In re B.F.

• Decision Date: 08 September 2020
• Docket Number: DA 19-0669
• Parties: In the MATTER OF: B.F. and A.F. Youths in Need of Care.
• Court: Montana Supreme Court

401 Mont. 185

472 P.3d 142

2020 MT 223

In the MATTER OF: B.F. and A.F. Youths in Need of Care.

DA 19-0669

Supreme Court of Montana.

Submitted on Briefs: June 24, 2020

Decided: September 8, 2020

For Appellant: Katy Stack, Attorney at Law, Missoula, Montana

For Appellee: Timothy C. Fox, Montana Attorney General, Jonathan M. Krauss, Assistant Attorney General, Helena, Montana, Joshua A. Racki, Cascade County Attorney, Valerie M. Winfield, Deputy County Attorney, Great Falls, Montana

Chief Justice Mike McGrath delivered the Opinion of the Court.

¶1 D.F. ("Father") appeals from a judgment issued in Montana's Eighth Judicial District Court terminating his parental rights to A.F. and B.F. We affirm.

¶2 We restate the issues on appeal as follows:

Issue One: Whether the District Court erred when it allowed the children's Guardian ad Litem to question witnesses at Father's termination hearing.

Issue Two: Whether the Department of Public Health and Human Services provided reasonable efforts to reunify Father with the children.

Issue Three: Whether the District Court erred by terminating Father's parental rights, in violation of § 41-3-609(1)(f), MCA.

Issue Four: Whether the District Court allowed temporary legal custody to expire in contravention of Father's due process rights.

Issue Five: Whether Father received ineffective assistance of counsel in violation of his constitutional due process rights.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 In May 2015, A.F. was born to Father and H.H. ("Mother"). Since October 6, 2015, A.F. has been in the Department of Public Health and Human Services’ ("Department") custody. In December 2016, B.F. was born to Father and Mother and has been in Department custody since then. Mother also has an older child, J.H., who is not Father's biological child and is not subject to this appeal. The Department became involved with Father and Mother following reports of inappropriate behavior in front of J.H. and later A.F. Reports included fighting, drunkenness, domestic violence, criminal charges filed against Father and his subsequent incarceration, and Mother's threats of suicide.

¶4 On October 14, 2015, the Department petitioned for emergency protective services ("EPS"), adjudication as a youth in need of care ("YINC"), and temporary legal custody ("TLC") of A.F. The Department's petition stated that Parents had a history of reports alleging physical neglect of A.F. due to domestic violence in the home and Mother's threats of suicide in the presence of J.H. The court set a hearing date of December 4, 2015.

¶5 Father appeared at the show cause hearing and stipulated to the adjudication of A.F. as a YINC but did not offer any admissions to any facts in the petition. The District Court granted TLC to the Department. On January 22, 2016, Father appeared at a disposition hearing and agreed to the Department's proposed treatment plan, which the District Court ordered. The treatment plan specified that Father must "[ensure] there [was] no drinking or drug use of any kind in his home" and that he would "not allow people under the influence of alcohol or any illegal substances into his residence." The District Court and Father agreed that the State was "recommending chemical dependency assessments," which included over the course of Father's treatment plan urinalysis assessments ("UAs"), hair sample testing, and use of a SCRAM bracelet.¹

¶6 In addition, Father was required to complete a mental health evaluation and adhere to any recommendations; attend individual mental health counseling; complete an anger management assessment and follow any recommendations; complete a parenting class and provide documentation of completion to the Department; complete an in-home parenting program upon the return home of the children; provide safe and stable housing in a drug and alcohol free environment; inform Child Protective Services ("CPS") of all individuals living at the home; notify CPS of all moves and provide an address to his home; and maintain weekly contact with CPS workers and sign all necessary releases.

¶7 On July 29, 2016, the District Court, upon stipulation of the parties, extended TLC of A.F. to the Department for six months. On October 21, 2016, a status hearing was held. The Department stated that A.F. and J.H. had been placed with the maternal grandmother and Mother was living in the grandmother's home with them. Father was having scheduled visits with A.F. and J.H. and was attending chemical dependency and mental health counseling appointments.

¶8 In December 2016 B.F. was born. On December 15, 2016, the Department filed a Petition for EPS, adjudication as a YINC, and TLC of B.F., alleging physical neglect due to the ongoing case involving A.F. On January 6, 2017, the court held a show cause hearing as to B.F. Father was not present but was represented by counsel. Father's counsel indicated that Father stipulated to adjudication of B.F. as a YINC and agreed to the same treatment plan that he had in A.F.’s case. The court did not order or present a new treatment plan.

¶9 On January 12, 2017, the Department moved to extend TLC of A.F., indicating that Parents needed additional time to complete their treatment plans. Child Protection Specialist Laura Evenson stated that Father completed parenting classes in August 2016, that he attended most visits with the children, and that he exhibited good parenting skills during visits. Father also completed a mental health evaluation, but the Department alleged he was not following the recommended weekly therapy sessions. Father had not completed a chemical dependency evaluation and he had tested positive for THC on two occasions.²

¶10 On January 20, 2017, the court held a hearing on the TLC extension. The Department stated that Father had not yet completed his treatment plan. Father stated that he was working full-time and did not have a vehicle which made it difficult to complete drug tests and attend all appointments. On April 14, 2017, the District Court adjudicated B.F. as a YINC. The court ordered the same treatment plan for Father that was ordered in A.F.’s case. On July 13, 2017, the Department moved to extend TLC. In Evenson's affidavit in support of the Department's motion, she stated Father was not fully engaged with his plan because he was not attending all his UA tests and consequently was denied visits with the children. On August 3, 2017, the court held a review and extension of TLC hearing for the children and granted extension for six months.

¶11 On September 7, 2017, the court held a hearing on the permanency plan for A.F. and B.F. The Department stated that the permanency plan was for termination of parental rights and to establish guardianship for A.F. and B.F. with their maternal grandmother. Evenson testified that Father was hostile toward her and made excuses about missing appointments. Evenson stated that the Department had added chemical dependency tasks to Father's treatment plan after B.F. was born. Evenson asserted that Father was bonded with the children and parented well during visits.

¶12 The Department did not file a motion to extend TLC in January 2018. However, the Department requested that the court extend TLC and to maintain the status of the case because Parents routinely failed to maintain engagement in the treatment plan. On January 17, 2018, the court issued an Amended Order regarding the review hearing held on August 3, 2017, and granted the Department extended TLC until June 2018. The court also stated that Mother and Father, both through counsel, stipulated to the extension of TLC. The court also scheduled a review hearing for June 28, 2018, prior to the expiration of TLC.

¶13 On June 26, 2018, the Department again moved to extend TLC. Evenson's affidavit in support of the Department's motion stated that Father had not completed a chemical dependency evaluation and he was non-compliant with UA tests. Father was attending mental health and anger management sessions at Misfits, LLC, in Great Falls. Evenson stated the Department had not commenced in-home services for Father as he had not demonstrated a period of sobriety or engagement with the Department. On June 28, 2018, the District Court held a hearing on the motion to extend TLC. Father told the court he had completed most tasks on his treatment plan but acknowledged he was not compliant with his UAs and needed to be consistent with visits with the children. Father believed Evenson favored Mother and maternal grandmother and had not provided him a chance to parent. On September 27, 2018, the Department filed a notice of permanency plan. The plan was for reunification of the children with Parents and adoption or guardianship with their maternal grandmother if reunification was not successful.

¶14 On January 9, 2019, the Department moved to extend TLC for up to six months. The Department's affidavit stated that Father had limited contact with Evenson. Evenson also stated that Father was non-compliant with the chemical dependency components of his treatment plan. At the time, Father had completed two chemical dependency evaluations, and neither had treatment recommendations. On January 10, 2019, the court held a review hearing and a hearing on the State's petition to extend TLC. On January 15, 2019, the court issued an order extending TLC for A.F. and B.F. finding it in the children's best interests.

¶15 On March 4, 2019, the court appointed an attorney Guardian Ad Litem ("GAL") for the children. On April 4, 2019, the GAL filed a report describing a misdemeanor trial of Father's held on April 3, 2019, in Great Falls Municipal Court. Father's trial was reportedly held in abstentia because Father was at work. The report also stated that Father was convicted of disorderly conduct and obstructing a peace officer for an incident involving Mother's family and friends. The GAL opined that underlying behavioral issues with the parents had not significantly changed and their compliance with their...