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In re D.M.

Supreme Court of Montana

January 29, 2019

IN THE MATTER OF: D.M. and T.M., Youths in Need of Care.

          Submitted on Briefs: January 3, 2019

          APPEAL FROM: District Court of the Eighth Judicial District, In and For the County of Cascade, Cause Nos. ADN 17-066 and ADN 17-067 Honorable Gregory G. Pinski, Presiding Judge

          For Appellant Mother: Briana E. Kottke, Stack and Kottke, PLLC, Missoula, Montana

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

          For Appellee: Timothy C. Fox, Montana Attorney General, Madison L. Mattioli, Assistant Attorney General, Helena, Montana

          Joshua Racki, Cascade County Attorney, Valerie Winfield, Deputy County Attorney, Great Falls, Montana

          JAMES JEREMIAH SHEA 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.R. (Mother) and J.M. (Father) appeal the Order of the Eighth Judicial District Court, Cascade County, terminating their parental rights to their children, D.M. and T.M. We affirm.

         ¶3 On February 10, 2017, the Montana Department of Public Health and Human Services (Department) petitioned for emergency protective services (EPS), adjudication as youth in need of care (YINC), and temporary legal custody (TLC) of D.M. and T.M. The State's petition alleged that Mother and Father were using methamphetamine, that drug distribution was occurring in the home, and that D.M. and T.M. were being physically neglected. At the time that the children were removed from the home, Mother and Father were living together with D.M. and T.M., as well as D.R. and P.W., Mother's children from previous relationships.

         ¶4 On February 13, 2017, the District Court issued an Order to show cause, granted EPS, and scheduled an adjudicatory hearing. On March 31, 2017, Mother and Father jointly retained Scott Albers to represent them at the hearing. Albers informed the District Court that Father was going to stipulate to the Department's petition but requested a contested hearing for Mother. During the hearing, the Department presented testimony from Child Protection Specialists (CPS) Julie Bass, Melody Wilkes, and Kami Stone; Detective Adam Price; SVU Detective Katie Cunningham; and Licensed Addictions Counselor Teresa McCracken. Mother's defense to the Department's petition was that Father was primarily responsible for all the drug-related allegations and that Mother had attempted to get D.M. and T.M. away from Father and the drug activity. At the conclusion of the hearing, the District Court granted the Department TLC for six months as to Father, temporary investigative authority (TIA) over Mother, ordered Mother to complete anger management, ordered Mother to obtain mental health, chemical dependency, and parenting assessments, and ordered Mother to share the assessments with the Department. The Department placed D.M. and T.M. in foster care.

         ¶5 On April 28, 2017, the District Court held a dispositional hearing on Father's proposed treatment plan. Father did not appear but was represented by Albers. The District Court approved the Department's proposed treatment plan, which required Father to engage in chemical dependency, parenting, home safety, and mental health tasks; and to regularly communicate with the Department.

         ¶6 On June 27, 2017, the Department again petitioned for TLC and adjudication of D.M. and T.M. as YINC. The Department's petition alleged that, during the TIA period, Mother tested positive for methamphetamine, attended only half of her scheduled visits with D.M. and T.M., and did not complete her court-ordered tasks. The Department's petition also alleged Father tested positive for methamphetamine and had missed scheduled visitations.

         ¶7 On June 28, 2017, the District Court attempted to hold a hearing to review the Department's petition. Mother and Father appeared without counsel. Mother reported to the court that Albers only represented them for the previous hearing and that she would like to request a public defender. The District Court issued an Order for Albers to show cause for failing to appear at the hearing prior to formally moving to withdraw, extended ...


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