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In re R.W.

Supreme Court of Montana

September 4, 2018

IN THE MATTER OF: R.W., A Youth in Need of Care.

          Submitted on Briefs: June 6, 2018

          APPEAL FROM: District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. ADN 2016-13 Honorable Mike Menahan, Presiding Judge

          For Appellant: Julie Brown, Montana Legal Justice, PLLC, Missoula, Montana

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

          Leo J. Gallagher, Lewis and Clark County Attorney, Anne Peterson, Deputy County Attorney, Helena, Montana

          DIRK SANDEFUR JUSTICE.

         ¶1 Pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules, we decide this case by memorandum opinion, which shall not be cited and does not serve as precedent. In the opinion of the Court, the case presents a question controlled by settled law and by the clear application of applicable standards of review. The 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 D.W. (Mother) appeals the judgment of the Montana First Judicial District Court, Lewis and Clark County, terminating her parental rights to R.W. For the following reasons, we affirm.

         ¶3 On February 16, 2016, the Montana Department of Public Health and Human Services, Child and Family Services Division (Department), removed four-year-old R.W. from Mother's care based on risk of neglect resulting from concerns about Mother's mental health and Mother frequently leaving the child alone or with an inappropriate caregiver incident to her frequent need for emergency medical care. At the time, Mother often required emergency medical care to address severe and debilitating pain and associated bouts of intense nausea and vomiting of unknown cause.

         ¶4 On February 22, 2016, the Department petitioned for Emergency Protective Services (EPS), Temporary Investigative Authority (TIA), Temporary Legal Custody (TLC), and the ultimate adjudication of R.W. as a youth in need of care, as defined by § 41-3-102(34), MCA. By ex parte order filed February 24, 2016, the District Court granted EPS to the Department and set a show cause hearing pursuant to §§ 41-3-427 and -432, MCA. Mother objected to the Department's petition by written notice on March 7, 2016, before appearing at the show cause hearing on March 9th. At the close of hearing, the District Court granted the Department a 90-day TIA, declaring that "this is one of the more difficult cases, if not the most difficult case, that I've had in terms of the narrow legal issue as to whether or not to grant temporary investigative authority and emergency protective services." On March 21, 2016, the court's written findings stated, inter alia, that:

[t]he facts providing the basis for the Department's involvement are: The youth has a history, two prior removals in Montana and Arizona, for the same issues, of being placed at risk when the mother goes to the hospital and has no one to care for the child. No one is certain what is creating the issues for [Mother] but without emergency plans in place an unsafe situation is created for [R.W.] when [Mother] falls ill.

         ¶5 In May 2016, Mother submitted to a psychological evaluation by Dr. Christa Smelko, a licensed clinical psychologist, who conducted a personality assessment inventory, parental stress index, child abuse potential inventory, and parent/child inventory. Dr. Smelko also obtained and reviewed Mother's extensive medical records from St. Peters Hospital, including behavioral health records. Dr. Smelko found that Mother suffered from clinical depression and anxiety, resulting in difficulty regulating her erratic and irresponsible behavior. Inter alia, Dr. Smelko recommended that Mother consistently attend individual therapy, obtain a chemical dependency evaluation and follow any resulting recommendations, explore other forms of pain management as an alternative to Mother's ongoing cannabis use, maintain safe and stable housing, complete a parenting education course (to assist with coping, appropriate discipline, and attending to R.W.'s special developmental needs and delayed speech), and participate in case management services (consisting of mental health treatment, monitoring of psychiatric symptoms and medication therapy compliance, housing assistance, financial support, and identification of a support network for R.W.).

         ¶6 On May 10, 2016, the Department relocated R.W. from his third foster placement to a new foster home. Prior to the expiration of the TIA, the Department petitioned the District Court for continued EPS, YINC adjudication, and TLC on the basis that Mother continued to experience severe pain episodes that frequently required emergency medical services. By order filed June 7, 2016, the District Court adjudicated R.W. a youth in need of care pursuant to § 41-3-437, MCA, and granted TLC for six months. On June 10, 2016, the District Court imposed a stipulated treatment plan that required Mother to complete specified mental health counseling, submit to a medical health evaluation, maintain weekly contact with her Department case worker, complete a Department-approved parenting course, attend all scheduled supervised visits with R.W., allow the Department to enter her home for scheduled and unscheduled visits, and follow through with Dr. Smelko's recommendations.

         ¶7 After a gastroenterologist discovered precancerous cells and endometriosis in her uterus in July 2016, Mother underwent a complete hysterectomy. Endometriosis is a condition that commonly causes chronic pelvic inflammation, cramping, heavy menstrual bleeding, and at times nausea and vomiting.[1] The symptoms typically exacerbate during menstruation, and the pain tends to intensify over time as the disorder progresses. Mother testified that she first experienced symptoms of what was later diagnosed as endometriosis in 2003. A subsequent gallbladder removal surgery did not remedy Mother's condition and her symptoms worsened significantly over time. Mother testified that, ...


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