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 ...