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In re J.D.

Supreme Court of Montana

March 19, 2019

IN THE MATTER OF: J.D., A Youth in Need of Care.

          Submitted on Briefs: December 19, 2018

          APPEAL 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

          For Appellant: Katy Stack, Stack & Kottke, PLLC, Missoula, Montana Shannon Hathaway, Montana Legal Justice, Missoula, Montana

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

          Kirsten Pabst, Missoula County Attorney, Missoula, Montana

          For Amicus: Emily Von Jentzen, Montana CASA GAL Association, Kalispell, Montana

          INGRID GUSTAFSON JUDGE.

         ¶1 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 affirm.

         ¶2 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 J.D.
2. Whether the District Court abused its discretion in granting the CASA a subpoena to review notes from Father's therapist.
3. Whether the District Court abused its discretion in allowing the CASA to question witnesses at the termination of the parental rights hearing.

         FACTUAL AND PROCEDURAL BACKGROUND

         ¶3 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.

         ¶4 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 of Montana.

         ¶5 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.

         ¶6 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.

         ¶7 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.

         ¶8 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.

         ¶9 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.

         ¶10 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.

         ¶11 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.

         ¶12 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.

         ¶13 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.

         ¶14 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.

         ¶15 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.

         ¶16 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 recommendations.

         ¶17 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.

         ¶18 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.

         ¶19 Father subsequently contacted Ms. Veigut, asking to re-engage in therapy sessions. Ms. Veigut testified she needed more information from CPS Angelo ...


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