IN RE: D.R. and P.W. (2019)

¶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 J.R. (Mother) appeals the Order of the Eighth Judicial District Court, Cascade County, terminating her parental rights to her children, D.R. and P.W. We affirm.

¶3 On February 10, 2017, the Montana Department of Public Health and Human Services (Department) petitioned for emergency protective services (EPS), adjudication as youth in need of care (YINC), and temporary legal custody (TLC) of D.R. and P.W. The State's petition alleged that Mother and her husband J.M. were using methamphetamine, that drug distribution was occurring in the home, and that D.R. and P.W. were being physically neglected. At the time that the children were removed from the home, Mother and J.M. were living together with their two children, D.M. and T.M., as well as D.R. and P.W., Mother's children from previous relationships.

¶4 On February 13, 2017, the District Court issued an Order to show cause, granted EPS, and scheduled an adjudicatory hearing. On March 31, 2017, Mother and J.M. jointly retained Scott Albers to represent them at the hearing. Albers requested a contested hearing, during which the Department presented testimony from Child Protection Specialists (CPS) Julie Bass, Melody Wilkes, and Kami Stone; Detective Adam Price; SVU Detective Katie Cunningham; and Licensed Addictions Counselor Teresa McCracken. Mother's defense to the Department's petition was that J.M. was primarily responsible for all the drug-related allegations and that Mother had attempted to get D.R. and P.W. away from J.M. and the drug activity. At the conclusion of the hearing, the District Court granted the Department temporary investigative authority (TIA) over Mother, ordered Mother to complete anger management, ordered Mother to obtain mental health, chemical dependency, and parenting assessments, and ordered Mother to share the assessments with the Department. D.R. and P.W. were placed with their respective biological fathers.

¶5 On June 27, 2017, the Department again petitioned for TLC and adjudication of D.R. and P.W. as YINC. The Department's petition alleged that, during the TIA period, Mother tested positive for methamphetamine, attended only half of her scheduled visits with D.R. and P.W., and did not complete her court-ordered tasks.

¶6 On June 28, 2017, the District Court attempted to hold a hearing to review the Department's petition. Mother appeared without counsel. Mother reported to the court that Albers only represented her for the previous hearing and that she would like to request a public defender. The District Court issued an Order for Albers to show cause for failing to appear at the hearing prior to formally moving to withdraw, extended the Department's TIA over Mother, rescheduled the hearing, and advised Mother to apply for a public defender.

¶7 On July 26, 2017, the District Court held a hearing to review the Department's petition. Mother was not present at the hearing and was not represented by counsel. Albers attended the hearing, explained he missed the previous hearing due to a scheduling error, and formally moved to withdraw as Mother's counsel, explaining that his contractual obligation to Mother had expired. The District Court accepted Albers' Motion to Withdraw and adjudicated D.R. and P.W. as YINC. As the hearing was concluding, Mother entered the courtroom and stated she wished to contest the adjudication of her children as YINC. Mother explained that she had failed to apply for a public defender because she believed Albers had to withdraw first. The District Court interpreted Mother's comments as a request to continue the hearing. The District Court then instructed Mother to apply for a public defender before the next hearing, advised her where the Office of Public Defender was located, and vacated its adjudication of D.R. and P.W. as YINC.

¶8 On August 30, 2017, the District Court held the previously continued hearing on the Department's petition. Mother failed to appear and was not represented by counsel. CPS Cheryl Snider testified at the hearing. Snider testified that the Department had several issues with Mother, including that she failed to attend or was severely late to scheduled appointments, failed to attend or canceled visitations with her children, and failed to submit to drug testing. Snider additionally testified that Mother was not working toward addressing the concerns that led to the Department's involvement and that adjudication as YINC and a grant of TLC to the Department would be in the best interests of D.R. and P.W. The District Court found the Department met its burden and adjudicated D.R. and P.W. as YINC.

¶9 On September 20, 2017, the District Court held Mother's dispositional hearing. Mother again failed to appear and was not represented by counsel. The Department presented testimony from Snider. The District Court adopted the Department's proposed treatment plan for Mother and granted the Department TLC of D.R. and P.W. for six months.

¶10 On December 20, 2017, the District Court held a status hearing. Mother failed to appear but was represented by appointed counsel, Kingston Small. On March 28, 2018, the Department filed a petition requesting the termination of Mother's parental rights. The District Court held a hearing to review the Department's Petition. Mother failed to appear but was represented by newly appointed counsel, Theresa Diekhans. During the review hearing, the District Court extended the Department's TLC of D.R. and P.W. until the termination hearing.

¶11 On May 15, 2018, Diekhans filed a Motion to Set Aside the Adjudication of the Youths, the Mother's Treatment Plan, and Vacate the Termination Hearing on the basis that Mother was not represented by counsel at certain hearings after Albers withdrew, including the adjudication hearing. On May 23, 2018, the District Court held the termination hearing. Mother failed to appear but was represented by Diekhans. At the outset of the hearing, the District Court denied Mother's Motion, determining that Mother was given ample opportunity to apply for a public defender and informed of how to apply for a public defender, yet failed to do so.

¶12 The Department then presented testimony from Snider and CPS Supervisor Dariya Mowry. Snider testified that Mother failed to complete her treatment plan. Mowry testified that Mother failed to maintain regular and consistent contact with her children or attend supervised visits. After hearing the testimony, the District Court concluded that Mother's substance abuse issues were unlikely to change within a reasonable time, that Mother had failed to appear at most of the hearings in the matter, and that Mother had failed to complete her court-ordered treatment plan. On May 24, 2018, the District Court issued its Order terminating Mother's parental rights to D.R. and P.W.

¶13 We review a district court's decision to terminate parental rights for an abuse of discretion. In re K.B., 2013 MT 133, ¶ 18, 370 Mont. 254, 301 P.3d 836 (citation omitted). 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 (citation omitted). Whether an individual 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 M.V.R., 2016 MT 309, ¶ 24, 385 Mont. 448, 384 P.3d 1058 (citation omitted). We review discretionary trial court rulings, such as rulings on pretrial motions, for an abuse of discretion. See In re R.F., 2001 MT 199, ¶ 21, 306 Mont. 270, 32 P.3d 1257 (citations omitted).

¶14 A district court may terminate a parent's rights on a finding, by clear and convincing evidence, that a child is a YINC, an appropriate treatment plan has not been complied with, and the conduct of the parents rendering them unfit is unlikely to change within a reasonable time. Section 41-3-609(1)(f), MCA. Clear and convincing evidence requires that “a preponderance of the evidence be definite, clear, and convincing, or that a particular issue must be clearly established by a preponderance of the evidence or by a clear preponderance of proof.” In re D.B., 2007 MT 246, ¶ 29, 339 Mont. 240, 169 P.3d 691 (citation omitted).

¶15 Parents have a right to effective assistance of counsel in termination proceedings. In re A.S., 2004 MT 62, ¶ 20, 320 Mont. 268, 87 P.3d 408. An ineffective assistance of counsel claim raised for the first time on appeal is subject to a two-step analysis: (1) whether counsel's assistance was effective in light of counsel's training, experience, and advocacy, and (2) if counsel's assistance was ineffective, whether the ineffectiveness resulted in prejudice to the parent. In re A.S., ¶¶ 26, 31. Ineffective assistance of counsel requires reversal only if the parent suffered prejudice due to counsel's ineffective performance. In re C.W.E., ¶ 17 (citation omitted).

¶16 Mother argues that she was denied effective assistance of counsel at the March 31, 2017 hearing because Albers jointly represented Mother and J.M., and because Mother and J.M. had divergent defense theories. Mother argues that her position was prejudiced by the joint representation because she went out of her way to intervene and remove her children from the risks occurring in the home because of J.M.'s risky and illegal behavior. We disagree.

¶17 Even assuming that Albers' representation of Mother and J.M. was ineffective due to a conflict of interest, Mother cannot demonstrate she suffered prejudice because of Albers' alleged ineffectiveness, or that it influenced the District Court's decision to terminate her parental rights. Albers only represented Mother at the initial show cause hearing. After Albers withdrew, Mother neglected to apply for a public defender or to attend multiple pre-termination hearings, despite the District Court's instructions that she should obtain counsel and how to secure appointed counsel. Ultimately, Mother did obtain appointed counsel, and was represented at the termination hearing. The District Court was presented with substantial evidence during the termination hearing that supported its decision to terminate Mother's parental rights. This evidence included Mother's: (1) failure to attend scheduled appointments, visitations, and hearings; (2) failure to submit to drug testing; and (3) failure to comply with her treatment plan. See § 41-3-609(1)(f), MCA. Consequently, Mother cannot demonstrate she was prejudiced due to Albers' alleged ineffective representation. See In re C.W.E., ¶ 17; In re A.S., ¶¶ 26, 31.

¶18 Mother additionally argues that she was denied due process protections because she was not represented by counsel in the pre-termination hearings despite her request for a public defender and, therefore, the District Court abused its discretion by denying her Motion. Due process requires a parent not be placed at an “unfair disadvantage” during State proceedings to terminate the parent's liberty interest in the care and custody of a child. In re M.V.R., ¶ 44 (citation omitted). Generally, “fundamental fairness requires that a parent be represented by counsel at proceedings to terminate parental rights.” In re A.S., ¶ 12 (citations omitted). However, due process is flexible, and the process that is due varies according to the factual circumstances of the case and the nature of the interests involved. In re D.B.J., 2012 MT 220, ¶ 27, 366 Mont. 320, 286 P.3d 1201 (citations and internal quotations omitted). The key analysis of whether a parent received due process in a termination proceeding is whether the parent was afforded notice and an opportunity to be heard. In re C.J., 2010 MT 179, ¶ 27, 357 Mont. 219, 237 P.3d 1282 (citation omitted).

¶19 After discovering that Albers had withdrawn as Mother's counsel, the District Court delayed hearings and provided Mother notice via on-the-record instructions on her rights and on how to retain a public defender. Mother then voluntarily chose not to appear at subsequent hearings and, despite being given multiple opportunities by the District Court, failed to apply for public defender representation for the pre-termination hearings. Mother was ultimately represented prior to, and at, the termination hearing. Though Mother failed to retain a public defender for some pre-termination hearings, Mother's due process rights were protected by the District Court. See In re D.B.J., ¶ 27; In re A.S., ¶ 12. The District Court did not abuse its discretion by denying Mother's Motion. See In re R.F., ¶ 21.

¶20 The District Court's findings are supported by clear and convincing evidence. See § 41-3-609(1)(f), MCA; In re D.B., ¶ 29. The District Court did not err when it found that D.R. and P.W. should be adjudicated YINC and that the condition and conduct rendering Mother unfit to parent was unlikely change in a reasonable period of time. See § 41-3-609(1)(f), MCA. Accordingly, the District Court did not abuse its discretion in terminating Mother's parental rights to D.R. and P.W. See In re K.B., ¶ 18.

¶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. We affirm.

Justice James Jeremiah Shea delivered the Opinion of the Court.

We concur: MIKE McGRATH, C.J. INGRID GUSTAFSON, J. LAURIE McKINNON, J. BETH BAKER, J.