                                                                                    August 18 2015


                                     DA 14-0610
                                                                                   Case Number: DA 14-0610

         IN THE SUPREME COURT OF THE STATE OF MONTANA
                                   2015 MT 249N



IN THE MATTER OF:
K.A.,

          A Youth in Need of Care.



APPEAL FROM:      District Court of the Twelfth Judicial District,
                  In and For the County of Chouteau, Cause No. DN-13-05
                  Honorable Daniel Boucher, Presiding Judge


COUNSEL OF RECORD:

           For Appellant:

                  Meri Althauser, Montana Legal Justice, PLLC; Missoula, Montana


           For Appellee:

                  Timothy C. Fox, Montana Attorney General, C. Mark Fowler, Assistant
                  Attorney General; Helena, Montana

                  Stephen A. Gannon, Chouteau County Attorney; Fort Benton, Montana



                                             Submitted on Briefs: July 22, 2015
                                                        Decided: August 18, 2015


Filed:

                  __________________________________________
                                    Clerk
Justice James Jeremiah Shea delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not

serve as precedent. Its case title, cause number, and disposition shall be included in this

Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana

Reports.

¶2     Birth mother, A.A. (Mother), appeals the order of the Twelfth Judicial District

Court, Chouteau County, terminating her parental rights to K.A., born February 2002.

We affirm.

¶3     K.A. has two reported putative fathers, J.A. and D.L. J.A. died in 2011. D.L. was

served by publication in April 2014, to which he never responded, and the Department of

Public Health and Human Services (DPHHS) was unable to locate him. Only Mother’s

parental rights are at issue in this appeal.

¶4     On March 4, 2013, DPHHS filed a petition for emergency protective services,

adjudication as a youth in need of care, and temporary legal custody of K.A. The petition

noted that Mother previously had her parental rights terminated for five other children. It

outlined multiple reports to DPHHS of Mother leaving K.A. unattended for long periods

of time, taking K.A. into bars, and three prior incidents of emergency removal by

DPHHS due to Mother’s alcohol and drug abuse. The petition was filed after an incident

of domestic abuse on the evening of February 25, 2013, when an argument broke out

between Mother and K.A. Mother, who was intoxicated, struck K.A. multiple times,

giving him a bloody nose. Mother began throwing furniture and breaking dishes. After
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getting away from Mother, K.A. ran nearly 10 blocks to the Chouteau County Sheriff’s

Office, in below-freezing temperatures, while wearing only one shoe. K.A. was placed

into care, and Mother was arrested and placed in the Chouteau County Detention Facility.

¶5      On March 15, 2013, Thomas J. Schoenleben of the Office of the Public Defender

(OPD) filed a notice of appearance as counsel for Mother. On the same day, attorney

Allen Lanning was appointed by OPD to represent K.A. The District Court held a

hearing on May 7, 2013, to adjudicate the status of K.A. as a youth in need of care. Child

Protection Specialist (CPS) Sarah White testified for DPHHS. K.A. was previously

under the care of DPHHS from June to October 2012. CPS White testified that, at the

time of the hearing, K.A.’s therapist did not think visitation was appropriate between

Mother and K.A. K.A. was adjudicated a youth in need of care (YINC) on May 14,

2013.

¶6      On June 4, 2013, Mother signed a court-approved treatment plan, which focused

primarily on addressing her substance abuse issues. Mother’s plan required a chemical

dependency evaluation, random urinalysis tests and drug screens, abstention from all

drugs and alcohol, a mental health assessment, and an anger-management course.

Mother was required to follow any treatment recommendations of her counselor and

therapist.

¶7      In August 2013, Mother was charged with criminal possession of dangerous drugs,

a felony, in Hill County.      Between January 2013 and August 2014, Mother was

incarcerated eight different times in the Hill County Jail on charges including drug

possession, traffic-related offenses, violating conditions of release, and partner or family
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member assault. Mother spent over 103 days incarcerated between January 2013 and

August 2014.

¶8     On August 5, 2014, the District Court held a hearing on the termination of

Mother’s parental rights.    Mother was represented by Kaydee N. Snipes, who was

appointed by OPD to replace Schoenleben. Mother appeared at the hearing in person, but

at the time was residing at the Hill County Jail on charges of driving on a revoked

driver’s license and violating conditions of release.

¶9     CPS Audree Kilby testified at the termination hearing for DPHHS.          Mother

completed her mental health assessment on April 3, 2014, and CPS Kilby testified that

Mother did not follow up with her counselor’s recommendations. Mother completed her

chemical dependency evaluation on June 16, 2014; however, CPS Kilby testified that she

did not complete the recommended treatment. Mother also did not enroll in the required

anger-management course. As of the August 5, 2014 hearing, Mother had not completed

a drug test since May 2014. Lanning, K.A.’s attorney, reported that K.A. did not want to

be returned to Mother’s care.

¶10    At the conclusion of the August 5, 2014 hearing, the District Court found as the

basis for the termination that Mother had not successfully completed her treatment plan,

and her behavior making her unfit to parent was unlikely to change within a reasonable

time, citing § 41-3-609(1)(f), MCA. On August 21, 2014, the District Court issued its

findings of fact and conclusions of law, which terminated Mother’s parental rights to

K.A. Mother appeals the order terminating her parental rights to this Court, arguing that

her counsel provided ineffective assistance.
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¶11    “[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 a person has been denied his or her right to due process is a question of

constitutional law, and our review of questions of constitutional law is plenary. In re

A.S., ¶ 9. When determining whether a parent’s counsel was ineffective in a termination

of parental rights proceeding, this Court reviews a trial counsel’s (1) training and

experience, and (2) advocacy skills. In re B.M., 2010 MT 114, ¶ 22, 356 Mont. 327,

233 P.3d 338. However, trial counsel’s ineffective assistance will only warrant reversal

if the parent suffered prejudice. In re B.M., ¶ 22.

¶12    We review a district court’s decision to terminate parental rights for an abuse of

discretion. In re B.M., ¶ 14. We will not disturb a district court’s decision on appeal

unless there is a finding of fact that is not supported by substantial evidence that would

amount to a clear abuse of discretion, or there is a mistake of law.         In re D.B.,

2012 MT 231, ¶ 17, 366 Mont. 392, 288 P.3d 160. A court may terminate parental rights

if a child has been adjudicated a youth in need of care, and “(i) an appropriate treatment

plan that has been approved by the court has not been complied with by the parents or has

not been successful; and (ii) the conduct or condition of the parents rendering them unfit

is unlikely to change within a reasonable time.” Section 41-3-609(1)(f), MCA.           A

court-ordered termination of parental rights must be based on clear and convincing

evidence. Section 41-3-609(1), MCA.

¶13    Mother argues that she was denied effective assistance of counsel at both the

YINC adjudication hearing on May 7, 2013, and the termination hearing on August 5,
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2014. Mother asserts that Schoenleben did not demonstrate proper training or experience

at the YINC adjudication hearing by not objecting to hearsay statements, allowing

admission of letters and reports that lacked proper foundation, and allowing admission of

other irrelevant material. Schoenleben also did not respond to two requests for admission

regarding Mother’s prior terminations of parental rights. Snipes was unaware of the

requests for admission, and therefore the District Court admitted evidence of Mother’s

prior terminations at the August 5, 2014 termination hearing. Neither attorney called

witnesses to testify on Mother’s behalf at either the YINC adjudication hearing or the

termination hearing. According to Mother, these failures by counsel prejudiced her and

resulted in the termination of her parental rights. Mother asks this Court to reverse the

termination or to remand for an evidentiary hearing on her claim of ineffective assistance

of counsel.

¶14   Although Mother’s counsel may have missed opportunities to object to

unfavorable evidence or to present favorable testimony for Mother, substantial evidence

was presented that Mother did not successfully complete the June 4, 2013 treatment plan.

Mother did not pursue the recommended treatment after her mental health assessment or

her chemical dependency evaluation, she did not attend anger-management classes, and

she did not submit to regular drug testing. The District Court found that Mother’s history

of domestic violence, multiple criminal charges, and multiple incarcerations

demonstrated that her behavior was unlikely to change in a reasonable time.

Furthermore, the District Court’s order acknowledged that “K.A. has expressed he is

afraid to return to his mother’s care as he is still scared of her.” Based on these facts,
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Mother has not demonstrated that she was prejudiced by her counsel’s alleged ineffective

assistance, and therefore we will not reverse the termination or remand for a hearing on

the issue.

¶15    We have determined to decide this case pursuant to Section I, Paragraph 3(c) of

our Internal Operating Rules, which provides for memorandum opinions. In the opinion

of the Court, the case presents a question controlled by settled law or by the clear

application of applicable standards of review. Having reviewed the briefs and the record

on appeal, we conclude that the Appellant has not met her burden of persuasion.

Affirmed.


                                               /S/ JAMES JEREMIAH SHEA

We Concur:

/S/ MIKE McGRATH
/S/ LAURIE McKINNON
/S/ MICHAEL E WHEAT
/S/ JIM RICE




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