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In re Z.B.

Supreme Court of Montana

March 5, 2019

IN THE MATTER OF: Z.B., A Youth in Need of Care.

          Submitted on Briefs: January 30, 2019

          APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DN 15-91 Honorable Donald L. Harris, Presiding Judge

          For Appellant: Shannon Hathaway, Montana Legal Justice, PLLC, Missoula, Montana

          For Appellee: Timothy C. Fox, Montana Attorney General, Tammy K Plubell, Assistant Attorney General, Helena, Montana

          Scott D. Twito, Yellowstone County Attorney, Mike Andersen, Deputy County Attorney, Billings, Montana


          Ingrid Gustafson 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 D.B. (Father) appeals the Thirteenth Judicial District Court's Findings of Fact, Conclusions of Law, and Order of May 22, 2018, terminating his parental rights to his daughter, Z.B. (Child). We affirm.

         ¶3 On March 2, 2015, the Montana Department of Public Health and Human Services (Department) filed a Petition for Emergency Protective Services (EPS), Adjudication as a Youth in Need of Care (YINC), and Temporary Legal Custody (TLC) of Child when she was one-week-old. On March 5, 2015, the District Court issued an order concluding there was probable cause to believe Child was in danger of being abused or neglected and scheduled an initial hearing on the Department's Petition 18 days later. At the time of removal, Father had an open case with the Department involving another child.[1]

         ¶4 On July 6, 2015, following two continuances, [2] the District Court held a contested show cause and adjudication hearing. Father testified he had completed an anger management assessment and a psychological evaluation, he and K.D. (Mother) had scheduled a couples counseling appointment, and he was nearly done with his parenting classes. The Department did not have sufficient time to present its evidence in support of the TLC petition during the hearing. As the District Court attempted to find another date to finish the hearing, the Department suggested it could amend its petition to one for temporary investigative authority (TIA). Father agreed and did not object to this proposal. On July 20, 2015, the District Court issued its written order granting the Department TIA for a period of 90 days.

         ¶5 On October 8, 2015, before expiration of TIA, the Department filed a second Petition for Adjudication as a YINC and TLC of Child. The District Court set a hearing for November 30, 2015. Following a couple additional continuances, Father stipulated to Child being adjudicated a YINC and to TLC for six months. On February 16, 2016, the District Court adopted the stipulation, adjudicated Child as a YINC, granted the Department TLC for a period of six months, and ordered the Department to develop a treatment plan for Father within 30 days. On May 16, 2016, the District Court held a permanency plan hearing. At the time of the permanency hearing, Child was residing with her great grandparents, and the Department was working toward reunification with Father and Mother.

         ¶6 On June 9, 2016, as Father had not yet signed his proposed treatment plan, the Department provided it to the District Court and moved for its approval. On June 29, 2016, the District Court approved and ordered the Department's proposed treatment plan. The treatment plan required Father to: complete parenting classes; maintain a safe and healthy residence free from domestic violence and drug use; complete a psychological evaluation; comply with counseling services; attend visits with Child; utilize non-physical age-appropriate forms of discipline; and work cooperatively with the Department to complete these tasks.

         ¶7 On August 16, 2016, the Department sought extension of TLC. On October 17, 2016, the District Court held a hearing on the Department's motion, where Father stipulated to an extension of TLC for six months. On October 28, 2016, pursuant to mediation, the Department and Father negotiated a reunification plan. The mediator's summary of the plan contained an agreement to reach reunification by: increasing the parents' in-home parenting time; agreeing to a later meeting to draft and discuss an in-home safety plan; continuing therapeutic parenting visits; continuing with counseling; providing ongoing monitoring by the Department; and planning to meet again in approximately three weeks to discuss the progress of this plan.[3]

         ¶8 On April 18, 2017, Father filed a Motion for Reunification, Placement with Parents, and Dismissal. On May 8, 2017, the District Court considered Father's Motion during a previously scheduled permanency plan hearing. At the hearing, Father's counsel informed the District Court Father's Motion was intended to reinstate unsupervised visits ...

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