Matter of S.K., YINC ( 2021 )

10/05/2021
DA 21-0101 Case Number: DA 21-0101
IN THE SUPREME, COURT OF THE STATE OF MONTANA
2021 MT 260N
IN THE MATTER OF:
FILED
S.K.,
OCT 0 5 2021
GreerINNOod
A Youth in Need of Care. Bowe n
of
Supreme Court
Clerk Montana
State of
APPEAL FROM: District Court of the Second Judicial District,
In and For the County of Butte-Silver Bow, Cause No. DN 18-1
Honorable Robert J. Whelan, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Michael P. Sinks, Attorney at Law, Bozeman, Montana
For Appellee:
Austin Knudsen, Montana Attorney General, Katie F. Schulz, Assistant
Attorney General, Helena, Montana
Eileen Joyce, Butte-Silver Bow County Attorney, Mark Vucurovich,
Special Deputy County Attorney, Butte, Montana
Submitted on Briefs: September 15, 2021
Decided: October 5, 2021
Filed:
Clerk
Justice Ingrid Gustafson delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and 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 J.K. (Father) appeals from the Findings of Fact, Conclusions of Law and Order
Terrninating Parental Rights and Granting Permanent Legal Custody, Re: Birth Father,
entered by the Second Judicial District Court, Butte-Silver Bow County, on February 1,
2021, terminating his parental rights to S.K. (Child). We affirm.
¶3 At the time of Child's birth, the Department of Public Health and Human Services,
Child and Family Services Division (Department) filed a petition for emergency protective
services (EPS), adjudication of Child as a youth in need of care (YINC), and seeking
temporary legal custody (TLC) based on Mother being under the influence of
methamphetamine when she presented to the hospital to deliver Child. Although at that
time the Department possessed information that Father was Child's birth father, the
Department did not pursue formal determination of such through paternity testing. Instead,
the petition was amended to one for temporary investigative authority (TIA) and Mother
worked with the Department, attended the Florence Crittenton mother-child facility with
Child, and the Department dismissed the case.
2
¶4 Nearly eighteen months later, on August 2, 2019, the Department filed another TIA
petition asserting concerns regarding Mother's drug use as well as alleged domestic
violence between Father and Mother's then-boyfriend. Approxirnately two weeks later, on
August 14, 2019, the Department filed a petition seeking EPS, adjudication of Child as a
YINC, and TLC due to Mother's ongoing drug use. For a considerable time following this
petition, the Department did not seek to formally establish Father's paternity.' The
Department sought extension of TLC on March 17, 2020, and approval of a treatment plan
for Father on June 11, 2020.2 The Department filed its petition to terrninate Father's
parental rights on June 26, 2020. In the petition and supporting affidavit, the Department
sought to terminate Father's parental rights pursuant to § 41-3-609(4)(c), MCA.3
Following hearing on December 28, 2020, the District Court terminated Father's parental
rights pursuant to § 41-3-609(4)(c), MCA—finding no treatment plan necessary due to
The Department did not request paternity testing until November 21, 2019, and paternity was not
formally established until March 17, 2020-7 months after the filing of the petition.
2The Department sought to vacate the treatment plan hearing a few weeks later, indicating to the
court it intended instead to seek termination of Father's parental rights such that a treatment plan
was not necessary.
3 Specifically, the Department asserted:
Father's parental rights can be terminated without a treatment plan because Father
is, or will be, incarcerated for more than 1 year and reunification of the child with
Father is not in the best interests of the child because of the child's circumstances,
including the child's placement options, age, and developmental, cognitive, and
psychological needs, which include the following: child has been in current
placement for the last 10 months, she does not have a significant relationship with
her father as he has been incarcerated in some fashion for all but close to 2 months
of her life over a year ago.
3
Father's long-term incarceration. The court further found reunification with Father was
not in the best interest of Child as "she does not have a significant relationship with [Father]
as he has been incarcerated in some fashion for all but close to 2 months of her life over a
year ago."
Father appeals the termination of his parental rights asserting ineffective assistance
of counsel for failing to advocate to establish paternity sooner and failing to zealously
advocate for a treatrnent plan earlier in the case. Father asserts he was prejudiced by this
loss of tirne.
We review a district court's decision to terminate a person's parental rights for an
abuse of discretion. In re A.B., 2020 MT 64, ¶ 23, 399 Mont. 219, 460 P.3d 405. "We will
not disturb a district court's decision on appeal unless there is a mistake of law or a finding
of fact not supported by substantial evidence that would amount to a clear abuse of
discretion." In re H.T., 2015 MT 41, ¶ 10, 378 Mont. 206, 343 P.3d 159. "[P]arents have
a due process right to effective assistance of counsel in terrnination proceedings." In re
E.Y.R., 2019 MT 189, It 22, 396 Mont. 515, 446 P.3d 1117 (quoting In re A.S., 2004 MT
62, ¶ 20, 320 Mont. 268, 87 P.3d 408). Whether assistance was effective requires review
of counsel's training, experience, and advocacy. In re A.S., ¶ 26. IAC requires reversal
only if the parent suffered prejudice. In re E.YR.,¶ 22 (citing In re B.M, 2010 MT 114,
¶ 22, 356 Mont. 327, 233 P.3d 338).
¶7 From our review of the record, even if we accept Father's assertion that his counsel
was ineffective in failing to seek establishment of paternity as well as a treatment plan
4
earlier, he has failed to establish he was prejudiced by counsel's ineffectiveness. There is
nothing in the record to suggest that had paternity been formally established at the outset
of the case, a different result would have occurred. Nor is there anything in the record to
suggest that had a treatment plan been approved for Father in a timely manner, a different
result would have occurred. Father was identified in the initial petition as the only putative
father and there is no indication the District Court did not recognize him as Child's birth
father throughout the entire proceeding. The District Court did not terrninate Father's
parental rights for his failure to complete treatment plan tasks in a timely manner. Instead,
the District Court terminated Father's parental rights based on his long-term incarceration
which commenced early in the case and was anticipated to continue for at least another
year beyond the date of the termination hearing.4 The District Court reasonably found this
long-term incarceration prevented Father from developing a relationship with Child, Child
was in a stable environment and was well-adjusted and bonded with her placement and
home environment, and in need of permanency.
¶8 The District Court made sufficient findings supported by the record to support its
decision to terminate Father's parental rights under § 41-3-609(4)(c), MCA. Regardless of
whether paternity had been formally established at the outset or whether counsel should
have advocated more zealously to establish a treatment plan for Father, the fact remains he
4 Indeed, Father himself acknowledges he was incarcerated on the day Child was born and
remained incarcerated in some location or another during the pendency of this case, except for a
53-day period from May 8 to July 2, 2019, when he was released on probation. Father also
acknowledges he is not scheduled to be released from Montana State Prison until August 22, 2022.
5
was incarcerated for more than one year and the District Court rnade findings supported by
the record that reunification was not in Child's best interests. Father has failed to establish
he was prejudiced by anything other than his own long-term incarceration.
¶9 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our
Internal Operating Rules, which provides for memorandum opinions. In the opinion of the
Court, the case presents a question controlled by settled law or by the clear application of
applicable standards of review.
¶10 Affirmed.
J 30 04/ .1 1 441
Justice
3
We concur:
/4(4-11.,.
Justices
6