In the Matter of M.N.
| Decision Date | 04 October 2011 |
| Docket Number | No. DA 11–0195.,DA 11–0195. |
| Citation | 362 Mont. 186,2011 MT 245,261 P.3d 1047 |
| Parties | In the Matter of M.N., J.N., Jr., and R.N., Youths In Need of Care. |
| Court | Montana Supreme Court |
OPINION TEXT STARTS HERE
For Appellant: Joslyn Hunt, Chief Appellate Defender; Garrett R. Norcott, Assistant Appellate Defender; Helena, Montana (for Mother and Father) Travis Cushman, Attorney at Law; Great Falls, Montana (for Youths).For Appellee: Steve Bullock, Montana Attorney General; Matthew T. Cochenour, Assistant Attorney General; Helena, Montana, John Parker, Cascade County Attorney; Jennifer Ropp, Deputy County Attorney; Great Falls, Montana.Justice BETH BAKER delivered the Opinion of the Court.
[362 Mont. 187] ¶ 1 Mother and Father of the youths M.N., J.N. Jr. (“J.N.”), and R.N. appeal from the Eighth Judicial District Court's order terminating their parental rights. Based on a finding of “chronic, severe neglect” under § 41–3–423(2)(a), MCA, the court found the Montana Department of Public Health and Human Services (“Department”) was not required to make reasonable efforts to reunify all three children with their parents. The parents appeal the court's failure to require reunification efforts or order a treatment plan prior to terminating their rights. We affirm.
¶ 2 Mother and Father have been involved with the Department for many years. Father was previously married to W.N. and fathered two children with her who are not involved in this case, T.N. and C.N. In 2005, C.N. and T.N. were adjudicated as Youths in Need of Care and treatment plans were ordered. Father did not complete the treatment plan and the case ultimately was dismissed with custody to W.N. In 2007, C.N. and T.N. were again adjudicated as Youths in Need of Care. The Department began working with Mother and Father as a possible placement for C.N. and T.N. Mother volunteered to submit to family based services and evaluations. The Department provided services and training to pursue the possible placement. To those ends, a behavioral specialist visited Mother and Father's home. There, she found conditions of filth and foul odor. At the time, J.N., the eldest child of Mother and Father, was an infant. The Department provided extensive one-on-one services to teach the parents how to maintain a safe home for an infant and instruction on family skill building, behavior skill building and organization.
¶ 3 As part of the Department's services, Dr. Jeanette Heberle, a licensed psychologist, conducted an evaluation of Mother and determined she was mildly impaired in her cognitive abilities equating to mild mental retardation. Dr. Heberle found Mother likely functions at the level of a ten-year-old, making it difficult for her to address a child's ongoing and evolving needs. The Department ultimately concluded T.N. and C.N. could not be placed in the home because Mother was not capable of parenting more than one child at a time. Father later relinquished his rights to T.N. and C.N.
¶ 4 In October 2008, Judy Hartelius, a child protection specialist with the Department, made an unannounced home visit to Mother and Father's residence and concluded the home was below minimum safety standards. Ms. Hartelius observed the home would be unsafe for J.N., then fifteen months old, because of the significant amount of clothing, trash and small items all over the floor. Ms. Hartelius admonished and counseled Mother and Father on the safety hazards. She made two additional unannounced visits in the following month and found the conditions had further deteriorated.
¶ 5 In December 2008, the Department filed a petition for an adjudication and temporary legal custody of J.N. based on physical neglect and the parents' inability to provide a safe, clean environment for him. The Department established a treatment plan and provided extensive services to benefit Mother and Father over the next fourteen months. These services included training and instruction from mental health workers, behavioral specialists, and family support specialists. During this period Mother gave birth to M.N. The court noted the Department provided “206 hours of intensive one-on-one parenting [skills]” and basic life skills training to teach them to keep a safe and clean home, in addition to providing physical therapy and speech therapy for J.N. and M.N.
¶ 6 The Department held two family group meetings in January 2010 to “make sure that they continued on with the services that were in place.” The parents agreed to maintain speech and physical therapy for the children and to continue working with the family support specialist. Soon thereafter the Department dismissed the 2008 petition because Mother and Father had met minimal standards for the preceding six months. Shortly after the Department dismissed the petition, Mother and Father ceased using all services. In March 2010, Mother and Father told the physical therapist “they were going to take a break from going to therapy,” and discontinued treatment with both the physical therapist and the speech therapist. In April 2010, Mother cancelled services provided by the family support specialist.
¶ 7 Two months and five days after the Department dismissed the 2008 petition, J.N. was admitted to Benefis Hospital in Great Falls, Montana with a “depressed skull fracture.” The injury required surgeons to place a metal plate inside J.N.'s head “to lift the fragments [of his skull] up and get them level with the table of the skull so that it would heal in a flat manner.” Sharlene Barragan, a child protection specialist with the Department, contacted law enforcement about a possible assault on J.N. Mother and Father then provided several inconsistent and changing stories as to how J.N. had been injured. Investigators were unable to determine the cause of the injury.
¶ 8 At the hospital, the Department placed J.N. on a forty-hour hold and arranged for M.N. to stay with a family friend. At approximately 6:30 p.m., J.N. was crying for food and Mother commented the children would be hungry as they had not eaten since the morning. As Ms. Barragan was leaving the hospital, Mother handed her a bottle for M.N. with a nipple that appeared to be covered in mold. Barragan then went to the parents' home to pick up a nebulizer for M.N. Once inside the home, Barragan was struck by a foul smell, food stains rubbed on the floor and counters and an “extremely dirty” highchair that was caked with food.
¶ 9 The Department filed a petition on April 23, 2010, seeking emergency protective services, adjudications as Youths in Need of Care, and temporary legal custody of J.N. and M.N. The parents stipulated the Department had met its burden for the petition in light of J.N.'s serious head injury and the insufficient explanation for the injury. The children were adjudicated Youths in Need of Care and the court granted temporary legal custody to the Department on May 27, 2010. No treatment plans were ordered and the Department filed petitions for termination of parental rights and permanent legal custody due to chronic and severe physical neglect.
¶ 10 Both parents underwent psychological evaluations by two forensic psychologists, Dr. Robert Page and Dr. Patrick Davis. Dr. Page expressed reluctance to recommend reunification without knowing how J.N. had been injured. He testified the inconsistent stories raised a question of accountability on the parents' part and implied “the priority is to protect one and not one's child.” Moreover, Dr. Page noted though Mother could perform basic tasks, she would require help in responding to stressful, difficult or dangerous situations with children. Dr. Davis concluded both Mother and Father were unable to parent and would not have the capacity to parent within a reasonable time. He stated only with “one-on-one 24–hour supervision” could Mother and Father effectively parent the children.
¶ 11 On July 21, 2010, the Department petitioned for a determination that reasonable efforts at reunification were not required under § 41–3–423(2)(a), MCA, and sought termination of parental rights and a grant of permanent legal custody of J.N. and M.N. to the Department. R.N. was born on October 17, 2010. Pursuant to § 41–3–422(1)(d), MCA, the State petitioned for termination without reunification services as to R.N. based on the same factual and statutory grounds it had raised with respect to M.N. and J.N. The companion petitions were heard together.
¶ 12 The hearing began on December 16, 2010. After the Attorney for the Youth moved for a continuance, the hearing resumed on February 7, 2011, and concluded on February 8, 2011. The State called nineteen witnesses, including social workers, in-home behavioral specialists, police officers, forensic psychologists, a family support specialist, and a child protection specialist.
¶ 13 In its order dated March 9, 2011, the District Court found clear and convincing evidence showed Mother and Father had subjected J.N. and M.N. to aggravated circumstances, specifically chronic and severe neglect, under § 41–3–423(2)(a), MCA. In its findings of fact, the court indicated that in its experience, the Department's actions were “the most services it has seen provided to two parents by the department in regards to one on one training.” Even with these services, the court found the behavior of the parents was “not likely to change over time” and despite the love they had for the children, it was clear the needs of the children were “simply above the parental capacity of these parents.” As a result, the court found the Department was not required to make reasonable efforts to reunify the children with Mother and Father. The court then ordered the termination of the parent-child relationship between M.N., J.N., R.N., and their parents, granting permanent legal custody to the Department. Mother and Father filed a timely notice of appeal to this Court.
¶ 14 “A court's...
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