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In re K.P.D.

Supreme Court of Montana

June 5, 2018

IN THE MATTER OF: K.P.D. and G.E.D., Youths in Need of Care.

          Submitted on Briefs: May 2, 2018

          District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause Nos. DN 14-026(B) and DN 14-027(B) Honorable Robert B. Allison, Presiding Judge

          For Appellant: Daniel V. Biddulph, Ferguson Law Office, PLLC, Missoula, Montana

         For Appellee: Timothy C. Fox, Montana Attorney General, C. Mark Fowler, Assistant Attorney General, Helena, Montana Edward J. Corrigan, Flathead County Attorney, Anne Lawrence, Deputy County Attorney, Kalispell, Montana


          Dirk Sandefur, 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 J.M. (Mother) appeals the judgment of the Montana Eleventh Judicial District Court, Flathead County, terminating her parental rights to K.P.D., age ten, and G.E.D., age 6. We affirm.

         ¶3 Beginning in 2013, the Child and Family Services Division of the Montana Department of Public Health and Human Services (Department) became involved with Mother, birth father (Father), and the children when it received various reports of neglect, unstable housing, and domestic abuse. At one point, the family was living in a motel room with no food, and the children had bruises on their backs and chests. In response to these reports, the Department did not remove the children but filed a petition in March 2014 for emergency protective services and temporary investigative authority (TIA) pursuant to §§ 41-3-301, -422, -427, and -433, MCA.

         ¶4 During the pendency of the TIA, the Department continued to receive reports regarding Father's alcohol use and related arrests for Partner/Family Member Assault, Mother's drug and alcohol use and alleged prostitution, the parents' lack of involvement in K.P.D.'s family therapy sessions at Turtle Bay, [1] and the children's frequent absences from school and daycare. However, as of mid-April 2014, Mother cooperated with the Department and voluntarily submitted to a Department-requested drug test, which came back negative. At that time, the family was renting a room partitioned from a garage in Somers, Montana. On April 21, 2014, based on Mother's apparent progress, the Department requested and ultimately obtained dismissal of the TIA petition pursuant to § 41-3-424, MCA.

         ¶5 In May 2014, the Department received additional reports of actual or potential neglect. These reports indicated that the family had been evicted from their home in Somers, that Mother left the children in the care of random people, and that K.P.D. had been absent from scheduled therapy sessions at Turtle Bay. On May 14th, the Department removed K.P.D. and G.E.D. pursuant to § 41-3-301, MCA, and placed them in protective custody. The Department subsequently filed a petition for immediate protection and emergency protective services, adjudication of the children as youths in need of care, and temporary legal custody (TLC) pursuant to §§ 41-3-422, -427, and -442, MCA. At an adjudicative hearing on June 20, 2014, the District Court adjudicated the children as youths in need of care as defined by § 41-3-102(34), MCA. Pursuant to the parties' stipulation, the District Court immediately proceeded to disposition, granted the State TLC for a period of up to six months, and continued disposition for consideration of an appropriate treatment plan on a later date. Upon continuation of the dispositional hearing in July 2014, the Court imposed a stipulated reunification-oriented treatment plan and ordered Mother to comply with all requirements thereof.

         ¶6 The stipulated treatment plan included a mental health component that required Mother to submit to a mental health evaluation, attend bi-weekly individual counseling, and follow all treatment recommendations made by the evaluator. The treatment plan further required Mother to maintain scheduled visitation with the children, attend and successfully complete Department-specified parenting classes, attend and complete family counseling sessions in conjunction with K.P.D.'s continuing mental health treatment and care at Turtle Bay, establish and maintain stable housing and lifestyle as approved by the Department, cooperate and maintain regular contact with the assigned Department social worker, attend and actively participate in family group decision-making meetings, and remain law-abiding and in compliance with all probation conditions previously imposed in an unrelated criminal matter. Mother did not object to any aspect of the stipulated treatment plan.

         ¶7 In September 2014, the Department referred Mother to Dr. Angela Jez, a licensed clinical psychologist, for a mental health evaluation pursuant to the treatment plan. Consistent with a prior diagnosis by another treatment provider, Dr. Jez diagnosed Mother with Panic Disorder with Agoraphobia, Dependent Personality Traits with Depressive Features, and Bipolar II Disorder. Inter alia, Dr. Jez recommended traditional individual therapy and Dialectical Behavioral Therapy (DBT), a special type of therapy regimen that combines individual and group therapy. However, the Kalispell area lacked a comprehensive DBT program that facilitated group therapy, and the Department did not ultimately refer Mother for the recommended DBT.[2]

         ¶8 Mother endeavored to engage but struggled to comply with her treatment plan requirements. She moved with the children between motel rooms and friends' homes until the Department referred her to low-income housing. Mother failed to consistently attend the traditional mental health counseling sessions provided by the Department. Domestic violence incidents continued to occur between Mother and Father. Due to Mother's lack of treatment plan compliance and inconsistent therapy attendance, the District Court extended the original grant of TLC four times at the Department's request to afford Mother additional time to successfully complete her treatment plan. Based on her partial progress and effort, the Department placed the children with Mother for a supervised reunification trial in September 2015, but later removed them in August 2016 due to Mother's failure to consistently attend individual and family therapy sessions as required under her treatment plan.

         ¶9 On September 30, 2016, the Department moved for approval of an unsigned treatment plan addendum for Mother referencing her failed trial reunification and addressing her continued non-compliance with her treatment plan requirements to attend and complete traditional mental health counseling, establish and maintain a stable and safe home environment free from domestic violence, successfully demonstrate parenting skills, and maintain regular contact with the Department. The addendum made no reference to DBT. The District Court orally granted the motion from the bench and allowed Mother two weeks to file any objection. Mother did not object. On December 28, 2016, the court filed a written order ...

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