Submitted on Briefs: August 14, 2019
FROM: District Court of the First Judicial District, In and
For the County of Lewis And Clark, Cause No. BDN 2017-10
Honorable Michael F. McMahon, Presiding Judge
Appellant: Katy Stack, Stack & Kottke, PLLC, Missoula,
Appellee: Timothy C. Fox, Montana Attorney General, Katie F.
Schulz, Assistant Attorney General, Helena, Montana Leo
Gallagher, Lewis and Clark County Attorney, Anne Peterson,
Deputy County Attorney, Helena, Montana
T.M. (Mother) appeals an order entered by the Montana First
Judicial District Court, Lewis and Clark County, terminating
Mother's parental rights to her child, C.M. We affirm,
and address the following issue:
Did the District Court err by terminating Mother's
parental rights because the Department failed to provide
reasonable efforts to reunite Mother with C.M. as required by
§ 41-3-423(1), MCA?
AND PROCEDURAL BACKGROUND
C.M. is the natural child of Mother and E.M. (Father). C.M.
lived with Mother in the Helena area and had very little
contact with Father throughout her life. In January of 2017,
the Department of Public Health and Human Services (the
Department) removed C.M. from her Mother's care. Between
2013 and C.M.'s removal, the Department received several
reports expressing concern about Mother's care for C.M.,
including allegations of physical abuse, neglect, and drug
use by Mother. Ultimately, the Department removed C.M. based
on reports that Mother was using methamphetamines, had
exposed C.M. to an absconded sex offender from Oregon, and
planned to flee the state with the child. The Department
determined Mother physically neglected C.M. by providing
inadequate care for C.M.'s health, hygiene, and
On April 6, 2017, C.M. was adjudicated a youth in need of
care, and temporary legal custody was granted to the
Department. C.M. was initially placed in kinship care in
Helena, but was thereafter placed with Watson Children's
Center in Missoula. Mother remained in the Helena area
throughout the proceedings. The Department allowed Mother to
call C.M. at any time and allowed visitation in Missoula on
some holidays. Mother consistently called C.M. once or twice
At the time of removal, C.M. was eleven years old but was
mentally functioning at the level of a second-grade student,
and had been diagnosed with oppositional defiance disorder
and ADHD. C.M.'s case manager at Watson described C.M. as
socially immature, struggling with personal boundaries and
hygiene. Watson staff worked with C.M. to remedy these
behaviors to prepare her for future foster care placement.
C.M. attended therapy sessions at Watson and participated in
a life skills program in school to assist her development.
C.M.'s case manager testified C.M. had matured during her
time at Watson and was doing well in that placement.
On April 27, 2017, the District Court held a hearing on
Mother's proposed treatment plan. Mother, represented by
counsel, agreed to the plan's terms. The plan required
Mother to complete several tasks, including: maintaining
contact with the Department and C.M.; keeping the Department
advised her current address; completing a parenting course
and a domestic violence course; participating in a mental
health evaluation; and addressing her chemical dependency
through evaluation, treatment, and remaining chemically free.
The Department later indicated Mother's chemical
dependency was its primary concern.
However, on April 16, 2018, the Department filed a petition
to terminate the rights of both of C.M.'s parents,
alleging as to mother that she "has failed to
successfully comply with the treatment plan and her conduct
is unlikely to change within a reasonable time."
C.M.'s Father voluntarily relinquished his parental
rights, but Mother contested the termination of her rights.
On July 17, 2018, the District Court held a hearing on the
termination of Mother's rights. Several witnesses
testified regarding Mother's failure to comply with her
treatment plan. A collection specialist who administered
Mother's drug tests testified Mother provided 22 urine
samples over six months, each of which tested positive for
methamphetamines. The specialist also testified Mother had
failed to appear for her scheduled testing on several
occasions. Eric Gilmore, who completed Mother's chemical
dependency evaluation, testified that, although he was
initially inclined to recommend outpatient treatment for
Mother based on her answers in his in-person evaluation, he
ultimately recommended inpatient treatment. Gilmore explained
his recommendation was based primarily on the
"toxic" and "saturating" levels of
methamphetamines shown on Mother's urinalysis testing.