In the Matter of ADB

In the Matter of ADB, 2013 MT 167 (June 20, 2013) (5-0) (McKinnon, J.; McGrath, C.J., specially concurring)

Issue: (1) Whether DPHHS made reasonable efforts to reunite Mother with ADB; (2) whether the district court properly concluded that Mother’s drug addiction rendered her unfit to parent ADB, and that her condition was unlikely to change within a reasonable time; (3) whether the district court had jurisdiction to terminate Father’s parental rights; (4) whether Father’s attorney rendered ineffective assistance of counsel; (5) whether the district court erred in terminating Father’s parental rights based upon his incarceration for mitigated deliberate homicide; and (6) whether the district court correctly concluded that terminating Mother’s and Father’s parental rights was in ADB’s best interest.
Short Answer: (1) Yes; (2) yes; (3) yes; (4) no; (5) no; and (6) yes.

Affirmed

Facts: ADB was born in April 2009. Mother was 19 at the time, and has struggled with chemical dependency since she was 13. In December 2009, Mother was arrested for DUI while ADB was in the car with her. The next day, Father was arrested and charged with deliberate homicide. ADB was removed from her parents’ custody and placed with her maternal uncle.

DPHHS petitioned for temporary legal custody, and the district court appointed counsel for both parents and ADB, as well as a guardian ad litem for ADB. Mother and Father stipulated that ADB was a youth in need of care. Mother stipulated to DPHHS being granted six months’ temporary legal custody. DPHHS established treatment plans for both parents, and the district court determined the plans were reasonable and appropriate.

DPHHS moved to extend temporary legal custody of ADB in June 2010. Mother objected to six months, but agreed to three. Father was convicted for mitigated deliberate homicide in July 2010, and sentenced to 40 years in prison with no possibility of parole.

After Mother successfully completed her treatment plan, the district court dismissed her as a party. DPHHS filed a petition to terminate Father’s parental rights based upon his long-term incarceration. Father moved to dismiss the petition arguing that ADB had reunited with Mother and was therefore no longer a youth in need of care. However, Mother relapsed and DPHHS was awarded emergency protective custody of ADB, who was placed with her maternal grandparents.

DPHHS established a second treatment plan for Mother, which the Court approved. Mother relapsed again, and DPHHS moved to amend the treatment plan to include inpatient treatment. In November 2011, Mother overdosed. She was charged with felony drug possession. DPHHS petitioned to terminate both parents’ parental rights in December 2011.

A week later, Mother moved to amend her treatment plan, proposing that she apply for admission to a nine-month inpatient program. DPHHS did not object, and the district court ordered the amendment. However, Mother was found to be using again, and stole $2,100 from her mother. In early 2012, she was charged with and pled guilty to six criminal offenses.

Procedural Posture & Holding: The district court held a three-day hearing on the petition to terminate Mother’s and Father’s parental rights. The court entered detailed findings and conclusions, terminating both parents’ parental rights. Mother, Father, and ADB appeal. The Supreme Court affirms.

Reasoning: (1) Mother and ADB argue that Mother’s parental rights were terminated only two months after her treatment plan was amended, thereby violating the good faith requirement. The district court made detailed findings regarding DPHHS’s efforts to reunite Mother with ADB.

(2) Substantial testimony supported the district court’s conclusion that mother’s drug addiction rendered her unfit to parent ADB, and that her condition was unlikely to change within a reasonable time.

(3) Father contends that the district court lost jurisdiction over DPHHS’s petition to terminate Father’s parental rights when its order for temporary legal custody expired. Subject matter jurisdiction is distinct from filing or notice deadlines. The district court awarded temporary custody of ADB to DPHHS until Nov. 4, 2011. On Nov. 3, 2011, Mother overdosed; on Nov. 4, 2011, DPHHS moved to extend its temporary legal custody. Section 41-3-442(2) does not require that the court act on a motion within six months, only that a petition to extend must be filed before the previous order expires. The district court had jurisdiction to terminate Father’s parental rights.

(4) Father claims his counsel rendered ineffective assistance by failing to move to dismiss or object to the termination petition. Either motion would have been without merit, and Father’s claim fails.

(5) Father argues that termination of his parental rights was error given the overwhelming evidence that a guardianship or other arrangement would have preserved his inherent obligation to support ADB. Section 41-3-609 provides that parental rights may be terminated on the basis of a history of violent behavior by the parent, or judicially ordered long-term confinement of the parent. Both grounds apply here.

(6) ADB’s counsel argues that severing the relationship between Mother and ADB is not in ADB’s best interests. While Mother is a good mother when she is sober, she has not been sober for the vast majority of ADB’s life. A child protection specialist with DPHHS testified that it would be detrimental to ADB’s well-being to disrupt the strong bond that has been developing between ADB and her maternal grandparents for the remote possibility that Mother might be able to maintain sobriety.

Chief Justice McGrath’s Special Concurrence: The district court abused its discretion by appointing an attorney for the child in this case. Although in some cases it may be appropriate to appoint an attorney for a child even though a GAL has been appointed, it is generally when older children are involved who may be able to express an opinion that would help the district court determine the best interests of the child. But here, where the child is an infant, the appointment of an attorney as well as a GAL “is frankly absurd and serves no useful purpose other than to complicate the litigation.” ¶ 84. To the extent that In re KH, 2012 MT 175, suggests otherwise, the chief justice would overrule it.