Matter of J.O. YINC

2015 MT 229

Opinion

August 11 2015

DA 15-0092 Case Number: DA 15-0092

IN THE SUPREME COURT OF THE STATE OF MONTANA

2015 MT 229

IN THE MATTER OF:

J.O.,

A Youth in Need of Care.

APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DN-13-55 Honorable Ed McLean, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Tracy Labin Rhodes, Attorney at Law; Missoula, Montana

For Appellee:

Timothy C. Fox, Montana Attorney General, Brenda K. Elias, Assistant Attorney General; Helena, Montana

Kirsten Pabst, Missoula County Attorney, Diane Conner, Deputy County Attorney; Missoula, Montana

Submitted on Briefs: July 1, 2015 Decided: August 11, 2015

Filed:

__________________________________________ Clerk Justice Michael E Wheat delivered the Opinion of the Court.

¶1 C.S. appeals from the order of the Montana Fourth Judicial District Court,

Missoula County, terminating her parental rights to J.O. We affirm.

ISSUES

¶2 We review the following issues:

1. Did the District Court err when it determined that the Department had made reasonable efforts to provide reunification services?

2. Did the District Court abuse its discretion when it terminated C.S.’s parental rights?

FACTUAL AND PROCEDURAL BACKGROUND

¶3 J.O. was born in 2007. His mother is C.S. J.O. was removed from C.S.’s care

twice as a result of C.S.’s criminal conduct, and C.S.’s parental rights to J.O. were

eventually terminated on January 20, 2015. Both the facts and proceedings related to

J.O.’s care and custody and the facts and proceedings related to C.S.’s criminal conduct

are relevant to this case, though only the case terminating C.S.’s parental rights is

currently before this Court.

C.S.’s Criminal History

¶4 In 2010, C.S. was serving a suspended sentence for issuing bad checks. When she

was discovered in possession of drug paraphernalia and after she tested positive for

several drugs, including opiates, methamphetamine, and morphine, the District Court

revoked her sentence. C.S. was committed to the Department of Corrections for five

years. While incarcerated, C.S. was placed at Passages Treatment Center, where she

2 completed drug and alcohol counseling. C.S. was then placed at a pre-release center until

October 2011, at which time she was conditionally released.

¶5 On May 3, 2013, C.S. was again discovered in possession of drugs and drug

paraphernalia. She had been found passed out in the parking lot of a casino. C.S.’s

probation officer authorized a search of C.S.’s person and her car, and police officers

discovered methamphetamine, marijuana, and drug paraphernalia.

¶6 As a result, C.S.’s conditional release from her issuing bad checks sentence was

terminated at a May 29, 2013 hearing. C.S. was also charged with and convicted of

possession of dangerous drugs and possession of drug paraphernalia. On March 4, 2014,

she was sentenced to several terms of years set to run concurrently with her issuing bad

checks sentence. C.S. was then sent to Passages Assessment and Sanction Center in

Billings.

¶7 At Passages, C.S. received a chemical dependency evaluation, and the evaluators

recommended that C.S. attend Elkhorn Treatment Center and then a pre-release center.

C.S. submitted an application to the Elkhorn program in May 2014. Her application was

rejected, however, based on letters that she wrote to the screening committee informing it

that she did not need treatment and that she would refuse to cooperate with treatment if

admitted. Her referral to pre-release was also rejected. The rejection included a

comment that C.S. posed an unacceptable level of risk. Based on her rejection from

Elkhorn and pre-release, C.S. was transferred to the Montana Women’s Prison in August

2014.

3 Facts Related to the Care and Custody of J.O.

¶8 Throughout C.S.’s incarcerations, the Department of Public Health and Human

Services (the Department) worked with C.S. to protect J.O. Following C.S.’s 2010

incarceration, the Department placed J.O. in foster care and then in the care of his

paternal aunt, D.H., who lived in Nevada. Following C.S.’s release from custody and

after she completed drug and alcohol counseling, the Department reunited J.O. and C.S.

After monitoring J.O.’s welfare, continuing to provide services to J.O. and C.S. for

several months, and observing C.S.’s compliance with her treatment plan, the Department

moved to dismiss its petition to terminate C.S.’s parental rights. The District Court

granted the motion on October 17, 2012.

¶9 Following C.S.’s May 3, 2013 arrest and incarceration, the Department resumed

working with C.S. and J.O. Initially, the Department and C.S. entered a voluntary

protective services agreement. However, when C.S.’s chosen caregivers were no longer

able to look after J.O., the Department filed a petition for emergency protective services,

temporary legal custody of J.O., and adjudication of J.O. as a youth in need of care.

¶10 Following an intervention conference, C.S. stipulated to adjudication of J.O. as a

youth in need of care and to the Department receiving temporary legal custody of J.O.

She also stipulated to the Department’s plan to return J.O. to D.H.’s care while it retained

temporary legal custody. On June 26, 2013, following C.S.’s stipulations, the District

Court adjudicated J.O. a youth in need of care and granted the Department temporary

legal custody.

4 ¶11 Soon thereafter, the Department placed J.O. with D.H. In D.H.’s care, J.O.’s

emotional and physical health began to improve. He received emergency treatment to his

teeth, which were seriously decayed, and he began meeting with Jeffrey Davis, a licensed

social worker and child and family counselor. Unprompted, J.O. began referring to D.H.

and her husband as his mother and father, and he expressed his desire to stay in Nevada

and to be adopted by D.H. and her husband. When J.O. was given the opportunity to do

so he chose not to communicate via letter or telephone with C.S.

¶12 On August 14, 2013, the District Court approved a treatment plan for C.S., which

had been developed by the Department. The plan primarily required C.S. to address her

chemical dependency issues and to develop her parenting abilities. C.S. stipulated that

the plan was reasonable.

¶13 At some point prior to September 19, 2013, C.S. applied for placement at the

Carole Graham Home. The Carole Graham Home is a residential program for substance

abusing women and their children. C.S. hoped that her placement there would allow her

to be reunited with J.O. However, the Carole Graham Home denied C.S.’s application,

writing that “[C.S.] may not be a good fit for our program because [the Department] is

not in support of reunification between [C.S.] and [J.O.] at this time.”

¶14 On July 2, 2014, after C.S. was convicted of possession of dangerous drugs and

drug paraphernalia, the Department petitioned to terminate C.S.’s parental rights.

Following a hearing, the District Court granted the petition. It found that C.S. had

subjected J.O. to aggravated circumstances and that as a result the Department was not

required to make reasonable efforts at providing preservation or reunification services. 5 Nevertheless, it also decided that the Department had provided reasonable services to

C.S. It then decided that termination of C.S.’s parental rights was justified on two

grounds. First, it decided to terminate C.S.’s parental rights because she had subjected

J.O. to aggravated circumstances. Second, it decided to terminate C.S.’s parental rights

based on C.S.’s failure to comply with her treatment plan and its finding that the

condition rendering C.S. unfit was unlikely to change in a reasonable time. C.S. appeals.

STANDARD OF REVIEW

¶15 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. We review the

court’s findings of fact for clear error and its conclusions of law for correctness. L.N.,

¶ 12.

DISCUSSION

¶16 1. Did the District Court err when it determined that the Department had made reasonable efforts to provide reunification services?

¶17 C.S. argues that the Department did not provide reasonable reunification services

and that the District Court erred when it decided otherwise. She also argues that the

District Court erred by deciding that reunification services were not necessary. We hold

that the District Court did not err when it decided that the Department provided

reasonable reunification services. For this reason, we do not address C.S.’s argument

concerning whether reunification services were necessary.

6 ¶18 Section 41-3-423(1), MCA, requires the Department to “make reasonable efforts

to prevent the necessity of removal of a child from the child’s home and to reunify

families that have been separated by the state.” It specifies that:

Reasonable efforts include but are not limited to voluntary protective services agreements, development of individual written case plans specifying state efforts to reunify families, placement in the least disruptive setting possible, provision of services pursuant to a case plan, and periodic review of each case to ensure timely progress toward reunification or permanent placement.

Section 41-3-423(1), MCA, also states that “[i]n determining preservation or

reunification services to be provided and in making reasonable efforts at providing

preservation or reunification services, the child’s health and safety are of paramount

concern.” In fact, protection of children’s health and safety is the primary purpose of

Title 41, Chapter 3, MCA. Section 41-3-101(7), MCA.

¶19 Here, the Department provided many preservation and reunification services to

J.O. and C.S. before C.S.’s parental rights were ultimately terminated. After J.O. was

removed from C.S.’s care in 2010, the Department worked with C.S. to place J.O. with a

family member, and it eventually accomplished this goal by placing J.O. with D.H. It

also provided a treatment plan for C.S. When C.S. completed that treatment plan, it

reunited J.O. and C.S. It then continued to provide C.S. with services and trainings while

also monitoring J.O.’s welfare. After several months without incident, it decided that

reunification had been successful and dismissed its suit.

¶20 Following C.S.’s arrest and incarceration in 2013, the Department continued to

provide reunification and preservation services to C.S. Rather than immediately

7 removing J.O. from C.S.’s care, it entered a voluntary protective services agreement with

C.S. Pursuant to that agreement, J.O. was left in the care of C.S.’s housemate and J.O.’s

babysitter. Only once these parties could no longer care for J.O. did the Department

decide to place J.O. in foster care and then in the care of D.H. It determined that

placement with D.H. was the least disruptive setting possible, considering that J.O. had

already lived with D.H. during his first removal, that D.H. was a family member, and that

C.S. consented to this arrangement. After removing J.O. and placing him in D.H.’s care,

the Department worked with C.S. to develop a treatment plan so that she might address

her parenting and drug related issues and eventually be reunited with J.O. C.S. agreed to

this treatment plan, stipulating that it was reasonable.

¶21 The District Court decided that these services constituted reasonable efforts at

providing preservation and reunification services. We agree. As the District Court

concluded, the Department entered voluntary protective services agreements, written case

plans, and placed J.O. in the least disruptive setting possible. By the plain language of

§ 41-3-423(1), MCA, reasonable efforts may comprise such actions.

¶22 C.S., however, believes the Department failed to provide reasonable reunification

services in two ways. First, she claims that the Department prevented her placement for

treatment in the Carole Graham Home. Second, she claims that the Department

prevented phone contact between her and J.O. Nevertheless, we hold that the Department

made reasonable efforts at providing reunification services.

¶23 C.S. contends that if she was placed in the Carole Graham Home that J.O. could

have continued to live with her. She argues, therefore, that the Carole Graham Home 8 would have been the least disruptive placement and that the Department failed to make

reasonable reunification efforts by preventing her placement there. According to C.S.,

the Department prevented her placement at the Carole Graham Home by stating around

the time of C.S.’s application that C.S. was not ready for reunification with J.O.

Ostensibly the Department’s statement was the only thing that prevented C.S.’s

placement there.

¶24 Even if we take the foregoing to be true, we do not agree that the Department

failed to make reasonable efforts at providing reunification. When C.S. asked for

placement with J.O. at the Carole Graham Home, she was not simply asking for

reasonable reunification services. Instead, she was asking for J.O. to be placed in her

care. She was asking for actual reunification. The Department denied this request

because C.S. had not made progress on her treatment plan. Indeed, she had failed to

comply with substantial portions of the plan. By failing to comply with the treatment

plan, she had failed to satisfy the conditions that C.S., the Department, and the District

Court had agreed were necessary for the safe return of J.O. to C.S. See §§ 41-3-102(30)

and -443(2)(b), MCA. As the health and safety of J.O. was the Department’s paramount

concern and as C.S. had not demonstrated that J.O. could be safely returned to her care, it

was reasonable for the Department to oppose reunification at the time of C.S.’s request.

See § 41-3-423(1), MCA. The Department did not fail to make reasonable efforts at

providing reunification services by opposing C.S.’s placement.

¶25 The Department also did not fail to provide reasonable reunification services when

it did not provide phone contact between J.O. and C.S. C.S. argues that the lack of 9 phone contact with J.O. was improper given that her treatment plan required “therapeutic

contact” with J.O. However, the Department was not required to provide every

conceivable reunification or preservation service to C.S. It was instead required to make

reasonable efforts at providing reunification services while recognizing that the health

and safety of the child are its paramount concerns. Section 41-3-423(1), MCA.

¶26 Here, J.O.’s counselor, Davis, observed that J.O. had nightmares and was unable

to focus in school after speaking with his father on the telephone. J.O. also became

uncomfortable when discussing his parents or when anyone referred to C.S. as his

mother. When given access to letters from his mother, J.O. became uncomfortable and

had no interest in reading them. Based on these observations and in the interests of J.O.’s

emotional health, Davis recommended that J.O. be given the choice of whether or not to

have any phone contact with C.S. Given this choice, J.O. never chose to speak with C.S.

on the telephone.

¶27 In light of the concerns Davis identified regarding J.O.’s health and safety, and in

light of the other services it did provide, the Department was not required to provide C.S.

with phone contact with J.O. in order to make reasonable efforts at providing

reunification services. It bears repeating that J.O.’s health and safety were the

Department’s paramount concerns. The Department did not need to provide reunification

services that would put J.O.’s health or safety at risk. See § 41-3-423(1), MCA;

In re B.S., 2009 MT 98, ¶ 32, 350 Mont. 86, 206 P.3d 565 (“[T]he statutes give priority to

the best interests of the child as the primary and paramount statutory standard for

termination. . . . The best interests of the child take precedence over parental rights, and 10 the need for permanent placement in a loving and stable home supersedes the parents’

interests.”).

¶28 Moreover, even if the Department could have done more to facilitate therapeutic

contact between C.S. and J.O., the fact remains that C.S. failed to comply with other tasks

in the treatment plan. Phone contact with J.O. was not the only task standing in the way

of their reunification. As we concluded above, one of the ways the Department made

reasonable efforts to provide reunification services was by entering written case plans,

including a treatment plan, with C.S. Compliance with her treatment plan was ultimately

C.S.’s responsibility. See In re L.W.K., 236 Mont. 14, 19, 767 P.2d 1338, 1342 (1989).

¶29 We hold that the District Court did not err when it decided that the Department

made reasonable efforts to provide reunification services. For this reason, we do not

address C.S.’s additional argument regarding the District Court’s decision that

reunification services need not be provided.

¶30 2. Did the District Court abuse its discretion when it terminated C.S.’s parental rights?

¶31 The District Court found that the grounds for termination identified in

§§ 41-3-609(1)(d) and -609(1)(f), MCA, were met, and it terminated C.S.’s parental

rights to J.O. for this reason. C.S. argues that several findings of fact justifying this

decision were not supported by substantial evidence and were, therefore, clearly

erroneous. We disagree. We hold that substantial evidence supports the District Court’s

findings that § 41-3-609(1)(f), MCA, had been satisfied. As this statute and these

findings provided an independently sufficient basis for the District Court to terminate

11 C.S.’s parental rights, we do not consider C.S.’s arguments concerning § 41-3-609(1)(d),

MCA. In re I.T., 2015 MT 43, ¶ 16, 378 Mont. 239, 343 P.3d 1192; In re S.T.,

2008 MT 19, ¶ 15, 341 Mont. 176, 176 P.3d 1054; see § 41-3-609(1), MCA.

¶32 According to § 41-3-609(1)(f), MCA, a court:

may order a termination of the parent-child legal relationship upon a finding established by clear and convincing evidence . . . that . . . the child is an adjudicated youth in need of care and both of the following exist: (i) an appropriate treatment plan that has been approved by the court has not been complied with by the parents or has not been successful; and (ii) the conduct or condition of the parents rendering them unfit is unlikely to change within a reasonable time.

When making this determination, “the court shall consider but is not limited to the

following: . . . (c) excessive use of . . . a narcotic or dangerous drug that affects the

parent’s ability to care and provide for the child; and (d) present judicially ordered

long-term confinement of the parent.” Section 41-3-609(2), MCA.

¶33 C.S. does not dispute that J.O. is an adjudicated youth in need of care or that either

she has not complied with her court-approved treatment plan or the treatment plan has

been unsuccessful. Instead, she only argues that there was not substantial evidence to

support the District Court’s finding that the conduct or condition rendering her unfit was

unlikely to change within a reasonable time.

¶34 In In re C.B., 2014 MT 4, 373 Mont. 204, 316 P.3d 177, we affirmed a district

court’s decision that a mother’s drug problems rendered her unfit and were unlikely to

change within a reasonable time. C.B., ¶¶ 22-23. We reasoned that the drug problems

had existed for over twelve years and that the mother had failed to address them, and had

12 even affirmatively resisted addressing them, despite being presented with the opportunity

to do so. C.B., ¶ 22.

¶35 Similarly, C.S. has drug problems that have persisted for years and that she has

failed to address despite opportunities to receive treatment. As the District Court noted,

C.S. was found in possession of dangerous drugs, including morphine and

methamphetamine, in 2010 and 2013. Both incidents led to her arrest and incarceration,

and between 2013 and the time the District Court terminated C.S.’s parental rights she

was continuously incarcerated. During this time, C.S. was given the opportunity to

address her drug problems. Yet, she sabotaged every treatment opportunity by stating in

her letters to the treatment program screening committees that she did not need treatment

and would refuse to cooperate with treatment programs. Based on these facts and their

similarities with In re C.B., there was substantial evidence for the District Court to find

that C.S.’s excessive use of a dangerous drug and her long term confinement—the

conditions rendering her unfit—were unlikely to change in a reasonable time.

¶36 Thus, the District Court’s finding that the conditions rendering C.S. unfit were

unlikely to change was not clearly erroneous. Based on this finding and the District

Court’s uncontested findings, the District Court was authorized by § 41-3-609(1)(f),

MCA, to terminate C.S.’s parental rights. As it complied with this statute, it did not

abuse its discretion by terminating C.S.’s parental rights. See In re J.C., 2003 MT 369,

¶ 18, 319 Mont. 112, 82 P.3d 900.

13 CONCLUSION

¶37 The District Court decided that the Department made reasonable efforts to provide

C.S. with reunification services. This finding was not clearly erroneous. The District

Court terminated C.S.’s parental rights based on the authority of § 41-3-609(1)(f), MCA.

We disagree with C.S.’s argument that one of the findings upon which this decision was

based—that the condition rendering C.S. unfit was unlikely to change within a reasonable

time—was not supported by substantial evidence. C.S. made arguments to this Court that

we do not address because our decisions on the arguments that we do address provide a

sufficient basis upon which to affirm the District Court’s decision. We affirm.

/S/ MICHAEL E WHEAT

We Concur:

/S/ MIKE McGRATH /S/ PATRICIA COTTER /S/ LAURIE McKINNON /S/ BETH BAKER