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In re H.N.O.

Supreme Court of Montana

December 28, 2017

IN THE MATTER OF: H.N.O. and L.P.B.K., Youths in Need of Care.

          Submitted on Briefs: November 29, 2017

         District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause Nos. DN 15-080(A) and DN 15-081(A), Honorable Amy Eddy, Presiding Judge

          For Appellant: Kelly M. Driscoll, Montana Legal Justice, PLLC

          For Appellee: Timothy C. Fox, Montana Attorney General, C. Mark Fowler, Assistant Attorney General

          Ed Corrigan, Flathead County Attorney, Anne Y. Lawrence, Deputy County Attorney


          Laurie McKinnon, 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 S.W.J.O. (Mother) appeals from orders of the Eleventh Judicial District Court, Flathead County, terminating her parental rights to her two children, L.P.B.K., age seven, and H.N.O., age four. We affirm.

         ¶3 H.O. (Father) is listed on both children's birth certificates and therefore their presumed father. In September 2015, the Department of Health and Human Services, Child Protective Services (the Department), determined Mother lacked "protective capacities and was allowing irresponsible people to supervise her children, " removed the children from her care, and placed them with Father. The Department monitored the family, and a few months later determined the children were also not safe with Father. Accordingly, the Department filed a petition for Emergency Protective Services and Temporary Investigative Authority, which the District Court granted and subsequently continued. In due course, the District Court adjudicated the children as Youth in Need of Care and granted the Department Temporary Legal Custody. Initially, the Department could not locate Mother to personally serve her the petitions, but eventually served her in March 2016 at a local detention center where she was in custody for unrelated criminal charges. Mother was incarcerated multiple times between January and June 2016 for numerous criminal charges, including forgery, theft, criminal possession of dangerous drugs and paraphernalia, criminal contempt, and obstruction of a peace officer.

         ¶4 The Department did not want to offer Mother a treatment plan; instead, it requested the District Court terminate Mother's parental rights without reunification services pursuant to § 41-3-609(1)(b), MCA, on the basis that mother had abandoned the children. Mother requested the Department provide reunification efforts, including a treatment plan, maintaining that she had not abandoned the children. The District Court concluded Mother had not abandoned the children and instructed the Department to arrange reunification services for Mother. Mother's treatment plan, which she signed and the District Court approved at the beginning of June 2016, required her to (1) complete a chemical dependency evaluation and follow its recommendations; (2) maintain sobriety, as monitored by random drug testing including drug patches and urinalyses; (3) undergo a psychological evaluation with Dr. Edward Trontel and follow its recommendations; and (4) participate in counseling to address mental health and parenting issues. Because Mother was incarcerated when the treatment plan was formulated, the plan required Mother complete each task within a certain number of weeks after her release.

         ¶5 Mother was released on June 7, 2016, but failed to comply with any portion of her treatment plan. Her release was quickly revoked and she remained in custody until July 22, 2016, when she pleaded guilty to two charges of possession of dangerous drugs and was released pending sentencing. Mother was homeless while she awaited her sentence because drug users lived at her proposed residence-she was afraid she would relapse if she lived there-and the local shelter was full. With nowhere to live, Mother struggled to work on her treatment plan. She did, however, attend self-help meetings and wear a drug patch. Mother later described that, during that time, she was "basically just . . . waiting to go back to jail" because she "needed treatment" and "help." On September 7, 2016, Mother was incarcerated again.

         ¶6 In October, Flathead County District Court sentenced Mother for her two possession of dangerous drugs convictions and in November, Lake County District Court sentenced Mother because her deferred sentence for her forgery conviction was revoked. Combined, Mother received a net five-year sentence. Around the time Mother was sentenced, she started to comply with her treatment plan. Mother received a chemical dependency evaluation and the results indicated that Mother had a severe drug addiction. The evaluation concluded Mother's addiction required inpatient treatment, which she began in December. Mother also completed a mental health status exam with Dr. George Scheckleton, who diagnosed Mother with methamphetamine dependence and post-traumatic stress disorder.

         ¶7 In February 2017, the Department petitioned to terminate Mother's parental rights pursuant to § 41-3-609(1)(f), (2)(c), and (2)(d), MCA, on the grounds that Mother failed to successfully complete her treatment plan. The Department suggested the children be permanently placed with Father, who successfully worked with the Department towards reunification. The District Court held a termination hearing in May 2017, at which the Department presented evidence of Mother's failure to complete her treatment plan. The District Court ultimately terminated Mother's rights, concluding Mother did not complete her treatment plan and that the circumstances rendering her unfit or unable to parent were unlikely to change within a reasonable time.

         ¶8 Mother appeals the termination of her parental rights, raising two issues. First, she contends the District Court erred when it concluded Mother failed to comply with an appropriate treatment plan. Mother urges us to exercise plain error review and, for the first time on appeal, analyze whether her treatment plan was appropriate. We sparingly invoke plain error review when fundamental rights are at issue and when "failing to review the claimed error may result in a manifest miscarriage of justice, may leave unsettled the question of the fundamental fairness of the trial or proceedings, or may compromise the integrity of the judicial process." State v. Favel, 2015 MT 336, ¶ 13, 381 Mont. 472, 362 P.3d 1126 (citing State v. Taylor, 2010 MT 94, ¶ 12, 356 Mont. 167, 231 P.3d 79); accord State v. Baker, 2000 MT 307, ¶ 13, 302 Mont. 408, 15 P.3d 379. We ...

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