In re E.Y.R.

Decision Date13 August 2019
Docket NumberDA 18-0711
Citation396 Mont. 515,2019 MT 189,446 P.3d 1117
Parties In the MATTER OF: E.Y.R., A Youth in Need of Care.
CourtMontana Supreme Court

For Appellant: Meri K. Althauser, Forward Legal, PLLC, Missoula, Montana

For Appellee: Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana, Travis R. Ahner, Flathead County Attorney, Alex M. Neill, Deputy County Attorney, Kalispell, Montana

Justice Ingrid Gustafson delivered the Opinion of the Court.

¶1 M.R. (Father) appeals from the termination of his parental rights issued December 7, 2018, by the Eleventh Judicial District Court, Flathead County. We reverse and remand for the Department to conduct initial preliminary assessment of Father as the first placement option for E.Y.R. (Child) consistent with its policies and this opinion.

¶2 We restate the issue on appeal as follows:

Whether Father’s due process rights were infringed by ineffective assistance of counsel resulting in his parental rights being inappropriately terminated.
FACTUAL AND PROCEDURAL BACKGROUND

¶3 The Montana Department of Public Health and Human Services, Child and Family Services Division (Department), removed Child, along with Child’s two half-siblings, in November 2016. They were removed from Mother’s care for exposure to domestic violence between Mother and her boyfriend, unstable living conditions, and concerns of substance abuse by Mother. There were no allegations of abuse or neglect by Father. Father was living in California and uninvolved with Mother. Father learned of the Montana proceeding and Child’s placement in foster care on December 23, 2016. Father was contacted and told Child was in foster care, but was not advised as to how to get her in his care. Father immediately went to the family court in California to obtain an order to return Child to his care.

¶4 The District Court in Montana held a show cause hearing on January 23, 2017, at which Father appeared telephonically and was represented by Ms. Travis, who sat in for Father’s court-appointed counsel, Ms. Marvin. During this hearing, attorney Travis reported Father stipulated to temporary legal custody (TLC) and advised there was a pending family court action in the Superior Court of California, San Diego County, Case No. D531866, in which a January 18, 2017 court order recognized Mother was in violation of the court’s prior parenting plan order and set hearing thereon in May 2017. Ms. Travis further represented "discussions with the Department, and I understand that an ICPC is beginning to be conducted to look at him as a placement for [Child] in California." Ms. Travis further indicated Father did not stipulate to any placement recommendation of the Department and that he was requesting to be the placement for Child.

The Department advised all of the children were placed with maternal grandmother and step-grandfather and that it would continue that placement. The District Court then responded, "Very well. There appearing no objection it’s so ordered as well. All right. Last call. Anything further from anyone." Ms. Travis, despite previously indicating Father sought to be the placement for Child, did not object to the placement with the maternal grandmother and step-grandfather, did not object or otherwise indicate there was no need for an ICPC to place Child with Father, and did not request the District Court set a placement hearing. Further, she did not advise the court of the provisions of § 40-6-221, MCA, which provide that father and mother are equally entitled to parent and if either is unable to exercise parenting, the other is entitled to parent the child. Counsel also did not advise the court of the Department’s policy 304-1 which provides "the non-custodial parent is the first placement option for the child" when the child is removed from the home of the custodial parent. Child and Family Services Policy Manual, § 304-1 (DPHHS 2014), https://perma.cc/95CE-7DBY.

¶5 On February 24, 2017, the District Court held a hearing to approve a treatment plan for Mother. During this hearing, no mention was made as to Father. In May, Father appeared in family court in California to modify the parenting plan between Mother and him. At that time, the California court inquired as to the status of this matter in Montana. Father related that he was previously advised an ICPC was requested but had not occurred and he had not been contacted by anyone in California with regard to this.

¶6 Presumably in response to this proceeding, the judge in California contacted the department in California and learned no ICPC had been requested and that the Department in Montana had not yet contacted the department in California. In July 2017, Judge Braner, a Superior Court Judge in San Diego County working in the Family Law Department sent the District Court a letter. At the outset, Judge Braner asserted, "I believe that the Uniform Child Custody [Jurisdiction] Enforcement Act (UCCJEA), California, and more particularly this Court, has custody jurisdiction over [Child]."1 The California court expressed concern that Father had been attempting to enforce the California parenting order in California. The California court also related Father’s frustration with the Montana dependency action in that Father "maintains he has not seen his daughter in more than six months" and "he has essentially been kept in the dark regarding the Montana proceedings and that while he has been appointed a State Public Defender, that person has failed to apprise Father of anything in connection with the Montana proceedings."

¶7 In response to the communication from the California court, the District Court issued an Order to Show Cause and Notice of Hearing, setting hearing on August 9, 2017, and advising the parties to appear at that time to show cause as to whether Montana should seek continuing jurisdiction or whether the case should be dismissed and returned to California. Despite the District Court’s show cause order advising as to the nature of the hearing, neither the Department’s counsel, counsel for Mother, nor Ms. Marvin were prepared for meaningful discussion or legal analysis of the UCCJEA and they provided little, if any, accurate information regarding such. The Department asserted that UCCJEA consideration was not needed, arguing a Title 41 action trumps a parenting plan. The District Court correctly rejected this argument because a Title 41 action must still comply with the UCCJEA. Section 40-7-103, MCA. Father’s counsel indicated she had no legal authority to cite but that Father felt the case should be in California. Commendably, the District Court attempted to work through the UCCJEA statutory scheme. It correctly noted Montana had temporary emergency jurisdiction and California was the home state pursuant to § 40-7-204, MCA, such that jurisdiction would need to continue in California unless counsel could point to an exception in the UCCJEA that permitted Montana to continue to exercise jurisdiction. The District Court then concluded Montana could maintain jurisdiction "if this Court were to determine that Montana should be deemed the more convenient forum for determining the custody of [Child]." Although the District Court asked counsel if she had any authority to suggest the court’s reading of the statutory scheme was wrong, Father’s counsel did not respond and failed to point out to the court that §§ 40-7-201(1)(b) and -203(1), MCA, require the home state of the child—here, California—to make the determination that the court of another state would be a more convenient forum.2

¶8 The District Court then requested the parties argue why Montana was the more convenient forum. For the first time in this case, Mother’s attorney asserted Mother came to Montana due to a fear of Father. Father then interjected that he had been attempting to find and serve Mother with a parenting action ever since she left California. He reported Mother was absconding and not permitting him the parenting ordered by the California court. Father also volunteered he had discovered the Department’s representation to the court eight months prior that it had made a request for an ICPC was inaccurate. Father explained he had been trying in California to obtain an order to return Child to California and through that process the California court contacted the California department to inquire about the status of the ICPC and learned no such request had been made. Other than expressing Father felt if the case was not retained in California he would lose all of his rights, counsel made no argument advocating Father’s position.

¶9 The District Court then reviewed the statutory factors set forth in § 40-7-108, MCA, to determine which jurisdiction—Montana or California—was the most convenient forum. Ultimately, the District Court found Montana to be the more convenient forum as witnesses and Mother, who was working a treatment plan, resided in Montana. In its consideration of the statutory factors set forth in § 40-7-108, MCA, the District Court specifically considered whether placing Child under Montana’s jurisdiction versus California’s would place Child at risk for experiencing domestic violence and concluded, "I haven’t heard any representation, offer of proof, or evidence today that would suggest that California is a place where there would likely be domestic violence." Further, in its response letter to Judge Braner, the District Court related, "I found no convincing evidence or record-based representation which suggests that [Child] would be subjected to a home life marked by domestic violence were she to reside in California." At this time, eight months into the cause and following the Department’s Petition for First Extension of Temporary Legal Custody, the Department had made no allegations regarding Father and the District Court had specifically found no safety issues regarding the Child were she to...

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