Matter of J.O. YINC ( 2015 )

August 11 2015
DA 15-0092
Case Number: DA 15-0092
IN THE SUPREME COURT OF THE STATE OF MONTANA
2015 MT 229
IN THE MATTER OF:
J.O.,
A Youth in Need of Care.
APPEAL FROM: District Court of the Fourth Judicial District,
In and For the County of Missoula, Cause No. DN-13-55
Honorable Ed McLean, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Tracy Labin Rhodes, Attorney at Law; Missoula, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Brenda K. Elias, Assistant
Attorney General; Helena, Montana
Kirsten Pabst, Missoula County Attorney, Diane Conner, Deputy
County Attorney; Missoula, Montana
Submitted on Briefs: July 1, 2015
Decided: August 11, 2015
Filed:
__________________________________________
Clerk
Justice Michael E Wheat delivered the Opinion of the Court.
¶1 C.S. appeals from the order of the Montana Fourth Judicial District Court,
Missoula County, terminating her parental rights to J.O. We affirm.
ISSUES
¶2 We review the following issues:
1. Did the District Court err when it determined that the Department had made
reasonable efforts to provide reunification services?
2. Did the District Court abuse its discretion when it terminated C.S.’s parental
rights?
FACTUAL AND PROCEDURAL BACKGROUND
¶3 J.O. was born in 2007. His mother is C.S. J.O. was removed from C.S.’s care
twice as a result of C.S.’s criminal conduct, and C.S.’s parental rights to J.O. were
eventually terminated on January 20, 2015. Both the facts and proceedings related to
J.O.’s care and custody and the facts and proceedings related to C.S.’s criminal conduct
are relevant to this case, though only the case terminating C.S.’s parental rights is
currently before this Court.
C.S.’s Criminal History
¶4 In 2010, C.S. was serving a suspended sentence for issuing bad checks. When she
was discovered in possession of drug paraphernalia and after she tested positive for
several drugs, including opiates, methamphetamine, and morphine, the District Court
revoked her sentence. C.S. was committed to the Department of Corrections for five
years. While incarcerated, C.S. was placed at Passages Treatment Center, where she
2
completed drug and alcohol counseling. C.S. was then placed at a pre-release center until
October 2011, at which time she was conditionally released.
¶5 On May 3, 2013, C.S. was again discovered in possession of drugs and drug
paraphernalia. She had been found passed out in the parking lot of a casino. C.S.’s
probation officer authorized a search of C.S.’s person and her car, and police officers
discovered methamphetamine, marijuana, and drug paraphernalia.
¶6 As a result, C.S.’s conditional release from her issuing bad checks sentence was
terminated at a May 29, 2013 hearing. C.S. was also charged with and convicted of
possession of dangerous drugs and possession of drug paraphernalia. On March 4, 2014,
she was sentenced to several terms of years set to run concurrently with her issuing bad
checks sentence. C.S. was then sent to Passages Assessment and Sanction Center in
Billings.
¶7 At Passages, C.S. received a chemical dependency evaluation, and the evaluators
recommended that C.S. attend Elkhorn Treatment Center and then a pre-release center.
C.S. submitted an application to the Elkhorn program in May 2014. Her application was
rejected, however, based on letters that she wrote to the screening committee informing it
that she did not need treatment and that she would refuse to cooperate with treatment if
admitted. Her referral to pre-release was also rejected. The rejection included a
comment that C.S. posed an unacceptable level of risk. Based on her rejection from
Elkhorn and pre-release, C.S. was transferred to the Montana Women’s Prison in August
2014.
3
Facts Related to the Care and Custody of J.O.
¶8 Throughout C.S.’s incarcerations, the Department of Public Health and Human
Services (the Department) worked with C.S. to protect J.O. Following C.S.’s 2010
incarceration, the Department placed J.O. in foster care and then in the care of his
paternal aunt, D.H., who lived in Nevada. Following C.S.’s release from custody and
after she completed drug and alcohol counseling, the Department reunited J.O. and C.S.
After monitoring J.O.’s welfare, continuing to provide services to J.O. and C.S. for
several months, and observing C.S.’s compliance with her treatment plan, the Department
moved to dismiss its petition to terminate C.S.’s parental rights. The District Court
granted the motion on October 17, 2012.
¶9 Following C.S.’s May 3, 2013 arrest and incarceration, the Department resumed
working with C.S. and J.O. Initially, the Department and C.S. entered a voluntary
protective services agreement. However, when C.S.’s chosen caregivers were no longer
able to look after J.O., the Department filed a petition for emergency protective services,
temporary legal custody of J.O., and adjudication of J.O. as a youth in need of care.
¶10 Following an intervention conference, C.S. stipulated to adjudication of J.O. as a
youth in need of care and to the Department receiving temporary legal custody of J.O.
She also stipulated to the Department’s plan to return J.O. to D.H.’s care while it retained
temporary legal custody. On June 26, 2013, following C.S.’s stipulations, the District
Court adjudicated J.O. a youth in need of care and granted the Department temporary
legal custody.
4
¶11 Soon thereafter, the Department placed J.O. with D.H. In D.H.’s care, J.O.’s
emotional and physical health began to improve. He received emergency treatment to his
teeth, which were seriously decayed, and he began meeting with Jeffrey Davis, a licensed
social worker and child and family counselor. Unprompted, J.O. began referring to D.H.
and her husband as his mother and father, and he expressed his desire to stay in Nevada
and to be adopted by D.H. and her husband. When J.O. was given the opportunity to do
so he chose not to communicate via letter or telephone with C.S.
¶12 On August 14, 2013, the District Court approved a treatment plan for C.S., which
had been developed by the Department. The plan primarily required C.S. to address her
chemical dependency issues and to develop her parenting abilities. C.S. stipulated that
the plan was reasonable.
¶13 At some point prior to September 19, 2013, C.S. applied for placement at the
Carole Graham Home. The Carole Graham Home is a residential program for substance
abusing women and their children. C.S. hoped that her placement there would allow her
to be reunited with J.O. However, the Carole Graham Home denied C.S.’s application,
writing that “[C.S.] may not be a good fit for our program because [the Department] is
not in support of reunification between [C.S.] and [J.O.] at this time.”
¶14 On July 2, 2014, after C.S. was convicted of possession of dangerous drugs and
drug paraphernalia, the Department petitioned to terminate C.S.’s parental rights.
Following a hearing, the District Court granted the petition. It found that C.S. had
subjected J.O. to aggravated circumstances and that as a result the Department was not
required to make reasonable efforts at providing preservation or reunification services.
5
Nevertheless, it also decided that the Department had provided reasonable services to
C.S. It then decided that termination of C.S.’s parental rights was justified on two
grounds. First, it decided to terminate C.S.’s parental rights because she had subjected
J.O. to aggravated circumstances. Second, it decided to terminate C.S.’s parental rights
based on C.S.’s failure to comply with her treatment plan and its finding that the
condition rendering C.S. unfit was unlikely to change in a reasonable time. C.S. appeals.
STANDARD OF REVIEW
¶15 We review a district court’s decision to terminate parental rights for abuse of
discretion. In re L.N., 2014 MT 187, ¶ 12, 375 Mont. 480, 329 P.3d 598. We review the
court’s findings of fact for clear error and its conclusions of law for correctness. L.N.,
¶ 12.
DISCUSSION
¶16 1. Did the District Court err when it determined that the Department had made
reasonable efforts to provide reunification services?
¶17 C.S. argues that the Department did not provide reasonable reunification services
and that the District Court erred when it decided otherwise. She also argues that the
District Court erred by deciding that reunification services were not necessary. We hold
that the District Court did not err when it decided that the Department provided
reasonable reunification services. For this reason, we do not address C.S.’s argument
concerning whether reunification services were necessary.
6
¶18 Section 41-3-423(1), MCA, requires the Department to “make reasonable efforts
to prevent the necessity of removal of a child from the child’s home and to reunify
families that have been separated by the state.” It specifies that:
Reasonable efforts include but are not limited to voluntary protective
services agreements, development of individual written case plans
specifying state efforts to reunify families, placement in the least disruptive
setting possible, provision of services pursuant to a case plan, and periodic
review of each case to ensure timely progress toward reunification or
permanent placement.
Section 41-3-423(1), MCA, also states that “[i]n determining preservation or
reunification services to be provided and in making reasonable efforts at providing
preservation or reunification services, the child’s health and safety are of paramount
concern.” In fact, protection of children’s health and safety is the primary purpose of
Title 41, Chapter 3, MCA. Section 41-3-101(7), MCA.
¶19 Here, the Department provided many preservation and reunification services to
J.O. and C.S. before C.S.’s parental rights were ultimately terminated. After J.O. was
removed from C.S.’s care in 2010, the Department worked with C.S. to place J.O. with a
family member, and it eventually accomplished this goal by placing J.O. with D.H. It
also provided a treatment plan for C.S. When C.S. completed that treatment plan, it
reunited J.O. and C.S. It then continued to provide C.S. with services and trainings while
also monitoring J.O.’s welfare. After several months without incident, it decided that
reunification had been successful and dismissed its suit.
¶20 Following C.S.’s arrest and incarceration in 2013, the Department continued to
provide reunification and preservation services to C.S. Rather than immediately
7
removing J.O. from C.S.’s care, it entered a voluntary protective services agreement with
C.S. Pursuant to that agreement, J.O. was left in the care of C.S.’s housemate and J.O.’s
babysitter. Only once these parties could no longer care for J.O. did the Department
decide to place J.O. in foster care and then in the care of D.H. It determined that
placement with D.H. was the least disruptive setting possible, considering that J.O. had
already lived with D.H. during his first removal, that D.H. was a family member, and that
C.S. consented to this arrangement. After removing J.O. and placing him in D.H.’s care,
the Department worked with C.S. to develop a treatment plan so that she might address
her parenting and drug related issues and eventually be reunited with J.O. C.S. agreed to
this treatment plan, stipulating that it was reasonable.
¶21 The District Court decided that these services constituted reasonable efforts at
providing preservation and reunification services. We agree. As the District Court
concluded, the Department entered voluntary protective services agreements, written case
plans, and placed J.O. in the least disruptive setting possible. By the plain language of
§ 41-3-423(1), MCA, reasonable efforts may comprise such actions.
¶22 C.S., however, believes the Department failed to provide reasonable reunification
services in two ways. First, she claims that the Department prevented her placement for
treatment in the Carole Graham Home. Second, she claims that the Department
prevented phone contact between her and J.O. Nevertheless, we hold that the Department
made reasonable efforts at providing reunification services.
¶23 C.S. contends that if she was placed in the Carole Graham Home that J.O. could
have continued to live with her. She argues, therefore, that the Carole Graham Home
8
would have been the least disruptive placement and that the Department failed to make
reasonable reunification efforts by preventing her placement there. According to C.S.,
the Department prevented her placement at the Carole Graham Home by stating around
the time of C.S.’s application that C.S. was not ready for reunification with J.O.
Ostensibly the Department’s statement was the only thing that prevented C.S.’s
placement there.
¶24 Even if we take the foregoing to be true, we do not agree that the Department
failed to make reasonable efforts at providing reunification. When C.S. asked for
placement with J.O. at the Carole Graham Home, she was not simply asking for
reasonable reunification services. Instead, she was asking for J.O. to be placed in her
care. She was asking for actual reunification. The Department denied this request
because C.S. had not made progress on her treatment plan. Indeed, she had failed to
comply with substantial portions of the plan. By failing to comply with the treatment
plan, she had failed to satisfy the conditions that C.S., the Department, and the District
Court had agreed were necessary for the safe return of J.O. to C.S. See §§ 41-3-102(30)
and -443(2)(b), MCA. As the health and safety of J.O. was the Department’s paramount
concern and as C.S. had not demonstrated that J.O. could be safely returned to her care, it
was reasonable for the Department to oppose reunification at the time of C.S.’s request.
See § 41-3-423(1), MCA. The Department did not fail to make reasonable efforts at
providing reunification services by opposing C.S.’s placement.
¶25 The Department also did not fail to provide reasonable reunification services when
it did not provide phone contact between J.O. and C.S. C.S. argues that the lack of
9
phone contact with J.O. was improper given that her treatment plan required “therapeutic
contact” with J.O. However, the Department was not required to provide every
conceivable reunification or preservation service to C.S. It was instead required to make
reasonable efforts at providing reunification services while recognizing that the health
and safety of the child are its paramount concerns. Section 41-3-423(1), MCA.
¶26 Here, J.O.’s counselor, Davis, observed that J.O. had nightmares and was unable
to focus in school after speaking with his father on the telephone. J.O. also became
uncomfortable when discussing his parents or when anyone referred to C.S. as his
mother. When given access to letters from his mother, J.O. became uncomfortable and
had no interest in reading them. Based on these observations and in the interests of J.O.’s
emotional health, Davis recommended that J.O. be given the choice of whether or not to
have any phone contact with C.S. Given this choice, J.O. never chose to speak with C.S.
on the telephone.
¶27 In light of the concerns Davis identified regarding J.O.’s health and safety, and in
light of the other services it did provide, the Department was not required to provide C.S.
with phone contact with J.O. in order to make reasonable efforts at providing
reunification services. It bears repeating that J.O.’s health and safety were the
Department’s paramount concerns. The Department did not need to provide reunification
services that would put J.O.’s health or safety at risk. See § 41-3-423(1), MCA;
In re B.S., 2009 MT 98, ¶ 32, 350 Mont. 86, 206 P.3d 565 (“[T]he statutes give priority to
the best interests of the child as the primary and paramount statutory standard for
termination. . . . The best interests of the child take precedence over parental rights, and
10
the need for permanent placement in a loving and stable home supersedes the parents’
interests.”).
¶28 Moreover, even if the Department could have done more to facilitate therapeutic
contact between C.S. and J.O., the fact remains that C.S. failed to comply with other tasks
in the treatment plan. Phone contact with J.O. was not the only task standing in the way
of their reunification. As we concluded above, one of the ways the Department made
reasonable efforts to provide reunification services was by entering written case plans,
including a treatment plan, with C.S. Compliance with her treatment plan was ultimately
C.S.’s responsibility. See In re L.W.K., 236 Mont. 14, 19, 767 P.2d 1338, 1342 (1989).
¶29 We hold that the District Court did not err when it decided that the Department
made reasonable efforts to provide reunification services. For this reason, we do not
address C.S.’s additional argument regarding the District Court’s decision that
reunification services need not be provided.
¶30 2. Did the District Court abuse its discretion when it terminated C.S.’s parental
rights?
¶31 The District Court found that the grounds for termination identified in
§§ 41-3-609(1)(d) and -609(1)(f), MCA, were met, and it terminated C.S.’s parental
rights to J.O. for this reason. C.S. argues that several findings of fact justifying this
decision were not supported by substantial evidence and were, therefore, clearly
erroneous. We disagree. We hold that substantial evidence supports the District Court’s
findings that § 41-3-609(1)(f), MCA, had been satisfied. As this statute and these
findings provided an independently sufficient basis for the District Court to terminate
11
C.S.’s parental rights, we do not consider C.S.’s arguments concerning § 41-3-609(1)(d),
MCA. In re I.T., 2015 MT 43, ¶ 16, 378 Mont. 239, 343 P.3d 1192; In re S.T.,
2008 MT 19, ¶ 15, 341 Mont. 176, 176 P.3d 1054; see § 41-3-609(1), MCA.
¶32 According to § 41-3-609(1)(f), MCA, a court:
may order a termination of the parent-child legal relationship upon a
finding established by clear and convincing evidence . . . that . . . the child
is an adjudicated youth in need of care and both of the following exist: (i)
an appropriate treatment plan that has been approved by the court has not
been complied with by the parents or has not been successful; and (ii) the
conduct or condition of the parents rendering them unfit is unlikely to
change within a reasonable time.
When making this determination, “the court shall consider but is not limited to the
following: . . . (c) excessive use of . . . a narcotic or dangerous drug that affects the
parent’s ability to care and provide for the child; and (d) present judicially ordered
long-term confinement of the parent.” Section 41-3-609(2), MCA.
¶33 C.S. does not dispute that J.O. is an adjudicated youth in need of care or that either
she has not complied with her court-approved treatment plan or the treatment plan has
been unsuccessful. Instead, she only argues that there was not substantial evidence to
support the District Court’s finding that the conduct or condition rendering her unfit was
unlikely to change within a reasonable time.
¶34 In In re C.B., 2014 MT 4, 373 Mont. 204, 316 P.3d 177, we affirmed a district
court’s decision that a mother’s drug problems rendered her unfit and were unlikely to
change within a reasonable time. C.B., ¶¶ 22-23. We reasoned that the drug problems
had existed for over twelve years and that the mother had failed to address them, and had
12
even affirmatively resisted addressing them, despite being presented with the opportunity
to do so. C.B., ¶ 22.
¶35 Similarly, C.S. has drug problems that have persisted for years and that she has
failed to address despite opportunities to receive treatment. As the District Court noted,
C.S. was found in possession of dangerous drugs, including morphine and
methamphetamine, in 2010 and 2013. Both incidents led to her arrest and incarceration,
and between 2013 and the time the District Court terminated C.S.’s parental rights she
was continuously incarcerated. During this time, C.S. was given the opportunity to
address her drug problems. Yet, she sabotaged every treatment opportunity by stating in
her letters to the treatment program screening committees that she did not need treatment
and would refuse to cooperate with treatment programs. Based on these facts and their
similarities with In re C.B., there was substantial evidence for the District Court to find
that C.S.’s excessive use of a dangerous drug and her long term confinement—the
conditions rendering her unfit—were unlikely to change in a reasonable time.
¶36 Thus, the District Court’s finding that the conditions rendering C.S. unfit were
unlikely to change was not clearly erroneous. Based on this finding and the District
Court’s uncontested findings, the District Court was authorized by § 41-3-609(1)(f),
MCA, to terminate C.S.’s parental rights. As it complied with this statute, it did not
abuse its discretion by terminating C.S.’s parental rights. See In re J.C., 2003 MT 369,
¶ 18, 319 Mont. 112, 82 P.3d 900.
13
CONCLUSION
¶37 The District Court decided that the Department made reasonable efforts to provide
C.S. with reunification services. This finding was not clearly erroneous. The District
Court terminated C.S.’s parental rights based on the authority of § 41-3-609(1)(f), MCA.
We disagree with C.S.’s argument that one of the findings upon which this decision was
based—that the condition rendering C.S. unfit was unlikely to change within a reasonable
time—was not supported by substantial evidence. C.S. made arguments to this Court that
we do not address because our decisions on the arguments that we do address provide a
sufficient basis upon which to affirm the District Court’s decision. We affirm.
/S/ MICHAEL E WHEAT
We Concur:
/S/ MIKE McGRATH
/S/ PATRICIA COTTER
/S/ LAURIE McKINNON
/S/ BETH BAKER
14