In re J.E.L., DA 17-0473
| Decision Date | 20 March 2018 |
| Docket Number | DA 17-0473 |
| Parties | In the MATTER OF: J.E.L., III, A Youth in Need of Care. |
| Court | Montana Supreme Court |
For Appellant: Shannon Hathaway, Montana Legal Justice, PLLC, Missoula, Montana
For Appellee: Timothy C. Fox, Montana Attorney General, C. Mark Fowler, Assistant Attorney General, Helena, Montana, Scott D. Twito, Yellowstone County Attorney, Rick Helm, Deputy County Attorney, Billings, Montana
¶ 1 J.P. (Mother) appeals the District Court's order terminating her parental rights to her son J.E.L. She argues that the District Court improperly concluded that the conduct or condition rendering her unfit to parent was unlikely to change in a reasonable time. Mother also argues that the State improperly relied on inadmissible evidence to which her counsel failed to object, denying her the effective assistance of counsel and amounting to plain error. We affirm.
¶ 2 The Department of Public Health and Human Services (Department) received a report in February 2016 that Mother had been using methamphetamine and neglecting three-year-old J.E.L. After conducting an investigation, the Department placed J.E.L. in protective custody with relatives. The Department filed a petition for emergency protective services, adjudication as youth in need of care, and temporary legal custody. The Department's records showed that Mother previously had lost custody of her two older children due to her drug use and neglect dating back to 2002.
¶ 3 The District Court granted the Department's petition for emergency services and—with Mother's stipulation—adjudicated J.E.L. a youth in need of care and granted the Department temporary legal custody. Mother entered the Second Chance Home in Billings, and J.E.L. moved in with her there in May 2016.
¶ 4 The District Court entered a treatment plan for Mother in August 2016. The plan's stated goals were to encourage Mother's sobriety and to improve her parenting skills and relationship with J.E.L. The plan required Mother to "complete a chemical dependency evaluation and follow all recommendations"—which included maintaining sobriety—to submit to random drug and alcohol testing, to sign all relevant releases or authorizations, to complete a parenting class, to attend monitored visitations with J.E.L., and to "follow all rules and guidelines as a resident of Second Chance Home."
¶ 5 Mother successfully completed the Second Chance Home program in November 2016, although she did relapse
multiple times while living there. Upon completion, she moved into her own apartment with J.E.L. Mother subsequently tested positive for marijuana, alcohol, and methamphetamine multiple times in early 2017. After Department personnel encountered Mother drinking at a local bar in January 2017, the Department removed J.E.L. from Mother's custody and placed him with his maternal grandparents.
¶ 6 The Department filed a petition for permanent legal custody and termination of parental rights with right to consent to adoption in April 2017, based on Mother's ongoing substance abuse. The District Court held a termination hearing on June 14, 2017. The court heard testimony from Mother; four of Mother's treatment providers; Mother's father; and Brittney McNamara, a child protection specialist with the Department. The testimony established that Mother had made some progress in managing her mental health and drug addiction issues, but also that she had failed to maintain sobriety throughout the proceedings and that she routinely tested positive for drugs and alcohol, including in the weeks leading up to the hearing.
¶ 7 During the hearing, counsel for the Department asked multiple witnesses—including Mother and McNamara—about Mother's discharge from the Montana Chemical Dependency Center (MCDC). The Department's counsel read aloud from a discharge summary document from MCDC during the testimony and asked the witnesses questions about it. The Department sought to show that Mother was discharged from MCDC not because she successfully completed her chemical dependency program there, but because she was showing no progress and the MCDC staff believed that she would not benefit from further treatment. The Department did not call a witness to attest to the discharge summary's authenticity, and it did not offer the document into evidence. Mother's counsel did not object to the Department's use of the document, but did elicit testimony from Mother contradicting the Department's characterization of her discharge.
¶ 8 The Department's counsel also asked McNamara about a conversation she had with Mother's drug patch provider, Neil Friedel. McNamara stated that Friedel "figures that [Mother] was a pretty heavy drug addict." The Department did not call Friedel to testify, and Mother's counsel did not object to McNamara's testimony.
¶ 9 At the close of the hearing, the District Court stated, "there's no question that the State has proven by clear and convincing evidence that the Treatment Plan has not been fully complied with." The court emphasized that "the issue is the drug addiction." It expressed doubt that Mother's addiction could change in a reasonable time. The court addressed Mother, stating, "I know you've made great efforts to try to address your addiction issues, and it sounds like you have made some progress." The court reasoned, however, that Mother was currently in a relapse "that's been recurring since December," that Mother's failed drug tests in the weeks before the hearing were "very concerning," and that Mother had a "chronic" addiction dating back fifteen years. The court stated, "I guess the issue then is is it likely to change ... I wish I could say it was." The court advised Mother, however, that based on the evidence, it had "unfortunately" come to the conclusion that the situation was unlikely to change within a reasonable time. It therefore granted the State's motion to terminate Mother's parental rights.
¶ 10 The District Court later entered its written Findings of Fact, Conclusions of Law, and Order Terminating Parental Rights of Natural Mother. In its findings of fact, the court stated, "Brittney McNamara, Department Social Worker, testified that, despite the Department's reasonable efforts, [Mother] has failed to make even minimal attempts to compete any of the tasks of her Phase I Treatment Plan." The order reiterated the court's finding that Mother's conduct or condition rendering her unfit to parent was "unlikely to change within a reasonable time." Mother appeals.
¶ 11 We review a district court's decision to terminate parental rights for an abuse of discretion. In re K.A. , 2016 MT 27, ¶ 19, 382 Mont. 165, 365 P.3d 478. A district 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 K.A. , ¶ 19.
¶ 12 We review a district court's findings of fact to determine whether they are clearly erroneous and its conclusions of law to determine whether they are correct. In re D.B. , 2007 MT 246, ¶ 18, 339 Mont. 240, 168 P.3d 691. A finding of fact is clearly erroneous if it is not supported by substantial evidence, if the trial court misapprehended the effect of the evidence, or if our review of the record convinces us that a mistake has been committed. In re N.R.A. , 2017 MT 253, ¶ 10, 389 Mont. 83, 403 P.3d 1256.
¶ 13 Whether a person has been denied his or her right to due process is a question of constitutional law, for which this Court's review is plenary. In re A.S. , 2004 MT 62, ¶ 9, 320 Mont. 268, 87 P.3d 408. A claim of ineffective assistance of counsel presents mixed questions of law and fact, for which our review is de novo. In re C.W.E. , 2016 MT 2, ¶ 9, 382 Mont. 65, 364 P.3d 1238.
¶ 14 1. Whether the District Court's finding of fact that the conduct or condition rendering Mother unfit to parent was unlikely to change within a reasonable time was clearly erroneous.
¶ 15 Mother argues that the District Court wrongly found that the conduct or condition rendering her unfit to parent—her chemical dependence—was unlikely to change within a reasonable time. She claims that the error violated her fundamental constitutional right to parent her child. She contends further that the District Court abused its discretion in determining in its written order that Mother had failed to make even "minimal attempts" to complete her treatment plan. She asserts that the evidence showed that her condition was improving and was likely to change with time. Mother contends that much of the evidence on which the District Court relied in making its decision—the Department's discussion of Mother's MCDC discharge summary and McNamara's testimony regarding her conversation with Friedel—was presented improperly at the termination hearing and prejudiced her right to a fundamentally fair proceeding.
¶ 16 Under § 41-3-609(1)(f), MCA, a district court may terminate parental rights upon a finding by clear and convincing evidence that:
the child is an adjudicated youth in need of care and both of the following exist: (i) an appropriate treatment plan that has been approved by the court has not been complied with by the parents or has not been successful; and (ii) the conduct or condition of the parents rendering them unfit is unlikely to change within a reasonable time.
¶ 17 This statute requires full compliance with a treatment plan. In re A.H. , 2015 MT 75, ¶ 35, 378 Mont. 351, 344 P.3d 403. "Partial or even substantial compliance is not sufficient." In re A.H. , ¶ 35. "In determining whether the conduct or condition of the parents is unlikely to change within a reasonable time," the court must make a finding that continuing the parent-child legal relationship "will likely result in continued abuse or neglect or that the conduct or...
To continue reading
Request your trial