In re L.M.A.T

2002 MT 163, 51 P.3d 504, 310 Mont. 422, 2002 Mont. LEXIS 334
CourtMontana Supreme Court
DecidedJuly 25, 2002
DocketNo. 02-137
StatusPublished
Cited by10 cases

This text of 2002 MT 163 (In re L.M.A.T) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re L.M.A.T, 2002 MT 163, 51 P.3d 504, 310 Mont. 422, 2002 Mont. LEXIS 334 (Mo. 2002).

Opinion

JUSTICE COTTER

delivered the Opinion of the Court.

¶1 Donald, the natural father of L.M.A.T. and B.L.F.T., appeals from two Nineteenth Judicial District Court orders that were entered during child protection proceedings for his daughters. Although the State had petitioned for permanent legal custody and termination of parental rights, following the evidentiary hearing, the District Court did not proceed on the issue of termination, but rather entered an order adjudicating L.M.A.T. and B.L.F.T. as youths in need of care and granting the Department of Public Health and Human Services (DPHHS) temporary legal custody for six months. The court also granted DPHHS the authority to forego reunification efforts with Donald. On appeal, Donald contends he did not receive proper notice of the proceedings prior to the filing of the State’s Petition for Permanent Legal Custody and Termination of Parental Rights with Right to Consent to Adoption (hereinafter, Petition for Permanent Legal Custody) and alleges the State’s Petition for Permanent Legal Custody and the District Court’s order granting DPHHS temporary legal custody did not meet statutory notice requirements. Donald also contends the District Court failed to conduct a timely show cause hearing following the State’s Petition for Permanent Legal Custody and appeals the District Court’s order authorizing DPHHS to forego reunification efforts with him, arguing that the court failed to make sufficient findings. We affirm.

[424]*424¶2 Donald presents the following issues on appeal:

1. Whether failure to personally serve the father, who was incarcerated in another state, with notice of proceedings prior to filing a petition for permanent legal custody and termination of parental rights constitutes reversible error;

2. Whether the petition for permanent legal custody and subsequent order granting temporary legal custody, contained the required statutory notices;

3. Whether the District Court failed to conduct a timely show cause hearing; and

4. Whether the District Court erred when it granted the State’s request for determination that preservation or reunification services for the father were unnecessary.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 Following reports of abuse and neglect, the State filed a Petition for Temporary Investigative Authority (TIA) and Protective Services on November 17,2000, and L.M.A.T. and B.L.F.T. were removed from their mother’s home. L.M.A.T. (now 5 years old) and B.L.F.T. (nearly 3 years old) remain in foster care where they have been since December of 2000. Throughout these proceedings, Donald has been incarcerated in Washington State, having been found guilty on March 2, 2000, of the attempted rape of a child in the second degree.

¶4 On November 21,2000, a Summons and Order to Show Cause and a copy of the November 17, 2000 Petition for TIA were served on Donald by mail at a corrections facility in Airway Heights, Washington. Following a show cause hearing on December 4, 2000, during which the children’s mother, Catherine, did not oppose the TIA petition, the District Court entered an order granting TIA to DPHHS for 90 days. The accompanying Certificate of Service listed Donald’s address as “unknown,” and the record is not clear whether he received a copy of this December 6, 2000 order.

¶5 Following a review hearing on February 26, 2001, the District Court continued the TIA for two weeks, and re-set the hearing for March 12,2001. A copy of the District Court order continuing the TLA was served on Donald by mail at a corrections facility in Aberdeen, Washington. On March 2, 2001, the State filed a Petition for Temporary Legal Custody. On that same day, Donald was served by mail at the Aberdeen facility with a Summons and Order to Show Cause for the March 12, 2001 hearing, and also copies of the Petition for Temporary Legal Custody and the proposed treatment plan for Catherine.

[425]*425¶6 After another continuance, the review hearing commenced on March 19, 2001, during which Catherine agreed to the Petition for Temporary Legal Custody and her treatment plan. On March 21,2001, the District Court entered an Order Granting Temporary Legal Custody to DPHHS for a six-month period. A Certificate of Service, dated March 26, 2001, indicates this order and a copy of Catherine’s treatment plan were served on Donald by mail at his Aberdeen address.

¶7 At a review hearing on September 17, 2001, the State requested a 90-day extension of temporary legal custody, since it intended to file for permanent legal custody. The District Court granted the extension and appointed indigent counsel for Catherine. On September 18,2001, the State filed the Petition for Permanent Legal Custody, and attached a copy of Donald’s Judgment and Sentence and Warrant of Commitment from Washington. Also on September 18, 2001, Amy Guth, who had been acting as Guardian Ad Litem for L.M.A.T. and B.L.F.T. since November 20, 2000, filed a Motion to Appoint Counsel, requesting that she be appointed to represent Donald pursuant to the public defender contract. The District Court granted this motion the next day.

¶8 The District Court entered an order on September 19, 2001, granting continued temporary legal custody to DPHHS for a period of 90 days. This order was served on Donald by mail at his Aberdeen address. On that same day, the District Court also issued a Summons and Order to Show Cause relating to the State’s Petition for Permanent Legal Custody, setting the hearing date for November 5, 2001. The Summons and Order to Show Cause was personally served on Donald at the Aberdeen correction facility on October 2, 2001. Donald’s appointed counsel was served by mail with copies of the Summons and Order to Show Cause and the Petition for Permanent Legal Custody on September 19, 2001.

¶9 During the show cause hearing on November 5, 2001, Catherine was prepared to relinquish her rights as to B.L.F.T., but wished to continue her treatment plan and possibly reunite with L.M.A.T. Donald’s counsel also appeared, and represented that Donald contested termination of his parental rights as to both girls. Donald’s counsel also informed the court that Donald would be incarcerated in Washington until 2004, at which time he would presumably be eligible for parole. On November 8,2001, the District Court granted continued temporary legal custody and scheduled the hearing on the State’s Petition for Permanent Legal Custody for January 4, 2002.

¶10 Catherine did not appear on January 4, 2002, so the District [426]*426Court vacated the hearing date and continued temporary legal custody pending further adjudication of whether L.M.A.T. and B.L.F.T. were youths in need of care. At this time, a letter from Donald was filed with the court, wherein he expressed an interest in reuniting with his children upon release from prison.

¶11 On January 24, 2002, the State filed a Request for Determination, asking the District Court to determine that preservation or reunification services need not be provided as they relate to Donald. The State based its request on Donald’s conviction for attempted rape of a child in the second degree and his continued incarceration in Washington.

¶12 The hearing on the State’s Petition for Permanent Legal Custody was held on January 24, 2002. At the hearing, Donald’s counsel objected to the proceedings as untimely. The court overruled the objection and upon the request of the State and in light of our recent decision, In re T.C., 2001 MT 264, 307 Mont.

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Bluebook (online)
2002 MT 163, 51 P.3d 504, 310 Mont. 422, 2002 Mont. LEXIS 334, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-lmat-mont-2002.