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In re I.M.

Supreme Court of Montana

March 27, 2018

IN THE MATTER OF: I.M., O.G. and A.D. Youths in Need of Care.

          Submitted on Briefs: February 28, 2018

          APPEAL FROM: District Court of the Ninth Judicial District, In and For the County of Glacier, Cause No. DN 15-16 Honorable Robert G. Olson, Presiding Judge

          For Appellants: Robin Meguire, Attorney at Law; Great Falls, Montana (for Mother)

          Kelly M. Driscoll, Montana Legal Justice; Missoula, Montana (for Father).

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

          Terryl Matt, Glacier County Attorney, Mark Westveer, Deputy County Attorney; Cut Bank, Montana.

          OPINION

          Ingrid Gustafson Justice.

         ¶1 S.M. (Mother) is the biological mother of I.M., O.G., and A.D. J.D. (Father) is the biological father of A.D. Mother and Father appeal the June 5, 2017 orders of the Ninth Judicial District Court, Glacier County, terminating their respective parental rights to the children. We affirm.

         ¶2 We restate the issues on appeal as follows:

1. Whether the District Court erred in admitting Mother's and Father's drug test results at the termination hearing.
2. Whether the District Court abused its discretion in terminating Mother's and Father's parental rights.

         FACTUAL AND PROCEDURAL BACKGROUND

         ¶3 I.M. and O.G. were born to Mother in 2011 and 2012, respectively. A.D. was born to Mother and Father on May 8, 2015. Shortly after A.D.'s birth, she began to suffer from withdrawals. On May 11, 2015, A.D. was transported to the NICU at Benefis Hospital in Great Falls, Montana due to the severity of the withdrawals. On May 14, 2015, the Montana Department of Public Health and Human Services (Department) filed a Petition for Emergency Protective Services.

         ¶4 Both parents stipulated to adjudicating the children as youths in need of care and granting temporary legal custody (TLC) to the Department. On January 27, 2016, Mother and Father each stipulated to court-approved treatment plans designed to address their chemical dependency issues, their mental health issues, and their deficient parenting skills. On March 18, 2016, a licensed chemical dependency counselor, Raymond Antonsen (Antonsen), conducted chemical dependency evaluations of both parents. Antonsen diagnosed Mother with a substance abuse disorder and recommended intensive outpatient treatment. Antonsen found Father struggled with substance abuse and recommended Father participate in inpatient services followed by sessions with a provider experienced in treating co-occurring mental health disorders. The District Court extended TLC on multiple occasions to allow both parents time to complete their treatment plans.

         ¶5 On October 11, 2016, the Department petitioned to terminate both parents' parental rights pursuant to § 41-3-609(1)(f), MCA, on the grounds that neither had successfully completed their respective treatment plans. The District Court held termination hearings on March 29 and April 12, 2017. The Department presented the following witnesses: Antonsen, Doreen King (King) of Big Sky Testing Services, Dani Walter (Walter) of Compliance Monitoring, Court Appointed Special Advocate Cheryl Lux (CASA Lux), and Child Protective Specialist Amy Krause (CPS Krause).

         ¶6 After Antonsen testified regarding each parent's chemical dependency evaluations, the Department called King to testify. Although King works as a specimen collector at Big Sky Testing Services, she did not perform the actual urinalysis or hair follicle testing. The Department sought admittance of the parents' drug testing results through King, but Father objected on the basis of hearsay and lack of foundation. The District Court sustained the objection. The Department then called Walter to testify. Walter is a urinalysis and hair follicle collector employed by Compliance Monitoring Systems. Neither Walter nor King testified to the drug testing results of the specimens they had collected from the parents. CASA Lux testified regarding the well-being of the children since they began living with the maternal grandparents at the time of removal. CASA Lux recommended permanent guardianship with the grandparents, but agreed termination of Mother's and Father's parental rights may be appropriate. CASA Lux testified she had reviewed the written reports of Mother's and Father's respective drug testing results, but she did not testify as to those results. CASA Lux further testified that her review of the drug test results assisted her in forming her opinion as to the best interest of the children.

         ¶7 The Department's last witness was CPS Krause. The Department again sought admittance of the parents' respective drug testing results through CPS Krause. The Department argued the written reports of the drug testing results were admissible through CPS Krause under the business record exception to the hearsay rule. Counsel for both parents objected based on hearsay and for lack of foundation. The District Court provisionally admitted each parent's drug testing results pending briefing by the parties on whether proper foundation had been laid. CPS Krause proceeded to testify regarding Mother's and Father's failed drug tests. CPS Krause further testified regarding the progress ...


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