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In re M.V.R.

Supreme Court of Montana

November 29, 2016

IN THE MATTER OF: M.V.R., A Youth in Need of Care.

          Submitted on Briefs: October 5, 2016

         APPEAL FROM: District Court of the Eighth Judicial District, In and For the County of Cascade, Cause No. BDN 14-240 Honorable Thomas M. McKittrick, Presiding Judge.

          For Appellant: Meri Althauser, Montana Legal Justice, PLLC, Missoula, Montana.

          For Appellee Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana, John Parker, Cascade County Attorney, Valerie Winfield, Deputy Cascade County Attorney, Great Falls, Montana.

          OPINION

          MIKE McGRATH CHIEF JUSTICE.

         ¶1 M.V.R's mother, K.S. (Mother), appeals from an order entered by the Eighth Judicial District Court, Cascade County, terminating her parental rights. We affirm.

         ¶2 We restate the issues on appeal as follows:

Issue One: Did the District Court abuse its discretion when it terminated Mother's parental rights without making specific findings that the Department of Health and Human Services engaged in reasonable efforts to reunite the family pursuant to § 41-3-423(1), MCA?
Issue Two: Did the District Court abuse its discretion when it terminated Mother's parental rights based on a failed treatment plan pursuant to § 41-3-609(1)(f), MCA?
Issue Three: Did the District Court deny Mother due process by failing to reappoint a public defender?

         FACTUAL AND PROCEDURAL BACKGROUND

         ¶3 In May 2014, the Department of Health and Human Services (DPHHS) received reports of concern for Mother's three children's welfare based on alleged drug use in the family home. DPHHS, through Child Protective Services social worker Pamela Meyerson (Meyerson), attempted to make contact with the family without success. In October 2014, DPHHS received reports from two doctors' offices stating Mother had brought her children in, concerned they were infested with bugs. No bugs or infestation was present. The doctor's offices believed Mother may have been hallucinating. On October 14, 2014, Meyerson went to the family home in Great Falls, Montana, and spoke to Mother about the children's bug infestations. Meyerson observed no evidence of bugs or infestation on Mother or children. Mother refused to submit to a drug test at that time.

         ¶4 Three days later, when Mother removed the children from public school, Meyerson again went to the home. One child spoke with Meyerson but stated she could not get an adult to wake up. Finally, Mother's boyfriend came to the door and told Meyerson Mother was not home; eventually Mother came out and spoke with Meyerson. Meyerson asked Mother why the children were not in school and if she would submit to a drug test or have the children's hair tested. Mother refused, went back in the house, brought all three children outside to Meyerson and stated "this is what happens when you talk to [DPHHS], now they are going to take you away . . . go ahead, you want to take them, so take them." Meyerson did not take the children.

         ¶5 On November 5, 2014, Meyerson went to the family's home. The children were not attending school or registered for the home schooling program, Mother refused to submit to a requested drug test, and she denied Meyerson access to the children. The children were removed from Mother's care. On November 12, 2014, the Cascade County Attorney filed a Petition for Emergency Protective Services (EPS), adjudication as youths in need of care, and temporary legal custody. The Department alleged Mother physically neglected the children through her bizarre behavior and suspected methamphetamine use. The District Court granted the State's petition for emergency protective services and appointed Mother a public defender.

         ¶6 DPHHS referred Mother to Corin Fisch, LCPC-LAC (Fisch) for a chemical dependency evaluation which took place on November 25, 2014. Fisch diagnosed Mother as amphetamine dependent. Mother admitted to using methamphetamine but did not believe she had an addiction problem or that she needed treatment. Intensive outpatient treatment was recommended given Mother's lack of "treatment readiness."

         ¶7 On January 9, 2015, at a show cause hearing, Mother fired her public defender and hired private counsel. Mother's new counsel entered a notice of appearance on January 8, 2015, and appeared on her behalf. Mother stipulated to temporary legal custody for six months and that her children were youths in need of care. The District Court approved the treatment plan DPHHS, through Meyerson, had proposed. Although she did not sign the treatment plan, the transcript shows Mother was "willing" and "already actively" working on the plan. Nevertheless, the District Court allowed Mother's private counsel ten days to object to the treatment program. Counsel never objected. Temporary legal custody was ordered on January 15, 2015.

         ¶8 The treatment plan was designed to "preserve the parent child relationship, " "assist Mother in acquiring necessary skills to provide for her children's safety, permanency, and well-being, " as well as "assess the family and instill long term change and lasting stability." The plan authorized DPHHS to gather information regarding the children's ability to return home and devise a permanent placement plan if return was not feasible. Specifically, the treatment plan gave Mother six months to stop using illicit drugs and alcohol, maintain sobriety with scheduled and random urinalysis testing, complete mental health and chemical dependency evaluation and counseling, maintain contact with her children, attend parenting classes and submit to home visits, create and maintain a safe and secure home environment including stable employment, and not allow other people to reside in the family's home.

         ¶9 Mother requested referral to an inpatient treatment center in January 2015. Fisch referred her to Montana Chemical Dependency Center (MCDC). Mother missed her first two intake appointments with Dr. Robert Page (Dr. Page), but did meet with him on January 22, 2015, for psychological, mental health, and parenting evaluations. Mother admitted that she had been using methamphetamines since mid-December. Dr. Page believed Mother's substance abuse "created a pattern of neglect of the children, " and that Mother was aware she needed inpatient treatment but was "reluctant to actually enroll." Dr. Page determined Mother had co-occurring problems of chemical dependency and mental health. However, Mother needed inpatient chemical dependency treatment first.

         ¶10 On January 30, 2015, Mother was arrested in Billings for possession of methamphetamine. She entered MCDC on February 9, 2015, discharging herself only a few days shy of the standard 28-day term, on March 2, 2015. Mother began her outpatient treatment with Fisch through individual and group chemical dependency counseling sessions. Mother also began seeing a mental health counselor, Roberta Powell (Powell).

         ¶11 In the meantime, the biological father of two of Mother's children filed a petition for full custody. At that hearing on March 20, 2015, Mother admitted her addiction had an "atrocious" effect on the children, but that she was 39 days sober and would do anything to get her children back. The District Court lauded her sobriety but based on the pending criminal charges and the "long road" ahead of Mother, the ...


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