In re R.J.F.

• Decision Date: 14 May 2019
• Docket Number: DA 18-0505
• Citation: 443 P.3d 387,395 Mont. 454,2019 MT 113
• Parties: In the MATTER OF: R.J.F., a Youth in Need of Care.
• Court: Montana Supreme Court

395 Mont. 454

443 P.3d 387

2019 MT 113

In the MATTER OF: R.J.F., a Youth in Need of Care.

DA 18-0505

Supreme Court of Montana.

Submitted on Briefs: March 6, 2019

Decided: May 14, 2019

For Appellant: Shannon Hathaway, Montana Legal Justice, PLLC, Missoula, Montana

For Appellee: Timothy C. Fox, Montana Attorney General, Micheal S. Wellenstein, Assistant Attorney General, Helena, Montana, Scott D. Twito, Yellowstone County Attorney, Corbit Harrington, Deputy County Attorney, Billings, Montana

Justice Ingrid Gustafson delivered the Opinion of the Court.

¶1 R.U. (Mother) appeals from the termination of her parental rights issued July 27, 2018, by the Thirteenth Judicial District Court, Yellowstone County. We reverse and remand for the Department to engage in reasonable efforts to reunify Mother with R.J.F. (Child).

¶2 We restate the issues on appeal as follows:

1. Whether the Department engaged in reasonable efforts to prevent removal of Child and to reunite Mother with Child.

2. Whether the District Court erred in determining the conduct or condition rendering Mother unfit, unable, or unwilling to parent was unlikely to change within a reasonable time.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 The Montana Department of Health and Human Services, Child and Family Services Division (Department), became involved with Mother and Child when Mother tested positive for methamphetamine and marijuana at Child’s birth in October 2016. At that time, Mother was temporarily in Billings, Montana, but lived in North Dakota. The Department removed Child from Mother’s care on October 8, 2016. Ten days later, the Department filed its Petition for Emergency Protective Services (EPS), Adjudication as Youth in Need of Care (YINC) and Temporary Legal Custody (TLC) on October 18, 2016.¹ Mother returned to Williston, North Dakota—300 miles from Billings—where she resided, owned a residence, and had employment. The Department arranged visits for Mother "whenever she was in town or whenever she could make it to town." At the time, Mother did not have her own car and did not have a driver’s license.

¶4 The court initially set the show cause hearing for November 1, 2016, but reset the hearing at the request of the Department to December 20, 2016, the time set for the adjudication and disposition hearing. On December 15, 2016, the Department again requested continuance of the hearings set for December 20, 2016, as it had not yet served putative fathers and needed time to serve them by publication. Despite Mother visiting Child in October and November 2016, and the Department knowing her whereabouts, the Department did not serve Mother with the Petition until December 16, 2016. The court reset the show cause, adjudication, and disposition hearings to February 21, 2017, over four months after Child’s removal from Mother.²

¶5 Notwithstanding Mother did not own a car or have a valid driver’s license, Mother visited Child on October 20, 24, and 27, 2016, and attended his initial well-baby check-up. Mother further visited Child on November 18 and 30, 2017, December 15 and 16, 2017, and January 27, 2017. On January 11, 2017, Mother filed a petition to transfer venue pursuant to § 25-2-201(3), MCA, to Williams County, North Dakota where she resided.³ Hearing on this petition was held February 21, 2017, at the same time as the show cause, adjudication, and disposition hearings. Child protection specialist (CPS) Bertoncelj, then assigned to the case, expressed concern at transferring the case to North Dakota. CPS Bertoncelj noted Mother had been inconsistent with visits, was somewhat disengaged in the last two months, and that she would hate for Child to be removed from the foster parents.⁴ Child was residing in a non-kinship, foster placement with no ties to any family members, nearly 300 miles away from Mother. Mother’s counsel noted the considerable distance between Billings and Williston, Mother’s transportation problems, and winter weather as factors interfering with Mother’s ability to engage and be present in Billings. He logically pointed out that the Department should be working to increase the bond between Mother and Child, not the bond between the foster parents and Child. The guardian ad litem did not object to Mother’s request to transfer the case to North Dakota, advocating only for an orderly transition. The District Court denied the request to transfer venue, indicating she did not have information regarding the social worker in North Dakota and that she would want to talk to a North Dakota judge. The District Court did not direct anyone to obtain more information for her or make any arrangement for her to talk to a North Dakota judge, nor did the parties provide the court with additional information.⁵ At the completion of the hearing, the District Court adjudicated Child as a YINC and granted the Department TLC for a period of six months. Two and a half months later, the District Court issued its written order denying the transfer.

¶6 CPS Reinhart was the assigned worker from Child’s removal until December 2016. CPS Reinhart testified that during this time she worked with Mother on a voluntary service list that included a chemical dependency (CD) evaluation, random drug testing, meeting with her, and visits in Billings. Mother completed the CD evaluation with Kimberly McNamara in October 2016, which recommended Mother engage in outpatient treatment. CPS Reinhart testified to the reasonable efforts she made while assigned this case, "We did visits when we could ... She had prior been living in Williston, North Dakota, she had a house there so she wanted to go back there, and in the end, that’s what she did. We set up visits whenever she was in town or whenever she could make it to town." CPS Reinhart also testified she wanted to set up drug testing, but she did not arrange for any such testing in North Dakota, instead relying on Mother to get this set up on her own. Mother was unable to arrange for drug testing, or consistently meet with CPS Reinhart or visit Billings.

¶7 In late December 2016, CPS Bertoncelj took over Mother’s case. Recognizing Mother’s transportation problems, CPS Bertoncelj determined Mother should fly to Billings every couple of weeks for a visit with Child. She also determined since Mother would be coming to Billings every couple of weeks, it would be appropriate for her to obtain services in Billings rather than in North Dakota. As such, CPS Bertoncelj arranged for intermittent flights to Billings⁶ and introduced Mother to the Center for Children and Families.

¶8 In March 2017, Mother was re-assigned new counsel and the Department filed a motion to approve a treatment plan for her. The proposed treatment plan was approved on April 6, 2017, six months after Child was removed from Mother’s care. Despite the Department paying for intermittent plane tickets for Mother to visit Child, Mother had difficulties with transportation, work, and her active addiction. These difficulties significantly interfered with Mother’s ability to make her scheduled visits. Consequently, she made less than half of them between December 2016 and July 2017. Although Mother struggled to address her issues, during this time she was in regular contact with CPS Bertoncelj. CPS Bertoncelj did not re-evaluate the viability of her plan that Mother obtain services in Billings and did not arrange for or refer Mother for services in North Dakota.

¶9 A Family Engagement Meeting (FEM) was held on August 17, 2017.⁷ At this meeting, Mother identified two potential family members she desired the Department to consider as placements for Child: her mother, S.S., who also appeared telephonically at this FEM, and her maternal cousin, D.B.

¶10 On August 28, 2017, CPS Bertoncelj signed an affidavit in support of the Department’s request to extend TLC and thereafter went on maternity leave. Mother was then assigned to work with CPS Herbst. Although CPS Herbst was aware of the Department’s policy that whenever a child is placed in out-of-home care and the non-custodial parent is not an option, the Department must consider a child’s extended family as placement, she did not seriously investigate whether either identified family member was a suitable placement for Child. Instead, CPS Herbst indicated she tried calling S.S. but never made contact, and did not consider S.S. as a placement as she thought Mother and S.S. did not have a good relationship. CPS Herbst made no inquiry whatsoever regarding Mother’s cousin D.B. Upon taking over the case, CPS Herbst discontinued visitation assistance and did not reach out to establish any services in North Dakota for Mother. Less than a month after being assigned to the case and only eleven months since Child’s removal, CPS Herbst executed an affidavit seeking termination of Mother’s parental rights for failure to complete her treatment plan.

¶11 Mother recognized she had a drug problem and was unable to quit using drugs on her own. She felt she was not getting the help and support she needed to address this problem or to reunify with Child. Mother testified CPS Herbst told her that her only option was to leave her home in Williston and move to Billings. Mother advised CPS Herbst that she would have to sell her home to afford to move to Billings. Mother felt CPS Herbst was working against her and requested she be assigned a different CPS worker. Mother sold her trailer home and moved to Billings "[t]o fight [her] case and get clean." Upon her arrival in Billings, Mother contacted CPS Herbst, advised her where she was staying, and requested visitation. CPS Herbst advised Mother that she had a large caseload, did not have time to schedule visits, and had already filed for termination of Mother’s parental rights.

¶12 The Department filed its Petition for Permanent Legal Custody and Termination of Parental Rights on September 18, 2017, only eleven months after its initial petition for EPS and only five months after Mother’s treatment plan was...