Submitted on Briefs: October 23, 2013
APPEAL FROM: District Court of the Fifth Judicial District, In and For the County of Jefferson, Cause No. DN 01-402 Honorable Loren Tucker, Presiding Judge.
For Appellant: Johnna K. Baffa; Van de Wetering & Baffa, P.C.; Missoula, Montana.
For Appellee: Timothy C. Fox, Montana Attorney General; Jonathan M. Krauss, Assistant Attorney General; Helena, Montana Matthew Johnson, Jefferson County Attorney; Boulder, Montana.
Jim Rice, Justice.
¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court's quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.
¶2 On January 24, 2013, the Fifth Judicial District Court, Jefferson County, entered its Findings of Fact, Conclusions of Law, and Order Terminating Birth Mother's and Birth Father's Rights to M.A., age 11. M.Z. (Mother) appeals. L.A. (Father) does not appeal, but the record indicates that Mother and Father have resumed their relationship and reside together.
¶3 This case involves a very unfortunate set of circumstances spanning back to the early 1990s. Mother and Father (collectively Parents) have previously had their parental rights terminated to nine children: three children in Nevada in 1992, and six in Oregon between 1994 and 1999. This case, involving the tenth child, is the first in Montana.
¶4 Parents moved to Boulder, Montana in 2001, while Mother was pregnant with M.A. Montana Department of Health and Human Services (DPHHS) received notification from Oregon outlining the history of concerns for children residing with Parents. This notification suggested immediate removal of any child in their home due to "imminent danger." Documentation from the Oregon and Nevada agencies was submitted to DPHHS, resulting in "hundreds of pages" of history.
¶5 A Petition for Temporary Legal Custody was filed by the State on November 15, 2001, and M.A. was removed from Parents' custody upon his birth. This petition resulted in a treatment plan for Parents, and the petition was ultimately dismissed on November 20, 2002, upon the State's motion. At that time the case worker noted that Parents were making good progress on their treatment plan, and recommended continuation of parental monitoring and skill building, as well as continuation of therapy and other services.
¶6 Over the nearly 10 years that M.A. lived with Parents, reports were received by DPHHS that Parents were not following through with community resources or mental health services made available under their treatment plan, as well as reports of drug abuse, and physical and sexual abuse towards M.A. M.A. had repeated involvement with law enforcement and the court system beginning at age eight. On one occasion M.A. was picked up by law enforcement walking down the interstate intoxicated, and on another he was transported by ambulance from his home where he was found unconscious from drinking whiskey. In 2010, while seeking a dissolution from Father, Mother informed DPHHS that M.A. had disclosed sexual abuse by Father.
¶7 On October 17, 2011, the State filed for Emergency Protective Services and Temporary Legal Custody of M.A., who was then admitted to Shodair hospital. On May 10, 2012, the State filed a Petition for Permanent Legal Custody and Termination of Parental Rights. The State asserted that no treatment plan or attempt at reunification was necessary pursuant to § 41-3-423(2)(e), MCA, which provides that such efforts are not required when the circumstances related to prior involuntary terminations of parental rights are relevant to the current petition. The District Court held hearings on the termination petition on November 7, November 14, and December 12, 2012.
¶8 Evidence demonstrated that the reasons Parents' rights to the prior nine children were terminated were "severe and chronic physical neglect, " a history of domestic abuse by Father against Mother and the children, the "substantial threat" of sexual abuse posed by Father to any child in the home, and drug abuse by Parents. Witnesses testified that they believed the same circumstances were present in the current case.
¶9 The psychologist who evaluated Father for the present case testified that Father's prior evaluations and history showed Father had consistent problems with impulse control, mood disregulation, and "a significant lack of ability to follow through with recommendations." Ultimately, the psychologist did not make any treatment recommendations for Father "based on consistent failure over the last two decades." He testified that it was his belief that Father "is treatment resistant, and he likely will not make gains from future treatment towards reunification with yet another child." He stated that ...