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In re D.R.

Supreme Court of Montana

January 29, 2019

IN THE MATTER OF: D.R. and P.W., 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 17-068 and ADN 17-069 Honorable Gregory G. Pinski, Presiding Judge

          For Appellant: Briana E. Kottke, Stack and Kottke, 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) appeals the Order of the Eighth Judicial District Court, Cascade County, terminating her parental rights to her children, D.R. and P.W. 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.R. and P.W. The State's petition alleged that Mother and her husband J.M. were using methamphetamine, that drug distribution was occurring in the home, and that D.R. and P.W. were being physically neglected. At the time that the children were removed from the home, Mother and J.M. were living together with their two children, 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 J.M. jointly retained Scott Albers to represent them at the hearing. Albers requested a contested hearing, during which 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 J.M. was primarily responsible for all the drug-related allegations and that Mother had attempted to get D.R. and P.W. away from J.M. and the drug activity. At the conclusion of the hearing, the District Court granted the Department 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. D.R. and P.W. were placed with their respective biological fathers.

         ¶5 On June 27, 2017, the Department again petitioned for TLC and adjudication of D.R. and P.W. 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.R. and P.W., and did not complete her court-ordered tasks.

         ¶6 On June 28, 2017, the District Court attempted to hold a hearing to review the Department's petition. Mother appeared without counsel. Mother reported to the court that Albers only represented her 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 the Department's TIA over Mother, rescheduled the hearing, and advised Mother to apply for a public defender.

         ¶7 On July 26, 2017, the District Court held a hearing to review the Department's petition. Mother was not present at the hearing and was not represented by counsel. Albers attended the hearing, explained he missed the previous hearing due to a scheduling error, and formally moved to withdraw as Mother's counsel, explaining that his contractual obligation to Mother had expired. The District Court accepted Albers' Motion to Withdraw and adjudicated D.R. and P.W. as YINC. As the hearing was concluding, Mother entered the courtroom and stated she wished to contest the adjudication of her children as YINC. Mother explained that she had failed to apply for a public defender because she believed Albers had to withdraw first. The District Court interpreted Mother's comments as a request to continue the hearing. The District Court then instructed Mother to apply for a public defender before the next hearing, advised her where the Office of Public Defender was located, and vacated its adjudication of D.R. and P.W. as YINC.

         ¶8 On August 30, 2017, the District Court held the previously continued hearing on the Department's petition. Mother failed to appear and was not represented by counsel. CPS Cheryl Snider testified at the hearing. Snider testified that the Department had several issues with Mother, including that she failed to attend or was severely late to scheduled appointments, failed to attend or canceled visitations with her children, and failed to submit to drug testing. Snider additionally testified that Mother was not working toward addressing the concerns that led to the Department's involvement and that adjudication as YINC and a ...


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