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In re B.N.

Supreme Court of Montana

August 6, 2019

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

          Submitted on Briefs: July 24, 2019

          District Court of the Eighth Judicial District, In and For the County of Cascade, Cause No. BDN-18-109 Honorable Elizabeth Best, Presiding Judge

          For Appellant: Julie Brown, Montana Legal Justice, PLLC, Missoula, Montana

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

          Joshua Racki, Cascade County Attorney, Valerie Winfield, Deputy County Attorney, Great Falls, Montana


          James Jeremiah Shea, 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 J.N. (Father) appeals the Order of the Eighth Judicial District Court, Cascade County, dismissing the dependency and neglect matter involving his son, B.N., and granting full custody of B.N. to B.A.D. (Mother). We affirm in part and reverse in part.

         ¶3 In March of 2018, the Montana Department of Public Health and Human Services (Department) intervened on behalf of B.N. (born in 2010) and his halfsibling, B.D. (born in 2017) because of concerns that Mother and her boyfriend were using methamphetamine and exposing the children to domestic violence. The Department initiated an investigation and Mother and her boyfriend were arrested for violating conditions of their parole. The Department placed B.D. in foster care. B.N. was allowed to remain in Father's custody where, according to Mother, he had been living since January 2018. On April 6, 2018, the Department petitioned for emergency protective services (EPS) and for temporary legal custody (TLC) of B.D. and B.N.

         ¶4 On May 3, 2018, the District Court held a show cause hearing. The County Attorney described Father as the non-offending parent and informed the District Court that Father had custody of B.N. Mother did not appear, but her counsel was present. Father appeared and did not state a position and did not move to dismiss the case. Father's counsel later explained that Father specifically asked counsel not to file a motion to dismiss because he wanted Mother to have access to services and receive the help she needed.

         ¶5 On June 7, 2018, the District Court held an adjudicatory hearing, at which it received evidence of Mother's recent Evaluation. Child Protection Specialists (CPSs) reported to the District Court that Mother was actively participating in all recommended treatment and maintaining good contact with the Department. The District Court also received testimony that B.N. continued to reside with Father. Hearing no objection, the District Court adjudicated both B.D. and B.N. as youths in need of care (YINC) and continued TLC. The District Court then set a dispositional hearing. In the interim, the Department prepared a treatment plan for Mother.

         ¶6 On June 28, 2018, the District Court held a dispositional hearing during which Mother stipulated to the proposed treatment plan and agreed that the District Court should grant TLC to the Department. Father was not present, but his counsel did not oppose the TLC request. The District Court approved Mother's treatment plan, granted TLC for a period of six months, and set a status hearing and a review hearing.

         ¶7 On July 24, 2018, following allegations of domestic violence and drug use in Father's home, CPS Deb Dreenan met with Father to obtain a hair sample from him and B.N. to test for exposure to dangerous drugs. In her affidavit, CPS Dreenen stated that Father did not initially comply. CPS Dreenan then called Father's parole officer, who convinced him to cooperate. Father was on probation for several offenses, and B.N. was removed from Father's care and placed with Mother that same day. The hair follicle test results for B.N. were negative, but Father tested positive for methamphetamine. Both children remained with Mother for a trial home visit. The children's guardian ad litem reported to the District Court that Mother was in Drug Treatment Court, that Mother had "taken all the steps she needed to in order to get her children back [and was] following her Treatment Plan and living in a supportive and controlled environment," and Mother exhibited a "very positive attitude." During this time, Father continued to visit B.N.

         ¶8 On September 27, 2018, the District Court held a status hearing. Father did not appear, and his counsel stated that he had not heard from Father in some time. The Department informed the District Court that B.N. and B.D.'s reunification with their Mother was going well. The Department reported Mother was successfully participating in drug treatment, had obtained employment, and felt she was doing very well. The Department stated that it had given Father a treatment plan to review, and later the Department filed a motion to approve Father's treatment plan, but no proposed plan was attached to the motion. The Department's Motion in Support of Treatment Plan for Father stated that Father should be required to complete chemical dependency and mental health evaluations, an anger management assessment, and participate in the daily parenting ...

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