DA 16-0765

IN THE SUPREME COURT OF THE STATE OF MONTANA

2017 MT 173N

IN THE MATTER OF:

K.A.P. and A.R.P.,

 Youths in Need of Care.

APPEAL FROM: District Court of the Eleventh Judicial District,

In and For the County of Flathead, Cause Nos. DN 15-097A and DN 15-099A

Honorable Amy Eddy, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Shannon Hathaway, Montana Legal Justice, PLLC, Missoula, Montana

For Appellee:

Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant 

Attorney General, Helena, Montana

Edward J. Corrigan, Flathead County Attorney, Anne Lawrence, Deputy

County Attorney, Kalispell, Montana

Submitted on Briefs: June 14, 2017

 Decided: July 11, 2017

Filed:

__________________________________________

Clerk

07/11/2017
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Justice Dirk M. Sandefur 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 M.P., the birth father of K.A.P. and A.R.P., appeals from the Montana Eleventh 

Judicial District Court’s order terminating his parental rights. M.P. asserts that the District 

Court’s refusal to grant a continuance on the eve of the termination hearing violated his 

right to due process and deprived him of the fundamental right to parent his children. 

¶3 At the time of the hearing, M.P. was incarcerated following his May 2016 arrest for 

assaulting the birth mother of K.A.P. and A.R.P. He was sentenced to the Montana State 

Prison (MSP) for three years on June 16, 2016. The Department of Public Health and 

Human Services (DPHHS) first notified M.P. of its intent to file a petition to terminate his

parental rights on July 22, 2016, but it did not actually file the petition until August 15, 

2016. M.P. was served on August 18, 2016. Upon DPHHS’s motion, the District Court 

continued the termination hearing to September 16, 2016. The day before the hearing, 

M.P.’s counsel filed a last-minute motion for a continuance on the asserted ground that she 

had not yet discussed the hearing with M.P. The motion explained that counsel was unable 

to reach him despite multiple attempts to contact him through the Department of 

Corrections staff at his DOC Boot Camp placement. 
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¶4 The District Court took up the motion at the beginning of the scheduled hearing. In 

response to questions from the District Court, M.P.’s attorney verified that she had not 

communicated with M.P. since his transfer from the county detention center to MSP. The 

Montana DPHHS child protection specialist assigned to administer the youth in need of 

care case testified at the hearing that she could not verify counsel’s claim that M.P. was

placed in the Boot Camp program. The record contains no explanation of why participation 

in Boot Camp would render M.P. unable to respond to counsel’s asserted contact attempts

or why counsel could not sooner have sought relief from the court upon reasonable 

diligence. 

¶5 The right to parent is a fundamental liberty interest protected by federal and 

Montana constitutional rights to due process. In re L.V.-B., 2014 MT 13, ¶ 15, 373 Mont. 

344, 317 P.3d 191 (citing U.S. Const. amend. XIV; Troxel v. Granville, 530 U.S. 57, 65, 

120 S. Ct. 2054, 2061 (2000)). In a proceeding to terminate parental rights, the State must 

provide the parent whose rights are at stake with reasonable notice and opportunity to be 

heard. L.V.-B., ¶ 15. We review a district court’s decision on whether to grant a 

continuance in an abuse and neglect action for an abuse of discretion. In re H.E., 2002 MT 

257, ¶ 25, 312 Mont. 182, 59 P.3d 29 (citing In re R.F., 2001 MT 199, ¶ 24, 306 Mont. 270, 

32 P.3d 1257). The court must “consider whether the movant has shown good cause and 

whether the continuance would be in the furtherance of justice.” H.E., ¶ 25 (citing R.F., 

¶ 24); accord § 25-4-503, MCA.

¶6 On appeal, M.P. does not fault the pre-hearing notice provided to him by the State 

in advance of the termination hearing, but asserts the District Court deprived him of due 
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process by declining to postpone the hearing. To justify the requested continuance, M.P. 

had to show good cause why he was unable to attend despite the sufficient advance notice

afforded. See § 25-4-503, MCA. Through counsel who asserted that she had no contact 

with him, M.P. premised his showing of good cause on two asserted facts: first, that he was 

actually participating in the Boot Camp program, and second, that he was completely 

incommunicado in that placement. Even if the District Court accepted counsel’s assertion

as sufficient proof of the first fact, nothing in the record supports the second. M.P. failed 

to show good cause for the requested continuance. The District Court did not abuse its 

discretion in denying M.P.’s last-minute motion to continue the termination hearing. We

affirm. 

¶7 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. 

/S/ DIRK M. SANDEFUR

We concur: 

/S/ MIKE McGRATH

/S/ MICHAEL E WHEAT

/S/ JAMES JEREMIAH SHEA

/S/ LAURIE McKINNON