No Parental Standing to Challenge a Child’s Counsel in Termination Proceedings: A Commentary on Matter of C.M.B., 2025 MT 272

I. Introduction

In Matter of C.M.B., 2025 MT 272, the Montana Supreme Court confronted two significant issues in the context of a child-protection and termination-of-parental-rights proceeding:

1. Whether a parent has standing to assert that the child’s court-appointed counsel rendered ineffective assistance to the child.
2. Whether the district court abused its discretion in terminating the mother’s parental rights without adequately considering the child’s mental condition and the likelihood that the mother’s condition would change within a reasonable time.

The case arises out of a long history of CPS involvement with T.C. (“Mother”), J.B. (“Father”), and their child, C.M.B., in Missoula County. After years of reports of domestic violence, substance use, criminal conduct, and instability, the Department of Public Health and Human Services, Child and Family Services Division (CFS or “the Department”) petitioned for emergency protective services and later for termination of parental rights.

Central to the appeal is an unusual and important question: may a parent, in appealing termination of their own parental rights, attack the effectiveness of the separate attorney appointed to represent the child? The Court answers no, emphasizing fundamental limits on “standing” and clarifying the status and representation of children in Youth in Need of Care (YINC) and termination proceedings.

At the same time, the Court affirms the termination decision, holding that the district court properly weighed the statutory factors under Montana’s child protection statutes and adequately considered both the mother’s progress and the child’s mental health needs and trauma.

II. Summary of the Opinion

A. Parties and Procedural Posture

• Mother (T.C.) – Appellant, whose parental rights to C.M.B. were terminated by the Fourth Judicial District Court, Missoula County (Judge Jason T. Marks).
• Father (J.B.) – Signed a consent to adoption and relinquishment of parental rights; his rights were also terminated, but he is not an active appellant.
• C.M.B. – The subject child, born October 2018, adjudicated a Youth in Need of Care (YINC); represented by appointed counsel, Shannon Hathaway.
• The State / Department – Child and Family Services Division, represented by the Attorney General and Missoula County Attorney.

The district court terminated Mother’s parental rights under § 41‑3‑609(1)(f), MCA, after concluding she failed to comply with a court-approved treatment plan and that her conduct or condition was unlikely to change within a reasonable time. The child had been in out-of-home care for more than 15 of the most recent 22 months, triggering the statutory presumption that termination is in the child’s best interests under § 41‑3‑604(1), MCA.

B. Issues on Appeal

1. Standing and ineffective assistance of child’s counsel:
   Mother contended that the child’s attorney, Hathaway, rendered ineffective assistance by:
   • failing to advocate for the child’s expressed wish to maintain a relationship with Mother and not be adopted, and
   • instead joining the Department’s proposed findings supporting termination under a “substituted judgment” approach.
   Mother claimed this violated C.M.B.’s statutory and constitutional right to counsel under § 41‑3‑425, MCA, and Article II, Section 17 of the Montana Constitution.
2. Abuse of discretion in termination decision:
   Mother argued that the district court:
   • failed to give proper weight to her progress in addressing substance use and instability; and
   • failed to adequately consider the child’s mental condition, especially her sadness and stated desire to be with Mother, when concluding that Mother’s condition was unlikely to change in a reasonable time.

C. Holdings

• No standing to assert child’s ineffective assistance claim. The Court held that Mother lacked standing to assert that the child’s attorney provided ineffective assistance in violation of the child’s statutory and constitutional rights. Under Montana’s prudential standing doctrine, a litigant generally may assert only her own constitutional rights, not those of another; the Court applied this rule to a child’s right to counsel in YINC/termination proceedings.
• Termination affirmed; no abuse of discretion. The Court concluded that substantial credible evidence supported the district court’s findings that:
  • Mother failed to meaningfully engage with her treatment plan and remained unable to provide a safe and stable home; and
  • her conduct or condition was unlikely to change within a reasonable time, given her history of domestic violence, criminal behavior, chronic substance use, and lack of stability.
  The district court adequately considered both the child’s mental health (PTSD and generalized anxiety disorder) and the statutory directive that the child’s emotional, mental, and physical well-being is paramount.

III. Detailed Case Background

A. Family Circumstances and CPS Involvement

The record shows extensive prior involvement of Child and Family Services with Mother and her children:

• From 2017 to 2023, approximately 20 reports were made to CFS regarding the children’s safety, citing concerns about substance abuse, mental health, and domestic violence.
• In 2017, Mother was arrested for allegedly stabbing Father in the presence of the children.
• A prior EPS/TLC proceeding was initiated in 2022; the children were placed in the Department’s custody but that proceeding was dismissed about a year later. Unknown to CFS at the time of dismissal, Mother had new felony charges from an October 2022 robbery.

The current case arose after a May 10, 2023 incident involving law enforcement and Mother’s boyfriend, Jose Mosqueda:

• Police responded at 5:40 a.m. to a call from one of the older half-siblings reporting Mother was screaming in pain.
• Officers found Mother outside, bleeding from her eye, but she was uncooperative and gave inconsistent explanations for her injury.
• Believing Mosqueda might be armed and inside with the children, officers entered and found only the children present. The home was unsanitary; domestic violence was suspected.
• Mother appeared more concerned with protecting Mosqueda than fearful of him.

In interviews, C.M.B. reported that Mother and Mosqueda frequently hit each other, sometimes open-handed, sometimes with closed fists. She stated that Mother and her siblings were “safe,” but described Mosqueda as unsafe. CPS removed the children and placed them in kinship care; later, the older siblings went to live with their biological father in eastern Montana, while C.M.B. entered non-kinship foster care.

B. YINC Adjudication and Treatment Plan

The Department petitioned for emergency protective services, adjudication as a Youth in Need of Care, and temporary legal custody (TLC). Mother stipulated, and on June 26, 2023, the district court adjudicated C.M.B. a YINC, explicitly finding that continued placement in the home would be contrary to the child’s welfare and that out-of-home placement was in her best interests.

Counsel Shannon Hathaway was appointed to represent C.M.B. under § 41‑3‑425, MCA, and participated throughout the proceedings. CASA Lauren Pierce also served as the child’s Court Appointed Special Advocate.

Mother initially engaged in supervised visitation but then missed visits and lost contact as her criminal issues and substance-use violations (failed urinalysis, living in her car, unstable housing) mounted. She signed a treatment plan in July 2023 but largely failed to follow through.

C. Movement Toward Termination

As time passed, the Department sought extensions of TLC, discussed potential out-of-state kin placements (including California), and attempted to place C.M.B. with her siblings’ father. Those efforts faltered, leaving the child in long-term foster care near Sidney, Montana. At a June 25, 2024 hearing, Hathaway expressed concern that the abrupt loss of Mother’s presence and contact was “very difficult” for the child, and encouraged keeping her with siblings if possible.

By September 2024, C.M.B. had been in out-of-home care for over 15 of the last 22 months. The Department filed to terminate both parents’ rights under § 41‑3‑609(1)(f), MCA, invoking the statutory presumption of § 41‑3‑604(1), MCA, that such termination is in the child’s best interests once the “15 of 22 months in care” threshold is met.

Father consented to adoption and relinquished his parental rights. The case proceeded to a contested termination hearing in December 2024 as to Mother.

D. Evidence at the Termination Hearing

• Child’s therapist: Diagnosed C.M.B. with PTSD and generalized anxiety disorder. She testified that the child’s play therapy featuring dolls was “borderline scary,” reflecting troubling attributes assigned to the “parent” doll. She opined that the child did not trust Mother because Mother failed to “show up” and that the child needed consistency and permanency.
• Mother’s probation officer: Reported poor compliance with a suspended sentence: continued illegal drug use, missed UAs, and lack of employment.
• CPS Pickett: Described the history of CFS involvement, Mother’s failure to engage with the treatment plan, and continuing substance abuse. She concluded Mother struggled even to care for her own needs, lacked capacity to meet C.M.B.’s needs, and had not demonstrated “sustained change.”
• Positive evidence for Mother:
  • A peer support specialist from Recovery Centers of Montana testified that Mother often exceeded program hour requirements and had assumed a leadership role in her recovery group.
  • Mother’s grandmother and a Healthy Foundations specialist testified about the bond between Mother and child and Mother’s positive interactions with C.M.B. in visits.
  • An administrator from Ignatia’s House Sober Living opined that, with sufficient time, Mother might secure a sober living placement that would allow C.M.B. to live with her.
• Child’s wishes: One of the older siblings testified she had seen C.M.B. only twice since separation, and that C.M.B. said she did not want to be adopted.
• Child’s counsel’s position: Hathaway joined the Department’s proposed findings and conclusions supporting termination, explicitly invoking a “substituted judgment” analysis. She explained that, given the child’s age and diminished capacity as a minor to understand the legal proceedings and long-term risks, it was in C.M.B.’s best interests not to continue a relationship with Mother that could draw the child back into the CFS system. She noted Mother’s history of criminal behavior and use of dangerous drugs during prior trial home visits.

E. District Court’s Order

The district court found there was “an extensive record” and made detailed findings, including that:

• Mother had not provided a safe and stable home for the child.
• Mother’s long absences had “a huge impact” on the child’s well-being.
• Mother’s engagement with the treatment plan was minimal; she had not taken accountability for her role in the removal.
• Mother’s conditions—including excessive use of intoxicants, untreated emotional and mental health issues, criminal behavior, and chronic inability to protect the child from unsafe people—rendered her unable to care for the child, and those conditions were unlikely to change within a reasonable time.

The court also expressly discussed C.M.B.’s mental health diagnoses, the trauma she had already experienced, and the emotional toll of prolonged foster care, concluding that permanency through termination was in the child’s best interests.

IV. Precedents and Doctrinal Framework

A. Standing and the “Own Rights” Rule

The Court situates the standing inquiry in settled Montana jurisprudence:

• F.H. v. C.P.H. (In re D.A.H.), 2005 MT 68, ¶ 8 – Standing is a person’s right to make a legal claim or seek judicial enforcement of a duty or right.
• Dick Anderson Constr., Inc. v. Monroe Constr. Co., L.L.C., 2009 MT 416, ¶ 46 – Standing is a threshold justiciability requirement that courts must address even sua sponte.
• Heffernan v. Missoula City Council, 2011 MT 91, ¶¶ 30, 33 – A party must have a personal stake (a past, current, or threatened property or civil interest) and, as a prudential matter, “a litigant may only assert her own constitutional rights or immunities.”
• Jones v. Montana University System, 2007 MT 82, ¶ 48 – Reiterates that litigants may only assert their own constitutional rights.
• Montana Environmental Information Ctr. v. Dept. of Environmental Quality, 1999 MT 248, ¶ 41, and Gryczan v. State, 283 Mont. 433 (1997) – Reinforce the requirement of a concrete, personal interest.

The most important precedent for this case is In re B.F., 2004 MT 61, ¶¶ 16–19. There, a biological mother (S.W.) attempted to assert statutory and due process notice rights on behalf of her children’s biological fathers. The Court held:

“[R]egardless of whether or not the Foster Parents fully complied with the notice statute, S.W.’s rights were not compromised nor was she injured by any alleged statutory violation.” (In re B.F., ¶ 16)

Thus, S.W. lacked standing because she was trying to vindicate third parties’ rights (the fathers’), not her own. The Court in Matter of C.M.B. directly invokes this line of authority to conclude that Mother cannot litigate the child’s right to effective counsel.

B. Children as Parties with Independent Rights: In re K.H.

In re K.H., 2012 MT 175, is pivotal. There, the Court held:

• Children are parties to YINC proceedings, not mere subjects, particularly where they are identified in the petition and are statutorily entitled to counsel under § 41‑3‑425, MCA. (In re K.H., ¶ 25)
• Section 41‑3‑101(1), MCA, recognizes that a child is entitled “to assert the child’s constitutional rights.”
• Children represented by their own attorneys can appeal independently of parents and guardians ad litem. (In re K.H., ¶¶ 26–31)

Most relevant here, K.H. squarely addressed the role of a child’s attorney where the child’s expressed wishes conflict with the attorney’s assessment of the child’s best interests. The Court held that the children’s attorney did not exceed his role “by advocating for their adjudication as youths in need of care despite the children’s expressed desire to return to Mother’s custody.” (In re K.H., ¶ 31.)

The Court drew on Marriage of Rolfe, 216 Mont. 39, 699 P.2d 79 (1985), which emphasized:

• Children’s wishes “deserve serious consideration.”
• But an attorney’s duty to pursue the client’s lawful objectives is affected when the client’s ability to make adequately considered decisions is impaired due to minority or other factors. (Rolfe, 216 Mont. at 51–52.)

K.H. thus endorses a version of the “substituted judgment” or diminished-capacity framework: a child’s attorney must consider the child’s expressed preferences, inform the court of them, but may nonetheless advocate for YINC adjudication (or, by extension, termination) when the attorney reasonably concludes the child cannot fully appreciate the risks and long-term consequences.

C. Role of Child’s Counsel and Substituted Judgment: In re K.M. and Rolfe

The Court in Matter of C.M.B. further cites In re K.M. (not fully set out in the opinion), for the proposition that:

“To that end, a child’s counsel must inform the district court of the client’s wishes that are, in the lawyer’s opinion, contrary to the best interest of the child.” (¶ 21)

This principle, connected to Rolfe and K.H., frames the duties of child’s counsel in situations of conflicting “expressed wishes” and “best interests”:

1. Counsel must consult with the child and ascertain the child’s wishes.
2. Counsel must communicate those wishes to the court, particularly where they diverge from counsel’s best-interest assessment.
3. However, because of the child’s minority/diminished capacity, counsel is permitted – and sometimes obligated – to advocate for a position contrary to the child’s stated preference if counsel reasonably believes that is necessary to protect the child from serious harm and is in the child’s long-term best interests.

In Matter of C.M.B., Hathaway explicitly adopted a “substituted judgment” analysis based on the child’s age and diminished understanding of the implications of reunification or continued legal ties to Mother.

D. Termination of Parental Rights: Standards and Review

The Court’s review is guided by:

• In re M.D.M., 2002 MT 305, ¶ 12 – Termination of parental rights is reviewed for abuse of discretion.
• Matter of C.P., 2001 MT 187, ¶ 9 – An abuse of discretion occurs when the court acts arbitrarily, without conscientious judgment, or beyond the bounds of reason resulting in substantial injustice.
• In re A.R., 326 Mont. 7, 107 P.3d 457, and In re D.T.H., 2001 MT 138 – In YINC proceedings, factual findings are reviewed for clear error; conclusions of law for correctness.

Substantively, the governing statutes are:

• § 41‑3‑609(1)(f), MCA – Allows termination when:
  • a court-approved treatment plan has been unsuccessful; and
  • the conduct or condition rendering the parent unfit is unlikely to change within a reasonable time.
• § 41‑3‑609(2), MCA – Requires the court to find that continuation of the parent-child relationship will likely result in continued abuse or neglect, or that the parent is unfit, unable, or unwilling to give adequate parental care. In making this determination, the court must consider factors such as:
  • emotional or mental illness of the parents,
  • history of violent behavior,
  • excessive use of intoxicants, among others.
• § 41‑3‑609(3), MCA – Emphasizes that the primary concern is always the child’s emotional, mental, and physical well-being.
• § 41‑3‑604(1), MCA – Creates a presumption that termination of parental rights is in the child’s best interests if the child has been in foster care or state custody for 15 of the most recent 22 months.

The opinion also references In re A.D.B., 2013 MT 167, ¶ 64, which holds that the Due Process Clause of the Montana Constitution guarantees parents effective assistance of counsel in termination proceedings. That case is important as baseline context: it establishes that parents have a constitutional right to effective counsel when the State seeks to terminate their rights. In Matter of C.M.B., Mother attempts to extend an analogous right to the child and to litigate its enforcement herself – and it is this move the Court rejects on standing grounds.

V. The Court’s Legal Reasoning in Matter of C.M.B.

A. Issue 1 – Standing to Assert Ineffective Assistance of the Child’s Counsel

1. Mother’s Argument

Mother argued:

• C.M.B. had statutory and constitutional rights to counsel (citing § 41‑3‑425, MCA, and Article II, Section 17).
• Hathaway violated those rights by failing to advocate for the child’s “express wishes” to remain with Mother and avoid adoption.
• Hathaway’s use of “substituted judgment,” in the absence of true diminished capacity, created a conflict of interest and denied C.M.B. effective assistance.
• Because C.M.B. is the subject of the proceedings and Mother’s own fundamental right to parent is at stake, Mother should have standing to object when the child’s right to counsel is allegedly violated.

2. The State’s Response

The State responded that § 41‑3‑101(1)(e), MCA, expressly states that “a child is entitled to assert the child’s constitutional rights” and that Montana’s prudential standing rules bar Mother from asserting the child’s rights for her. Ineffective-assistance claims relating to the child’s counsel, if they exist, belong to the child, who is a separate party, not to the parent.

3. The Court’s Application of Prudential Standing Doctrine

The Court adopts the State’s position, drawing heavily on Heffernan, Jones, and particularly In re B.F.:

• The Court reiterates that standing requires the litigant to have a personal stake and a remediable interest, and that prudentially, a litigant generally may only assert her own constitutional rights or immunities. (¶¶ 18, 22)
• Mother has not shown that her own rights were violated by any alleged deficiency in the child’s representation. Rather, she asserts the child’s statutory and constitutional rights to counsel.

The Court concludes that Mother is, in effect, attempting to litigate a third party’s rights – akin to S.W.’s attempt to litigate the fathers’ rights in In re B.F.. As in B.F., where S.W. herself had full notice and her own rights were not impaired, the Court finds no personal constitutional injury to Mother here from any alleged violation of the child’s right to counsel.

4. Role of Children’s Status and Representation

The Court underscores that its application of the prudential standing rule “is based upon the status of children within the proceeding and the provision for their representation.” (¶ 22) It relies on In re K.H. to emphasize:

• Children are parties to YINC/termination proceedings.
• They are individually represented by counsel appointed under § 41‑3‑425, MCA.
• They have statutory recognition of their right to assert constitutional claims under § 41‑3‑101(1), MCA.

Because the child is thus independently represented and capable (through counsel) of asserting her own constitutional rights, the Court sees no justification for allowing Mother to serve as a surrogate litigant for those rights.

5. Substituted Judgment and No Deprivation of the Child’s Rights

The Court also implicitly signals that, on the merits, Hathaway’s actions fit comfortably within existing law:

• Citing Rolfe, In re K.H., and In re K.M., the Court reaffirms that:
  • A child’s wishes “deserve serious consideration,” but
  • The child’s attorney may consider the child’s diminished capacity due to minority, must inform the court of the child’s wishes, and may still advocate contrary to those wishes when they conflict with the child’s long-term best interests.
• Hathaway explicitly used a “substituted judgment” framework, based on the child’s age and the risk of repeated reentry into the system if Mother’s instability persisted.
• Hathaway actively questioned witnesses and filed notice explaining her reasoning, which tracked the concerns recognized in K.H. and K.M..

While the Court does not perform a full ineffective-assistance analysis (because it finds Mother lacks standing), it clearly signals that Hathaway’s approach is consistent with the appropriate role of child’s counsel in Montana.

6. Possibility of Future Flexibility

The Court carefully notes that the rule against third-party standing is prudential, not jurisdictional:

“As a prudential rule, it is possible that circumstances could arise, including statutory revisions, which would possibly permit another to assert rights or immunities on behalf of the children. … However, those circumstances are not present here, and we see no basis to depart from the application of this ‘general rule.’” (¶ 22)

This passage leaves open the possibility that, for instance:

• The Legislature could create a statutory mechanism for parents, guardians, or other specified parties to challenge a child’s counsel’s performance; or
• Courts could craft limited exceptions for conflicts of interest or structural deficiencies in child representation.

But under current law, in these circumstances, Mother has no standing to assert a claim that C.M.B.’s counsel rendered ineffective assistance.

B. Issue 2 – Whether Termination Was an Abuse of Discretion

1. Mother’s Argument

Mother contended:

• The district court undervalued her progress: her engagement in intensive recovery programming, leadership role in peer support, and potential for future sober housing with capacity to include the child.
• The child’s mental state – described as “uncertainty and sadness” and a desire to remain with Mother – was not adequately weighed. She emphasized that prolonged foster care and separation were themselves harmful to the child.

2. Statutory Framework Applied by the Court

The Court examined the district court’s decision under § 41‑3‑609(2), MCA, noting:

“In determining whether … the conduct or condition of the parents is unlikely to change within a reasonable time, ‘the court shall enter a finding that continuation of the parent-child legal relationship will likely result in continued abuse or neglect or that the conduct or the condition of the parents renders the parents unfit, unable, or unwilling to give the child adequate parental care.’” (¶ 24)

The district court was required to consider several statutory factors, including:

• emotional or mental illnesses or disorders of the parent,
• history of violent behavior, and
• excessive use of intoxicants. (§ 41‑3‑609(2)(a)–(c), MCA)

Section 41‑3‑609(3), MCA, adds that the primary concern is the child’s emotional, mental, and physical well-being. And § 41‑3‑604(1), MCA, created a presumption that termination was in C.M.B.’s best interest, as she had been in out-of-home care for more than 15 of the most recent 22 months.

3. Consideration of the Child’s Mental Health

Contrary to Mother’s assertion that the court minimized the child’s mental status, the Supreme Court emphasized that the district court:

• Considered the CASA report documenting that the child had suffered emotionally and mentally from being in foster care for over 15 months and from lack of contact with Mother for nearly six months;
• Discussed the diagnoses of PTSD and generalized anxiety disorder, and situational distress related to separation and uncertainty;
• Recognized that these conditions arose from Mother’s inability to provide proper care, stability, and progress on treatment and visitation goals.

Importantly, the Court characterizes the child’s mental health status not as a reason to prolong the legal relationship, but as a consequence of Mother’s longstanding instability and exposures—domestic violence, criminality, and chronic neglect.

4. Weighing Mother’s Progress Versus Long-Term Pattern

While acknowledging some recent positive developments (inpatient treatment, peer support participation, leadership role), the Court focuses on the overall track record:

• Repeated domestic violence in the home, including the 2017 stabbing of Father and ongoing violence with Mosqueda.
• Criminal behavior including felony offenses from a robbery in October 2022 and probation violations (continued drug use, missed UAs, lack of employment).
• Minimal engagement with the case plan; Mother failed to meet with CPS, missed visits, and often could not provide stable housing.
• Evidence that she had not yet engaged in the intensive, targeted trauma therapy necessary to address her “significant trauma,” nor demonstrated “sustained change” in sobriety and stability.

Against this record, the Court endorses the district court’s finding that Mother “has not made significant demonstrable changes that show she can be stable and sober in the community and that would ensure Youth would no longer be subjected to trauma and neglect by Mother.” (¶ 26)

5. No Abuse of Discretion

Reviewing for abuse of discretion and clear error in factual findings, the Supreme Court holds:

• The district court’s findings regarding Mother’s instability, substance use, criminal conduct, domestic violence, and failure to comply with the treatment plan are supported by “substantial and credible evidence.” (¶ 27)
• The court properly considered the statutory factors under § 41‑3‑609(2) and the overarching requirement that the child’s emotional, mental, and physical well-being is paramount. (§ 41‑3‑609(3))
• Given the length of time the child had already spent in care and the statutory presumption under § 41‑3‑604(1), MCA, it was neither arbitrary nor unreasonable to conclude that Mother’s condition was unlikely to change within a reasonable time.

Therefore, there was no abuse of discretion, and the termination order was affirmed.

VI. Impact and Implications

A. Clarified Rule on Standing to Challenge Child’s Counsel

The most significant new principle from Matter of C.M.B. is the explicit holding that:

A parent in a termination proceeding in Montana does not have standing to assert a claim that the child’s court-appointed counsel rendered ineffective assistance to the child.

Although the Court frames this as an application of an existing prudential rule, this is the first clear application of the “own rights” rule to a child’s statutory and constitutional right to counsel in child-protection cases. Practically, this means:

• On direct appeal from a termination decision, assertions that the child’s representation was deficient cannot be raised by the parent as part of their own appeal.
• Any such challenge would have to be brought by or on behalf of the child – for example, by successor counsel or a representative specifically authorized to assert the child’s rights.

B. Consequences for Enforcement of a Child’s Right to Counsel

The decision exposes a structural tension:

• Montana law strongly affirms that children have a right to counsel in YINC/termination proceedings and are full parties with constitutional rights.
• But it provides no clear, practical mechanism for litigating a child’s counsel’s ineffectiveness, particularly where that counsel remains in place on appeal and is unlikely to raise self-directed IAC claims.

The Court’s suggestion that future “statutory revisions” might allow others to assert children’s rights (¶ 22) can be read as an implicit invitation to the Legislature or rule-makers to:

• Consider specific procedures for appointment of conflict counsel or appellate counsel for children when ineffective assistance is alleged; or
• Authorize certain third parties (possibly guardians ad litem, CASA programs, or designated relatives) to raise structural representation issues on children’s behalf under defined conditions.

C. Strengthening the Role of Child’s Counsel and Substituted Judgment

The Court’s reliance on K.H., K.M., and Rolfe reaffirms that child’s counsel in Montana:

• Must take the child’s expressed preferences seriously and convey them to the court;
• But may adopt a substituted-judgment approach where the child’s minority or trauma impairs their ability to make adequately considered decisions;
• May, therefore, advocate for YINC/termination outcomes directly contrary to the child’s expressed desire for reunification, provided counsel reasonably concludes this is necessary to protect the child’s long-term best interests and informs the court of the conflict.

Matter of C.M.B. effectively ratifies Hathaway’s practice as an exemplar of this role, which will likely reinforce similar approaches by child’s attorneys in future cases, particularly where very young children (like six-year-old C.M.B.) express reunion preferences without the capacity to assess long-term risks.

D. Emphasis on Permanency and Mental Health

The decision underscores the tension between:

• The harm of prolonged foster care and separation (which can exacerbate PTSD, anxiety, and attachment issues), and
• The harm of returning a child to a persistently unstable, violent, or substance-involved environment.

The Court affirms that, under Montana law, the child’s mental health must be considered, but not in isolation:

• Where the child’s mental health conditions are themselves linked to parental neglect, violence, and instability, permanency through termination may be the best route to mitigate ongoing harm.
• The “15 of 22 months” presumption reflects a legislative judgment that children should not remain indefinitely in limbo while parents make only belated or partial progress.

Matter of C.M.B. thus reinforces Montana’s move toward timely permanency planning and emphasizes that late-breaking improvements by parents, while relevant, will often be insufficient to overcome a long history of instability and statutory presumptions once they have solidified.

E. Practical Guidance for Practitioners

• For parents’ attorneys:
  • IAC claims regarding the child’s counsel are not viable grounds for appeal by the parent. Challenges should focus on the parent’s own representation, statutory compliance, factual findings, and legal conclusions.
  • Where there is concern about the child’s counsel’s role, the proper forum is likely the trial court (via motions for new counsel, conflict inquiries), not appellate litigation by the parent.
• For children’s attorneys:
  • This case confirms that substituted judgment is permissible (and sometimes expected) when the child’s capacity is impaired by age or trauma, so long as the child’s wishes are conveyed to the court.
  • Written explanations (like Hathaway’s notice of joining the Department’s findings under a substituted judgment theory) are valuable to demonstrate thoughtful, deliberate representation.
• For trial judges:
  • Ensure child’s counsel is appointed and involved early, and that the record reflects both the child’s wishes and counsel’s rationale where counsel advocates contrary to those wishes.
  • Make explicit findings regarding the statutory factors in § 41‑3‑609(2) and the child’s mental and emotional well-being to create a robust record for appellate review.

VII. Clarifying Key Legal Concepts

1. Standing

“Standing” is the legal requirement that a person must have a sufficient interest in the outcome of a case to bring a claim. In Montana:

• The person must show a past, current, or threatened injury to a property or civil interest that the court can remedy.
• As a prudential rule, a litigant may assert only their own constitutional rights, not someone else’s.

In Matter of C.M.B., Mother lacked standing to assert that her child’s attorney was ineffective, because the right to counsel belonged to the child, not to Mother.

2. Youth in Need of Care (YINC)

A “Youth in Need of Care” (YINC) is a legal designation under Montana law describing a child who is abused, neglected, or otherwise without proper care such that court intervention and protective services are required. Once a child is adjudicated YINC:

• Courts can order out-of-home placements and treatment plans for parents.
• The child becomes a party to the proceeding and is entitled to representation by counsel.

3. Treatment Plan

A “treatment plan” is a court-approved plan developed by CFS and the parent that sets specific goals and tasks (such as substance-abuse treatment, counseling, parenting classes, stable housing, etc.) that the parent must complete to regain custody or avoid termination. Under § 41‑3‑609(1)(f), MCA:

• Failure to comply with or complete the treatment plan, coupled with a determination that the parent’s conduct or condition is unlikely to change in a reasonable time, can justify termination of parental rights.

4. Ineffective Assistance of Counsel (IAC)

“Ineffective assistance of counsel” means that a lawyer’s performance fell below prevailing professional standards and prejudiced the client’s case. In Montana:

• In re A.D.B. holds that parents in termination cases have a constitutional right to effective assistance.
• In Matter of C.M.B., the Court does not decide whether or how a child might pursue an IAC claim, but it does hold that the parent cannot litigate the child’s IAC claim.

5. Substituted Judgment and Diminished Capacity

“Substituted judgment” refers to a lawyer (or decision-maker) acting on what they reasonably believe the client would choose if the client had capacity to understand the situation and its consequences. In child welfare:

• Children often have “diminished capacity” because of age, trauma, or cognitive limitations.
• Montana cases (e.g., Rolfe, K.H., K.M.) allow a child’s attorney to:
  • Consider the child’s wishes,
  • Inform the court of those wishes, but
  • Advocate for a different outcome when the child cannot fully assess risks and benefits.

In Matter of C.M.B., Hathaway used substituted judgment to conclude that supporting termination was in the child’s best interests despite the child’s stated wish not to be adopted.

6. Abuse of Discretion and Clearly Erroneous Findings

• Abuse of discretion: A court abuses its discretion when it acts arbitrarily, without thoughtful judgment, or in a way that exceeds the bounds of reason and results in substantial injustice.
• Clearly erroneous findings: A factual finding is clearly erroneous if:
  • it is not supported by substantial credible evidence in the record,
  • the court misapplied the evidence, or
  • after reviewing the record, the appellate court is firmly convinced that a mistake has been made.

In Matter of C.M.B., the Supreme Court found neither abuse of discretion nor clearly erroneous findings in the termination decision.

VIII. Conclusion: Significance in Montana Child Protection Law

Matter of C.M.B. is a significant opinion in Montana’s child-protection jurisprudence for two main reasons:

1. It draws a clear boundary around who may litigate the rights of children’s counsel.
   The Court firmly applies the prudential “own rights” standing rule to reject a parent’s attempt to assert ineffective assistance claims on behalf of the child. Children are recognized as separate parties with independent rights and representation. If their right to effective counsel is to be enforced by litigation, it must be done in a manner consistent with that independent status, not piggybacked onto the parent’s appeal.
2. It reaffirms the prioritization of children’s well-being and permanency in termination decisions.
   The Court underscores that long-term patterns of domestic violence, substance abuse, and instability — even in the face of recent progress — can justify termination when the child has already spent prolonged periods in foster care. The child’s mental health must be considered, but where that harm is substantially rooted in the parent’s conduct, permanency through termination may be required to protect the child.

In doing so, the decision strengthens the doctrinal linkage between:

• children’s status as full parties with rights to counsel,
• counsel’s authority to use substituted judgment in light of children’s diminished capacity, and
• the system’s overarching duty to avoid indefinite limbo and to secure stable, permanent homes for children within a reasonable time frame.

Matter of C.M.B. thus stands as a key precedent on parental standing, the role of children’s attorneys, and the balancing of parent-child relationships against the pressing need for safety, stability, and permanency in Montana’s child welfare system.