                                                                                                   08/16/2016


                                              DA 15-0639

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                              2016 MT 194


IN THE MATTER OF THE ADOPTION OF:

A.W.S. and K.R.S.,

         Minor Children.

J.N.S.,

              Petitioner and Appellee,

         v.

A.W.,

              Respondent and Appellant.


APPEAL FROM:               District Court of the Nineteenth Judicial District,
                           In and For the County of Lincoln, Cause No. DA 13-13 and DA 13-14
                           Honorable James B. Wheelis, Presiding Judge


COUNSEL OF RECORD:

                 For Appellant:

                           Tracy Labin Rhodes, Attorney at Law, Missoula, Montana

                 For Appellee:

                           Linda Osorio St. Peter, St. Peter Law Office, P.C., Missoula, Montana

                 For Guardian ad Litem:

                           Amy N. Guth, Attorney at Law, Libby, Montana


                                                        Submitted on Briefs: June 15, 2016
                                                                   Decided: August 16, 2016


Filed:

                           __________________________________________
                                             Clerk
Justice Patricia Cotter delivered the Opinion of the Court.

¶1     A.W. is the biological mother of A.W.S., age 14, and K.R.S., age 13. W.S. is the

biological father of the children. J.N.S. is W.S.’s wife and the children’s stepmother.

This appeal arises out of the Nineteenth Judicial District Court’s order terminating

Mother’s parental rights and granting Stepmother’s petition for adoption. We affirm.

                 FACTUAL AND PROCEDURAL BACKGROUND

¶2     This is the second appeal to come before this Court in this matter. The relevant

facts leading to the first appeal are set forth in In the Matter of the Adoption of A.W.S.

and K.R.S., Minor Children, 2014 MT 322, 377 Mont. 234, 339 P.3d 414 (A.W.S. I).

Those facts will not be repeated in this Opinion except as required for context.

¶3     In A.W.S. I, we reversed the District Court’s termination of Mother’s parental

rights and order of adoption on constitutional grounds, holding that indigent Mother was

disadvantaged by her inability to obtain counsel for the termination proceeding and was

therefore entitled to appointed counsel. A.W.S. I, ¶ 26. We ordered the matter remanded

to the District Court with instructions that the court determine if Mother qualified for

appointed counsel and, if so, directing it to appoint counsel and conduct another

termination hearing. A.W.S. I, ¶ 28.

¶4     On December 26, 2014, immediately following remand of this matter, the District

Court appointed a guardian ad litem (GAL) for the children and Office of the Public

Defender (OPD) counsel for Mother subject to a determination of Mother’s eligibility.

On January 6, 2015, OPD moved to have the appointment vacated on the grounds that the

Montana Public Defender Act did not authorize OPD to represent parties in an action


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filed under the Montana Adoption Act. On February 11, 2015, the District Court denied

OPD’s motion to vacate the appointment of counsel. On February 20, an OPD attorney

appeared on behalf of Mother. On March 24, 2015, Mother’s original OPD counsel

retired and Mother was assigned new OPD counsel. On May 13, 2015, the adoption

hearing was scheduled for June 18, 2015.

¶5     On June 9, 2015, the GAL interviewed A.W.S. and K.R.S. On June 13, 2015,

Mother’s counsel moved to continue the hearing requesting additional time to, among

other things, “research and develop novel constitutional arguments” pertaining to private

involuntary terminations and Montana’s private termination statutes. On June 15, the

GAL filed her post-interview Report supporting the petition for adoption and urging the

court to expeditiously resolve the matter as the children were experiencing heightened

anxiety over the protracted legal proceedings following this Court’s issuance of A.W.S. I.

On that same day, Stepmother and the GAL filed objections to Mother’s request for

continuance, arguing that the request with its concomitant change in legal theory five

days before the scheduled hearing was untimely and could have been raised earlier.

Additionally, they asserted that granting the motion would be prejudicial to Stepmother

and the children and was not in the best interests of the children. In addition, on June 15,

Mother filed her first motion to dismiss claiming that termination proceedings under the

Act violate the 14th Amendment to the United States Constitution and Article II, Section

4 of the Montana Constitution.

¶6     On June 16, 2015, the District Court denied Mother’s motion for a continuance

stating that “the constitutional issues outlined in [Mother’s] motion could have been


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raised on the initial appeal.” The District Court predicated its conclusion primarily on the

best interests of the children. Noting that considerable time had elapsed since the remand

of the case and referring to the GAL’s objection to a continuance, the court concluded

that these children should not be kept on “tenterhooks through their youth.” Also on June

16, Mother filed her second motion to dismiss acknowledging that because the court

denied her motion to continue, Mother’s constitutional argument “is not fully developed.”

Mother therefore set forth a short 5-point summary that would provide the foundation for

her argument. Mother’s second motion to dismiss is deemed denied.

¶7     The court conducted a hearing on June 18, 2015, at which all parties were

represented by counsel. On July 22, Mother filed proposed Findings of Fact, Conclusions

of Law, and Order in which she presented an argument that the Montana Adoption Act

was unconstitutional. On September 21, 2015, the court issued its Findings of Fact,

Conclusions of Law, and Order, terminating Mother’s parental rights and granting

Stepmother’s petition for adoption.

¶8     Mother appeals.

                                         ISSUES

¶9     A restatement of the issues on appeal is:

¶10    Did the District Court err in declining to entertain Mother’s constitutional

argument?

¶11    Did the District Court err in finding that Mother was unfit?

¶12    Did the District Court abuse its discretion in terminating Mother’s parental rights?

¶13    Was Mother denied effective assistance of counsel?


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                               STANDARDS OF REVIEW

¶14    We review a district court’s ruling on a motion to continue for an abuse of

discretion. A district court abuses its discretion when it acts arbitrarily without the

employment of conscientious judgment or exceeds the bounds of reason, resulting in a

substantial injustice. State v. Sebastian, 2013 MT 347, ¶ 14, 372 Mont. 522, 313 P.3d

198 (internal citations omitted).

¶15    We review a district court’s findings of fact supporting termination of parental

rights to determine whether they are clearly erroneous. We review a court’s conclusions

of law to determine if they are correct. In re Matter of B.B., 2006 MT 66, ¶ 17, 331

Mont. 407, 133 P.3d 215 (citations omitted).

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

discretion. An abuse of discretion occurs when a district court acts arbitrarily without

conscientious judgment or exceeds the bounds of reason. J.M. v. R.H. (In re J.W.M.),

2015 MT 231, ¶ 11, 380 Mont. 282, 354 P.3d 626 (citations omitted).

¶17    Claims of ineffective assistance of counsel present mixed questions of law and fact

that we review de novo. State v. Root, 2015 MT 310, ¶ 8, 381 Mont. 314, 359 P.3d 1088.

                                     DISCUSSION

¶18    Did the District Court err in declining to entertain Mother’s constitutional
       argument?

¶19    On appeal, Mother asserts that the provisions of the Montana Adoption Act are

unconstitutional.   She maintains that the District Court erred when it applied the

unconstitutional provisions of the act to determine that she was unfit and to terminate her



                                            5
parental rights. She argues that her repeated attempts beginning on June 13, 2015, to

raise the issue of the constitutionality of the Montana Adoption Act in the District Court

preserved the issue on appeal and we are obligated to review it. We disagree.

¶20   Mother did not raise her constitutional argument until three to five days before the

date set for the hearing on the petition for adoption. OPD was notified on December 26,

2014, of its obligation to represent Mother in this matter. Between this notice and the

June 18, 2015 hearing date, OPD filed several motions on Mother’s behalf, but none

raised the argument that the Montana Adoption Act was unconstitutional until its June 13

motion was filed.

¶21   The District Court has broad discretion when determining whether to grant a

motion for continuance. Sebastian, ¶ 14. Here, as further addressed below, the court was

presented with an already protracted legal proceeding involving children who were

understandably apprehensive about what their future would hold. Given this situation as

well as the timing of the motion to continue premised upon a newly conceived

constitutional argument, we cannot conclude that the District Court acted arbitrarily or

beyond the bounds of reason in declining Mother’s request to postpone the adoption

hearing so that she could develop her constitutional arguments. We therefore conclude

that the District Court did not err in declining to address Mother’s constitutional

arguments. Because these arguments were not addressed in the District Court, we decline

to address them for the first time on appeal. Schlemmer v. N. Cent. Life Ins. Co., 2001

MT 256, ¶ 22, 307 Mont. 203, 37 P.3d 63 (citation omitted).




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¶22     Did the District Court err in finding that Mother was unfit?

¶23     Mother further argues that the District Court erred in finding that she was unfit

under § 42-2-608(1)(b), (c), and (h), MCA. Section 42-2-608, MCA, provides in relevant

part:

        (1) The court may terminate parental rights for purposes of making a child
        available for adoption on the grounds of unfitness if:
                                            .     .   .
        (b) the parent has willfully abandoned the child, as defined in
        41-3-102 . . .;
        (c) it is proven to the satisfaction of the court that the parent, if able, has
        not contributed to the support of the child for an aggregate period of 1 year
        before the filing of a petition for adoption;
                                            .     .   .
        (h) a finding is made for a parent who is given proper notice of hearing and
        is a respondent to the petition to terminate parental rights and:
             (i) by a preponderance of the evidence, it is found that termination is
             in the best interests of the child; and
             (ii) upon clear and convincing evidence, it is found that one of the
             following grounds exists:
                                            .     .   .
        (D) failure to terminate the relationship of parent and child would be
        detrimental to the child.

¶24     The District Court found that the 2007 dissolution decree/parenting plan required

Mother to pay monthly child support and granted her generous visitation rights. The

court further found that from 2007–2009, as reported by the children to the GAL, Mother

slept through much of their visits or was away from home. The children also disclosed

that they were left in their grandmother’s care and frequently visited neighbors asking for

food.

¶25     In 2009, Mother was arrested for burglary and given a probationary sentence with

a restitution obligation. Based upon the children’s reports and Mother’s arrest, Father



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requested modification of the visitation arrangement seeking supervised visits only for

Mother. Father testified that the children had witnessed Mother and others living at or

visiting Mother’s household purchasing and using illegal drugs. He further testified that

Mother frequently returned the children dirty, in ill-fitting clothes not suitable for the

season, and hungry. The District Court adopted an amended parenting plan in July 2009,

and ordered Mother to pay for the cost of supervision in lieu of child support. It is

undisputed that Mother has not paid child support since the 2007 dissolution. The record

is somewhat unclear but it appears that she paid for a single supervised visit.

¶26    After the parenting plan was amended, Mother’s visits with the children were

limited and sporadic and ceased entirely in August 2010. Mother claimed that following

the August 2010 visit, Father interfered with visitation. However, the District Court

found that Father did “not intend[ ] to frustrate or interfere with the Mother’s relationship

to the children,” but rather his actions were a reflection that Father “had [no] obligation to

the Mother to further her parenting when the Mother expressed no interest in doing so on

her own accord.”

¶27    The court acknowledged that Mother claimed that since 2007 she was financially

unable to pay child support or pay for supervised visits. The court noted however that

during this time, Mother, who worked intermittently, maintained contact with her

boyfriend, now husband, while he was incarcerated in another city, maintained contact

with her eldest son by a previous relationship while he was incarcerated at Pine Hills, and

paid off her restitution. The District Court found that Mother had multiple opportunities

to contribute to her children’s care during these years and chose not to do so.


                                              8
¶28    The court devoted substantial discussion in its findings of fact to the potential

threat to the children by Mother’s husband, a registered violent offender, and oldest son,

a registered sex offender. It expressed concern that Mother was married to a man serving

a sentence for Partner/Family Member Assault following his third such offense which

involved Mother and their then four-month-old son. The court also noted that Mother’s

oldest son, who had sexually assaulted a minor cousin, was recently released from Pine

Hills and would be spending time with Mother in her home. The District Court observed

that Mother minimized the potential danger to the children through exposure to her

husband and son just as she had minimized the neglect the children had experienced

during early visitation. Lastly, the court interviewed the children who unequivocally

stated that they wanted Stepmother to adopt them.

¶29    Mother argues on appeal that because the amended parenting agreement obligated

her to pay for supervised visitation in lieu of monthly child support she cannot be found

unfit based upon failure to pay child support. She further asserts that she did not willfully

abandon her children; rather, she was forced to stop visits by Father, Stepmother, the

District Court, and her inability to hire an attorney. Mother maintains that she has been

sober for five years and that the record does not support a showing that she poses “any

risk of substantial harm to the children presently.” Mother’s argument is unpersuasive.

Mother was relieved of child support to allow her to use her limited funds for supervised

visitation. Both child support and payment for supervised visits are designed in part to

contribute to a parent/child relationship and/or a child’s well-being, whether through a

monetary contribution or time spent together creating and maintaining a parental bond.


                                             9
Mother failed to do either. We acknowledge that Mother experienced difficulty in trying

to arrange visitation with her children following the August 2010 visit and attempted for

a short period to seek modification of the parenting plan’s visitation arrangements.

However, she abandoned such attempts claiming she could not afford an attorney to assist

her. Nonetheless, when an attorney was appointed for her in December 2014 to represent

her in this proceeding, Mother made no requests that counsel help her arrange for

visitation.

¶30    The reality is that Mother and the children have not spent time together since

2010. The children, who were 7 and 8 at the last visit, are now 13 and 14. They have not

spoken with their mother nor corresponded by letter.         They recall the stress they

experienced in their mother’s earlier care and assert they have no bond with her nor a

desire to continue a relationship. They repeatedly told the District Court and the GAL

that they wanted Stepmother’s petition for adoption to be granted.

¶31    Abandon means, among other things, “willfully surrendering physical custody for

a period of 6 months and during that period not manifesting to the child and the person

having physical custody of the child a firm intention to resume physical custody . . . .”

Section 41-3-102(1)(ii), MCA. Despite the hardships Mother recited in her testimony,

we cannot conclude that the District Court’s findings that she abandoned the children or

did not pay support for the children are clearly erroneous. Moreover, the court’s findings

regarding the potential danger to the children from Mother’s husband and older son are

supported by the record and likewise are not clearly erroneous. The District Court’s

conclusions of law based upon these findings are not incorrect. Finally, the District Court


                                            10
carefully and correctly considered the best interests of the children and determined that

such best interests were met by terminating Mother’s parental rights and allowing

Stepmother to adopt the children. These findings are supported by the record and support

the District Court’s determination that Mother is unfit. We will not disturb them.

¶32    Did the District Court abuse its discretion in terminating Mother’s parental
       rights?

¶33    As we have determined that the District Court correctly interpreted and applied

§ 42-2-608(1)(b), (c), and (h), MCA, and concluded that Mother is unfit, and that it is in

the best interests of the children to be adopted by Stepmother, we will vacate this ruling

only in the event the District Court abused its discretion. As stated above, a district court

abuses its discretion when it acts arbitrarily without conscientious judgment or exceeds

the bounds of reason. In re J.W.M., ¶ 11. In this case, the court neither acted arbitrarily

nor exceeded the bounds of reason.

¶34    Was Mother denied effective assistance of counsel?

¶35    At the close of the hearing, OPD counsel submitted an offer of proof “of his

incompetency and lack of preparation.” He reminded the court that he was inexperienced

in this area of the law and noted that after his initial motion to vacate the appointment,

“there was a lack of trust between himself and his client.” He highlighted multiple

examples of his inexperience and unpreparedness. The District Court held that counsel’s

performance was within the range of competence of attorneys in similar cases. The court

noted that Mother had the opportunity to timely raise constitutional claims and that her

failure to do so was a matter of strategy and not lack of opportunity.



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¶36    On appeal, Mother asserts that OPD counsel provided ineffective representation

because counsel “did not have training and experience in representing clients in

terminations under the Montana Adoption Act, and was unprepared for the termination

hearing.”

¶37    When addressing a claim of IAC, we review “a trial counsel’s (1) training and

experience, and (2) advocacy skills, in determining whether assistance was ineffective.

Only if the parent suffered prejudice, however, will this Court determine that trial

counsel’s ineffective performance warrants reversal.” In re B.M., 2010 MT 114, ¶ 22,

356 Mont. 327, 233 P.3d 338 (citations omitted).

¶38    Notwithstanding counsel’s belated IAC arguments, we decline to disturb the

District Court’s finding that the performance of counsel was within the range of

competence required of attorneys in similar cases. Counsel ably advocated for his client

at the adoption hearing. Moreover, we cannot conclude that his failure to raise the

constitutional issue earlier in the proceeding was based upon poor training or

inexperience, nor can we conclude under the facts before us that Mother was prejudiced

by counsel’s performance.      We therefore conclude that Mother was not denied the

effective assistance of counsel.

                                     CONCLUSION

¶39    For the foregoing reasons, we affirm the District Court’s termination of Mother’s

parental rights and its granting of Stepmother’s Petition for Adoption.

                                                 /S/ PATRICIA COTTER



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We Concur:

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




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