IN RE: H.T (2026)

¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, we decide this case by memorandum opinion. It 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 H.T. (“Father”) appeals the order of the Second Judicial District Court terminating his parental rights to his three minor children, H.T., S.T., and D.L. Father argues that he received ineffective assistance of counsel, that the District Court abused its discretion when it permitted the Department of Public Health and Human Services to delegate decision-making authority to the children's therapists, when it found that the Department made reasonable reunification efforts, and when it determined that Father's conduct and condition were unlikely to change within a reasonable period of time. We affirm.

¶3 The children were removed in September 2023 after Father tested positive for methamphetamine at the birth of his then-girlfriend's child.¹ The Department first implemented an out-of-home safety plan, under which the children were to reside with their paternal grandmother and Father would have supervised contact only. But after a week, Father went to grandmother's home intoxicated and took the girls to the park unsupervised. The Department then found a non-kinship placement for them and initiated visits. Child Protection Specialist Jennifer Little encouraged Father to apply to the Butte Family Drug Court and made referrals for chemical dependency and mental health services and for parenting courses. Father obtained a CD evaluation but attended only two outpatient sessions before he stopped treatment. He was not interested in treatment court at that time and did not engage with his mental health counseling.

¶4 In December 2023, Father moved to Missouri, intending to get help from his mother's former attorney, get a job, and start outpatient treatment. The Department set up Zoom visits with the children, but Father missed many of them. He started but did not complete substance abuse treatment. The District Court approved Father's signed treatment plan in March 2024. Father returned to Butte in June and did not initially engage with CPS Little, who again referred him to the SMART Program once they got in touch.² By this time, the children's individual therapists had agreed that it was not beneficial for their mental health to continue visits with Father. The Department therefore “paused” visits with Father in July 2024, the same month he completed parenting classes. Father, who had tested positive for substances, attended thirty days of inpatient treatment in September 2024. But he declined to participate in any aftercare recovery treatment and soon was asked to leave his residence at the Butte Rescue Mission because of alcohol and drug use.

¶5 After the District Court twice extended temporary legal custody, the Department petitioned for termination the first week of March 2025 based on Father's failure to successfully complete his court-approved treatment plan. About a month later, Father overdosed. In April 2025, Father moved to Kalispell with his girlfriend and began residing at a sober living home. He was breathalyzed twice a day and tested clean for two months. While in Kalispell, Father also enrolled in Oxytocin's chemical dependency program and moved the District Court to transfer his case to Flathead Family Treatment Court. The court never ruled on that request but at a July status hearing set the termination hearing for August 12, 2025.

¶6 The day before the hearing, the Department moved for a continuance to enable the parties to continue reunification counseling and have Father finish his treatment plan prior to a termination hearing. The District Court held the termination hearing in early November. Prior to the hearing, the court interviewed the children in chambers; at that time, they were 13, 11, and nine years old.

¶7 Father and CPS Little were the only witnesses at the hearing. CPS Little described her history with the family and explained what she had done to facilitate reunification. CPS Little testified that over the course of the proceeding, Father had been in contact with six different CD facilities. She had reached out to all six of them to get CD evaluations, progress reports, and UAs. She explained that she had met with providers to help overcome barriers. CPS Little discussed Father's lack of compliance with his treatment plan and his failure to engage with either mental health or substance use treatment. She explained the children's struggles with the traumas they had experienced and their progress in foster placement. CPS Little advised the court that Father had a Zoom visitation with the children several months before the hearing. They told Father they wanted to be adopted because they weren't scared anymore, they knew they were going to be fed, there was no violence in their home, and they were not exposed to drugs or random strangers. CPS Little opined based on this history that the best interests of the children supported termination.

¶8 Father testified that the children felt the way they did because the Department had cut off all visitation for an entire year. He told the court he had “done great” in Kalispell and testified that he was participating in Narcotics Anonymous and the Alano Club, that he had a job and had gotten a promotion, that he goes to church, and that he has housing and pays his rent. Father's counsel submitted two months of negative breathalyzer tests as an exhibit. Father said that the CPS refused to visit his home or send someone from the Flathead County office to inspect it. He said he had tried to set up family therapy and “the response back was that their therapist says no.”

¶9 Father tested positive for alcohol within three weeks before the termination hearing. In total, he relapsed five times while the case was pending and received services from six different CD programs.

¶10 At the conclusion of the hearing, both the children's counsel and their guardian ad litem recommended termination. Father's counsel urged the court to allow him more time to obtain family reunification therapy, arguing that Father had fully engaged with his treatment plan after about a year, was making substantial progress, and was being thwarted by the Department's failure to pursue contact between him and his children. Department counsel emphasized the length of time the children had been placed out of the home and Father's failure to make any consistent progress toward meeting his treatment plan. Counsel expressed hope that Father would “pull[ ] things together” and have a relationship with his children “sometime down the road.” But given that his children had “this fear of going back into that tumultuous relationship” and that Father had admittedly consumed alcohol just weeks before the hearing despite knowing what was on the line and despite having been through six different treatment centers, the Department urged the court to grant its petition for termination.

¶11 The District Court found by clear and convincing evidence that Father had not complied with or successfully completed the treatment plan and that Father's conduct or condition rendering him unfit, unable, or unwilling to give the children adequate parental care was unlikely to change within a reasonable time because he had not demonstrated consistent commitment to the children, to his treatment plan, or to chemical dependency treatment or sobriety “for the life of this case.” The court emphasized Father's repeated positive drug and alcohol testing and his minimal involvement in chemical dependency treatment. It found that the Department had made diligent but unsuccessful efforts to support Father's completion of his treatment plan and had made other reasonable efforts within the standards set by law. The court noted that, given the children's longstanding out-of-home placement, the law presumed termination to be in their best interests. It found from the evidence that the best interests of the children would be served by terminating Father's parental rights and awarding permanent legal custody to the Department with authority to consent to adoption, guardianship, or other permanent placement.

¶12 After his appeal was filed, Father's counsel moved for remand to allow the District Court to conduct a hearing on his ineffective assistance of counsel claim. He submitted a letter from Flathead Family Treatment Court Coordinator Tamara Eads, but it was unsigned. We denied Father's motion to remand. Now in his briefing on appeal, Father reasserts his argument that he received ineffective assistance because his counsel failed to call Eads as a witness. With his Reply Brief, Father submitted a motion to supplement the record with an affidavit from Eads, which he tendered and on which he relies in his reply. The State opposed Father's motion and moved to strike the affidavit. We took the motions under advisement pending consideration of this appeal.

Standard of Review

¶13 This Court reviews a district court's termination of parental rights for abuse of discretion. In re A.L.P., 2020 MT 87, ¶ 12, 399 Mont. 504, 461 P.3d 136. A district court abuses its discretion when “it terminates parental rights based on clearly erroneous findings of fact, erroneous conclusions of law, or otherwise acts arbitrarily, without employment of conscientious judgment, or exceeds the bounds of reason resulting in substantial injustice.” In re D.L.L., 2025 MT 98, ¶ 6, 421 Mont. 522, 568 P.3d 552 (citation omitted). “Findings of fact are clearly erroneous if not supported by substantial evidence, the court misapprehended the effect of the evidence, or we are firmly convinced a mistake was made.” In re D.L.L., ¶ 6 (citation omitted). We review a trial court's conclusions of law for correctness and a claim of ineffective assistance of counsel de novo. In re Matter of J.B., 2025 MT 170, ¶ 20, 423 Mont. 253, 578 P.3d 600 (citations omitted).

¶14 “A parent's right to the care and custody of their child is a fundamental liberty interest which must be protected by fundamentally fair proceedings.” In re E.Z.C., 2013 MT 123, ¶ 21, 370 Mont. 116, 300 P.3d 1174 (citation omitted). To justify termination of the parent-child legal relationship, the Department must establish by clear and convincing evidence that at least one of several statutory criteria is met. Section 41-3-609(1), MCA; In re T.S., 2013 MT 274, ¶ 22, 372 Mont. 79, 310 P.3d 538. The appellant bears the burden of proving that the district court erred. In re D.F., 2007 MT 147, ¶ 22, 337 Mont. 461, 161 P.3d 825.

Reasonable Efforts

¶15 When the Department petitions for termination, the district court may enter an order terminating the parent-child legal relationship if it finds that the “statutory criteria supporting termination” are met. In re A.B., 2020 MT 64, ¶ 38, 399 Mont. 219, 460 P.3d 405 (citing In re T.S., ¶ 30); §§ 41-3-422, -607, -609, MCA. Reasonable efforts are not a separate requirement that must be satisfied to terminate parental rights; rather, they may provide predicate findings for a district court's conclusion that the parent is unlikely to change within a reasonable time. In re M.T., 2020 MT 262, ¶ 27, 401 Mont. 518, 474 P.3d 820 (In re M.T. II) (citing In re C.M., 2019 MT 227, ¶ 22, 397 Mont. 275, 449 P.3d 806). Overall, the parent “retains ultimate responsibility for complying with the plan.” In re T.D.H., 2015 MT 244, ¶ 42, 380 Mont. 401, 356 P.3d 457; In re M.T. II, ¶ 27 (citations omitted).

¶16 The District Court found that the Department made good faith, reasonable efforts to prevent the necessity of removal of the children and to reunify them with Father. Section 41-3-423(1), MCA. Reasonable efforts are “not static or determined in a vacuum but dependent on the totality of the circumstances” and “highly fact dependent.” In re M.T. II, ¶ 27 (internal quotations and citations omitted). The Department is not required to “endlessly pursue an unwilling parent who does not wish to be found with services that the parent does not wish to receive.” In re A.M.G., 2022 MT 175, ¶ 28, 410 Mont. 25, 517 P.3d 149 (citation omitted). The Department's efforts must be reasonable, not “herculean.” In re M.T. II, ¶ 27.

¶17 CPS Little included in her affidavit and testified at length about her efforts throughout the case to get Father to engage in treatment, particularly for his alcohol abuse. She made numerous referrals, starting with a referral to the drug court in Butte. When Father was not interested, she referred him to the SMART program. He went sporadically but stopped. He then decided to go to Missouri, made arrangements for treatment, and did not follow through. Each time Father left a program for a new provider, Little followed up with the new provider and attempted to obtain information. She followed through when Father returned to Butte, reaching out again to SMART and working with the Rescue Mission to save him a bed when he returned from thirty days of inpatient treatment.

¶18 The Department facilitated in-person visitation between Father and the children at the beginning of the case until Father abruptly left for Missouri. Father testified that those visits had gone well from his perspective. But CPS Little explained that the long-distance visits were not consistent—which Father acknowledged was “a pretty fair statement”—and that they upset the children.

¶19 Father contends that the Department failed to make reasonable efforts when it stopped visitation in reliance on the children's therapists. In turn, he argues, the District Court disregarded this failure and likewise delegated its responsibility when it found the reasonable efforts standard satisfied. CPS Little testified that she based visitation on the therapists’ recommendations due to the impact on the children. She gave examples of those impacts, such as when Father told the children he had gotten them a puppy and then said at the next visit that there was no puppy. Little also described incidents in the foster home revealing the trauma with which the children were dealing, including the family getting rid of its glass dishes after one child went into a fetal position and began rocking at the sound of a breaking dish. Little confirmed on cross-examination that she had refused Father's request for reunification therapy because of the therapists’ recommendations. She did say, however, that Shodair “would do family therapy if or when the children were ready.” She also testified that she continued to contact Father biweekly, and he did not answer her calls.

¶20 Upon review of the record, we conclude that Father has not established error in the District Court's finding of reasonable efforts. Given Father's actions of absenting himself from Montana and losing contact with his children, the behaviors they demonstrated that supported the Department's determination to pause visitation, and Father's inability or unwillingness to complete the treatment necessary to show commitment to remediate the conditions that led to the children's removal, neither the Department nor the District Court abdicated their responsibilities.

Likelihood of Change

¶21 Father maintains that the District Court abused its discretion by disregarding his substantial progress when it concluded that he was unlikely to be able to safely parent within a reasonable period of time. He argues that by the time of the termination hearing, he had substantially complied with the elements of his treatment plan that were under his control.

¶22 Assessing whether the conduct or condition rendering a parent unfit is likely to change within a reasonable time requires that the court consider “the past and present conduct of the parent.” In re M.T., 2002 MT 174, ¶ 34, 310 Mont. 506, 51 P.3d 1141 (In re M.T. I) (citation omitted). Father focuses on the substantial efforts he made once he relocated to Kalispell. By the time he began those efforts, however, the Department had filed its petition for termination and the fifteen-month presumption that termination was in the children's best interests had manifested. See § 41-3-604(1), MCA.

¶23 Father had “an obligation to avail [himself] to services arranged or referred by the Department and engage with the Department to successfully complete [his] treatment plan.” In re R.L., 2019 MT 267, ¶ 20, 397 Mont. 507, 452 P.3d 890 (citations omitted). Seventeen months after the children had been removed from Father's care, when CPS Little filed her affidavit in support of termination, Father had discontinued all sobriety treatment, was not abstaining from drugs or alcohol, and had not followed any of the recommendations of his mental health evaluation. Though Father obtained housing in Kalispell with his girlfriend, CPS Little did not consider that to demonstrate stable housing for the children due to the lack of consistency in Father's housing during the more than two-year pendency of the case.

¶24 CPS Little explained that since Father went to Kalispell, he was enrolled in the CD program at Oxytocin and attended for a couple of months. That program sent her his urinalysis reports, which were positive for alcohol and THC. At the time of the termination hearing, Father had stopped going to Oxytocin and had gotten a new provider, Cedar Creek. CPS Little attempted to call Cedar Creek for a month and finally learned that Father would not sign a release of information, other than to confirm whether he had been attending. CPS Little received no results from that provider.³ She opined at the hearing that Father had made no measurable progress even towards partial completion of a plan.

¶25 By the time of the termination hearing, the children had been in out-of-home placement for nearly 25 months. In determining whether a parent's conduct is likely to change within a reasonable time, the court must consider “(a) emotional illness, mental illness, or mental deficiency of the parent of a duration or nature as to render the parent unlikely to care for the ongoing physical, mental, and emotional needs of the child within a reasonable time; (b) a history of violent behavior by the parent; (c) excessive use of intoxicating liquor or of a narcotic or dangerous drug that affects the parent's ability to care and provide for the child; and (d) present judicially ordered long-term confinement of the parent.” Section 41-3-609(2), MCA. Here, three of those four factors affected Father's ability to safely parent the children. Father undisputedly had shown progress during the months leading to the termination hearing and plainly loved his children; but he had not demonstrated the ability to sustain his sobriety and stable housing or to “give priority to [the children's] stability and permanency.” In re A.J.C., 2026 MT 80, ¶ 40, 427 Mont. 409, 588 P.3d 106.

¶26 The law requires a parent to comply fully with the court-ordered treatment plan. In re A.N., 2000 MT 35, ¶ 45, 298 Mont. 237, 995 P.3d 427; In re D.V., 2003 MT 160, ¶ 27, 316 Mont. 282, 70 P.3d 1253. “Well-intentioned efforts toward successful completion of a treatment plan do not demonstrate either the completion or the success of the plan.” In re J.W., 2001 MT 86, ¶ 17, 305 Mont. 149, 23 P.3d 916 (citation omitted). The parent not only must comply with the treatment plan; the parent also must be successful in resolving the conduct or condition rendering the parent unfit. In re J.W., ¶ 25; In re R.B.O., 277 Mont. 272, 280-81, 921 P.3d 268, 273 (1996). The District Court considered the full history of the case; its findings that Father was unlikely within a reasonable time to change the conduct or conditions that rendered him unfit were grounded in substantial evidence and were not clearly erroneous.

Ineffective Assistance of Counsel

¶27 Due process and fundamental fairness require that parents receive effective assistance of counsel in termination proceedings. In re Z.N.-M, 2023 MT 202, ¶ 34, 413 Mont. 502, 538 P.3d 21 (citation omitted). “When examining an ineffectiveness claim in termination proceedings, this Court analyzes two nonexclusive factors: (1) counsel's training and experience, and (2) the quality of counsel's advocacy provided during the proceedings.” In re Z.N.-M, ¶ 34 (citation omitted). “To obtain relief a parent also must demonstrate that counsel's ineffectiveness caused them prejudice.” In re J.B., ¶ 28 (citations omitted).

¶28 Father contends that his counsel provided ineffective representation when he failed to follow up with Tamara Eads and call her as a witness at the termination hearing. He represents that Eads, a former Child Protection Specialist and Child Protection Specialist Supervisor, would have testified to Father's prospects for recovery and her concerns about how the Department handled this case, which she had raised with Father's attorney.

¶29 The record shows that counsel advocated strongly for Father's interests. During the termination hearing, counsel cross-examined CPS Little about her failure to allow visitation or to pursue Father's request for reunification therapy with the children. He demonstrated Father's recent efforts and successes with his addiction treatment. And he kept Father on the stand for a good portion of the hearing to explain his efforts to gain sobriety and comply with the treatment plan—particularly since relocating to Kalispell—his seemingly futile attempts to meet the Department's demands and regain visitation with his children, and his strong desire to be a parent to them, which he agreed that they would have to “ease[ ] into.” Father acknowledged that three weeks prior to the hearing he had used alcohol but said it was “nothing intense or crazy.” “And, yes,” he continued, “I was smoking marijuana.” Father was particularly articulate about the Department's refusal to permit contact with the children. Through counsel's questioning, he expressed that he understood why the children did not want to be with him but felt that if his contact had not been cut off when he was in inpatient treatment and afterward, they would not be saying the same thing.

¶30 Counsel's closing statement to the court emphasized that “at 12 months, [Father] started stepping up and reasonable efforts should have been made to reunify. And that should have at least involved family therapy ․ And we've asked for it. We have been told no.”

¶31 When considering the termination of parental rights, “the child's health and safety are of paramount concern.” Section 41-3-101(7), MCA. “[T]he best interests of the child ․ take precedence over parental rights.” In re D.H., 2001 MT 200, ¶ 32, 306 Mont. 278, 33 P.3d 616 (citation omitted). When conflicting interests are at stake, the district court must “give primary consideration to the physical, mental, and emotional conditions and needs of the child.” Section 41-3-609(3), MCA; In re D.H., ¶ 32. The District Court found that termination was in the best interests of the children, a finding grounded in the testimony of CPS Little and the recommendations of the children's GAL. Based on our review of the entire record, we find it unnecessary to consider Father's proffered evidence on his claim of ineffective assistance. “A parent may sustain no ineffective assistance claim ․ when the parent cannot demonstrate prejudice as a result of the ineffective assistance.” In re D.B., 2012 MT 231, ¶ 30, 366 Mont. 392, 288 P.3d 160. We have upheld the District Court's finding that the Department made reasonable efforts toward reunification and that Father's conduct or condition was unlikely to change within a reasonable time. Most of Father's engagement with Eads and his sustained commitment to sobriety began only after the Department filed its termination petition. Even then, the evidence showed Father's inability over the life of the case to meaningfully address his addiction, and he again relapsed shortly before the hearing. Father cannot demonstrate that a different outcome was reasonably likely had counsel called Eads and the other Kalispell witnesses to testify.⁴

¶32 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules, which provides for memorandum opinions. The District Court had substantial evidence to terminate Father's parental rights pursuant to §§ 41-3-609(1)(f), and -604(1), MCA. The court did not abuse its discretion in determining that it would be detrimental and harmful to the children to allow Father more time to complete his treatment plan. Finally, even assuming Father's position that his counsel performed deficiently, he cannot demonstrate that he was prejudiced by the alleged ineffectiveness. We accordingly deny Father's motion to supplement and the State's motion to strike as moot and affirm the District Court's order.

FOOTNOTES

1.   That fourth child is not involved in this proceeding. Just the two older children, H.T. and S.T., were residing with Father at the time of removal. It was established during the pendency of the case that the third, D.L., was Father's biological child. The three children's mother, L.H., relinquished her parental rights during the proceeding and has not appealed the court's termination of her rights.

2.   SMART is the Southwest Montana Addiction Recovery and Treatment Program, a State-approved substance use disorder program located in Butte, Montana.

3.   Father disputed that he had refused to authorize release of this information, stating that Cedar Creek had failed to provide the correct release.

4.   Father adds additional examples of his counsel's claimed ineffectiveness, which we find unpersuasive for similar reasons.

Justice Beth Baker delivered the Opinion of the Court.

We Concur: CORY J. SWANSON, C.J. JAMES JEREMIAH SHEA, J. LAURIE McKINNON, J. JIM RICE, J.