Submitted on Briefs: December 19, 2018
FROM: District Court of the Fourth Judicial District, In and
For the County of Missoula, Cause No. DN 14-96 Honorable
Robert L. Deschamps, III, Presiding Judge
Appellant: Katy Stack, Stack & Kottke, PLLC, Missoula,
Montana Shannon Hathaway, Montana Legal Justice, Missoula,
Appellee: Timothy C. Fox, Montana Attorney General, Katie F.
Schulz, Assistant Attorney General, Helena, Montana
Kirsten Pabst, Missoula County Attorney, Missoula, Montana
Amicus: Emily Von Jentzen, Montana CASA GAL Association,
L.L.-C. (Mother) and O.D. (Father) independently appeal from
an order of the Fourth Judicial District Court, Missoula
County, terminating parental rights to their child, J.D. We
We restate the issues on appeal as follows:
1. Whether the District Court abused its discretion in
terminating Mother's and Father's parental rights to
2. Whether the District Court abused its discretion in
granting the CASA a subpoena to review notes from
3. Whether the District Court abused its discretion in
allowing the CASA to question witnesses at the termination of
the parental rights hearing.
AND PROCEDURAL BACKGROUND
J.D. was born in 2007. Father was not present in J.D.'s
life from age two until age eight. The Department became
involved with Mother and seven-year old J.D. in October 2014,
when Mother and J.D. went to Saint Patrick's Hospital
Emergency Room in Missoula, Montana, for psychiatric care.
Mother was first admitted to Providence Saint Patrick's
Hospital, in Missoula, and then to the Dakota Place Crisis
Facility, in Missoula, for more intensive care. J.D. was
admitted to Shodair Children's Hospital in Helena,
Montana. Mother acknowledged she was then unable to care for
J.D. due to her and J.D.'s mental health needs. Neither
Mother nor J.D. were current on their medications. Mother has
a history of mental health issues, including diagnoses for
anxiety, bipolar disorder, mild neurocognitive disorder,
posttraumatic stress disorder (PTSD), and personality
disorder. J.D. has bipolar disorder with psychotic symptoms,
intermittent explosive disorder, reactive attachment
disorder, PTSD, and misophonia.
In November 2014, the Montana Department of Health and Human
Services (Department) petitioned for emergency protective
services, adjudication of J.D. as a youth in need of care
(YINC), and temporary legal custody (TLC) of J.D. J.D. was
transferred from Shodair Children's Hospital to Whiteway
Group Home in Butte, Montana, where J.D.'s condition
improved due to the structure and consistency of the
facility. The District Court appointed counsel, Amy Lord, for
J.D., and a Court Appointed Special Advocate (CASA). Darla
Keck served as J.D.'s CASA starting on December 9, 2015.
Both Lord and CASA Keck are licensed attorneys in the State
Mother initially contested the Department's petition. At
the show cause hearing, Mother stated she and J.D. had fled
from Father when J.D. was two due to domestic violence. The
District Court issued a Civil No Contact Order at
Mother's request, prohibiting Father from contacting her
except through his attorney. The court additionally ordered
supervised contact between Father and J.D.
After a December 18, 2014 intervention conference, the
parties vacated the show cause hearing, and the District
Court adjudicated J.D. as a YINC and granted TLC to the
Department for six months, to which Mother stipulated. On
January 22, 2015, the District Court approved Mother's
phase one treatment plan, to which Mother stipulated. The
treatment plan required her to address her mental health
needs and improve her mental stability and parenting skills,
maintain safe and stable housing, and complete general tasks
with the Department.
Following a March 17, 2015 hearing considering Father's
ability to parent J.D., the District Court continued the
Department's TLC. Father failed to respond to the
petition or appear in court after service by publication. In
April, the District Court ordered Father to complete a phase
one treatment plan, requiring Father to: complete an anger
management class; complete a danger risk assessment; have
weekly or written communication with J.D.; complete a
parenting class; maintain safe and stable housing; and
maintain contact with the Department.
In late April 2015, the Department planned to transition J.D.
to Watson Children's Shelter, a therapeutic foster home
in Missoula, Montana, until Mother progressed further in her
treatment plan. Mother opposed, arguing J.D. should be placed
in her care. At a May 29, 2015 hearing, the District Court
extended the Department's TLC until June 16, 2015, to
monitor Mother's progress and visitations with J.D.
On June 8, 2015, the Department petitioned the District Court
to extend TLC because it felt Mother needed additional
monitoring and time to successfully complete her treatment
plan. The Department expressed concern that Mother could not
meet J.D.'s needs. Father attended a June 16, 2015 status
hearing by phone and supported J.D.'s return to
Mother's care. Father stated he was currently unemployed
and lived with his mother in Libby, Montana, but wanted to
reunite with J.D. The District Court extended the
Department's TLC of J.D. for thirty days.
Following status hearings, the District Court extended TLC to
the Department five additional times between July 18, 2015,
and August 3, 2017, before the Department petitioned for
termination of parental rights.
In July 2015, the Department transitioned J.D. to a trial
home visit in Mother's care, with specialists from AWARE,
Inc., a Montana mental health and residential service
non-profit, providing in-home services for six hours per
week, and support from additional wrap-around services.
J.D.'s behavior at school deteriorated rapidly in
Mother's care. He hit, kicked, threw things at adults,
tried to choke another child, and was unstable and
uncontrollable. Mother's mental health deteriorated as
well. The trial home visit lasted five months before the
Department removed J.D. from Mother and placed him back at
Watson Children's Shelter. The Department determined
Mother was unable to meet J.D.'s emotional needs and that
J.D. felt unsafe in the care of his Mother.
At a December 2015 permanency plan hearing, the District
Court approved a permanency plan first contemplating
reunification with Mother, then, where reunification with
Mother was untenable, contemplating reunification with
Father. Father's counsel and CASA Keck informed the court
that Father was writing to J.D., attending anger management,
and working on his treatment plan. Father moved to Missoula
and lived with his aunt to establish a relationship with J.D.
On April 22, 2016, J.D. was admitted to Saint Patrick's
Hospital Emergency Room for expressing suicidal thoughts and
making gestures to his counselor and school teachers
indicating a desire to hang or stab himself. An affidavit
submitted to the court by Child Protection Specialist (CPS)
Angelo stated that J.D. was "worried about [Mother] and
so he can't [talk about his feelings around her] and
can't tell her that he is frustrated because it is bad
for her and it makes him worried about what will happen to
her if he 'acts the way he feels.'" J.D. told
CPS Angelo that he felt "torn between his parents and
[felt] like [Mother] doesn't like that he likes his
[Father] and this makes him feel worse." CPS Angelo
stated her belief that J.D.'s worsening dysregulation
stemmed from the emotional conflict J.D. felt between his
parents and his concerns for Mother's mental health. J.D.
returned to Shodair Children's Hospital to stabilize and
was eventually transferred to Rosemary Gallagher
Children's Home, in Missoula, where he currently resides.
According to reports, J.D. has worked hard to address his
mental health needs and has progressed significantly in the
highly structured environment at Rosemary Gallagher.
On June 28, 2016, the Court ordered Mother to complete a
phase two treatment plan, to which she stipulated. On July 5,
2016, the District Court ordered Father to complete a phase
two treatment plan, to which he stipulated.
Beginning in July 2016, Father attended nine individual
therapy sessions with Debbie Viegut, a private clinical
social worker in Missoula. Ms. Veigut identified two major
problem areas for Father to work on: 1) mild to moderate
depression; and 2) understanding the level of severity
regarding his son's therapeutic needs. Father began
working full-time, including extensive travel, and while he
made time to visit J.D., Father struggled to find time to
continue therapy. His last session with Ms. Veigut was on
November 17, 2016.
Beginning in September 2016, Father began having weekly
therapeutic visitation with J.D. Ryan Norton, J.D.'s
therapist at Rosemary Gallagher, testified that J.D. and
Father had a playful and loving relationship in their
interactions with one another, but Father struggled to
understand the seriousness of J.D.'s mental health needs.
For example, Father thought chewing louder would desensitize
J.D. of misophonia, a noise sensitivity disorder triggered by
people chewing. Norton testified that Father seemed unwilling
to alter his parenting style and follow therapeutic
On April 11, 2017, the District Court granted CASA Keck's
request and issued a subpoena for Father's medical and
therapy records, specifically Father's entire file from
Ms. Viegut. Father objected to the subpoena, arguing that Ms.
Veigut had already submitted her mental health report to the
Department and that the subpoena violated his privacy and
that his private communications with his therapist were
privileged as a matter of law. The District Court overruled
Father's objection, noting that CASA Keck had special
skills as an attorney. However, the court required CASA Keck
to confidentially handle all materials received because of
the subpoena. Ms. Veigut later testified that the subpoena
violated her therapeutic relationship with Father.
On July 10, 2017, the Department petitioned for termination
of both Mother's and Father's parental rights to J.D.
The Department stated that Mother and Father had not
completed their treatment plans and that their treatment
plans were unsuccessful. The Department further argued that
the conduct or conditions rendering Mother and Father unfit,
unable, or unwilling to provide adequate parental care to
J.D. were unlikely to change within a reasonable time. At the
time of petition, J.D. had been in the Department's
custody for twenty-six months.
Father subsequently contacted Ms. Veigut, asking to re-engage
in therapy sessions. Ms. Veigut testified she needed more
information from CPS Angelo ...