IN RE AF-C.

• Decision Date: 20 December 2001
• Docket Number: No. 00-804.,00-804.
• Citation: 2001 MT 283,37 P.3d 724,307 Mont. 358
• Parties: In the Matter of A.F.-C., A Youth in Need of Care.
• Court: Montana Supreme Court

37 P.3d 724

2001 MT 283

307 Mont. 358

In the Matter of A.F.-C., A Youth in Need of Care.

No. 00-804.

Supreme Court of Montana.

Submitted on Briefs April 5, 2001.

Decided December 20, 2001.

Julianne Hinchey, Hinchey Law Offices, Kalispell, MT, For Appellant.

Honorable Mike McGrath, Attorney General; Jim Wheelis, Assistant Attorney General, Helena, MT, Thomas J. Esch, County Attorney, Kalispell, MT, For Respondent.

Justice JIM RICE delivered the Opinion of the Court.

¶ 1 H.C. appeals from the Findings of Fact, Conclusions of Law and Order entered by the Eleventh Judicial District Court, Flathead County, terminating her parental rights to A.F.-C.

¶ 2 We reverse.

¶ 3 H.C. raises three issues on appeal which we restate as follows:

¶ 4 1. Whether the District Court erred in concluding that H.C.'s treatment plan was appropriate.

¶ 5 2. Whether the District Court abused its discretion in determining that there was clear and convincing evidence that the conduct or condition rendering H.C. unfit was unlikely to change within a reasonable time.

¶ 6 3. Whether the District Court erred in relying on hearsay evidence in its Findings of Fact.

¶ 7 Because we reverse on the first issue, determining that H.C.'s treatment plan was inappropriate, we decline to address the remaining issues.

BACKGROUND

¶ 8 H.C. is the natural mother of A.F.-C., born on August 28, 1997. A.F.-C.'s father is deceased. The Department of Health and Human Services (DPHHS) first became involved with H.C. in July 1997, when it received a referral that H.C. was pregnant and had been caught shoplifting baby clothes. H.C. was fourteen years old at the time and was living under the care of her grandmother, Mavis, and her aunt, Sherry. DPHHS had been involved with H.C.'s family since the early 1980's as a result of reports that H.C.'s father was deceased and her mother was abusing drugs and neglecting H.C. and her older brother, A.C. At the time H.C. was caught shoplifting, her mother, Sandy, was incarcerated for drug-related charges and awaiting federal sentencing.

¶ 9 Prior to giving birth to A.F.-C., H.C. was sent to Havre by Mavis and Sherry to live with Shirley, a friend of the family. H.C. gave birth to A.F.-C. while living with Shirley. Shortly thereafter, Shirley was no longer able to provide a residence for H.C. and A.F.-C., and both were returned to Lakeside in September 1997 to live with Mavis and Sherry, who subsequently contacted DPHHS a number of times regarding H.C.'s parenting of A.F.-C. DPHHS received reports that H.C. had bitten A.F.-C. on the face and had become very frustrated and rough with A.F.-C. DPHHS also received a report that H.C. had not sought medical care for A.F.-C. at any time since his birth even though there was apparently a lump on A.F.-C's chest that may have required medical attention. Based upon these reports, neglect was substantiated by DPHHS.

¶ 10 On December 19, 1997, DPHHS removed H.C. and A.F.-C. from Mavis and Sherry's care and placed them in foster care. DPHHS petitioned the District Court for Temporary Investigative Authority and Protective Services of Sandy's children, H.C. and her brother, A.C., as well as H.C.'s son, A.F.-C., on December 24, 1997. The District Court granted an order for protective services that same day, scheduled a show cause hearing and ordered personal service of the petition to all parties. H.C.'s mother, Sandy, and her grandmother, Mavis, were both served with the petition.

¶ 11 Present at the show cause hearing on February 17, 1998, was Robert B. Allison, Esq. (Mr. Allison), who had been appointed by the District Court as guardian ad litem for A.F.-C. Also present were H.C.'s grandmother Mavis and her aunt Sherry. H.C.'s mother, Sandy, remained incarcerated. The District Court entered an order on February 23, 1998, granting the State's Petition for Temporary Investigative Authority. Neither H.C. nor A.F.-C. were present at the show cause hearing, nor were their whereabouts known at that time.

¶ 12 During a visit to the foster home on January 1, 1998, Mavis arranged to have H.C. and A.F.-C. taken from the foster home and driven to Spokane, Washington, to live with Steve, H.C.'s uncle. Mavis did this without the permission of DPHHS and was subsequently convicted of custodial interference and child endangerment. Soon after discovering that H.C. and A.F.-C. were taken to Spokane, DPHHS attempted to perform a home study of Steve's home through a social worker in Washington. The home study was not completed because it was immediately discovered that H.C. and A.F.-C. had left Steve's home and their whereabouts were unknown.

¶ 13 Although H.C. and A.F.-C.'s whereabouts were unknown at the time, upon the State's motion, the District Court issued an order continuing Temporary Investigative Authority on June 17, 1998. No further contact was made between H.C. and DPHHS until July of 1998, when H.C.'s aunt Shirley contacted DPHHS to inform it that H.C. and A.F.-C. were with her in Kalispell. Foster care training was offered to Shirley and DPHHS eventually licensed her as a kinship placement. H.C. and A.F.-C. remained with Shirley until December 1998.

¶ 14 On October 2, 1998, DPHHS, in a combined petition, petitioned for temporary legal custody of Sandy's children, H.C. and A.C., as well as H.C.'s son, A.F.-C., and requested that the court adjudicate all three children youths in need of care. It is important to note the complexity of H.C.'s position under this combined petition: H.C. was an alleged youth in need of care by reason of her mother's imprisonment and resultant lack of care; yet she was also a respondent-parent within a simultaneous proceeding to adjudicate her son, A.F.-C., a youth in need of care. Personal service of the combined petition upon H.C.'s mother, Sandy, was unsuccessful. H.C. was personally served on November 12, 1998. Neither Sandy nor H.C. were present at the November 18, 1998, hearing on the petition. Mr. Allison appeared at the hearing as guardian ad litem to represent the interests of A.F.-C. No guardian was appointed to represent the interests of fifteen-year-old H.C. as an abused or neglected child. Further, H.C. had no adult assistance in the simultaneous proceeding to adjudicate A.F.-C. a youth in need of care.

¶ 15 Because service of the combined petition on Sandy was unsuccessful, the District Court rescheduled the hearing for temporary legal custody as to her two children, H.C. and A.C. The District Court entered H.C.'s default in her role as a respondent-parent of A.F.-C., and entered default Findings of Fact and Conclusions of Law, based on the State's petition and attached affidavit, adjudicating A.F.-C. a youth in need of care and granting the State's petition for temporary legal custody.

¶ 16 On December 10, 1998, Sandy was served in prison in California with the combined petition. In response, Sandy wrote a letter to the District Court regarding her two children and her grandson A.F.-C. She requested that the court appoint legal counsel for herself, as she did not understand the significance of the proceedings. In the letter, Sandy also relayed to the District Court her understanding that Mr. Allison was the legal counsel for her children, and expressed concern that Mr. Allison had told H.C. that he was not representing H.C. and would not speak to H.C.

¶ 17 Having served Sandy, another hearing on the combined petition was held on January 7, 1999. Sandy, still incarcerated, did not appear. According to the minute entry, H.C. appeared and gave her consent to the State's request for temporary legal custody of her child, A.F.-C. In the order of January 14, 1999, the District Court simply states that H.C. had appeared and "acknowledged her consent to the Petition for Temporary Legal Custody." The District Court found H.C. was a youth in need of care, and ordered that temporary custody of H.C. and her brother A.C. be awarded to the State. The order did not address A.F.-C. Finally, the District Court denied appointment of counsel for Sandy, citing this Court's previous decision for the rule that, "unless termination of parental rights is sought, or other long term interference with the parent/child legal relationship by the Department is sought, appointed counsel is not appropriate."

¶ 18 Previously, in December 1998, placement of H.C. and A.F.-C. with Shirley had broken down for various reasons and both were placed in foster care with Delores Montana Choi (Tanna), a family friend who resided in Kalispell. H.C. and A.F.-C. remained with Tanna for approximately one month. Although H.C. and Tanna both strongly objected to H.C. and A.F.-C. being removed from Tanna's home, DPHHS placed H.C. and A.F.-C. in the mother-baby unit at Florence Crittenton Home & Services (FCH) in Helena in early February 1999.

¶ 19 At FCH, now sixteen-year-old H.C., signed and entered into her second treatment plan dated January 27, 1999, despite her objections to being there. An earlier treatment plan, signed by H.C. on September 18, 1998, had not been approved by the District Court. On February 17, 1999, the District Court approved and ordered that H.C. comply with the second plan. The second plan contained few written responsibilities or requirements, but rather incorporated the first, non-approved treatment plan, and further required that H.C. follow the rules and recommendations made by FCH within it programs, called "programmatic treatment plans."

¶ 20 The initial programmatic treatment plan at FCH required H.C. to adhere to all rules and regulations without argument, to actively participate in Positive Peer Culture, consistently attend all therapy appointments, classes, groups, and recreational activities, be responsible for the care of A.F.-C., demonstrating a willingness to follow staff instruction and supervision, engage in age-appropriate interaction with A.F.-C., enroll A.F.-C. in FCH daycare and abide by daycare guidelines, complete daycare and...