Matter of J.P., YINC

2020 MT 242N

Opinion

09/22/2020

DA 19-0659 Case Number: DA 19-0659

IN THE SUPREME COURT OF THE STATE OF MONTANA

2020 MT 242N

IN THE MATTER OF:

J.P.,

A Youth in Need of Care.

APPEAL FROM: District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. ADN 2017-49 Honorable Mike Menahan, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Shannon Hathaway, Montana Legal Justice, PLLC, Missoula, Montana

For Appellee:

Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana

Leo J. Gallagher, Lewis and Clark County Attorney, Ann Penner, Deputy County Attorney, Helena, Montana

Submitted on Briefs: September 2, 2020

Decided: September 22, 2020

Filed: q3,,---,6mal•-.— 4f __________________________________________ Clerk Chief Justice Mike McGrath delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not

serve as precedent. Its case title, cause number, and disposition shall be included in this

Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana

Reports.

¶2 J.S. (Mother) appeals the October 17, 2019 order of the First Judicial District Court,

Lewis and Clark County, terminating her parental rights to her minor child, J.P. Mother

argues that: (1) the District Court erred in terminating her parental rights upon finding she

failed to complete her treatment plan and that she was unlikely to change in a reasonable

amount of time; and (2) the District Court erred by allowing the court appointed special

advocate (CASA) to participate in the termination hearing in her capacity as an attorney.1

We affirm.

¶3 In January 2013, the Montana Department of Public Health and Human Services,

Child and Family Services Division (Department), received reports that Mother was being

criminally investigated for using and distributing methamphetamine from her residence

while J.P., then an infant, was in her care. J.P. was removed from the home and placed in

kinship foster care with his paternal grandparents, who were both 74 years old at the time,

1 Mother also argues on appeal that her court-ordered treatment plan was inappropriate. Our review of the record reveals that Mother stipulated to the plan through counsel and did not propose an amended plan. Because “a parent who does not object to a treatment plan waives the right to argue on appeal that the plan was not appropriate,” In re A.L.P., 2020 MT 87, ¶ 17, 399 Mont. 504, 461 P.3d 136, we decline to address the merits of Mother’s argument. 2 and his paternal aunt, Celia, who moved from Houston, Texas, to Helena to help her parents

care for him. Once removed, J.P. tested positive for methamphetamine. On March 28,

2013, J.P. was adjudicated as a youth in need of care and placed in the Department’s

temporary legal custody, to which Mother stipulated. The District Court appointed J.P. a

CASA guardian ad litem (GAL). On May 3, 2013, the District Court approved a treatment

plan for Mother, which she later successfully completed. J.P. was returned to Mother’s

care and the case was dismissed on March 17, 2014.

¶4 The Department opened a new case against Mother in May 2017 after receiving a

report from her Probation and Parole (P&P) officer that she admitted to using

methamphetamine twice daily over the past 60 to 90 days and abusing prescription drugs

while five-year-old J.P. was in her care. The Department again removed J.P. from

Mother’s care and petitioned for emergency protective services, adjudication as a youth in

need of care, temporary investigative authority, and for temporary legal custody of J.P.

Mother stipulated to J.P.’s adjudication and consented to the District Court granting the

Department temporary legal custody of J.P. J.P. was appointed two CASA GALs, who

were represented by counsel. Once removed, J.P. again tested positive for

methamphetamine. He was placed in kinship foster care with his maternal aunt and uncle,

Kim and Jason, and adult half-brother, Justin, who lived in a home adjoining Mother’s.

¶5 On September 25, 2017, Mother was accepted to the First Judicial District Family

Treatment Court. A treatment plan was ordered for Mother on December 21, 2017. On

March 12, 2018, the Department’s temporary legal custody of J.P. was extended for an

additional six months, to which Mother stipulated.

3 ¶6 On August 13, 2018, the Department filed a petition to terminate Mother’s parental

rights based on ongoing drug abuse concerns and J.P.’s recent disclosure of sexual abuse

by his maternal relatives. As a result of the termination petition, Mother was discharged

from Family Treatment Court.

¶7 The District Court conducted a termination hearing over the course of nine days, at

which several witnesses testified. Child protection specialist (CPS) Averill testified that

she met with Mother at P&P after receiving P&P’s report that Mother had admitted to using

methamphetamine. When CPS Averill requested Mother provide a urine sample, Mother

declined and admitted to using “benzos” over the weekend but said she could not confirm

or deny that she was on methamphetamine. CPS Averill also testified that Mother’s

behavior appeared to be “all over the place” and she made “concerning” statements that

she “had the tools to be sober” but “preferred to be high” instead. Mother also explained

that she was familiar with “the system,” was “really good at BS-ing people,” and that it

would be her word against CPS Averill’s word in court.

¶8 Gina Mello, J.P.’s preschool teacher from 2014 to 2017, also testified. She stated

that while in Mother’s care, J.P. would often arrive late at school with very bad breath, an

unkempt physical appearance, and smelled of urine. She testified she would clean his face

and brush his hair when he arrived at school. On one occasion, J.P. explained to her that

he was late to school because he had to wake Mother. Ms. Mello testified that on two

different occasions, J.P. arrived with cuts, bruises, and bumps on his head. When she

initially asked J.P. about his injuries, he told her he fell out of a moving truck. The second

time she inquired about his injuries, he told her he “couldn’t say anything.” Ms. Mello also

4 observed J.P. to be consistently tired and hungry at school. Ms. Mello stated she began

giving him graham crackers or cheese sticks when he would tell her he was hungry, and

eventually scheduled a snack time for the entire class so that J.P. could eat. Ms. Mello also

testified she addressed J.P.’s tiredness and the importance of a schedule with Mother, who

admitted he stayed up late watching television. Ms. Mello testified that on several

occasions, J.P. would express that he did not want to go home with Mother or his maternal

aunt and uncle.

¶9 J.P.’s paternal aunt Celia testified that she and her parents cared for J.P. when he

was first removed from Mother’s care in 2013. She continued to have regular contact with

J.P. for approximately a year after he was returned to Mother’s care, including paying for

J.P.’s preschool and volunteering in his classroom, obtaining J.P. medical and dental care,

and being designated the payee for the Social Security benefits J.P. began receiving upon

his father’s death from a heroin overdose in August 2012. Celia testified that J.P. began

exhibiting sexualized behavior in the fall of 2017, after he was removed from Mother’s

care a second time and placed in Celia’s care with regular visits with Mother. Around that

time, Celia observed J.P. molding a breast and penis from modeling Styrofoam and stated

J.P. became “very, very fascinated with bodily functions,” such that he often attempted to

see Celia naked, kiss her “how he and mom kiss,” and “smell [her] vagina, because he gets

to smell mom’s.” Celia testified that on another occasion, J.P. asked her to “suck his

wiener” because “[w]ell, we all suck wieners—Justin, mom, grandpa, Kim, and Jason—

we all suck wieners because it feels good.” Celia also testified that after a visit with his

maternal relatives Kim, Jason, and Justin, J.P. stated, “Well, we sucked wieners again.”

5 When Celia asked J.P. whom he was referring to, he responded, “Well, this time it was just

me and Justin and grandpa and Jason.” Celia testified that J.P. became fearful of using the

bathroom and began urinating himself at school, explaining to her that “bad things happen

in bathrooms.”

¶10 J.P.’s therapist, Cheryl Bouvier, also testified. Ms. Bouvier stated she had treated

J.P. since 2014. Ms. Bouvier testified that during therapy sessions, Mother had difficulty

“notic[ing] what was going on with [J.P.]” and instead focused on her own anxiety and

feelings of missing him. Ms. Bouvier stated that J.P. had indicated to her that “maybe he’ll

see his mom when he’s older—like after he’s 18.” Ms. Bouvier also testified that after his

second removal, J.P. was anxious and found it difficult to talk about the sexual abuse but

exhibited sexual behavior with the toys he was playing with during his therapy sessions.

When asked by counsel what J.P. needed before contact could resume between him and

Mother, Ms. Bouvier responded that J.P. “would need, from the child and the victim’s

perspective, some acknowledgement that somebody did something really bad to [him].”

¶11 Mother’s own therapist, Jessica Gruber, testified that Mother exhibits some doubts

that J.P. suffered sexual abuse, stating her view “vacillates and changes . . . she examines

both sides still.”

¶12 CPS Wadlington testified that after J.P. disclosed sexual abuse, Mother was

unwilling “to accept what he was saying as true. The focus was on denying that anything

had happened and on accusing other people of perhaps causing or coaching those

statements from [J.P.]” CPS Wadlington stated that while Mother was able to partially

comply with her treatment plan by following her visitation schedule with J.P., enrolling in

6 a parenting course, maintaining housing and employment, and attending therapy, Mother’s

lack of concern regarding J.P.’s sexual abuse allegations caused her concern regarding

Mother’s ability to complete her treatment plan task of “recogniz[ing] what is in her child’s

best interest versus her best interest,” which “includes demonstrating stability in her life

and an ability to recognize how her choices affect [J.P.].”

¶13 On October 17, 2019, the District Court ordered Mother’s parental rights to J.P. be

terminated. The District Court determined that Mother’s “steadfast refusal to

acknowledge” that J.P. may have been sexually abused, combined with her twice

subjecting her child to methamphetamine exposure, demonstrated Mother’s “long-term

substance abuse and character impairment in which change is not likely. Accordingly,

termination of [Mother’s] parental rights is in the child’s best interest.”

¶14 We review a district court’s decision to terminate parental rights for an abuse of

discretion. In re A.B., 2020 MT 64, ¶ 23, 399 Mont. 219, 460 P.3d 405; In re B.F., 2020

MT 223, ¶ 29, 401 Mont. 185, ___ P.3d ___. A court abuses its discretion when it acts

arbitrarily, without employment of conscientious judgment, or in excess of the bounds of

reason resulting in substantial injustice. In re A.B., ¶ 23. We review a district court’s

findings of fact underlying its termination decision for clear error, and its conclusions of

law de novo for correctness. In re J.B., 2016 MT 68, ¶ 10, 383 Mont. 48, 368 P.3d 715.

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 was made. In re J.B., ¶ 10. We do not substitute our judgment on appeal

for that of the district court regarding matters of credibility or weight of evidence, nor do

7 we “review the record to determine whether the evidence would support a different

finding.” In re M.J., 2013 MT 60, ¶ 17, 369 Mont. 247, 296 P.3d 1197 (quoting In re K.H.,

2012 MT 175, ¶ 19, 366 Mont. 18, 285 P.3d 474). Instead, we “view the evidence in the

light most favorable to the prevailing party when determining whether substantial credible

evidence supports the district court’s findings.” In re J.B., ¶ 10.

¶15 Because the right to parent is a fundamental constitutional liberty interest, it must

be protected by fundamentally fair procedures. In re T.N.-S., 2015 MT 117, ¶ 20, 379

Mont. 60, 347 P.3d 1263. Whether a district court violated a parent’s right to due process

in a dependent neglect proceeding is a question of constitutional law for which our review

is plenary. In re T.S.B., 2008 MT 23, ¶ 20, 341 Mont. 204, 177 P.3d 429.

¶16 Mother first argues that the District Court erred in terminating her parental rights to

J.P. upon finding Mother failed to complete her treatment plan and that she was unlikely

to change in a reasonable amount of time.

¶17 Before a district court can terminate parental rights, “there must be an ‘appropriate’

treatment plan that the parent failed to comply with.” In re T.N.-S., ¶ 20 (quoting

§ 41-3-609(1)(f), MCA). A treatment plan “identif[ies] the problems or conditions that

resulted in the abuse or neglect of the child and treatment goals and objectives that will

address those conditions.” In re T.N.-S., ¶ 21 (citing § 41-3-443(2), MCA). A treatment

plan also addresses the “particular problems facing both the parent and the child . . . .”

In re T.N.-S., ¶ 21.

¶18 “A parent does not successfully complete a treatment plan by partial, or even

substantial, compliance.” In re A.K., 2015 MT 116, ¶ 28, 379 Mont. 41, 347 P.3d 711

8 (quotations omitted). “Even if a parent technically completes all of the tasks in a treatment

plan,” the parent is not deemed to have successfully completed the plan unless the parent

“effectuates the purposes for which the plan was designed.” In re A.K., ¶ 28 (quotations

and original alterations omitted).

¶19 When a parent fails to comply with or successfully complete an appropriate

court-ordered treatment plan, and the parent’s conduct or condition rendering her unfit is

unlikely to change within a reasonable time, as shown by clear and convincing evidence, a

district court may order termination of the parent’s legal relationship with her child who

has been adjudicated as a youth in need of care. See § 41-3-609(1)(f)(i)-(ii), MCA. Clear

and convincing evidence in the context of parental rights cases is “simply a requirement

that a preponderance of the evidence be definite, clear, and convincing, or that a particular

issue must be clearly established by a preponderance of the evidence or by a clear

preponderance of proof.” In re A.K., ¶ 22. “It does not call for unanswerable or conclusive

evidence.” In re A.K., ¶ 22 (quotations omitted).

¶20 “To determine that the condition or conduct that rendered a parent unfit is unlikely

to change within a reasonable time, thus supporting termination, the court must find that

the parent’s conduct or condition renders the parent unfit, unable, or unwilling to give the

child adequate parental care.” In re A.B., ¶ 27 (citing § 41-3-609(2), MCA). “[T]he

question is not merely whether a parent has made progress or would make some progress

in the future, but whether the parent is likely to make enough progress within a reasonable

time to overcome the circumstances rendering her unfit to parent.” In re A.B., ¶ 27. A court

9 must also consider the parent’s past and present conduct in making its determination.

In re J.C., 2003 MT 369, ¶ 11, 319 Mont. 112, 82 P.3d 900.

¶21 The District Court held a nine-day hearing and issued a thorough order detailing

that Mother has received much supportive effort from the Department since 2013. Despite

these efforts, J.P. has twice tested positive for methamphetamine, exhibited signs of poor

health, hygiene, and hunger, and eventually made sexual abuse disclosures while in

Mother’s care that Mother was unable to fully acknowledge or take seriously. It is not

enough that Mother “mechanistically check items off a task list” in progressing through

her treatment plan. In re A.K., ¶ 28. Mother has continuously demonstrated since 2013

that she is incapable of protecting J.P., understanding his needs, and putting his needs

above her own. Instead, Mother’s behavior demonstrates her intention to only minimally

and temporarily engage the Department’s services without fully rectifying the underlying

issues that led to the Department’s initial involvement. The District Court did not err in

determining that Mother failed to complete her treatment plan and that she was unlikely to

change in a reasonable amount of time, necessitating termination of her parental rights.

¶22 Next, Mother argues the District Court violated her due process rights when it

allowed the CASA attorney to participate in the termination hearing by questioning

witnesses. Mother asserts the CASA attorney’s participation caused “double the amount

of evidence presented against Mother, creating an additional unconstitutional burden for

Mother to overcome.”

¶23 In cases where a CASA is appointed as the GAL for an alleged abused or neglected

child, the CASA’s “general role . . . is to act as an agent of the court, in the best interests

10 of the child. CASAs are factual investigators that effectively serve as the eyes and ears of

the court.” In re J.D., 2019 MT 63, ¶ 44, 395 Mont. 141, 437 P.3d 131. See also In re B.F.,

¶ 33 (A GAL’s role in abuse and neglect proceedings “is to represent children’s best

interests, and to perform general duties and conduct investigations to ascertain the facts

constituting the alleged abuse or neglect.”).

¶24 Section 41-3-112(3), MCA, specifies the general duties a CASA GAL must

perform, which include “appear[ing] and participat[ing] in all proceedings to the degree

necessary to adequately represent the child and make recommendations to the court

concerning the child’s welfare.” Section 41-3-112(3)(e), MCA. Consistent with this

statutory duty, “a district court may permit an attorney CASA . . . to conduct limited

questioning of a witness to assist in performing his or her statutory functions as an agent

of the court, in the best interests of the child.” In re J.D., ¶ 52. In such situations, a district

court retains its broad discretion in controlling the scope of cross-examination of witnesses.

See State v. Nelson, 2002 MT 122, ¶ 15, 310 Mont. 71, 48 P.3d 739 (“[A] trial court has

broad discretion to limit the scope of cross-examination to those issues it determines are

relevant to the trial.”). See also In re B.F., ¶ 35 (determining district court in child abuse

and neglect proceeding did not err by allowing children’s GAL to conduct limited

cross-examination of witnesses).

¶25 While a CASA is not a formal party to the dependent neglect proceeding, In re J.D.,

¶ 45, any party has the ability to “petition the court for the removal and replacement of the

CASA appointed as the child’s GAL.” In re J.D., ¶ 45 (quotations omitted).

11 ¶26 Mother did not oppose the CASA attorney’s appearance or her ability to file motions

in the case. Mother also did not object to the CASA attorney calling and cross-examining

witnesses or arguing on the CASAs’ behalf during the proceedings. Furthermore, the

District Court noted that CASA’s counsel had been involved in the case since 2017 and

was familiar with all the individuals involved, whereas counsel for the formal parties

changed over the course of the case. The District Court did not err in allowing the CASA

attorney to participate at a level it found appropriate given the specific circumstances of

the case, and Mother’s due process rights were not compromised.

¶27 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our

Internal Operating Rules, which provides for memorandum opinions. In the opinion of the

Court, the case presents a question controlled by settled law or by the clear application of

applicable standards of review.

¶28 We affirm.

/S/ MIKE McGRATH

We Concur:

/S/ DIRK M. SANDEFUR /S/ BETH BAKER /S/ JAMES JEREMIAH SHEA /S/ JIM RICE