In re A.M.G.

• Decision Date: 13 September 2022
• Docket Number: DA 21-0407
• Citation: 410 Mont. 25,517 P.3d 149
• Parties: In the MATTER OF: A.M.G. and S.M.H., Youths in Need of Care.
• Court: Montana Supreme Court

410 Mont. 25
517 P.3d 149

In the MATTER OF: A.M.G. and S.M.H., Youths in Need of Care.

DA 21-0407

Supreme Court of Montana.

Submitted on Briefs: June 29, 2022
Decided: September 13, 2022

For Appellant: Jennifer Dwyer, Avignone, Banick & Williams, Bozeman, Montana

For Appellee: Austin Knudsen, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana Travis R. Ahner, Flathead County Attorney, Renn Fairchild, Deputy County Attorney, Kalispell, Montana

Chief Justice Mike McGrath delivered the Opinion of the Court.

410 Mont. 27

¶1 K.H. appeals a July 19, 2021 Eleventh Judicial District Court ruling terminating her parental rights to children A.M.G. and S.M.H. She argues that the District Court abused its discretion in determining that the conduct or condition rendering her unfit to parent is unlikely to change within a reasonable time.¹ We affirm.

¶2 We restate the issue on appeal as follows:

Whether the District Court abused its discretion in terminating parental rights on the basis of a finding that the condition or conduct rendering the mother unable to safely parent was unlikely to change within a reasonable time.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 On February 14, 2019, the Department of Public Health and Human Services, Child and Family Services Division (the Department) responded to a report that K.H., her significant other, C.H., and K.H.’s two small children were living in their car with no alternative shelter, having recently arrived from Washington State. The Department arranged for K.H. and her children to stay at the Samaritan House for the night. The Department continued its investigation, based on C.H.’s extensive history with the Department, the lack of shelter, an alleged history of substance abuse, and concerns regarding whether S.M.H.’s medical needs were being met.² Approximately a week later, the Department began looking for the family again, eventually finding K.H., her babies, C.H., and a friend staying at a motel. Concerned

410 Mont. 28

about the lack of baby food in the room, S.M.H.’s unwell appearance,³ and the lack of suitable sleeping arrangements for the children, the Department determined that the children were in "immediate danger" and conducted an "emergency removal," taking the children into custody.

¶4 A show cause hearing was held by the District Court on March 15, 2019. K.H. stipulated to the adjudication of the children as Youths in Need of Care and the grant of Temporary Legal Custody (TLC) to the Department. The court granted TLC to the Department and, at a subsequent hearing, approved K.H.’s treatment plan. The treatment plan required K.H. to, among other things, complete a mental health assessment with Charlotte O'Hara (O'Hara) and, if recommended, complete a psychological evaluation and attend counseling as directed by an approved provider. It also required her to attend supervised visits with S.M.H. and

517 P.3d 152

A.M.G., engage in parenting services and complete recommended parenting classes. The plan required K.H. to keep the Department informed of her current contact information, and maintain a verifiable source of income, and provided that anyone residing with K.H. must pass a Department background check. It required K.H. to contact the Department every two weeks for updates and attend a monthly in-person meeting in which she "shall explain any barriers in completing this plan" and "attend all family engagement meetings and timely comply with any tasks assigned to her at these meetings." The plan noted that K.H. had been in contact with the Department to date and had been regularly visiting with A.M.G. and S.M.H. The Department confirmed that K.H. understood her responsibilities under the plan.

¶5 A July 25, 2019 Court Appointed Special Advocates (CASA) report indicated that the children were in foster care and that K.H. was employed, working hard on her parenting skills, and hoping to find more stable housing. At an August, 2019 hearing, the Department commended K.H. for attending all of her children's appointments. However, there was an open discussion about K.H.’s continued relationship with C.H. and the Department's concern regarding allegations of domestic abuse, and the court advised K.H. to contact a local women's shelter to implement a safety plan.

¶6 In October 2019, the Department moved for an extension of TLC, indicating that K.H. was progressing well on her treatment plan,

410 Mont. 29

seeing O'Hara on a weekly basis, attending and progressing well in visitations with the children, and keeping in contact with the Department. However, K.H. had quit her job in June and was living in a trailer in a Home Depot parking lot after she had been evicted from a Motel 6 due to domestic violence, and had been seen with a black eye and a swollen lip. She also had emergency gall bladder surgery that her father believed was due to being beaten by C.H.

¶7 At an October 25, 2019 hearing, K.H. stipulated to an extension of TLC, and the Department reported that K.H. was "doing really, really well" with visitations and making all of her appointments for her children's therapy. However, the court noted K.H.’s continued relationship with C.H.—whom, after DNA testing was conducted, the Department advised was not the father of the children—as a potential barrier to reunification. A CASA report on February 12, 2020 indicated that K.H. had recently missed a number of visits due to seizures, resulting in several emergency room visits. It also indicated that K.H. was cleaning rooms at a motel in which she was living month-to-month, and still had not completed a psychological evaluation. The report indicated that K.H. stated she had ended her relationship with C.H., but the Department believed this not to be true.

¶8 At a May 1, 2020 hearing, K.H. stipulated to a permanency plan and another extension of TLC. The Department advised that it believed this should be the last extension, noting that fifteen months had passed and while K.H. had initially progressed in many areas, she had "kind of plateaued there." K.H. stated that she had ended her relationship with C.H. K.H. acknowledged that she had been unsuccessful in seeing her children through most of the scheduled visitation hours, conducted virtually since the arrival of COVID-19, alleging the facilitator or the foster parent failed to be available.⁴ At a May 15, 2020 hearing, K.H. advised that she had taken a trip to Spokane, Washington, and that she had missed several remote visits when her phone crashed.

¶9 An August 18, 2020 review by the Foster Care Review Committee

410 Mont. 30

found that K.H. had not made progress towards alleviating the need for placement. A CASA report in September indicated that K.H. had allowed her...