In re C.M.

• Decision Date: 24 September 2019
• Docket Number: DA 18-0587
• Parties: In the MATTER OF: C.M., A Youth in Need of Care.
• Court: Montana Supreme Court

397 Mont. 275

449 P.3d 806

2019 MT 227

In the MATTER OF: C.M., A Youth in Need of Care.

DA 18-0587

Supreme Court of Montana.

Submitted on Briefs: August 14, 2019

Decided: September 24, 2019

For Appellant: Katy Stack, Stack & Kottke, PLLC, Missoula, Montana

For Appellee: Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana, Leo Gallagher, Lewis and Clark County Attorney, Anne Peterson, Deputy County Attorney, Helena, Montana

Justice Jim Rice delivered the Opinion of the Court.

¶1 T.M. (Mother) appeals an order entered by the Montana First Judicial District Court, Lewis and Clark County, terminating Mother’s parental rights to her child, C.M. We affirm, and address the following issue:

Did the District Court err by terminating Mother’s parental rights because the Department failed to provide reasonable efforts to reunite Mother with C.M. as required by § 41-3-423(1), MCA ?

FACTUAL AND PROCEDURAL BACKGROUND

¶2 C.M. is the natural child of Mother and E.M. (Father). C.M. lived with Mother in the Helena area and had very little contact with Father throughout her life. In January of 2017, the Department of Public Health and Human Services (the Department) removed C.M. from her Mother’s care. Between 2013 and C.M.’s removal, the Department received several reports expressing concern about Mother’s care for C.M., including allegations of physical abuse, neglect, and drug use by Mother. Ultimately, the Department removed C.M. based on reports that Mother was using methamphetamines, had exposed C.M. to an absconded sex offender from Oregon, and planned to flee the state with the child. The Department determined Mother physically neglected C.M. by providing inadequate care for C.M.’s health, hygiene, and educational needs.

¶3 On April 6, 2017, C.M. was adjudicated a youth in need of care, and temporary legal custody was granted to the Department. C.M. was initially placed in kinship care in Helena, but was thereafter placed with Watson Children’s Center in Missoula. Mother remained in the Helena area throughout the proceedings. The Department allowed Mother to call C.M. at any time and allowed visitation in Missoula on some holidays. Mother consistently called C.M. once or twice per week.

¶4 At the time of removal, C.M. was eleven years old but was mentally functioning at the level of a second-grade student, and had been diagnosed with oppositional defiance disorder and ADHD. C.M.’s case manager at Watson described C.M. as socially immature, struggling with personal boundaries and hygiene. Watson staff worked with C.M. to remedy these behaviors to prepare her for future foster care placement. C.M. attended therapy sessions at Watson and participated in a life skills program in school to assist her development. C.M.’s case manager testified C.M. had matured during her time at Watson and was doing well in that placement.

¶5 On April 27, 2017, the District Court held a hearing on Mother’s proposed treatment plan. Mother, represented by counsel, agreed to the plan’s terms. The plan required Mother to complete several tasks, including: maintaining contact with the Department and C.M.; keeping the Department advised her current address; completing a parenting course and a domestic violence course; participating in a mental health evaluation; and addressing her chemical dependency through evaluation, treatment, and remaining chemically free. The Department later indicated Mother’s chemical dependency was its primary concern.

¶6 However, on April 16, 2018, the Department filed a petition to terminate the rights of both of C.M.’s parents, alleging as to mother that she "has failed to successfully comply with the treatment plan and her conduct is unlikely to change within a reasonable time." C.M.’s Father voluntarily relinquished his parental rights, but Mother contested the termination of her rights.

¶7 On July 17, 2018, the District Court held a hearing on the termination of Mother’s rights. Several witnesses testified regarding Mother’s failure to comply with her treatment plan. A collection specialist who administered Mother’s drug tests testified Mother provided 22 urine samples over six months, each of which tested positive for methamphetamines. The specialist also testified Mother had failed to appear for her scheduled testing on several occasions. Eric Gilmore, who completed Mother’s chemical dependency evaluation, testified that, although he was initially inclined to recommend outpatient treatment for Mother based on her answers in his in-person evaluation, he ultimately recommended inpatient treatment.

Gilmore explained his recommendation was based primarily on the "toxic" and "saturating" levels of methamphetamines shown on Mother’s urinalysis testing. Gilmore stated these levels were particularly important when contrasted with the use Mother had reported to him, as the discrepancies indicated an unwillingness to recognize her drug problem and an increased likelihood for relapse

.

¶8 The child protection specialist for C.M., Enrique Victorero, testified Mother had failed to complete several of the tasks on her treatment plan, including that Mother had not kept him informed of her current address. He had been unable to confirm Mother was residing at the only address she had provided. Victorero testified Mother had not obtained a mental health evaluation or completed the required parenting and domestic violence courses. Victorero explained the Department was predominantly concerned that Mother had failed to address her chemical dependency issues, including failing to complete the treatment recommended by Gilmore, failing numerous drug tests, and refusing to provide samples for testing on more than one occasion—even when Victorero offered to drive her to the drug testing center.

¶9 Mother testified that she had obtained a mental health evaluation, but that it had never been sent to the Department due to an apparent error by the individual who completed the evaluation. She testified she had lived in the same home for the last eleven months and had provided that address to the Department. Mother stated she did not attend the domestic violence class, believing it to be unnecessary because she had never been in a violent relationship. Mother testified she had not completed the parenting class because the organization she contacted for registration had not returned her phone calls. Mother testified she had not followed through with Gilmore’s recommendation for inpatient treatment because she wanted to get a second opinion. However, on cross-examination, Mother acknowledged she had over a year to obtain a second opinion, or follow through with treatment, but that she had failed to do either.

¶10 At the conclusion of the hearing, the District Court found by a preponderance of the evidence that Mother had failed to complete most of her treatment plan. The District Court particularly emphasized the testimony regarding Mother’s high levels of methamphetamines, her failure to complete a number of urinalysis tests, and her failure to seek treatment for her chemical dependency.

¶11 On September 5, 2018, the District Court issued its Findings of Fact and Conclusions of Law and Order Terminating Parental Rights of T.M. with Consent to Adoption or Guardianship. The court concluded the treatment plan was appropriate, but Mother had failed to complete it and her unfitness was unlikely to change within a reasonable time. The court noted termination was presumed to be in the C.M.’s best interests because C.M. had been in foster care for 17 of the last 22 months, and further determined termination to be in C.M.’s best interests as established by clear and convincing evidence. Therefore, the District Court ordered termination of Mother’s rights.

¶12 Mother appeals.

STANDARD OF REVIEW

¶13 We review a district court’s factual findings in a parental termination order for clear error and its conclusions of law in such proceedings for correctness. In re M.J. , 2013 MT 60, ¶ 16, 369 Mont. 247, 296 P.3d 1197. Likewise, we review the district court’s "ultimate decision regarding adjudication and disposition" in parental termination actions for abuse of discretion. In re M.J. , ¶ 16.

DISCUSSION

¶14 Did the District Court err by terminating Mother’s parental rights because the Department failed to provide reasonable efforts to reunite Mother with C.M. as required by § 41-3-423(1), MCA ?

¶15 Citing In re R.J.F. , 2019 MT 113, 395 Mont. 454, 443 P.3d 387, Mother argues her parental rights were likewise wrongfully terminated because the Department failed to make reasonable efforts to reunite her with C.M. Mother contends the Department’s placement of C.M. in Missoula and failure to help her complete her treatment plan tasks violated the Department’s duty under § 41-3-423(1), MCA. The State counters that it did make reasonable efforts to reunite Mother and C.M., but that Mother was unable and unwilling to complete her treatment plan, and the District Court’s termination of Mother’s rights was proper. Within its argument, the State contends this Court incorrectly expanded the criteria for termination of parental rights in In re R.J.F. , and that we should re-examine that holding.

¶16 Under § 41-3-609(1)(f), MCA, a district court may terminate a parent’s fundamental right to the care and custody of their child who is adjudicated a youth in need of care only if it finds "by clear and convincing evidence that: (1) an appropriate court-approved treatment plan was not complied with by the parents or was not successful; and that (2) the conduct or condition of the parents rendering them unfit was unlikely to change within a reasonable time." In re X.M. , 2018 MT 264, ¶ 18, 393 Mont. 210, 429 P.3d 920 (citing § 41-3-609(1)(f)(i), (ii), MCA ). "The department shall make reasonable efforts to ... reunify families that have been separated by the state." Section 41-3-423(1), MCA. To meet the reasonable efforts requirement, the...