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In re K.M.

Supreme Court of Montana

September 18, 2018

IN THE MATTER OF: K.M., A Youth in Need of Care.

          Submitted on Briefs: September 5, 2018

          APPEAL 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.

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

          For Appellee: Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana.

          Marty Lambert, Gallatin County Attorney, Bozeman, Montana.

          OPINION

          JAMES JEREMIAH SHEA JUDGE.

         ¶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 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.

         ¶3 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.

         ¶4 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 custody.

         ¶5 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.

         ¶6 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.

         ¶7 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.

         ¶8 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 ...


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