DA 19 - 0570



### IN THE SUPREME COURT OF THE STATE OF MONTANA 20 20 MT 143N IN THE MATTER OF T.N.B., A.M.B., and S.M.B., Youths in Need of Care.
APPEAL FROM: District Court of the Thirteenth Judicial District,

In and For the County

of Yellowstone, Cause Nos. DN 18 - 90, DN 18 - 91, and DN 18 - 92 Honorable Mary

Jane Knisely, Presiding Judge COUNSEL OF RECORD:

For Appellant: Michael P. Sinks, Attorney at Law, Boz eman, Montana For Appellee : Timothy C. Fox, Montana Attorney General, Tammy

K Plubell, Kat ie F. Schulz, Assistant Attorneys General, Helena, Montana Scott D. Twito, Yellowstone County A ttorney, Amanda Tiernan, Deputy County A ttorney, Billings, Montana

Submitted on Briefs: May 6, 2020 Decided: June 2, 2020 Filed:

__________________________________________ Clerk 

# cir-641.—if 06/02/20202

Justice Dirk Sandefur delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, we decide this case by memorandum opinion. It shall not be cited and does not serve as precedent. The case title, cause number, and disposition shall be included in our quarterly list of noncitable cases published in the Pacific Rep orter and Montana Reports. ¶2 K.T. (Mother) appeals the judgments of the Montana Thirteenth Judicial District Court terminating her parental rights to the above - referenced minor children . We affirm. ¶3 Mother and N.B. (Father) were the birth parents of the minor children S.M.B., A.M.B., and T . N .B. The Montana Department of Public Health and Human Service s (Department) most recently became involved with the family on March 8, 2018, when emergency responders responded to the family home on Mother’s 911 report that eighteen - month - old A.M.B. was unresponsive. 1 After helicopter transport from Laurel, MT, A.M.B. was diagnosed at St. Vincent’s Hospital in Billings as suffering from a life - threatening head injury/brain bleed. Attending medical personnel also observed a recent humerus/arm fracture and stomach bruising. After stabilization , A.M.B. underwent an emergency surgery for removal of a skull bone segment to relieve pressure on his brain. He was subsequently flown to the Primary Children’s Hospital in Salt Lake City and admitted in critical condition on a ventilator and breathing tube.

1 The Department was previously invo lved with the family when, inter alia , the two older children (S.M.B. and A.M.B.) were adjudicated as yo uths in need of c are based on the parents’ methamphetamine use. The Department’s invo lvement ult imately ended in that case upon the parents’ respect ive co mp let io ns of reunificat io n- oriented treatment plans.3

¶4 After the incident, Father stated to investigators that, upon arriving home from work at approximately 5:30 p.m., he encountered Mother with the non- responsive A.M.B. in her arms , frantically screaming he “just went limp.” Father said that he immediately directed Mother to call 911 as he attempted CPR while they waited for emergency responders. Mother recounted after the incident that, upon temporarily leaving A.M.B. in his playpen to step outside to smoke , she heard crying and returned to find two - and- a - half - year- old S.M.B. in the playpen, kicking and hitting A.M.B. with a toy. S he s aid that she immediately picked up A.M.B. and found it strange that he immediately fell “ asleep ” in her arms. She said that , at the time, she was talking to Father , who had called on his way home from work, and told him that S.M.B. had been kicking and hitting A.M.B. She said that A.M.B. “just went limp and stopped breathing” as F ather arrived home. M other’s account was inconsistent with Father’s initial statement that he heard eight- month - old T. N .B. and S .M.B. playing in the background while on the phone with Mother on the way home. ¶5 The collective record statements of the attending St. Vincent’s physician , Primary Children’s Hospital physician , and the Department’s subsequently retained physician/child abuse expert indicated that A.M.B. suffered a subdural brain hematoma of such severity that the resulting internal bleeding and swelling compressed his brain to one side in his skull , causing herniation of his temporal lobe , inter alia . Examination further revealed a torn cortical vein from A.M.B.’s brain, an impact bruise on the side of his face/forehead, a humerus/arm fracture, and a shaped bruise with scattered bruising on a leg . The4

Department’s retained physician/child abuse expert testified that A.M.B.’s injuries were consistent with child abuse and inconsistent with Mother’s account of hitting and kickin g by a two - and- a - half

- year- old sibling . He testified that , under the circumstances, only a severe blunt- force impact administered by an adult was likely to have caused A.M.B.’s head trauma. Mother was the only adult with access to A.M.B. at the time of the injury. ¶6 After taking T.N .B. and S.M.B. into protective custody, the Department petitioned pursuant to Title 41, ch. 3, MCA, for emergency protective custody of all three children , youth in need of care adjudications , and temporary legal custody based on alle ge d physical abuse of A.M.B. and physical neglect of all three. 2 Upon appearance with their respective counsel at the initial show cause hearing on March 26, 2018 , the parents stipulated to probable cause and continued emergency protective custody. At the combined adjudicatory and dispositional hearing on May 21, 2018, the parents again appeared with respective counsel and, based on the uncontested petition allegations, stipulated to adjudication of the children as youths in need of care , with six - month grant s of temporary legal custody to the Department . ¶7 On June 1, 2018, based on the allegation that Mother “committed aggravated assault against [A .M.B.] ,” the Department petitioned for a determination pursuant to § 41 - 3 -

2 In addit io n to describing the alleged ci rcumstances of

A .M.B.’s injuries, the peti tion further alleged that the family

home was in an unke m

pt and unsanitary

state and that all th

ree children were fo und in fil

thy, unkempt condi

tions marked by di

rty hair, hands, feet, clothes, and smelling of urine wi th d iaper rashes, inter alia . The peti tion further outlined the parents’ extensive prior child abuse and neglect history wi th the Department and i

ts Oregon counterpart.5

423(2), MCA, that it had no further duty to make family preservation efforts regarding Mother and the children . O n August 24, 2018, while she was apparently in Oregon , the State of Montana charged Mother with the aggravated assault of A.M.B , a felony in violation of § 45 - 5 - 202 , MCA. Subj ect to a pending arrest warrant in the criminal case, and apparently still in Oregon , Mother failed to personally appear or otherwise participate at the December 6 - 7, 2018, hearing on the Department’s no -preservation - efforts petition . At the hearing, the Department presented testimony and evidence from the investigating sheriff’s detective , the assigned Department social worker, Father, and its retained physician/child abuse expert . The District Court subsequently issued an oral bench judgment , followed by written findings, conclusions, and judgment , determining pursuant to § 41 - 3 - 423(2), MCA, that Mother subjected A.M.B. to aggravated assault on March 8, 2018, and that the Department thus had no further duty to make family preservation efforts . ¶8 On March 27, 2019, the Department p etitioned for termination of Mother’s parental rights to all three children pursuant to § § 41 - 3 - 609(1)(d) and - 423(2) , MCA. At the termination hearing on August 12, 2019 , Mother appeared with counsel but did not testify . 3 The District Court subsequently issued written findings of fact, conclusions of law, and judgment terminating Mother’s parental rights pursuant to §§ 41 - 3 - 609(1)(d)

3 Counsel advised that Mother declined to testify b ased on the conti

nued pretrial

pendency

of her parallel - pending criminal case and her constitutional right against self - incriminat io n .6

and - 423(2)(a), (c), MCA , based on the aggravated assault of A.M.B. and chronic severe neglect of all three. 4 Mother timely appeals. ¶9 Mother asserts on appeal that she received ineffective assistance of counsel at the December 6 - 7, 2019, hearing on the Department’s no -preservation - efforts petition. S he asserts the counsel w as constitutionally ineffective based on his failure to : actively pursue her interests, make appropriate objections, vigorously cross - examine witnesses, or make [an] extended closing argument. Rather, he engaged in what can best be described as cursory cross - examination of the Department’s witnesses, asking few (if any) questions, and asked only a single arguably helpful question regarding the ancillary issue of [her] alleged intoxication. ( Internal alteration s and quotation marks omitted.) In that regard, she points out that counsel did not “thorough[ly] and vigorous[ly]” cross - examine the Department’s physician/child abuse expert by asking “how many brain bleed injuries involving 18 month old [] [children ] he had dealt with” or whether “it was possible that repeated kicking in the side of the head with the heel of a two - year[ - ] old ’ s foot could cause deflection in the

‘ plastic skull ’ of an 18 month old.” She further asserts that , “in order to more effectively administer cross [ - ] examination,” counsel “could have” objected to the expert’s telephone testimony in lieu of in - court or two - way video testimony . She asserts that counsel was

4 Presumably

draf ted by the Department, th

rough the County

Attorney, the court’s wri

tten findings, concl usions , and judgment are not the m odel of clari ty inso far that the y d id not specify on which particular § 41 - 3 - 423(2) predicates the co urt based the - 609(1)(d) terminat io n s and then further conflate d the - 609(1)(d) terminat io n cri teria (aggravated ci

rcumstances) with the dist inct termination criteria under - 609(1)(f)(ii) ( i. e . , treatment plan failure/condit io n of unfit ness unlikely to change wi

thin reasonable time). We nonetheless liberally construe the court’s judgment in accordance with the underlying terminat io n petit io n, hearing evidence, and applicable law.7

further ineffective by failing to challenge the testimony of other Department witness es in various regards. S he as serts that counsel’s allegedly deficient performance was highly prejudicial based on the fact that the no -preservation - efforts determination was the “most crucial juncture of the case” and that counsel ’s performance “effectively presented . . . a one - sided view of the evidence from which the court could draw but one conclusion.” We disagree. ¶10 Pursuant to the 14th Amendment to the United States Constitution and Article II, Section 17 of the Montana Constitution , parents h ave a fundamental right to effective assistance of counsel in termination proceedings under Title 41, ch. 3, MCA. See In re A.S. , 2004 MT 62, ¶

¶ 12 - 20, 320 Mont. 268, 87 P.3d. 408. In this context, the two -prong standard f

or ineffective assistance of counsel (IAC) claims is whether counsel’s performance was objectively deficient under the totality of the circumstances and, if so, whether the deficient performance materially prejudice d the parent’s fundamental liberty interest in parenting his or her child. See A.S. , ¶¶ 26 - 3 3 . In contrast to the less - demanding standard applicable in criminal cases, considerations relevant to whether counsel’s performance was deficient under the first prong include, inter alia , whether he or she was “verifiably competent” based on training and experience to handle such a matter and whether counsel adequately investigated the case, consulted with the client, researched applicable law, prepared for hearing (by interviewing adverse witnesses and discovering and considering other available evidence), made proper objections, cross - examined adverse witnesses, presented available favorable evidence, and advocated on behalf of the8

client based thereon . A.S. , ¶¶ 21 - 30. Under the second prong, a deficient performance materially prejudiced a parent’s fundamental right to parent only if it is reasonably probable under the totality of the circumstances that the outcome would have been different but for the deficient performance. See In re the Matter of J.E.L. , 2018 MT 50, ¶ 29, 390 Mont. 379, 414 P.3d 279. See also Ariegw e v. State , 2012 M T 166, ¶ 16; 365 Mont. 505, 285 P.3d 424; Heath v. State , 2009 MT 7, ¶ 17, 348 Mont. 361, 202 P.3d 118 . A parent asserting IAC has the burden of clearly demonstrating both prongs of the claim. See In re M.W. , 2001 MT 78, ¶ ¶ 36 - 41, 305 Mont. 80, 23 P.3d 206 . Our review of IAC claims is plenary. A.S. , ¶ 9. ¶11 Here, Mother’s IAC claim fails on both prongs. S he first raises no issue regarding counsel’s competence. A side from cursorily pointing out various omissions in his performance , she has failed to show that those omissions were objectively unreasonable or deficient under the circumstances of this case, particularly in light of her unexplained absence at the subj ect hearing . The significance of her unexplained absence to her subsequent IAC claim is further amplified by the glaring absence of any showing that she was otherwise availabl e and desired to consult with counsel in advance of hearing or that, if so, coun sel did not adequately or timely consult with her or attempt to do so . ¶12 B eyond cursory assertion, Mother has further made no showing that counsel did not adequately investigate the case, prepare for hearing, or investigate and consider the anticipated tes timony of Department witnesses. She has similarly failed to show that counsel failed to adequately discover, secure, or present any reasonably available9

impeachment or rebuttal testimony, expert or other, likely to materially counter or undermine the Department’s evidence. Cursory assertion of omissions in counsel’s performance is insufficient without more to demonstrate deficient performance , much less material prejudice. Even if we were to accept some of Mother’s assertions of deficient performance, sh e has in any event failed to demonstrate any reasonable likelihood that the outcome of the subject hearing would have been different but for those deficiencies. We hold that Mother has failed to demonstrate that she received ineffective assistance of coun sel regarding the hearing and the District Court’ s aggravated assault and no -preservation - efforts - required determinations under § 41 - 3 - 423(2)(c), MCA . ¶13 We decide this case by memorandum opinion pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules. It presents no constitutional issues, no issues of first impression, and does not establish new precedent or modify existing precedent. ¶14 Affirmed . /S/ DIRK M. SANDEFUR We concur: /S/ MIKE McGRATH /S/ BETH BAKER /S/ INGRID GUSTAFSON /S/ JIM RICE