                                                                                       March 29 2016


                                    DA 15-0549
                                                                                    Case Number: DA 15-0549

            IN THE SUPREME COURT OF THE STATE OF MONTANA

                                    2016 MT 73



IN THE MATTER OF:

K.B.,

         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. DDN 2012-73
                  Honorable James P. Reynolds, Presiding Judge


COUNSEL OF RECORD:

           For Appellant:

                  Robin Meguire, Attorney at Law, Great Falls, Montana
                  (Attorney for J.R.B./Father/Appellant)

                  Mark Alan Mackin, Attorney at Law, Helena, Montana
                  (Attorney for K.B.)

           For Appellee:

                  Timothy C. Fox, Montana Attorney General, Micheal S. Wellenstein,
                  Assistant Attorney General, Helena, Montana

                  Leo Gallagher, Lewis and Clark County Attorney, Ann Penner, Deputy
                  County Attorney, Helena, Montana



                                              Submitted on Briefs: February 24, 2016

                                                         Decided: March 29, 2016


Filed:

                  __________________________________________
                                    Clerk
Justice Laurie McKinnon delivered the Opinion of the Court.

¶1    K.B.’s father, J.B. (Father), appeals from an order entered by the First Judicial

District Court, Lewis and Clark County, terminating his parental rights. We affirm.

¶2    Father presents the following issues for review:

      1. Whether the District Court lacked subject matter jurisdiction over K.B.’s abuse
         and neglect proceeding.

      2. Whether Father received ineffective assistance of counsel.

                 FACTUAL AND PROCEDURAL BACKGROUND

¶3    K.B. was born in 2007 and is the daughter of Father and M.H. (Mother). K.B. was

living with Mother when she was removed from Mother’s care by the Department of

Public Health and Human Services (the Department) on November 26, 2012, due to

concerns regarding Mother’s ability to care for her and protect her from domestic

violence. K.B. was placed in kinship foster care with her Aunt and Uncle, where she has

remained. K.B.’s younger sister, T.H., also lives with Aunt and Uncle.         K.B. was

adjudicated a Youth in Need of Care on May 30, 2013. The Department drafted a

treatment plan for Father. Father requested the name of the treatment plan be changed.

The typewritten words “Treatment Plan” were stricken from the title with a pen. Above

“Treatment Plan” the handwritten word “Checklist” was inserted.          Otherwise, the

substance of the document remained unchanged. The District Court referred to the

document afterwards as the “non-offending parent checklist.”          Father signed the

document on June 25, 2013, and the District Court approved it. Summarized, its tasks

required Father to: 1) remain law abiding; 2) address his substance abuse issues; 3)



                                            2
establish a safe, stable home and obtain employment; 4) maintain visitation with K.B.;

and 5) remain in contact with the Department.

¶4     The Department filed petitions to terminate Mother and Father’s rights on May 12,

and September 29, 2014, respectively. On April 15, 2015, the District Court held a

termination hearing. At the hearing, Mother consented to termination and relinquished

her parental rights to K.B. Father opposed his termination, but did not argue he should be

given custody of K.B. Instead, he asked the District Court for an additional six months to

accomplish the tasks on his “checklist” before he could become a placement option for

K.B.

¶5     At the termination hearing, evidence presented to the District Court showed that

K.B. flourished while living with Aunt and Uncle during the 29 months preceding the

termination hearing. At the time of the hearing, Aunt and Uncle wished to adopt K.B.

and T.H.    K.B.’s school principal testified that K.B.’s behavior and demeanor had

drastically improved since being placed with Aunt and Uncle, who are very active in

parenting her. K.B.’s kindergarten and first grade teacher testified that K.B. was initially

a very angry and isolated student. Later, she testified, K.B. became a pleasant, eager to

please student with vastly improved behavior. K.B.’s current, second grade teacher

testified that she had not observed some of K.B.’s initial behavioral issues that others had

witnessed and reported to her. She testified K.B. likes to be in control, is a pleasant

student, and she enjoys having K.B. in her class.        K.B.’s Court Appointed Special

Advocate testified that after many attempts, he was never able to get in contact with

Father and that Father’s termination was in K.B.’s best interests because of her need for


                                             3
permanency. K.B.’s therapist testified that she had worked with K.B. since the beginning

of 2013. In that time, she testified, K.B. had made substantial progress in her behavior

and self-confidence.

¶6     Michelle Silverthorne (Silverthorne), Child Protection Specialist, has been K.B.’s

case worker since her removal. At the termination hearing, Silverthorne testified that she

initially looked to Father as the “non-offending” parent for K.B.’s placement, as is

customary when a child is removed from one custodial parent. However, she did not

think Father was an appropriate or safe choice because he admitted to her that he could

not financially support K.B. or provide her a place to live. Also, Father was on probation

as a result of an earlier conviction of partner-family member assault. When asked about

the Department’s policy with regard to a treatment plan for a non-offending parent,

Silverthorne responded:

       Well, if the non-offending parent is unable to take care of the child, then we
       still go forward with trying to get the child adjudicated as a Youth in Need
       of Care and then developing a treatment plan to get that parent to the point
       where they can parent the child full time.

She testified that it was under this policy that she proceeded in developing a treatment

plan for Father.

¶7     As of the termination hearing, Silverthorne testified that Father’s treatment plan

had not been successful. Father had been incarcerated recently, had stopped visiting

K.B., and failed to remain in contact with Silverthorne.         Father’s visitation rights

were suspended because reports alleged, and K.B. confirmed, that he had left K.B., age

six, at a carousel alone while he went to pick up his girlfriend. Also, another report



                                             4
alleged Father was abusing methamphetamines.              During the summer of 2014,

Silverthorne and Father’s attorney each notified Father that his unsupervised visits would

be suspended until he underwent urinalysis testing. At the time of the termination

hearing, Father had not had contact with K.B. since mid-2014, except for one visit made

while K.B. was in the hospital recovering from a tonsillectomy. Silverthorne testified

that Father had not called or visited her office to see why his visitation had been

suspended, although he knew her phone number, which had not changed, and knew

where her office was located. Silverthorne testified that as a result of not being in contact

with Father, she had no way to verify whether he had established safe, stable housing or

employment. Silverthorne testified that she did not believe Father would be able to turn

his situation around in a reasonable amount of time to adequately care for K.B.

Silverthorne testified that K.B. is well-bonded and feels safe with Aunt and Uncle.

Silverthorne testified that termination of Father’s rights was in K.B.’s best interests,

especially her need for permanency.

¶8     Father testified at the termination hearing and explained he was not allowed to see

K.B. from August 2014 until February 2015 and he did not know why. He testified he

had been told to call Silverthorne to find out and had tried to on several occasions, but

had failed to reach her or get a call back from her. Father testified he had no issue taking

a drug test, as he had been tested regularly while on probation. He also testified that he

did not believe he should be required to undergo drug testing. Father testified he was

employed part-time and was planning on moving to Butte where he believed he would be

offered a full-time job.


                                             5
¶9    At the end of the termination hearing, the District Court terminated Father’s rights

from the bench.    On July 23, 2015, the District Court issued its findings of fact,

conclusions of law, and order terminating Father’s parental rights pursuant to

§ 41-3-609(1)(f), MCA.     In its order, the District Court concluded that clear and

convincing evidence established that a treatment plan for Father had been approved, but

had not been successful and that the condition rendering Father unfit was unlikely to

change within a reasonable amount of time. The District Court also concluded that clear

and convincing evidence established that K.B.’s best interests would be served by

terminating Father’s parental rights and awarding the Department permanent legal

custody with the lawful authority to consent to her adoption. Father appeals.

                              STANDARD OF REVIEW

¶10   Whether a district court possesses subject matter jurisdiction is a question of law,

which we review de novo. In re B.W.S., 2014 MT 198, ¶ 10, 376 Mont. 43, 330 P.3d 467

(citation omitted). This Court exercises plenary review of whether a parent was denied

effective assistance of counsel. In re B.M., 2010 MT 114, ¶ 22, 356 Mont. 327, 233 P.3d

338; In re J.J.L., 2010 MT 4, ¶ 14, 355 Mont. 23, 233 P.3d 921.

                                     DISCUSSION

¶11 1. Whether the District Court lacked subject matter jurisdiction over K.B.’s abuse
and neglect proceeding.

¶12   Father argues the District Court lacked subject matter jurisdiction to terminate his

parental rights because the court never approved a treatment plan for him under

§ 41-3-609(1)(f), MCA, and because he was a “non-offending” parent. “Subject-matter



                                            6
jurisdiction is a court’s fundamental authority to hear and adjudicate a particular class of

cases or proceedings.” Lorang v. Fortis Ins. Co., 2008 MT 252, ¶ 57, 345 Mont. 12, 192

P.3d 186 (citations omitted).       “Subject matter jurisdiction of the district courts is

established by the Montana Constitution.” Lorang, ¶ 56 (internal quotations and citation

omitted).   Particularly, Article VII, Section 4(1) provides that district courts have

“original jurisdiction in . . . all civil matters.” Therefore, a district court’s subject matter

jurisdiction is extremely broad and covers “all civil matters,” including child abuse and

neglect proceedings. A court’s subject matter jurisdiction is not affected by a court’s

failure to follow statutory requirements. See B.W.S., ¶ 13 (citations omitted).

¶13    Father argues the District Court lacked subject matter jurisdiction to terminate his

parental rights because his “checklist” did not satisfy the requirements of

§ 41-3-609(1)(f), MCA. However, conformity with the statute is unrelated to a court’s

authority to hear child abuse and neglect cases.          Trial courts have subject matter

jurisdiction over child abuse and neglect proceedings because they are “civil matters.”

¶14    Subject matter jurisdiction over child abuse and neglect proceedings is conferred

to the district courts by the Montana Constitution, not by statute. Even if the court failed

to follow § 41-3-609(1)(f), MCA, it would nevertheless still have subject matter

jurisdiction over the termination proceeding affecting K.B. Pursuant to § 41-3-103(1),

MCA, “a person is subject to a proceeding under [the child abuse and neglect statutes]

and the district court has jurisdiction over: (a) a youth who is within the state of Montana

for any purpose;” and “(d) a youth or a youth’s parent . . . who resides in Montana . . . .”

Therefore, there is no requirement that a parent be an “offending” parent before a court


                                               7
may make decisions regarding the best interests of a child suspected of having been

abused or neglected. Jurisdiction is conferred by virtue of the youth being within the

state of Montana, and that jurisdiction extends to a parent pursuant to the provisions of

§ 41-3-103(1), MCA.         The District Court correctly concluded it had subject matter

jurisdiction over K.B.’s child abuse and neglect proceeding and authority to terminate

Father’s parental rights.

¶15    2. Whether Father received ineffective assistance of counsel.

¶16    “[P]arents have a due process right to effective assistance of counsel in

termination proceedings.” In re A.S., 2004 MT 62, ¶ 20, 320 Mont. 268, 87 P.3d 408.

Whether assistance was effective requires review of counsel’s training, experience, and

advocacy. B.M., ¶ 22 (citation omitted). Ineffective assistance of counsel requires

reversal only if the parent suffered prejudice. B.M., ¶ 22 (citation omitted).

¶17    Father argues he received ineffective assistance of counsel because of his

counsel’s inadequate advocacy of Father’s interests. Specifically, Father believes his

counsel rendered ineffective assistance when he failed to object: (1) to K.B. being

adjudicated a Youth in Need of Care; (2) to the District Court’s characterization of his

“checklist” as a treatment plan; and (3) to the District Court exercising subject matter

jurisdiction over K.B.’s proceeding. We address each contention in turn.

       A. Youth in Need of Care Adjudication

¶18    On May 30, 2013, Father stipulated to the District Court’s adjudication of K.B. as

being a Youth in Need of Care. A Youth in Need of care is a youth who has been

determined to be, or have been, abused, neglected, or abandoned. Section 41-3-102(34),


                                              8
MCA. In his stipulation, Father admitted “that the State could prove by a preponderance

of evidence that the youth is abused and neglected within the meaning of Mont. Code

Ann. § 41-3-102 based upon the facts contained in the Affidavit of the Child Protection

Specialist.” Child Protection Specialist Michelle Young filed an affidavit that included

evidence that Mother was subjecting K.B. to domestic violence and drug abuse, by

Mother’s use of methamphetamines. The affidavit alleged both of Mother’s children had

fathers who were convicted of partner-family member assault while living with K.B. The

affidavit alleged K.B. then “age 5, has had significant exposure to domestic violence her

entire young life” and that both K.B.’s father and her sister’s father had received at least

three charges of partner-family assault, for allegedly assaulting Mother. The affidavit

alleged that K.B. had witnessed Mother and T.H., then age three, being beaten, hit, and

kicked.   The affidavit further stated that T.H.’s father, while incarcerated, accused

Mother of physically abusing T.H. by kicking her in the face.

¶19    Had Father not stipulated and insisted on a contested hearing, the State was ready,

willing, and able to present testimony regarding these allegations. The evidence was

substantial and would have established by a preponderance that K.B. was a Youth in

Need of Care. Thus, any objection or insistence by Father’s counsel to have a contested

hearing, even assuming for the sake of argument that it constituted deficient performance

by counsel, could not have prejudiced Father. Moreover, Father misunderstands the

focus of child abuse and neglect proceedings—the child. He mistakenly argues that K.B.

could only have been adjudicated a Youth in Need of Care “as to” Mother and not “as to”

him because K.B. was living with Mother when she was removed.               A child is not


                                             9
determined to be a Youth in Need of Care “as to” anyone. The child is adjudicated a

Youth in Need of Care because he or she is being, or have been, abused, neglected, or

abandoned. The District Court had sufficient evidence to adjudicate K.B. a Youth in

Need of Care. Father cannot show he suffered prejudice as a result of his counsel’s

failure to object to that determination.

       B. “Checklist” or “Treatment Plan”

¶20    On June 25, 2013, Father signed and the District Court approved a document

prepared by the Department as a treatment plan. Father asked that the document be

renamed. The words “Treatment Plan” were marked through and replaced with the word

“Checklist.” On appeal, Father contends his counsel was ineffective in failing to object

to the District Court’s characterization of this document as a treatment plan. He argues

that retitling the document changed its substance.        We find Father’s argument

unpersuasive.

¶21    If a child is found to be a Youth in Need of Care, the court may “order the

department to evaluate the noncustodial parent as a possible caretaker.”         Section

41-3-438(3)(b), MCA. The court may order a treatment plan for the child’s parent if “the

court has made an adjudication under 41-3-437 that the child is a youth in need of care.”

Section 41-3-443(1)(c), MCA. A treatment plan is a “written agreement between the

department and the parent or guardian . . . that includes action that must be taken to

resolve the condition or conduct of the parent or guardian that resulted in the need for

protective services for the child.” Section 41-3-102(30), MCA.




                                           10
¶22    Here, the statute authorized the Department, following the court’s determination

that K.B. was a Youth in Need of Care, to evaluate Father as a noncustodial parent and

possible caretaker for K.B. Similarly, the District Court was authorized by statute to

order Father to comply with a treatment plan because K.B. was adjudicated a Youth in

Need of Care. The document in question was prepared for Father as a treatment plan. It

specified actions Father must take to resolve the need for protective services to be

involved in K.B.’s life, and for Father to become an appropriate placement option for

K.B. The document, by whatever name Father chooses to subscribe to it, constituted a

treatment plan as defined by statute. Father has not shown he suffered prejudice as a

result of his counsel’s failure to object to the District Court’s characterization of the

so-called “non-offending parent checklist” as a treatment plan because the document

constituted a treatment plan. As such, the document satisfied one of the requirements of

§ 41-3-609(1)(f), MCA, for termination of Father’s rights.

       C. Subject Matter Jurisdiction

¶23    Father cannot show he suffered prejudice as a result of his counsel’s failure to

object to the District Court’s subject matter jurisdiction because, as shown above, the

District Court had subject matter jurisdiction over K.B.’s abuse and neglect proceeding.

                                    CONCLUSION

¶24    The District Court appropriately exercised subject matter jurisdiction over K.B.’s

abuse and neglect proceeding.      Father cannot demonstrate he received ineffective

assistance of counsel.




                                           11
¶25   Affirmed.

                               /S/ LAURIE McKINNON

We Concur:

/S/ MIKE McGRATH
/S/ JAMES JEREMIAH SHEA
/S/ MICHAEL E WHEAT
/S/ PATRICIA COTTER
/S/ BETH BAKER
/S/ JIM RICE




                          12
