In re MT, 01-800.

• Decision Date: 06 August 2002
• Docket Number: No. 01-800.,01-800.
• Citation: 2002 MT 174,51 P.3d 1141
• Parties: In the Matter of M.T., T.T., D.T., and B.W., Youths in Need of Care.
• Court: Montana Supreme Court

51 P.3d 1141

2002 MT 174

In the Matter of M.T., T.T., D.T., and B.W., Youths in Need of Care.

No. 01-800.

Supreme Court of Montana.

Submitted on Briefs July 11, 2002.

Decided August 6, 2002.

Dustin L. Gahagan, Waters & Gahagan, Hamilton, Montana, For Appellant.

Mike McGrath, Montana Attorney General, Ilka Becker, Assistant Montana Attorney General, Helena, Montana; George Corn, Ravalli County Attorney, Hamilton, Montana, For Respondent; Randall E. Lint, Corvallis Montana (DPHHS).

Justice PATRICIA O. COTTER delivered the Opinion of the Court.

¶ 1 After two and a half years of intervention by the Department of Public Health and Human Services (DPHHS), and implementation of four treatment plans for A.F., the Twenty-First Judicial District Court entered an order terminating A.F.'s parental rights as to her four children, M.T., T.T., D.T., and B.W. The court concluded that M.T., T.T., D.T., and B.W., were youths in need of care, that appropriate treatment plans for A.F. had not been complied with or had not been successful, and that the conduct or condition rendering A.F. unfit was unlikely to change within a reasonable time. A.F. appeals the District Court's Findings of Fact, Conclusions of Law and Order Granting Permanent Legal Custody with the Right to Consent to Adoption. We affirm.

¶ 2 The sole issue presented on appeal is whether the District Court erred when it terminated the natural mother's parental rights.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 3 On January 2, 1999, A.F.'s children, J.T.¹, M.T., T.T., D.T., and B.W., were removed from their mother's home, following a report that four of the children were home alone, with one having suffered a bad cut. DPHHS substantiated the neglect when a case worker arrived at the house to find A.F., who had returned from a bar, too intoxicated to care for the children. A.F. later stipulated to DPHHS's Petition for Temporary Investigative Authority (TIA), which was accepted by the District Court on April 21, 1999. In that order, the District Court granted a 90-day TIA to DPHHS and also approved the first of four treatment plans for A.F., which was to be completed in 90 days.

¶ 4 On July 20, 1999, DPHHS petitioned for an extension of the TIA. As of that time, A.F. had successfully completed only two of the five goals listed in her first treatment plan. Following a review hearing on August 18, 1999, the District Court granted the Petition for Extension of TIA for another 90 days, and approved a second, updated, treatment plan for A.F., which A.F. was to complete in 90 days. Although reunification plans were made for August of 1999, those plans were postponed after A.F. had an argument with her husband, J.F., and left the house. A.F. was then living in her car, and could not provide adequate housing for the children. A.F. and J.F., who met at an AA meeting in the spring of 1999, reconciled shortly after the argument. J.F. is not the natural father of any of A.F.'s children.

¶ 5 In November of 1999, DPHHS filed for temporary legal custody. According to the attached report to the court, A.F. had failed to complete any of the six goals identified in the second treatment plan. Also during November, reunification plans were again postponed following another altercation between A.F. and her husband. A.F. signed a stipulation to temporary legal custody, and on December 15, 1999, the District Court granted temporary legal custody to DPHHS for six months, after having found the children were youths in need of care. The court also approved a third treatment plan for A.F., allowing her six months to complete the plan. This third treatment plan incorporated goals for A.F.'s husband, J.F.

¶ 6 On March 31, 2000, the social worker assigned to the case, Alicia Walker (Walker), filed a report to the court addressing the permanency plan for A.F.'s children. In her report, Walker related that A.F. and J.F. had failed to complete any of the seven goals in the third treatment plan. During the permanency plan hearing on April 5, 2000, the District Court directed A.F.'s counsel to admonish his client to abide by the conditions (i.e., treatment plan) in this matter.

¶ 7 On June 6, 2000, DPHHS filed for an extension of temporary legal custody, and attached another report to the court from Walker. Walker's report indicated that A.F. was able to maintain the goal of sobriety and had completed the goal of obtaining and maintaining stable housing for her children. However, A.F. had not completed four of the plan's goals (i.e., attend weekly individual therapy, attend couples therapy with J.F., attend and act appropriately at all scheduled visitation sessions and keep weekly phone contact with her children, and comply with Family Based Services). The parties filed a stipulation to extension of temporary legal custody, which the court accepted. On July 19, 2000, the court granted a six-month extension of temporary legal custody to DPHHS and also approved a fourth treatment plan for A.F. and J.F., setting a six-month completion date. During this time, DPHHS continued reunification efforts and according to a report to the court, T.T. and D.T. were returned to A.F.'s home in March of 2000, and M.T. and B.W. returned home in July of 2000.

¶ 8 On January 19, 2001, DPHHS filed a petition for permanent legal custody as to A.F.'s oldest child, J.T., and also petitioned for dismissal of the temporary legal custody as to the remaining children, M.T., T.T., D.T., and B.W., since they had been returned to A.F.'s care. In an affidavit to the court, Walker stated that A.F. had "reduced the risk to her other four children by following and completing a treatment plan ...." However, in the attached report to the court, Walker stated that A.F. had "completed most of her treatment plan," listing four out of six goals as complete. Walker later told the District Court that she was "uneasy" about filing for dismissal, and explained that the reason DPHHS chose to dismiss temporary legal custody rather than pursue termination of parental rights was because, at the time, Walker thought A.F. was providing her children with the "bare minimum standards," and she felt there was not "enough evidence at that point to file for permanent legal custody, considering the kids were at home."

¶ 9 However, before the court ruled on the Petition to Dismiss Temporary Legal Custody, the four youngest children were again removed from the family home following A.F.'s arrest on February 26, 2001, for partner family member assault against J.F. After this incident, DPHHS abandoned its Petition to Dismiss. On February 28, 2001, the District Court granted DPHHS permanent legal custody of J.T., to which A.F. had stipulated, and also continued temporary legal custody of M.T., T.T., D.T., and B.W.

¶ 10 On May 16, 2001, DPHHS petitioned the court for permanent legal custody and termination of parental rights as to the four youngest children. In the attached report to the court from Walker, she explained that near the time of A.F.'s arrest on February 26, 2001, new referrals had been made to DPHHS regarding the four youngest children, alleging neglect and exposure to unreasonable risk. The District Court held a hearing on the State's Petition for Permanent Legal Custody on July 10, 2001, during which it heard testimony from Walker, Dr. Debra Ruggiero (Ruggiero), a psychologist, Kate Cremer (Cremer), a family therapist, the officer who arrested A.F. on February 26, 2001, and A.F.

¶ 11 Ruggiero had provided psychotherapy for M.T. and B.W., spending sixty-seven and eleven hours with each child respectively. She testified that while she had counseled two of the four children at issue in these proceedings, her opinions as to A.F.'s parenting deficiencies would apply to all the children in A.F.'s care. Ruggiero testified that in her opinion, it would be in the best interests of the children to remain in the State's permanent custody, noting that she felt A.F. could not safely parent her children. Ruggiero explained the importance of the children's sense of security, and that in her opinion, A.F. had not demonstrated the ability to provide a safe, stable, nurturing environment for the children. Ruggiero further stated she did not believe A.F. would be capable of providing such a home environment in the foreseeable future.

¶ 12 Cremer made the initial family assessment in this case, which included interviews with the family members as well as observations of family interactions. Cremer testified that A.F. had a history of getting involved with abusive men who had been, or were, chemically dependent on drugs and/or alcohol. This relationship history included both of the natural fathers of A.F.'s children. Cremer also explained that A.F. suffered from depression and post-traumatic stress disorder as a result of abuse she experienced during her own childhood. Cremer stated in her family assessment that A.F.'s "perception that she cannot function without a man in her life is invalidated by the fact she didn't function living with the type of men she has chosen in her lifetime."

¶ 13 Cremer told the court that A.F. had been arrested twice for assaulting J.F., once when she threw coffee at him and then again in February of 2001. However, based on her experience with families of domestic violence, Cremer characterized the relationship between A.F. and J.F. as one where the female is made to look like the aggressor, and opined that A.F. may have been the victim in the February, 2001 incident. Cremer testified that she did not think J.F. had ever been arrested for assaulting A.F.

¶ 14 Cremer also participated in the Family Based Services (FBS) intervention that was provided for A.F. and her children. A typical FBS intervention lasts 100 hours, and has an eighty-six percent success rate, with success being reunification of the family. In this case, Cremer spent more than 200 hours with the family over a two year period, but testified that the main...