In re P.S., 05-387.

• Decision Date: 10 January 2006
• Docket Number: No. 05-387.,05-387.
• Citation: 2006 MT 4,127 P.3d 451
• Parties: IN THE MATTER OF P.S., A Youth in Need of Care.
• Court: Montana Supreme Court

127 P.3d 451

2006 MT 4

IN THE MATTER OF P.S., A Youth in Need of Care.

No. 05-387.

Supreme Court of Montana.

Submitted on Briefs November 9, 2005.

Decided January 10, 2006.

For Appellants: Kirsten Mull Core, Attorney at Law, Bozeman, Montana (For Mother), R. Stan Peeler, Peeler Law Office, Bozeman, Montana (For Father).

For Respondent: Honorable Mike McGrath, Attorney General; Tammy K. Plubell and Peter Bovingdon, Assistant Attorneys General, Helena, Montana, Marty Lambert, County Attorney, Bozeman, Montana, Ralph W. Steele, Tarlow & Stonecipher, Bozeman, Montana (For Guardian Ad Litem), Karen Tkach, Bozeman, Montana (Guardian Ad Litem).

Justice W. WILLIAM LEAPHART delivered the Opinion of the Court.

¶ 1 In two separate hearings, the Eighteenth Judicial District Court, Gallatin County, terminated the parental rights of L.W. and M.S. with regard to their daughter, P.S. On different grounds, both parents appeal. We restate the issues as follows:

¶ 2 1. Did the District Court err by involuntarily terminating M.S.'s parental rights rather than allowing M.S. to voluntarily relinquish his parental rights during the termination hearing?

¶ 3 2. Did the District Court properly exercise its discretion when it terminated LW.'s parental rights to P.S.?

BACKGROUND

¶ 4 L.W. gave birth to a baby girl, P.S., on October 7, 2002. At twenty-two days old, P.S.'s father, M.S., was arrested for a domestic altercation with L.W.; another physical altercation between M.S. and L.W. occurred approximately one month later. These acts of violence took place in the presence of P.S. When a social worker met with L.W. to discuss concerns regarding P.S., L.W. admitted to using marijuana, but claimed it did not affect her ability to parent. In light of the domestic violence disputes, drug use, as well as L.W.'s extensive history with mental problems, including time spent in and out of residential treatment, the Department of Public Health and Human Services (DPHHS) filed a petition for temporary legal custody of P.S.

¶ 5 On January 7, 2003, the District Court filed an order for immediate protection of P.S. and appointed counsel for all parties, and guardian ad litem, Karen Tkach (Tkach), to represent P.S. Based on an affidavit filed by social worker Gayle Frandsen, the court determined that probable cause existed "to believe that P.[S]. is abused or neglected or in danger of being abused or neglected and that immediate protection of the child is required." L.W. and M.S. were ordered to appear for a show cause hearing, at which time the court explained the procedures to be followed, including their right to admit or deny the allegations contained in the petition and to provide testimony. After considering all of the evidence, including L.W.'s and M.S.'s stipulations that probable cause existed, the court determined that P.S. required "further immediate protection" and ordered that in the best interest of the child, she "should remain in temporary out-of-home care." On February 3, 2003, the court entered an order adjudicating P.S. a "youth in need of care" and ordered DPHHS to develop treatment plans for L.W. and M.S. At the subsequent dispositional hearing, the court approved separate treatment plans for L.W. and M.S., awarded temporary legal custody to DPHHS for six months, ordered that L.W. and M.S. each be permitted to visit P.S. through Hearts and Homes at least two times per week (contingent upon clean, random urine tests) and scheduled a review hearing date.

¶ 6 Over much of the next two years, P.S. remained in the custody of DPHHS, while the Department worked with L.W. and M.S. in hopes of reuniting the parents with their daughter. Despite DPHHS's efforts to reunify, community social worker Nikki Neville (Neville) filed an affidavit on October 1, 2004, for termination of M.S.'s parental rights as P.S.'s father. Neville concluded that while M.S. had successfully completed some of his treatment plan goals—including attaining his GED and taking parenting classes through Hearts and Homes—overall, he had trouble maintaining the expected level of compliance. M.S. failed to consistently provide a safe and stable home for himself and P.S. (in part due to losing his job) and frequently tested positive for drug use. Psychological evaluations indicated that M.S. had deficient coping skills, including acting in an angry, rebellious and poorly controlled manner when unable to avoid emotional situations—all consistent with his history of criminal behavior. Since losing custody of his daughter, M.S. was a suspect in two burglaries and was charged with disorderly conduct as the result of an altercation with L.W. A psychiatric evaluation reported as problematic M.S.'s significant depressive symptoms and lack of interest in exploring feelings or psychological issues. While M.S. initially completed the Intensive Outpatient treatment through Alcohol and Drug Services of Gallatin County, he failed to follow through with the aftercare portion of the program. M.S. further failed to comply with his treatment plan when he used drugs and did not attend Alcoholics Anonymous/Narcotics Anonymous and Anger Management classes. Because of M.S.'s inconsistent job history, Neville expressed doubt over his ability to provide. Moreover, by the end of 2003, due to drug use and failure to schedule visitations, M.S. had gone approximately six months without seeing his daughter. In light of M.S.'s irregular visits with his daughter, Neville had serious concerns with M.S.'s failure to understand the importance of a strong bond and consistent contact with his child.

¶ 7 At the same time DPHHS filed a petition to terminate M.S.'s parental rights, it also sought to place P.S. with her mother, L.W. Guardian ad litem Tkach did not agree with DPHHS and recommended termination of L.W.'s parental rights, as well. The court conducted a review hearing and ultimately decided to extend DPHHS's temporary legal custody of P.S. Shortly thereafter, DPHHS changed its stance and Neville filed an affidavit for termination of L.W.'s parental rights. Neville explained that while L.W. completed the minimum requirements of her treatment plan—including providing suitable housing, completing a psychological evaluation and following recommendations, completing a chemical dependency evaluation, allowing departmental access to her home and maintaining acceptable contact with Neville, participating in mental health counseling and psychiatric treatment, completing parenting classes, and cooperating with her AWARE case manager and therapeutic aide—there were many difficulties along the way. L.W. was in an automobile accident and suffered a broken neck the day after the court initially granted DPHHS custody of P.S. Consequently, L.W. required ongoing medical treatment to deal with her physical pain. Neville concluded that L.W. displayed a lack of judgment regarding her medication—apparently consuming more than the recommended dosage—and often appeared "out of it" or "loopy" during phone calls or house visits by providers; at times she slurred her words to the point of being incomprehensible. In violation of her treatment plan, L.W. admitted to drinking wine and failed to understand the problem with such conduct; she also spent much of her time with people engaged in illegal drug use, although evidence revealed no use of illegal substances on L.W.'s part. In addition, L.W. was convicted of stealing a purse belonging to a foster child during one of her visits to Hearts and Homes.

¶ 8 In March of 2005, during two separate termination hearings, the District Court heard a variety of testimony from public officials involved in P.S.'s well-being. During the hearing addressing M.S.'s rights as father, M.S. requested a sidebar after the State called its fifth witness, at which time he explained his willingness to "voluntarily relinquish parental rights," but objected "to relinquishing parental rights in an in voluntary fashion...." (Emphasis added.) In response, the court stated that unless M.S. agreed that the State would not be required to provide a treatment plan to M.S. prior to initiating termination proceedings regarding any future children M.S. may have (in accordance with § 41-3-423(2)(e), MCA), the court would deny voluntary relinquishment and instead terminate M.S.'s parental rights involuntarily. After a short recess and another sidebar, M.S. restated his request to voluntarily relinquish his parental rights before the State fully presented its case, while the State countered that it should finish presenting evidence sufficient to terminate. The court ultimately allowed the termination hearing to continue, and concluded that it was in the best interest of P.S.—a youth in need of care—to terminate M.S.'s parental rights and award custody to DPHHS. The court further stated "that [it] does this with the understanding that [M.S.] questions the authority of the Court to proceed with the termination after the father has, number one, relinquished his parental rights and, number two, waived his right to counseling prior to relinquishing his rights."

¶ 9 During the second hearing, in which the court addressed L.W.'s parental rights, several witnesses involved with her treatment plan testified, including DPHHS officials, law enforcement and physicians—all of whom believed L.W. had made minimal progress since the State took on her case two years earlier. Neville, who initially favored granting L.W. custody, asserted that L.W.'s tendency to engage in unhealthy, unsafe and deceptive behaviors, warranted termination of her parental rights. Based on testimony from fifteen witnesses, the court concluded that L.W. "had not come far enough to safely and adequately parent her child"; therefore, in the best interests of P.S., it ordered her parental rights terminated and awarded permanent legal custody to DPHHS.

STANDARD OF REVIEW

¶ 10 "In reviewing a decision to terminate parental rights, this Court...