03/30/2020
IN THE SUPREME COURT OF THE STATE OF MONTANA
No. DA 19-0122
IN THE MATTER OF
R.R.S. and A.S.,
Youths in Need of Care.
BRIEF OF APPELLEE On Appeal from the Montana Tenth Judicial District Court, Fergus County, The Honorable Jon A. Oldenburg, Presiding
APPEARANCES:
TIMOTHY C. FOX DANA A. HENKEL Montana Attorney General TERRAZAS HENKEL, P.C. JONATHAN M. KRAUSS 1923 S. Higgins Avenue Assistant Attorney General P.O. Box 9077 215 North Sanders Missoula, MT 59801 P.O. Box 201401 [email protected] Helena, MT 59620-1401 Phone: 406-444-2026 ATTORNEY FOR [email protected] FATHER/APPELLANT
KENT M. SIPE FRED SNODGRASS Fergus County Attorney Fred Law Firm & Associates, PLLC 801 W. Broadway St. 214 North 24th Street Lewistown, MT 59457 P.O. Box 2157 Billings, MT 59103 ATTORNEYS FOR PLAINTIFF [email protected] AND APPELLEE GUARDIAN AD LITEM TABLE OF CONTENTS
TABLE OF AUTHORITIES ...... iii
STATEMENT OF THE ISSUES...... 1
STATEMENT OF THE CASE ...... 1
STATEMENT OF THE FACTS...... 2
First abuse and neglect petition (R.R.S.) ...... 2
Interim voluntary protective agreements ...... 3
Proceedings under the new petitions (R.R.S. and A.S.).....Error! Bookmark not defined.
Adjudication and temporary legal custody ...... 6
Extension of temporary legal custody ...... 10
Emergency motion to attend Children’s heart surgery...... 12
Petition for termination ...... 14
SUMMARY OF THE ARGUMENT...... 24
ARGUMENT...... 25
I. The district court properly and within its discretion terminated Father’s parental rights ...... 25
A. Standard of review and applicable law...... 25
B. The mandatory statutory criteria for termination were satisfied, as found and concluded by the district court ...... 30
C. The district court did not “unconstitutionally terminate” Father’s parental rights based on “reasonable efforts,” as Father claims for the first time on appeal ...... 31
II. The district court properly allowed the GAL to cross-examine witnesses ...35
i A. Standard of review...... 35
B. The fundamental rights of children must be asserted by someone...... 36
C. Allowing the GAL to cross-examine witnesses was appropriate ...... 38
CONCLUSION ...... 42
CERTIFICATE OF COMPLIANCE...... 42
ii TABLE OF AUTHORITIES
Cases
Bean v. Mont. Bd. of Labor Appeals, 1998 MT 222, 290 Mont. 496, 965 P.2d 256 ...... 41 Bonamarte v. Bonamarte, 263 Mont. 170, 866 P.2d 1132 (1994) ...... 41 In re A.N.W., 2006 MT 42, 331 Mont. 208, 130 P.3d 619 ...... 33, 34, 39 In re A.S., 2006 MT 281, 334 Mont. 280, 146 P.3d 778 ...... 34 In re A.T., 2006 MT 35, 331 Mont. 155, 130 P.3d 1249 ...... 29, 34 In re A.W., 1999 MT 42, 293 Mont. 358, 975 P.2d 1250 ...... 37 In re B.B., 2001 MT 285, 307 Mont. 379, 37 P.3d 715 ...... 35, 40 In re C.M., 2019 MT 227, 397 Mont. 275, 449 P.3d 806 ...... 26, 27, 32, 33 In re C.M.G., 2020 MT 15, 398 Mont. 369, ___ P.3d ___ ...... 25, 27, 32 In re D.B., 2007 MT 246, 339 Mont. 240, 168 P.3d 691 ...... 26, 27, 28, 32 In re E.K., 2001 MT 279, 301 Mont. 328, 37 P.3d 690 ...... 29 In re G.S., 2002 MT 245, 312 Mont. 108, 59 P.3d 1063 ...... 33, 38 In re J.B., 2015 MT 342, 381 Mont. 525, 362 P.3d 859 ...... 36 In re J.D., 2019 MT 63, 395 Mont. 141, 437 P.3d 131...... 25, 38, 39, 40
iii In re K.H., 2012 MT 175, 366 Mont. 18, 285 P.3d 474 ...... 36, 37 In re M.V.R., 2016 MT 309, 385 Mont. 448, 384 P.3d 1058 ...... 27, 28, 32 In re R.J.F., 2019 MT 113, 395 Mont. 454, 443 P.3d 387 ...... 26, 27, 32 In re R.L., 2019 MT 267, 397 Mont. 507, 452 P.3d 890 ...... 27, 32, 33 In re S.L.M., 287 Mont. 23, 951 P.2d 1365 (1997) ...... 36 In re T.C., 2008 MT 335, 346 Mont. 200, 194 P.3d 653 ...... 32 In re T.E., 2002 MT 195, 311 Mont. 148, 54 P.3d 38 ...... 33, 34, 38 Maryland v. Craig, 497 U.S. 836 (1990) ...... 41 State v. Clark, 1998 MT 221, 290 Mont. 479, 964 P.2d 766 ...... 41 State v. Longfellow, 2008 MT 343, 346 Mont. 286, 194 P.3d 694 ...... 33
Montana Code Annotated § 41-3-101(1)(d) ...... 36 § 41-3-101(4) ...... 29 § 41-3-102(5) ...... 29 § 41-3-112(1) ...... 36 § 41-3-112(2) ...... 36 § 41-3-112(3)(a) ...... 40 § 41-3-422(11) ...... 37 § 41-3-423 ...... 27, 28 § 41-3-423(1) ...... 26, 29 § 41-3-425(2)(b) ...... 37 § 41-3-425(3) ...... 37 § 41-3-445(8)(e)(v) ...... 22
iv § 41-3-445(8)(e)(v)(B) ...... 23, 31 § 41-3-602 ...... 29 § 41-3-604(1) ...... 30 § 41-3-609(1)(f) ...... 26, 27, 28, 30, 31 § 41-3-609(1)(f)(ii) ...... 28 § 41-3-609(2) ...... 28, 30, 31 § 41-3-609(3) ...... 29
Montana Constitution Art. II, §15 ...... 36
Montana Rules of Evidence Rule 611(e) ...... 41
United States Code Annotated 42 U.S.C. § 5106a(b)(2)(B)(xiii) (2020) ...... 36
v STATEMENT OF THE ISSUES
1. Did the district court properly terminate Appellant Father’s parental rights?
2. Did the district court abuse its discretion by allowing, without objection, the GAL to cross-examine witnesses at termination?
STATEMENT OF THE CASE
Appellant Father, R.S., appeals from termination of parental rights to the
Children, R.R.S. and A.S. (R.R.S. Docs. 191-95, 199-200; A.S. Docs. 129-33,
137-39; 1/2-3/19 Trs.) The district court also terminated the parental rights of birth mother, N.O., and she has not appealed. (R.R.S. Docs. 191 at 2, 195 at 1-2; A.S.
Docs. 129 at 2, 133 at 1-2; 1/2/19 Tr at 46-56.) ICWA does not apply. (See R.R.S.
Doc. 195 at 5; A.S. Doc. 133 at 5.)
Five months after they were filed, this Court denied appellate counsel’s motion to withdraw and Anders brief, and identified two issues for Father’s appeal.
(Motion at 1, and Anders Br. at 1, 22, 7/24/19, DA 19-0122; Order, 12/18/19,
D.A. 19-0122.) STATEMENT OF THE FACTS
First petition (R.R.S.)
The Department of Public Health and Human Services (Department) first became involved when R.R.S. was born in Billings. (See R.R.S. Case Register
Report, DN 2014-22, Docs. 1-60.) The State filed a petition alleging physical neglect of newborn-R.R.S. based on safety concerns from ongoing cases involving two of mother’s other children and ongoing substance abuse by the parents.
(R.R.S. Docs. 1-2.)
The Honorable Ingrid G. Gustafson, presiding, adjudicated R.R.S. a youth in need of care, and granted temporary legal custody. (R.R.S. Docs. 6, 10, 13 at 2-3.)
Based on stipulations at the hearing, Judge Gustafson found that R.R.S. was residing in foster care at the time; R.R.S. had been abused or neglected as a result of exposure to physical neglect relating to mother’s failure to safely parent her two other children; return to the home would place R.R.S. at an unreasonable risk of harm; and the Department had “made reasonable efforts to avoid removal of
[R.R.S.], or to make it possible to safely return the child to the family home.”
(R.R.S. Docs. 10, 13 at 2.)
The district court extended temporary legal custody based on the petition and the parties’ stipulation—including that the Department had “made reasonable efforts.” (R.R.S. Doc. 22-23, 39, 41 at 2.) The district court transferred the case to
2 Fergus County in November 2014, where it was eventually dismissed in March
2015. (R.R.S. Doc. 44-47, 54-55, 57, 59, 60.)
Interim voluntary agreements
About 16 months after dismissal of the original petition involving R.R.S., the State filed new petitions involving both Children in July 2016 (R.R.S. Doc. 61;
A.S. Doc. 1.)1 By that time, R.R.S. was almost two-and-a-half years old, and A.S. had been born and was almost one.
However, in the interim, the Department had a series of involvements with the parents. (12/6/16 Tr. at 6-15, 26-27, 33-38.) On two occasions the Department entered into voluntary plans with the parents based on domestic violence and drinking in the home around the Children. (Id. at 6-7, 26-27.) During that time, the parents had a history and pattern of chemical dependency and domestic violence, each one acknowledging how toxic they were to each other and the risk they posed to the Children—despite the voluntary protection plans and services the
Department provided. (Id. at 7-8, 32-33, 46-48.)
1 From this point forward, unless otherwise noted, the State will cite to district court documents by reference to “A.S. Docs.” The pertinent documents in DN- 2016-24 (A.S. Docs. 1-141), are materially equivalent to and generally track the corresponding documents filed in 2016 and thereafter in DN-2014-22 (R.R.S. Docs. 61-202).
3 Although mother got a chemical dependency evaluation, she was inconsistent with follow-through on treatment and counseling; Father did not follow through on urinalysis, did not do what was asked of him by the Department, and generally did not comply or work willingly with the Department. (12/6/16 Tr. at 9, 30.) However, Father was not living with the family at the time, so the risk to the Children from domestic violence and chemical use was lessened. (Id. at 9.)
Although the parents did not engage in domestic violence during this time, Father still drank and “wasn’t necessarily willing to engage in services that the
Department had asked of him.” (Id. at 33-34.)
Although the voluntary agreement helped to control the parents’ behaviors and the Children’s safety,
it did not ensure long term change for this family because they would not engage in the services and get out of it what was necessary to ensure that the children were long term safe. The voluntaries were never extremely successful. They kind of put a Band-Aid on the situation at the moment. We were able to get through the voluntary period without any more instances and then when we were no longer involved . . . we were right back to where we had started. So [the voluntary plans were] really not effective when the birth mother and birth father [did not] fully engage and take away from them what [we had] asked.
(12/6/16 Tr. at 35.) The voluntary agreements controlled the risk while they were in effect, but were “not successful for long term change.” (Id. at 37.) The case worker testified that the purpose of such agreements was to “give the parents an opportunity to rectify their behavior before [the Department had] to take it further.”
4 (Id.) Unfortunately, the parents could not do so, “therefore another voluntary would be senseless.” (Id.) This was effectively communicated to the parents through a letter sent by the Department “letting them know that repeatedly exposing children to domestic violence puts them at risk and that we [had] worked voluntarily with them multiple times and . . . would not be able to work voluntarily going forward.” (Id. at 37-38.)
Proceedings under the new petitions (R.R.S. and A.S.)
After filing the instant petitions (A.S. Doc. 1.), the show cause hearing was continued at mother’s request, without objection. (A.S. Docs. 10-11.) The additional time provided an opportunity for the parties to make reasonable efforts for an “impromptu mediation” and try to “work[] together to resolve some of the issues.” (9/13/16 Tr. at 3, 5.) The parties stipulated to the show cause order and asked that adjudication be put off until a later date. (Id. at 4-6; A.S. Doc. 12.)
The district court found that probable cause existed to believe the Children were youth in need of care, and that the “Department [had] made reasonable efforts to prevent or eliminate the need for an out of home placement for the child.” (A.S.
Doc. 13 at 2.) The court found that the Children were currently in a foster care placement, which was in their best interests, and placement with either parent at the time “would be contrary to the welfare of the child[ren].” (Id.)
5 Adjudication and temporary legal custody
According to the petition and affidavit, the direct cause of the abuse and neglect was that the parents engaged in domestic violence around their Children on
July 16, 2016. (A.S. Doc. 1, Aff. at 3.) Parents were fighting over money, were under the influence, and mother punched Father while he was holding their child.
(Id.) The Department had worked voluntarily with this family on many occasions to reduce the risk to the Children, but the efforts made by the Department had resulted in little change. (Id.) In the past, both parents had been the aggressor in the violence. (Id.) In addition to out of control violent behaviors there were also drug concerns in the home, which the Department was continuing to investigate. (Id.)
The Children were removed and mother was taken to the county jail on charges of partner family member assault (PFMA). (Id.; 12/6/16 Tr. at 16-22.)
The affidavit recounted the substantial history with the Department, including that mother’s parental rights to two other children had been terminated; that mother did not have custodial rights to a third child; that R.R.S. had been removed at birth and later reunified; and that Father had been subject to multiple referrals involving the Children. (A.S. Doc. 1, Aff. at 3.) Together, Father and mother had a total of six reports to the Department in the prior year regarding drug use, domestic violence, and medical neglect. (Id.)
6 Two case workers testified at the adjudication hearing, as did Father.
(12/6/16 Tr. at 4-59 (Whitmore), 60-101 (Bruchez), 102-27 (Father).) No party objected to the cross-examination of these witnesses by the appointed guardian ad litem (GAL), Fred Snodgrass, an attorney. (Id. at 56-58, 90-96, 118-24.) In fact, the district court thanked Snodgrass for serving as GAL: “The Court appreciates your effort.” (12/6/16 Tr. at 134.)
The district court concluded the evidence was clear and convincing that the
Children were at risk of being abused and neglected while in the joint custody of both parents. (12/6/16 Tr. at 131.) The court noted the two voluntary agreements with which the parents seemed to comply, “while the Department was involved in their lives.” (Id.) But now, the court found:
As soon as [the voluntaries] disappeared, we were back to the same old problems of alcohol consumption, fighting in front of the kids, spouse abuse type of issues. It didn’t resolve after the first one, it didn’t resolve after the second one. Actually, it involved an incident where it led to the criminal prosecution of [mother] for striking [Father] while he was actually . . . holding one of the children. I think it’s important for both of the parents to realize . . . that children are much more damaged psychologically and emotionally by watching their parents hit each other and fight [than] they are if a parent was to hit one of them. The fact that you didn’t hit them, that you provided a house for them, that’s great. The fact that you’re striking each other and hitting each other . . . that kind of thing cannot go on in front of your children. And it can’t go on absent your children either if you want to co-parent these children.
7 (Id. at 131-32.) The district court adjudicated the Children as youth in need of care and granted legal custody to the Department. (Id. at 132.) The court admonished the parents:
[Y]ou know what’s asked of you. It’s been asked of you for a year and a half now. This is not new things. Let’s get going and let’s get them done. . . . I don’t know that we’ll ever get you two to the point where you can co-parent because your relationship is so poisonous, but you’ve got to work on that. . . . [I]f in fact you can’t do it together one of you is gonna have to show that you can do it on your own and grab these services, get after them and keep your kids number one in your heart and in your mind and let’s move this thing forward and try and get your family [and] the kids back with one of you if not both of you[.]
(12/6/16 Tr at 133.)
Therefore, based on clear and convincing evidence, the Children were adjudicated youth in need of care. (A.S. Doc. 15 at 1.) The court found that the
“parents have a toxic relationship that too often results in conflict, placing the children at risk of abuse or neglect. Both parents have a history of chemical dependency and domestic violence issues. The parents have struggled with alcohol and methamphetamine abuse.” (Id. at 1-2.) This behavior “culminated on July 16,
2016, when the parents engaged in a dispute and [mother] struck [Father] while he was holding one of the [Children]”—resulting in mother’s charge and conviction of PFMA. (Id. at 2.) Father acknowledged during his testimony that the continued fighting between he and mother placed the Children at risk. (Id.)
8 The district court found that the Department had “made reasonable efforts to prevent or eliminate the need for the exercise of protective authority and placement of the child out of the home.” (A.S. Doc. 15 at 2.) These efforts, based on the evidence, included “two prior voluntary treatment agreements between the
Department and the parents, offers to assist with mental health services, parenting classes, chemical dependency evaluations, drug monitoring, financial support to help the family make appointments, and drug/alcohol monitoring.” (Id.) The district court found that the Children’s placement in foster care was in their best interests—“[i]f the child[ren] were returned home now, such unsupervised placement would be contrary to [their] welfare.” (Id.) As the district court understood all too clearly, given the history of these parents and despite the efforts by the Department, “neither parent has succeeded in satisfactorily addressing
[their] chemical dependency and violence issues.” (Id.)
Father stipulated to disposition and a treatment plan. (A.S. Doc. 16-19;
1/4/17 Tr. at 1-4.) Pursuant to the stipulation, the district court confirmed that the
Children were youth in need of care, that the Department had made “reasonable efforts,” and that the Children’s placement was proper and in their best interests.
(A.S. Doc. 23 at 1-2.)
9 Extension of temporary legal custody
The State filed for extension of temporary legal custody and for a preliminary hearing on termination. (A.S. Docs. 24-27, 7/26/17 Tr. at 1-6.) At that hearing, the State represented that the parties had met for mediation, discussed the matter, and would stipulate to extend temporary legal custody. (7/26/17 Tr. at 3.)
In addition, the State would withdraw its petition for termination at this time, with the condition that there would be “full compliance, somewhat of a zero tolerance for these parents.” (Id.) Absent showing progress and compliance with their treatment plan, the State would review the matter and file petitions for termination.
(Id.) The State recognized that it was necessary for the parents to have some additional time in which to complete their treatment plans, in the best interest of the Children. (Id.) The district court so ordered, without objection from Father, and admonished that the parents “have some work to do, but it seems like the
Department is willing to work with you so let’s get done what we need to get done and get those kids back home.” (Id. at 5; A.S. Doc. 36.) The district court again thanked the GAL for his service, without objection from Father. (7/26/17 Tr. at 5.)
The district court extended temporary legal custody, as stipulated, finding again that the Children were youth in need of care, the Department had made
“reasonable efforts,” and the Children’s placement was proper and in their best
10 interests. (A.S. Doc. 39 at 2.) An updated treatment plan was also approved and agreed to by Father. (A.S. Doc. 41.)
The State filed a motion to approve the permanency plan for the Children, the GAL filed a report to the district court, and a hearing was held. (A.S. Docs. 40,
44, 49; 11/7/17 Tr. at 1-9.) The permanency plan proposed reunification, with the caveat that “due to the length of time that [the Children have] been in foster care and the lack of completion of treatment plans by both parents, adoption options are being explored.” (A.S. Doc. 40, Aff. at 3.) There remained concerns about the parents’ living arrangements and consistency, given their “volatile history . . . and some of the inconsistent drama that has [gone] on.” (11/7/17 Tr. at 5-6.) Also, the parents had not yet satisfactorily demonstrated completion and implementation of their treatment plans, and the health conditions of the Children appeared beyond the scope of the parents’ ability to care for them—both issues that needed to be addressed before reunification would be in the Children’s best interests. (A.S. Doc.
44 at 3.)
However, the Department continued to work with both parents to support them as they worked their treatment plans, which, for a time, appeared to be going well. (A.S. Doc. 40, Aff. at 3; 11/7/17 Tr. at 4-8.) In addition to making efforts toward permanency, the Department continued to make other reasonable efforts with the parents, including: review of case file material; assistance to get mother
11 into inpatient treatment; referral to mental health counseling and payment of services; referral to chemical dependency counselors and payment of services; referral to parenting classes and payment for services; referral to a provider for visitation supervision; phone calls and letters; and a home visit to Father’s residence. (A.S. Doc. 40, Aff. at 4.) Father did not object to, deny, or contest these reasonable efforts.
The district court approved the permanency plan in the Children’s best interests. (A.S. Doc. 51.) In addition, the current placement of the Children was in their best interests and the Department was making reasonable efforts. (Id.)
Emergency motion to attend Children’s heart surgery
On December 18, 2017, Father filed a motion for emergency hearing to seek the district court’s permission for to travel to Denver to be with the Children for their upcoming open-heart surgery and recovery. (A.S. Doc. 52.) The State opposed the motion and a hearing was held. (A.S. Docs. 54, 58.1; 1/3/18 Tr. at
1-77.) The district court issued an order reflecting that it had heard the testimony of the witnesses, examined the exhibits entered, heard the argument and recommendations of counsel, and reviewed the entire record. (A.S. Doc. 60 at 1.)
During the hearing, the district court recessed to allow the parties to work on a negotiated resolution. (Id. at 2; 1/3/18 Tr. at 71.)
12 The parties returned with a proposal that would allow the parents to attend the surgeries and have supervised visitation with the Children, but a detailed plan had still to be worked out. (1/3/18 Tr. at 71-77.) The district court ordered, among other things, that the GAL continue to work with the parties to attempt to reach a solution; that any resolution would be reduced to writing and approved before the
Children went to Denver; and that absent a written resolution, neither parent would be permitted to go to Denver to visit the Children. (A.S. Doc. 60 at 2.)
At a status hearing, the parties presented a draft plan, but there were still details to finalize before it could be signed. (1/9/18 Tr. at 2-6; A.S. Doc. 62.)
Father understood that the draft plan was a “document in flex,” but agreed in concept; mother was “absolutely on board” and her attorney would make the necessary changes to the written plan. (1/9/18 Tr. at 6.) The district court directed the parties to finalize the plan and would “await receipt of the signed plan.” (Id. at 7.)
Apparently, no plan or agreement was ever signed, because there is nothing in the district court record. A later report from the GAL states that the parties and the court had “accommodated the request of the parents to see [the Children] while out of State having heart surgery. Apparently, neither parent visited the
[Children].” (A.S. Doc. 90 at 3.)
13 Petition for termination
The State filed a petition for termination of parental rights. (A.S. Doc. 63.)
A preliminary hearing was held. (2/13/18 Tr at 1-6; A.S. Doc. 68.) The State was ready to go to hearing whenever the court could schedule it, but Father needed additional time because he had requested discovery of the “entire departmental file.” (2/13/18 Tr at 3.) The district court set the termination hearing for two days in July 2018. (A.S. Doc. 71.)
Father moved for a continuance in order to review the discovery and the district court reset the hearing to October 30, 2018. (A.S. Docs. 74-75.) Father filed another motion to continue, which the district court granted—resetting the hearing to January 2, 2019. (A.S. Docs. 93, 95.)
The termination hearing was held on January 2 and 3, 2019. (1/2/19 Tr. at
1-177; 1/3/19 Tr. at 1-148; A.S. Docs. 129-30.) The petition alleged that the
Children were youth in need of care; that Father had failed to complete his approved treatment plan; and that the conduct or condition rendering Father unfit was unlikely to change within a reasonable time. (A.S. Doc. 63 at 1-2.)
The petition included the affidavit of child protection specialist Elizabeth
Bruchez (Bruchez), which outlined the case history and circumstances of the abuse and neglect; Father’s progress, and lack thereof, on his treatment plan in regard to chemical dependency, mental health, visitation, contact with the Department, and
14 housing and employment; the reasonable efforts made by the Department; and the
Department’s recommendation for termination. (A.S. Doc. 63, Aff. at 2-4, 7-10.)
Facts in the affidavit were referenced without objection during the testimony of
Father and Bruchez. (1/3/2019 Tr. at 27, 107, 109-10, 120-22.)
The GAL filed a report to the district court, outlining his investigation into the best interests of the Children and offering his recommendations based on the facts and circumstances of the case. (A.S. Doc. 90 at 1-4.) Father did not object to or contest the GAL’s report in any way.
Ten witnesses testified at the two-day hearing. Dr. Thomas Cairns testified as an expert forensic toxicologist about the testing of hair samples for drugs, in particular a hair sample from Father that tested positive for methamphetamine at a concentration indicating recreational use of about once a week over the 90 days prior to the sample being taken—August 2 through November 2, 2018. (1/2/19 Tr. at 5-6, 17-23; State’s Ex. 4.) The GAL cross-examined Dr. Cairns without objection. (1/2/19 Tr. at 33-34.) The district court summarized Dr. Cairns’ opinion:
“there’s no doubt in your mind that for the period of the 90 days prior to the test that there [were] multiple ingestions of methamphetamine by [Father] no matter whether it was high or low quality meth[.]” (Id. at 34.)
Heather Thom (Thom), nursing director for the Fergus County Nurse’s
Office, testified regarding Father’s random drug screenings administered by her
15 office starting in November 2016. (1/2/19 Tr. at 57-59, 61-62; State’s Ex. 5.) In the last six weeks of 2016, Father had 11 tests, 0 no-shows, and 5 that were positive for alcohol. (1/2/19 Tr. at 60.) In 2017 (including a break in service from August
21 through November 27), Father had 69 tests, 7 no-shows, 3 no-shows for which he showed up later to test, and 22 that were positive for alcohol. (Id. at 61.) In
2018, Father had 33 tests, 20 no-shows, 1 no-show for which he showed up later to test, and 1 that was positive for alcohol. (Id. at 62.) The GAL cross-examined
Thom without objection. (Id. at 70-71.)
Lewistown Police Officer Anthony Honeycutt testified that the parents had continued to engage in domestic disputes that necessitated law enforcement’s involvement. (1/2/19 Tr. at 74-79.) Father had called the police about 10 days before the termination hearing, on December 23, 2018, asking to have mother removed from his apartment; although Father had invited her over, she ended up screaming, yelling, and refusing to leave until police arrived. (Id. at 76-77.)
Officer Honeycutt testified that there were several other incidents between Father and mother where the police dealt with both of them—“typically . . . screaming and fighting and domestic situations,” noting that screaming “is usually a predecessor to a domestic or a partner family member assault.” (Id. at 77-78.)
Mother kept coming back—and Father could not stop her—even during the termination hearing, as Father admitted. (1/3/19 Tr. at 62-64, 110.)
16 Shalon Wilson (Wilson), was employed with Families United to perform the supervised visits between Father and the Children. (1/2/19 Tr. at 81.) Wilson and her employer would get involved “to prevent kids from being removed [and] to reunify once they [were] removed;” she also taught parenting classes and supervised visits between parents and kids. (Id.) Wilson first got involved with
Father in July 2016, when the Children were placed in foster care and she supervised the visits. (Id. at 81-82.)
At first, visits were with both parents, but joint visits were discontinued because there was “a lot of arguing and fighting in the room” in front of the
Children. (1/2/19 Tr. at 83.) The tension would be so high—even after individual visitation had been established—that the parents were arguing and fighting as one was leaving and the other was arriving. (Id. at 84-85.) The problems were with both parents: “It depended on the day and the situation, who was mad at who.
[Although] they tried to not necessarily do it in front of the kids . . . the kids . . . were aware . . . [of the] side comments, rude things [said] to each other.” (Id. at
85-86.) The parents were not modeling good behavior to “play well” with others.
(Id. at 86.)
There were times when Father “would yell at [Wilson] and scream” and
Wilson need Department staff to come down and ask him to leave. (1/2/19 Tr. at
87.) Father would scream, yell, and curse at Wilson in front of the Children. (Id.)
17 Father’s behavior was inconsistent—“Sometimes he was very, very engaged and other times . . . he was upset about [mother] and his relationship with her.” (Id. at
89.) More than once, Wilson was nervous about her own safety. (Id. at 91.) There were times that Wilson and Father “got along very well and he was very receptive to my suggestions and help[ed] with the [Children] . . . but it always came back to what happened with him and [mother.]” (Id.) The GAL cross-examined Wilson without objection. (Id. at 102-08.)
The district court confirmed with Wilson that alcohol and drug use had been a concern the entire time Wilson worked with Father. (1/2/19 Tr. at 109.) The court confirmed that the level of anger directed at Wilson—“someone that’s actually monitoring his behavior to give him further visitation with his children”—was concerning for the safety of the Children in the event Father was “alone with his children and displayed that [same] level of anger.” (Id. at 110.)
McKenna Sheridan (Sheridan), a Department social service technician, testified about transporting the Children to visitations with the parents and assisting
Wilson if she needed somebody to step in and do a supervised visit. (1/2/19 Tr. at
112-29.) As Father’s counsel elicited, Sheridan transported the Children 112 times.
(Id. at 129.)
18 Psychologist, Monica Braulick (Braulick), Father’s counselor, also testified.
(1/2/19 Tr. at 140-42.) Braulick summarized the areas she and Father had been working on over the prior two years:
[I]t’s kind of been similar scenes throughout the last two years. So, we’ve definitely worked a lot on relationships, boundaries in relationships, stressors, unhealthy patterns in relationships, anger and volatility in relationships. We’ve talked about effects of trauma on children, healthy parenting, emotional management, completing treatment plans, going over goals and things we have to do. We’ve definitely done some check ins about his alcohol and drug use as well as check ins about mental health status, depression, life management choices, following through with plans and decisions and expression of conflict and . . . feelings in healthy ways.
(Id. at 142-43.) Although Braulick did not know whether Father’s behaviors had changed outside her office, she did believe the counseling sessions had become more productive. (Id. at 150-51.) Braulick thought continued mental health counseling would be beneficial for Father, especially to check on things like depression, accountability for the choices Father was making, and support for
Father to get what he needed to make his life healthy. (Id. at 151-52.) Braulick had seen some progress with Father, but could not quantify it as “significant progress” and she did not know whether Father’s “follow through or the behavioral changes
[had] been there consistently.” (Id. at 154.)
Licensed addiction counselor, Lance Eller (Eller), testified about Father’s updated chemical dependency evaluation performed in August 2017. (1/2/19 Tr. at
158-69; Respondent’s Ex. 104.) The GAL cross-examined Eller without objection.
19 (1/2/19 Tr. at 169-76.) Technically, the 2017 updated evaluation was no longer valid because it was over a year old and Father would need a new evaluation. (Id. at 171-73.) Given Dr. Cairns’ prior hair sample testimony, evidencing a significant relapse of methamphetamine use since the 2017 evaluation, Father would need a
“full blown evaluation,” at a minimum, and might need inpatient or intensive outpatient treatment. (Id. at 175-76.)
The State examined Father on direct regarding his treatment plan and conduct. (1/3/19 Tr. at 4-28.) Father said that the “most important focus” in his life over the last two-and-a-half years had been staying clean and sober—not providing for the care of his Children and their best interests. (Id. at 28.) Father persisted in his belief that he had “been clean and sober”—except, of course, when he relapsed and drank or used meth, as was clearly established on the record. (Id. at 35-36, 51,
54-57.) Father admitted his relationship with mother was “just toxic.” (Id. at
61-64.) Father did not testify that the reasonable efforts made by the Department were inadequate or that there were additional efforts that should have been provided.
The GAL cross-examined Father without objection. (1/3/19 Tr. at 69-96.)
When the GAL asked about Dr. Cairns’ hair sample analysis indicating Father’s three-month use of methamphetamines and whether Father had relapsed during that period, Father refused to answer based on the Fifth Amendment, as instructed
20 by counsel. (Id. at 77-78.) The district court denied the GAL’s use of limited use immunity, and the GAL proceeded with cross-examination. (Id. at 78-79.) Father agreed that he would not present any evidence to rebut Dr. Cairns’ testimony about the positive test for meth. (Id. at 80.)
Finally, Bruchez testified regarding the case, Father’s treatment plan compliance, and the Department’s conclusions and recommendations. (1/3/19 Tr. at 97-146.) Bruchez testified that the Children, at the time of the hearing, had been in foster care for 30 months, more than triggering the statutory presumption that termination would be in their best interests. (Id. at 99.) Bruchez testified about the specialized medical needs of the Children, and the fact that Father had never inquired and did not know who the Children’s medical providers were. (Id. at
100-02.)
Regarding treatment plan compliance, there had been a time when Father was doing really well and Bruchez was hopeful. (1/3/19 Tr. at 106.) But, Bruchez testified compliance was “up and down” and ultimately Father did not complete either his first or second treatment plans (Id. at 106-08.) Father was “unable to remain consistently clean of drugs and alcohol.” (Id. at 110.) He had also misled or deceived the Department —“a very consistent lie[.]” (Id. at 111.)
Bruchez felt “absolutely” that the Department had met its obligation with regard to reasonable efforts. (1/3/19 Tr. at 120-24; see A.S. Doc. 63, Aff. at 9.)
21 Father’s cross-examination of Bruchez delved into permanency options alternative to termination, including a long-term planned permanent living arrangement.
(1/3/19 Tr. at 131-33.) See Mont. Code Ann. § 41-3-445(8)(e)(v). Although, the
Department was not pursuing that option, Bruchez agreed with Father on cross-examination that certain criteria under the statute had been met, including that the Department had made reasonable efforts to reunite the parents and
Children. (1/3/19 Tr. at 131-33.) See Mont. Code Ann. § 41-3-445(8)(e)(v).
In response to the district court, Bruchez agreed that the Department “still
[had] the same concerns that it had initially . . . regarding drugs and alcohol, domestic violence and this toxic relationship”—that those circumstances had not decreased but had remained consistent. (1/3/19 Tr. at 145.) In addition, Bruchez did not believe that there were other services the Department could have provided—“There is nothing I can think of we could’ve done more.” (Id.)
The State and Father filed post-hearing briefs. (A.S. Docs. 131-32.) The
State summarized the evidence supporting termination, concluding there had been
“almost no progress made in 30 months for either the alcohol and meth use or for implementing boundaries and incorporating life management skills such that he would be able to safely care for his young [Children] in a safe and healthy manner.” (A.S. Doc. 131 at 2-4.)
22 Father requested that the district court consider a long-term custody option, as he had raised in the hearing. (A.S. Doc. 132 at 3-4.) Father did not raise any objection that the Department did not make “reasonable efforts.” On the contrary,
Father admitted that “reasonable efforts” had been made, as Bruchez had testified, because that was a necessary condition for the long-term custody option Father was requesting. Mont. Code Ann. § 41-3-445(8)(e)(v)(B) (“the department has made reasonable efforts to reunite the parent and child”). Father admitted that “it would not be appropriate nor in the children’s best interest to be immediately returned[.]” (A.S. Doc 132 at 4.) Father did not object to the appropriateness of his treatment plans, or make any argument that he had fully complied or successfully completed the treatment plans.
In its written order, the district court found that the Children had been adjudicated youths in need of care and that clear and convincing evidence established that Father had not successfully completed his two treatment plans.
(A.S. Doc. 133 at 2-3.) The court found that Father had not successfully addressed the domestic violence and “poisonous relationship” with mother or his drug and alcohol use—citing multiple no-shows and positive UAs for alcohol and the hair-follicle test that had been positive for meth use over a 90-day period. (Id. at
4-5.) “The evidence is indisputable, and in fact [Father] did not dispute, that he had
23 not stayed clean and sober, nor had he followed the testing regimen, nor had he stayed away from [mother].” (Id. at 5.)
The district court concluded the evidence was clear and convincing that
Father had failed his treatment plans and his conduct was unlikely to change within a reasonable time. (A.S. Doc. 133 at 6.) Further, the Children had been in foster care since July 2016, during which time Father “continued to violate his treatment plan conditions, continued to use alcohol and meth, and continued his poisonous relationship with [mother] up to, and even during the hearing on termination. He has had two and one-half years to change and has not done so.” (Id.) The court rejected the long-term custody option, concluding that termination was in the
Children’s best interests. (Id. at 6-7.)
SUMMARY OF THE ARGUMENT
The district court properly and within its discretion terminated Father’s rights to the Children pursuant to the required statutory criteria and the best interests of the Children. Father does not challenge the satisfaction of those criteria on appeal. Instead, he argues that the court “unconstitutionally” terminated his rights because “reasonable efforts” were not made by the Department. But Father conceded that reasonable efforts were made when he argued for the statutory remedy of long-term custody, which depends on a finding of reasonable efforts—
24 evidence of which he introduced. Further, reasonable efforts are not separately appealable and must be linked to the conduct or condition criteria as a “predicate.”
Father also did not raise reasonable efforts as an objection or issue in the district court, thereby waiving it.
Because Father also failed to raise any objection to the GAL’s cross-examination of witnesses below, that issue is also waived. The case Father relies upon, In re J.D., is not controlling because it dealt only with a CASA who was erroneously allowed to cross-examine witnesses when the child was adequately represented by counsel. Here, the GAL is not a CASA and there was no counsel appointed to represent the Children. Therefore, the GAL here was the sole person appointed to represent the Children and their best interests under state and federal law. If the GAL had been hamstrung in the performance of his duties, the
Children would have been without any way to enforce and assert their fundamental rights, including their right to confront and cross-examine witnesses.
ARGUMENT
I. The district court properly and within its discretion terminated Father’s parental rights.
A. Standard of review and applicable law
This Court reviews the ultimate decision to terminate parental rights to determine whether the district court abused its discretion. In re C.M.G., 2020 MT
25 15, ¶ 10, 398 Mont. 369, ___ P.3d ___. The Court reviews factual findings in parental termination orders for clear error and conclusions of law for correctness.
In re C.M., 2019 MT 227, ¶ 13, 397 Mont. 275, 449 P.3d 806.
The sole, necessary criteria for terminating the parent-child relationship in this case are as follows: a district court may terminate the parent-child relationship when the child is an adjudicated youth in need of care and “(i) an appropriate treatment plan that has been approved by the court has not been complied with by the parents or has not been successful; and (ii) the conduct or condition of the parents rendering them unfit is unlikely to change within a reasonable time.”
Mont. Code Ann. § 41-3-609(1)(f); In re D.B., 2007 MT 246, ¶ 20, 339 Mont. 240,
168 P.3d 691.
Another statute requires the Department to “make reasonable efforts to prevent the necessity of removal of a child from the child’s home and to reunify families that have been separated by the state.” Mont. Code Ann. § 41-3-423(1).
A “determination of whether the Department made reasonable efforts is not a separate requirement for termination,” but may be important in certain cases as a
“predicate for finding” that parents’ conduct or condition is unlikely to change within a reasonable time. C.M., ¶¶ 16, 22 (quoting In re R.J.F., 2019 MT 113, ¶ 26,
395 Mont. 454, 443 P.3d 387). “In other words, a conclusion that a parent is unlikely to change could be called into question if the Department failed to make
26 reasonable efforts to assist the parent. However, in other cases, a parent’s unlikelihood of change may well be unaffected by the Department’s efforts.” C.M.,
¶ 22 (emphasis added).
As this Court has clarified, in reference to R.J.F., the Court “did not require
‘predicate findings’ of reasonable efforts. . . . [They are] not a separate requirement for termination, but rather may be a predicate for finding that the conduct or condition rendering a parent unfit, unwilling, or unable to parent is unlikely to change within a reasonable time.” In re R.L., 2019 MT 267, ¶ 26 n.5,
397 Mont. 507, 452 P.3d 890 (emphasis added) (citations omitted.) To further clarify, this Court has confirmed that “reasonable efforts is not, itself, a required finding for termination” and, “[t]hough not appealable on its own, the issue may be addressed as part of an appeal from the requisite statutory findings.” C.M.G., ¶ 13 n.3 (citing C.M., ¶ 22; R.J.F., ¶ 26; D.B., ¶ 25).
Thus, although the “reasonable efforts” inquiry is relevant to abuse and neglect proceedings, “it does not replace the two-prong statutory inquiry mandated by § 41-3-609(1)(f).” D.B., ¶ 25. In fact, this Court has concluded that reasonable efforts under § 41-3-423 is “the wrong statutory standard[] to assess whether . . . parental rights should be terminated.” D.B., ¶ 26-27. The termination statute “does not require a specific finding by the District Court that [the Department] engaged in reasonable efforts before terminating a parent child relationship.” In re M.V.R.,
27 2016 MT 309, ¶ 41, 385 Mont. 448, 384 P.3d 1058 (citing Mont. Code Ann.
§ 41-3-609(1)(f); D.B., ¶¶ 25, 26).
In contrast to “reasonable efforts” under Mont. Code Ann. § 41-3-423, the termination statute does require that the district court shall—in determining whether parents’ conduct or condition rendering them unfit is unlikely to change within a reasonable time under Mont. Code Ann. § 41-3-609(1)(f)(ii)—enter one of two findings: either “that continuation of the parent-child legal relationship will likely result in continued abuse or neglect” or “that the conduct or the condition of the parents renders the parents unfit, unable, or unwilling to give the child adequate parental care.” Id. § 41-3-609(2). In making those required determinations and findings, the district court shall consider certain factors, including emotional illness, mental illness, or mental deficiency of the parent; history of violent behavior by the parent; the parent’s excessive use of intoxicating liquor or a narcotic or dangerous drug; and present judicially ordered long-term confinement of the parent. Id. § 41-3-609(2)(a)-(d).
Finally, but foremost in the eyes of the law, when terminating parental rights, the district court’s “chief concern is the best interests of the child.” M.V.R.,
¶ 27. Part 6 of Article 3, Title 41 of the Mont. Code Ann. provides the “procedures and criteria by which the parent-child legal relationship may be terminated by a court if the relationship is not in the best interest of the child.” Mont. Code
28 Ann. § 41-3-602 (emphasis added). The guiding principle in terminating parental rights is foremost and always the best interests of the child: “the district court is bound to give primary consideration to the physical, mental, and emotional conditions and needs of the [child], thus, the best interests of the [child] are of paramount concern in a parental rights termination proceeding and take precedence over the parental rights.” In re A.T., 2006 MT 35, ¶ 20, 331 Mont. 155, 130 P.3d
1249 (quoting In re E.K., 2001 MT 279, ¶ 33, 301 Mont. 328, 37 P.3d 690). A child’s best interests and need for permanent placement in a loving and stable home supersede the parent’s interests. A.T., ¶ 20.
Thus, the best interests of the child are the primary and paramount statutory standard for termination, and really the overarching concern throughout all abuse and neglect proceedings. See, e.g., Mont. Code Ann. § 41-3-602, supra; § 41-3-
609(3) (district court shall give “primary consideration to the physical, mental, and emotional conditions and needs of the child.”); § 41-3-102(5) (defining “best interests of the child”); § 41-3-101(4) (the child’s health and safety are of paramount concern). Even in “determining preservation or reunification services to be provided and in making reasonable efforts at providing preservation or reunification services, the child’s health and safety are of paramount concern.” Id.
§ 41-3-423(1).
29 In addition, “[i]f a child has been in foster care under the physical custody of the state for 15 months of the most recent 22 months, the best interests of the child must be presumed to be served by termination of parental rights.” Mont. Code
Ann. § 41-3-604(1).
B. The mandatory statutory criteria for termination were satisfied, as found and concluded by the district court.
Father does not challenge by specific issues raised on appeal that the required statutory criteria for termination were established by clear and convincing evidence: that the Children were adjudicated youth in need of care; that Father’s appropriate treatment plans approved by the court were not complied with or were not successful; that his conduct or condition was unlikely to change within a reasonable time; or that termination was in the best interests of the Children. See
Mont. Code Ann. §§ 41-3-609(1)(f), (2). These criteria are the sole basis for termination in this case, and Father has not challenged any of them as an independent issue on appeal. (See Appellant’s Br. at 1 (whether district court erroneously terminated Father’s parental right because the Department did not comply with its duty to make “reasonable efforts”), 33-34, 36 (district court
“unconstitutionally” terminated Father’s rights, ignoring the Department’s failure to make reasonable efforts).) Thus, there is no argument on appeal that the district court abused its discretion in terminating Father’s rights pursuant to the required
30 statutory criteria of §§ 41-3-609(1)(f), (2). Based on that alone, this Court should affirm.
C. The district court did not “unconstitutionally terminate” Father’s parental rights based on “reasonable efforts,” as Father claims for the first time on appeal.
Father argues that the termination of his rights was “unconstitutional” due to the alleged lack or insufficiency of “reasonable efforts” provided by the
Department. This argument is unpreserved and without merit.
First and foremost, Father himself conceded that the Department provided reasonable efforts when he argued that the district court should order long-term custody under Mont. Code Ann. § 41-3-445(8)(e)(v)(B) (“the department has made reasonable efforts to reunite the parent and child”). Father elicited testimony from
Bruchez that—as a matter of fact—the Department had provided reasonable efforts, and then argued to the district court that long-term custody under the statute was an appropriate option based on that fact. (9/13/19 Tr at 131-33; A.S.
Doc. 132 at 2-4.) Father cannot argue certain facts to the district court for his own benefit or advantage—i.e., the Department provided reasonable efforts as a condition required for a long-term placement as an alternative to termination—and then argue to this Court contradictory facts and claims—i.e., that “reasonable efforts” were not made, rendering termination somehow unconstitutional. This
Court generally will not address either an issue raised for the first time on appeal or
31 a party’s change in legal theory. In re T.C., 2008 MT 335, ¶ 20, 346 Mont. 200,
194 P.3d 653 (parent did not object or in any way indicate to the district court that any irregularities existed in the proceedings and did not raise the issues at termination).
Second, “reasonable efforts” is not a separately appealable issue, as Father’s brief seems to state. “Reasonable efforts” is not an independent consideration for determining whether to terminate parental rights. See D.B., ¶¶ 25-27 (reasonable efforts does not replace the statutory criteria for termination and is “the wrong statutory standard” for termination); M.V.R., ¶ 41 (termination does not require a specific finding of reasonable efforts); R.J.F., ¶ 26 (reasonable efforts is not a separate requirement for termination); C.M., ¶ 22 (same); R.L., ¶ 26 n.5 (same);
C.M.G., ¶13 n.3 (reasonable efforts is not a required finding for termination and is not appealable on its own). This Court should reject Father’s issues and arguments asserting an independent claim for reversal on appeal based on “reasonable efforts.”
Third, Father’s argument on appeal does not link the alleged lack of
“reasonable efforts” as a “predicate” for the required finding that Father’s conduct or condition was unlikely to change. Father argues on appeal that failure of
“reasonable efforts” equals an erroneous finding that his condition or conduct was unlikely to change—without any authority or developed argument. (See
32 Appellant’s Br. at 36, 40, 43.) See State v. Longfellow, 2008 MT 343, ¶ 18,
346 Mont. 286, 194 P.3d 694. That proposition, anyway, is inconsistent with this
Court’s holdings. A lack of reasonable efforts may be a “predicate” for finding that the conduct or condition of a parent is unlikely to change within a reasonable time—that is, a parent may “call into question” the unlikelihood of change based on a failure to make reasonable efforts. R.L., ¶ 26 n.5; C.M., ¶ 22. But this Court has not held that a lack or insufficiency of reasonable efforts, sine qua non, requires a finding that parents’ condition or conduct would, therefore, be likely to change. C.M., ¶ 22 (in some cases, a parent’s unlikelihood of change may well be unaffected by the Department’s efforts).
Finally, this Court will not consider theories or issues raised for the first time on appeal. In re A.N.W., 2006 MT 42, ¶ 41, 331 Mont. 208, 130 P.3d 619. “In order to preserve a claim or objection for appeal, an appellant must first raise that specific claim or objection in the district court.” In re T.E., 2002 MT 195, ¶ 20,
311 Mont. 148, 54 P.3d 38. Broad, general objections do not suffice; the objecting party has an obligation to the district court to clearly articulate the grounds for the objection so the court may correct itself. In re G.S., 2002 MT 245, ¶ 48, 312 Mont.
108, 59 P.3d 1063.
This Court has repeatedly stated that it “will not fault a district court for failing to address statutory deficiencies that are not brought to its attention during
33 the proceedings because doing so would encourage litigants to withhold objections rather than raise the issues appropriately in the district court.” In re A.S., 2006 MT
281, ¶ 35, 334 Mont. 280, 146 P.3d 778 (quoting In re A.N.W., ¶ 41 (citing T.E.,
¶ 23)). Requiring litigants to object to asserted statutory violations in the district court not only preserves issues for appeal, but also serves the greater purposes of preserving the integrity of district court proceedings and discouraging prolonged litigation in child cases. A.T., ¶ 19 (citing T.E., ¶ 23). “A district court cannot correct statutory deficiencies if those concerns are not brought to its attention during the course of the proceeding, and for that reason, we have held that a district court will not be faulted for failing to address such issues.” T.E., ¶ 23 (citations omitted). Applying a different standard in child cases “would encourage litigants to withhold objections in the district court”—resulting in protracted litigation, in
“[direct] conflict with the primary consideration which the law gives to the child’s best interest, and the requirement that child cases be expedited, so that cases can be resolved, and children can be provided permanent, caring home environments as soon as possible.” Id.
To avoid these consequences, therefore, before Father can “call into question” the district court’s conclusion that his condition or conduct is unlikely to change based on the potentially relevant or “predicate” record of reasonable efforts, common sense and established appellate jurisprudence dictate that the
34 district court should have been informed of that “question,” and been given the opportunity to address it and, if necessary, remedy any error. Father did not raise any lack or insufficiency of reasonable efforts at the termination hearing—rather, he conceded as much when he elicited testimony from the Department that reasonable efforts had been made and argued for an alternative to termination based on that fact.
This Court should not now, for the first time on appeal, fault the district court for failing to address statutory deficiencies not brought to its attention during the termination proceedings. If parents want to “call into question” the condition or conduct criteria based on reasonable efforts, they need to raise those issues in the district court, or waive them on appeal.
II. The district court properly allowed the GAL to cross-examine witnesses.
A. Standard of review
The latitude of cross-examination is in the discretion of the trial court, and this Court will not interfere unless it is manifest that the trial court abused its discretion. In re B.B., 2001 MT 285, ¶¶ 19, 35, 307 Mont. 379, 37 P.3d 715.
35 B. The fundamental rights of children must be asserted by someone.
The rights of children include “all the fundamental rights of . . . Article [II] unless specifically precluded by laws which enhance the protection of such persons.” Mont. Const. art. II, §15; In re S.L.M., 287 Mont. 23, 34, 951 P.2d 1365,
1372 (1997). Minors “enjoy all the fundamental rights of an adult under Article II.”
S.L.M., 287 Mont. at 35, 951 P.2d at 1373.
In abuse and neglect cases, Montana’s declared policy recognizes “that a child is entitled to assert the child’s constitutional rights.” Mont. Code Ann.
§ 41-3-101(1)(d). Children named as youth in need of care are parties whose legal interests are directly at stake in the proceedings. In re J.B., 2015 MT 342, ¶ 17, 381
Mont. 525, 362 P.3d 859; In re K.H., 2012 MT 175, ¶ 25, 366 Mont. 18, 285 P.3d
474. Thus, children are entitled to enforce and assert their legal and constitutional rights, but they need someone to do it for them.
Children in every abuse and neglect case and termination hearing must have a GAL appointed: either a “court-appointed special advocate” (CASA), or, when unavailable, an attorney or other “qualified person”—provided they are trained to serve as “a child’s court-appointed representative.” Mont. Code Ann. §§ 41-3-
112(1)-(2), -607(4). These provisions comply with federal law requiring that a
GAL “shall be appointed to represent the child.” 42 U.S.C. § 5106a(b)(2)(B)(xiii)
36 (2020) (emphasis added); see In re A.W., 1999 MT 42, ¶ 11, 293 Mont. 358, 975
P.2d 1250.
Due to their party status—not to mention their fundamental rights—youth in need of care, at least nominally, have the right to counsel. Mont. Code Ann.
§§ 41-3-422(11), -425(1). But this “right” is not guaranteed. See Mont. Code Ann.
§ 41-3-425(3) (court “may” order appointment of counsel “when a [GAL] has been appointed”). This Court has agreed: children in these cases “may be entitled to court-appointed legal representation.” K.H., ¶ 25. The only time the district court is required by law to order the appointment of counsel for children is when a GAL is
“not appointed.” Mont. Code Ann. § 41-3-425(2)(b) (emphasis added). Therefore, under the statutes as currently written, appointment of child’s counsel is always discretionary and is never required because a GAL is never “not appointed”—the law requires appointment of a GAL in every abuse and neglect proceeding.
Thus, in abuse and neglect proceedings, all children and their best interests must be represented, and their rights enforced and asserted, by one or more people—a GAL at a minimum, and maybe an attorney too. In this case, the district court appointed Snodgrass to “serve as [GAL] to represent” the Children and to be an agent of the court. (A.S. Doc. 3 at 1-3.) Snodgrass was not a “court-appointed special advocate” or “other qualified person” under the statute, he was an attorney.
The court did not appoint other counsel for the Children—Snodgrass was the sole
37 appointed representative of the Children, their best interests in this case, and their fundamental rights.
C. Allowing the GAL to cross-examine witnesses was appropriate.
As recited supra at 33-34, this Court will not consider an issue presented for the first time on appeal. See, e.g., T.E., ¶ 20. A party must specify in the trial court what authority, rule, statute, or constitutional provision might be violated by a decision contrary to the party’s position, and failure to do so fails to preserve that issue for appeal. G.S., ¶ 48. The Court will not fault a district court for failing to address legal deficiencies that are not brought to its attention during the proceedings because doing so would encourage litigants to withhold objections rather than raise the issues appropriately in the district court. T.E., ¶ 23.
In this case, Father did not object to Snodgrass’ actions or involvement in the case or the performance of his duties as GAL. Father asserts for the first time on appeal that the district court erred by allowing Snodgrass to “aggressively” cross-examine witnesses, relying on In re J.D., 2019 MT 63, 395 Mont. 141, 437
P.3d 131. (See Appellant’s Br. at 19-25, 43-48.) Father did not object at any time during these proceedings either that the GAL had no authority to cross-examine witnesses or that the GAL went beyond the scope of his authority to cross-examine witnesses. Father did not object to a single question asked by Snodgrass. The fact that Father refused to answer the GAL’s question about whether he had relapsed
38 into using meth does not constitute an “objection.” Father was simply “claiming the 5th”; counsel advised him not to answer, the court did not order him to answer, he did not answer, and the GAL continued cross-examination without objection.
(1/3/19 Tr. at 77-80.)
This Court should decline to consider Father’s unpreserved objections to
Snodgrass’s cross-examination—“irregularities” which the district court was not first given the opportunity to consider and remedy itself. See, e.g., A.N.W., ¶ 41
(parent never objected or even indicated to the court that there were any irregularities in the proceedings).
In any event, J.D. ruled only on the conduct of a “CASA” as a distinct type of GAL, see J.D., ¶¶ 43 n.1, 44-48, and concluded the district court’s error in allowing the CASA to cross-examine witnesses was due to the fact that J.D. had been appointed other counsel and was adequately represented. J.D., ¶¶ 53, 58.
Neither of those facts—that the GAL was a CASA or that the child was adequately represented by counsel—are present here. Snodgrass is not a CASA, but an attorney appointed as GAL. The district court did not appoint counsel for the
Children. Therefore, Snodgrass was the only person appointed to represent the
Children and their best interests under state and federal statutes. The limitations this Court imposed in J.D. on a CASA’s authority to cross-examine witnesses, when the child was also represented by counsel, do not apply here, where the
39 district court has appointed a non-CASA GAL who is an attorney, but has not appointed other counsel for the Children.
Should this Court consider Father’s unpreserved claims, it should still affirm. Because the appointed GAL here is the Children’s sole representative, he is an attorney, and no other attorney has been appointed for the Children, the district court did not abuse its discretion by allowing him to cross-examine witnesses pursuant to his duties as GAL. Logically, cross-examination of witnesses on behalf of a child—especially if otherwise unrepresented—is encompassed within a GAL’s statutory duties to: “ascertain the facts,” “appear and participate in all proceedings to the degree necessary to adequately represent the child,” and “otherwise assert the child’s rights.” Mont. Code Ann. §§ 41-3-112(3)(a), (e), (g). GALs, and even
CASAs, who are attorneys may file motions and otherwise assert a child’s rights.
J.D., ¶ 47; see In re B.B., 2001 MT 285, ¶¶ 1, 5, 36-43, 307 Mont. 379, 37 P.3d
715 (attorney-GAL appealed from judgment dismissing termination and denial of
GAL’s motion to set aside judgment). They may also conduct limited questioning of witnesses to assist in performing their statutory functions as agents of the court, in the best interests of the children. J.D., ¶ 52. This authority, in sum, supports the district court’s discretion to allow Snodgrass to question witnesses as a GAL—and especially when he was the only appointed representative of the Children and their best interests.
40 Beyond the words of the statutes, however, allowing the cross-examination of witnesses by GALs, especially when a child’s counsel has not been appointed, is necessary, not only for “the integrity of the fact finding process,” Bean v. Mont.
Bd. of Labor Appeals, 1998 MT 222, ¶ 35, 290 Mont. 496, 965 P.2d 256, but also to protect and assert the recognized rights of children who are parties to these cases—parties who are not guaranteed an attorney (unlike their adult counterparts), but will always have GAL. “Cross-examination is the hallmark of our system of justice because it produces truth.” State v. Clark, 1998 MT 221, ¶ 23, 290 Mont.
479, 964 P.2d 766. Cross-examination is the “greatest legal engine ever invented for the discovery of truth.” Maryland v. Craig, 497 U.S. 836, 846 (1990).
Cross-examination is a fundamental right of parties in any litigation— including the Children here. In addition to constitutional due process protections,
Mont. R. Evid. 611(e) provides for the appearance of witnesses “in the presence and subject to the examination of all the parties to the action.” Bean, ¶ 34. Thus, the right of confrontation, long provided for in criminal cases, is also required in civil cases under Rule 611(e). Bean, ¶ 34 (citing Bonamarte v. Bonamarte,
263 Mont. 170, 174, 866 P.2d 1132, 1134 (1994)).
Youth in need of care have just as much right to vigorously seek the truth and assert their rights through cross-examination as any other party—even if they are represented only by a GAL. The question should not be whether the GAL was
41 authorized to cross-examine the witnesses—the question is what rights of the
Children will be left unasserted if their one and only court-appointed representative, the GAL, is prevented from doing its job on their behalf.
CONCLUSION
This Court should affirm the termination of Father’s parental rights.
Respectfully submitted this 30th day of March, 2020.
TIMOTHY C. FOX Montana Attorney General 215 North Sanders P.O. Box 201401 Helena, MT 59620-1401
By: /s/ Jonathan M. Krauss JONATHAN M. KRAUSS Assistant Attorney General
CERTIFICATE OF COMPLIANCE
Pursuant to Rule 11 of the Montana Rules of Appellate Procedure, I certify that this principal brief is printed with a proportionately spaced Times New Roman text typeface of 14 points; is double-spaced except for footnotes and for quoted and indented material; and the word count calculated by Microsoft Word for Windows is 9,927 words, excluding cover page, table of contents, table of authorities, certificate of service, certificate of compliance, and appendices.
/s/ Jonathan M. Krauss JONATHAN M. KRAUSS
42 CERTIFICATE OF SERVICE
I, Jonathan Mark Krauss, hereby certify that I have served true and accurate copies of the foregoing Brief - Appellee's Response to the following on 03-30-2020:
Chad M. Wright (Attorney) P.O. Box 200147 Helena MT 59620-0147 Representing: R. R. S. Service Method: eService
Kathryn Fey Schulz (Prosecutor) 215 North Sanders P.O. Box 201401 Helena MT 59620-1401 Representing: State of Montana Service Method: eService
Kent M. Sipe (Prosecutor) 801 W. Broadway Lewistown MT 59457 Representing: State of Montana Service Method: eService
Timothy Charles Fox (Prosecutor) Montana Attorney General 215 North Sanders PO Box 201401 Helena MT 59620 Representing: State of Montana Service Method: eService
Dana A. Henkel (Attorney) 1923 S. Higgins Ave Missoula MT 59807 Representing: R. R. S. Service Method: eService
Electronically signed by Janet Sanderson on behalf of Jonathan Mark Krauss Dated: 03-30-2020