IN THE MATTER OF: O.R. and J.R., Youths in Need of Care.
Submitted on Briefs: June 28, 2017
FROM: District Court of the Fifth Judicial District, In and
For the County of Beaverhead, Cause Nos. DN 13-761 and DN
15-772 Honorable Kurt Krueger, Presiding Judge
Appellant: Robin Meguire, Attorney at Law, Great Falls,
Appellee: Timothy C. Fox, Montana Attorney General, Katie F.
Schulz, Assistant Attorney General, Helena, Montana Karen P.
Kane, Assistant Attorney General, Child Protection Unit,
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
Internal Operating Rules, this case is decided by memorandum
opinion, 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.
On December 7, 2016, the Court entered an order consolidating
DA 16-0608 and DA 16-0609, the separate appeals by A.R.
(Mother) from orders terminating her parental rights to O.R.
and J.R., into one proceeding designated as Cause No. DA
16-0608. Mother appeals from the orders of the Fifth Judicial
District Court, Beaverhead County, granting the State's
request for termination of her parental rights, with the
right to consent to the adoption of O.R. and J.R.
O.R. and J.R. are brothers, with O.R. being the oldest. In
September 2013, the Child and Family Services Division of the
Department of Public Health and Human Services (Department)
received an intake report regarding O.R. and O.R.'s
half-sibling W.R. A dependent-neglect petition was filed
regarding those children. That proceeding was subsequently
dismissed in January 2014.
On the evening of September 5, 2014, and leading into the
morning hours of September 6, police conducted multiple
welfare checks on the occupants of a vehicle located in a
grocery store parking lot in Dillon. T he temperature was
cool, the back window of the vehicle was broken out, the
vehicle's interior appeared to be dirty and in disarray,
and the adult occupants appeared to be under the influence of
drugs or alcohol. O.R. and W.R. were inside the vehicle,
appeared to be dirty and ill-kept, and W.R. said she was
cold. The encounters led to Mother's arrest for
Disorderly Conduct. Mother tested positive for
methamphetamine, amphetamine, and tetrahydrocannabinol (THC),
while she was pregnant with J.R. The children were removed by
the Department, were adjudicated as youths in need of care,
and temporary custody was granted to the Department. A
treatment plan for Mother relating to O.R. was approved by
the District Court in November 2014. While pregnant with J.R.
Mother tested positive for THC multiple times. J.R. was born
in February 2015, and because the safety concerns, which led
to O.R.'s removal from Mother's care had not yet been
resolved, J.R. was removed from the hospital by the
Department. A treatment plan was also approved for Mother
relating to J.R. O.R. has been in non-kinship foster care
since September 2014, and J.R. since February 2015.
The District Court found Mother's treatment plan was
unsuccessful at addressing her chemical dependency, noting
numerous positive substance tests during the pendency of the
proceeding, and her inability to maintain sobriety. Related
to this, the District Court found Mother failed to engage
consistently in individual counseling, family counseling,
mental health tasks, and visitation with the children, or to
maintain a safe home environment. The District Court
concluded that Mother's conditions rendering her unfit,
unable, or unwilling to provide adequate parental care to
O.R. and J.R. and were unlikely to change within a reasonable
time. As reasons for its decision, the District Court cited,
"Mother's decision to abscond and heavily use
methamphetamine" during the course of the case, instead
of seeking inpatient substance abuse treatment. The District
Court concluded termination of Mother's parental rights
to O.R. and J.R. would be in their best interests.
On appeal, Mother argues the Department lacked sufficient
cause to become involved in the matter, asserting that
"DPHHS did not have the authority to even make
observations to support the existence of probable
cause." She argues that police and the social worker,
who was called to the scene of the welfare check, lacked the
particularized suspicion necessary for an investigatory stop.
This argument was made before the District Court in motions
to dismiss filed by the children's Grandfather, a
permissive intervenor. Mother also argues she was denied due
process when the District Court took judicial notice of her
physical appearance, and of the difficulty inherent in an
addict's recovery process, especially from
methamphetamine. She challenges the District Court's
handling of her claim that the social worker had a conflict
of interest prohibiting her involvement in these cases
because the social worker was a victim in a separate criminal
case involving Mother. Further, Mother claims she received
ineffective assistance of counsel because her attorneys did
not introduce evidence of a negative drug test and other
evidence of lack of drug use.
We review a district court's decision to terminate
parental rights for an abuse of discretion. In re
T.S.B., 2008 MT 23, ¶ 17, 341 Mont. 204, 177 P.3d
429. In a parental rights termination proceeding, "the
District Court is bound to give primary consideration to the
physical, mental and emotional conditions[, ] and needs of
the children. Consequently, the best interests of the
children are of paramount concern in a parental rights
termination proceeding and take precedence over the parental
rights." In re T.S.B., ¶ 19 (internal
We have determined to decide this case pursuant to Section I,
Paragraph 3(c) of our Internal Operating Rules, which
provides for noncitable memorandum opinions. The District
Court's findings of fact are supported by substantial
evidence and its conclusions of law are correct, including
its rulings on the social worker's conflict of interest
and the motions to dismiss. Mother was not deprived of due