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In re B.J.T.H.

Supreme Court of Montana

January 6, 2015

IN THE MATTER OF: B.J.T.H. and B.H.T.H., Youths in Need of Care.

Submitted on Briefs: December 3, 2014.

District Court of the Third Judicial District, In and For the County of Anaconda-Deer Lodge, Cause Nos. DN 11-03, 11-04 Honorable Ray Dayton, Presiding Judge.

For Appellant: Wade Zolynski, Chief Appellate Defender, Koan Mercer, Assistant Appellate.

For Appellee: Ben H. Krakowka, Deer Lodge County Attorney, Anaconda, Montana.

LAURIE McKINNON, J.

¶1 S.H.V.H. (Mother) appeals from the Judgment entered by the Third Judicial District Court, Anaconda-Deer Lodge County, finding that the Department of Public Health and Human Services (DPHHS) complied with the counseling provisions of § 42-2-409, MCA. We affirm.

¶2 Mother presents the following issues for review:

1. Was there substantial evidence to support the District Court's finding that, prior to signing an affidavit relinquishing her parental rights, Mother received counseling required by § 42-2-409(1) and (2), MCA?
2. Did the counselor produce a written report in compliance with the provisions of § 42-2-409(4), MCA?

FACTUAL AND PROCEDURAL BACKGROUND

¶3 Mother is the birth mother of twins, B.H.T.H. and B.J.T.H., born in July of 2009. On September 12, 2012, the District Court terminated Mother's parental rights to her children finding that Mother had executed a knowing and voluntary relinquishment of her rights after receiving counseling.[1] Mother appealed and raised the following issues: (1) Did the District Court err in denying Mother's request to discharge her court-appointed counsel; (2) Did the District Court err in accepting Mother's relinquishment; and (3) Did the District Court err in denying Mother's request to modify the treatment plan and stay the termination hearing. In re B.J.T.H., ¶¶ 2-5. This Court affirmed on issues one and three, B.J.T.H., ¶¶ 17, 22, but remanded the matter to the District Court for a determination of whether Mother had received the required relinquishment counseling or whether good cause existed to waive the requirement, B.J.T.H., ¶ 20.

¶4 On January 22, 2014, the District Court conducted an evidentiary hearing to determine whether the counseling received by Mother satisfied the provisions of § 42-2-409(1) and (2), MCA. The State presented the testimony of Christy Ruckwardt, a permanency specialist with DPHHS, who provided counseling to Mother. Ruckwardt explained that relinquishment counseling is referred to as options counseling because she reviews with the birth parent the different options available regarding his or her child. Ruckwardt goes over how the parent is doing in his or her treatment plan, necessary services that must be in place before reunification, and long-term placement options, such as guardianship and adoption, if reunification is not an option. It is Ruckwardt's practice to provide the parent with a packet of documents that help explain the parent's options. Ruckwardt goes through these documents with the parent and has the parent initial a checklist indicating he or she has received the information and has been offered discussion with the counselor on each topic. The packet contains a sample affidavit in the event the parent chooses the relinquishment option, as well as other individualized exercises such as the "Ecomap, " which the parent completes in order to identify persons who will provide support during the grieving process.

¶5 Mother's counseling with Ruckwardt occurred on July 16, 2012, two months before she signed an affidavit of relinquishment on September 5, 2012. The District Court determined that Ruckwardt "began the relinquishment counseling session with [Mother] at 10:00 a.m. and concluded the session four hours later at 2:00 p.m." The District Court observed that during this time, Ruckwardt allowed Mother "to take short breaks . . . to have a cigarette and to use the restroom." These breaks "lasted 10 to 15 minutes, combined." Additionally, the District Court found that Mother "took a 45 minute break from her relinquishment counseling at 11:30 a.m. to attend a Foster Care Review being conducted down the hallway from the room in which she was receiving counseling." Mother resumed counseling at 12:15 p.m. The District Court concluded that Mother had received between three hours and three hours and fifteen minutes of counseling and that the three-hour minimum time requirement had been satisfied.

¶6 Ruckwardt testified that during options counseling with Mother, she used a document entitled "Checklist for Counseling Requirement for Relinquishment of Parental Rights." This document contains every topic required to be discussed as set forth in § 42-2-409(3)(a) through (j), MCA. T hus, in compliance with the counseling statute, Ruckwardt testified she offered Mother an ...


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