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
2
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
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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,
4
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
5
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
6
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
7
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.
8
¶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
9
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.
10
¶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.”
11
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
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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.
13
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.
14
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.
15
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.
16
¶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
17
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
18
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.
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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
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