In re J.A.B.

• Decision Date: 27 January 2015
• Docket Number: No. DA 14–0262.,DA 14–0262.
• Citation: 342 P.3d 35,2015 MT 28,378 Mont. 119
• Parties: In the Matter of J.A.B. and L.M.F., Youths in Need of Care.
• Court: Montana Supreme Court

378 Mont. 119

342 P.3d 35

2015 MT 28

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

No. DA 14–0262.

Supreme Court of Montana.

Submitted on Briefs Dec. 31, 2014.

Decided Jan. 27, 2015.

For Appellant: Kathryn McEnery, McEnery Law Office, PLLC, Hot Springs, Montana (Attorney for Appellant and Father), Jennifer A. Giuttari, Law Office of Jennifer A. Giuttari, PLLC, Missoula, Montana (Attorney for Appellant and Mother).

For Appellee: Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana, Emily Von Jentzen, Assistant Attorney General, Kalispell, Montana.

Opinion

Justice LAURIE McKINNON delivered the Opinion of the Court.

¶ 1 N.W. (Mother) and J.B. (Father) appeal from orders of the Eleventh Judicial District Court, Flathead County, terminating Mother's parental rights to her children L.M.F. and J.A.B., and Father's rights to his child J.A.B. We affirm.

¶ 2 We restate the following issues for review:

1. Did the District Court abuse its discretion when it terminated Mother's parental rights as to L.M.F. on the basis that Mother had not successfully completed her treatment plan and her condition was unlikely to change?

2. Did the District Court abuse its discretion when it terminated Mother and Father's parental rights as to J.A.B. without reunification services on the basis that they had subjected a child to aggravated circumstances?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 3 Mother is the birth mother of L.M.F., born in 2008, and J.A.B., born in 2012. Father is the birth father of J.A.B. C.F., the birth father of L.M.F., is presently incarcerated and has executed a conditional relinquishment of his parental rights. He is not a party to this appeal.

¶ 4 Mother and Father have struggled with methamphetamine addiction throughout these proceedings. On December 4, 2009, the Department of Public Health and Human Services (Department) removed L.M.F. from Mother's care based upon allegations that Mother had been using methamphetamine and caring for L.M.F. while under the influence of the drug. At the time L.M.F. was removed, Mother was sharing a residence with Father, who was described as her “paramour.” It was noted that Father also had a history of methamphetamine use, and the child protection specialist (CPS) then assigned to the family observed that “[L.M.F.] is undoubtedly at a considerable risk if she is residing in the same household as [Father].” The Department had received reports that L.M.F. was left home alone while Mother and Father left the house to use methamphetamine. There were also reports that Mother and Father had smoked methamphetamine in the living room of their home while L.M.F. was asleep in a bedroom. Mother had also left L.M.F. in the care of her own mother, C.H., who was also a methamphetamine user and who had a significant history of involvement with the Department during Mother's childhood.

¶ 5 L.M.F. was placed with her paternal grandparents, who have cared for her for the majority of the past five years. Following L.M.F.'s removal, Mother had a chemical dependency evaluation and began participating in drug testing and supervised visits with L.M.F. Father was asked to participate in similar services, but refused to become involved. Mother represented to the Department that she and Father had decided to end their relationship. On March 24, 2010, Mother was allowed to begin unsupervised visitation with L.M.F. in her home. At that time, no one else was living in the home, and it was clean and appropriate. Approximately two weeks later, Mother's home was the subject of a drug raid. Father and two other individuals were reportedly living in the home, and drugs were being sold on the premises. On May 17, 2010, L.M.F. was adjudicated a youth in need of care and the Department was granted temporary legal custody.

¶ 6 On June 10, 2010, the District Court approved a treatment plan requiring Mother to participate in chemical dependency treatment, submit to random urine analysis, undergo a psychological evaluation, participate in individual counseling, maintain a safe home environment and lifestyle, and participate in supervised visitation and parenting education. Temporary legal custody was extended on multiple occasions to allow Mother more time to work on her treatment plan.

¶ 7 On October 12, 2011, the Department petitioned for termination of Mother's parental rights. At that time, Mother was not compliant with her treatment plan. There were continued concerns about Mother's relationship with Father. The Department suggested that if Mother and Father continued their relationship, Father needed to be a part of the treatment plan. Mother denied having an ongoing relationship with Father, but at the time the Department petitioned for termination of her parental rights, she was pregnant with his child.

¶ 8 The petition for termination indicated that Mother had nine positive drug screenings, mostly indicating marijuana use. A hair test on April 10, 2011, showed evidence of methamphetamine use. Mother admitted cheating on urine screenings prior to the positive hair test. She tested positive for suboxone

in August 2011, while she was pregnant. Additionally, Mother had several noncompliant tests, and had not reported for testing at all during the month of February 2011.

¶ 9 Mother's counselor reported that she had not been consistent in attending individual counseling sessions. Mother did not disclose to the counselor why she could not attend. Mother was not able to maintain appropriate housing. She shared a home with her mother and a friend, both of whom were on felony probation and were known to have violated that probation by consuming alcohol. When told this was an unsuitable situation, Mother made plans to move in with another friend, who also had a criminal record and a history of Department involvement. Despite these concerns, the petition also indicated that during supervised visits with L.M.F., Mother demonstrated many positive parenting skills, including her ability to respond appropriately to L.M.F.'s cues, engage in age-appropriate activities, and use appropriate discipline.

¶ 10 A hearing on the petition for termination was set for February 21, 2012. Mother requested a continuance on the basis that her due date was only a few days before the hearing. The hearing was rescheduled for March 26, 2012. Meanwhile, J.A.B. was born in February. The Department was involved with J.A.B. from birth, but decided against removal after Mother and Father agreed to a voluntary protective services agreement. Mother also agreed to live in a supervised foster home with Vicki Peterson pending her admission to Mountain Home, a residential program for young mothers. As a result of these developments, the Department moved to extend temporary legal custody and continue the termination hearing regarding L.M.F. for a period of three months.

¶ 11 On March 20, 2012, the Department filed for temporary legal custody of J.A.B. after Mother failed to complete drug testing as required by the voluntary protective services agreement. There were also ongoing concerns about Father's possible drug use. Mother and Father did not object to the adjudication of J.A.B. as a youth in need of care and the granting of temporary legal custody to the Department. Nevertheless, because of his young age, J.A.B. was allowed to remain with Mother under Peterson's supervision, and later in Mountain Home.

¶ 12 Mother was admitted to Mountain Home in mid-May and reportedly fared well in the program. On May 30, 2012, however, the Department notified counsel for Mother of its intent to move forward with the termination hearing regarding L.M.F. CPS Lindsey Santa provided an updated affidavit stating the factual basis for termination, in which she observed that termination of parental rights is presumed to be in a child's best interest if the child has been in foster care for 15 of the most recent 22 months. Santa noted that L.M.F. had already been in foster care for twice that long, and Mother would need another six months to complete the program at Mountain Home. Santa stated that prior to her entry to Mountain Home, Mother had failed to show stability for any significant length of time.

¶ 13 While the termination hearing regarding L.M.F. was pending, Mother completed the program at Mountain Home, and she and J.A.B. moved back into the home with Father. Father was also working on a treatment plan. On August 24, 2012, the Department moved to vacate the termination hearing regarding L.M.F. and extend temporary legal custody in order to allow Mother to continue her progress. On December 26, 2012, the case involving J.A.B. was dismissed, because both parents were successfully meeting their treatment plan goals. The Department allowed L.M.F. to begin the transition back to Mother and Father's home, noting that Mother had been complying with all Department requests.

¶ 14 On June 6, 2013, three weeks after L.M.F. had transitioned to Mother and Father's home, the Department received a report regarding Mother's use of methamphetamine. The Department conducted a visit to the home that day. Mother and Father were asked to provide urine samples for testing, but neither was able to provide a sample. They were asked to test again the next day, but failed to show up. The Department conducted unannounced home visits for each of the next two days, but Mother and Father were not home. Another visit was conducted on June 10, 2013, and although a car was in the driveway, no one answered the door. Santa later spoke with Father and scheduled a hair test for June 11, 2013. Father, who normally shaves his head, asked if arm hair could be tested instead, and Santa replied that it could. At the time Mother and Father reported for the hair test, Father had shaved his beard and underarms, which Santa believed was an attempt to evade testing. A test of Father's leg hair was inconclusive. The results of Mother's hair test, received on June 20, 2013,...