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In re L.V-B.

Supreme Court of Montana

January 21, 2014

IN THE MATTER OF: L.V-B., A Youth in Need of Care.

Submitted on Briefs: December 3, 2013.

District Court of the Nineteenth Judicial District, In and For the County of Lincoln, Cause No. DN 12-4 Honorable James B. Wheelis, Presiding Judge.

For Appellant: Carolynn M. Fagan, Fagan Law Office, P.C.; Missoula, Montana.

For Appellee: Timothy C. Fox, Montana Attorney General, Mardell Ployhar, Assistant Attorney General; Helena, Montana, Emily Von Jentzen, Assistant Attorney General, Child Protection Unit; Kalispell, Montana, Bernard G. Cassidy, Lincoln County Attorney; Libby, Montana.

OPINION

LAURIE McKINNON , Justice.

¶1 F.V. ("Mother") appeals from an order of the Nineteenth Judicial District Court, Lincoln County, terminating her parental rights to her daughter, L.V.-B. We affirm. We restate the issues on appeal as follows:

¶2 1. Whether Mother articulated a substantive due process claim which required that the State's petition to terminate be dismissed.

¶3 2. Whether § 41-3-424, MCA, and the placement of L.V.-B. with Father required that the State's petition to terminate be dismissed.

¶4 3. Whether the State's petition to terminate was filed prematurely.

BACKGROUND

¶5 In October 2011, Mother gave birth to L.V.-B. In a prior proceeding in 2010, the Department of Public Health and Human Services ("Department") removed a different child from Mother's care due to her drug use, homelessness, and for leaving the child with an inappropriate caregiver. Mother did not comply with the treatment plan that the Department provided to enable her to parent her first child safely. The State ultimately did not petition to terminate Mother's rights to the first child because it was able to place the child in the care of that child's father.

¶6 In February 2012, the Department removed L.V.-B. from Mother's care based on reports that Mother was using drugs, homeless, and had left L.V.-B. with inappropriate caregivers. The Department placed L.V.-B. with her maternal aunt, and established a voluntary services agreement with Mother that addressed the issues leading to L.V.-B.'s removal. Mother did not comply with the voluntary services agreement, and the State filed a petition for emergency protective services and temporary investigative authority in March 2012. The District Court granted temporary investigative authority to the Department upon stipulation of the parties in April 2012. In May 2012, paternity of L.V.-B. was established and the Department provided L.V.-B.'s father ("Father") with a treatment plan. The parties do not dispute that Father successfully completed his treatment plan. L.V.-B. remained with her maternal aunt until placed with Father in April of 2013.

¶7 In July 2012, the District Court adjudicated L.V.-B. a youth in need of care. The Department provided Mother with a treatment plan requiring her to obtain a drug evaluation and follow through with treatment recommendations, participate with Family Concepts to improve her parenting skills, submit to random urinalysis testing, maintain an adequate home, avoid involvement with criminal activity, attend visitations with L.V.-B., obtain a job, and maintain weekly contact with the Department. Mother failed to comply with the terms of the treatment plan, and in January 2013 the State filed a petition to terminate Mother's parental rights. Shortly before Mother's termination hearing, the Department placed L.V.-B. with Father.

ΒΆ8 On April 18, 2013, Mother filed a motion to dismiss the State's termination petition, arguing that L.V-B.'s placement with Father diminished the State's interest in L.V.-B., and that Mother's fundamental constitutional right to remain L.V.-B.'s parent outweighed the State's interest in termination. Mother additionally argued that the termination petition was filed prematurely. Mother was not present at the termination hearing on April 19, 2013. Her counsel explained that Mother had difficulties with transportation, but he also stated that he had offered to give Mother a ride to the hearing. Four witnesses testified on behalf of the Department: Denise Killingsworth, clinical supervisor and data coordinator for Flathead Valley Chemical Dependency Center ...


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