In re B.H.

• Decision Date: 14 January 2020
• Docket Number: DA 19-0293
• Citation: 456 P.3d 233,2020 MT 4,398 Mont. 275
• Parties: In the MATTER OF: B.H. and G.H. Youths in Need of Care.
• Court: Montana Supreme Court

398 Mont. 275

456 P.3d 233

2020 MT 4

In the MATTER OF: B.H. and G.H. Youths in Need of Care.

DA 19-0293

Supreme Court of Montana.

Submitted on Briefs: November 13, 2019

Decided: January 14, 2020

For Appellant: Daniel V. Biddulph, Ferguson Law Office, PLLC, Missoula, Montana

For Appellee: Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana, Kirsten H. Pabst, Missoula County Attorney, Jessica Finley, Deputy County Attorney, Missoula, Montana

Justice Ingrid Gustafson delivered the Opinion of the Court.

¶1 B.H. (Father) appeals from the termination of his parental rights issued April 23, 2019, by the Fourth Judicial District Court, Missoula County. We reverse and remand for the Department to consider Father as the first placement option for B.H. and G.H. (Children) consistent with statute, 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 On January 4, 2017, the Montana Department of Health and Human Services, Child and Family Services Division (Department), filed a petition for each child, titled Petition for Emergency Protective Services, Adjudication as a Youth in Need of Care and Temporary Legal Custody after it removed Children from Mother's care, asserting Mother subjected Children to circumstances of abuse or neglect including the possession, consumption, and distribution of methamphetamine around the Children. Immediately after removal, the Department placed Children, along with a half-sibling who was also removed from Mother's care, with their maternal grandparents. The Department also alleged a history of Mother's involvement with child protective services dating back to 2014.

¶4 There were no allegations of abuse or neglect by Father who had been Children's primary parent most of their lives. Father was living in North Dakota and not involved in a relationship with Mother. At the time the Department removed Children from Mother, she had taken them from Father for a two-week visit but had refused to return them to Father's care. Father testified at the termination hearing that prior to the Department's intervention, Children lived with him and he was their primary care provider. When Children were in his care, he recognized they had high needs and had enrolled Children in services with Healthy Steps. In 2016, Mother checked into Mountain Home, a residential treatment center for individuals with children. He had been talking with Mother and she was getting sober and wanted to see Children. They agreed to a two-week visit where Children could stay with Mother at Mountain Home. While on his way to retrieve Children from Mother, she texted him he could not have them back and she would call the police if he came. Despite her refusal to return Children to him, Father stayed in regular contact with Mother and Children while Mother pursued sobriety at Mountain Home. When the Department intervened, Mother texted him requesting he help her get Children back.

¶5 The court set an intervention conference, which Father attended on January 23, 2017, which was followed by a show cause and adjudication hearing on January 24, 2017. Father indicated to the standing master at the intervention conference his desire to have Children in his care.¹ At the January 24th hearing, the State reported both Mother and Father stipulated to its petitions² and asked to set a dispositional hearing. There was no discussion of Children's current placement status or Father's desire for immediate custody of Children. Despite Father's desire to have Children in his care, his counsel did not object to the placement with the maternal grandparents and did not request the court set a placement hearing to settle the dispute over placement.

¶6 Father then appeared at the dispositional hearing on February 14, 2017. At that hearing, the Department related the children were under the age of four and had a substantial relationship with Father and that, since the intervention conference, the Department had received "some documents from North Dakota that does [sic] present some concerns ... or there might be more concerns" but did not elaborate as to any specific concerns the Department had with regard to Father. The Department also proclaimed as Father resided in North Dakota an ICPC was required to place Children with him. The Department also informed the court it was not going to develop a treatment plan for Father until the ICPC was completed. Father's counsel did not object to the ICPC or request a placement hearing, but rather expressed concern that without a treatment plan in place for Father, he could not be working on potential tasks during the ICPC. Counsel also advised the court that Father had custody of Children for the majority of their lives and the Department's concerns were based on unsubstantiated reports previously investigated in North Dakota. The Department then indicated that if its non-specific concerns were alleviated after the ICPC and Children could be safely placed with Father, there would be no further need for a dependent neglect (DN) case to be open on Children, and presumably no need for any treatment plan for Father. Father's counsel did not advise the court of applicable statutes and Department policy mandating Father be considered as the first placement option. The court advised Father it did not expect him to appear in-person at every court proceeding because of the travel distance and advised Father to remain sober, stay employed, and have housing—which he was already doing. Thereafter, the Department requested an expedited ICPC.

¶7 At status hearing on March 21, 2017, the Department reported it was still waiting on the ICPC to be completed "before seeing if there's any identified concerns" regarding Father. Father's counsel again made no objection to the ICPC, did not request a placement hearing, and did not provide the Department any additional information to assist it in assessing Father, the non-offending parent, as a safe and appropriate placement. Similarly, at the status hearing on April 11, 2017, the Department again related the ICPC was not completed relating to the court "they're just finishing the process" and, upon the court asking if there was something Father needed to do to complete it, the Department assured the court there was not. Again, Father's counsel made no objection to the ICPC, did not request a placement hearing, and did not provide the Department any additional information to assist in assessing Father as a safe and appropriate placement.

¶8 At the May 30, 2017 status hearing the Department reported that the ICPC was not completed. Despite the Department's representations that an ICPC was necessary to assure Father was safe and appropriate before Children could be in his care, the Department also reported Children were currently in North Dakota for a week-long visit with Father, relating "from what I hear, that's going well." Again, Father's counsel failed to object to the ICPC, failed to request a placement hearing, and failed to point out the Department's incongruous position that permitted Father care of Children for an extended visitation but denied him immediate placement of Children in his care.

¶9 On July 11, 2017, the court held a status and extension of TLC hearing. At this hearing, Father’s counsel acquiesced to extension of TLC by not responding when the court asked if it was correct that all parties stipulated to extension of TLC. The Department additionally advised that although it had provided Father some financial assistance to accomplish prior visits with Children, it was discontinuing this assistance such that he would have to find his own resources to accomplish visitation with Children. Father's counsel did not object to this discontinuation of visitation assistance nor did she pose any objection to the ICPC. Again, she did not request a placement hearing or provide any other advocacy for placement of Children with Father.

¶10 At the status hearing on September 12, 2017, Father's counsel advised the court, although she had not spoken to Father about the issue, the ICPC process had to be started over as Father did not submit fingerprints in time. Following this representation, the court commented, "Well, it sounds like both of these parents are kind of irresponsible, you know, and helter skelter, and not very – not very well-organized. And, you know, that doesn't bode well. If a guy can't even keep a schedule to go down and get fingerprinted, I don’t see how he's possibly going to take care of two kids." Rather than advising the court Father had a consistent work history, a long-term stable residence, his long-term girlfriend's two children currently resided in his home with no apparent safety concerns, and he had successfully parented Children over an extended visitation, Father's counsel did nothing to correct the court's impression of Father's inadequacy. Again, Father's counsel did not object to the ICPC, did not request a placement hearing, and did not otherwise advocate for placement of Children with Father.

¶11 At the November 7, 2017 status hearing, nearly a year after the commencement of the case, the District Court noted a motion to approve a treatment plan for Father had just been filed. To this point, the State had still not alleged any abuse or neglect on Father's part nor identified any documented evidence to indicate that Children should not be placed with Father because of safety concerns. The State then reported a treatment plan had not been previously offered as the Department was using the ICPC to investigate Father as a possible safe placement, but was now requesting a treatment plan as the ICPC had been canceled.³ Father's counsel again did not object to the ICPC and acquiesced to considering a...