In re A.S., 05-736.

• Decision Date: 31 October 2006
• Docket Number: No. 05-736.,05-736.
• Citation: 2006 MT 281,146 P.3d 778,334 Mont. 280
• Parties: In re the matter of A.S., Youth in Need of Care.
• Court: Montana Supreme Court

146 P.3d 778

2006 MT 281

334 Mont. 280

In re the matter of A.S., Youth in Need of Care.

No. 05-736.

Supreme Court of Montana.

Submitted on Briefs May 17, 2006.

Decided October 31, 2006.

For Appellant: Kirsten Mull Core, Kirsten Mull Core, P.C., Bozeman, Montana.

For Respondent: Mike McGrath, Montana Attorney General, Tammy K. Plubell, Assistant Attorney General, Helena, Montana, Marty Lambert, Gallatin County Attorney, Kimberly P. Dudik, Deputy County Attorney, Elizabeth Ridenour, Deputy County Attorney, Bozeman, Montana.

For Guardian ad Litem: Leslie Taylor, Bozeman, Montana.

Justice JAMES C. NELSON delivered the Opinion of the Court.

¶ 1 S.B., the mother of A.S., appeals the termination of her parental rights to A.S. by the District Court for the Eighteenth Judicial District, Gallatin County. We affirm.

¶ 2 We address the following issues on appeal:

¶ 3 1. Whether the District Court properly adjudicated A.S. as a youth in need of care.

¶ 4 2. Whether the District Court's findings of fact were clearly erroneous.

¶ 5 3. Whether the District Court abused its discretion in terminating S.B.'s parental rights.

Factual and Procedural Background

¶ 6 A.S. was born on September 4, 2001, to S.B., the mother, and S.S., the father.¹ When A.S. was about three months old, the Department of Public Health and Human Services (DPHHS) removed A.S. from her parents' care when it concluded that S.B. and S.S. were cooking methamphetamine (meth) in the room across from A.S.'s bedroom. As a result, both S.B. and S.S. were charged with drug offenses and DPHHS was given temporary legal custody of A.S. After S.B. successfully completed her treatment plan, DPHHS returned A.S. to her care and the District Court granted DPHHS's motion to dismiss the Petition for Temporary Legal Custody.

¶ 7 On October 10, 2002, DPHHS filed a second Petition for Emergency Protective Services, Adjudication as a Youth in Need of Care and Temporary Legal Custody of A.S. This second petition was based upon an October 9, 2002 referral from the Missouri River Drug Task Force. Law enforcement officers from the task force had conducted a probationary search of S.B.'s residence and discovered bindles of meth in the bedroom, a digital scale, empty paper bindles, paper used to make bindles, and 3.2 grams of meth on S.B.'s person. A.S., who was only thirteen months old, was at home with S.B. at the time of the search. Officers arrested S.B. and charged her with Criminal Possession of Dangerous Drugs with Intent to Distribute. Consequently, at the time DPHHS filed for temporary legal custody of A.S., S.B. was in the Gallatin County Detention Center and S.S. was incarcerated at the Montana State Prison.

¶ 8 The District Court entered an Order for Immediate Protection, appointed an attorney for S.B. and a guardian ad litem for A.S. The court also scheduled a show cause hearing for October 22, 2002. According to a report prepared by the guardian ad litem, S.B. admitted that she had been using meth for about six weeks prior to her arrest. She also admitted that she intended to use the drugs the officers found in her possession.

¶ 9 The court record reflects that at the October 22, 2002 show cause hearing, S.B. stipulated that there was probable cause for the court to leave the emergency petition in place. Hence, the court entered an order in which it found that there was probable cause to believe that A.S. was abused or neglected or in danger of being abused or neglected.

¶ 10 Even though the court scheduled an adjudicatory hearing for January 8, 2003, the next hearing actually occurred on November 26, 2002. Because this hearing was labeled as a "dispositional" hearing, the judge inquired of the parties if there had been "some agreement regarding the adjudicatory nature in this matter." Counsel for DPHHS responded that there had been and that she had a treatment plan for the court's consideration. Neither S.B. nor her counsel objected. The judge asked S.B.'s counsel if he had an opportunity to review the treatment plan with S.B. and counsel responded that he had. Counsel also stated that S.B. admitted that she had been using meth prior to her arrest. The judge subsequently approved the treatment plan and S.B. signed it.

¶ 11 On November 29, 2002, the District Court filed an Order of Adjudication and Disposition, wherein it adjudicated A.S. as a youth in need of care; awarded DPHHS temporary legal custody of A.S. for six months; and scheduled a review hearing for January 8, 2003.

¶ 12 By the time of the January 8, 2003 review hearing, S.B. had completed a chemical dependency evaluation and was awaiting inpatient treatment and sentencing in her criminal case. Because of the uncertainty of S.B.'s situation, the review hearing was postponed several times and DPHHS continued to have temporary legal custody of A.S.

¶ 13 On March 6, 2003, DPHHS reported that S.B. was in treatment at the Montana Chemical Dependency Center (MCDC). S.B. subsequently completed her treatment at MCDC and returned to the Park County Recovery House.

¶ 14 On May 30, 2003, S.B. appeared with counsel and explained that she received a suspended sentence for her recent drug conviction. She stated that she had completed inpatient chemical dependency treatment; that she was participating in outpatient treatment; and that she had been sober for eight months. DPHHS requested that the court extend its temporary legal custody of A.S. and approve an amended treatment plan for S.B. S.B. objected to the portion of the amended treatment plan that required her to participate in hair analysis drug tests, arguing that she was concerned about their reliability. The court extended DPHHS's temporary legal custody of A.S. and approved the treatment plan with certain modifications, but did not specifically authorize hair analysis testing.

¶ 15 At the next review hearing on July 25, 2003, DPHHS reported that S.B. was doing well with her treatment plan and recommended that the court extend temporary legal custody for six months. DPHHS also recommended that A.S. spend two and one-half days each week with S.B. with a gradual increase in time until A.S. was with S.B. full time. The parties and the court agreed.

¶ 16 In mid-September 2003, S.B.'s urinalysis field tests preliminarily tested positive for drugs. The tests were sent off for confirmation and came back negative for the presence of drugs. Even though S.B.'s tests tested negative a second time, DPHHS suspended S.B.'s unsupervised visits with A.S. until the District Court could review the matter.

¶ 17 At a hearing held on September 26, 2003, DPHHS requested that S.B. undergo drug testing in the form of hair analysis, contending that S.B. had a history of using masking agents to manipulate urinalysis testing. S.B. again objected to the hair analysis tests. The court determined that since S.B. denied using drugs and since she objected to hair analysis testing, other testing methods, such as a patch, could be used. The court also ordered that S.B. be allowed to resume the unsupervised visits with A.S.

¶ 18 On October 9, 2003, a Highway Patrol Officer pulled S.B. over for speeding. After S.B. consented to a search, the officer found a syringe and over $300.00 in cash in S.B.'s purse. Although S.B. denied using meth that day, she admitted to the officer that she had used meth a couple of days prior to the stop and that she was on her way to a bar where she might be tempted to purchase meth.

¶ 19 The following day, S.B.'s probation and parole officer conducted a search of S.B.'s residence and found a substance used to cleanse the hair of any toxins so that the individual could pass a hair analysis test. After the officer found two syringes in S.B.'s purse, S.B. admitted that she had used meth. The officer arrested S.B. for violating her probation. Upon her release, S.B. was allowed to remain in the Recovery House. However, in November 2003, S.B. was terminated from services at Recovery House for breaking the rules by staying out all night.

¶ 20 On November 6, 2003, DPHHS filed a Motion for Permanency Hearing as required by § 41-3-455, MCA. Shortly thereafter, the guardian ad litem filed a report recommending that the court consider terminating S.B.'s parental rights to A.S. because of S.B.'s relapse and her arrest for probation violations. The District Court conducted a review hearing on November 14, 2003. At the conclusion of the hearing, the court ordered that S.B.'s visits with A.S. be supervised.

¶ 21 During November and December of 2003, S.B. wore a series of patches used to test for the presence of drugs. At least two of these patches tested positive for meth while two others showed signs of being tampered with, thus, the integrity of the results of those two tests was compromised. As a result of S.B.'s positive tests and her admissions of recent drug use, DPHHS filed a petition to terminate S.B.'s parental rights to A.S. on January 23, 2004. At the time the termination petition was filed, A.S. had been in foster care just over 15 months. The District Court conducted a hearing on the petition on March 12 and 30, 2004. After receiving testimony from S.B., her social worker, and others involved in her treatment plan, the District Court terminated S.B.'s parental rights to A.S.

¶ 22 In its April 1, 2004 Findings of Fact, Conclusions of Law and Order Terminating Parental Rights, the District Court found that continuation of the parent-child legal relationship would likely result in continued abuse or neglect and that dismissing DPHHS's petition would create a substantial risk of harm to A.S. or would be a detriment to A.S.'s physical or psychological well-being. The court concluded that there was clear and convincing evidence that S.B. had not complied with the treatment plan and that the conduct or condition rendering S.B. unfit was unlikely to change within a reasonable time.

¶ 23 S.B. did not file a Notice of Appeal until October 17, 2005,...