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Tuesday, December 16, 2014

INDIGENT PARENT MUST BE APPOINTED COUNSEL BEFORE RIGHTS TERMINATED IN STEPPARENT ADOPTION


Facts: Mom and dad divorce in 2007. Mom has unsupervised regular parenting time with their two children. Dad remarries in 2008. In 2009 mom is arrested and the trial court amends the parenting plan to require her visits to be supervised. Mom stops visiting the children in August, 2010. The two children reside with dad and stepmom. Three years later, stepmom files petition to adopt the boys. Mom comes to the adoption hearing without an attorney and says she has no money to employ one. The trial court grants the adoption. Mom appeals on equal protection and due process grounds.

Reversed.

The Supreme Court found it to be a denial of equal protection to appoint indigent parents at risk for losing their children in abuse and neglect proceedings but not appoint indigent parents at risk for losing their children in private stepparent adoption proceedings.
"Even though a court may terminate a parent's rights involuntarily under either statutory framework, indigent parents at risk of losing their parental rights are afforded a right to counsel only in abuse and neglect proceedings under Title 41. Thus, Montana's statutes create two similarly situated classes: indigent parents facing involuntary termination of parental rights on a petition by the state under § 41-3-422, MCA, and indigent parents facing involuntary termination of parental rights in an adoption proceeding under § 42-2-603, MCA. Both proceedings involve a court permanently and involuntarily terminating a parent's fundamental interest in the care and custody of her children because the parent is unfit. Yet only the parent in the former proceeding is entitled to counsel. Although the grounds for a finding of unfitness are not identical, the fundamental right to parent is equally imperiled whether the proceedings are brought by the State or by a private party. Because, in either case, a parent stands to lose the same fundamental constitutional right on a judicial determination of unfitness, we conclude that Mother is, for equal protection purposes, similarly situated to a parent in a state termination proceeding. In Re Adoption of A.W.S. @ paragraph 15.
Although mom did not specifically request an attorney, the Supreme Court held that just stating that she represented herself only because she could not afford an attorney was sufficient:
"...although Mother did not request counsel formally, we have recognized that pro se litigants are not required to use specific words when requesting counsel.... In this case, where Mother was not advised of any right to counsel, she preserved the issue when she explained that she represented herself only because she did not have the money to employ an attorney." In Re Adoption of A.W.S. @ paragraph 21.
The Supreme Court reversed and remanded for the trial court to appoint mom an attorney and set a new hearing. 

In footnote 3 the Supreme Court noted several ways that the appointment of mom's attorney could be accomplished by the trial court:
"In abuse and neglect proceedings, the office of the state public defender is appointed and assigns counsel to represent indigent parents after determining eligibility as provided in § 47-1-111, MCA. Section 41-3-425, MCA. The public defender also is responsible for assigning counsel in paternity proceedings to indigent parties, including the natural mother and persons presumed or alleged to be the father. Sections 40-6-110, -119, MCA. The Adoption Act allows the payment of a birth parent's legal fees by the adoptive parent. Sections 42-7-101(1)(i), 42-7-102(2), MCA. We leave the manner of appointment of counsel in each case to the district courts' discretion."

In Re Adoption of A.W.S. 2014 MT 322

PARENT WITH MAJOR DEPRESSIVE DISORDER AWARDED PRIMARY CARE

Parenting Plans: Impact of Major Depressive Disorder

Child Support: How to Modify CSED Final Temporary Order Within Pending Divorce

Equitable Division: Occupancy of Ranch Awarded Primary Custodian During Children’s Minority, Then Sell

Facts. Mom and dad were married 16 years and have 3 children. Mom has major depressive disorder and receives SSDI. One of the children has severe seizure syndrome requiring full time parenting. Mom applies to CSED shortly after petition is filed. CSED issues proposed order including findings about each parent's income. Dad does not ask for a hearing. Consequently, CSED enters a “final temporary” order. The trial court found income numbers substantially different from the CSED order. Trial court awarded mom primary care of children and adopted the CSED child support order. The trial court awarded mom exclusive use of their ranch property until the youngest child graduates from high school. Then the ranch property was to be sold and proceeds divided equally.

Parenting Plan Affirmed. There was ample evidence that mom was excellent parent, despite her disorder. Good quotation: "Moreover, the Social Security Administration's determination that an impairment prevents a person from working in a full-time job does not necessarily mean the person is incapable of parenting her children as the primary custodian.” Pesanti @ 12.

Child Support Reversed: The trial court did not address the income disparities between the testimony at trial and the CSED order. It should have. Because the trial court’s income numbers would produce a different child support award, the trial court either had to adopt the Guideline amount or explain by clear and convincing evidence the variance. In the course of its ruling, the Supreme Court articulated the path to modifying a CSED “final temporary” child support award at the final trial of a divorce proceeding: … a party to a dissolution action who desires to modify a temporary support order entered by CSED under § 40-5-225(3) has a clear path. Once a temporary order is proposed, the party may seek administrative review within CSED before the order is entered as final. Admin. R. M. 37.62.949(2), 37.62.951(1). Once a final order is entered, the party may seek further modification by the court in its final decree of dissolution, provided that CSED has notice and the opportunity to participate in the proceeding. Sections 40-5-202(5)(a), -225(12), MCA.” Pesanti @ ¶25.

Equitable Division. Dad did not appeal the exclusive use award.


Pesanti v. Pesanti 2014 MT 324

Friday, May 23, 2014

Changing Child’s Surname: Best Interests

Changing Child’s Surname: Best Interests

Mom and dad divorce in 2004. Mom moves to Billings and obtained temporary order of protection (TOP) against Dad, which preserves, however, Dad’s contact rights with the children. Mom remarries in 2007 and takes the surname of her husband. Court suspends Dad’s contact with the children in 2011. Mom files pro se petition to change the children’s surnames to the surname of her husband and herself, which was granted. Dad not served properly and files Rule 60 complaint.

District Court found improper service of the earlier petition for name change, but granted the surname change for the children.
  • ·       Dad had not seen the children for nine years.
  • ·       The children had been using their stepfather’s surname already.
  • ·       The children wanted to use their stepfather’s surname.
  • ·       The children resided in a household with younger half siblings with that surname.


Affirmed. Dad argued it was not his fault that he had become estranged from the children. However, the Court found that whether it was his fault or not was unimportant, but a strict best interests test.


Tucker v. Tucker 2014 MT 115

Survivor Benefit Plan = Insurance, not retirement

Daniel and Rachel Bushnell divorced in 2009. They signed a Settlement Agreement awarding half Dan’s Army National Guard retirement earned during the marriage.

In 2012, Rachel filed a motion claiming Dan had breached the Agreement because he refused to name her as the Survivor in his Survivor Benefit Plan which included a Survivor Annuity. The issue was whether the Annuity was part of the retirement benefits Rachel was awarded under the agreement. The District Court said “yes”. The Montana Supreme Court said “no.”

The Supreme Court held:

  • District Courts generally have the power to award survivor annuities.
  • This Settlement Agreement, however, did not do so.
  • An annuity is in the nature of an insurance policy.
    • The Settlement Agreement did not specifically reference the survivor benefits or the annuity.
    • The Settlement Agreement awarded retirement benefits “earned during the marriage” and this annuity was not earned during the marriage (it would spring into existence on Dan’s death).
    • The Settlement Agreement said insurance policies were the property of the party whose life was insured.
    •  Because the Settlement Agreement, a contract under 40-4-201(5) M.C.A. did not provide for Rachel to get the annuity, it could only be awarded to her based upon a finding of unconscionability. 40-4-201 (3) M.C.A. which the District Court failed to do.

Reversed.


Marriage of Bushnell 2014 MT 130

Friday, March 21, 2014

VALUING POKER GAME BUSINESS AND PARSING A HEAD INJURY AWARD

Novak v. Novak 2014 MT 62

Husband had a 1/2 interest in a business that ran a poker game at a Great Falls tavern. Two CPA's opined hugely different values for the business. The district court found a value very much toward the low end, but between the two values. Wife had received a serious head injury falling from a horse. She had received $97,000 insurance proceeds for her injuries. She was fully disabled, suffering from grand mal seizures and other serious on-going medical problems. She had spent all but $15,000 of the award, purchasing a car and paying other expenses. She requested maintenance which was denied by the district court. The district court found that by virtue of her status as wife, she would in the future receive a portion of husband's retirement and that by virtue of her disabilities, she would receive SSDI. Their disabled son, who lived with Wife, destroyed items awarded to Husband. Each filed post decree contempt motions. Wife's motion was based on husband not doing anything to get her a portion of his military retirement, which was denied because the decree just noted that she was entitled to that by operation of law and technically the husband had not been ordered to do anything to get her those benefits. Husband's motion was granted for her failure to protect husband's items from their son's malicious destruction of those items. Husband was awarded attorney fees in conjunction with his contempt motion. Wife's request for attorney fees was denied.

Wife appealed.

Valuation. The Supreme Court affirmed the district court business valuation.

  1. There is no rigid rule for valuing goodwill.
  2. The Wife's expert ignored several factors: the risk that a rival poker game could open and the fact that the revenues from the Husband's poker game were declining. Husband's expert ignored the declining income. 
  3. When faced with big differences between valuations, the district court was required to state reasons for its valuation decision -- which the district court did here.
  4. Wife had claimed husband skimmed income, but the proof was insufficient. 
Maintenance. The Supreme Court reversed the district court denial of maintenance.
  1. Wife was indisputably unemployable.
  2. When the effect of denying maintenance is to make a spouse a ward of the state, the district court should award maintenance if possible. So the district court's consideration of her eligibility for SSDI was wrong.
  3. The district court found wife had essentially blown the majority of her award. The Supreme Court found this wrong too: they classified this as "marital misconduct" which is barred from consideration.
  4. The district court found that the $97,000 was income to wife. The Supreme Court found several flaws with this: Wife had obvious and on-going serious medical problems which would offset a lot of the money. Part of the $97,000 may have been for loss of future earnings, which should have been parsed -- but in fairness to the district court, neither side offered any testimony on that issue.
  5. The district court validly considered Wife's portion of Husband's retirement, but by itself that was clearly too little to meet her needs.
  6. The district court did not consider Husband's allocated debts which might reduce or eliminate his ability to pay -- which the district court could consider on remand.
Attorney Fees. The Supreme Court reversed the district court's denial of attorney fees to Wife, but affirmed the award of attorney fees to Husband.
  1. There are 3 basic factors to consider under 40-4-110: necessity, reasonableness, competent evidence. Here the district court erred in determining Wife's income for maintenance purposes which also impacted "necessity". The fact that she had received $97,000 was not proper when considering the attorney fee award either.
  2. Because Wife had been found in contempt for her failure to safeguard the items awarded to Husband from malicious destruction by their son, an attorney fee award for Husband's contempt motion was proper.

EDUCATIONAL SURROGATE PARENT OF ADULT

 In Re C.S. 2014 MT 74

This is an interesting and unusual case. The foster father of a special ed student enrolled in the Butte Public Schools disagreed with the education plan for the student. The student had turned 18 and ran away from the home of his biological mom, leading to the appointment of the foster father. Under the federal Individuals with Disabilities Education Act (IDEA), the student was entitled to the appointment of a "surrogate parent" through the school district. The school district appointed another adult, who approved the educational plan the foster father had disputed. The foster father filed a motion with the court to substitute himself as the surrogate parent. The district court denied his motion. The Supreme Court reversed, finding that the Montana Statute implementing IDEA, Section 20-7-461 M.C.A. and the relevant part of the federal law, Section 20 U.S.C. 1415(m)(2), only authorized the appointment of a stranger to the child if a parent was not available. The end result: the appointment of the foster father as "surrogate parent".

The Supreme Court found that the student's "...biological mother's rights were extinguished when he turned eighteen" leaving the foster father as the only "parent" with legal rights to care for the student, hence his right to appointment as "surrogate parent".

Friday, January 10, 2014

IRAQ VETERAN NAILED BY CSED CREDIT REPORT

An Air Force serviceman and his girlfriend had a child. He provided support while active duty voluntarily. His support was enforced through a CSED order in 2004. In 2008, while he was still active military and serving in Iraq, mom applied to CSED for a child support increase. 5 months later when he was stateside on leave, he consented to the increase. CSED made the award retroactive and provided the retroactive portion be paid over a 24 month period as provided in Section 40-5-309 M.C.A.
CSED sent him notice that they would report his arrearage as a bad debt and delinquent, then did so. The labels “bad debt” and “delinquent” on his credit report barred him employment with government entities including the Department of Homeland Security and the Seattle Police Department. He sued in State District Court. The Montana Supreme Court found that a child support arrearage is not a delinquency and is not a bad debt. But the serviceman had failed to exhaust administrative remedies to challenge CSED’s characterization of the retroactive portion of the award, so the Court upheld the dismissal of his lawsuit on procedural grounds.
While upholding the dismissal, the Court was very critical of CSED for not helping the serviceman understand his possible remedies – even though they were not required under the law to do so.
“¶ 35 While being bound by statutory and procedural bars to reach the conclusions we do, we recognize the resulting injustice. A servicemember who has both an exemplary record in the military and an exemplary record in his payment of child support has been branded a “delinquent” obligor in the eyes of potential employers. Consequently, he has lost significant career opportunities—opportunities that would have benefited his child as well as himself. It appears that CSED had opportunities to help Kenck understand and protect his rights but did not do so. For example, CSED could have implemented § 40–5–262(3), MCA, allowing it to consider Kenck’s payment record, the availability of other remedies and other matters relevant to determining whether to release the administrative arrearage information to the credit reporting agencies. There is no evidence that it considered this discretionary opportunity.
 ¶ 36 Moreover, Kenck visited the Billings CSED office within days of being discharged from the USAF, contesting the characterization of his child support account as delinquent and the reporting of his arrearage to the consumer reporting companies in the first place. It does not appear that CSED assisted Kenck in understanding what steps he could take to challenge the inaccurate report, nor did it advise him that such actions must be taken within 90 days of his discharge.”

The Court took the extraordinary action of directing the district court to order CSED to give notice of the opinion to the credit reporting agencies and monitor CSED’s compliance.