In re Y. A.

• Decision Date: 10 November 2015
• Docket Number: DA 15-0338
• Citation: 2015 MT 320 N
• Parties: IN THE MATTER OF: Y. A., A Youth in Need of Care.
• Court: Montana Supreme Court

2015 MT 320N

IN THE MATTER OF: Y. A., A Youth in Need of Care.

DA 15-0338

SUPREME COURT OF THE STATE OF MONTANA

Submitted on Briefs: September 23, 2015

November 10, 2015

APPEAL FROM: District Court of the Fifteenth Judicial District, In and For the County of Roosevelt, Cause No. DN-12-5 Honorable David Cybulski, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Elizabeth Thomas, Attorney at Law; Hebron, Ohio

For Appellee:

Timothy C. Fox, Montana Attorney General, Mardell Ployhar, Assistant Attorney General; Helena, Montana

Anne Sheehy Yegen, Assistant Attorney General; Forsyth, Montana

Ralph J. Patch, Roosevelt County Attorney; Wolf Point, Montana

/s/_________

Clerk Justice James Jeremiah Shea 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 H.A. (Father) appeals an order of the Fifteenth Judicial District Court, Roosevelt County, terminating his parental rights to his daughter, Y.A. We affirm.

¶3 Y.A. was born to Father and N.A. (Mother) in 2003. In 2004, Mother and Father were divorced in Oregon, and Father was granted sole custody of Y.A. Though Father had legal custody of Y.A., Y.A. resided with her maternal grandmother, R.S., several times between the ages of two and seven, including for a period of years between 2007 and 2010.

¶4 In 2010, Father's then-girlfriend, C.B., and her two children moved in with Father. Father also brought Y.A. to live with him. In 2011, C.B. left Father and took Y.A. to R.S.'s home. C.B. later testified that she left Father because she "didn't want [her] kids to get yelled at or be ignored or be abused anymore." C.B. testified that Father "would get drunk every night," that she was afraid of him, and that he abused her in front of the children, including Y.A. C.B. further testified that "the way that [Father] played with kids, that's not how you play with kids," that Father "used to like drop [Y.A.]," and that he was "just really rough." When C.B. brought Y.A. to R.S., Mother and R.S. fledOregon with Y.A. After moving multiple times, R.S., Mother, and Y.A. settled in northeastern Montana.

¶5 In October and November 2012, the Department of Public Health and Human Services (Department) received three referrals regarding Y.A. The referrals were based on allegations by R.S. and other family members that Y.A. was schizophrenic and had been sexually abused by Father. The Department received the third referral after R.S. brought Y.A. to a hospital. The hospital referred Y.A. to a mental health center and Jennifer Preble, a licensed clinical social worker, conducted a crisis evaluation. Preble diagnosed Y.A. with posttraumatic stress disorder, determined that Y.A. was at a "significant risk of self-harm," and recommended acute psychiatric treatment. Preble also recommended Department intervention, noting that Mother and R.S. were unable to obtain necessary treatment for Y.A. because they did not have legal custody of her.

¶6 On November 21, 2012, the Department filed a petition for emergency protective services and temporary investigative authority. The District Court granted the Department emergency protective services and scheduled a show cause hearing on temporary investigative authority for January 30, 2013. Based on Preble's crisis evaluation of Y.A., Department staff decided to place Y.A. at Shodair Children's Hospital. Neither Mother nor R.S. objected to the Shodair placement.

¶7 At the time of the January 30, 2013 show cause hearing, Y.A. was still being treated at Shodair, and Mother and R.S. were participating in family therapy through Shodair. Shodair reports indicated that Y.A. required ongoing treatment and did not want to talk to or see Father. Preble testified that she had "concerns with [Y.A.]'s ability tocope. She had expressed a lot of fear of her father, had demons, was having difficulty sleeping, difficulty concentrating, difficulty in school, [and] difficulty with her appetite and eating." Y.A. told Preble that demons were talking to her, telling her to hurt herself, and that she was afraid to go to school because of them. Y.A. also told Preble that she was afraid Father would kill her, and that Father had beaten her with a baseball bat in the past. R.S. told Preble she feared for her life and for the life of Y.A. at the hands of Father. Although Father did not personally appear at the hearing, Father's counsel stated that Father objected to the Department's request for emergency protective services and temporary investigative authority but stipulated that Y.A. "is a youth in need of care and needs treatment . . . ." On February 12, 2013, the District Court issued an order continuing emergency protective services and granting the Department temporary investigative authority.

¶8 On May 1, 2013, the Department filed a petition for adjudication of Y.A. as a youth in need of care and for temporary legal custody. The Department attached a supporting affidavit signed by Child Protection Specialist Christina Hughes, who was assigned to the case. Hughes indicated that Y.A. was eligible for enrollment in the Sun'aq Tribe of Kodiak, Alaska, and stated that "the Department is following [Indian Child Welfare Act (ICWA)] requirements." According to Hughes, Y.A. had a diagnosis of bipolar disorder, not otherwise specified, with psychosis; severe, chronic posttraumatic stress disorder with psychotic symptoms; parent-child relationship problems; and severe to catastrophic psychosocial stressors. She had completed residential inpatient treatment at Shodair, was attending aftercare therapy sessions at Eastern Montana Mental Health,and was on a trial home visit at Mother and R.S.'s home. Hughes noted that the Department had no contact with Father "despite several attempts."

¶9 At a June 12, 2013 hearing on the Department's petition, all parties except Father stipulated to adjudicating Y.A. as a youth in need of care. Father did not personally appear at the hearing, though his counsel was present. Linda Resoff, a representative of the Sun'aq Tribe, testified that it would be inappropriate to place Y.A. with Father at that time. Resoff testified that the Tribe believed Y.A. would be likely to suffer from serious physical or emotional harm if she were returned to Father's home. By contrast, Resoff testified that Y.A. could be placed with Mother and R.S. On July 10, 2013, the District Court issued an order adjudicating Y.A. as a youth in need of care and granting the Department temporary legal custody.

¶10 On December 13, 2013, the Department filed a petition to extend temporary legal custody. The case had been transferred from Hughes to Child Protection Specialist Kara Tweten, who signed an affidavit in support of the Department's petition. Tweten stated that Y.A. had been on a trial home visit with Mother and R.S. since April 2013, and that there were no further reports of child abuse or neglect during that period. According to Tweten, Y.A. had no contact with Father and indicated that she did not want contact with Father. Y.A.'s therapist told Tweten that Y.A. was more positive than before, and that her family was supportive and involved with her treatment. Tweten reported that Mother was participating in mental health services, complying with the Department, and able to support Y.A. Tweten noted that Hughes had made several unsuccessful attempts to contact Father. Tweten herself had not yet attempted to contact him.

¶11 On January 10, 2014, the Department filed a "Report to Court for Permanency." In the Report, the Department indicated that it would prepare treatment plans for Mother and Father and recommended that custody of Y.A. be granted to Mother. The Department stated that Father had not been in contact with the Department and had not signed a treatment plan due to a miscommunication with Father's counsel at a prior court hearing. The Department noted that Father was involved in an unrelated open Child Protective Services case in Albany, Oregon, regarding a child he fathered with C.B., and that Father had a treatment plan for that case.

¶12 On January 15, 2014, the District Court held a hearing on the Department's petition to extend temporary legal custody and permanency plan. Father appeared via telephone and testified that R.S. kidnapped Y.A., that Mother was a "druggie," and that R.S. was "crazy." Father's counsel also was present. At the hearing, Tweten testified that she created a treatment plan for Mother, which still needed court approval, and planned on creating one for Father. Tweten further testified that although Mother had not entered a formal treatment plan, she had completed many of the tasks the Department requested. Tweten did not recommend returning Y.A. to Father, noting that Y.A. still expressed fear of Father and wanted to stay with Mother and R.S. Resoff testified that Y.A. was "still fearful" of Father, and that the Sun'aq Tribe believed it would be in the best interests of Y.A. to stay with Mother. At the hearing's conclusion, the District Court granted the Department an extension of temporary legal custody and approved the Department's permanency plan. The District Court approved Father's treatment plan onMarch 18, 2014. Father did not sign his plan, though on appeal he concedes that it was "appropriate."

¶13 On July 15, 2014, the Department filed a petition for termination of Father's parental rights and placement of Y.A. with Mother pursuant to § 41-3-438(3)(d), MCA, which allows a district court to place a child with a noncustodial parent. On September 24, 2014, the District Court held a hearing on the Department's petition. Mother had completed her treatment plan but Father, who again did not appear at the hearing, had neither...