08/18/2026
DA 25-0483
Case Number: DA 25-0483
IN THE SUPREME COURT OF THE STATE OF MONTANA 2026 MT 194
IN RE THE PARENTING AND ADOPTION OF A.M.S., A minor child.
A.M.N.L. and Q.O., Petitioners and Appellees, and T.J.S., Respondent and Appellant.
APPEAL FROM: District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause No. DA-2024-29 Honorable Heidi J. Ulbricht, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Gregory D. Birdsong, Birdsong Law Office, Santa Fe, New Mexico For Appellees:
Penni L. Chisholm, Chisholm & Chisholm, P.C., Columbia Falls, Montana
Submitted on Briefs: March 18, 2026 Decided: August 18, 2026
Filed:
__________________________________________
Clerk
3
Justice Ingrid Gustafson delivered the Opinion of the Court.
¶1 T.J.S., birth father of A.M.S., appeals the June 12, 2025 Decree Terminating Parental Rights and Decree of Adoption issued by the Eleventh Judicial District Court, Flathead County. The District Court’s order terminated the parental rights of T.J.S. and granted the petition filed by A.M.N.L., birth mother of A.M.S., and Q.O., birth mother’s partner, for Q.O. to adopt A.M.S.
¶2 We address the following restated issues on appeal:
1. Whether the District Court committed reversible error when it permitted the parties to stipulate that ICWA did not apply.
2. Whether the District Court abused its discretion by not granting a second continuance of the termination hearing.
3. Whether the termination of T.J.S.’s parental rights must be reversed due to ineffective assistance of counsel.
¶3 We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
¶4 A.M.S., born in 2014, is the natural child of A.M.N.L. and T.J.S. A.M.S. has continuously resided with A.M.N.L., who has been her primary caregiver, since birth. Since 2020, A.M.N.L. has been in a committed relationship with Q.O., and the two had a child together in 2022. T.J.S. has an extensive criminal history, which includes domestic violence charges. A.M.N.L. has sought orders of protection against T.J.S. multiple times, and she currently has a 20-year order of protection which was granted in 2022.
¶5 A.M.S. was the subject of a parenting plan action in 2019. T.J.S. was initially allowed visitation with A.M.S. on Tuesday afternoons from 3:30 until 7:00 p.m. In
4
February 2022, the plan was modified to grant T.J.S. additional visitation from 9:00 a.m. to 6:00 p.m. every other Saturday. The plan included a provision that T.J.S.’s parenting time would be “immediately suspended” if he had another instance of domestic violence. T.J.S. was arrested and charged with PFMA against his then-girlfriend, A.C., in March of 2022. T.J.S.’s parenting time was suspended in accordance with the final parenting plan. He thereafter filed a motion to reinstate his parenting time, which was denied on October 31, 2022. No further pleadings were filed by T.J.S. in the parenting plan case and he did not have contact with A.M.S. after his parenting time was suspended. A.M.S. is also the subject of a child support order. In December of 2019, T.J.S. was ordered to pay $437 per month in support. Between May of 2022 and June of 2025, T.J.S. made only a single payment of $107.41 in August of 2024 and was over $15,000 in arrears on his support obligation.
¶6 On September 25, 2024, A.M.N.L. and Q.O. (occasionally “Petitioners”) filed a Petition for Termination of Parental Rights and Petition for Adoption, seeking to terminate the parental rights of T.J.S. and approve the stepparent adoption of A.M.S. by Q.O. In their Petition, A.M.N.L. and Q.O. asserted several grounds supporting the termination of T.J.S.’s parental rights, including that he is an unfit parent pursuant to § 42-2-608, MCA, that he failed to establish and maintain a substantial relationship with A.M.S. pursuant to § 42-2-610, MCA, and that he waived his parental rights by failing to timely act to protect those rights pursuant to § 42-2-607(5), MCA. The adoption portion of the petition noted A.M.N.L., as the custodial parent, consented to Q.O. adopting A.M.S. As relevant here,
5
the petition further asserted the “Indian Child Welfare Act, 25 U.S.C. 1901, et seq. does not apply.”
¶7 T.J.S. filed a pro se response to the Petition on October 22, 2024. In his response, T.J.S. asserted he “lacks sufficient information” to form a belief regarding the Petition’s claim ICWA did not apply but noted he is “of Native American descent.” On November 18, 2024, the District Court issued a conditional appointment of the Office of the State Public Defender (OPD) to represent T.J.S. OPD filed a Motion to Rescind Appointment on November 25, 2024, which was denied by the District Court on December 2, 2024. On December 12, 2024, OPD filed a Notice of Assignment and Request for Discovery, informing the court that OPD Attorney Nick Aemisegger had been appointed to represent T.J.S. On February 3, 2025, T.J.S. filed a Motion to Continue Contested Adoption Hearing, seeking a continuance of the hearing scheduled for February 10, 2025. Counsel for T.J.S. noted there was “some question as to whether ICWA applies” and that, because he did not have recent experience related to private adoptions or ICWA, “substantial research is required to develop competence in this area.” T.J.S. sought a “minimum of a 90-day continuance.” On February 4, 2025, the District Court issued an order granting T.J.S.’s requested continuance and resetting the contested adoption hearing for May 15, 2025.
¶8 On May 6, 2025, A.M.N.L. and Q.O. filed a Trial Brief Regarding ICWA. In their brief, the Petitioners addressed T.J.S.’s responses to discovery requests, in which he asserted he was not “yet” a member of an Indian tribe, but believed he may be eligible to
6
enroll in the Turtle Mountain Band of Chippewa because he believed his father (A.M.S.’s paternal grandfather, who had passed away) was an enrolled member of that tribe. T.J.S. noted he “intend[s] to enroll in the Turtle Mountain Band of Chippewa Tribe.” The Petitioners’ brief addressed ICWA’s definition of “Indian child” and concluded that A.M.S. was not an Indian child for the purposes of ICWA because she is “not the biological child of a member/citizen of an Indian Tribe” and therefore “ICWA does not apply to these proceedings, and Petitioners were not required to provide notice of these proceedings to a Tribe.” On May 13, 2025, T.J.S. filed another motion to continue. In this motion, counsel for T.J.S. asserted he was “not prepared to proceed with a contested hearing,” and recounted his research regarding ICWA both generally and “in the context of private adoptions/terminations.” T.J.S. noted “it was ultimately determined that ICWA does not apply in this case, but that conclusion was only reached after much research and consultation.” The Petitioners filed an objection to the motion to continue on May 14, 2025, and the District Court denied the motion to continue that same day.
¶9 On May 15, 2025, the District Court held the termination/adoption hearing. At the outset of the hearing, counsel for T.J.S. reiterated that he did not feel prepared to proceed because he had not had enough time to develop competency regarding ICWA, private terminations, and adoptions. Counsel informed the court he was “not going to call a single witness. That is not the result of a strategic decision. It’s because I’m simply not prepared.” Counsel noted there was a separate office within OPD, the Family Defense Bureau, which has expertise in dependent neglect matters, but due to funding requirements
7
were not allowed to take the case because it was not a DN matter. Counsel noted he was a criminal attorney who led an office of criminal attorneys, and again requested more time to develop competence because he “just can’t do it overnight, and I certainly can’t do it in 90 days.” The District Court again denied the motion to continue. Counsel for the Petitioners and counsel for T.J.S. then noted they had stipulated that ICWA did not apply to the proceeding. The hearing then proceeded, and the District Court heard the testimony of Chris Yerkes, a private investigator who researched T.J.S.’s criminal history; A.M.N.L., who testified to T.J.S.’s domestic violence incidences and lack of support; and Q.O., who testified to his desire to adopt A.M.S. Counsel for T.J.S. cross-examined both Yerkes and A.M.N.L. during the hearing.
¶10 On June 12, 2025, the District Court issued its Decree Terminating Parental Rights and Decree of Adoption. The court found that T.J.S.’s counsel’s claim of incompetence and lack of time to prepare failed as counsel “researched whether the matter was subject to ICWA, filed motions, made timely objections, and thoroughly cross-examined witnesses.” The court noted that, while counsel may not have been as comfortable as he would have been with a criminal matter, “his training and experience and advocacy skills were within the range of competence of attorneys in similar cases.” As Conclusion of Law No. 2, the District Court found “[t]he parties stipulated at the hearing that The Indian Child Welfare Act, 25 U.S.C. 1901, et seq. does not apply to this proceeding.” The court also concluded that T.J.S. was an unfit parent pursuant to § 42-2-608, MCA, that he failed to establish and maintain a substantial relationship with A.M.S. pursuant to § 42-2-610, MCA, and that he
8
waived his parental rights by failing to timely act to protect those rights pursuant to § 42-2-607(5), MCA. The court concluded the Petitioners met their burden of proving both grounds for termination of T.J.S.’s parental rights and that the adoption of A.M.S. by Q.O. was in her best interest.
¶11 T.J.S. appeals. Additional facts will be discussed as necessary below.
STANDARD OF REVIEW
¶12 We review a district court’s decision to terminate parental rights for an abuse of
discretion under the applicable standards of both Montana law and the federal Indian Child Welfare Act. In re D.L.L., 2025 MT 98, ¶ 6, 421 Mont. 522, 568 P.3d 552 (citing In re L.D., 2018 MT 60, ¶ 10, 391 Mont. 33, 414 P.3d 768).
¶13 We review a district court’s denial of a motion to continue for an abuse of discretion. In re Adoption of A.W.S., 2016 MT 194, ¶ 14, 384 Mont. 278, 377 P.3d 1201. A district court abuses its discretion when it acts arbitrarily without the employment of conscientious judgment or exceeds the bounds of reason, resulting in a substantial injustice. In re Adoption of A.W.S., ¶ 14 (citing State v. Sebastian, 2013 MT 347, ¶ 14, 372 Mont. 522, 313 P.3d 198).
¶14 We review claims of ineffective assistance of counsel de novo. In re Z.N.-M., 2023 MT 202, ¶ 10, 413 Mont. 502, 538 P.3d 21 (citing In re B.M., 2010 MT 114, ¶ 14, 356 Mont. 327, 233 P.3d 338).
DISCUSSION
¶15 1. Whether the District Court committed reversible error when it permitted the parties to stipulate that ICWA did not apply.
9
¶16 T.J.S. asserts the District Court committed reversible error by accepting the stipulation of the parties that ICWA did not apply to the proceeding because the court had been “advised there was reason to believe the child might be eligible for enrollment in the Turtle Mountain Band of Chippewa Tribe.” The Petitioners contend the District Court did not have reason to believe A.M.S. was an Indian child based on the uncontested facts of the case and therefore the court did not abuse its discretion by accepting the parties’ stipulation that ICWA did not apply.
¶17 As Conclusion of Law No. 2, the District Court found “[t]he parties stipulated at the hearing that The Indian Child Welfare Act, 25 U.S.C. 1901, et seq. does not apply to this proceeding.” While the District Court was free to consider the parties’ stipulation as a representation that they were not aware of any facts which would indicate ICWA applied, ICWA is not a private right that parties can waive. To the extent the District Court determined ICWA did not apply based solely on the parties’ stipulation, that would be in error; however, because ICWA does not apply based on the facts of the case, any error in proceeding based on that stipulation is harmless.
¶18 Congress enacted ICWA in 1978 “to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families . . . .” 25 U.S.C. § 1902. At the core of ICWA is “the fundamental assumption that it is in the Indian child’s best interest that its relationship to the tribe be protected.” Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 50 n.24, 109 S. Ct. 1597, 1609 n.24, (1989) (quoting In re Appeal in Pima Cnty. Juvenile Action No. S-903, 635 P.2d 187, 189 (Ariz. 1981)). ICWA imposes
10
heightened federal standards for the removal of Indian children from their families. See, e.g., 25 U.S.C. §§ 1902, 1911, and 1912(d)-(f) (congressional policy, tribal jurisdiction, and requirements for active remedial efforts, qualified expert testimony, and proof beyond a reasonable doubt). ICWA governs state court “child custody proceedings,” as defined by 25 U.S.C. § 1903(1), involving an “Indian child,” as defined by 25 U.S.C. § 1903(3)-(8). 25 U.S.C. § 1912. Both termination of parental rights proceedings and adoption proceedings are child custody proceedings as defined by ICWA. 25 U.S.C. § 1903(1)(ii), (iv).
¶19 ICWA is not a private right that parents can waive. As we have previously stated, “a parent cannot waive application of ICWA by stipulation or acquiescence.” In re L.D.,
¶ 16. By its terms, it is a federal statute grounded in tribal sovereignty, and the rights ICWA protects belong to (1) the child, (2) the tribe, and (3) the federal government. Accordingly, because these rights belong to others, parents cannot waive tribal rights, the child’s political status, or the federal statutory protections of ICWA. Accepting a “stipulation” that ICWA does not apply in a proceeding is an error, because a parent cannot stipulate around the application of ICWA. See In re L.D., ¶ 16. In each case where ICWA could potentially apply, a court must ask whether a child is or may be an “Indian child,” make an independent finding, provide notice to the tribe(s) if there is a “reason to know” the child may be an “Indian child,” and follow ICWA if the child meets the definition. In this case, however, the District Court’s error in accepting the parents’ stipulation is harmless because ICWA does not, in fact, apply.
11
¶20 “‘Indian child’ means any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.” 25 U.S.C. § 1903(4). “In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child’s tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention.” 25 U.S.C. § 1912(a). When ICWA applies, “[n]o termination of parental rights may be ordered in such proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.” 25 U.S.C. § 1912(f).
¶21 “When a court has reason to believe that a child may be an Indian child, proceeding to termination without a conclusive tribal determination of tribal membership or eligibility is an abuse of discretion.” In re L.D., ¶ 14. “Without altering or diluting its meaning, we have interchangeably paraphrased the discrete statutory phrase ‘reason to know’ as a ‘reason to believe’ or ‘reasonable basis upon which to believe’ a child is an Indian child.” In re L.H., 2021 MT 199, ¶ 11 n.9, 405 Mont. 173, 492 P.3d 1218 (collecting cases). “What constitutes a reasonable basis upon which to believe that a child may be eligible for tribal enrollment is a factual matter that will vary based on the particular record in each case.”
12
In re S.R., 2019 MT 47, ¶ 20, 394 Mont. 362, 436 P.3d 696. “The standard does not require ‘that an assertion of potential tribal eligibility be certain,’ but does call for ‘more than a bare, vague, or equivocal assertion of possible Indian ancestry.’” In re Z.N.-M., ¶ 14 (quoting In re S.R., ¶ 21).
¶22 Setting aside the invalid “stipulation” that ICWA did not apply, the question is a simple one: did the District Court know or have “reason to know” that A.M.S. was an Indian child? The answer is no. In the Petition, A.M.N.L. and Q.O. asserted that ICWA did not apply in this case. In his pro se response, T.J.S. stated he “lack[ed] sufficient information to form a belief” as to whether ICWA applied and stated he was “of Native American descent.” This response is nothing more than the “bare, vague, or equivocal assertion of possible Indian ancestry” we have determined is not sufficient to present a “reason to know” under ICWA. In re Z.N.-M., ¶ 14 (quoting In re S.R., ¶ 21). The next time ICWA is mentioned in the court record is in T.J.S.’s February 3, 2025 motion to continue, where counsel notes “there is some question as to whether ICWA applies to the current case.” This also did not provide a “reason to know” that A.M.S. was an Indian child.
¶23 On May 6, 2025, the Petitioners filed their Trial Brief Regarding ICWA. This document provides the fullest information regarding A.M.S.’s possible status as an Indian child, as it provides T.J.S.’s responses to the Petitioners’ discovery requests regarding the issue. In his responses, T.J.S. does not claim to be a member of an Indian tribe. He asserts his father was a member of the Turtle Mountain Band of Chippewa Tribe and notes his
13
belief that he may be personally eligible for enrollment and his intention to enroll in the Tribe.1 T.J.S. also responded that he had never applied for enrollment with the Tribe, though he intended to enroll, and that he had “no written correspondence with the tribe at this time.” The Petitioner’s Trial Brief also provided the District Court with the definition of “Indian child” from ICWA: “any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.” 25 U.S.C. § 1903(4). There is no dispute that A.M.S. is not a member of an Indian tribe. According to T.J.S.’s discovery responses, there is also no dispute that A.M.S. is not the “biological child of a member of an Indian tribe,” because T.J.S. is not a member of the Turtle Mountain Band of Chippewa Tribe. A.M.N.L. is also not a member of an Indian tribe. Under ICWA’s definition, A.M.S.
1 Eligibility for membership in the Turtle Mountain Band of Chippewa Indians is defined by their Constitution:
The membership in the Turtle Mountain Band of Chippewa Indians shall consist of:
(a) All persons whose names appear on the roll prepared pursuant to Section 2 of the Act of May 24, 1940 (54 Stat. 219), and approved by the Secretary of the Interior on March 15, 1943.
(b) All descendants of persons whose names appear on the roll defined in Section 1 (a) of this Article, provided that such descendants possess one-fourth or more Indian blood, and provided further that such descendants are not domiciled in Canada.
Constitution and Bylaws of the Turtle Mountain Band of Chippewa Indians art. III, § 1.
14
is not an “Indian child” and the District Court’s implied determination it did not have a “reason to know” A.M.S. was or may be an Indian child is correct.2
¶24 In addition, 25 C.F.R. § 23.107(a) requires “the parties to inform the court if they subsequently receive information that provides reason to know the child is an Indian child.” Notably, T.J.S. does not claim on appeal that he has subsequently become an enrolled member of the Turtle Mountain Band of Chippewa Tribe, though he previously asserted he “intend[s] to enroll in the Turtle Mountain Band of Chippewa Tribe.” Instead, T.J.S. makes claims regarding “possible” blood quantum percentages or the possibility that “T.J.S. was enrolled in the Tribe as a child by his father without his knowledge[.]” These hypothetical discussions are insufficient to provide a “reason to know” A.M.S. is or may be an Indian child. In re Z.N.-M., ¶ 14.
¶25 We reiterate that ICWA is not a private right that parents may waive, stipulate does not apply, or contract around. A district court simply accepting a “stipulation” that ICWA does not apply commits error. “ICWA’s notice requirements are not jurisdictional and are subject to harmless error review.” In re D.D., 2021 MT 66, ¶ 11, 403 Mont. 376, 482 P.3d 1176 (quoting In re S.B., 2019 MT 279, ¶ 32, 398 Mont. 27, 459 P.3d 214). Under the facts of this case, the error in the District Court accepting the parents’ stipulation ICWA did not apply was harmless. The District Court did not have a “reason to know” A.M.S. is or may be an Indian child as she was not the biological child of a member of an Indian
2 Following the Petitioner’s Trial Brief, T.J.S. filed a motion for continuance which asserted “it was ultimately determined ICWA does not apply in this case” and the parties “stipulated” that ICWA did not apply during the contested termination/adoption hearing on May 15, 2025.
15
tribe, 25 U.S.C. § 1903(4), and ICWA’s notice requirements were not triggered. 25 U.S.C. § 1912(a). Accordingly, the District Court did not commit reversible error by accepting the stipulation in this case.
¶26 2. Whether the District Court abused its discretion by not granting a second continuance of the termination hearing.
¶27 T.J.S. asserts the District Court abused its discretion by denying his second continuance request, made two days before the hearing, because counsel asserted he needed more time to prepare for the contested hearing, lacked transcripts from the parenting plan case, and was researching challenges made to private termination statutes under various state constitutions and the United States Constitution. The Petitioners contend the District Court did not abuse its discretion by denying a second continuance because the court had already granted T.J.S.’s motion for a 90-day continuance and the denial of another motion to continue “fairly balanced T.J.S.’s need for time to prepare for the hearing with the adoption policy requiring expediency.”
¶28 A district court “has broad discretion when determining whether to grant a motion for continuance.” In re Adoption of A.W.S., ¶ 21. When presented with a motion to continue, the court “should consider whether the movant has shown good cause and whether the continuance would be in the furtherance of justice.” In re O.A.W., 2007 MT 13, ¶ 76, 335 Mont. 304, 153 P.3d 6 (citations omitted).
¶29 We find no abuse of discretion in the District Court’s denial of T.J.S.’s second motion to continue the termination/adoption hearing. By the time of the hearing, eight months had passed since the Petition was filed, OPD had been appointed to represent T.J.S.
16
for six months, and counsel for T.J.S. had already asked for, and received, a 90-day continuance. T.J.S. has made no showing of how postponing the hearing again would have been in the furtherance of justice. He has presented no evidence of any witnesses he wished to call but was unable to due to the denial of the motion—indeed, though while arguing he was ineffective at the start of the hearing counsel stated he would be calling no witnesses because he was not prepared, after the motion to continue was again denied by the District Court counsel stated he would be calling T.J.S. to testify at the hearing. T.J.S. was ultimately not called as a witness and did not testify.
¶30 T.J.S.’s argument boils down to an assertion that his counsel needed more time to learn adoption and termination laws. The District Court acted within its discretion by both granting the initial request for a continuance and by denying the second request. When presented with a petition to terminate parental rights in the context of an adoption, by statute a “contested termination of parental rights action must take precedence over other cases and matters in the court or on appeal.” Section 42-2-619, MCA. T.J.S. had eight months to prepare for the hearing, his counsel asked for and received a previous 90-day continuance to better prepare, and the May 15, 2025 “hearing certainly did not spring upon an unsuspecting” T.J.S. In re O.A.W., ¶ 80. Given the situation and the timing of the motion, “we cannot conclude that the District Court acted arbitrarily or beyond the bounds of reason in declining [T.J.S.]’s request to postpone the adoption hearing” so his counsel could further research termination and/or adoption caselaw. In re Adoption of A.W.S., ¶ 21.
¶31 3. Whether the termination of T.J.S.’s parental rights must be reversed due to ineffective assistance of counsel.
17
¶32 As a corollary to his argument regarding the denial of his motion to continue, T.J.S. asserts he received ineffective assistance of counsel at the contested hearing because his counsel lacked experience in the relevant areas of law and the District Court, by denying the motion to continue, “fail[ed] to allow counsel a reasonable opportunity to remedy his shortcomings.” The Petitioners assert counsel’s representation of T.J.S. was competent, T.J.S. suffered no prejudice, and counsel’s performance does not warrant reversal. We agree with the Petitioners.
¶33 “When examining an ineffectiveness claim in termination proceedings, this Court analyzes two nonexclusive factors: (1) counsel’s training and experience, and (2) the quality of counsel’s advocacy provided during the proceedings.” In re Z.N.-M., ¶ 34 (citing In re B.J.J., 2019 MT 129, ¶ 15, 396 Mont. 108, 443 P.3d 488). “If a parent shows that counsel provided ineffective assistance under the two factors listed above, relief may be granted only if the parent further demonstrates that counsel’s ineffectiveness caused them prejudice.” In re Z.N.-M., ¶ 34 (citing In re C.M.C., 2009 MT 153, ¶ 30, 350 Mont. 391, 208 P.3d 809).
¶34 In line with the claims made by counsel below, T.J.S. asserts he received ineffective assistance of counsel due to his counsel’s lack of experience. As in In re Adoption of A.W.S., where Attorney Aemisegger made a similar claim he was ineffective because he was inexperienced and unprepared when facing a petition for termination of parental rights and petition for stepparent adoption, the District Court here held “that counsel’s performance was within the range of competence of attorneys in similar cases.” In re
18
Adoption of A.W.S., ¶ 35. The District Court found T.J.S.’s “counsel made legal arguments, objected to testimony and evidence, and cross-examined witnesses” and that the “record reflects that TJ’s counsel researched whether the matter was subject to ICWA, filed motions, made timely objections, and thoroughly cross-examined witnesses. While TJ’s counsel may not have been as comfortable in this area of law as he was in dependent neglect and criminal matters, his training and experience and advocacy skills were within the range of competence of attorneys in similar cases.” We agree with the District Court’s findings of fact and conclusions of law as related to T.J.S.’s claim of ineffective assistance of counsel. Counsel for T.J.S. investigated the case, researched the applicable law, and demonstrated trial skills by making appropriate objections and cross-examining the witnesses at the termination hearing. See In re Z.N.-M., ¶ 35 (citing In re A.S., 2004 MT 62, ¶ 26, 320 Mont. 268, 87 P.3d 408). Ineffective assistance is an objective determination and does not exist merely because counsel claims themselves to be ineffective.
¶35 In addition, even if he could demonstrate some measure of IAC, reversal would still be unwarranted because T.J.S. cannot demonstrate he suffered any prejudice. The District Court concluded T.J.S. was an unfit parent pursuant to § 42-2-608, MCA, because he willfully abandoned A.M.S. for a period of six months without manifesting an intention to resume custody or make permanent arrangements for the care of A.M.S.; that he had not contributed to the support of A.M.S. for an aggregate period of one year before the filing of the petition for adoption; that T.J.S. was in violation of a court order to support A.M.S.; that T.J.S. had been convicted of a crime of violence or of violating a restraining order or
19
protective order; that T.J.S. was not able or willing to promptly establish and maintain contact with A.M.S. and pay for her support; that placing A.M.S. in T.J.S.’s legal and physical custody would pose a risk of substantial harm to A.M.S. because his behavior since her birth indicates he “is unfit to maintain a relationship of parent and child” with A.M.S.; and that failure to terminate T.J.S.’s parental rights would be detrimental to A.M.S. The court additionally concluded T.J.S. failed to establish and maintain a substantial relationship with A.M.S. pursuant to § 42-2-610, MCA, and that T.J.S. irrevocably waived parental rights by failing to timely act to protect those rights pursuant to § 42-2-607(5), MCA. On appeal, T.J.S. does not seriously contest any of these conclusions, largely focusing his appellate argument on counsel’s unfamiliarity with ICWA. But we have already explained that ICWA did not apply to the proceeding, which T.J.S.’s counsel correctly determined prior to the contested hearing. At the hearing, counsel cross-examined Yerkes regarding T.J.S.’s criminal history and A.M.N.L. regarding T.J.S.’s history of domestic violence, the parenting plan provisions, and failure to pay child support, but T.J.S. did not testify and no contrary evidence was presented which would contradict any of the District Court’s conclusions. The simple fact is that T.J.S. had not had contact with A.M.S. for over three years prior to the hearing, was over $15,000 in arrears regarding his child support obligation and had only made one partial payment in the three years leading up to the hearing, and had manifested no desire or attempt to maintain a parental relationship with A.M.S. prior to contesting the Petition. Because T.J.S. neither received IAC nor suffered prejudice, reversal is not warranted.
20
CONCLUSION
¶36 While the District Court erred in determining ICWA did not apply due to the parties’ stipulation, it did not commit reversible error because ICWA did not apply under the facts of this case. In addition, the District Court’s denial of T.J.S.’s second continuance request was not an abuse of discretion. Finally, the record fails to demonstrate T.J.S. received ineffective assistance of counsel and reversal is not warranted on that ground.
¶37 Affirmed.
/S/ INGRID GUSTAFSON
We Concur:
/S/ CORY J. SWANSON /S/ JAMES JEREMIAH SHEA /S/ BETH BAKER /S/ JIM RICE