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In re K.P.

Supreme Court of Montana

November 12, 2019

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

          Submitted on Briefs: September 25, 2019

          District Court of the Eighth Judicial District, In and For the County of Cascade, Cause No. ADN-18-69 Honorable Gregory G. Pinski, Presiding Judge.

          For Appellant: Tracy Labin Rhodes, Attorney at Law, Missoula, Montana

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

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

          OPINION

          Mike McGrath, Chief 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 R.M. ("Father") appeals from an Eighth Judicial District Court order terminating his parental rights to his child, K.P. We affirm.

         ¶3 On February 27, 2018, K.P. was placed in protective custody with the Montana Department of Public Health and Human Services ("Department"). On that day, the Department received a report that the apartment property manager-who was conducting unit inspections-discovered Father passed out in his apartment with drugs (white powdery substance) and drug paraphernalia (burnt pipe) present, while K.P., age 5, was asleep in his room. Father denied substance abuse but, after initially agreeing, refused to take a urinalysis test ("UA") upon the arrival of the technician. Father was taken into custody due to active warrants for his arrest.

         ¶4 On March 6, 2018, the Department filed a petition for emergency protective services ("EPS"), adjudication of a youth in need of care ("YINC") and temporary legal custody ("TLC"). In the petition, the Department outlined concerns related to substantial risk of physical neglect due to Father's ongoing substance abuse, lack of protective capacities, and inability to meet K.P.'s basic needs. On March 14, 2018, the District Court granted the Department's petition for EPS and TLC of K.P. and set a show cause hearing for April 11, 2018, on the Department's petition. On April 12, 2018, after the show cause hearing, the District Court issued an order maintaining the Department's TLC of K.P. On May 18, 2018, the District Court issued an order granting TLC and adjudicating K.P. as a YINC pending a dispositional hearing on June 6, 2018. Following that hearing, the District Court adopted the Department's proposed treatment plan for Father with an expected completion date of December 7, 2018, and granted the Department an extension of TLC for an additional six months. At the disposition hearing, counsel for Father did not object to the treatment plan or the deputy county attorney's statement that K.P.'s hair tested positive for methamphetamine. On September 10, 2018, the District Court, after learning of Father's failure to engage with the treatment plan, despite the Department's ongoing encouragement, ordered that continued placement was in the best interest of the child and set a review hearing date of December 5, 2018, later reset to January 17, 2019. With the exception of the April 11, 2018 show cause hearing, Father did not attend any of the above hearings but was represented by counsel.

         ¶5 On December 19, 2018, the Department filed a petition for permanent legal custody ("PLC") and termination of parental rights ("TPR"). The petition outlined that Father failed to comply with the ordered treatment plan, moved frequently from state to state without notifying the Department of his whereabouts, and failed to visit K.P. since the February 2018 removal. The petition also provided that K.P. expresses a great deal of fear when Father is mentioned and has been diagnosed with PTSD. Additionally, the Department alleged that the conduct or condition of the Father rendering him unfit was unlikely to change within a reasonable time because Father has failed to address the safety concerns that arose during the Department's involvement.

         ¶6 On January 28, 2019, after the review hearing on January 17, 2019, the District Court issued an order extending the Department's TLC and maintained a TPR hearing previously set for February 20, 2019. After the TPR hearing, which Father attended with counsel, the District Court ordered the termination of the parent-child legal relationship between Father and K.P. on March 4, 2019. Father appeals.

         ¶7 Father asserts several due process arguments related to the allegation that the Department and the District Court committed statutory, policy, and constitutional errors. First, Father claims that the Department violated state statute and its own policy by failing to: 1) file a removal petition within the statutory timeframe governed by § 41-3-301(6), MCA; 2) abide by § 202-3 of the Department's Montana Child and Family Services Policy Manual governing the administering of UAs; 3) move for an extension of the TLC within the statutory timeframe governed by § 41-3-442(2), MCA; 4) make reasonable efforts to avoid removal and achieve reunification governed by § 41-3-423, MCA; and 5) properly serve Father with the petition for termination.

         ¶8 Father also claims the District Court erred by: 1) relying on insufficient evidence to support adjudication of K.P. as a YINC; 2) failing to determine whether the Indian Child Welfare Act ("ICWA"), 25 U.S.C. §§ 1901-1963, applied; 3) failing to grant Father's request for a continuance of the TPR proceedings; 4) concluding that Father was unlikely to change and relying on insufficient evidence to terminate Father's parental ...


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