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In re K.B.

Supreme Court of Montana

March 26, 2019

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

          Submitted on Briefs: January 23, 2019

          District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DN 12-65 Honorable Robert L. Deschamps, III, Presiding Judge

          For Appellant: Daniel V. Biddulph, Ferguson Law Office, PLLC, Missoula, Montana

          For Appellee: Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana Karen P. Kane, Attorney at Law, Missoula, Montana


         ¶1 A.B. (Mother) appeals an order from the Fourth Judicial District Court, Missoula County, that denied her motion to set aside her earlier conditional relinquishment of parental rights, terminated her parental rights, and granted permanent legal custody of K.B. to the Montana Department of Public Health and Human Services, Child and Family Services Division (the Department). We reverse and remand for proceedings consistent with this Opinion.

         ¶2 Mother presents the following issue for review:

Did the District Court err when it terminated Mother's parental rights based on the conditional relinquishment Mother executed in a prior proceeding?


         ¶3 K.B. is the child of Mother and M.E. (Father), who separated while Mother was pregnant with K.B. In July 2012, the District Court adjudicated K.B. as a youth in need of care (YINC), relying on a petition and affidavit from the Department that detailed Mother's alleged abuse and neglect of K.B. and Father's abandonment and neglect of K.B. Mother did not agree with all the factual allegations in the Department's petition, but she agreed to the adjudication of K.B. as a YINC. Father was not involved with the case at that time. In October 2012, Mother agreed to a treatment plan with the Department. The treatment plan's stated goals were to reunify Mother with K.B. and assist Mother in providing long-term stability for her child. In August 2013, however, the Department alleged that Mother had failed to abide by her treatment plan, and it moved to terminate Mother's parental rights. Around the same time, Father reappeared and began working on a treatment plan of his own, intending to gain full custody of K.B.

         ¶4 In December 2013, the District Court held a parental rights termination hearing where Mother and the Department discussed the possibility of establishing a parenting plan between Mother and Father versus terminating Mother's parental rights. The parties eventually agreed to Mother signing a conditional relinquishment of her parental rights pursuant to § 42-2-411(1), MCA. The conditional relinquishment provided that Mother would relinquish her parental rights only on the condition that either: (1) Father relinquished his parental rights by December 2014 or (2) the District Court terminated Father's parental rights.

         ¶5 Over the ensuing months, the Department and Father worked together to successfully complete his treatment plan, and in July 2014, K.B. transitioned into Father's full-time care. While K.B. was in Father's care, Mother maintained regular contact with K.B. and looked after K.B. on occasion when Father had to work. Mother and Father worked on developing a parenting plan during that time, but they never came to an agreement.

         ¶6 In March 2015, the Department filed a motion to dismiss the case, noting K.B. had successfully been in Father's care since July 2014. The Department stated that because Mother signed a conditional relinquishment and Father's rights had not been terminated, Mother's parental rights were intact. Nevertheless, the Department recommended that the court grant Father full custody of K.B. until Mother and Father could reach an agreement on a parenting plan. The District Court dismissed the case without prejudice.

         ¶7 Over the next two years, however, the Department received five separate reports containing allegations that Father abused and neglected K.B. In August 2017, the Department investigated a sixth report and concluded it had probable cause to believe Father was subjecting K.B. to severe neglect and physical and sexual abuse. Law enforcement officers arrested Father on charges of partner or family member assault, criminal endangerment, and incest. Around the same time, the Department filed a new petition for adjudication of K.B. as a YINC. The Department also alleged placement with Mother would be contrary to K.B.'s welfare for several reasons, ...

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