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In re J.E.L.

Supreme Court of Montana

March 20, 2018

IN THE MATTER OF: J.E.L., III, A Youth in Need of Care.

          Submitted on Briefs: February 21, 2018

         District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DN 16-067 Honorable Russell C. Fagg, Presiding Judge

          For Appellant: Shannon Hathaway, Montana Legal Justice, PLLC, Missoula, Montana

          For Appellee: Timothy C. Fox, Montana Attorney General, C. Mark Fowler, Assistant Attorney General, Helena, Montana Scott D. Twito, Yellowstone County Attorney, Rick Helm, Deputy County Attorney, Billings, Montana


         ¶1 J.P. (Mother) appeals the District Court's order terminating her parental rights to her son J.E.L. She argues that the District Court improperly concluded that the conduct or condition rendering her unfit to parent was unlikely to change in a reasonable time. Mother also argues that the State improperly relied on inadmissible evidence to which her counsel failed to object, denying her the effective assistance of counsel and amounting to plain error. We affirm.


         ¶2 The Department of Public Health and Human Services (Department) received a report in February 2016 that Mother had been using methamphetamine and neglecting three-year-old J.E.L. After conducting an investigation, the Department placed J.E.L. in protective custody with relatives. The Department filed a petition for emergency protective services, adjudication as youth in need of care, and temporary legal custody. The Department's records showed that Mother previously had lost custody of her two older children due to her drug use and neglect dating back to 2002.

         ¶3 The District Court granted the Department's petition for emergency services and- with Mother's stipulation-adjudicated J.E.L. a youth in need of care and granted the Department temporary legal custody. Mother entered the Second Chance Home in Billings, and J.E.L. moved in with her there in May 2016.

         ¶4 The District Court entered a treatment plan for Mother in August 2016. The plan's stated goals were to encourage Mother's sobriety and to improve her parenting skills and relationship with J.E.L. The plan required Mother to "complete a chemical dependency evaluation and follow all recommendations"-which included maintaining sobriety-to submit to random drug and alcohol testing, to sign all relevant releases or authorizations, to complete a parenting class, to attend monitored visitations with J.E.L., and to "follow all rules and guidelines as a resident of Second Chance Home."

         ¶5 Mother successfully completed the Second Chance Home program in November 2016, although she did relapse multiple times while living there. Upon completion, she moved into her own apartment with J.E.L. Mother subsequently tested positive for marijuana, alcohol, and methamphetamine multiple times in early 2017. After Department personnel encountered Mother drinking at a local bar in January 2017, the Department removed J.E.L. from Mother's custody and placed him with his maternal grandparents.

         ¶6 The Department filed a petition for permanent legal custody and termination of parental rights with right to consent to adoption in April 2017, based on Mother's ongoing substance abuse. The District Court held a termination hearing on June 14, 2017. The court heard testimony from Mother; four of Mother's treatment providers; Mother's father; and Brittney McNamara, a child protection specialist with the Department. The testimony established that Mother had made some progress in managing her mental health and drug addiction issues, but also that she had failed to maintain sobriety throughout the proceedings and that she routinely tested positive for drugs and alcohol, including in the weeks leading up to the hearing.

         ¶7 During the hearing, counsel for the Department asked multiple witnesses- including Mother and McNamara-about Mother's discharge from the Montana Chemical Dependency Center (MCDC). The Department's counsel read aloud from a discharge summary document from MCDC during the testimony and asked the witnesses questions about it. The Department sought to show that Mother was discharged from MCDC not because she successfully completed her chemical dependency program there, but because she was showing no progress and the MCDC staff believed that she would not benefit from further treatment. The Department did not call a witness to attest to the discharge summary's authenticity, and it did not offer the document into evidence. Mother's counsel did not object to the Department's use of the document, but did elicit testimony from Mother contradicting the Department's characterization of her discharge.

         ¶8 The Department's counsel also asked McNamara about a conversation she had with Mother's drug patch provider, Neil Friedel. McNamara stated that Friedel "figures that [Mother] was a pretty heavy drug addict." The Department did not call Friedel to ...

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