In re A.H., DA 14–0225.

• Decision Date: 10 March 2015
• Docket Number: No. DA 14–0225.,DA 14–0225.
• Citation: 344 P.3d 403,2015 MT 75,378 Mont. 351
• Parties: In the Matter of A.H., L.M., and J.M., Youths in Need of Care.
• Court: Montana Supreme Court

378 Mont. 351

344 P.3d 403

2015 MT 75

In the Matter of A.H., L.M., and J.M., Youths in Need of Care.

No. DA 14–0225.

Supreme Court of Montana.

Submitted on Briefs Feb. 11, 2015.

Decided March 10, 2015.

For Appellant: Johnna K. Sutton, Van de Wetering & Sutton, P.C., Missoula, Montana.

For Appellee: Timothy C. Fox, Montana Attorney General, C. Mark Fowler, Assistant Attorney General, Helena, Montana, John W. Parker, Cascade County Attorney, Jennifer Ropp, Deputy County Attorney, Great Falls, Montana.

Opinion

Justice LAURIE McKINNON delivered the Opinion of the Court.

¶ 1 T.M. (Mother) appeals from orders of the Eighth Judicial District Court, Cascade County, terminating her parental rights to her three children, A.H., L.M., and J.M. We affirm.

¶ 2 Mother presents the following issues for review:

1. Whether Mother's due process rights were violated by delays in holding the show cause, adjudicatory, and dispositional hearings.

2. Whether the District Court erred when it found that Mother failed to complete her treatment plan and the condition rendering her unfit to parent was unlikely to change within a reasonable time.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 3 The children involved in this proceeding are J.M., born in 2006, L.M., born in 2009, and A.H., born in 2010. T.T. is the father of J.M., A.A. is the father of L.M., and F.H. is the father of A.H.¹ The Department of Public Health and Human Services (Department) received its first report concerning the children on July 6, 2011. At that time, it was reported that L.M. had a bite mark on his thigh that appeared to be “adult size.” A child protection specialist investigating the report was informed that L.M. had been bitten by another child at day care.

¶ 4 A second report was received on July 11, 2011. The report indicated that J.M. had bruises around her arms that resembled fingerprints. J.M. also had a bite mark on her shoulder. When asked if her little brother bit her, J.M. replied that only F.H. bites her. A safety plan was put in place instructing Mother to prevent the children from having contact with F.H. During a follow-up interview on August 4, 2011, Mother said F.H. was no longer living with her.

¶ 5 On the morning of August 9, 2011, the Department was called to Apple Tree Daycare to investigate injuries to L.M. L.M. had extensive bruising on his left shoulder, leg, and buttocks. A bruise on the back of his thigh resembled a hand mark. J.M. told child protective specialists Mother was the only adult in the home. J.M. also reported witnessing violence between F.H. and Mother, including an incident in which F.H. pushed Mother into a table, causing the table to break. J.M. said Mother “pushes [F.H.] and slaps him in the face.”

¶ 6 Mother was contacted about the injuries to L.M. and stated that J.M., who was four years old at the time, caused the bruising by hitting L.M. with a toy paddle. The children were later examined by pediatrician Dr. Michael Garver, who concluded that the injuries could not have been caused by a four-year-old child. Dr. Garver also observed a bruise on J.M.'s arm that looked like a bite mark and “seemed to be of adult size.” Mother was interviewed by a detective from the Great Falls Police Department and repeated that she believed J.M. had caused the injuries to L.M. She said J.M. had hit L.M. with the paddle “45 times.” Mother then stated that she experiences “blackouts” and that it was possible she had caused the injuries to L.M. during one of these episodes.

¶ 7 The Department removed the children from Mother's care on August 9, 2011, and filed a petition for emergency protective services, adjudication of the children as youths in need of care, and temporary legal custody on August 15, 2011. A show cause hearing was set for September 22, 2011. On September 2, 2011, the Department requested a continuance because two of its key medical witnesses were unavailable on the hearing date. The Department's motion noted that Mother objected to the continuance. The hearing was set for December 8, 2011, and then moved to November 10, 2011, when that date became available on the court calendar. On November 9, 2011, the Department requested a second continuance on the grounds that it had been unable to locate the fathers of J.M. and L.M. and would need additional time to complete service by publication. The motion does not indicate whether Mother was contacted or opposed the request. The motion was granted the same day and the hearing was reset for December 15, 2011.

¶ 8 Although Mother had objected to the September 2, 2011 motion to continue, she did not file any subsequent objection to the delay in holding a show cause hearing, nor did she verbally raise an objection or move to dismiss the petition during the December 15, 2011 hearing. Testimony at the hearing indicated that the Department had already contacted both Mother and F.H. in an attempt to initiate services, and that Mother had in fact already completed a parenting education program and received visitation through Healthy Mothers, Healthy Babies. The District Court adjudicated the children youths in need of care and granted emergency protective services and temporary legal custody. The District Court then set a dispositional hearing for February 9, 2012. Mother did not object to the timing of the dispositional hearing. At the dispositional hearing, Mother agreed to a treatment plan. The treatment plan required her to complete a psychological evaluation, participate in domestic violence classes, sign all necessary releases and contact the Department on a weekly basis, attend age-appropriate parenting classes, complete an in-home parenting program, follow recommendations made by the children's service providers, maintain regular contact with the children, have enough income to meet the children's needs, and maintain a safe and stable home environment.

¶ 9 On September 4, 2012, the Department requested an extension of temporary legal custody for six months to allow Mother more time to work on her treatment plan. In an affidavit accompanying the petition, the child protection specialist then assigned to the case noted that if Mother did not “make substantial progress in the next 2–3 months,” the Department would file a petition for termination of parental rights. Mother did not object to the extension of temporary legal custody. Noting that the case had already “been open ... way, way too long,” the District Court granted an extension of only 90 days, at which time “either we should be in a position where it can be closed because of compliance, or, if not complied with, then there will be a situation where ... the State will have to file its petition for termination.”

¶ 10 On December 6, 2012, Mother moved the District Court to order the children returned to her care, stating that “[t]he children should be returned with the mother in this case because Counsel feels that the Mother has completed enough of her treatment plan to begin the reunification process.” On January 16, 2013, the Department filed a petition to terminate Mother's parental rights on the grounds that her treatment plan had not been completed and the conditions rendering her unfit to parent were unlikely to change within a reasonable time.

¶ 11 A hearing on Mother's motion for reunification was held January 17, 2013. At that hearing, child protection specialist Talisa Hides testified that although Mother had attended counseling and parenting education sessions, she had not completed the mental health portion of her treatment plan. She testified that there were concerns about whether Mother was “really engaging” in counseling, rather than participating superficially. Mother maintained only intermittent contact with the Department, and during many of her conversations with Hides, “would yell and scream and swear.” Mother particularly opposed moving the children to a new foster placement in another city, although it was the only available placement where all three children could be together. Hides also observed that Mother was no longer allowed to attend the children's visits with Dr. Garver due to her behavior in his office. Hides said Mother “continued to not accept responsibility for her actions.”

¶ 12 Dr. Garver testified that L.M. “had some very ... regressive-type activity where he would act like a dog, and he was involved in biting both his sister and other children.” Dr. Garver recounted an incident in which L.M., at age two, had attacked an infant. Dr. Garver treated the infant, who “actually looked like she'd been mauled by a dog.” Dr. Garver said L.M.'s behavior “was one of the most significant cases of traumatic child abuse behavior that I've had to treat in my career.” L.M. improved significantly while in foster care. Dr. Garver further testified that “these children were traumatized beyond anything that I've ever seen before.”

¶ 13 The children's counselor, Lisa Anderson Mangan, testified that L.M.'s behavior had improved “tremendously,” to the extent that he was discharged from counseling. Anderson Mangan testified that J.M. had made several disclosures to her regarding abuse by Mother and F.H. J.M. said F.H. cut her on the area between her legs. J.M. also said Mother “had touched her private parts and had allowed others to touch her private parts.” J.M. was diagnosed with attention deficit hyperactivity disorder

, reactive attachment disorder, and post-traumatic stress disorder. Anderson Mangan believed J.M. would need ongoing counseling.

¶ 14 Carrie Galvez, who provided foster care to J.M. and L.M. for approximately 15 months before they were moved to a new placement with A.H., also testified. Galvez said that when L.M. entered care, “he had traits, characteristics of what one might consider a dog where he'd be on all fours, he would bark, he would growl at you, he would charge at you, he would try to bite you.” L.M. would also “dig[ ] through the garbage, looking for food.” J.M. frequently masturbated, particularly while in the...