Care,
IN THE MATTER OF T.M.,
DA 06-0784
A Youth in Need of Care,
IN THE MATTER OF L.M.,
DA 06-0785
A Youth in Need of Care.
____________________________________
APPEAL FROM: District Court of the Sixteenth Judicial District,
In and for the County of Custer, Cause Nos. DN 04-14, DN 04-15, and
DN 04-16
The Honorable Gary L. Day, Presiding Judge.
COUNSEL OF RECORD:
For Appellant:
Nancy G. Schwartz, Attorney at Law, Billings, Montana
For Respondent:
Hon. Mike McGrath, Attorney General; Ilka Becker, Assistant Attorney
General, Helena, Montana
Wyatt Glade, Custer County Attorney, Miles City, Montana
____________________________________
Submitted on Briefs: April 4, 2007
Decided: June 19, 2007
Filed:
_____________________________________________
Clerk
Justice John Warner delivered the Opinion of the Court.
¶1 Pursuant to Section 1, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal
Operating Rules, as amended in 2003, the following memorandum decision shall not be
cited as precedent. It shall be filed as a public document with the Clerk of the Supreme
Court and its case title, Supreme Court cause number and disposition shall be included in
this Court’s quarterly list of noncitable cases published in the Pacific Reporter and
Montana Reports.
¶2 Appellant, the mother of the youths (Mother), filed three separate appeals from
three orders of the Sixteenth Judicial District Court, Custer County, terminating her
parental rights to each of L.M., T.M. and K.M. The three appeals were consolidated and
this memorandum opinion is applicable to each. We affirm the three orders of the
District Court terminating the Mother’s parental rights.
¶3 In August 2004, the Montana Department of Public Health and Human Services
(DPHHS) filed a petition requesting emergency protective services, adjudication as
youths in need of care and temporary legal custody (TLC) of L.M., T.M. and K.M.
(Children). DPHHS acted on a referral from the Illinois Child and Family Services
Department stating that Mother had violated a family safety plan. Mother was
determined to be indigent and the District Court appointed counsel to represent her. The
parties stipulated that DPHHS have temporary investigative authority (TIA). The District
Court granted DPHHS a TIA order. Later, the District Court granted DPHHS TLC of the
children.
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¶4 Pursuant to Mother’s request, the District Court granted her lawyer’s motion to
withdraw and appointed new counsel to represent her (Thornton).
¶5 In July 2005, Mother stipulated to an extension of TLC. The stipulation noted
DPHHS would continue kinship placement efforts and transfer jurisdiction to Illinois
when both the Montana and Illinois agencies approved placement. An Illinois placement
was never approved by DPHHS.
¶6 The District Court approved several TLC extensions and treatment plan revisions.
On April 3, 2006, DPHHS filed for permanent legal custody and termination of Mother’s
parental rights. Mother requested new counsel or to represent herself. A hearing on this
request was held May 15, 2006. At the hearing, the District Court questioned Mother on
her request to remove Thornton and represent herself. Mother did not contest the
adequacy of Thornton’s representation and only complained “everybody” lied to her. The
District Court then asked whether Mother wanted to represent herself. She elected to
continue with Thornton.
¶7 Termination proceedings began on June 27, 2006, were recessed, and later
concluded on August 28, 2006. Although Mother received notice of the August 28
hearing, she did not attend. Thornton moved for a continuance of the August hearing.
However, upon inquiry by the District Court, Thornton confirmed Mother knew of the
hearing but had returned to Illinois. The District Court then denied the motion to
continue.
¶8 DPHHS presented testimony at the August 28 hearing that Mother had orally
requested termination of her parental rights. Because her client was not present Thornton
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could not offer rebuttal testimony.
¶9 At the conclusion of the August 28 hearing, the parties requested permission to file
proposed findings of fact and conclusions of law. The District Court granted the request,
stating untimely filed proposals would not be considered. Mother’s counsel did not
timely file proposed findings of fact and conclusions of law. On September 18, 2006, the
District Court terminated Mother’s parental rights. This appeal followed.
¶10 A natural parent’s right to the care and custody of their child is a fundamental
liberty interest. Matter of A.S.A., 258 Mont. 194, 197, 852 P.2d 127 (1993). When the
State seeks to terminate parental rights, due process and fundamental fairness requires
that counsel be appointed to represent an indigent parent during termination proceedings.
A.S.A., 258 Mont. at 198, 852 P.2d at 129-30; In re Custody of M.W., 2001 MT 78, ¶ 25,
305 Mont. 80, ¶ 25, 23 P.3d 206, ¶ 25. It is also required that such counsel be effective.
In re A.S., 2004 MT 62, ¶ 20, 320 Mont. 268, ¶ 20, 87 P.3d 408, ¶ 20.
¶11 Effective representation in a parental rights termination case requires that counsel
have sufficient training and experience to undertake such representation, and is
sufficiently prepared. In re A.S., ¶ 26.
¶12 Our review of the record reveals that Mother was not denied the effective
assistance of counsel. The record does not show that Thornton lacked sufficient training
and experience to represent an indigent parent in a termination proceeding. The record
also shows that she was sufficiently prepared to resist the petition to terminate Mother’s
parental rights. Her efforts were unsuccessful because of the facts DPHHS was able to
prove, and because her client declined to cooperate.
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¶13 The record contains sufficient evidence to terminate Mother’s parental rights.
Section 41-3-609(3), MCA, requires the court give primary consideration to the best
interest of the child. When assessing the likelihood a parent’s conduct will change in a
reasonable time, the court must assess the past and present conduct of the parent. In re
L.H., 2007 MT 70, ¶ 23, 336 Mont. 405, ¶ 23, 154 P.3d 622, ¶ 23, citing In re A.S., 2006
MT 281, ¶ 48, 334 Mont. 280, ¶ 48, 146 P.3d 778, ¶ 48, and In re M.A.E., 1999 MT 341,
¶ 37, 297 Mont. 434, ¶ 37, 991 P.2d 972, ¶ 37. Here, the District Court found Mother’s
conduct unlikely to change in light of over two years of non-compliance with her
treatment plans and her inconsistent efforts to demonstrate capacity to change her
lifestyle to serve the best interests of her children.
¶14 It is manifest on the face of the briefs and record before us that there is sufficient
evidence to support the judgment of the District Court, settled Montana law clearly
controls the legal issues presented and the District Court correctly interpreted the law.
¶15 Affirmed.
/S/ JOHN WARNER
We Concur:
/S/ PATRICIA COTTER
/S/ W. WILLIAM LEAPHART
/S/ BRIAN MORRIS
/S/ JIM RICE
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