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DA 23-0414

IN THE SUPREME COURT OF THE STATE OF MONTANA

2024 MT 22N

IN THE MATTER OF:

T.K.B. and N.Z.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 21-150

and DN 20-219

Honorable Michael G. Moses, Presiding Judge

COUNSEL OF RECORD:

For Appellant M. B. (Mother):

Laura Reed, Attorney at Law, Missoula, Montana

For Appellant H. E. (Father): 

Shannon Hathaway, Hathaway Law Group, Missoula, Montana

For Appellee:

Austin Knudsen, Montana Attorney General,, Bjorn Boyer, Assistant 

Attorneys General, Helena, Montana

Scott Twito, Yellowstone County Attorney, Laura Watson, Deputy County 

Attorney, Billings, Montana

Submitted on Briefs: January 17, 2024

 Decided: February 6, 2024

Filed:

__________________________________________

Clerk

02/06/2024
2

Justice James Jeremiah Shea 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, 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.B. (Mother) appeals from the Thirteenth Judicial District Court orders 

terminating her parental rights to T.K.B. and N.Z.B. H.E. (Father) appeals the order 

terminating his parental rights to T.K.B.1 We affirm.

¶3 After nearly three years of reports regarding possible physical neglect, drug use and 

violence in the presence of the children, and failure to accommodate the medical needs of 

a child born prematurely, the Department of Public Health and Human Services, Child and 

Family Services Division (the Department) removed N.Z.B. from Mother’s care on 

August 17, 2020. The removal came shortly after N.Z.B.’s infant half sibling, R.E., died

suddenly while in Mother’s care on August 10, 2020. 

¶4 On August 24, 2020, in response to reports that N.Z.B. was in danger of abuse or 

neglect after the death of R.E., the Department petitioned for Emergency Protective 

Services (EPS), Adjudication as a Youth in Need of Care (YINC) and Temporary Legal 

Custody (TLC) of N.Z.B. The District Court granted the Petition the following day. On 

November 4, 2020, N.Z.B. was adjudicated a YINC by stipulation. A treatment plan for 

Mother was approved by the District Court on December 21, 2020.

1 Father is T.K.B.’s parent only. N.Z.B.’s biological father relinquished his parental rights and is 

not a party to this appeal.
3

¶5 While the proceedings involving N.Z.B. were pending, T.K.B. was born. The 

Department’s involvement with T.K.B. began immediately after the child’s birth, when 

hospital staff expressed concerns regarding Mother’s ability to adequately care for the 

child’s particular medical needs. The Department placed T.K.B. into emergency protective 

custody on May 18, 2021, but allowed the child to remain with Mother pursuant to a 

protection plan regarding T.K.B. signed by Mother the same day. While the proceedings 

involving T.K.B. were ongoing, the Department attempted to include Father, who refused 

to engage with the Department until October of 2021, when a paternity test confirmed that 

he was T.K.B.’s biological father. 

¶6 Mother showed signs of progress toward completing her treatment plan until

August 16, 2021, when she was involved in a public altercation with the mother of one of 

Father’s other children. Both T.K.B. and N.Z.B. were present at this altercation, as was 

Father’s other child. Several days later, Mother was arrested and charged with assault and 

assault on a minor; Father’s other child and the child’s mother were named as the victims.2 

Before Mother was arrested, she had returned N.Z.B. to his placement and left T.K.B. with 

a friend. Upon Mother’s arrest, the Department attempted to locate T.K.B., but was unable 

to do so for more than two days. Shelby Goodman, a Child Protection Specialist Supervisor 

at the Department, testified that the Department’s efforts to find T.K.B. involved seeking 

the assistance of law enforcement, and that law enforcement was about to issue an Amber 

alert when T.K.B. was found on the doorstep of Mother’s residence. 

2 Mother pled guilty to these charges, as well as a previous, unrelated assault.
4

¶7 As a result of Mother’s arrest and the difficulties locating T.K.B., the Department 

removed T.K.B. from Mother’s care. The Department was unable to place T.K.B. with 

Father because Father was not on T.K.B.’s birth certificate and refused to engage with the 

Department without DNA confirmation of paternity, and due to the Department’s concerns 

regarding Father’s history of domestic violence.

¶8 After T.K.B.’s removal, the relationship between the Department and both parents

deteriorated and the Department’s concerns regarding both parents’ anger issues 

intensified. Due to safety concerns, the Department began sending two workers to 

Mother’s home to investigate Mother’s compliance with the Department’s conditions for 

allowing the children back into her home. CPSS Goodman testified that the primary 

concern, however, was Mother’s association with unsafe people, especially Father, who 

was the subject of a no contact order due to his violence against Mother.

¶9 Upon receiving news of paternity confirmation in October of 2021, Father insisted 

that T.K.B. should be placed in his care. Father and his grandmother both yelled at and 

threatened CPSS Goodman on the phone when she informed them that T.K.B. could not 

be immediately placed with Father. CPSS Goodman reported that both became aggressive, 

with one stating “I have pictures of you bitch.” 

¶10 Mother entered a Phase II treatment plan and Father entered a Phase I treatment 

plan, both approved by the District Court, on January 12, 2022. Throughout the following 

months, both Mother and Father were largely unresponsive to the Department’s attempts 

to address problems with the parents’ anger and living situations. Mother missed at least 
5

six visits with the children and Father failed to engage the Department in any capacity or 

complete any work on his treatment plan tasks for several months.

¶11 On March 4, 2022, Mother and her attorney met with CPSS Goodman to discuss 

steps toward reunification with the children. CPSS Goodman informed Mother that, 

among other conditions, she needed to find a reliable living situation, re-engage with 

SafeCare programming, consistently show up for visits, and complete anger management. 

By April, CPSS Goodman received word that Mother’s living situation had again changed 

and that she had been spending a significant amount of time with Father despite the 

Department’s repeated concerns about their violent relationship.

¶12 After Mother became pregnant with another child, she reported that her physician 

had ordered bed rest and activity restrictions. The Department’s third-party visitation 

coordinator sought doctor confirmation of Mother’s medical restrictions so they could 

accommodate those restrictions and adapt visitation plans, which Mother never provided. 

¶13 The Department petitioned for termination of parental rights as to both children on 

June 28, 2022. The petition listed 17 different “reasonable efforts” undertaken by the 

Department to avoid placement and reunify the parents and children. The petition listed 

the conditions in both parents’ treatment plans, noting Mother had not complied with at 

least four of eight tasks and Father had not complied with at least five of eleven tasks 

required under their respective plans. The District Court conducted the termination hearing 

over the course of five days, after which it granted the Department’s petitions.

3

 

3 The proceedings below took place under separate cause numbers. Upon Mother’s motion, the 

cases were consolidated on appeal.
6

¶14 On appeal of a district court’s parental termination order, the court’s factual findings 

are reviewed for clear error and its conclusions of law are reviewed de novo for correctness. 

In re M.J., 2013 MT 60, ¶ 16, 369 Mont. 247, 296 P.3d 1197 (citation omitted). The district 

court’s “ultimate decision regarding adjudication and disposition” in a parental termination 

action is reviewed for an abuse of discretion. In re M.J., ¶ 16.

¶15 We reframe the parties’ issues on appeal and address: (1) whether the Department 

provided reasonable efforts to reunify the parties and the children;

4

(2) whether the District 

Court erred in determining the conduct or condition rendering Mother and Father unfit to 

parent was unlikely to change within a reasonable time; and (3) whether Mother and Father 

received ineffective assistance of counsel.

Reasonable Efforts

¶16 A party seeking to terminate parental rights has the burden to prove by clear and 

convincing evidence that: (1) a child has been adjudicated as a YINC; (2) an appropriate, 

court-approved treatment plan has not been complied with by the parent or has not been 

4 Mother claims on appeal that the Department failed to comply with §§ 504 and 1557 of the 

Rehabilitation Act, and 29 U.S.C. § 794 when it denied Mother’s requests for pregnancy-related 

accommodations. The State argues Mother waived her disability accommodation claims by failing 

to raise them before the District Court. We have held that “the District Court must consider 

accommodation for the parent’s disability in making findings required under Title 41, chapter 3, 

MCA, during the pendency of the dependent neglect case.” In re K.L.N., 2021 MT 56, ¶ 25, 403 

Mont. 342, 482 P.3d 650 (citation omitted). We further explained that “[b]ecause the statutes 

governing dependent neglect cases require individualized treatment plans and reasonable efforts 

to provide services that must accommodate the issues facing the parent and child, such as the 

parent’s disability, meeting the requirements of the state statutes necessarily requires the 

Department to have complied” with those statutes. In re K.L.N., ¶ 26. Because compliance with 

the disability accommodation statutes is subsumed within the determination that the Department 

engaged in reasonable efforts to reunify Mother and the children, we address Mother’s claims 

under that prong of our analysis.
7

successful; and (3) the conduct or condition of the parent rendering them unfit is unlikely 

to change within a reasonable time. In re C.M., 2019 MT 227, ¶ 16, 397 Mont. 275, 449 

P.3d 806 (citation omitted). While not a separate requirement for termination of parental 

rights, the Department must nevertheless provide reasonable efforts to reunify separated 

families before the court can conclude the conduct or condition of the parent is unlikely to 

change. In re K.L.N., ¶ 18 (citation omitted). “Reasonable efforts require the provision of 

services ‘reasonably designed to address the parent’s treatment and other needs precluding 

the parent from safely parenting.’” In re K.L.N., ¶ 18 (citation omitted).

¶17 The District Court explained in its order terminating Mother’s parental rights to the 

children that: 

Natural mother’s conduct and/or conditions rendering her unfit, unable or 

unwilling to give the children adequate parental care include but are not 

limited to the following: emotional illness, mental illness, mental deficiency 

of the duration or nature as to render her unlikely to care for the ongoing 

physical, mental, or emotional needs of these children within a reasonable 

time. 

The District Court noted Mother’s recent history of violence against others and her 

continued involvement with violent individuals. The District Court also relied on Mother’s 

extensive history of missed visits with the children, which culminated in two third-party 

family service providers discontinuing services to her; months of delays and missed 

appointments for clinical evaluations and treatment; a pattern of conflict with Department 

employees; refusal to engage in accommodations such as video visits with the children or 

Department-provided bus passes; and unwavering blame of the Department for her own 

noncompliance.
8

¶18 The District Court made detailed findings regarding the Department’s efforts in this 

case. Testimony established that Mother received significant leniency regarding her 

missed visits. The Department allowed T.K.B. to stay in Mother’s care, despite significant 

concerns about the unique health complications of a child born prematurely and her ability 

to accommodate the child’s needs. The Department continued to engage with Mother 

despite repeated conflicts, even after the Department had to transfer the case to CPSS 

Goodman and dispatch multiple workers to Mother’s home because of safety concerns.

¶19 Under the parental termination criteria, “a district court must look to a parent’s past 

behavior as a predictor of future behavior in determining whether the parent’s conduct or 

condition is likely to change within a reasonable time.” In re C.B., 2014 MT 4, ¶ 23, 373 

Mont. 204, 316 P.3d 177 (citation omitted). The obligation to engage in efforts to reunify 

is not borne only by the Department. See In re C.B., ¶ 23. The District Court did not abuse 

its discretion in determining Mother’s conduct or condition was unlikely to change within 

a reasonable time, and this determination is supported by the Department’s extensive 

efforts over multiple years to equip Mother with the tools needed to care for all her children.

¶20 Father claims the Department failed to engage in reasonable efforts to reunite him 

with T.K.B. because of the Department’s purported lack of meaningful communication and 

because the Department sought termination so soon after his treatment plan was approved. 

The District Court rejected these claims in its termination order, stating “[t]he record is 

replete with [Father’s] attitude particularly his threatening attitude toward the Department, 

care providers, visitation providers and a refusal by a counselor, after the initial visit, to 
9

continue counseling with [Father] because of [Father].” Throughout the proceedings, the 

concerns regarding Father’s anger, history of violence against Mother in the presence of 

children, and other criminal activity5 persisted without remedy. 

¶21 The court also found that, regardless of any communication shortcomings, Father 

was aware of and understood his treatment plan by December 1, 2021. Substantial 

evidence supports this finding. It is undisputed that, even though Father made progress on 

some of his treatment plan tasks, months went by before he even began to engage with the 

Department’s services and the treatment plan remained largely incomplete by April 2023, 

when the final termination hearing was held. Further, multiple witnesses testified that 

Father had not made satisfactory progress in addressing concerns with respect to his ability 

to safely parent T.K.B. Regarding concerns over Father’s anger, the District Court noted 

that while Father did obtain a domestic violence assessment, he had not followed the 

recommendations from that evaluation. The District Court’s determination that, among 

other concerns, it was Father’s lack of meaningful engagement and progress toward his 

treatment goals, rather than the Department’s, that justified termination finds adequate 

support in the record.

5 At the time of termination, Father was facing a criminal charge for a sexual offense. Regarding 

the pending criminal charge, testimony at the hearing was that “[Father] denied exchanging 

marijuana for sex, denied sex with the alleged victim, but did report having given marijuana to the 

15-year-old girl.”
10

Assistance of counsel

¶22 In termination proceedings, parents have a due process right to effective assistance 

of counsel. In re K.B., 2016 MT 73, ¶ 16, 383 Mont. 85, 368 P.3d 722 (citation omitted). 

“Whether assistance was effective requires review of counsel’s training, experience, and 

advocacy.” In re K.B., ¶ 16 (citation omitted). “Ineffective assistance of counsel requires 

reversal only if the parent suffered prejudice.” In re K.B., ¶ 16 (citation omitted).

¶23 Mother claims her counsel was ineffective because of his failure to obtain a separate 

anger assessment. Assuming for the sake of argument that Mother’s counsel was deficient 

in some way, Mother has failed to demonstrate any prejudice. The anger assessment 

performed by Michael Sullivan was neither particularly harsh nor vulnerable to 

impeachment based on the corroborating facts in the record. Mother engaged in a pattern 

of contemptuous relationships with the Department and its employees, conflicts with 

placements, conflicts with cohabitants requiring Mother to change residences frequently, 

and physical violence culminating in three misdemeanor assault convictions arising from 

two separate incidents in the presence of the children. In light of this record, Mother was 

not prejudiced by the lack of a separate anger assessment.

¶24 Father’s claim of ineffective assistance based on his initial attorney’s alleged failure 

to adequately communicate with him is similarly unavailing. Father rebuffed any attempts 

by the Department to get involved in the case initially. Upon informing Father of the DNA 

confirmation of his paternity, Department employees reported anger and threats by Father. 

The District Court found that Father refused to return phone calls and text messages from 
11

reunification services for nearly six months after he received confirmation of his paternity, 

and substantial evidence from testimony at trial supports this finding. Finally, we note that 

the District Court’s determination that Father’s conduct or condition rendering him unfit 

to parent T.K.B. relied heavily on Father’s lack of engagement and progress with his 

treatment plan well after he obtained new counsel.

¶25 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.

¶26 Affirmed.

/S/ JAMES JEREMIAH SHEA

We Concur: 

/S/ MIKE McGRATH

/S/ LAURIE McKINNON

/S/ INGRID GUSTAFSON

/S/ DIRK M. SANDEFUR