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In re R.J.F.

Supreme Court of Montana

May 14, 2019

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

          Submitted on Briefs: March 6, 2019

          District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DN 16-407 Honorable Mary Jane Knisely, Presiding Judge

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

          For Appellee: Timothy C. Fox, Montana Attorney General, Micheal S. Wellenstein, Assistant Attorney General, Helena, Montana

          Scott D. Twito, Yellowstone County Attorney, Corbit Harrington, Deputy County Attorney, Billings, Montana


         ¶1 R.U. (Mother) appeals from the termination of her parental rights issued July 27, 2018, by the Thirteenth Judicial District Court, Yellowstone County. We reverse and remand for the Department to engage in reasonable efforts to reunify Mother with R.J.F. (Child).

         ¶2 We restate the issues on appeal as follows:

1. Whether the Department engaged in reasonable efforts to prevent removal of Child and to reunite Mother with Child.
2. Whether the District Court erred in determining the conduct or condition rendering Mother unfit, unable, or unwilling to parent was unlikely to change within a reasonable time.


         ¶3 The Montana Department of Health and Human Services, Child and Family Services Division (Department), became involved with Mother and Child when Mother tested positive for methamphetamine and marijuana at Child's birth in October 2016. At that time, Mother was temporarily in Billings, Montana, but lived in North Dakota. The Department removed Child from Mother's care on October 8, 2016. Ten days later, the Department filed its Petition for Emergency Protective Services (EPS), Adjudication as Youth in Need of Care (YINC) and Temporary Legal Custody (TLC) on October 18, 2016.[1]Mother returned to Williston, North Dakota-300 miles from Billings-where she resided, owned a residence, and had employment. The Department arranged visits for Mother "whenever she was in town or whenever she could make it to town." At the time, Mother did not have her own car and did not have a driver's license.

         ¶4 The court initially set the show cause hearing for November 1, 2016, but reset the hearing at the request of the Department to December 20, 2016, the time set for the adjudication and disposition hearing. On December 15, 2016, the Department again requested continuance of the hearings set for December 20, 2016, as it had not yet served putative fathers and needed time to serve them by publication. Despite Mother visiting Child in October and November 2016, and the Department knowing her whereabouts, the Department did not serve Mother with the Petition until December 16, 2016. The court reset the show cause, adjudication, and disposition hearings to February 21, 2017, over four months after Child's removal from Mother.[2]

         ¶5 Notwithstanding Mother did not own a car or have a valid driver's license, Mother visited Child on October 20, 24, and 27, 2016, and attended his initial well-baby check-up. Mother further visited Child on November 18 and 30, 2017, December 15 and 16, 2017, and January 27, 2017. On January 11, 2017, Mother filed a petition to transfer venue pursuant to § 25-2-201(3), MCA, to Williams County, North Dakota where she resided.[3]Hearing on this petition was held February 21, 2017, at the same time as the show cause, adjudication, and disposition hearings. Child protection specialist (CPS) Bertencelj, then assigned to the case, expressed concern at transferring the case to North Dakota. CPS Bertencelj noted Mother had been inconsistent with visits, was somewhat disengaged in the last two months, and that she would hate for Child to be removed from the foster parents.[4] Child was residing in a non-kinship, foster placement with no ties to any family members, nearly 300 miles away from Mother. Mother's counsel noted the considerable distance between Billings and Williston, Mother's transportation problems, and winter weather as factors interfering with Mother's ability to engage and be present in Billings. He logically pointed out that the Department should be working to increase the bond between Mother and Child, not the bond between the foster parents and Child. The guardian ad litem did not object to Mother's request to transfer the case to North Dakota, advocating only for an orderly transition. The District Court denied the request to transfer venue, indicating she did not have information regarding the social worker in North Dakota and that she would want to talk to a North Dakota judge. The District Court did not direct anyone to obtain more information for her or make any arrangement for her to talk to a North Dakota judge, nor did the parties provide the court with additional information.[5] At the completion of the hearing, the District Court adjudicated Child as a YINC and granted the Department TLC for a period of six months. Two and a half months later, the District Court issued its written order denying the transfer.

         ¶6 CPS Reinhart was the assigned worker from Child's removal until December 2016. CPS Reinhart testified that during this time she worked with Mother on a voluntary service list that included a chemical dependency (CD) evaluation, random drug testing, meeting with her, and visits in Billings. Mother completed the CD evaluation with Kimberly McNamara in October 2016, which recommended Mother engage in outpatient treatment. CPS Reinhart testified to the reasonable efforts she made while assigned this case, "We did visits when we could . . . She had prior been living in Williston, North Dakota, she had a house there so she wanted to go back there, and in the end, that's what she did. We set up visits whenever she was in town or whenever she could make it to town." CPS Reinhart also testified she wanted to set up drug testing, but she did not arrange for any such testing in North Dakota, instead relying on Mother to get this set up on her own. Mother was unable to arrange for drug testing, or consistently meet with CPS Reinhart or visit Billings.

         ¶7 In late December 2016, CPS Bertoncelj took over Mother's case. Recognizing Mother's transportation problems, CPS Bertoncelj determined Mother should fly to Billings every couple of weeks for a visit with Child. She also determined since Mother would be coming to Billings every couple of weeks, it would be appropriate for her to obtain services in Billings rather than in North Dakota. As such, CPS Bertoncelj arranged for intermittent flights to Billings[6] and introduced Mother to the Center for Children and Families.

         ¶8 In March 2017, Mother was re-assigned new counsel and the Department filed a motion to approve a treatment plan for her. The proposed treatment plan was approved on April 6, 2017, six months after Child was removed from Mother's care. Despite the Department paying for intermittent plane tickets for Mother to visit Child, Mother had difficulties with transportation, work, and her active addiction. These difficulties significantly interfered with Mother's ability to make her scheduled visits. Consequently, she made less than half of them between December 2016 and July 2017. Although Mother struggled to address her issues, during this time she was in regular contact with CPS Bertoncelj. CPS Bertoncelj did not re-evaluate the viability of her plan that Mother obtain services in Billings and did not arrange for or refer Mother for services in North Dakota.

         ¶9 A Family Engagement Meeting (FEM) was held on August 17, 2017.[7] At this meeting, Mother identified two potential family members she desired the Department to consider as placements for Child: her mother, S.S., who also appeared telephonically at this FEM, and her maternal cousin, D.B.

         ¶10 On August 28, 2017, CPS Bertoncelj signed an affidavit in support of the Department's request to extend TLC and thereafter went on maternity leave. Mother was then assigned to work with CPS Herbst. Although CPS Herbst was aware of the Department's policy that whenever a child is placed in out-of-home care and the non-custodial parent is not an option, the Department must consider a child's extended family as placement, she did not seriously investigate whether either identified family member was a suitable placement for Child. Instead, CPS Herbst indicated she tried calling S.S. but never made contact, and did not consider S.S. as a placement as she thought Mother and S.S. did not have a good relationship. CPS Herbst made no inquiry whatsoever regarding Mother's cousin D.B. Upon taking over the case, CPS Herbst discontinued visitation assistance and did not reach out to establish any services in North Dakota for Mother. Less than a month after being assigned to the case and only eleven months since Child's removal, CPS Herbst executed an affidavit seeking termination of Mother's parental rights for failure to complete her treatment plan.

         ¶11 Mother recognized she had a drug problem and was unable to quit using drugs on her own. She felt she was not getting the help and support she needed to address this problem or to reunify with Child. Mother testified CPS Herbst told her that her only option was to leave her home in Williston and move to Billings. Mother advised CPS Herbst that she would have to sell her home to afford to move to Billings. Mother felt CPS Herbst was working against her and requested she be assigned a different CPS worker. Mother sold her trailer home and moved to Billings "[t]o fight [her] case and get clean." Upon her arrival in Billings, Mother contacted CPS Herbst, advised her where she was staying, and requested visitation. CPS Herbst advised Mother that she had a large caseload, did not have time to schedule visits, and had already filed for termination of Mother's parental rights.

         ¶12 The Department filed its Petition for Permanent Legal Custody and Termination of Parental Rights on September 18, 2017, only eleven months after its initial petition for EPS and only five months after Mother's treatment plan was put in place. The Department asserted Mother had abandoned Child, failed to complete her treatment plan, and the conduct or condition rendering her unfit, unable, or unwilling to parent was unlikely to change within a reasonable time. Hearing on the termination petition was set for December 11, 2017. On October 4, 2017, the District Court granted the Department's petition to extend TLC. In this order, the District Court stated that the permanency plan was in the best interest of the child. However, no permanency plan had yet been presented to the District Court. On October 12, 2017, one year after Child's removal, CPS Herbst executed an affidavit requesting a permanency hearing in which she indicated adoption as the only permanency option. A permanency hearing was then scheduled at the same time as the termination hearing. On November 15, 2017, Mother filed a motion to vacate the termination hearing on the basis that the court had just granted a six-month extension of TLC. The Department objected and the court did not rule on this motion. On December 4, 2017, the Department sought continuance of the termination hearing and it was re-scheduled to February 12, 2018, at 4:00 p.m.

         ¶13 After moving to Billings, Mother obtained an updated CD evaluation from Lisa Hjelmstad in October 2017, which again recommended outpatient treatment, and began attending treatment and self-help meetings. Thereafter, Mother underwent a psychological evaluation with Dr. Veraldi. CPS Herbst did not meet with Mother to go over Hjelmstad's or Veraldi's evaluation recommendations, assuming the evaluators would follow up with Mother. CPS Herbst ultimately did refer Mother to visits at Family Works[8] and Mother arranged for the drug patch through Posse Partners. Mother also enrolled in and completed all but the final session of her parenting course. Notwithstanding the gains Mother made from October through November 2017-once she was actually receiving some services-the Department continued its pursuit to terminate Mother's parental rights. Mother felt CPS Herbst was not trying to help her and no matter what efforts she made, the Department intended to terminate her parental rights. Near the time set for the termination hearing in December 2017, Mother took a trip to North Dakota. While there, she relapsed, resulting in her hospitalization. Shortly after being released from the hospital, in early January 2018, Mother moved to California, where her mother and step-father live. Upon doing so, she contacted Child's father who assured her he would step-up, work with the Department, and obtain custody of Child.

         ¶14 On February 5, 2017, the Department moved the court to take judicial notice of Mother's non-compliance with her treatment plan pursuant to In re M.C., 2017 MT 252, 389 Mont. 78, 403 P.3d 1266. Therein, the Department requested the court take judicial notice of written reports of experts and service providers-the psychological evaluation of Dr. Veraldi, CD assessments of Hjelmstad and McNamara, drug test results and other documents of Posse Partners, LLC., and visitation summaries and documents of Family Works-as the court had ordered such evaluations and services through Mother's treatment plan. The Department asserted these reports and services were admissible, over hearsay and foundational objection, pursuant to In re M.C. Mother sought continuance of the termination hearing as she needed additional time to respond to the Department's motion, the Department did not object, and the hearing was reset for March 19, 2019. Mother objected to the court taking judicial notice of the written reports of experts and service providers and admission of these reports to establish Mother's non-compliance with her treatment plan without testimony of the actual evaluators and service providers and without them being subject to cross-examination. Mother argued the Department's reliance on In re M.C. was misplaced, that this Court did not address basic foundational requirements resulting in Mother's inability to cross-examine the actual evaluators and providers, and that there was a difference between treatment plan tasks and evaluations and services. The District Court interpreted In re M.C. to require admission of documents and written reports of experts and service providers ordered as part of the treatment plan, over otherwise valid hearsay and foundation objections and took judicial notice of Mother's non-compliance with her treatment plan.

         ¶15 At the time of the March 19, 2018 termination hearing, attorney Scott Pederson, prior guardian ad litem in this case, appeared on behalf of the Department. Recognizing he had previously served as the guardian ad litem, he asked the court to continue the matter. The court reset the hearing to April 23, 2018.

         ¶16 After moving to California, Mother made significant gains in addressing her substance abuse and overall stability. By the close of the termination hearing on June 8, 2017, Mother had been substance-free five months, was residing in a sober living home, [9]was participating in intensive outpatient treatment and one-on-one counseling through a CARF-certified treatment facility, was attending AA/NA meetings five to six times per week, had started a Friday evening self-help meeting group, was maintaining full-time employment, had obtained a valid driver's license, was undergoing drug testing at both her sober living home and treatment facility, and had completed an online parenting course. Additionally, she had a sponsor and was working the 12-steps (currently at step four) and volunteering at Stanton Detox. She had completed anger management and felt she had much better ability to cope with anger and frustration. She felt she had a real support system with her mother, step-father, sisters, grandmother, great aunt, and cousins in the area.

         ¶17 Shortly after relocating to California, Mother contacted CPS Herbst and learned Child's father had not been in contact with the Department. Mother told CPS Herbst she wanted to continue to work with the Department. She requested assistance with transportation costs for visits, but CPS Herbst denied the request. She requested Skype visitation, but CPS Herbst denied this indicating it was not age-appropriate. CPS Herbst did not refer Mother for any treatment or services in California, did not pursue any potential family placements, did not pursue an ICPC, or provide any additional assistance to Mother. Mother testified she repeatedly tried to contact CPS Herbst, but CPS Herbst generally did not answer Mother's calls. As such, Mother primarily contacted CPS Herbst through email. Mother testified she emailed CPS Herbst that she had enrolled in an online parenting course. Mother provided CPS Herbst with the course details and completed lessons from the course. CPS Herbst did not respond and did not advise Mother she would not accept the online parenting course in satisfaction of the parenting class task required by Mother's treatment plan.

         ¶18 At the termination hearing held on April 23, 2018, and June 8, 2018, CPS Herbst contended the conduct or condition making Mother unfit, unwilling, or unable to safely parent was continued drug use and lack of movement forward on her treatment plan. She faulted Mother for only living in Billings for three months, and that she did so after the petition for termination had already been filed. CPS Herbst admitted she knew Mother was living in a sober house in California, attending NA/AA meetings, had a sponsor, was employed, had written Child, had requested visitation, and had identified potential ...

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