In re T.N.-S.

• Decision Date: 28 April 2015
• Docket Number: No. DA 14–0570.,DA 14–0570.
• Citation: 379 Mont. 60,347 P.3d 1263,2015 MT 117
• Parties: In the Matter of T.N.-S., N.N.-S., E.N.-S., and A.N.-S., Youths in Need of Care.
• Court: Montana Supreme Court

379 Mont. 60

347 P.3d 1263

2015 MT 117

In the Matter of T.N.-S., N.N.-S., E.N.-S., and A.N.-S., Youths in Need of Care.

No. DA 14–0570.

Supreme Court of Montana.

Submitted on Briefs Feb. 25, 2015.

Decided April 28, 2015.

For Appellant: Elizabeth Thomas, Elizabeth Cunningham Thomas, PLLC; Missoula, Montana.

For Appellee: Timothy C. Fox, Montana Attorney General, Mardell Ployhar, Assistant Attorney General; Helena, Montana, Leo Gallagher, Lewis and Clark County Attorney, Ann Penner, Deputy County Attorney; Helena, Montana.

Opinion

Justice JAMES JEREMIAH SHEAdelivered the Opinion of the Court.

¶ 1 Birth mother, R.N.-S., appeals an order of the First Judicial District Court, Lewis and Clark County, terminating her parental rights to her four children, T.N.-S., N.N.-S., E.N.-S., and A.N.-S.We affirm.

¶ 2 The issues on appeal are:

1.Was the treatment plan appropriate when it did not require Mother to obtain a chemical dependency evaluation, despite chemical dependency being the source of Mother's parenting deficiencies?

2.Was Mother's counsel ineffective for failing to advocate for inclusion of a chemical dependency evaluation in the treatment plan?

3.Was the District Court required to disclose to the parties transcripts of its in-chambers interviews with the children?

PROCEDURAL AND FACTUAL BACKGROUND

¶ 3The appellant(Mother) is mother of the four children at issue in this case: T.N.-S., N.N.-S., E.N.-S., and A.N.-S.At the time of the termination hearing, the children were ages 15, 12, 9, and 4, respectively.

¶ 4 In October 2012, the Department of Health and Human Services(the Department) received a report that Mother and Father were using drugs and alcohol, were failing to supervise the children while under the influence, lacked housing, and were unable to provide for their children's basic needs.The Department contacted the parents, who agreed to place the children with Mother's sister and enter into a voluntary services agreement.The parents were required to submit to drug tests and, after two clean drug tests from each parent, the children were returned.A third drug test of the Father was positive for methamphetamine.The Department attempted to locate the family when it received the positive test result, but was unable to do so.

¶ 5 On January 3, 2013, the Department contacted the parents regarding another report indicating that the parents were again unable to care for the children due to drug use.The parents again entered into a voluntary services agreement.The parents were asked to submit to drug tests again and to meet with a Child Protection Specialist (CPS).Both parents failed to show up for drug tests or meetings with the CPS.Mother scheduled a later meeting with the CPS but failed to show up.On January 24, 2013, Mother finally attended a meeting with the CPS and told the CPS that she and Father were selling drugs to survive.

¶ 6 On January 30, 2013, the Department petitioned to have the children adjudicated youths in need of care.On May 13, 2013, the District Court held a hearing on the Department's petition and adjudicated the children youths in need of care.In July 2013, the District Court adopted the treatment plan agreed to and signed by Mother and her attorney.

¶ 7 The treatment plan set out several treatment goals and objectives for Mother.Relevant to the issues on appeal, were the following goals: goal number 2 for Mother was “To assess and improve [Mother's] mental health status.”Under that goal, Mother was required to complete a psychological evaluation and follow through with all recommendations of the evaluator.Goal number 3 for Mother was “To address [Mother's] chemical dependency issues (drug/alcohol) and remain chemically free.”Under that goal, Mother was required to remain free from drugs and alcohol and submit to random drug and alcohol testing.The treatment plan did not require Mother to complete a chemical dependency evaluation.Neither Mother nor her attorney objected to any part of the treatment plan.

¶ 8 In August 2013 and again in September 2013, Mother tested positive for methamphetamine.In October 2013, Mother was arrested for drug possession and was incarcerated from December 18, 2013, through March 19, 2014.In March 2014, Mother was accepted into Treatment Court.In Treatment Court, Mother was required to submit to random drug testing, attend weekly court hearings, participate in intensive outpatient therapy and individual counseling, and attend Alcoholics Anonymous or Narcotics Anonymous meetings.

¶ 9 On March 28, 2014, the Department petitioned the District Court to terminate Mother's parental rights to all four children.The District Court held a termination hearing over two days, June 24 and 27, 2014.At the hearing, the CPS testified that Mother failed to complete several key tasks in her treatment plan, including attending a parenting course.The CPS identified the primary goal of the treatment as getting Mother evaluated by professionals and then having Mother follow through on the professionals' treatment recommendations, particularly to deal with her drug abuse.The CPS testified that the primary evaluation was the psychological evaluation conducted by Dr. Bowman Smelko, PsyD, whose primary recommendation was that Mother engage in substance abuse treatment.Dr. Smelko's report noted that Mother had already been through a period of detox due to her incarceration and she might be able to begin inpatient treatment.The report also recommended Dialectical Behavioral Therapy (DBT) to address the substance abuse and emotional and behavioral issues.

¶ 10 The CPS further testified that Mother was given a list of chemical dependency evaluators, told she could get an evaluation, and told the Department would pay for any recommended treatment if the evaluation found Mother needed it.However, Mother never pursued an evaluation.The CPS testified that Mother should be commended for her successes in Treatment Court, but that she had only been sober for a short period of time and was not likely to be able to handle raising four kids single-handedly in the near future.The CPS testified that the Department was pursuing termination because Mother had only minimally complied with her treatment plan and it was unlikely Mother would be prepared to care for the children in a reasonable amount of time.

¶ 11 Dr. Smelko testified that he completed a psychological evaluation with Mother while she was in jail on the drug charges.Before the evaluation, Dr. Smelko examined information from the affidavits filed in the petition for adjudication of the children as youth in need of care, medical reviews, and drug screenings.Dr. Smelko then interviewed Mother and administered a battery of tests.Mother admitted to extensive drug use, particularly of methamphetamine.Based on all the information he gathered, Dr. Smelko opined that Mother's drug abuse was the primary concern in Mother's ability to parent.

¶ 12 The guardian ad litem for the children, a CASA volunteer, testified that she believed termination was in the best interests of the children and expressed her support for the Department's petition to terminate.The child and family therapist similarly testified that she believed termination of Mother's parental rights was in the best interests of the children, particularly because the oldest had assumed the role of a parent to his younger siblings.The therapist further testified that she believed termination was best because the children were all “in limbo” while they waited to find out what their permanent arrangement would be, which would likely make it difficult for them to develop attachments to Mother.The current foster mother of the three older children testified that the children had made great progress in the year they had been with her, but were experiencing confusion and uncertainty about the future.The foster mother expressed concern that the children would backslide on the progress they had made if they were returned to their Mother at this point.

¶ 13Mother's probation officer, treatment court coordinator, and individual counselor all testified that Mother was demonstrating commitment to her recovery, meeting all the requirements of Drug Treatment Court, and making good progress since beginning Drug Treatment Court.The probation officer testified that if Mother stayed on track, she would finish the Treatment Court program in September 2015.Mother testified that she was doing well in Treatment Court, and was 72 days sober at that point.Mother further testified that drug treatment was never offered to her by the Department and that she could not comply with the treatment plan while she was still using drugs.Mother specifically disputed the CPS's testimony that the CPS had offered Mother a chemical dependency evaluation and treatment.

¶ 14 On the second day of the hearing, the District Court conducted in-chambers interviews with each of the three oldest children in the presence of a court reporter.The District Court told the children that the court was required to create a transcript of the interviews, but that the parties and their lawyers would not see the transcripts of the interviews.Mother's attorney requested transcripts of the interviews, but the District Court denied the request.

¶ 15 After the hearing, the District Court issued its findings of fact, conclusions of law, and order terminating Mother's rights.The District Court found that termination was appropriate under § 41–3–609(1)(f), MCA, because the children were previously adjudicated youths in need of care, an appropriate treatment plan approved by the court was not completed by Mother, and the conduct or condition rendering Mother unfit was unlikely to change within a reasonable time.In accordance with § 41–3–609(2)(c), MCA, the District Court determined the conduct or condition rendering Mother unfit was unlikely to change in a reasonable time because of Mother's drug problems.The District Court...