Submitted on Briefs: July 26, 2017
Appeal
From District Court of the Eighth Judicial District, In and
For the County of Cascade, Cause No. ADN 15-199 Honorable
Greg Pinski, Presiding Judge
For
Appellant: Julie Brown, Montana Legal Justice, PLLC,
Missoula, Montana.
For
Appellee: Timothy C. Fox, Montana Attorney General, Katie F.
Schulz, Assistant Attorney General, Helena, Montana Carey Ann
Haight, Cascade County Attorney, Valerie M. Winfield, Deputy
Cascade County Attorney, Great Falls, Montana.
OPINION
JAMES
JEREMIAH SHEA JUSTICE.
¶1
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
Internal Operating Rules, this case is decided by memorandum
opinion and 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.
¶2
R.CC. (Mother) appeals the findings of fact, conclusions of
law, and order of the Eighth Judicial District Court, Cascade
County, terminating her parental rights to her infant
daughter, M.RC. We address whether the District Court abused
its discretion in terminating Mother's parental rights.
We affirm.
¶3
In July 2015, the Department of Health and Human Services
(DPHHS) petitioned for emergency protective services,
adjudication as a youth in need of care, and temporary legal
custody (TLC) of M.RC., born in April 2015, after concerns
arose that the she was being physically neglected. On July
10, 2015, law enforcement arrested E.RC. (Father) for child
endangerment after he tried to run from officers and left
M.RC. behind. Father was acting erratically and intoxicated,
and was later determined to have a blood alcohol
concentration of 0.236. Mother was also incarcerated that day
when she was found intoxicated while caring for M.RC. The
parents had recently relocated to Great Falls and had no
established residence. Mother is an enrolled member of the
Kainai-Blood Tribe of Canada, Father is an enrolled member of
the Blackfeet Tribe, M.RC. is eligible for enrollment with
the Blackfeet Tribe and, therefore, an Indian Child under the
Indian Child Welfare Act (ICWA). 25 U.S.C. § 1903(4).
DPHHS notified both Tribes of the proceedings, and neither
intervened or sought to transfer jurisdiction to Tribal
Court.
¶4
At the September 2015 show cause hearing, neither parent
appeared and the District Court adjudicated M.RC. as a youth
in need of care. At the October 2015 dispositional hearing,
the District Court ordered a treatment plan for Mother, with
no objections. In April 2016, the District Court extended TLC
after neither parent had yet to engage in his or her
treatment plan. TLC was extended again in October 2016 when
DPHHS filed a petition to terminate parental rights (TPR) and
permanent legal custody and neither parent appeared for the
TPR hearing.
¶5
On January 4, 2017, the District Court held the TPR hearing,
at which neither parent appeared personally, but both were
represented by counsel. In support of the TPR petition, the
State presented testimony from Child Protection Specialist
(CPS) Adrianne Weaselhead, ICWA Expert Anne Fisher, Licensed
Addiction Counselor (LAC) Nathan Stewart, LAC Julie Messerly,
and Licensed Clinical Professional Counselor Bobbie Voegel.
On January 9, 2017, the District Court granted the
State's petition for TPR, issuing its findings of fact,
conclusions of law, and order.
¶6
CPS Weaselhead testified she tried to set up random UA
testing, parenting classes, and chemical dependency
evaluations for Mother. Mother only completed a fraction of
her required UA tests, and the ones she submitted tested
positive for Benzodiazepines, Methamphetamine, Amphetamine,
and other drugs. Neither Mother nor Father initiated
parenting classes with Discovery Family Counseling Services.
Stewart testified that Mother described her extensive
substance abuse history and previous failed chemical
dependency treatments at her chemical dependency evaluation.
Stewart recommended medically monitored inpatient treatment,
partly because of Mother's high probability of abusing
alcohol, cannabis, and opioids. Stewart also testified that
while Mother admitted she had a substance abuse problem, she
did not believe she needed inpatient treatment, which
indicated she was not fully committed to addressing her
chemical dependency issues. Mother appeared for three group
sessions, but otherwise did not engage in chemical dependency
treatment. Mother told CPS Weaselhead in the spring of 2016
she attended inpatient chemical dependency treatment at
Crystal Creek, however, after six weeks and against staff
recommendations, Mother left treatment. In the fall of 2016,
Mother stated she was receiving services in Browning and did
not need DPHHS to make referrals. Mother failed to fill out a
release of information for CPS Weaselhead to confirm any of
her alleged treatment.
¶7
Fisher, an IWCA expert, testified that DPHHS's efforts to
reunify M.RC. with the birth parents were not successful, and
that continued custody of M.RC. by the birth parents would
likely result in serious emotional or physical damage to
M.RC. Fisher also testified regarding Tribal preference for
guardianship or customary adoptions over the permanent
termination of parental rights. CPS Weaselhead testified to
coordinating with the Blackfeet Tribe to secure a kinship
placement for M.RC., but after sending approximately 50
letters, no qualified family member came forward and the
Tribe advised her there was no possible kinship or Tribal
placement available at the time.
¶8
We review a district court's decision to terminate
parental rights for abuse of discretion. In re K.B.,
2013 MT 133, ¶ 18, 370 Mont. 254, 301 P.3d 836. A
district court abuses its discretion when it acts
"arbitrarily, without employment of conscientious
judgment or in excess of the bounds of reason, resulting in
substantial injustice." In re M.J., 2013 MT 60,
¶ 17, 369 Mont. 247, 296 P.3d 1197. We review a district
court's factual findings for clear error. In re
A.K., 2015 MT 116, ¶ 20, 379 Mont. 41, 347 P.3d
711. A factual finding is clearly erroneous if it is not
supported by substantial evidence, if the court
misapprehended the effect of the evidence, or if review of
the record convinces this Court a mistake was made. In re
C.J.M., 2012 MT 137, ¶ 10, 365 Mont. 298, 280 P.3d
899. We review a district court's application of law for
correctness. K.B., ¶ 18 (internal citations
omitted). In ICWA cases, we will uphold the district
court's termination of parental rights if a reasonable
fact-finder could conclude beyond a reasonable doubt that
allowing the parent to continue custody would likely
"result in serious emotional or physical damage to the
child." K.B., ¶ 18.
¶9
Mother argues that the State did not provide proof beyond a
reasonable doubt to terminate her rights under the heightened
ICWA standard, and that the District Court abused its
discretion in finding that Mother's condition was
unlikely to change in a reasonable time. The State argues the
record reflects evidence beyond a reasonable doubt that
supports the District Court's findings and conclusions
that DPHHS made active efforts to prevent the breakup of this
Indian family. The State also argues the evidence
demonstrates beyond a reasonable doubt that Mother's
condition rendering her unfit to parent was unlikely to
change in a reasonable time. "In determining whether the
conduct or condition of a parent is unlikely to change within
a reasonable time [as required under §
41-3-609(1)(f)(ii), MCA], the court shall enter a finding
that continuation of the parent-child legal relationship will
likely result in continued abuse or neglect or that the
conduct or the condition of the parents renders the parents
unfit, unable, or unwilling to give the child adequate
parental care." Section 41-3-609(2), MCA. When
determining whether a parent's conduct is unlikely to
change within a reasonable time, the district court
"should assess a parent's past and present
conduct." In re D.H., 2001 MT 200, ¶ 32,
306 Mont. 278, 33 P.3d 616. Evidence beyond a reasonable
doubt, including testimony from CPS Weaselhead, Stewart, and
Fisher, supported the District Court's decision that
Mother completely failed her treatment plan, that Mother was
unlikely to change within a reasonable time, and that it was
in ...