IN RE: G.F.S. (2024)

¶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 Mother appeals the February 14, 2024 Order Terminating Parental Rights issued by the Eighth Judicial District Court, Cascade County. The issues on appeal are whether mother's attorney was ineffective for failing to advocate to have the children placed with mother upon removal from father's care, and whether the Department of Public Health and Human Services, Child and Family Services Division (the Department) made reasonable efforts to reunify mother with the children throughout the proceedings of the case.

¶3 In June 2018, the Department removed father and mother's three children from their care because of father's substance abuse issues and scratches on the children's faces. Later, in 2020, the court granted father and stepmother full custody over the children. A parenting plan allowed mother parenting time with the children for one week, one weekend, and two hours on Wednesdays of each month.

¶4 In August 2021, the Department implemented a protection plan after receiving referrals that father exposed the children to methamphetamine and mother was unable to safely parent the children. The protection plan required both father and mother to engage in treatment plans. In February 2022, the Department still had the same concerns, so the Department filed a motion for emergency protective services, adjudication, and temporary legal custody. The children remained in stepmother's care with a parenting plan in place. Mother began supervised visits and tried working on her parenting deficiencies.

¶5 The District Court held a show cause hearing on the State's motion for emergency protective services on March 23, 2022. Mother's attorney stipulated to show cause and adjudication stating, “yes, my client is willing to stipulate to cause and adjudication without making any specific admissions or denials to the voluminous allegations contained in the social worker's affidavit.” Accordingly, the court adjudicated the children to be youths in need of care and granted temporary legal custody to the Department.

¶6 At the disposition hearing on April 20, 2022, the court adopted the Department's proposed treatment plan for mother which required her, among other things, to attend parenting classes, obtain a mental health evaluation, attend counseling, maintain a safe home environment, and be able to meet the basic needs of her children. After the disposition hearing, mother's attorney, Hoffman, sought to withdraw as mother's counsel based on irreconcilable differences and a breakdown in communication. The court held a hearing on the representation issue. Mother asserted Hoffman did not provide effective counsel because he did not request the children be placed with her, instead of stepmother, after they were initially removed from father's custody. Hoffman stated he did not request placement with mother because he did not think it was legally ripe to request such at that time. Upon completion of the hearing, the court determined mother and Hoffman's attorney-client relationship was hostile and could not be mended and appointed her new counsel.

¶7 Over the course of the next year, mother demonstrated that she still could not safely care for the children despite her participation in counseling and educational programs. Mother exhibited a resistance to implementing the Department's methods of parenting, and lacked control over the children and her own emotions. As a result, in July 2023, the Department petitioned to terminate mother's parental rights.

¶8 On February 9, 2024, the District Court held a hearing on the State's petition for termination of parental rights. The State sought termination pursuant to § 41-3-609(1)(f), MCA—the children were adjudicated as youths in need of care, mother and father had not successfully completed their court-ordered treatment plans, and the conduct or condition rendering them unfit was unlikely to change within a reasonable time. At the termination hearing, Dr. Page, who performed mother's first psychological evaluation, testified that “with a ton of intervention attempts for years, she still has not demonstrated appropriate progress in both education and therapeutic intervention, as well as observations and coaching.” Dr. Page further testified that at the time of the evaluation, mother was not able to safely and adequately parent her children without supervision or assistance.

¶9 Dr. Smelko testified that he attempted to perform a second psychological evaluation of mother but could not complete it because she became angry and left the facility. Dr. Smelko expressed that mother had “a hard time regulating her own emotions, tolerating distress, [and had] high impulsivity.” He opined, based on her history of reports from other doctors, the information he could gather during their time together, and her lack of improvement despite years of services, that mother should not be reunified with her children at that time. The District Court terminated both mother and father's parental rights and granted the Department permanent legal custody. Mother appeals.

¶10 Ineffective assistance of counsel (IAC) claims are mixed questions of fact and law that are reviewed de novo. State v. Ward, 2020 MT 36, ¶ 15, 399 Mont. 16, 457 P.3d 955. “The Due Process Clause of the Montana Constitution (Article II, Section 17) provides a parent in a termination of parental rights proceeding with the right to the effective assistance of counsel.” In re A.D.B., 2013 MT 167, ¶ 64, 370 Mont. 422, 305 P.3d 739. Claims of IAC in dependent neglect proceedings cannot succeed if the parent is unable to demonstrate prejudice as a result of the ineffective assistance. In re A.D.B., ¶ 64.

¶11 Mother claims her attorney provided IAC when he did not request placement of the children with mother at the show cause or disposition hearings. She asserts her attorney should not have stipulated to cause and adjudication because Montana law advocates for placement with the natural parent.

¶12 Here, at the hearing on Hoffman's motion to withdraw as mother's counsel, he explained that he did not advocate for placement of the children with mother at the show cause or disposition hearings for strategic purposes. Hoffman stated that, based on his research, he did not think a motion for placement with the mother was ripe at the time, so he chose not to advance a frivolous argument because it did not make legal sense. Hoffman also testified that he made every effort to attend all of mother's meetings with the Department to stay updated on her progress. He also arranged and attended a family engagement meeting with mother and the Department to negotiate her treatment plan. However, he was not able to do everything mother demanded of him when there was no legal or factual basis to do so.

¶13 Accordingly, we cannot conclude mother was prejudiced by Hoffman's representation. The record does not support any chance of the District Court placing the children in mother's care at that time based on the doctors’ and counselors’ testimony that she could not safely parent her children. So, even if Hoffman advocated for placement with her, based on the evidentiary record, mother has not shown the outcome of the proceedings would have been any different. Mother's IAC claim fails for lack of prejudice and failure to demonstrate how Hoffman's representation was deficient.

¶14 Mother also asserts the Department did not make reasonable efforts throughout the case's proceedings to reunite her with her children. The State asserts that whether the Department made reasonable efforts is neither a required finding for termination of parental rights nor a stand-alone claim for appeal, but may be a predicate for determining if the conduct making the parent unfit is likely to change within a reasonable time. The State asserts the Department engaged in reasonable efforts to reunite mother with her children, but despite these efforts, mother's parenting deficiencies did not change and were unlikely to change in a reasonable time.

¶15 This Court reviews a district court's decision to terminate parental rights for an abuse of discretion. In re A.S., 2016 MT 156, ¶ 11, 384 Mont. 41, 373 P.3d 848. “Because a natural parent's right to care and custody of a child is a fundamental liberty interest, a district court must adequately address each applicable statutory requirement before terminating an individual's parental rights.” In re R.L., 2019 MT 267, ¶ 17, 397 Mont. 507, 452 P.3d 890 (internal quotations omitted). One such statutory requirement states “[t]he department shall make reasonable efforts to prevent the necessity of removal of a child from the child's home and to reunify families that have been separated by the state.” Section 41-3-423(1), MCA. Reasonable efforts include “voluntary protective services agreements, development of individual written case plans specifying state efforts to reunify families, placement in the least disruptive setting possible, provision of services pursuant to a case plan, and periodic review of each case to ensure timely progress toward reunification or permanent placement.” In re R.L., ¶ 17.

¶16 “Although determination of whether the Department made reasonable efforts is not a separate requirement for termination, it may be a predicate for finding that the conduct or condition rendering a parent unfit, unwilling, or unable to parent is unlikely to change within a reasonable time” which is one of the factors required for termination of parental rights. In re R.L., ¶ 18. A parent is obligated to avail herself of the services arranged or referred by the Department and engage with the Department to successfully complete her treatment plan. In re R.L., ¶ 20.

¶17 Here, there is ample evidence in the record showing that the Department made reasonable efforts to reunite mother and her children. The Department developed the treatment plan that mother was to follow in order to be reunited with her children. The Department initiated a prevention and protection plan with the family and set up services to stabilize their home. The Department also worked with the family—providing family-based services, counselors for the children, a counselor for mother, and in-home safety planning and services—for seven months before filing for temporary legal custody. The Department continued to try and work with mother providing visitation coaching, counseling, family engagement meetings, and parenting education to improve her parenting skills, anger management, emotional regulation, and boundaries. Mother was resistant to the services provided and the Department's involvement and instead focused on problems she perceived with father and step-mother. Mother stood in the way of her reunification with her children because she did not engage with the Department to successfully complete her treatment plan, address her parenting deficiencies, and demonstrate her ability to safely care for her children.

¶18 Mother's family counselor reported that therapy was “constant chaos and stressful and the children were very dysregulated.” Mother's first psychological evaluation found that even though she had been seeing a parenting coach, her inappropriate parenting behaviors were continuous. Mother's second psychological evaluation was incomplete because she became angry and left the facility in the middle of the evaluation. Mother was also discharged from her parenting classes due to her out of control behaviors.

¶19 The Department put forth reasonable efforts to educate mother on parenting skills and assist her in addressing her own emotional needs through therapy. However, mother failed to utilize the resources and services the Department offered. It was not the Department's lack of effort that made it unlikely that mother's unfitness would change in a reasonable time. Rather, it was mother's own unwillingness to change and continued noncompliance with her treatment plan that made it unlikely that her unfitness would change in a reasonable time.

¶20 “What constitutes reasonable efforts is not static or determined in a vacuum, but rather is dependent on the factual circumstances of each case—the totality of the circumstances—including a parent's apathy and/or disregard for the Department's attempts to engage and assist the parent.” In re R.L., ¶ 22. Based on our review of the record, the Department engaged in reasonable efforts to reunify mother with her children and the District Court did not abuse its discretion in terminating mother's parental rights based on her failure to successfully complete her treatment plan and that the conduct or condition rendering her unfit was unlikely to change within a reasonable time.

¶21 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.

¶22 Affirmed.

INGRID GUSTAFSON

We concur: LAURIE McKINNON JAMES JEREMIAH SHEA BETH BAKER JIM RICE