In the Matter of TN-S, NN-S, EN-S, & AN-S, 2015 MT 117 (Apr. 28, 2015) (Shea, J.; McKinnon, J., concurring) (5-0, aff’d)
Issue: (1) Whether Mother’s treatment plan was appropriate although it did not require her to obtain a chemical dependency evaluation; (2) whether Mother’s counsel was ineffective for failing to advocate for a chemical dependency evaluation in the treatment plan; and (3) whether the district court was required to disclose to the parties the transcripts of its in-chambers interviews with the children.
Short Answer: (1) Yes; (2) no; and (3) no.
Facts: Mother’s children were ages 15, 12, 9, and 4 at the time of the hearing. In October 2012 and January 2013, the Department received reports that Mother and Father were unable to care for their children due to drug use. The parents entered into a voluntary services agreement. In May 2013, the district court adjudicated the children youths in need of care, and in July 2013, it adopted the treatment plan agreed to by Mother and her attorney. The treatment plan set a goal of addressing Mother’s chemical dependency issues and staying drug-free, but did not require her to complete a chemical dependency evaluation.
Mother tested positive for methamphetamine in August and September 2013, and was jailed for drug possession from December 2013-March 2014. She was then accepted into Treatment Court, which imposed several conditions on her.
In late March 2014, DPHHS petitioned for termination of Mother’s parental rights. The district court held a hearing over two days. The child protection specialist testified that although Mother was doing well in Treatment Court, she had only minimally complied with her treatment plan and was unlikely be able to care for four children in a reasonable amount of time.
On the second day of the hearing the district court conducted in-chambers interviews with the three oldest children. The court told the children it was required to create a transcript but that the parties and their lawyers would not see them. Mother’s attorney requested a transcript and the Court denied the request.
Procedural Posture & Holding: After the hearing, the district court found termination was appropriate, and that the best interests of the children would be served by termination. Mother appeals, and the Supreme Court affirms.
Reasoning: (1) One consideration in determining whether a treatment plan was appropriate is whether the parent was represented by counsel and stipulated to the treatment plan. Here, Mother and her counsel stipulated to the treatment plan. Every treatment plan must identify the conditions that resulted in the child’s abuse or neglect, and treatment goals and objectives addressing those conditions. While it is difficult to understand why evaluation and treatment were not included in the treatment plan, their omission does not necessarily render the plan inappropriate. Mother received a psychological evaluation from Dr. Smelko while she was in jail, and the Court sees “no functional distinction” between that and a chemical dependency evaluation. Mother is arguing that she should have been required to get help rather than merely have been offered help. More importantly, the decision to terminate was predicated largely on the bet interests of the children, which outweigh Mother’s right to parent. The children had been in foster care for over 15 months, and the evidence was she would need at least six more months before she would be stable enough to parent. It is not reasonable to force children to subordinate their needs to meet their parents’ timelines.
(2) In a termination of parental rights proceeding, a parent has a due process right to effective assistance of counsel. Mother has failed to demonstrate prejudice from counsel’s failure to object to the treatment plan.
(3) The Court holds that § 40-4-214, MCA, does not require the district court to disclose the transcript of the children’s interviews to counsel for the parties, and overrules In re MLH to the extent it suggests otherwise. Due process may require disclosure in certain instances, particularly where the district court relies on the interviews in reaching its determination. But having reviewed the transcripts here, the Court concludes the District Court acted within its discretion when it denied Mother’s request for transcripts of the interviews.
Justice McKinnon’s Concurrence: Justice McKinnon is “deeply troubled” that a parent in need of treatment for methamphetamine addiction must navigate the admission process for treatment on their own. She believes “the better practice would be to do more than merely provide Mother with a list of counselors and to instead actually assist Mother in getting the treatment.”