In re R.J.F.

2019 MT 113, 443 P.3d 387, 395 Mont. 454
Montana Supreme Court·Decided May 14, 2019·No. DA 18-0505·Published·Cited by 28 cases

Opinion

For Appellant: Shannon Hathaway, Montana Legal Justice, PLLC, Missoula, Montana

For Appellee: Timothy C. Fox, Montana Attorney General, Micheal S. Wellenstein, Assistant Attorney General, Helena, Montana, Scott D. Twito, Yellowstone County Attorney, Corbit Harrington, Deputy County Attorney, Billings, Montana

Justice Ingrid Gustafson delivered the Opinion of the Court.

***457¶1 R.U. (Mother) appeals from the termination of her parental rights issued July 27, 2018, by the Thirteenth Judicial District Court, Yellowstone County. We reverse and remand for the Department to engage in reasonable efforts to reunify Mother with R.J.F. (Child).

¶2 We restate the issues on appeal as follows:

1. Whether the Department engaged in reasonable efforts to prevent removal of Child and to reunite Mother with Child.
2. Whether the District Court erred in determining the conduct or condition rendering Mother unfit, unable, or unwilling to parent was unlikely to change within a reasonable time.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 The Montana Department of Health and Human Services, Child and Family Services Division (Department), became involved with Mother and Child when Mother tested positive for methamphetamine and marijuana at Child's birth in October 2016. At that time, Mother was temporarily in Billings, Montana, but lived in North Dakota. The Department removed Child from Mother's care on October 8, 2016. Ten days later, the Department filed its Petition for Emergency Protective Services (EPS), Adjudication as Youth in Need of Care (YINC) and Temporary Legal Custody (TLC) on October 18, 2016.1 Mother returned to Williston, North Dakota-300 miles from Billings-where she resided, owned a residence, and had employment. The Department arranged visits for Mother "whenever she was in town ***458or whenever she could make it to town." At the time, Mother did not have her own car and did not have a driver's license.

¶4 The court initially set the show cause hearing for November 1, 2016, but reset the hearing at the request of the Department to December 20, 2016, the time set for the adjudication and disposition hearing. On December 15, 2016, the Department again requested continuance of the hearings set for December 20, 2016, as it had not yet served putative fathers and needed time to serve them by publication. Despite Mother visiting Child in October and November 2016, and the Department knowing her whereabouts, the Department did not serve Mother with the Petition until December 16, 2016. The court reset the show cause, adjudication, and disposition hearings to February 21, 2017, over four months after Child's removal from Mother.2

¶5 Notwithstanding Mother did not own a car or have a valid driver's license, Mother *390visited Child on October 20, 24, and 27, 2016, and attended his initial well-baby check-up. Mother further visited Child on November 18 and 30, 2017, December 15 and 16, 2017, and January 27, 2017. On January 11, 2017, Mother filed a petition to transfer venue pursuant to § 25-2-201(3), MCA, to Williams County, North Dakota where she resided.3 Hearing on this petition was held February 21, 2017, at the same time as the show cause, adjudication, and disposition hearings. Child protection specialist (CPS) Bertoncelj, then assigned to the case, expressed concern at transferring the case to North Dakota. CPS Bertoncelj noted Mother had been inconsistent with visits, was somewhat disengaged in the last two months, and that ***459she would hate for Child to be removed from the foster parents.4 Child was residing in a non-kinship, foster placement with no ties to any family members, nearly 300 miles away from Mother. Mother's counsel noted the considerable distance between Billings and Williston, Mother's transportation problems, and winter weather as factors interfering with Mother's ability to engage and be present in Billings. He logically pointed out that the Department should be working to increase the bond between Mother and Child, not the bond between the foster parents and Child. The guardian ad litem did not object to Mother's request to transfer the case to North Dakota, advocating only for an orderly transition. The District Court denied the request to transfer venue, indicating she did not have information regarding the social worker in North Dakota and that she would want to talk to a North Dakota judge. The District Court did not direct anyone to obtain more information for her or make any arrangement for her to talk to a North Dakota judge, nor did the parties provide the court with additional information.5 At the completion of the hearing, the District Court adjudicated Child as a YINC and granted the Department TLC for a period of six months. Two and a half months later, the District Court issued its written order denying the transfer.

¶6 CPS Reinhart was the assigned worker from Child's removal until December 2016. CPS Reinhart testified that during this time she worked with Mother on a voluntary service list that included a chemical dependency (CD) evaluation, random drug testing, meeting with her, and visits in Billings. Mother completed the CD evaluation ***460with Kimberly McNamara in October 2016, which recommended Mother engage in outpatient treatment. CPS Reinhart testified to the reasonable efforts she made while assigned this case, "We did visits when we could ... She had prior been living in Williston, North Dakota, she had a house there so she wanted to go back there, and in the end, that's what she did. We set up visits whenever she was in town or whenever she could make it to town." CPS Reinhart also testified she wanted to set up drug testing, but she did not arrange for any such testing in North Dakota, instead relying on Mother to get this set up on her own. Mother was unable to arrange *391for drug testing, or consistently meet with CPS Reinhart or visit Billings.

¶7 In late December 2016, CPS Bertoncelj took over Mother's case. Recognizing Mother's transportation problems, CPS Bertoncelj determined Mother should fly to Billings every couple of weeks for a visit with Child. She also determined since Mother would be coming to Billings every couple of weeks, it would be appropriate for her to obtain services in Billings rather than in North Dakota. As such, CPS Bertoncelj arranged for intermittent flights to Billings6 and introduced Mother to the Center for Children and Families.

¶8 In March 2017, Mother was re-assigned new counsel and the Department filed a motion to approve a treatment plan for her. The proposed treatment plan was approved on April 6, 2017, six months after Child was removed from Mother's care. Despite the Department paying for intermittent plane tickets for Mother to visit Child, Mother had difficulties with transportation, work, and her active addiction. These difficulties significantly interfered with Mother's ability to make her scheduled visits.

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In re R.J.F., 2019 MT 113, 443 P.3d 387, 395 Mont. 454 (Mo. 2019).

2019 MT 113 (In re R.J.F.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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