Submitted on Briefs: September 5, 2018
FROM: District Court of the Eighteenth Judicial District, In
and For the County of Gallatin, Cause No. DN 16-36AX
Honorable Rienne McElyea, Presiding Judge.
Appellant: Julie Brown, Montana Legal Justice, PLLC,
Appellee: Timothy C. Fox, Montana Attorney General, Katie F.
Schulz, Assistant Attorney General, Helena, Montana.
Lambert, Gallatin County Attorney, Bozeman, Montana.
JEREMIAH SHEA JUDGE.
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
V.W. (Mother) appeals the Findings of Fact, Conclusions of
Law, and Order of the Eighteenth Judicial District Court,
Gallatin County, terminating her parental rights to her son,
K.M. We affirm.
On October 11, 2016, the Montana Department of Public Health
and Human Services (Department) petitioned for emergency
protective services (EPS) and temporary investigative
authority (TIA) over K.M. K.M. is a two-year-old boy who was
born with cerebral palsy and requires specialized care and
monitoring. K.M. has been in an out-of-home placement for
almost all his life.
On November 3, 2016, the District Court granted the
Department EPS and TIA for K.M. On January 31, 2017, the
Department petitioned for adjudication of K.M. as a youth in
need of care and for temporary legal custody. On February 22,
2017, the District Court held a hearing on the
Department's petition. Mother stipulated to K.M. being
adjudicated a youth in need of care during the hearing. On
March 10, 2017, the Department was granted temporary legal
On March 21, 2017, the District Court approved an appropriate
treatment plan for Mother following a dispositional hearing.
Mother and her counsel both signed the treatment plan. On
August 15, 2017, the Department petitioned to terminate
Mother's parental rights to K.M. based on Mother's
failure to sufficiently complete her treatment plan. The
Department alleged that Mother had failed to show up to
behavioral therapy appointments, failed to complete parenting
classes, failed to engage in individual counseling, failed to
find safe and appropriate housing, failed to secure a stable
job, and failed to submit to consistent urinalysis testing.
The Department further alleged that the conduct rendering
Mother unfit was unlikely to change.
On January 3, 2018, the District Court conducted a two-day
termination hearing, wherein K.M.'s foster parent Wendy
Houghton, Licensed Clinical Professional Counselor Jenny
McCune, Dr. Susan Day, Dr. Bowman Smelko, Child Protective
Specialist Jeni Kamps, and Mother testified. Houghton
testified that K.M. attends multiple therapy and medical
appointments weekly, including physical therapy, occupational
therapy, and speech therapy, and she detailed the necessary
home therapies K.M. requires daily. Houghton testified that
K.M. will most likely need these therapies into his teenage
years and possibly for his entire life. McCune testified to
seeing Mother for counseling for eight visits from January to
May 2017, but that Mother did not attend nine other scheduled
appointments during that time, and that Mother was
inconsistent in her attendance once they reengaged counseling
in September 2017. McCune testified that Mother presented
with a lot of anxiety and difficulty in focusing and
completing tasks due to distractibility symptoms associated
with attention deficit hyperactivity disorder and bipolar
disorder. Both Dr. Day and Dr. Smelko testified that given
Mother's failure to follow treatment recommendations, the
issues that made Mother unable to parent were unlikely to
change in a reasonable period of time. Dr. Smelko testified
that Mother's historic and current issues with
consistently engaging in services would be concerning for a
child without K.M.'s challenges, but were especially
concerning for K.M. Kamps testified that Mother was
"minimally compliant" with her treatment plan.
Mother testified as to her progress on aspects of her
treatment plan, including her attendance at some
appointments, and that she was making repairs on a home she
purchased prior to the hearing that she believed would be
suitable for K.M.
On February 7, 2018, the Department filed a report to the
District Court in a companion case, involving K.M.'s
brother, that contained text messages between Kamps and
Mother in which Mother made inappropriate comments toward
Kamps. On February 14, 2018, the District Court issued an
Order terminating Mother's parental rights and granting
the Department permanent legal custody with right to consent
to K.M.'s adoption. The Order found K.M. to be a youth in
need of care, that Mother had failed to complete an