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In re X.B.

Supreme Court of Montana

June 19, 2018

IN THE MATTER OF: X.B. and I.B., Youths in Need of Care.

          Submitted on Briefs: May 2, 2018

          APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause Nos. DN 14-113 and DN 14-114 Honorable Robert L. Deschamps, III, Presiding Judge

          For Appellant: Katy Stack, Stack & Kottke, PLLC, Missoula, Montana

          For Appellee: Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana, Kirsten H. Pabst, Missoula County Attorney, Kelly D. Henkel, Deputy County Attorney, Missoula, Montana


          Laurie McKinnon Justice

         ¶1 S.B. (Father) appeals from two orders of the Fourth Judicial District Court, Missoula County, terminating his parental rights to his minor children, X.B. and I.B. We affirm and address the following issues:

1. Did the District Court abuse its discretion in determining that Father failed to successfully complete an appropriate treatment plan?
2. Did the District Court err in concluding that Father's conduct or condition rendering him unfit to parent was unlikely to change within a reasonable amount of time?


         ¶2 W.L. (Mother) and Father are the natural parents of I.B., born in 2012, and X.B., born in 2014. Mother voluntarily relinquished her rights to the children and this appeal only concerns the District Court's termination of Father's parental rights. In October and November 2014, the Department of Public Health and Human Services, Child and Family Services Division (the Department) received reports that Mother and Father used drugs, specifically methamphetamine and marijuana; failed to adequately supervise the children; kept an unsanitary home; and did not ensure the children received medical care. After completing a present danger plan, the Department removed the children and placed them in kinship foster care in Missoula. In December 2014, the Department filed a Petition for Emergency Protective Services (EPS), Adjudication as Youth in Need of Care (YINC), and Temporary Legal Custody (TLC). The District Court granted EPS and subsequently conducted a show cause hearing on January 22, 2015. Father agreed to adjudication of the children as YINC and the court granted the Department TLC for six months. In the spring of 2015, the children moved to a different kinship foster care placement in Helena.

         ¶3 In March 2015, the District Court approved Father's Treatment Plan, to which he stipulated. The Treatment Plan specifically required Father to complete a psychological evaluation within two months or as soon as possible; complete a chemical dependency evaluation within two months; complete parenting classes within two months and participate in parenting coaching sessions; apply for housing assistance and obtain safe and stable housing within three months; participate in counseling or therapy sessions; not use or possess any alcohol or non-prescription drugs; submit to random alcohol and drug testing; regularly visit the children; and obtain steady employment.

         ¶4 Initially, Father struggled to comply with his Treatment Plan, only participating in a few supervised visits before the children moved to Helena. In July 2015, Father failed to attend a status hearing, at which the Department asked to extend TLC for another six months. The children's Court Appointed Special Advocate (CASA) disagreed with the Department's request to extend TLC. The CASA noted that Father had made no effort to complete his Treatment Plan-Father did not have housing, did not comply with drug testing, and missed his scheduled psychological evaluation. The CASA suggested that the Department move for termination, noting that the children's kinship foster placement provided them stability and permanence. The Department's social worker noted that, based on the children's needs and Father's complete disengagement from the process, early termination may be in the children's best interest. The District Court noted Father's lack of motivation and considered not extending TLC, but ultimately decided to extend for six months.

         ¶5 In August 2015, Father was arrested for possession of methamphetamine with intent to distribute. Father was released the following month and started misdemeanor probation and pretrial supervision. Father's pretrial supervision officer found Father difficult to get along with at that time. Father continued to use marijuana, had a poor attitude, and failed to follow through with his tasks.

         ¶6 Father began to engage in recommended services in October 2015, when he completed a chemical dependency evaluation. The evaluator diagnosed Father with stimulant use disorder, methamphetamine type, severe, and a secondary diagnosis of cannabis use disorder, moderate. Father subsequently began intensive outpatient treatment to address his drug problems. He stopped using drugs and began passing his drug tests. Father also improved his attitude and expressed a desire to get his children back. Father started to make payments on his financial obligations to the court, which included restitution, fines, and other fees.

         ¶7 The District Court held another status hearing in November 2015, at which Father appeared and demonstrated that he had started to work on certain portions of his Treatment Plan. Father was living with his mother (Grandmother) at her home in Missoula. Father obtained employment, was still participating in intensive outpatient treatment, and scheduled his psychological evaluation. Father started to attend parenting classes, but reported that he would have to restart the course at a later date because the classes conflicted with his drug treatment. The court noted Father's efforts and the Department agreed that Father was taking appropriate steps.

         ¶8 Father completed his psychological evaluation on November 24, 2015. The evaluator noted that Father needed to accomplish and maintain sobriety, recommending that Father continue with intensive outpatient treatment and random drug testing. The evaluator also discovered that Father struggled with depression and suggested that he consider antidepressant medication and cease marijuana use to help his mood. Father also needed to maintain employment and obtain ...

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