                                                                                            03/20/2018


                                          DA 17-0473
                                                                                        Case Number: DA 17-0473

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2018 MT 50



IN THE MATTER OF:

J.E.L., III,

               A Youth in Need of Care.



APPEAL FROM:            District Court of the Thirteenth Judicial District,
                        In and For the County of Yellowstone, Cause No. DN 16-067
                        Honorable Russell C. Fagg, Presiding Judge


COUNSEL OF RECORD:

                 For Appellant:

                        Shannon Hathaway, Montana Legal Justice, PLLC, Missoula, Montana

                 For Appellee:

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

                        Scott D. Twito, Yellowstone County Attorney, Rick Helm, Deputy County
                        Attorney, Billings, Montana



                                                   Submitted on Briefs: February 21, 2018

                                                              Decided: March 20, 2018


Filed:

                        __________________________________________
                                          Clerk
Justice Beth Baker delivered the Opinion of the Court.

¶1     J.P. (Mother) appeals the District Court’s order terminating her parental rights to

her son J.E.L. She argues that the District Court improperly concluded that the conduct or

condition rendering her unfit to parent was unlikely to change in a reasonable time. Mother

also argues that the State improperly relied on inadmissible evidence to which her counsel

failed to object, denying her the effective assistance of counsel and amounting to plain

error. We affirm.

                 PROCEDURAL AND FACTUAL BACKGROUND

¶2     The Department of Public Health and Human Services (Department) received a

report in February 2016 that Mother had been using methamphetamine and neglecting

three-year-old J.E.L. After conducting an investigation, the Department placed J.E.L. in

protective custody with relatives. The Department filed a petition for emergency protective

services, adjudication as youth in need of care, and temporary legal custody.          The

Department’s records showed that Mother previously had lost custody of her two older

children due to her drug use and neglect dating back to 2002.

¶3     The District Court granted the Department’s petition for emergency services and—

with Mother’s stipulation—adjudicated J.E.L. a youth in need of care and granted the

Department temporary legal custody.       Mother entered the Second Chance Home in

Billings, and J.E.L. moved in with her there in May 2016.

¶4     The District Court entered a treatment plan for Mother in August 2016. The plan’s

stated goals were to encourage Mother’s sobriety and to improve her parenting skills and

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relationship with J.E.L. The plan required Mother to “complete a chemical dependency

evaluation and follow all recommendations”—which included maintaining sobriety—to

submit to random drug and alcohol testing, to sign all relevant releases or authorizations,

to complete a parenting class, to attend monitored visitations with J.E.L., and to “follow

all rules and guidelines as a resident of Second Chance Home.”

¶5     Mother successfully completed the Second Chance Home program in November

2016, although she did relapse multiple times while living there. Upon completion, she

moved into her own apartment with J.E.L. Mother subsequently tested positive for

marijuana, alcohol, and methamphetamine multiple times in early 2017. After Department

personnel encountered Mother drinking at a local bar in January 2017, the Department

removed J.E.L. from Mother’s custody and placed him with his maternal grandparents.

¶6     The Department filed a petition for permanent legal custody and termination of

parental rights with right to consent to adoption in April 2017, based on Mother’s ongoing

substance abuse. The District Court held a termination hearing on June 14, 2017. The

court heard testimony from Mother; four of Mother’s treatment providers; Mother’s father;

and Brittney McNamara, a child protection specialist with the Department. The testimony

established that Mother had made some progress in managing her mental health and drug

addiction issues, but also that she had failed to maintain sobriety throughout the

proceedings and that she routinely tested positive for drugs and alcohol, including in the

weeks leading up to the hearing.




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¶7    During the hearing, counsel for the Department asked multiple witnesses—

including Mother and McNamara—about Mother’s discharge from the Montana Chemical

Dependency Center (MCDC). The Department’s counsel read aloud from a discharge

summary document from MCDC during the testimony and asked the witnesses questions

about it. The Department sought to show that Mother was discharged from MCDC not

because she successfully completed her chemical dependency program there, but because

she was showing no progress and the MCDC staff believed that she would not benefit from

further treatment. The Department did not call a witness to attest to the discharge

summary’s authenticity, and it did not offer the document into evidence. Mother’s counsel

did not object to the Department’s use of the document, but did elicit testimony from

Mother contradicting the Department’s characterization of her discharge.

¶8    The Department’s counsel also asked McNamara about a conversation she had with

Mother’s drug patch provider, Neil Friedel. McNamara stated that Friedel “figures that

[Mother] was a pretty heavy drug addict.” The Department did not call Friedel to testify,

and Mother’s counsel did not object to McNamara’s testimony.

¶9    At the close of the hearing, the District Court stated, “there’s no question that the

State has proven by clear and convincing evidence that the Treatment Plan has not been

fully complied with.” The court emphasized that “the issue is the drug addiction.” It

expressed doubt that Mother’s addiction could change in a reasonable time. The court

addressed Mother, stating, “I know you’ve made great efforts to try to address your

addiction issues, and it sounds like you have made some progress.” The court reasoned,

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however, that Mother was currently in a relapse “that’s been recurring since December,”

that Mother’s failed drug tests in the weeks before the hearing were “very concerning,” and

that Mother had a “chronic” addiction dating back fifteen years. The court stated, “I guess

the issue then is is it likely to change . . . I wish I could say it was.” The court advised

Mother, however, that based on the evidence, it had “unfortunately” come to the conclusion

that the situation was unlikely to change within a reasonable time. It therefore granted the

State’s motion to terminate Mother’s parental rights.

¶10    The District Court later entered its written Findings of Fact, Conclusions of Law,

and Order Terminating Parental Rights of Natural Mother. In its findings of fact, the court

stated, “Brittney McNamara, Department Social Worker, testified that, despite the

Department’s reasonable efforts, [Mother] has failed to make even minimal attempts to

compete any of the tasks of her Phase I Treatment Plan.” The order reiterated the court’s

finding that Mother’s conduct or condition rendering her unfit to parent was “unlikely to

change within a reasonable time.” Mother appeals.

                              STANDARDS OF REVIEW

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

discretion. In re K.A., 2016 MT 27, ¶ 19, 382 Mont. 165, 365 P.3d 478. A district court

abuses its discretion when it acts arbitrarily, without employment of conscientious

judgment, or in excess of the bounds of reason, resulting in substantial injustice. In re

K.A., ¶ 19.




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¶12    We review a district court’s findings of fact to determine whether they are clearly

erroneous and its conclusions of law to determine whether they are correct. In re D.B.,

2007 MT 246, ¶ 18, 339 Mont. 240, 168 P.3d 691. A finding of fact is clearly erroneous

if it is not supported by substantial evidence, if the trial court misapprehended the effect of

the evidence, or if our review of the record convinces us that a mistake has been committed.

In re N.R.A., 2017 MT 253, ¶ 10, 389 Mont. 83, 403 P.3d 1256.

¶13    Whether a person has been denied his or her right to due process is a question of

constitutional law, for which this Court’s review is plenary. In re A.S., 2004 MT 62, ¶ 9,

320 Mont. 268, 87 P.3d 408. A claim of ineffective assistance of counsel presents mixed

questions of law and fact, for which our review is de novo. In re C.W.E., 2016 MT 2, ¶ 9,

382 Mont. 65, 364 P.3d 1238.

                                       DISCUSSION

¶14 1. Whether the District Court’s finding of fact that the conduct or condition
rendering Mother unfit to parent was unlikely to change within a reasonable time was
clearly erroneous.

¶15    Mother argues that the District Court wrongly found that the conduct or condition

rendering her unfit to parent—her chemical dependence—was unlikely to change within a

reasonable time. She claims that the error violated her fundamental constitutional right to

parent her child. She contends further that the District Court abused its discretion in

determining in its written order that Mother had failed to make even “minimal attempts”

to complete her treatment plan. She asserts that the evidence showed that her condition

was improving and was likely to change with time. Mother contends that much of the

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evidence on which the District Court relied in making its decision—the Department’s

discussion of Mother’s MCDC discharge summary and McNamara’s testimony regarding

her conversation with Friedel—was presented improperly at the termination hearing and

prejudiced her right to a fundamentally fair proceeding.

¶16    Under § 41-3-609(1)(f), MCA, a district court may terminate parental rights upon a

finding by clear and convincing evidence that:

       the child is an adjudicated youth in need of care and both of the following
       exist: (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.

¶17    This statute requires full compliance with a treatment plan. In re A.H., 2015 MT

75, ¶ 35, 378 Mont. 351, 344 P.3d 403. “Partial or even substantial compliance is not

sufficient.” In re A.H., ¶ 35. “In determining whether the conduct or condition of the

parents is unlikely to change within a reasonable time,” the court must make a finding that

continuing the parent-child legal relationship “will likely result in continued abuse or

neglect or that the conduct or the condition of the parents renders the parents unfit, unable,

or unwilling to give the child adequate parental care.” Section 41-3-609(2), MCA. A

district court “should assess a parent’s past and present conduct” in making this

determination. In re A.H., ¶ 36.

¶18    The District Court’s written order stated that McNamara had testified that “[Mother]

has failed to make even minimal attempts to complete any of the tasks of her Phase I

Treatment Plan.” McNamara did not testify to this. Instead, she testified that Mother had

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completed many of the treatment plan’s requirements but had failed to complete the

requirement that she stay sober. Other testimony from the hearing clearly established that

Mother had successfully completed many of the treatment plan’s requirements, including

completing the Second Chance Home program, attending visitations with J.E.L., attending

parenting classes, and signing all releases and authorizations. The court’s written finding

was clearly erroneous because it inaccurately described McNamara’s testimony and was

not supported by substantial evidence presented at the hearing.

¶19    The court’s oral findings, however, contradict its written order. During the hearing,

the court stated to Mother, “I know you’ve made great efforts to try to address your

addiction issues, and it sounds like you have made some progress.” (Emphasis added).

The court noted Mother’s compliance with visitation and success at the Second Chance

Home. The court explained, however, that Mother had not complied fully with the

treatment plan, and it expressed doubt that she could resolve her chemical dependence in a

reasonable amount of time, given her past and present drug and alcohol abuse. The court

noted that Mother was “still in relapse and that’s been recurring since December, and

obviously with, um, dirty [urinalysis tests] 12 out of the last 20 days, that’s very

concerning.” The court explained that “this drug addiction is chronic—in fact goes back

15 years.” The court had observed earlier during McNamara’s testimony that there was

“no question” that Mother was addicted to drugs and that she “hasn’t recovered yet.”

¶20    Although the District Court’s written finding was clearly erroneous, its oral findings

are supported by ample evidence in the record. We may consider a district court’s oral

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findings in addition to its written findings. See In re K.H., 2012 MT 175, ¶¶ 45-49,

366 Mont. 18, 285 P.3d 474 (discussing the district court’s “extensive oral findings” in

determining that sufficient evidence existed to support the court’s decision not to

adjudicate two children as youths in need of care); see also Brunette v. State, 2016 MT

128, ¶ 33, 383 Mont. 458, 372 P.3d 476 (considering the district court’s oral findings in

concluding that the evidence supported the court’s denial of defendant’s motion to reinstate

his driver’s license); In re S.G.R., 2016 MT 70, ¶ 23, 383 Mont. 74, 368 P.3d 1180 (noting

that, in the context of civil commitment proceedings, a district court’s oral findings “are

appropriate for consideration under our precedent”). At the end of the hearing, the court

based its decision to terminate Mother’s parental rights on its conclusion that, despite

Mother’s “great efforts,” she continued to struggle with addiction and would be unable to

change that condition within a reasonable time.

¶21    Disregarding the MCDC discharge summary and McNamara’s testimony regarding

her conversation with Friedel, the record still provides substantial support for the court’s

conclusion. The evidence showed that Mother had struggled with drug addiction for years

prior to the initiation of these proceedings. She relapsed while staying at the Second

Chance Home.        She either missed scheduled drug tests or tested positive for

methamphetamine, marijuana, or alcohol on numerous occasions throughout the

proceedings. McNamara testified that Mother had “either failed to show or tested positive”

at more than half of her drug tests, and she noted that Mother tested positive for substances

on June 10 and 11, 2017, just days before the termination hearing. Rebecca Baumgardner,

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a licensed addiction counselor who had worked with Mother since May 2016, testified that

Mother was a “chronic drug user” and that she was in a “relapse cycle” dating back to

December 2016. Ailine Ostby, Mother’s mental health counselor, testified that Mother

showed progress in therapy and needed “probably a year” of additional counseling, but she

could not guarantee that another year would resolve Mother’s addiction issues. Ostby

acknowledged that Mother’s issues had been “ongoing for nearly a decade.” Because of

Mother’s history of substance abuse and her inability to stay sober, the District Court’s

finding that her chemical addiction was unlikely to change within a reasonable time was

supported by substantial evidence and was not clearly erroneous. See § 41-3-609(1)(f),

MCA; In re A.H., ¶ 36.

¶22    Mother presented testimony from her treatment providers that she was making

progress with her mental health and chemical dependence issues at the time of the hearing,

that she had been actively engaged in treatment programs and parenting support groups,

and that her “spiral” of relapses had been improving. That the testimony at the hearing

could have supported a different finding does not change the fact that the District Court’s

finding was supported by substantial evidence. See Peretti v. Dep’t of Revenue, 2016 MT

105, ¶ 18, 383 Mont. 340, 372 P.3d 447 (“Findings of fact can be based upon substantial

evidence despite the fact that there was evidence that may have supported a different

result.”).

¶23    Substantial evidence existed to support the District Court’s findings of fact that

Mother had not fully completed her treatment plan and that the condition rendering her

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unfit to parent was unlikely to change within a reasonable time. The District Court did not

misapprehend the effect of the evidence, and we are not convinced that it made a mistake.

¶24 2. Whether Mother is entitled to a new hearing because of the ineffective assistance
of her counsel or plain error at the termination hearing.

¶25    Mother argues that she was denied effective assistance of counsel by her counsel’s

failure to object to the Department’s use of McNamara’s hearsay testimony and of the

MCDC discharge summary.          Because Mother’s counsel raised no objections to this

evidence at the hearing, Mother also asks this Court to review for plain error whether the

Department’s use of this evidence violated her fundamental rights.

¶26    Parents are entitled by due process standards to the effective assistance of counsel

in parental termination proceedings. In re A.J.W., 2010 MT 42, ¶ 24, 355 Mont. 264,

227 P.3d 1012. We evaluate the effectiveness of counsel in such proceedings using two

non-exclusive criteria. In re A.S., ¶ 26. “The first factor requires consideration of counsel’s

experience and training representing parents in termination proceedings, and the second is

the quality of advocacy demonstrated at the hearing.” In re T.N.-S., 2015 MT 117, ¶ 30,

379 Mont. 60, 347 P.3d 1263. Even if counsel’s performance is deficient under these

criteria, however, we will not reverse for ineffective assistance of counsel unless the parent

“suffered prejudice as a result” of the deficient performance. In re T.N.-S., ¶ 30.

¶27    Accepting Mother’s argument that her counsel had valid grounds on which to object

to the Department’s repeated discussion of her MCDC discharge summary without offering

it into evidence, and to McNamara’s hearsay statements about Friedel’s beliefs, the record

does not show that Mother “suffered prejudice as a result” of the admission of this
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evidence. See In re T.N.-S., ¶ 30. Mother claims that the District Court relied on the

inadmissible evidence in deciding to terminate her parental rights. But the record contains

other substantial admissible evidence that Mother had a persistent drug addiction, that she

had been unable to stay clean, and that she was unlikely to resolve her addiction within a

reasonable time.

¶28    The evidence showed that Mother had abused drugs for over a decade prior to the

hearing, that she had relapsed multiple times during the proceedings, and that she had

missed or failed numerous drug and alcohol tests from early 2017 up to shortly before the

hearing. Baumgardner testified that Mother was a “chronic drug user” who was currently

in a “relapse cycle.”     Even if Mother’s counsel had objected successfully to the

Department’s references to the MCDC discharge summary and to McNamara’s hearsay

testimony, there is not a reasonable likelihood that the exclusion of this evidence would

have altered the District Court’s conclusion that Mother’s drug addiction was “chronic”

and unlikely to change within a reasonable time.

¶29    We conclude that the admission of the challenged evidence did not prejudice the

outcome of the proceedings. Mother is not entitled to a new hearing on the grounds of

ineffective assistance of counsel or plain error. See In re T.N.-S., ¶ 30; State v. White, 2014

MT 335, ¶ 36, 377 Mont. 332, 339 P.3d 1243 (declining to exercise plain error review

because defendant failed to show prejudice from the alleged error). The court stated in its

written order that it gave “primary consideration to the physical, mental, and emotional




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conditions and needs of [J.E.L.],” which it was required by statute to do prior to terminating

Mother’s parental rights. See § 41-3-609(3), MCA.

                                      CONCLUSION

¶30    Based on the competent substantial evidence presented at the termination hearing,

we conclude that the District Court did not clearly err in finding that Mother’s chemical

dependence was unlikely to change within a reasonable time. It properly gave priority to

the child’s best interests and did not abuse its discretion in ordering termination of Mother’s

parental rights. The District Court’s order is affirmed.


                                                   /S/ BETH BAKER



We Concur:

/S/ JAMES JEREMIAH SHEA
/S/ LAURIE McKINNON
/S/ DIRK M. SANDEFUR
/S/ INGRID GUSTAFSON




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