In re JWM and AKM

In re JWM and AKM, 2015 MT 231 (Aug. 11, 2015) (Cotter, J.) (5-0, aff’d)

Issue: (1) Whether substantial evidence existed to support termination of biological father’s parental rights, and (2) whether father was adequately represented at hearing.

Short Answer: (1) Yes, and (2) yes.

Affirmed

Facts: CM and JM are the biological parents of AKM and JWM, born in 2007 and 2008. Following their 2009 divorce in Colorado, CM moved to Montana with the children. She registered the Colorado judgment in Cascade County in December 2011. In June 2012, CM married RH, who wants to adopt the children.

The Colorado divorce decree ordered JM to submit to monthly drug testing and provide the results to CM. If he failed a test or did not submit the results to CM, hs would relinquish visitation until he provided the results of a clean test. He was also ordered to pay monthly child support.

In December 2012, CM and RH petitioned to terminate JM’s parental rights and allow RH to adopt the children. They allege he is unfit to parent for numerous reasons, including his continued drug and alcohol abuse, failure to pass court-ordered drug tests, failure to pay child support between March 2010-April 2012, and failure to maintain a relationship with the children for several years.

The parties attended mediation in May 2013 and agreed upon an Interim Parenting Plan, which was approved and ordered by the district court. It was intended to promote JM’s reunification with his children and allow for visitation under certain conditions. It required JM to undergo drug testing at the beginning of every month and allow the testing facility to send the results to CM. It provided that failure to submit two tests would result in immediate termination of the interim plan.

In January 2014, CM and RH moved to enforce the interim plan and allow termination of JM’s parental rights. JM’s counsel withdrew because of illness in April 2014, and JM filed a pro se response and requested a hearing.

Procedural Posture & Holding: The district court held a termination hearing in July 2014, at which JM appeared pro se. The district court issued findings and conclusions in September 2014, ordering the termination of JM’s parental rights. The adoption of the children by RH became final in October 2014. JM appeals, and the Supreme Court affirms.

Reasoning: (1) The district court set forth eight reasons in support of its decision to terminate JM’s parental rights. The district court’s findings regarding JM’s drug and alcohol use and its conclusion that exposing the children to his behavior would be detrimental to them are supported by the record. Its determination of unfitness is supported by substantial evidence. The Court finds no abuse of discretion.

(2) J.M. was represented by counsel during much of these proceedings. Upon counsel’s withdrawal, Petitioners’ counsel notified J.M. under Rule 10(b) of the UDC Rules that he was entitled to new counsel or to represent himself. At the hearing, the district court asked J.M. if he was appearing pro se, and he replied, “Correct, Your Honor.” JM never requested counsel not implied he could not afford counsel. The district court did not err in conducting the proceedings in the absence of counsel for JM.