Matter Y.G. YINC

May 24 2016
DA 15-0646
Case Number: DA 15-0646
IN THE SUPREME COURT OF THE STATE OF MONTANA
2016 MT 124N
IN THE MATTER OF:
Y.G.,
A Youth in Need of Care.
APPEAL FROM: District Court of the First Judicial District,
In and For the County of Lewis and Clark, Cause No. ADN 2014-74
Honorable Mike Menahan, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Elizabeth Thomas, Elizabeth Cunningham Thomas, PLLC; Hebron, Ohio
For Appellee:
Timothy C. Fox, Montana Attorney General, Tammy A. Hinderman,
Assistant Attorney General; Helena, Montana
Leo John Gallagher, Lewis and Clark County Attorney, Lisa Leckie, Anne
Peterson, Deputy County Attorneys; Helena, Montana
Submitted on Briefs: April 13, 2016
Decided: May 24, 2016
Filed:
__________________________________________
Clerk
Justice Jim Rice 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 A.M. (Mother) appeals the order of the First Judicial District Court, Lewis and
Clark County, holding that reasonable efforts were not required to reunify her with her
son, Y.G., and terminating her parental rights. Mother also argues she was denied
effective assistance of counsel during the termination proceedings. We affirm the
termination of Mother’s parental rights, and decline to remand for a hearing on Mother’s
claims of ineffective assistance of counsel.
¶3 Mother became pregnant with Y.G. while she lived in Tennessee. Mother’s
relationship with Y.G.’s natural father did not continue, and he is not a party in this
action. Mother developed an online relationship with W.G., a man living in Helena.
They married in Tennessee in January 2014, Mother moved to Montana with W.G., and
Y.G. was born in Helena the following month.
¶4 The Department of Child and Family Services (the Department) first became
involved with the family when Y.G. was born. At birth, Y.G. weighed 7 pounds, 12
ounces, and appeared to be “a healthy looking newborn.” However, hospital staff made
an initial report to the Department over concerns that arose about the social situation
between Mother and W.G., as well as concerns about Mother’s ability to care for Y.G.
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Nursing staff reported that Mother was resistant to medical treatment for herself, and was
“extremely reluctant to breastfeed or to pay attention to [Y.G.’s feeding] cues.” Nursing
staff also observed that Mother “was very reluctant to hold or touch him.” Based on the
referral, the Department opened a 60-day investigation, planning to monitor and assess
Mother and Y.G. after they left the hospital.
¶5 When Y.G. was approximately 15 days old, Mother brought him in for a
well-child visit at a local pediatric clinic. Although Y.G. weighed only slightly more
than his birth weight, the pediatrician did not have any concerns about his weight or
health. The pediatrician discussed feeding techniques, recommended certain frequency
and length of feedings, and discussed usual newborn care topics with Mother at this
appointment.
¶6 In April 2014, when Y.G. was six weeks old, the Department received a report that
Mother and W.G. had left him unattended in his car seat in the car while they shopped.
As a result of this report, social worker Brittany Divine (Divine) called Mother and W.G.
into her office for a meeting. At the meeting, Divine became very concerned about
Y.G.’s size (“he looked very small”) and expressed her concerns to Mother and W.G.
W.G. informed Divine that Y.G. had a well-child visit scheduled for the next day. At this
exam, Y.G. weighed only 3 ounces more than he had weighed at birth. His pediatrician
expressed concern, having expected him to “gain quite a bit more weight than that.” The
pediatrician discussed with Mother the importance of a frequent feeding schedule,
suggested supplementing with formula after each feeding, and gave Mother additional
breastfeeding resources. The pediatrician saw Y.G. in May 2014. At this visit, the
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pediatrician was pleased to see that Y.G. weighed over 10 pounds and encouraged
Mother to continue in the feeding routine she had been following. Once the 60-day
period expired without further incident, the Department closed its case.
¶7 Because Mother did not bring Y.G. in for a four month or six month well-child
visit, the pediatrician did not see Y.G. again until September 2014, when Y.G. was
admitted to the hospital and diagnosed with failure to thrive. At seven months old, Y.G.
weighed 8 pounds, 8 ounces, a mere 12 ounces more than his birth weight. Testimony
from the pediatrician and nursing staff, and pictures of Y.G., documented that Y.G.
appeared extremely malnourished, with ribs visible and a protruding abdomen, and no
subcutaneous fat on his body. During the first few days of his hospital stay, Y.G. did not
move his legs spontaneously, and could not raise or hold his head up on his own. The
pediatrician testified that the process of Y.G. “wasting” would probably have occurred
over a period of two or three months and that, without intervention, Y.G. “would have
died from starvation.”
¶8 The Department placed a hold on Y.G., preventing Mother from leaving the
hospital with him. The pediatrician and nursing staff noted that, while in the hospital,
Mother did not seem to appreciate the gravity of Y.G.’s condition, and she did not appear
to be appropriately participating in his care. Nurses witnessed Mother feed Y.G. by
propping him up on the bed while sitting in front of him, and also noted that Mother
would not pick Y.G. up or hold him when not feeding. Several times, Mother asked
nursing staff to feed Y.G. and to change his diapers. Y.G. remained in the hospital for 11
days, gained 2.5 pounds over that period of time, and was released to foster care.
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¶9 Mother exercised some visitation with Y.G. after he was removed from her care.
However, Y.G.’s therapist noted that Y.G. “seemed to be very triggered in her
presence . . . [,]” and ultimately recommended that the visitation stop because “[h]e
clearly seemed to be [] retraumatized by the visits.” In April 2015, the Department
petitioned the District Court to determine that preservation and reunification services
need not be provided as to Mother, pursuant to § 41-3-423(2), MCA, and requested
termination of her parental rights. After a hearing that spanned over several days, the
District Court ordered that “[p]reservation/reunification services need not be provided for
the birth mother for the reason that [Mother] subjected [Y.G.] to severe neglect, which
constituted aggravated circumstances within the meaning of Montana Code Annotated
§ 41-3-423(2)(a)[,]” and terminated her parental rights.
¶10 Section 41-3-423(2)(a), MCA, provides that the Department may petition the court
to determine that reunification services are not necessary if the court finds that the parent
has “subjected a child to aggravated circumstances, including but not limited to . . .
chronic, severe neglect of a child[.]” This finding must be supported by clear and
convincing evidence. Section 41-3-423(4), MCA. We have previously construed chronic
neglect to mean “‘marked by long duration, by frequent recurrence over a long time, and
often by slowly progressing seriousness.’” In re M.N., 2011 MT 245, ¶ 27, 362 Mont.
186, 261 P.3d 1047 (citation omitted).
¶11 Mother argues that the Department failed to produce evidence that she had
subjected Y.G. to chronic neglect. Mother “does not dispute that Y.G. was in a critical
state” when admitted to the hospital in September 2014, and therefore apparently does
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not dispute the finding of severe neglect. However, Mother argues that “[i]t is unknown
how long Y.G.’s weight was declining[,]” and that “[a]t most, a period of two to three
months passed when Y.G. was losing weight.” While Mother acknowledges that this
period of time is not insignificant, she argues it was not a sufficiently long enough period
of time to support a finding that Y.G. was subjected to chronic neglect. Therefore, she
argues that the District Court erred in so finding, and ultimately erred in terminating her
parental rights.
¶12 This is an unfortunate case of child neglect where the facts speak for themselves.
As the evidence establishes, concerns about Mother’s ability to bond with and care for
Y.G. were initially raised at his birth, when nursing staff noted with concern her
reluctance to feed and touch her child. When Y.G. was six weeks old, Mother left him
unattended in the car, again raising concerns about her judgment and ability to care for
him. At the two month well-child visit, the pediatrician was concerned about Y.G.’s lack
of weight gain, and provided Mother with extra resources to help ensure Y.G.’s proper
nutrition and growth. Despite that, Y.G. was admitted to the hospital in an alarming
condition after “two to three months” of inadequate care and nutrition, suffering from
malnutrition and alienation from his mother. The evidence demonstrates the pattern of
neglect that made up the first eight months of Y.G.’s life. Although the District Court did
not specifically enter a finding that the neglect had been chronic, this conclusion follows
implicitly from the findings of severe neglect, and is supported by the same evidence.
See In re J.B., 2016 MT 68, ¶ 25, 383 Mont. 48, 368 P.3d 715 (a district court’s finding
of birth father’s inability to conform his conduct to the law necessarily implied the
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findings of undisputed instances of father’s disorderly conduct in jail). We affirm the
District Court’s order determining that reunification services were not required due to
aggravating circumstances, and terminating Mother’s parental rights.
¶13 Mother argues that she did “not have good communication” with counsel
appointed to represent her, that her counsel failed to prepare for the termination hearing
by reviewing the Department’s file and pertinent medical records, and that counsel failed
to retain an expert to rebut medical testimony offered by the Department’s witnesses. We
apply a two-pronged test for such claims: 1) whether a parent was represented by
ineffective counsel, using several non-exclusive factors (training and experience, and
advocacy); and 2) whether the parent suffered prejudice as a result of the ineffective
representation. See In re A.S., 2004 MT 62, ¶¶ 26, 31, 320 Mont. 268, 87 P.3d 408.
From a review of the transcripts of the termination hearing, it is apparent that Mother’s
counsel had prepared for cross-examining the social worker. He questioned Divine
specifically about her Family Functioning Assessment, at times referring her to
statements and sections within the report. Mother’s counsel made objections during the
course of the hearing, and orally argued a previously-filed motion in limine that was
decided during the hearing. In addition, when cross-examining Y.G.’s pediatrician,
Mother’s counsel pointed out a date where Mother had apparently brought Y.G. into the
clinic for a weigh-in, alluding to a measurement on Y.G.’s growth chart that the
pediatrician had not previously noted. It is clear from the record that Mother’s counsel
had prepared and reviewed prior to the termination hearing and advocated on her behalf,
and we do not find Mother’s argument persuasive that her counsel was ineffective.
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Additionally, she makes no convincing showing that the outcome in her case would have
changed with different representation, in light of the evidence presented, or that she
suffered prejudice as a result.
¶14 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.
¶15 Affirmed.
/S/ JIM RICE
We concur:
/S/ MIKE McGRATH
/S/ BETH BAKER
/S/ PATRICIA COTTER
/S/ MICHAEL E WHEAT
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