In re I.M.

2018 MT 61, 414 P.3d 797, 391 Mont. 42
CourtMontana Supreme Court
DecidedMarch 27, 2018
DocketDA 17-0380
StatusPublished
Cited by9 cases

This text of 2018 MT 61 (In re I.M.) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re I.M., 2018 MT 61, 414 P.3d 797, 391 Mont. 42 (Mo. 2018).

Opinion

Justice Ingrid Gustafson delivered the Opinion of the Court.

***43¶ 1 S.M. (Mother) is the biological mother of I.M., O.G., and A.D. J.D. (Father) is the biological father of A.D. Mother and Father appeal the June 5, 2017 orders of the Ninth Judicial District Court, Glacier County, terminating their respective parental rights to the children. We affirm.

¶ 2 We restate the issues on appeal as follows:

1. Whether the District Court erred in admitting Mother's and Father's drug test results at the termination hearing.
2. Whether the District Court abused its discretion in terminating Mother's and Father's parental rights.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 3 I.M. and O.G. were born to Mother in 2011 and 2012, respectively. A.D. was born to Mother and Father on May 8, 2015. Shortly after A.D.'s birth, she began to suffer from withdrawals. On May 11, 2015, A.D. was transported to the NICU at Benefis Hospital in Great Falls, Montana due to the severity of the withdrawals. On May 14, 2015, the Montana Department of Public Health and Human Services (Department) filed a Petition for Emergency Protective Services.

¶ 4 Both parents stipulated to adjudicating the children as youths in need of care and granting temporary legal custody (TLC) to the Department. On January 27, 2016, Mother and Father each stipulated to court-approved treatment plans designed to address their chemical dependency issues, their mental health issues, and their deficient ***44parenting skills. On March 18, 2016, a licensed chemical dependency counselor, Raymond Antonsen (Antonsen), conducted chemical dependency evaluations of both parents. Antonsen diagnosed Mother with a substance abuse disorder and recommended intensive outpatient treatment. Antonsen found Father struggled with substance abuse and recommended Father participate in inpatient services followed by sessions with a provider experienced in treating co-occurring mental health disorders. The District Court extended TLC on multiple occasions to allow both parents time to complete their treatment plans.

¶ 5 On October 11, 2016, the Department petitioned to terminate both parents' parental rights pursuant to § 41-3-609(1)(f), MCA, on the grounds that neither had successfully *800completed their respective treatment plans. The District Court held termination hearings on March 29 and April 12, 2017. The Department presented the following witnesses: Antonsen, Doreen King (King) of Big Sky Testing Services, Dani Walter (Walter) of Compliance Monitoring, Court Appointed Special Advocate Cheryl Lux (CASA Lux), and Child Protective Specialist Amy Krause (CPS Krause).

¶ 6 After Antonsen testified regarding each parent's chemical dependency evaluations, the Department called King to testify. Although King works as a specimen collector at Big Sky Testing Services, she did not perform the actual urinalysis or hair follicle testing. The Department sought admittance of the parents' drug testing results through King, but Father objected on the basis of hearsay and lack of foundation. The District Court sustained the objection. The Department then called Walter to testify. Walter is a urinalysis and hair follicle collector employed by Compliance Monitoring Systems. Neither Walter nor King testified to the drug testing results of the specimens they had collected from the parents. CASA Lux testified regarding the well-being of the children since they began living with the maternal grandparents at the time of removal. CASA Lux recommended permanent guardianship with the grandparents, but agreed termination of Mother's and Father's parental rights may be appropriate. CASA Lux testified she had reviewed the written reports of Mother's and Father's respective drug testing results, but she did not testify as to those results. CASA Lux further testified that her review of the drug test results assisted her in forming her opinion as to the best interest of the children.

¶ 7 The Department's last witness was CPS Krause. The Department again sought admittance of the parents' respective drug testing results through CPS Krause. The Department argued the written reports of ***45the drug testing results were admissible through CPS Krause under the business record exception to the hearsay rule. Counsel for both parents objected based on hearsay and for lack of foundation. The District Court provisionally admitted each parent's drug testing results pending briefing by the parties on whether proper foundation had been laid. CPS Krause proceeded to testify regarding Mother's and Father's failed drug tests. CPS Krause further testified regarding the progress Mother and Father had recently shown with completing their treatment plans, but also testified she did not believe either's progress showed sufficient compliance within a reasonable time.

¶ 8 The parties submitted briefs regarding the admittance of the drug testing results through CPS Krause. The parents both argued the results of their drug tests were hearsay and not admissible without the testimony of a laboratory technician. The Department maintained such was not necessary and that the test results were admissible as an exception to the hearsay rule as a business record. The termination hearing was continued until April 12, 2017. At the outset of the April 12, 2017 hearing, the District Court ruled on the admissibility of the parent's respective drug testing results. The District Court admitted the results of the drug testing through CASA Lux stating the following:

What I'm doing now is I'm going to rule on that and it's kind of strange, but I'm ruling on it based upon what I see as the status of the Mom. The information concerning the results of the drug test is admissible through the CASA person because they can both put it in a report and testify as to matters which are hearsay. Well, there's no doubt that the reports are hearsay. The other issue raised was whether or not they would, the reports would get in through the business record exception, which my reading of the case cited would require a foundation from the creating entity which would be the entity that performed the testing or the actual document could be admitted as a business record, which we didn't have. But the information concerning the test results can and did come in through the CASA and is hearsay, but both statutorily and through case law, a CASA is allowed to testify as part of its investigation and as part of its recommendations, the Court has what's in the best interests of the child basis, the test results are admissible and the information testified to by the CASA concerning those test *801results is admitted and stays on the record. If that's-Did I clarify that? Oh, it made it worse. It's in. That's how it's in. It's not in for a business record exception.

(Emphasis added.)

¶ 9 On June 5, 2017, the District Court issued its Findings of Fact, ***46Conclusions of Law, and Order terminating Mother's parental rights to I.M., O.G., and A.D. and Father's parental rights to A.D.

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Cite This Page — Counsel Stack

Bluebook (online)
2018 MT 61, 414 P.3d 797, 391 Mont. 42, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-im-mont-2018.