Matter of R.K., YINC ( 2022 )

10/18/2022
DA 22-0086
IN THE SUPREME COURT OF THE STATE OF MONTANA
2022 MT 208NIN THE MATTER OF:
R.K. and R.K.,
Youths in Need of Care.
APPEAL FROM: District Court of the Ninth Judicial District,
In and For the County of Toole, Cause Nos. DN 19-6 and DN 19-7
Honorable Brenda R. Gilbert, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Taryn Gray, Hathaway Law Group, Missoula, Montana
For Appellee:
Austin Knudsen, Montana Attorney General, Cori Losing, Assistant
Attorney General, Helena, Montana
Merle Raph, Toole County Attorney, Jennifer Stutz, Deputy County
Attorney, Shelby, Montana
Submitted on Briefs: September 28, 2022
Decided: October 18, 2022
Filed:
__________________________________________
Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not
serve as precedent. Its case title, 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 S.M.K. (Father) appeals an order from the Ninth Judicial District Court appointing
permanent guardians to Father’s two children, R.K. and R.K. We affirm.
¶3 On May 14, 2019, the Montana Department of Public Health and Human Services
(Department) removed the children from Father and H.S. (Mother) due to concerns of
parental neglect by Mother, substance abuse by Father, and domestic violence. On June 6,
2019, Father, accompanied by counsel, stipulated to the adjudication of his children as
Youth in Need of Care (YINC) and to Temporary Legal Custody (TLC). R.K. and R.K.
were placed with their maternal grandparents. On July 11, 2019, the District Court
approved a Treatment Plan signed by Father. The Treatment Plan required Father to
complete mental health tasks, attend supervised and unsupervised visits, follow
recommendations provided by professionals working with his children, and adhere to
regular chemical dependency testing.
¶4 On January 15, 2020, the Department filed a Petition for the Extension of
Temporary Legal Custody under which the children were to remain with their maternal
grandparents. Father had not made meaningful progress on his treatment plan at this point.
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On February 6, 2020, a Stipulation to Extension of Temporary Legal Custody was filed
and signed by all attorneys in the case. On February 18, 2020, the District Court granted
the Extension of Temporary Legal Custody—noting in its order that neither Father nor his
attorney were present at the hearing.
¶5 On May 18, 2020, following the Department’s recommendation, the District Court
issued an order approving the permanency plan of reunification. On December 1, 2020,
the Department responded to Father’s limited contact with the Department and failure to
complete chemical dependency and mental health evaluations by filing a Petition for
Termination of Parental Rights and Permanent Legal Custody (PTR). The court issued an
order setting a hearing.
¶6 On June 10, 2021, during the pendency of the PTR—which was protracted because
of several continuances, including one made by Father’s counsel, Father and Mother jointly
e-mailed the District Court about allegedly inadequate communication from their
respective counsel as well as shortcomings by their assigned child protection specialist
(CPS) and the assigned court appointed special advocate. On June 11, 2021, the District
Court notified the parties of ex parte communication by Father and Mother.
¶7 On July 20, 2021, the Department, after determining that further efforts at
reunification with Father and Mother would not advance the best interests of the children,
filed a Petition for Appointments of Guardians. On September 9, 2021, the day before the
guardianship hearing, Father and Mother again jointly e-mailed the District Court raising
concerns about their respective attorneys and CPS; they requested new counsel on the basis
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that their current attorneys were not adequately advancing their interests nor apprising them
of updates in their case.
¶8 On September 10, 2021, during the guardianship hearing, the District Court notified
the parties that Father and Mother made the ex parte communication. The District Court
declined to appoint new counsel and reminded both parents that they had the right to hire
their own attorneys if they were not satisfied with their current representation. The
presiding judge recused himself citing specific facts regarding the case that Father and
Mother had disclosed in their e-mails to the court. On October 6, 2021, the Honorable
Brenda R. Gilbert assumed jurisdiction over the matter.
¶9 On November 22, 2021, the Department filed a Supplemental Affidavit reporting
that since February 2021 Father and Mother had attended their scheduled supervised
visitations and engaged in drug testing; however, they had not engaged in joint counseling
since September 2021 and Father had not engaged in individual counseling since June
2021. The affidavit also noted that Father’s drug tests were positive.
¶10 The parties reached a settlement and, on December 8, 2021, the District Court
conducted a hearing where Father and Mother agreed to the guardianship. The court
granted the petition pending consultation with R.K. and R.K.
¶11 On appeal, Father alleges that the absence of fundamentally fair procedures
prejudiced him in these proceedings. He argues that trial courts must conduct a Gallagher
inquiry when a party to a dependent neglect proceeding raises complaints about the
adequacy of their counsel and asserts that the District Court’s failure to investigate his
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claims of ineffective assistance of counsel was a manifest miscarriage of justice. State v.
Gallagher, 1998 MT 70, 288 Mont. 180, 955 P.2d 1371.
¶12 Whether a person has been denied his or her right to due process is a question of
constitutional law. Our review of questions of constitutional law is plenary. Schmill v.
Liberty Northwest Ins. Corp., 2003 MT 80, ¶ 9, 315 Mont. 51, 67 P.3d 290.
¶13 The Montana Constitution protects a natural parent’s right to the care and custody
of their children. In re B.H., 2020 MT 4, ¶ 36, 398 Mont. 275, 456 P.3d 233. The State
must provide parents with fundamentally fair procedures when it moves to intervene in a
family for the protection of a child. In re B.H., ¶ 37. When a parent has their parental
rights terminated in a proceeding where appointed counsel failed to render effective
assistance, a claim for ineffective assistance of counsel is the only meaningful redress.
In re A.S., 2004 MT 62, ¶ 16, 320 Mont. 268, 87 P.3d 408.
¶14 The requirement we established in Gallagher—that a hearing be held if a criminal
defendant presents a “seemingly substantial complaint” about the ineffectiveness of her
counsel—does not apply in dependent neglect proceedings. In re B.J.T.H., 2013 MT 366,
¶ 11, 373 Mont. 85, 314 P.3d 911. Dependent neglect cases are civil proceedings. The
protections afforded to parties in dependent neglect proceedings as well as the sources of
those protections differ from criminal proceedings. In re B.J.T.H., ¶ 16. Title 41, MCA,
requires numerous hearings and direct court engagement in each case. That extensive
opportunity afforded to trial courts to evaluate the effectiveness of a party’s counsel in
dependent neglect proceedings undermines the necessity of a separate hearing.
In re B.J.T.H., ¶ 16.
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¶15 Prior to the second District Court judge assuming jurisdiction, the court had received
two ex parte communications from Father and Mother making allegations of poor
communication with their respective counsel. We find it unnecessary to address whether
the District Court handled the parents’ complaints appropriately because claims of
ineffective assistance of counsel in dependent neglect proceedings cannot succeed if the
parent is unable to demonstrate prejudice as a result of the ineffective assistance.
In re A.D.B., 2013 MT 167, ¶ 64, 370 Mont. 422, 305 P.3d 739. The record here does not
indicate any such prejudice. Following the arrival of the new District Court judge, no
evidence suggests that the effectiveness of Father’s counsel would have altered the
outcome. By freely assenting to the guardianship, Father agreed to a settlement of the case
and has waived his prior ineffective assistance of counsel claims.
¶16 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our
Internal Operating Rules, which provides for memorandum opinions. In the opinion of the
Court, the case presents a question controlled by settled law or by the clear application of
applicable standards of review.
¶17 Affirmed.
/S/ MIKE McGRATH
We Concur:
/S/ LAURIE McKINNON
/S/ BETH BAKER
/S/ INGRID GUSTAFSON
/S/ JIM RICE
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