In re A.K.

• Decision Date: 28 April 2015
• Docket Number: No. DA 14–0348.,DA 14–0348.
• Parties: In the Matter of A.K. and K.G., Youths in Need of Care.
• Court: Montana Supreme Court

379 Mont. 41

347 P.3d 711

2015 MT 116

In the Matter of A.K. and K.G., Youths in Need of Care.

No. DA 14–0348.

Supreme Court of Montana.

Submitted on Briefs Feb. 25, 2015.

Decided April 28, 2015.

For Appellant: Jeanne M. Walker, Hagen & Walker, PLLC, Billings, Montana.

For Appellee: Timothy C. Fox, Montana Attorney General; Katie F. Schulz, Assistant Attorney General, Helena, Montana, Kirsten H. Pabst, Missoula County Attorney; Matthew Lowy, Deputy County Attorney, Missoula, Montana.

Opinion

Justice BETH BAKER delivered the Opinion of the Court.

¶ 1 M.K. (Father) appeals an order of the Fourth Judicial District Court, Missoula County, terminating his parental rights to his children, A.K. and K.G. We restate Father's issues and address them as follows:

1. Whether the District Court abused its discretion in terminating Father's parental rights.

2. Whether the District Court erred in concluding that the Department of Public Health and Human Services complied with its statutory duty to provide reunification services.

¶ 2 We affirm.

PROCEDURAL AND FACTUAL BACKGROUND

¶ 3 In 2010, the Department of Public Health and Human Services (Department) began receiving reports that Father and J.G. (Mother) were putting their children, A.K. and K.G., at risk of abuse or neglect. In the spring of 2012, Child Protection Specialist Taryn Kovac interviewed family members and prepared a thirty-day “present danger plan.” During the interviews, Kovac noted that Father made several false misrepresentations, and that he became loud and angry when she confronted him with facts contradicting his statements. Although the present danger plan allowed Father to visit with A.K. and K.G. under Department supervision, Father did not exercise that right during the thirty-day period. The Department ultimately determined that the present danger plan was insufficient to protect A.K. and K.G.

¶ 4 On April 19, 2012, the Department filed petitions for emergency protective services, adjudication as youths in need of care, and temporary legal custody. The petitions alleged that Mother and Father put A.K. and K.G. in danger of exposure to neglect, physical abuse, physical neglect, psychological neglect, psychological abuse, domestic violence, mental health issues, drug and alcohol abuse, unstable housing, an unsafe living environment, unknown/prohibited caregivers, Father's criminal history, and the parents' failure to intervene or eliminate the risk of harm. The social worker's attached report documented the Department's concerns that, despite the Present Danger Plan, Mother “remains in protection mode, defending [Father], diminishing her protective capacities and placing the children at risk.” The report observed that Mother's actions demonstrated “typical behavior for victims of domestic violence.” On June 19, both parents stipulated to the requested relief, and the court granted temporary legal custody to the Department for six months. The children were placed with their maternal grandmother while the Department prepared treatment plans for both parents. Meanwhile, Father completed a psychological evaluation with Dr. Samantha Wildeman and a dangerousness assessment with Ric McLeod, a licensed professional counselor. Dr. Wildeman diagnosed Father with Personality Disorder Not Otherwise Specified (NOS) with narcissistic, histrionic, and obsessive-compulsive features. McLeod determined that Father was in high risk categories for physical, psychological, and emotional dangerousness. Both reports noted that Father had a tendency to deflect blame onto others.

¶ 5 In May, Evolution Services, which provides support programs for families, began supervising semiweekly visits between the parents and their children. Between May and December, Father participated in at least twenty-four supervised visits. Evolution Services staff did not note any serious issues between Father and A.K. during those visits. Also in May, both parents began compliance coaching and Evolution Services' Circle of Security program.

¶ 6 On August 7, Father stipulated to the tasks and obligations set forth in his treatment plan. On August 15, both parents stipulated to a No Contact Order. On September 4, the court ordered Mother's treatment plan and granted Father's motion to amend two tasks in his treatment plan.

¶ 7 On October 30, the Department reported that Mother had completed all of the tasks in Phase One of her treatment plan, and it moved to extend temporary legal custody for an additional six months. By December 4, 2012, Mother was reunited with both children. Also in December, the Department discontinued visits between Father and A.K. following the advice of the children's therapist, Margot Luckman. Luckman advised that the visits should cease because A.K. was fearful and anxious in sessions with Father, and A.K. was physically aggressive toward Mother and caregivers during the time period when he was visiting with Father. Father objected. After holding two separate hearings, the court decided not to overrule the Department's decision. Six months after Father stopped visiting, A.K. was sleeping regularly and was no longer demonstrating fear and anxiety or aggressive behaviors.

¶ 8 On January 15, 2013, Mother and Father stipulated to a three-month extension of temporary legal custody. In March, Father initiated individual therapy with Tiffany Bartolomei, a licensed professional counselor. Father continued therapy with Bartolomei throughout the proceedings. On April 16, Mother and Father stipulated to another three-month extension of temporary legal custody. Starting in June 2013, Evolution Services conducted six random home visits, each time finding Father's home satisfactory, though the visits eventually ceased when staff no longer found anyone at home.

¶ 9 At a status conference on June 4, Father requested a six-month extension of temporary legal custody and asked the Department to take steps immediately to reunite him with his children. The Department reported that the children were doing well with Mother, who had complied fully with her treatment plan. Father had not yet complied with his plan, however, and the Department reported that its reasons for involvement—domestic violence and lack of protective capacity—were still a concern.

¶ 10 The Department advised the court that, when it initially intervened with the family, Father told Mother that he would not cooperate with the Department, that Mother would do all the work to get the case dismissed, and that after dismissal Father would fight for full custody in a separate proceeding where neither party was represented by counsel. The Department advocated for extending temporary legal custody because Father continued to demonstrate the power and control issues that necessitated the Department's involvement in the first place. The Department wanted more time to see if Father could follow through with his treatment plan in order to protect the children's best interests. Father's counsel complained that the Department was not making sufficient efforts to reunite Father with A.K. and emphasized that Father had a fundamental right to be a parent. The court extended temporary legal custody to allow further time for Father to work on his treatment plan.

¶ 11 On July 18, the court held a hearing on reunification and visitation between Father and A.K. According to Father's counsel, Father's sole reason for requesting an extension of temporary legal custody at the June 4 hearing was for the Department to make efforts to reunite him with his children, which had not happened. Father now wanted the Department's case dismissed so that he could file for custody and work out a parenting plan. The Department resisted dismissal because Father had not shown the change that would be needed before reinitiating his visits with A.K. Luckman testified that, if the case were to be dismissed, Mother may be capable of protecting the children from Father, but her protective capacity depended on Father's actions. The Court Appointed Special Advocate (CASA) volunteer, who supervised visits at Evolution Services, testified that she had not observed any indication that Father had changed since she first met him in June 2012.

¶ 12 The hearing was continued to August 28 to allow testimony by Dr. Paul Silverman to clarify a January 2013 evaluation of Father's parental competence conducted by Dr. Silverman. During the evaluation, Dr. Silverman had observed Father interacting with A.K. and noted that Father was “very self-focused,” that he engaged in a concerning “joking but slightly threatening interaction” with A.K., and that A.K. committed self-harm by hitting himself in distress. Dr. Silverman testified that, although the children's therapist should not be the sole decision-maker as to reunification, she would have the best knowledge of A.K.'s psychological state and could provide valuable information about the children's well-being. Dr. Silverman further testified that it was “very important” for Father to actually complete his treatment plan. He recommended psychotherapy and careful monitoring of Father's progress, and he did not think it was a good idea for the parents to be involved together with A.K.

¶ 13 The parties also discussed whether the case should be dismissed. Father's counsel objected to dismissal because Department funding would be needed to continue supervised reunification efforts. The Department emphasized that it needed to continue to act as a buffer between Father and the family to protect the children. The parties agreed to involve a third therapist, Dr. Danette Wollersheim, to liaise between Luckman and Bartolomei, and to oversee the initiation of therapeutic or supervised visits between Father and A.K. The court extended temporary legal custody for six more months so that the Department could control visitation between Father and A.K. until Father showed more progress on his treatment plan.

¶ 14 In November and December, Father twice visited A.K. in Dr....