                                                                                     December 10 2013


                                      DA 13-0225

          IN THE SUPREME COURT OF THE STATE OF MONTANA
                                      2013 MT 366



IN THE MATTER OF:
B.J.T.H., and B.H.T.H.,

            Youths in Need of Care.



APPEAL FROM:         District Court of the Third Judicial District,
                     In and For the County of Anaconda-Deer Lodge, Cause No. DN 11-03; DN 11-04
                     Honorable Ray Dayton, Presiding Judge


COUNSEL OF RECORD:

              For Appellant:

                     Jeanne Miller Walker, Hagen & Walker, PLLC; Billings, Montana

              For Appellee:

                     Timothy C. Fox, Montana Attorney General; Tammy K Plubell,
                     Assistant Attorney General; Helena, Montana

                     Ben Krakowka, Deer Lodge County Attorney; Anaconda, Montana



                                                Submitted on Briefs: November 13, 2013
                                                           Decided: December 10, 2013


Filed:

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

¶1     S.H.V.H. (Mother) appeals from an order of the Third Judicial District Court, Deer

Lodge County, terminating her parental rights. We affirm in part and remand in part.

                                         ISSUES

¶2     We restate the issues on appeal as follows:

¶3     1.   Did the District Court err in denying Mother’s request to fire her

court-appointed counsel?

¶4     2. Did the District Court err in accepting Mother’s relinquishment?

¶5     3. Did the District Court err in denying Mother’s motion to modify the treatment

plan and stay the termination hearing?

                 FACTUAL AND PROCEDURAL BACKGROUND

¶6     Mother and R.F. (Father) are the parents of B.H.T.H. and B.J.T.H., twins born in

July 2009. The Montana Department of Public Health and Human Services (DPHHS)

removed B.H.T.H. and B.J.T.H. from Mother’s home in Anaconda on January 28, 2011,

after receiving a referral regarding an ongoing situation at Mother’s house.       In an

affidavit requesting emergency protective services and temporary legal custody, the

DPHHS Child Protection Specialist identified several grounds for B.H.T.H. and

B.J.T.H.’s removal, including: Mother’s erratic behavior on January 28, 2011, leading to

her incarceration and arrest for misdemeanor assault; Mother’s use of inappropriate

caregivers; Mother’s rejection of the family support that had been offered; and disarray

and unsafe conditions in the home, including dirty dishes, a dirty diaper on the floor,

                                             2
clothing blocking the hallway and stairway, broken high chairs covered in moldy food,

and no baby gate to block the stairs.

¶7       The District Court entered orders adjudicating B.J.T.H. and B.H.T.H. as youths in

need of care on February 18, 2011. DPHHS prepared treatment plans for the parents,

which the District Court approved on March 9, 2011. The children were initially placed

with their maternal grandfather. After a March 18, 2011 Family Group Decision Making

Meeting, they were placed with their maternal great-aunt and great-uncle. On August 12,

2011, the District Court issued orders granting the extension of temporary legal custody

to give Mother additional time to complete her treatment plan.1

¶8       On February 1, 2012, the District Court approved DPHHS’s permanency plan

seeking termination of Mother’s parental rights. The court found that DPHHS had made

many efforts to reunify, and that Mother had not made any real progress on her treatment

plan. The court noted it would consider a petition for further extension of temporary

legal custody if Mother progressed with her treatment plan.

¶9       On March 16, 2012, Father relinquished his parental rights. In the spring of 2012,

Mother completed in-patient treatment at Rimrock Foundation in Billings, Montana. On

June 20, 2012, Mother’s counsel made a motion for an emergency hearing because

Mother had been accepted into the Carole A. Graham Home (Home) in Missoula,

Montana, for treatment in a supervised setting with her children. Her bed date was

scheduled for June 22, 2012, and pursuant to the Home’s policy, her children were

1
    The court ultimately extended temporary legal custody through September 2012.
                                                3
required to join her no later than July 6, 2012. At the conclusion of the June 21, 2012

hearing, and after receiving testimony on the proposed Home placement, the District

Court denied Mother’s motion to amend the treatment plan and to stay the termination

proceeding.

¶10   On September 5, 2012, the District Court was scheduled to hold a hearing on

DPPHS’s petition for termination of parental rights. As the hearing began, Mother

addressed the District Court, asking for permission to speak. The District Court told her:

“No, you tell your lawyer. Then he’ll tell me. Sit down.” Mother’s attorney informed

the District Court that Mother wanted to fire him. The court asked if Mother had hired

another attorney, which she had not. The court then told her she had “an excellent

lawyer,” and “[t]here’s no reason apparent to the [c]ourt for you to fire him.” After

denying Mother’s request to fire her attorney, the court gave Mother’s attorney the

opportunity to visit with Mother about voluntary relinquishment. After a thirty minute

recess in which Mother conferred with her attorney and family members, the court

reconvened, and Mother signed an affidavit of relinquishment for each child. Mother

immediately exited the courtroom and was obviously emotionally distraught.            On

September 12, 2012, the District Court issued orders terminating Mother’s parent-child

relationship with B.H.T.H. and B.J.T.H. and awarded permanent legal custody of the

children to DPHHS. The District Court stated in the order that Mother had received three

hours of relinquishment counseling.



                                            4
¶11    Mother contends on appeal that the District Court erred in failing to make an

adequate inquiry into her complaints about her counsel and failing to appoint her new

counsel. She argues that the State v. Gallagher, 1998 MT 70, ¶¶ 14, 15, 288 Mont. 180,

955 P.2d 1371, requirement that a hearing be held if a criminal defendant presents a

“seemingly substantial complaint” about the ineffectiveness of her counsel should be

extended to dependent and neglect proceedings. Mother further argues that the District

Court erred in accepting her relinquishment because her consent was obtained by duress

and she was not offered the required three hours of relinquishment counseling. Mother

alleges the District Court erred in denying her request to amend the treatment plan and

stay the termination hearing because amending the treatment plan would have been a

reasonable effort to reunite Mother with her children.

¶12    DPHHS argues that the District Court properly denied Mother’s request to fire her

attorney because her attorney had provided her with excellent representation and there

were no apparent grounds to support her request. According to DPHHS, Mother waived

her right to argue on appeal that her relinquishment was involuntary when she did not

raise the issue in District Court. DPHHS further argues that the District Court properly

denied Mother’s request to amend the treatment plan because Mother had declined

chemical dependency treatment in the past, and that placing the children in the Home

with Mother was not in their best interests.

¶13    In her reply brief, Mother counters that nothing prevents a parent from raising an

ineffective assistance of counsel claim at any stage of a youth-in-need-of-care

                                               5
proceeding, and that she cannot be faulted for remaining silent about her decision to fire

her attorney when the District Court specifically told her not to speak. Mother argues

that this Court should invoke the plain error doctrine with respect to Mother’s claims

regarding relinquishment, and that we should excuse Mother’s failure to object to the

relinquishment at the trial level given the surrounding circumstances. Mother alleges that

the relinquishment is defective because the relinquishment affidavit fails to state that

Mother received the required counseling, and that the District Court erred in accepting an

affidavit that is defective on its face, regardless of a party’s failure to object.

                                 STANDARD OF REVIEW

¶14    We review a district court’s findings of fact in a parental termination case to

determine whether the findings in question are clearly erroneous. In re D.B., 2008 MT

272, ¶ 13, 345 Mont. 225, 190 P.3d 1072. A finding of fact is clearly erroneous if it is

not supported by substantial evidence; if the district court misapprehended the effect of

the evidence; or if, after reviewing the record, this Court is left with a definite and firm

conviction that the district court made a mistake. In re M.B., 2004 MT 304, ¶ 11, 323

Mont. 468, 100 P.3d 1006 (citation omitted). A court’s conclusions of law in such a case

are reviewed for correctness, and its decision to terminate parental rights is a

discretionary ruling reviewed for an abuse of discretion. In re D.B., ¶ 13 (citation

omitted).




                                                6
                                      DISCUSSION

¶15    1.   Did the District Court err in denying Mother’s request to fire her

court-appointed counsel?

¶16    As an initial matter, we decline to apply the Gallagher standard to termination

proceedings. We have previously distinguished criminal proceedings from termination

proceedings and have declined to apply the Strickland v. Washington, 466 U.S. 668, 104

S. Ct. 2052 (1984), test to termination proceedings. In re A.S., 2004 MT 62, ¶ 23, 320

Mont. 268, 87 P.3d 408. In In re A.S., we held that parents have a right to effective

assistance of counsel in termination proceedings. In re A.S., ¶ 20. However, we also

noted that the rights and interests are different in termination proceedings than they are in

criminal proceedings. In a criminal case, the Strickland standards are intended to protect

defendants whose rights to effective assistance of counsel flow from the Sixth

Amendment to the United States Constitution and Article II, Section 24 of the Montana

Constitution, while in termination proceedings, the right to effective assistance derives

from the due process clause. In re A.S., ¶¶ 22-23. Moreover, due to the extended

involvement of the district court in a dependent-neglect case—from the initial petition for

temporary legal custody to the adjudication hearing, approval of treatment plans, and so

forth through an actual termination hearing—the district court has a more protracted

opportunity to evaluate counsel’s effectiveness than does a court in a criminal

proceeding, thus obviating in most cases the need for a separate hearing. It also bears

noting that, though the right to parent a child is a fundamental liberty interest, the best

                                             7
interests of the children are of paramount concern in a parental rights termination

proceeding and take precedence over the parental rights. In re Custody & Parental

Rights of D.A., 2008 MT 247, ¶¶ 18, 21, 344 Mont. 513, 189 P.3d 631 (internal quotation

omitted).

¶17   In In re A.S., we stated that the effectiveness of counsel in these cases should be

evaluated by examining factors such as training, experience, and advocacy, thereby

allowing a district court to make a qualitative assessment about the adequacy of counsel.

In re A.S., ¶ 26. Here, the District Court evaluated the effectiveness of Mother’s counsel

using these factors. The District Court concluded Mother’s attorney was “an excellent

lawyer,” was “probably the most experienced attorney that would be available for this

proceeding,” and had done “a good job so far.” Moreover, we note that “a parent may

not sustain an ineffective assistance of counsel claim when the parent cannot demonstrate

prejudice as a result of the ineffective assistance.” In re A.D.B., 2013 MT 167, ¶ 64, 370

Mont. 422, 305 P.3d 739. Mother failed to demonstrate any such prejudice. Based on

the record before this Court, we conclude the District Court did not clearly err in its

assessment that Mother’s counsel had adequate training and experience and was a good

advocate, and did not err in refusing to terminate the services of Mother’s

court-appointed counsel.

¶18   2. Did the District Court err in accepting Mother’s relinquishment?

¶19   We now turn to Mother’s request that we set aside her affidavit of relinquishment

of parental rights. Section 42-2-410, MCA, provides that a relinquishment may be

                                            8
revoked before a district court has issued an order terminating parental rights. Section

42-2-412(3)(c)(iii), MCA, provides that a relinquishment must state that the individual

executing the relinquishment has, “if required, received counseling services pursuant to

42-2-409 explaining the meaning and consequences of an adoption.” Section 42-2-

409(1)-(2), MCA, requires counseling of the birth mother in department, agency, and

direct parental placement adoptions unless the counseling requirement is waived for good

cause by a court. “A relinquishment and consent to adopt executed prior to completion of

required counseling is void.” Section 42-2-409(2), MCA.

¶20   Mother argues that the relinquishment should be revoked despite the fact that the

District Court already issued an order terminating parental rights because the

relinquishment was void. DPHHS argues Mother should have raised this issue in the

District Court, not on appeal, because the District Court could have determined whether

or not Mother received the requisite counseling or whether good cause existed to waive

the requirement. We conclude that, in light of the language of § 42-2-409(2), MCA,

failure to raise this matter in District Court did not constitute waiver. However, we

cannot resolve this issue based on the record before us. Though the court’s termination

order states that Mother signed the relinquishment after receiving three hours of

relinquishment counseling, Mother denies having received any counseling, and her

affidavit of relinquishment is silent as to this issue. Thus, we remand to the District

Court for a determination of whether Mother in fact received the required counseling or

whether good cause existed to waive the requirement.

                                           9
¶21    3. Did the District Court err in denying Mother’s request to modify the treatment

plan and stay the termination hearing?

¶22    A treatment plan may be altered, amended, continued, or terminated only with the

approval of the parent or parents or guardian pursuant to a stipulation and order, or by

order of the court. Section 41-3-443(4), MCA. Instead of amending the treatment plan to

allow B.H.T.H. and B.J.T.H. to go to the Home with Mother, the District Court elected to

retain the existing treatment plan and proceed with the termination hearing. The District

Court, considering the best interests of the children, concluded that the chances of

reunification were unknown, but that there was a “quantum of proof that it would be

harmful to the children” to be placed in the Home. The Child Protection Specialist and

children’s pediatrician testified that the children were doing well in their placement. The

pediatrician suggested visits with Mother be limited, and the Child Protection Specialist

argued the children needed to stay in their current placement to avoid any health issues.

The District Court’s determination that not amending the treatment plan was in the

children’s best interest was supported by substantial evidence; thus, we conclude the

District Court did not err in denying Mother’s motions.

                                    CONCLUSION

¶23    For the foregoing reasons, we affirm in part and remand in part.


                                                 /S/ PATRICIA COTTER




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We concur:


/S/ MIKE McGRATH
/S/ BETH BAKER
/S/ LAURIE McKINNON
/S/ MICHAEL E WHEAT




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