In re L.v.-B., No. DA 13–0382.

• Docket Nº: No. DA 13–0382.
• Citation: 317 P.3d 191, 373 Mont. 344
• Case Date: January 21, 2014
• Court: United States State Supreme Court of Montana

373 Mont. 344
317 P.3d 191

In the Matter of L.V.-B., A Youth in Need of Care.

No. DA 13–0382.

Supreme Court of Montana.

Submitted on Briefs Dec. 3, 2013.
Decided Jan. 21, 2014.

[317 P.3d 192]

For Appellant: Carolynn M. Fagan, Fagan Law Office, P.C.; Missoula, Montana.

For Appellee: Timothy C. Fox, Montana Attorney General, Mardell Ployhar, Assistant Attorney General; Helena, Montana, Emily Von Jentzen, Assistant Attorney General, Child Protection Unit; Kalispell, Montana, Bernard G. Cassidy, Lincoln County Attorney; Libby, Montana.

Justice LAURIE McKINNON delivered the Opinion of the Court.

¶ 1 F.V. (“Mother”) appeals from an order of the Nineteenth Judicial District Court, Lincoln County, terminating her parental rights to her daughter, L.V.-B. We affirm. We restate the issues on appeal as follows:

¶ 2 1. Whether Mother articulated a substantive due process claim which required that the State's petition to terminate be dismissed.

¶ 3 2. Whether § 41–3–424, MCA, and the placement of L.V.-B. with Father required that the State's petition to terminate be dismissed.

¶ 4 3. Whether the State's petition to terminate was filed prematurely.

[317 P.3d 193]

BACKGROUND

¶ 5 In October 2011, Mother gave birth to L.V.-B. In a prior proceeding in 2010, the Department of Public Health and Human Services (“Department”) removed a different child from Mother's care due to her drug use, homelessness, and for leaving the child with an inappropriate caregiver. Mother did not comply with the treatment plan that the Department provided to enable her to parent her first child safely. The State ultimately did not petition to terminate Mother's rights to the first child because it was able to place the child in the care of that child's father.

¶ 6 In February 2012, the Department removed L.V.-B. from Mother's care based on reports that Mother was using drugs, homeless, and had left L.V.-B. with inappropriate caregivers. The Department placed L.V.-B. with her maternal aunt, and established a voluntary services agreement with Mother that addressed the issues leading to L.V.-B.'s removal. Mother did not comply with the voluntary services agreement, and the State filed a petition for emergency protective services and temporary investigative authority in March 2012. The District Court granted temporary investigative authority to the Department upon stipulation of the parties in April 2012. In May 2012, paternity of L.V.-B. was established and the Department provided L.V.-B.'s father (“Father”) with a treatment plan. The parties do not dispute that Father successfully completed his treatment plan. L.V.-B. remained with her maternal aunt until placed with Father in April of 2013.

¶ 7 In July 2012, the District Court adjudicated L.V.-B. a youth in need of care. The Department provided Mother with a treatment plan requiring her to obtain a drug evaluation and follow through with treatment recommendations, participate with Family Concepts to improve her parenting skills, submit to random urinalysis testing, maintain an adequate home, avoid involvement with criminal activity, attend visitations with L.V.-B., obtain a job, and maintain weekly contact with the Department. Mother failed to comply with the terms of the treatment plan, and in January 2013 the State filed a petition to terminate Mother's parental rights. Shortly before Mother's termination hearing, the Department placed L.V.-B. with Father.

¶ 8 On April 18, 2013, Mother filed a motion to dismiss the State's termination petition, arguing that L.V.-B.'s placement with Father diminished the State's interest in L.V.-B., and that Mother's fundamental constitutional right to remain L.V.-B.'s parent outweighed the State's interest in termination. Mother additionally argued that the termination petition was filed prematurely. Mother was not present at the termination hearing on April 19, 2013. Her counsel explained that Mother had difficulties with transportation, but he also stated that he had offered to give Mother a ride to the hearing. Four witnesses testified on behalf of the Department: Denise Killingsworth, clinical supervisor and data coordinator for Flathead Valley Chemical Dependency Center (“Center”); Kayla White, family support worker for Family Concepts; Lisa Byington, Child Protection Specialist for the Department; and Donna Parrish, Child Protection Specialist for the Department.

¶ 9 Killingsworth testified that although Mother went to the Center to schedule an appointment for a drug evaluation, she never attended the evaluation or called back to reschedule. The Center attempted to contact Mother at the phone number she provided, but was unable to reach her. Therefore, Mother never received any drug treatment. White testified that Mother tested positive for drugs and/or alcohol on nine out of the ten urinalysis tests that she administered to Mother. Mother was either late or absent to many of her visitations with L.V.-B., despite White's repeated offers to provide Mother with transportation to the visits. White also repeatedly offered to transport Mother to any other appointments or meetings related to her treatment plan, but Mother never accepted these offers. After 30 days had passed without any contact from Mother, the Department, based upon its policy, requested that Family Concepts terminate its services to Mother.

¶ 10 Byington was Mother's caseworker in the Department's case with Mother's previous child. Byington testified that the conduct and conditions at issue in the prior case

[317 P.3d 194]

included Mother's drug use, her inability to parent, and her homelessness. Byington attempted to work with Mother by offering a drug evaluation, treatment, housing, and assistance in establishing a safe and stable home environment, but Mother refused the voluntary services. Finally, Parrish, Mother's caseworker in the present case, testified that she provided Mother with a treatment plan, and offered Mother transportation and referrals. Parrish noted that Mother had not complied with any of the requirements in her treatment plan, and that Mother had been incarcerated for drug-related charges on three separate occasions since initiation of these proceedings. She acknowledged that in Mother's prior case, the Department placed that child with that child's father, and did not terminate Mother's rights. Parrish then explained the Department's decision to proceed to terminate in this case, stating that she had some concerns about L.V.-B.'s current placement with Father, and at the time of the hearing the Department was continuing to monitor Father to determine whether he would be an appropriate placement. She testified that proceeding with termination would: ensure that L.V–B. would not end up back in Mother's care; help the Department protect any future children Mother might have; and allow L.V.-B. to be available for adoption by another mother.

¶ 11 The District Court terminated Mother's parental rights pursuant to § 41–3–609, MCA, and denied Mother's motion to dismiss the termination petition, concluding that “because of the Mother's inability or unwillingness to resolve the issues which caused the youth to be adjudicated a youth in need of care, the conduct and condition of the Mother rendering her unfit is unlikely to change within a reasonable time.” The District Court also found that L.V.-B.'s best interests would be served by termination. Mother now appeals the District Court's denial of her motion to dismiss the State's termination petition.

STANDARD OF REVIEW

¶ 12 We review de novo a district court's...