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In re C.B.

Supreme Court of Montana

December 24, 2019

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

          Submitted on Briefs: November 27, 2019

          APPEAL FROM: District Court of the Second Judicial District, In and For the County of Butte-Silver Bow, Cause No. DN 18-99 Honorable Robert J. Whelan, Presiding Judge

          For Appellant: Jennifer Dwyer, Law Office of Jennifer Dwyer, PLLC, Bozeman, Montana

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

          Eileen Joyce, Butte-Silver Bow County Attorney, Butte, Montana

          Mark Vucurovich, Attorney at Law, Butte, Montana

          OPINION

          MIKE McGRATH CHIEF JUSTICE.

         ¶1 R.T. ("Mother") appeals a March 7, 2019 Second Judicial District Court order terminating her parental rights of child ("C.B."). We affirm.

         ¶2 We address the following issues on appeal:

Issue One: Whether Mother was afforded fundamentally fair procedures comporting with her constitutional due process rights when the District Court terminated her parental rights to C.B.
Issue Two: Whether the District Court abused its discretion by terminating Mother's parental rights following its determination that circumstances surrounding Mother's prior terminations of her parental rights were relevant to her parenting of C.B.

         FACTUAL AND PROCEDURAL BACKGROUND

         ¶3 Mother has an extensive history with the Department of Health and Human Services ("Department"), including involuntary termination of four of her other children as a result of severe drug use, inability to provide safe and stable housing, and inability to provide adequate care. In February 2013, Mother's parental rights were terminated for J.T., R.T., and A.T. due to Mother's failure to adhere to her treatment plan for chemical dependency issues. Following termination, Mother gave birth to a fourth child, I.T., who was born addicted to drugs. The court ordered that preservation or reunification services did not need to be provided to Mother due to the three previous terminations. On May 20, 2014, Mother had her parental rights of I.T. terminated.

         ¶4 On October 24, 2017, Mother gave birth to C.B., who was fathered by S.B. ("Father"), a different birth father than that of her previous children. At the time of C.B.'s birth, Mother tested positive for THC. However, a cord stat[1] performed on C.B. returned negative for drugs. Mother was otherwise deemed to be sober, addressing mental health issues, and able to meet the needs of C.B.

         ¶5 On November 19, 2018, law enforcement and probation officers conducted a search of a residence inhabited by Mother, Father, and C.B. Law enforcement discovered a syringe filled with an unknown substance located on a television stand inside the home. Father was arrested for possession of methamphetamine and other miscellaneous crimes. Mother admitted ongoing methamphetamine use to law enforcement. When Child Protection Specialist Jodi Burk arrived at the residence, law enforcement informed Burk that Mother was to be arrested for misdemeanor criminal contempt and misdemeanor possession of drug paraphernalia.

         ¶6 When Burk entered the home, she noted that it was "trashed" and posed a safety hazard to C.B. Burk observed clothes piled on the couch, clothes and garbage on a bed, food, garbage, and dirt on the floor, and dirty dishes on the counters. Burk asked Mother about the syringe, and Mother replied that it belonged to Father. However, Mother admitted that she continued to use methamphetamine but not around C.B. Burk informed Mother that it was her obligation to keep C.B. safe and told her that she was taking C.B. into custody. Burk told Mother to come to the office and speak to her when she was released from jail in order to discuss options regarding C.B. Mother was taken to jail but was not drug tested.

         ¶7 C.B. was placed in foster care. Soon after, it was discovered C.B. had not seen a doctor since March 2018, five months after birth, and was behind on immunizations. Burk also learned of Mother's prior termination of parental rights. Mother did not go to Burk's office upon release from jail. On November 27, 2018, the Department filed abuse and neglect proceedings against the parents of C.B. in the Butte-Silver Bow County District Court. The Department sought temporary legal custody ("TLC") of C.B. with respect to Father.[2] With respect to Mother, the Department sought EPS, a determination that preservation or reunification services need not be provided, permanent legal custody ("PLC"), and termination of Mother's parental rights.[3] The Department explained in its petitions that it had ...


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