In re B.J.J.
2019 MT 129
| Mont. | 2019Background
- Child (age 5) had been living with maternal grandmother; Mother was homeless and using drugs; Father was incarcerated in Nevada when the Department filed for emergency protective services (EPS), adjudication as a youth in need of care (YINC), and temporary legal custody (TLC).
- May 15, 2017 show-cause hearing: Father's counsel appeared, told the court Father had spoken to him and did not oppose relief; court adjudicated Child a YINC and granted Department TLC for six months, leaving the record open so Father could later move to amend after personal service; Father was personally served May 22, 2017.
- Father released from prison July 2017, had limited contact with CPS (CPS Weber) in Aug. and Oct. 2017, acknowledged receipt of a treatment plan but did not sign or substantially engage; CPS verified probation compliance once in Oct. 2017 then lost regular contact with Father when his phone ceased answering.
- District Court approved the Department’s proposed treatment plan for Father in February 2018; Father made minimal to no progress on plan tasks and had minimal contact with Child or CPS thereafter.
- Department moved to terminate parental rights in Oct. 2018; Father was served while incarcerated, appeared telephonically partway through the Dec. 3, 2018 termination hearing, declined to testify, and asked for extension of TLC instead of termination.
- The District Court found Father failed to complete the treatment plan, his condition rendering him unfit was unlikely to change within a reasonable time, and it terminated his parental rights; Father appealed.
Issues
| Issue | Father’s Argument | Department’s Argument | Held |
|---|---|---|---|
| Notice & opportunity to be heard (adjudication before service) | Father contends he lacked due process because adjudication/TLC occurred before personal service | Father had counsel at hearing, counsel said Father did not oppose relief, court left record open after service and Father made no further objections | No due process violation; Father had opportunity and did not move to amend after service |
| Ineffective assistance of counsel | Father alleges counsel conflicted by representing multiple fathers and failed to object, secure telephonic appearances, or advocate | Counsel’s performance appropriate given no demonstrated conflict and Father’s lack of contact; counsel sent plan and attempted contact | No IAC; Father failed to show prejudice or actual conflict |
| Reasonable efforts to reunify | Department failed to verify Father’s incarceration reasons, follow up with probation, assess Father’s home, or provide services/referrals | Department made reasonable efforts: provided plan, contacted probation, repeatedly attempted contact, and could not assist when Father disengaged | Department met reasonable-efforts obligation; Father’s own nonengagement prevented reunification efforts |
| Appropriateness of treatment plan | Father (for first time on appeal) says plan was overbroad given alleged conduct | Department and court: plan addressed mental health, chemical dependency, housing, parenting and visitation—tasks Father accepted or failed to contest | Plain-error review denied; Father waived challenge by stipulating and failing to object or engage; plan upheld |
Key Cases Cited
- Santosky v. Kramer, 455 U.S. 745 (1982) (constitutional standard: termination requires at least clear and convincing evidence)
- In re K.A., 2016 MT 27, 382 Mont. 165, 365 P.3d 478 (Mont. 2016) (termination reviewed for abuse of discretion)
- In re A.N.W., 2006 MT 42, 331 Mont. 208, 130 P.3d 619 (Mont. 2006) (appellate review does not substitute court’s judgment for factfinder’s credibility/evidence assessments)
- In re D.B., 2007 MT 246, 339 Mont. 240, 168 P.3d 691 (Mont. 2007) (Department must make reasonable efforts and assist parent in completing treatment plan)
- In re R.J.F., 2019 MT 113, 395 Mont. 454, 443 P.3d 387 (Mont. 2019) (parent must engage with Department; failure to do so undermines claims of insufficient efforts)