In re T.D.H.

• Decision Date: 18 August 2015
• Docket Number: No. DA 15–0038.,DA 15–0038.
• Parties: In the Matter of T.D.H., J.H., and J.H., Youths in Need of Care.
• Court: Montana Supreme Court

380 Mont. 401

356 P.3d 457

2015 MT 244

In the Matter of T.D.H., J.H., and J.H., Youths in Need of Care.

No. DA 15–0038.

Supreme Court of Montana.

Submitted on Briefs June 24, 2015.

Decided Aug. 18, 2015.

For Appellants: Robin Meguire, Attorney at Law, Great Falls, Montana (for T.D.H.), Tracy Labin Rhodes, Attorney at Law, Missoula, Montana (for Mother), Kathryn McEnery, McEnery Law Office, PLLC, Hot Springs, Montana (for J.H.).

For Appellee: Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana, Emily VonJentzen, Assistant Attorney General, Child Protection Unit, Kalispell, Montana, Edward J. Corrigan, Flathead County Attorney, Kalispell, Montana.

Opinion

Justice BETH BAKER delivered the Opinion of the Court.

¶ 1 This appeal is taken from three separate orders entered by the Eleventh Judicial District Court, Flathead County, during proceedings resulting in the termination of the parental rights of Ta.H. (Mother) to her three minor children, T.D.H., Je.H., and Ja.H.¹ Purportedly on behalf of Ja.H., the Office of the State Public Defender (OPD) appeals the District Court's orders rescinding OPD's appointment of counsel for Ja.H. and denying OPD's motion to appoint counsel for Ja.H. Mother and T.D.H. appeal the District Court's order terminating Mother's parental rights. We restate and address the following issues on appeal:

1. Whether the District Court abused its discretion in rescinding OPD's appointment of counsel for Ja.H. and denying OPD's motion to appoint counsel after the termination hearing;

2. Whether the District Court abused its discretion in concluding that Mother's conduct or condition made her unfit to parent and was unlikely to change within a reasonable time;

3. Whether the Department of Health and Human Services made reasonable efforts to prevent the removal of the children and to reunify Mother with her children;

4. Whether Mother was denied due process in the termination proceedings.

¶ 2 We affirm.

PROCEDURAL AND FACTUAL BACKGROUND

¶ 3 Mother met Te.H. (Father) when she was a seventeen-year-old runaway from foster care, after being subjected to years of abuse by her family. Father, who was thirty-seven years old at the time, exerted control over Mother and the abuse continued. Mother and Father have three minor children—T.D.H., Je.H., and Ja.H., now ages 14, 12, and 10, respectively—who Father also repeatedly abused. Between 2008 and 2012, the Department of Health and Human Services received twelve reports on the family, including two substantiations that Father physically abused Je.H. and Ja.H. In early 2012, the family agreed to a voluntary services agreement. When that agreement expired on March 6, 2012, the Department determined that there was no substantive improvement in parenting. On April 27, after the children disclosed multiple incidents of psychological and physical abuse by Father to a Department social worker, the Department removed the children from their home and placed them into foster care. Three days after the children were removed, Mother asked Father to move out of the house, which he did.

¶ 4 On May 4, 2012, the Department filed a petition for emergency protective services and temporary investigative authority for each of the three children due to Father's physical and psychological abuse of the children and Mother's inability to protect the children from Father's abuse. On May 7, the District Court granted emergency protective services. On June 21, the court issued an order continuing emergency protective services and granting temporary investigative authority, to which both parents stipulated. The court also ordered both parents to comply with the Department's requests for examinations, evaluations, counseling, and immediate services. On July 20, the court appointed a Court Appointed Special Advocate (CASA) to represent the children's best interests.

¶ 5 During the course of the Department's investigation, each child was diagnosed with psychiatric disorders: Je.H. was diagnosed with major depressive disorder

, severe posttraumatic stress disorder, oppositional defiant disorder, and borderline intellectual functioning; Ja.H. was diagnosed with oppositional defiant disorder and dysthymic disorder ; and T.D.H. was diagnosed with major depressive disorder and parent-child relational problem. All three children originally were placed in foster care but were unable to maintain their foster placements and were transferred to a series of residential treatment facilities and group homes.

¶ 6 At a hearing on November 5, 2012, the District Court heard testimony from professionals who had worked with Mother and the children that Mother was terrified of Father and Father was harming Mother's efforts to regain custody of her children. After the hearing, the court issued an order granting the Department temporary legal custody for six months, ordering the parents to have no contact with each other, and adjudicating all three children as Youths in Need of Care due to “substantiated physical abuse by [Father], alleged sexual abuse by [Father], and [Mother]'s failure to protect.” Neither parent objected to the court's order.

¶ 7 On December 17, the District Court issued an order approving a treatment plan for Mother (Mother's plan). The plan was signed by Mother and her attorney, and it sought to strengthen the relationship between Mother and her children, to instill long-term change and lasting stability, and to help Mother develop parenting skills, become educated regarding her children's specific needs, create and maintain a stable lifestyle, and address concerns about domestic violence, mental health, and chemical dependency. Mother's plan contained a list of concrete tasks for Mother to complete, including attending weekly domestic violence support groups, having no contact with Father, signing information releases, participating in a February 1, 2013 psychological evaluation with Dr. Angela Jez, regularly attending individual counseling sessions, scheduling a chemical dependency evaluation by March 1, 2013, and maintaining scheduled visits and phone appointments with her children.

¶ 8 At a status hearing on February 26, 2013, the Department raised concerns that Mother continued to have contact with Father and had not completed her required psychological evaluation. The Department repeated those concerns at an April 26 status hearing, with counsel stating, “We are approximately one week away from it being a year since these children were removed and we are no closer to reunification today than we were at removal.” The Department's counsel noted that the fifteen-month deadline for filing for termination of parental rights set forth under § 41–3–604(1), MCA, was “rapidly approaching.” Following the April 26 hearing, the District Court held Mother in contempt of court for having contact with Father and for failing to obtain a psychological examination.

¶ 9 On May 24, the Department petitioned for an extension of temporary legal custody and documented an exception for not filing for termination after fifteen months of foster care placement or Department custody. Although Mother was not in compliance with her treatment plan and the children had been in the Department's custody for more than one year, the Department determined that moving to terminate Mother's parental rights was not in the children's best interests at that time. In June, Mother obtained a psychological evaluation with Dr. Edward Trontel, who found no evidence of a psychotic illness. By contrast, when Mother finally completed her required psychological evaluation with Dr. Jez in March 2014, Dr. Jez diagnosed Mother with posttraumatic stress disorder

and borderline personality disorder, with a history of borderline intellectual functioning and narcolepsy.

¶ 10 In August 2013, the District Court granted the Department's petition to terminate Father's rights.² The court also granted the Department a six-month extension of temporary legal custody as to Mother. At Father's termination hearing, T.D.H.'s therapist testified that Mother had begun therapy sessions with T.D.H., which appeared to be going well. Je.H.'s therapist did not recommend contact between Je.H. and Mother at that time because, despite efforts to engage Mother in phone therapy sessions with Je.H., who was placed in a different area of the state, Mother was inconsistent in answering her phone, and attempts to contact Mother caused Je.H. to become agitated and aggressive toward staff.

¶ 11 On January 15, 2014, the Department filed a petition to extend temporary legal custody for another six months, which the District Court granted. On July 29, the Department finally petitioned for termination of Mother's parental rights. In support of its petition, the Department attached an affidavit from Child Protection Specialist Tom Irvine, stating, “Considering that [Mother] has unsuccessfully completed her treatment plan, her recent drug use, her unstable living conditions, her inability to focus on her children rather than herself during visits, and her inappropriate statements to her children, and [to] service providers including Child and Family Services, the Department has great concerns” about Mother's ability to meet her children's needs. Mother opposed termination, and the court set a termination hearing for December 9, 2014.

¶ 12 At a pre-hearing attorneys' conference on December 2, the children's counsel, Christina Larsen, advised the District Court that Ja.H. had developed a position against reunification that directly conflicted with the positions of Je.H. and T.D.H. Unlike his siblings, Ja.H. did not want to return to his mother. Larsen said she did not feel that she could advocate simultaneously for two irreconcilable positions. The Department opposed appointing a new counsel, stating that it had “a grave concern regarding additional delays in this matter,” as the children already had been in the Department's care for thirty-two...