In re M.V.R.

• Decision Date: 29 November 2016
• Docket Number: DA 16-0113
• Citation: 385 Mont. 448,384 P.3d 1058,2016 MT 309
• Parties: In the Matter of: M.V.R., A Youth in Need of Care.
• Court: Montana Supreme Court

385 Mont. 448

384 P.3d 1058

2016 MT 309

In the Matter of: M.V.R., A Youth in Need of Care.

DA 16-0113

Supreme Court of Montana.

Submitted on Briefs: October 5, 2016

Decided: November 29, 2016

For Appellant: Meri Althauser, Montana Legal Justice, PLLC, Missoula, Montana

For Appellee: Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana, John Parker, Cascade County Attorney, Valerie Winfield, Deputy Cascade County Attorney, Great Falls, Montana

Chief Justice Mike McGrath

delivered the Opinion of the Court.

¶1 M.V.R's mother, K.S. (Mother), appeals from an order entered by the Eighth Judicial District Court, Cascade County, terminating her parental rights. We affirm.

¶2 We restate the issues on appeal as follows:

Issue One: Did the District Court abuse its discretion when it terminated Mother's parental rights without making specific findings that the Department of Health and Human Services engaged in reasonable efforts to reunite the family pursuant to § 41-3-423(1), MCA

?

Issue Two: Did the District Court abuse its discretion when it terminated Mother's parental rights based on a failed treatment plan pursuant to § 41-3-609(1)(f), MCA ?

Issue Three: Did the District Court deny Mother due process by failing to reappoint a public defender?

FACTUAL AND PROCEDURAL BACKGROUND

¶3 In May 2014, the Department of Health and Human Services (DPHHS) received reports of concern for Mother's three children's welfare based on alleged drug use in the family home. DPHHS, through Child Protective Services social worker Pamela Meyerson (Meyerson), attempted to make contact with the family without success. In October 2014, DPHHS received reports from two doctors offices stating Mother had brought her children in, concerned they were infested with bugs. No bugs or infestation was present. The doctor's offices believed Mother may have been hallucinating. On October 14, 2014, Meyerson went to the family home in Great Falls, Montana, and spoke to Mother about the children's bug infestations. Meyerson observed no evidence of bugs or infestation on Mother or children. Mother refused to submit to a drug test at that time.

¶4 Three days later, when Mother removed the children from public school, Meyerson again went to the home. One child spoke with Meyerson but stated she could not get an adult to wake up. Finally, Mother's boyfriend came to the door and told Meyerson Mother was not home; eventually Mother came out and spoke with Meyerson.

Meyerson asked Mother why the children were not in school and if she would submit to a drug test or have the children's hair tested. Mother refused, went back in the house, brought all three children outside to Meyerson and stated “this is what happens when you talk to [DPHHS], now they are going to take you away ... go ahead, you want to take them, so take them.” Meyerson did not take the children.

¶5 On November 5, 2014, Meyerson went to the family's home. The children were not attending school or registered for the home schooling program, Mother refused to submit to a requested drug test, and she denied Meyerson access to the children. The children were removed from Mother's care. On November 12, 2014, the Cascade County Attorney filed a Petition for Emergency Protective Services (EPS), adjudication as youths in need of care, and temporary legal custody. The Department alleged Mother physically neglected the children through her bizarre behavior and suspected methamphetamine use. The District Court granted the State's petition for emergency protective services and appointed Mother a public defender.

¶6 DPHHS referred Mother to Corin Fisch, LCPC-LAC (Fisch) for a chemical dependency evaluation which took place on November 25, 2014. Fisch diagnosed Mother as amphetamine

dependent. Mother admitted to using methamphetamine but did not believe she had an addiction problem or that she needed treatment. Intensive outpatient treatment was recommended given Mother's lack of “treatment readiness.”

¶7 On January 9, 2015, at a show cause hearing, Mother fired her public defender and hired private counsel. Mother's new counsel entered a notice of appearance on January 8, 2015, and appeared on her behalf. Mother stipulated to temporary legal custody for six months and that her children were youths in need of care. The District Court approved the treatment plan DPHHS, through Meyerson, had proposed. Although she did not sign the treatment plan, the transcript shows Mother was “willing” and “already actively” working on the plan. Nevertheless, the District Court allowed Mother's private counsel ten days to object to the treatment program. Counsel never objected. Temporary legal custody was ordered on January 15, 2015.

¶8 The treatment plan was designed to “preserve the parent child relationship,” “assist Mother in acquiring necessary skills to provide for her children's safety, permanency, and well-being,” as well as “assess the family and instill long term change and lasting stability.” The plan authorized DPHHS to gather information regarding the children's ability to return home and devise a permanent placement plan if return was not feasible. Specifically, the treatment plan gave Mother six months to stop using illicit drugs and alcohol, maintain sobriety with scheduled and random urinalysis testing, complete mental health and chemical dependency evaluation and counseling, maintain contact with her children, attend parenting classes and submit to home visits, create and maintain a safe and secure home environment including stable employment, and not allow other people to reside in the family's home.

¶9 Mother requested referral to an inpatient treatment center in January 2015. Fisch referred her to Montana Chemical Dependency Center (MCDC). Mother missed her first two intake appointments with Dr. Robert Page (Dr. Page), but did meet with him on January 22, 2015, for psychological, mental health, and parenting evaluations. Mother admitted that she had been using methamphetamines since mid-December. Dr. Page believed Mother's substance abuse “created a pattern of neglect of the children,” and that Mother was aware she needed inpatient treatment but was “reluctant to actually enroll.” Dr. Page determined Mother had co-occurring problems of chemical dependency and mental health. However, Mother needed inpatient chemical dependency treatment first.

¶10 On January 30, 2015, Mother was arrested in Billings for possession of methamphetamine. She entered MCDC on February 9, 2015, discharging herself only a few days shy of the standard 28-day term, on March 2, 2015. Mother began her outpatient treatment with Fisch through individual and group chemical dependency counseling sessions. Mother also began seeing a mental health counselor, Roberta Powell (Powell).

¶11 In the meantime, the biological father of two of Mother's children filed a petition for full custody. At that hearing on March 20, 2015, Mother admitted her addiction had an “atrocious” effect on the children, but that she was 39 days sober and would do anything to get her children back. The District Court lauded her sobriety but based on the pending criminal charges and the “long road” ahead of Mother, the two children were placed with their father. This appeal is limited to Mother's other child, M.V.R.

¶12 Mother appeared on April 3, 2015, for a status hearing represented by her private counsel. Mother was attending most of her chemical dependency outpatient group sessions. Fisch and the counselors were working with Mother trying different groups and approaches. However, Mother's progress began to decline in May 2015.

¶13 Mother's lawyer was granted a motion to withdraw from representation on June 15, 2015. The District Court ordered Mother to find new counsel within 30 days or represent herself.

¶14 Mother attended few chemical dependency outpatient group sessions; June 23, 2015, was the last session she attended. Mother had missed two weeks of her required urinalysis testing and admitted she was using methamphetamine again. She was dismissed from her chemical dependency outpatient treatment program for allegedly attempting to sell methamphetamine to other patients.

¶15 On July 7, 2015, DPHHS petitioned to terminate Mother's parental rights to M.V.R. based on her failure to complete the court approved treatment plan. At the scheduled termination of parental rights hearing on August 6, Mother attended but was unrepresented. The Court and DPHHS agreed Mother should have counsel, and the hearing was continued for four weeks for her to obtain private counsel. At the August 18 hearing, Mother was still without counsel.

DPHHS again requested the hearing be continued while Mother obtained legal counsel. The District Court ordered a new hearing and Mother requested a public defender.

¶16 Julie Bass (Bass) was assigned as Mother's new social worker on August 6, 2015. Bass arranged for Mother to take a urinalysis test and then meet with M.V.R. Bass referred Mother to Stewart McCracken (McCracken), for a chemical dependency evaluation.

¶17 Days before the termination of parental rights hearing, on September 21, 2015, DPHHS requested that temporary legal custody be extended based on Mother's reengagement with services. The Office of Public Defender had appointed Jane Berger (Berger) to represent Mother and she did so at the September 24, 2015 extension of temporary legal custody hearing. DPHHS and the District Court agreed that while Mother's progress had taken steps backward, she was reengaged in services. Temporary legal custody was extended so that Mother could try to make “dramatic improvement.”

¶18 Mother participated in chemical dependency outpatient therapy with McCracken but her attendance was sporadic and she was not in compliance with her urinalysis testing. Mother had stopped seeing Powell for mental health counseling and resisted a new mental health counselor. McCracken and Bass encouraged her to attend inpatient treatment; however, M...