In re E.Y.R., 2019 MT 189

Background

Child removed from mother's custody (Nov 2016) for mother's domestic-violence exposure and instability; no allegations against Father. Father lived in California and sought custody after learning of removal.
Father appeared by phone in Montana proceedings and was represented initially by appointed counsel (Marvin/Travis). Counsel stipulated to adjudication but did not secure placement with Father or press for a placement hearing.
The Department placed Child with maternal grandmother. The Department asserted an ICPC or a treatment plan was needed before placement with out‑of‑state Father; California later indicated no ICPC had been requested.
Father was asked to complete a treatment plan (despite being a non‑offending parent and having completed a prior 52‑week domestic‑violence program). Father signed the plan after counsel did not effectively contest it.
Mother's parental rights were later terminated and the Department sought adoption by maternal grandparents. In Nov. 2018 the District Court terminated Father’s parental rights, finding failure to complete the treatment plan and risk of future harm.
Montana Supreme Court reversed: held Father received ineffective assistance of counsel, was prejudiced, and remanded for the Department to investigate Father as the first placement option consistent with statutory and policy requirements.

Issues

Issue	Father’s Argument	Department’s Argument	Held
1. Was counsel ineffective in failing to advocate placement with Father / non‑custodial parent priority?	Counsel failed to press Department policy and §40‑6‑221 rights; should have demanded placement or placement hearing.	Department says it had reasons to evaluate Father and needed a treatment plan; outcome wouldn’t differ.	Yes — counsel failed to advocate; Department must first consider non‑custodial parent and document good cause to the contrary.
2. Was an ICPC required before placement with out‑of‑state non‑custodial parent?	No; exceptions (ICPC Reg. No.3) and preliminary inquiry can permit placement without full ICPC. Counsel should have raised this.	Department maintained ICPC/process required and treatment plan was necessary.	Court: ICPC not automatically required; preliminary checks often suffice and counsel should have invoked exceptions.
3. Did Father’s stipulation/adoption of a treatment plan waive his ability to contest allegations?	Father signed under misinformed circumstances and without effective advocacy; signing did not fairly waive rights.	Department contends Father’s agreement and non‑completion justified termination.	Court: waiver ineffective because counsel’s deficient performance induced agreement and Department lacked prior evidence justifying treatment plan.
4. Was Father prejudiced (i.e., would outcome differ)?	Prejudice shown: lack of investigation, missed placement, delay, and eventual termination; reversal required.	Department: Father’s wishes were known; termination supported by evidence.	Yes — prejudice established; reversal and remand to rewind to adjudication and require Department’s preliminary assessment of Father.

Key Cases Cited

In re J.B., 278 Mont. 160, 923 P.2d 1096 (Mont. 1996) (when one parent is adjudicated unfit, the other parent is presumptively entitled to custody unless the State proves the noncustodial parent is unfit)
In re S.S., 2012 MT 78, 364 Mont. 437, 276 P.3d 883 (Mont. 2012) (Department must consider placing children with noncustodial parent; disposition under §41‑3‑438(3)(d) may dismiss State’s involvement if placement removes YINC concerns)
In re A.S., 2004 MT 62, 320 Mont. 268, 87 P.3d 408 (Mont. 2004) (parents have a due‑process right to effective assistance of counsel in termination proceedings; effectiveness judged by investigation, legal research, client contact, and advocacy)
In re B.M., 2010 MT 114, 356 Mont. 327, 233 P.3d 338 (Mont. 2010) (establishes prejudice requirement for ineffective‑assistance claims in parental‑rights context)
In re R.J.F., 2019 MT 113, 395 Mont. 454, 443 P.3d 387 (Mont. 2019) (recognizes the difficult balance between child permanency and parental liberty interests in dependency cases)
In re D.B., 2007 MT 246, 339 Mont. 240, 168 P.3d 691 (Mont. 2007) (parental right to care and custody is a fundamental liberty interest requiring strict adherence to statutory termination requirements)
In re M.G.M., 201 Mont. 400, 654 P.2d 994 (Mont. 1982) (finding of abuse/neglect is jurisdictional prerequisite for State‑ordered transfer of custody)