October 13 2015
DA 15-0199
IN THE SUPREME COURT OF THE STATE OF MONTANA 2015 MT 292
IN THE MATTER OF
C.M., B.M., A.M., E.M., and D.M.,
Youths in Need of Care.
APPEAL FROM: District Court of the Eighth Judicial District, In and For the County of Cascade, Cause Nos. ADN 14-40, ADN 14-41, ADN 14-42, ADN 14-43, and ADN 14-44 Honorable Greg Pinski, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Elizabeth Thomas, Attorney at Law, Hebron, Ohio
Wade M. Zolynski, Chief Appellate Defender, Helena, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, C. Mark Fowler, Bureau Chief, Helena, Montana
John W. Parker, Cascade County Attorney, Ryan Ball, Deputy County Attorney, Great Falls, Montana
Submitted on Briefs: September 9, 2015 Decided: October 13, 2015
Filed:
__________________________________________ Clerk Justice Beth Baker delivered the Opinion of the Court.
¶1 J.M. (Mother) appeals an order entered by the Eighth Judicial District Court,
Cascade County, terminating her parental rights to her five minor children, C.M., B.M.,
A.M., E.M., and D.M. We restate and address the following issues on appeal:
1. Whether the District Court erred in concluding that Mother’s conduct or condition that made her unfit to parent was unlikely to change within a reasonable time.
2. Whether the District Court abused its discretion in terminating Mother’s parental rights.
¶2 We affirm.
PROCEDURAL AND FACTUAL BACKGROUND
¶3 On January 26, 2014, following reports to the Montana Department of Public
Health and Human Services (Department) that children were being exposed to
methamphetamine use, law enforcement officers discovered methamphetamine and drug
paraphernalia in Mother’s home. The officers located three “8 balls” of
methamphetamine as well as “loaded syringes” within reach of the children. The
Department removed the children, who ranged in age from 16 months to 9 years, from
Mother’s care and placed them with their respective natural fathers.1 Four of the five
children tested positively for methamphetamine exposure.
¶4 On January 30, 2014, Child Protection Specialist Becci Dellinger interviewed
Mother. During the interview, Mother stated that she had used methamphetamine in the
1 A.M. is the natural father of C.M., B.M., and E.M. M.M. is the natural father of A.M. J.H. is the natural father of D.M. 2 past. When asked about the drugs and drug paraphernalia found in her home, Mother
said that she had let some people “crash” in her apartment. When asked why she had not
kicked her boyfriend (T.B.) out of the apartment after learning of his methamphetamine
use and distribution, Mother stated that T.B. was “slowing down” his use. Mother denied
regularly using methamphetamine, stating that the only thing she needed help with was
her bipolar disorder. During the interview, Dellinger noted that Mother had very
noticeable black eyes. The next day, Dellinger interviewed five-year-old E.M. E.M.
stated that T.B. kicks her mom and yells at her and when this happens E.M. goes into the
kitchen to hide while C.M. and B.M. cry. E.M. stated “[B.M.] cries when [T.B.] hurts
my mom” and “[T.B.] punches mommy in the tummy until she pukes.” E.M. stated that
she got an “owie” on her forearm from the needle T.B. used to poke her in the arm.
When Dellinger informed Mother of E.M.’s disclosures, Mother stated that E.M. is a liar
and that T.B. had never hurt her in any way.
¶5 After several continuances, the District Court held a show cause hearing on
April 16, 2014. Mother stipulated to adjudication of the children as Youths in Need of
Care and the court granted temporary legal custody to the Department pending a
dispositional hearing. On May 7, 2014, the District Court held a dispositional hearing.
Mother did not appear but was represented by counsel. The District Court ordered a
treatment plan for Mother and awarded temporary legal custody to the Department for a
period of six months to allow Mother time to successfully complete her treatment plan.
3 ¶6 Mother’s treatment plan required that she perform the following tasks to achieve
the treatment plan’s goals: 1) address her chemical dependency issues; 2) demonstrate
effective parenting skills; 3) address her mental health issues; 4) maintain a safe and
stable home environment; 5) attend supervised visitations with her children; and 6) sign
releases of information for the Department and attend weekly meetings with her Child
Protective Services (CPS) worker.
¶7 The District Court held a status hearing on August 6, 2014. Mother did not appear
but was represented by counsel. The Department indicated that Mother had been
disengaged with her treatment plan tasks for some time but recently seemed willing to
participate. The Department stated that it also was willing to reengage with Mother.
¶8 Two months later, Mother was arrested on federal charges for conspiracy to
possess methamphetamine with intent to distribute and conspiracy to distribute. She
pleaded guilty and was awaiting sentencing at the time of the termination hearing. On
October 24, 2014, the Department filed a petition to terminate Mother’s parental rights,
alleging that she failed to successfully complete her treatment plan and was unlikely to
change within a reasonable amount of time.
¶9 The District Court held a termination hearing on February 13, 2015. The
Department presented evidence reflecting Mother’s non-compliance with her treatment
plan. The Department presented letters written by the two oldest children, A.M. and
D.M. In those letters, A.M. and D.M. expressed significant anger and sadness over
Mother’s drug use. They wrote that they “do not feel safe” around their Mother and often
4 went hungry while living with her. A.M. expressed that she often was the one to care for
the other children. The children’s therapist, Robin Castle, testified that the children are
traumatized from their time with Mother and did not want to live with her. Castle also
testified that she thinks the children’s goal is to “someday [have] some kind of
relationship with [Mother].” Mother’s attorney argued against termination and requested
that temporary legal custody be extended or that the matter be dismissed with full custody
granted to the fathers.
¶10 At the conclusion of the hearing, the District Court terminated Mother’s parental
rights. The court found that the Department made reasonable efforts to unify Mother
with her children. Despite Mother’s disengagement, the court found that the Department
continued to assist and motivate her in completing her treatment plan by making many
referrals to providers and by giving her supervised visits with her children. The court
found that the Mother’s conduct rendering her unfit was unlikely to change within a
reasonable time because she had not completed chemical dependency treatment, had not
addressed her mental health issues, had not changed the drug and domestic violence
patterns within the home, had not ended her criminal activity, and had not established a
safe and stable residence for the children. The court also considered Mother’s pending
incarceration and sentencing in federal court as a factor in determining that she would
remain an unfit parent and unable to parent within a reasonable time. Mother appeals.
5 STANDARDS OF REVIEW
¶11 We review a district court’s decision to terminate parental rights for abuse of
discretion. In re L.N., 2014 MT 187, ¶ 12, 375 Mont. 480, 329 P.3d 598 (citations
omitted). We review a district court’s findings of fact for clear error and its conclusions
of law for correctness. L.N., ¶ 12. An appellant bears the burden of establishing that the
district court’s factual findings are clearly erroneous. In re D.F., 2007 MT 147, ¶ 22, 337
Mont. 461, 161 P.3d 825 (citation omitted). “A factual finding is clearly erroneous if it is
not supported by substantial evidence, if the court misapprehended the effect of the
evidence, or if our review of the record convinces us that a mistake has been made.” In
re C.J.M., 2012 MT 137, ¶ 10, 365 Mont. 298, 280 P.3d 899 (citation omitted).
DISCUSSION
¶12 1. Whether the District Court erred in concluding that Mother’s conduct or condition that made her unfit to parent was unlikely to change within a reasonable time.
¶13 A district court may terminate the parent-child legal relationship upon a finding
established by clear and convincing evidence that: 1) the child has been adjudicated a
youth in need of care, 2) an appropriate treatment plan has not been complied with or has
not been successful, and 3) the conduct or condition of the parent rendering him or her
unfit is unlikely to change within a reasonable time. Section 41-3-609(1)(f), MCA.
¶14 Mother first argues that she was not given a reasonable amount of time to
complete her treatment plan and prove that she was capable of change. Mother points out
that the Department petitioned for termination only five months after the treatment plan
was entered; she argues that five months is an insufficient time to determine by clear and 6 convincing evidence if someone is capable of change, “especially in light of [her]
addiction.” Mother describes the strongly addictive nature of methamphetamine,
explaining that it “alters the way the brain functions, making recovery and attempts at
sobriety very difficult.”
¶15 We consistently have held that “a parent who does not object to a treatment plan’s
goals or tasks waives the right to argue on appeal that the plan was not appropriate.” In
re C.B., 2014 MT 4, ¶ 16, 373 Mont. 204, 316 P.3d 177 (citing In re D.S.B., 2013 MT
112, ¶ 10, 370 Mont. 37, 300 P.3d 702) (holding that mother waived any argument
regarding whether her treatment plan took into account the pain that was the root cause of
her addiction because she failed to explicitly object to the plan below); In re T.S., 2013
MT 274, ¶ 27, 372 Mont. 79, 310 P.3d 538 (holding that father waived any argument
regarding whether treatment plan adequately addressed his hearing disability because he
failed to object to the plan either at its inception or when the issue arose).
¶16 Mother did not raise any objection to the treatment plan’s goals or tasks
concerning her drug addiction. The plan provided a six-month deadline for completion of
each task. To the extent that Mother challenges the amount of time the treatment plan
allowed for her to address her drug addiction, she does so for the first time on appeal.
Mother thus waived her claim of the treatment plan’s inappropriate timeline and we
decline to consider the issue.
¶17 Mother’s second argument is that there was not clear and convincing evidence that
she was unlikely to change within a reasonable time.
7 ¶18 In order to conclude that the conduct or condition rendering a parent unfit is
unlikely to change within a reasonable time, the district court must find that continuing
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.” Section 41-3-609(2), MCA. In making this
determination, the court must consider the following non-exclusive factors: emotional
illness, mental illness, or mental deficiency of the parent; a history of violent behavior by
the parent; excessive use of drugs or alcohol by the parent; and any present judicially
ordered long-term confinement of the parent. Section 41-3-609(2), MCA. The court also
must consider “past and present conduct of the parent.” In re J.C., 2003 MT 369, ¶ 11,
319 Mont. 112, 82 P.3d 900. A parent’s past behavior may be considered in determining
whether the parent would become a fit parent in the future. In re Custody and Parental
Rights of D.A., 2008 MT 247, ¶ 26, 344 Mont. 513, 189 P.3d 631.
¶19 Mother claims that despite her failed treatment plan, she was beginning the “road
to recovery.” She had completed two chemical dependency evaluations and applied for
admission to the Montana Chemical Dependency Center (MCDC). Mother contends that
it would have been appropriate to dismiss the petition and extend legal custody to allow
her to continue her attempts at sobriety.
¶20 The State asserts that there was substantial evidence establishing that the condition
rendering Mother unfit to parent was unlikely to change within a reasonable time. The
State explains that Mother’s failure to participate fully in chemical dependency treatment
8 and counseling has a negative effect on her ability to safely and appropriately parent.
The State also argues that it was proper for the District Court to consider Mother’s
pending incarceration and its effect on her ability to parent. Finally, the State claims that
the District Court appropriately considered the children’s needs for a permanent, stable,
and loving home in determining whether Mother’s condition was likely to change within
a reasonable time.
¶21 The District Court concluded that continuation of the parent-child relationship
between Mother and her children likely will result in continued abuse and neglect of the
children. In reaching its conclusion, the court relied on Mother’s failure to address the
issues outlined in her treatment plan. The court also considered Mother’s pending federal
criminal sentence. The court noted that federal drug crimes carry mandatory minimum
sentences of several years and that Mother’s upcoming confinement renders her unable to
provide a residence, food, other necessities, and care for her children.
¶22 Mother’s first tasks in her treatment plan required that she complete a chemical
dependency evaluation, follow the evaluator’s recommendations, and comply with
random drug and alcohol testing. Mother was referred to random urinalysis (UA)
sampling. Between January and October 2014, Mother was scheduled for 35 UAs.
Mother failed to appear at 31 UAs. The other four UAs produced positive
methamphetamine results. Theresa McCracken, a licensed addictions counselor,
completed Mother’s evaluation and recommended that she complete intensive outpatient
treatment. Mother attended five group sessions between mid-May and mid-June 2014.
9 She also attended one individual session. Mother did not attend any treatment with
McCracken after mid-June 2014. In August 2014, Julie Messerly, a licensed addictions
counselor, diagnosed Mother with amphetamine, opiate, and alcohol dependence. She
also recommended that Mother complete intensive outpatient treatment. Mother attended
one individual session and one group session in September. Mother’s UA test during that
time was positive for amphetamine. Messerly referred Mother to inpatient treatment at
MCDC. Mother had a bed date for September 29, 2014, but did not go because she
complained of an ear infection. Mother had not, however, seen a doctor to have the ear
infection diagnosed. Mother had another bed date for MCDC in October 2014. She
attended inpatient treatment for four days, and was discharged early from the program for
reasons that do not appear in the record.
¶23 Mother’s second task in her treatment plan required her to successfully complete
parenting classes, demonstrate the skills learned, and learn about the effects drug
exposure has on children. She also had to demonstrate an understanding of how to keep
her children safe, and she had to successfully complete an in-home parenting program if
the case progressed to reunification. Dellinger testified that she was unable to refer
Mother for parenting classes because Mother’s mental and chemical dependency issues
were so severe that they needed to be addressed first. Mother never completed chemical
dependency treatment and therefore was never referred for an in-home parenting
program.
10 ¶24 Mother’s third task required that she obtain a mental health evaluation and follow
all recommendations once she achieved 30 days of sobriety. She was required to obtain
domestic violence education and demonstrate an ability to keep her children safe from
exposure to domestic violence. Mother did not achieve 30 days of sobriety but was
referred to Angela Meyers, a licensed clinical professional counselor and licensed
addictions counselor, for a mental health evaluation on March 12, 2014. Meyers was
unable to make any diagnoses because of Mother’s drug use. Meyers recommended that
Mother attend the domestic violence women’s group and individual counseling and
complete a chemical dependency evaluation. Mother attended three appointments with
Meyers, all of which were related to evaluations instead of counseling. She did not
attend any appointments with Meyers after May 1, 2014.
¶25 Mother’s fourth task in her treatment plan required that she have a stable
residence, not allow drugs or paraphernalia in her home, and seek employment or
otherwise have adequate income to meet her children’s needs. Mother indicated that she
had been living in an apartment rented to her by her mother. However, she was arrested
in October 2014 on federal criminal drug charges and had been incarcerated for several
months at the time of the hearing. Dellinger testified that most of the jobs Mother
claimed to have held prior to her arrest were unverified and of unknown duration.
¶26 Mother’s fifth and sixth tasks in her treatment plan required that she attend
supervised visitations with her children, that she sign releases of information for the
Department, and that she attend weekly meetings with her CPS worker. Prior to her
11 October 2014 incarceration, Mother attended most visits with her children. Dellinger
testified that following one of Mother’s visits, Dellinger found a syringe and 9-millimeter
ammunition in Mother’s coat. Mother’s October 2014 incarceration made it impossible
for her to attend subsequent supervised visitations with her children. CPS worker
Dellinger testified that Mother’s contact with Dellinger, aside from the visitations, was
“poor.”
¶27 Castle testified that the children were transitioning well into their fathers’ homes.
She stated that there remains significant trauma from when they lived with Mother and
that they are afraid of living with her. Dellinger testified that continued custody by
Mother would be damaging to the children and that termination of Mother’s rights would
be in the children’s best interest.
¶28 It is the policy of the State of Montana to provide for the protection of children
whose health and welfare are or may be adversely affected and further threatened by the
conduct of those responsible for the children’s care and protection. Section
41-3-101(1)(a), MCA. In determining whether to terminate a parent’s rights, the courts
give precedence to a child’s best interests over parental rights. In re Matter of E.K., 2001
MT 279, ¶ 33, 307 Mont. 328, 37 P.3d 690.
¶29 Our review of the record convinces us that the District Court appropriately gave
primary consideration to the needs of the children. There is substantial evidence of
Mother’s infrequent and inconsistent efforts in completing the required tasks in her
treatment plan. The District Court did not misapprehend the effect of the evidence in
12 reaching its conclusion that Mother is unlikely to change within a reasonable time. We
acknowledge that methamphetamine addiction poses a steep challenge for parents trying
to avoid termination of parental rights. A district court has discretion under the law to
afford a parent more time to achieve sobriety where the parent is making progress.
Sections 41-3-442(4)(a)(i), (6), MCA. In this case, however, Mother did not show
meaningful signs of engaging in treatment, and then was arrested for additional drug
offenses. Mother’s pending incarceration and the substantial evidence of her continued
drug use support the court’s conclusion that continuing the parent-child legal relationship
likely will result in continued abuse or neglect. We therefore affirm the District Court on
this point.
¶30 2. Whether the District Court abused its discretion in terminating Mother’s parental rights.
¶31 Section 41-3-604(1), MCA, establishes a presumption that if a child has been in
foster care for 15 of the most recent 22 months, the best interests of the child will be
served by termination of parental rights. In such cases, the Department must file a
petition to terminate parental rights unless:
(a) the child is being cared for by a relative;
(b) the department has not provided the services considered necessary for the safe return of the child to the child's home; or
(c) the department has documented a compelling reason, available for court review, for determining that filing a petition to terminate parental rights would not be in the best interests of the child.
Section 41-3-604(1), MCA.
13 ¶32 Mother argues that, “when looking at the situation as a whole,” the District Court
abused its discretion by terminating her parental rights. Mother asserts that the
requirement that the State file a petition to terminate under § 41-3-604(1), MCA, does not
apply because the children were placed with their respective fathers and not in the
physical custody of the State. Mother relies on the discretionary language of
§ 41-3-609(1), MCA, to argue that because the court was not required to terminate her
rights, it should have focused on the “totality of the circumstances and a balance of
competing interests in determining if termination is appropriate when children are placed
with a parent.” Mother contends that because the children were doing well and thriving
with their fathers, the District Court’s finding that continuation of the parent-child
relationship would result in continued abuse and neglect was speculative and unsupported
by the evidence.
¶33 Mother urges that re-establishing the relationship between her and her children
would be in their best interest “once she received treatment.” Mother explains that her
criminal sentence would require her to complete treatment “under the watchful eye of her
federal probation officer” and create the potential to re-establish a safe and healthy
relationship with her children. Mother refers to testimony from two of the fathers
conceding that, before she became involved with drugs, Mother had done a “great job
with the kids,” provided a “great foundation,” and was an “excellent mother.” Mother
also referred to therapist Castle’s testimony that the children someday may want to
14 re-establish a relationship with Mother. For the foregoing reasons, Mother concludes that
dismissal of the case with custody to the fathers was in the children’s best interest.
¶34 The State argues that the District Court properly exercised its discretion in
terminating Mother’s parental rights. The State asserts that the law does not negate the
basis to terminate Mother’s parental rights simply by virtue of the children’s placement
with kin. The State argues that it was required to place the children with their
non-offending parents under § 41-3-101(3), MCA, and that doing so “had no bearing on
the Mother or her parental rights.” The State contends that it sought to terminate
Mother’s rights because it proved that Mother failed to comply with her treatment plan
and that her conduct or condition was unlikely to change within a reasonable time.
¶35 While Mother is correct that § 41-3-604, MCA, did not mandate that the
Department seek termination, it does not follow that the court abused its discretion in
terminating Mother’s rights under § 41-3-609(1)(f), MCA. Mother acknowledges that
the law did not require dismissing the petition once the children were placed with their
fathers. See In re L.V-B., 2014 MT 13, ¶ 19, 373 Mont. 344, 317 P.3d 191. When the
circumstances set forth in § 41-3-609(1)(f), MCA, exist, the statute’s permissive language
gives district courts discretion in deciding whether to terminate parental rights. In this
case, the facts warranted the State’s petition under § 41-3-609(1)(f), MCA. It is
undisputed that the children were adjudicated youths in need of care; Mother does not
argue that she successfully completed her treatment plan; and there is clear and
convincing evidence that the conduct or condition rendering Mother unfit to parent is
15 unlikely to change within a reasonable time. Given these circumstances, and giving
paramount importance to the best interests of the children, the court was within its
discretion in deciding to terminate Mother’s rights. The court made factual findings
supported by substantial evidence and correctly applied the law based on those findings.
As such, there was no abuse of discretion. We therefore affirm.
CONCLUSION
¶36 We conclude that the District Court did not abuse its discretion in terminating
Mother’s parental rights. The District Court’s factual findings are supported by the
record, and the court did not err in finding that the conduct or condition rendering Mother
unfit to parent was unlikely to change within a reasonable time. We affirm the District
Court’s decision and order.
/S/ BETH BAKER
We concur:
/S/ JAMES JEREMIAH SHEA /S/ MICHAEL E WHEAT /S/ PATRICIA COTTER /S/ JIM RICE