In re TDH, JH, & JH

In re TDH, JH, & JH, 2015 MT 244 (Aug. 18, 2015) (Baker. J.; McKinnon, J., concurring & dissenting) (4-1, aff’d)

Issue: (1) Whether the district court abused its discretion in rescinding OPD’s appointment of counsel for Ja.H. and denying OPD’s motion to appoint counsel after the termination hearing; (2) whether the district court abused its discretion in concluding Mother’s conduct made her unfit to parent and was unlikely to change within a reasonable time; (3) whether DPHHS made reasonable efforts to prevent the removal of the children and reunify Mother with her children; and (4) whether Mother was denied due process.

Short Answer: (1) The Court declines to reach this issue; (2) no; (3) yes; and (4) no.

Affirmed

Facts: Mother met Father when she was a 17-year-old runaway, after years of abuse. Father was 37, and continued Mother’s abuse. They have three children, TDH (14), Je.FL (12) and Ja.FL (10), whom Father also repeatedly abused. Between 2008-2012, DPHHS received 12 reports on the family. In early 2012, the family agreed to a voluntary services agreement, and when it expired in March 2012, the department determined there was no substantive improvement in parenting. After the children disclosed multiple incidents of abuse by Father to a department social worker, the children were removed and placed in foster care. Three days later, Mother asked Father to move out, which he did.

In May 2012, the district court granted emergency protective services and temporary investigative authority, to which both parents stipulated. In July 2012, the court appointed a CASA to represent the children’s best interests.

During the department’s investigation, each child was diagnosed with psychiatric disorders. Although they were placed in foster care they were unable to maintain their foster placements and were transferred to a series of residential treatment facilities and group homes.

At a hearing in November 2012, the court heard testimony that Mother was terrified of Father, and that he was harming her efforts to reunite with the children. The court granted the department legal custody for 6 months, ordered the parent not to have contact with each other, and adjudicated all three children as youths in need of care. Neither parent objected to the order.

The court approved a treatment plan for Mother in December 2012. In February 2013 the department raised concerns that Mother was not complying, and again at an April 2013 status hearing. Following the April hearing, the court held Mother in contempt for having contact with Father and failing to obtain a psychological exam.

Father’s parental rights were terminated in August 2013. The department did not petition to terminate Mother’s parental rights until July 2014. A hearing was set for December 2014. At a pre-hearing attorneys’ conference, the children’s counsel advised the court that Ja.H had developed a position against reunification that directly conflicted with his siblings. Larsen said she could not advocate for two irreconcilable positions. After a lengthy discussion, Larsen agreed that Ja.H’s position aligned with the department’s, and that his interests were adequately represented without counsel. The next day, OPD appointed Kathryn McEnery as counsel for Ja.H. McEnery filed a notice of appearance on Dec. 3, and the district court rescinded her appointment on Dec. 4.

The court held a termination hearing on Dec. 9, 2014.

Procedural Posture & Holding: After the termination hearing, on Dec. 10, 2014, OPD moved to appoint counsel for Ja.H. and requested a hearing. DPHHS opposed the motion and request. The district court issued two orders on Dec. 18 – one denying OPD’s motion to appoint counsel and the other granting the department’s petition to terminate Mother’s parental rights. OPD filed a notice of appeal and notice of appearance on behalf of Ja.H., challenging the Dec. 4 order rescinding McEnery’s appointment as Ja.H.’s counsel, and Mother and TDH appealed the order terminating Mother’s parental rights. The department moved to dismiss OPD’s appeal. This Court took the motion under advisement and ordered the parties to fully brief both issues, and now affirms. 

Reasoning: (1) OPD argues the district court violated Ja.H.’s right to counsel. There were no objections to Ja.H.’s lack of counsel prior to the termination hearing. By OPD’s own admission, Ja.H.’s interests were served by terminating Mother’s parental rights. Ja.H. has not suffered the deprivation of a right that is redressable by the relief requested, i.e., a new termination hearing. The Court declines to address the merits of OPD’s argument that every child is entitled to independent counsel in a youth in need of care case.

(2) In a broad sense, Mother’s treatment plan was designed to protect the children. Although she succeeded in removing Father from the home, she did not achieve success in other conditions that would allow the children’s safe return to her custody. Mother had sufficient notice the department would consider multiple factors in deciding whether to seek termination.

Although there was conflicting evidence, substantial evidence supported the district court’s finding that Mother’s unfitness as a parent was unlikely to change. The court did not abuse its discretion in concluding Mother was unable to meet her children’s complicated needs and would be unable to do so in the foreseeable future.

(3) Because Mother raises the issue of whether the department made reasonable efforts to prevent removal of her children for the first time on appeal, the Court will not address it.

Although Mother contends the department failed to provide her opportunities for adequate contact, there was testimony that Mother failed to show up for several months of scheduled visitations shortly before the department filed for termination. Mother did not object to the Department’s reasonable efforts during hearings on extending temporary legal custody. TDH argues Mother should have been given more time, but by the termination hearing the children had been in the department’s custody for 32 months, more than double the 15-month statutory deadline for filing for termination.

(4) Mother argues that that the department did not execute her treatment plan in good faith because it did not adequately account for her history as a victim of domestic violence, and because she was assigned six different child protection specialists during the course of her case. Mother’s treatment plan required her to attend a weekly support group for domestic violence victims and document her attendance, which she did not do. Additionally, Mother was represented by counsel at each of the multiple hearings. Mother was afforded fundamentally fair procedures, she did not take advantage of the offered services, and her children needed permanency. Her due process rights were not denied.

Justice McKinnon’s Concurrence & Dissent: Justice McKinnon dissents on the issue of counsel for Ja.H., and concurs in affirming the termination of Mother’s parental rights. Ja.H.’s “voice, concerns, thoughts, and wishes were worthy of representation by counsel, regardless of whether they aligned with another party’s position.” At soon as Larsen asked that new counsel be appointed for Ja.H. because of an irreconcilable conflict among the children, she could not waive his right to an attorney or agree on his behalf that the state could represent his interests. The issue was preserved for appeal.

“A child’s fundamental liberty interest in health, safety, and family integrity remain and are clearly at stake in permanency hearings where a child is subject to a wide array of foster care placements, including institutional facilities where a child’s physical liberties are greatly restricted. These liberty interests appear to support a due process right to counsel throughout the dependency proceedings, including considerations of permanency.” ¶ 63.

A GAL is not counsel. Justice McKinnon believes the need to ensure a fundamentally fair process requires remand for a new termination proceeding in which Ja.H. is heard and represented by counsel.