Opinion
OP 21-0194
06-22-2021
S.P., Petitioner, v. MONTANA SIXTH JUDICIAL DISTRICT COURT, PARK COUNTY, HON. BRENDA R. GILBERT, DISTRICT JUDGE, Respondent.
ORDER
Petitioner S.P. (Mother), by and through Montana Legal Services Association (MLSA) counsel under a limited pro bono appearance, petitions this Court for a writ of supervisory control pursuant to Article VII, Section 2(2), of the Montana Constitution and M. R. App. P. 14(3) regarding the underlying matter of In re Termination of Parental Rights of [S.P.] and Adoption of CJM., Cause No. DA-2020-16, in the Montana Sixth Judicial District Court, Park County. At our request and pursuant to M, R. App, P. 14(7). the Office of the State Public Defender (OPD) has responded to S.P's petition.
The underlying matter is a private civil proceeding under Title 42, MCA-the Montana Adoption Act-for involuntary termination of Mother's parental rights and adoption of her minor child by petitioner K.W.M. the child's stepmother. Involuntary termination of parental rights may be accomplished in connection with either an abuse and neglect petition under Title 41, MCA, or an adoption petition under Title 42, MCA. This Court has held that a parent subject to an involuntary termination proceeding under Title 42 has a constitutional right to appointed counsel. A. W.S. v. A.W., 2014 MT 322, ¶ 26, 377 Mont. 234, 339 P.3d 414. In such cases, the district court appoints counsel if it determines the parent is financially eligible for appointment. In re L.F.R., 2019 MT 2. ¶ 17, 394 Mont. 61, 432 P.3d 1030.
In this petition, Mother is challenging the District Court's determination that she is not financially eligible for appointed counsel. Initially, the District Court directed OPD to assign counsel to Mother upon her request. However, OPD moved to vacate the assignment order, arguing that it lacks the statutory authority to represent indigent parents subject to involuntary termination proceedings under Title 42.
The District Court granted OPD's motion, vacating the appointment and also ruling that Mother was not entitled to appointed counsel. However, after further consideration, and in light of A. W.S., the court sua sponte vacated its ruling, requested further briefing, and set a hearing to determine if Mother was financially eligible for appointed counsel. Counsel from MLSA specially appeared on Mother's behalf. The court also requested briefing from K.W.M. because it questioned whether she might be responsible for Mother's legal fees under §§ 42-7-101 and -102, MCA.
Section 42-7-101(1)(i), MCA, provides that an adoptive parent may pay legal fees incurred for services on behalf of a placing parent. Section 42-7-102(2), MCA, provides that an adoptive parent may pay the cost of providing legal counsel for a relinquishing birth parent. In its previous, vacated order, the District Court concluded that neither statute applied to Mother because she was neither a "placing" nor "relinquishing" parent.
At the hearing, the court advised the parties that the hearing was for the limited purpose of determining if Mother "is indigent relative to the issue of appointment of counsel for her." Mother, via counsel, asserted that the court had already determined her to be indigent when it appointed OPD. Mother also objected to K.W.M.'s participation because an indigency determination is supposed to be a non-adversarial proceeding.
The court responded that A. W.S. did not hold that OPD could be appointed in such cases and explained that it believed K.W.M. had a right to participate because §§ 42-7-101 and -102, MCA, suggested that she could be responsible for Mother's legal fees.
The court heard testimony from the child's father, who offered evidence that Mother was enjoying a comfortable lifestyle with her current partner, including a text message he received from Mother that described their shared home as being in "a golf club gated community" with various amenities and social media postings documenting Mother's attendance at rock concerts and vacations in 2019 and 2020.
Mother also testified at the hearing, stating that she had been residing for the past four years in a four-bedroom, three-bathroom home owned by her partner in a gated community in New Jersey. She testified that the household consisted of herself, her daughter from a previous relationship, her partner, and his two children. Mother further testified that she worked two or three days a week for her partner's business and he paid her $100 per day worked. Mother testified that she paid for her and her daughter's necessities out of this income and she had no other assets; she drove one of her partner's vehicles, and he paid for her expenses when she accompanied him on trips. Mother denied knowledge of his income or whether he had a mortgage on the home. She further testified that her daughter who resides with her qualifies for Medicaid and free school lunches.
On March 25, 2021, the District Court issued Findings of Fact, Conclusions of Law and Order Following Hearing Regarding Indigency Determination. Using OPD's indigency determination method found in § 47-1-111, MCA, the court concluded Mother was not indigent. Section 47-1-11 l(3)(a), MCA, provides that an applicant is indigent if the applicant's gross household income is less than 133% of the poverty level set according to the most current federal poverty guidelines. Pointing out that the statute requires that the entire household's income must be taken into consideration in determining indigency, the court found it undeniable that the gross household income of Mother's householdexceeded that threshold. Since Mother was not indigent, Mother was not entitled to appointed counsel.
OPD defines "household" in its Administrative Policy 105 as "an association of persons who live in the same dwelling, sharing its furnishings, facilities, accommodations, and expenses."
Mother petitioned this Court for a writ of supervisory control, arguing that the District Court erred in concluding she is not financially eligible for appointed counsel.
Supervisory control is an extraordinary remedy that may be invoked when the case involves purely legal questions and urgent or emergency factors make the normal appeal process inadequate. M. R. App. P. 14(3). The case must meet one of three additional criteria: (a) the other court is proceeding under a mistake of law and is causing a gross injustice; (b) constitutional issues of state-wide importance are involved; or (c) the other court has granted or denied a motion for substitution of a judge in a criminal case. M. R. App. P. 14(3)(a)-(c). Whether supervisory control is appropriate is a case-by-case decision. Stokes v. Mont. Thirteenth Judicial Dist. Court, 2011 MT 182, ¶ 5, 361 Mont. 279, 259 P.3d 754 (citations omitted).
In this case, the purely legal question of whether the District Court correctly used the guidelines for determining indigency found in Title 47 is at issue. However, to be susceptible to review via writ of supervisory control, the issue must also have no adequate remedy on appeal. M. R. App. P. 14(3). Mother argues that for reasons of judicial economy the normal appeal process is inadequate: Mother has a constitutional right to fundamentally fair proceedings and if the District Court erred in concluding she is not entitled to appointed counsel, this case will be reversed on appeal.
This Court has held that conserving resources, without more, is insufficient grounds to justify supervisory control where a party can seek review on appeal and there is no evidence that such appeal would be inadequate. Yellowstone Elec. Co. v. Mont. Seventh Judicial Dist. Court, No. OP 19-0348, 397 Mont. 552, 449 P.3d 787 (table) (Aug. 6, 2019). Mother alleges that in this instance, allowing the termination and adoption to proceed in spite of a significant possibility of reversal on appeal would not be in the best interest of the child, and the best interest of the child is of paramount consideration in Title 42 matters. See, e.g., § 42-5-106(1)(e), MCA (court shall issue a decree of adoption if it is in the best interest of the child); § 42-5-107(1), MCA (court shall consider all relevant factors in determining best interest of the child); § 42-5-109(9), MCA (decree of adoption must state that the adoption is in the best interest of the child). We agree that in this instance, grounds beyond merely conserving resources allow this petition to proceed because prolonging this litigation would not be in the child's best interest and it would unquestionably be reversible error if the District Court erred in denying Mother appointed counsel.
Mother further argues that allowing the ruling to stand would create a gross injustice because she would be faced with a substantial disadvantage in the involuntary termination proceeding if she is forced to proceed without counsel. She points to A.W.S., ¶ 25 (citation omitted): "If an indigent parent is unrepresented at the termination proceedings, the risk is substantial that the parent will lose her child due to intimidation, inarticulateness, or confusion."
Mother points out that Title 42 does not provide a mechanism for determining whether a parent is financially eligible for appointed counsel. She asserts the District Court erred by using Title 47 to make its determination in this case. She argues the court should have used the standards found in Title 25 instead. In its response, OPD takes no position on whether the eligibility determination should be made under Title 47 or Title 25 or whether Mother is indigent.
In A W.S., we settled the question of whether indigent parents are entitled to counsel in involuntary termination proceedings under Title 42, while leaving the "manner of appointment of counsel in each case to the district courts' discretion." A.W.S., ¶ 26 n.3. While we directed those courts to determine whether the parent is indigent, we did not specify how the court should do so. Similarly in In re L.F.R., ¶ 17, we reversed and remanded, directing the district court to appoint counsel for the father "if it determines he is financially eligible," but we did not direct the court to employ a specific method for determining financial eligibility. Underlying A.W.S. and In re L.F.R. is the principle that indigent parents facing involuntary termination have a right to appointed counsel regardless of whether the termination is pursuant to Title 41 or Title 42. Because parents at risk of losing their parental rights under the provisions of Title 41 are statutorily entitled to counsel, we concluded that equal protection requires that parents at risk of losing their parental rights under the provisions of Title 42 are also entitled to counsel. We concluded that extending coverage of the statutory right to counsel found in § 41-3-425(2)(a), MCA, to cover Title 42 is the appropriate remedy. A. W.S., ¶ 24.
In this instance, Mother argues the District Court erred by failing to use Title 25 to determine whether she is financially eligible for appointed counsel. Mother argues that under the Title 25 standards, her partner's income and assets would not have been imputed to her and the court would have correctly determined that she is eligible for appointed counsel. Section 25-10-404(1), MCA, provides in part that a person may request a waiver of filing fees and court costs by filing an affidavit, supported by a financial statement, asserting that the person is unable to pay the court costs. The form that a person uses to request waiver of fees and costs under this statute, "Statement of Inability to Pay Court Costs and Fees" (Statement), is found at Admin. R. M. 23.2.301 (2018). The Statement indicates that if a person receives one or more of certain benefits, including Medicaid, the person need not provide any additional financial information in order to qualify for a waiver.
Even though the District Court had waived Mother's filing fees and court costs under § 25-10-404(1), MCA, it looked to § 47-1-111, MCA-the statute OPD uses to determine financial eligibility for its services-to determine if Mother was indigent for purposes of appointing counsel. As provided in § 47-1-111(3), MCA:
An applicant is indigent if:
(a) the applicant's gross household income is at or less than 133% of the poverty level set according to the most current federal poverty guidelines updated periodically in the Federal Register by the United States department of health and human services under the authority of 42 U.S.C. 9902(2); or
(b) the disposable income and assets of the applicant and the members of the applicant's household are insufficient to retain competent private counsel without substantial hardship to the applicant or the members of the applicant's household.
In the petition pending before this Court, Mother does not challenge the District Court's determination that she would not be financially eligible for appointed counsel under the standards used in Title 47; she only challenges whether those are the correct standards to apply in her case.
Mother argues that the District Court erred in applying OPD's financial eligibility guidelines to evaluate her right to counsel. She maintains that the court should have instead used the financial eligibility guidelines the court employs to determine if the court should waive costs and fees. We agree with Mother that the eligibility determination of Title 47 is an imperfect fit because it is generally conducted by OPD after court appointment. However, the eligibility determination of Title 25 is also an imperfect fit because it is not generally employed to determine financial eligibility for appointment of counsel. In the case of indigent parents subject to involuntary termination proceedings under Title 42, their right to appointed counsel arises not from statute but from case law. Thus it is no surprise that the statutes pertaining to indigency determination are not precisely tailored to this situation.
We conclude that the District Court did not err by employing § 47-1-111, MCA, to determine whether Mother was financially eligible for appointed counsel. The standards in Title 47 are more relevant to the question of financial eligibility for appointed counsel as they are specifically intended to determine whether a person meets the financial criteria for appointed counsel, while the Title 25 criteria are typically used to determine whether a court will waive its fees and costs. Because indigent parents under Title 41 and Title 42 have the same right to counsel, they should be subject to the same standards for financial eligibility for appointed counsel. Section 47-1-111(6), MCA, requires that determinations be made "in a consistent manner throughout the state." Section 47-1-111 (7)(a), MCA, directs the establishment of procedures and rules that "ensure that the eligibility determination ... is fair and consistent statewide[.]" Making all eligibility determinations under the same statutory scheme promotes such fairness and consistency.
In A. W.S., ¶ 24, we held that the "categorical right to counsel to indigent parents in state-initiated termination proceedings" found in § 41-3-425, MCA, was extended to indigent parents in privately initiated involuntary termination proceedings under Title 42. Section 41-3-425(2)(a), MCA, provides that the eligibility determination for appointed counsel be made pursuant to § 47-1-111, MCA. We see no reason why the extension of the right to appointed counsel should not be determined by application of the same eligibility criteria.
As to Mother's argument that the District Court erred in allowing K.W.M. to participate in the hearing, we agree with Mother that an indigency determination should be a non-adversarial process. However, we are mindful that A.W.S. provided minimal guidance to the District Court, simply directing it to make the indigency determination. In this instance, the District Court reasonably questioned whether it could order K.W.M. to pay Mother's attorney fees under §§ 42-7-101 and -102, MCA: the possibility that K.W.M. could be liable for those fees gave K.W.M. a stake in the outcome. Moreover, § 47-1-111(1)(f), MCA, provides that any determination of financial eligibility "is subject to the review and approval of the court.” Here, the court bore the responsibility of determining Mother's financial eligibility. It may have been preferable for the court to have made its determination in a non-adversarial setting; however, the underlying facts, and thus the outcome, would have been the same. Any error the District Court made in allowing K.W.M. to participate was harmless.
Having considered Mother's petition. OPD's response, and their respective appendices, we conclude the District Court is not proceeding under a mistake of law as to its determination that Mother is not entitled to appointed counsel because she does not meet the financial eligibility requirements. Therefore, supervisory control is not appropriate in this case.
IT IS THEREFORE ORDERED that this Petition for a Writ of Supervisory Control is DENIED.
The Clerk is directed to provide immediate notice of this Order to counsel for Petitioner, the Office of the State Public Defender, all counsel of record in the Sixth Judicial District Court. Park County. Cause No. DA-2020-16, and the Honorable Brenda R. Gilbert, presiding.