Matter of A.H L.M. J.M. YINC , 2015 MT 75 ( 2015 )

March 10 2015
DA 14-0225
IN THE SUPREME COURT OF THE STATE OF MONTANA
2015 MT 75IN THE MATTER OF:
A.H., L.M., and J.M.,
Youths in Need of Care.
APPEAL FROM: District Court of the Eighth Judicial District,
In and For the County of Cascade, Cause Nos. BDN 11-179, BDN 11-180,
and BDN 11-181
Honorable Julie Macek, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Johnna K. Sutton, Van de Wetering & Sutton, P.C., Missoula, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, C. Mark Fowler, Assistant
Attorney General, Helena, Montana
John W. Parker, Cascade County Attorney, Jennifer Ropp, Deputy County
Attorney, Great Falls, Montana
Submitted on Briefs: February 11, 2015
Decided: March 10, 2015
Filed:
__________________________________________
Clerk
Justice Laurie McKinnon delivered the Opinion of the Court.
¶1 T.M. (Mother) appeals from orders of the Eighth Judicial District Court, Cascade
County, terminating her parental rights to her three children, A.H., L.M., and J.M. We
affirm.
¶2 Mother presents the following issues for review:
1. Whether Mother’s due process rights were violated by delays in holding the
show cause, adjudicatory, and dispositional hearings.
2. Whether the District Court erred when it found that Mother failed to complete
her treatment plan and the condition rendering her unfit to parent was unlikely
to change within a reasonable time.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 The children involved in this proceeding are J.M., born in 2006, L.M., born in
2009, and A.H., born in 2010. T.T. is the father of J.M., A.A. is the father of L.M., and
F.H. is the father of A.H.1 The Department of Public Health and Human Services
(Department) received its first report concerning the children on July 6, 2011. At that
time, it was reported that L.M. had a bite mark on his thigh that appeared to be “adult
size.” A child protection specialist investigating the report was informed that L.M. had
been bitten by another child at day care.
¶4 A second report was received on July 11, 2011. The report indicated that J.M. had
bruises around her arms that resembled fingerprints. J.M. also had a bite mark on her
shoulder. When asked if her little brother bit her, J.M. replied that only F.H. bites her. A
safety plan was put in place instructing Mother to prevent the children from having
1
T.T. and A.A. could not be located during these proceedings. Their parental rights
were terminated on grounds of abandonment at a hearing on April 4, 2013. F.H. relinquished his
parental rights at that time. None of the fathers are participating in this appeal.
2
contact with F.H. During a follow-up interview on August 4, 2011, Mother said F.H. was
no longer living with her.
¶5 On the morning of August 9, 2011, the Department was called to Apple Tree
Daycare to investigate injuries to L.M. L.M. had extensive bruising on his left shoulder,
leg, and buttocks. A bruise on the back of his thigh resembled a hand mark. J.M. told
child protective specialists Mother was the only adult in the home. J.M. also reported
witnessing violence between F.H. and Mother, including an incident in which F.H.
pushed Mother into a table, causing the table to break. J.M. said Mother “pushes [F.H.]
and slaps him in the face.”
¶6 Mother was contacted about the injuries to L.M. and stated that J.M., who was
four years old at the time, caused the bruising by hitting L.M. with a toy paddle. The
children were later examined by pediatrician Dr. Michael Garver, who concluded that the
injuries could not have been caused by a four-year-old child. Dr. Garver also observed a
bruise on J.M.’s arm that looked like a bite mark and “seemed to be of adult size.”
Mother was interviewed by a detective from the Great Falls Police Department and
repeated that she believed J.M. had caused the injuries to L.M. She said J.M. had hit
L.M. with the paddle “45 times.” Mother then stated that she experiences “blackouts”
and that it was possible she had caused the injuries to L.M. during one of these episodes.
¶7 The Department removed the children from Mother’s care on August 9, 2011, and
filed a petition for emergency protective services, adjudication of the children as youths
in need of care, and temporary legal custody on August 15, 2011. A show cause hearing
was set for September 22, 2011. On September 2, 2011, the Department requested a
3
continuance because two of its key medical witnesses were unavailable on the hearing
date. The Department’s motion noted that Mother objected to the continuance. The
hearing was set for December 8, 2011, and then moved to November 10, 2011, when that
date became available on the court calendar. On November 9, 2011, the Department
requested a second continuance on the grounds that it had been unable to locate the
fathers of J.M. and L.M. and would need additional time to complete service by
publication. The motion does not indicate whether Mother was contacted or opposed the
request. The motion was granted the same day and the hearing was reset for
December 15, 2011.
¶8 Although Mother had objected to the September 2, 2011 motion to continue, she
did not file any subsequent objection to the delay in holding a show cause hearing, nor
did she verbally raise an objection or move to dismiss the petition during the
December 15, 2011 hearing. Testimony at the hearing indicated that the Department had
already contacted both Mother and F.H. in an attempt to initiate services, and that Mother
had in fact already completed a parenting education program and received visitation
through Healthy Mothers, Healthy Babies. The District Court adjudicated the children
youths in need of care and granted emergency protective services and temporary legal
custody. The District Court then set a dispositional hearing for February 9, 2012.
Mother did not object to the timing of the dispositional hearing. At the dispositional
hearing, Mother agreed to a treatment plan. The treatment plan required her to complete
a psychological evaluation, participate in domestic violence classes, sign all necessary
releases and contact the Department on a weekly basis, attend age-appropriate parenting
4
classes, complete an in-home parenting program, follow recommendations made by the
children’s service providers, maintain regular contact with the children, have enough
income to meet the children’s needs, and maintain a safe and stable home environment.
¶9 On September 4, 2012, the Department requested an extension of temporary legal
custody for six months to allow Mother more time to work on her treatment plan. In an
affidavit accompanying the petition, the child protection specialist then assigned to the
case noted that if Mother did not “make substantial progress in the next 2-3 months,” the
Department would file a petition for termination of parental rights. Mother did not object
to the extension of temporary legal custody. Noting that the case had already “been
open . . . way, way too long,” the District Court granted an extension of only 90 days, at
which time “either we should be in a position where it can be closed because of
compliance, or, if not complied with, then there will be a situation where . . . the State
will have to file its petition for termination.”
¶10 On December 6, 2012, Mother moved the District Court to order the children
returned to her care, stating that “[t]he children should be returned with the mother in this
case because Counsel feels that the Mother has completed enough of her treatment plan
to begin the reunification process.” On January 16, 2013, the Department filed a petition
to terminate Mother’s parental rights on the grounds that her treatment plan had not been
completed and the conditions rendering her unfit to parent were unlikely to change within
a reasonable time.
¶11 A hearing on Mother’s motion for reunification was held January 17, 2013. At
that hearing, child protection specialist Talisa Hides testified that although Mother had
5
attended counseling and parenting education sessions, she had not completed the mental
health portion of her treatment plan. She testified that there were concerns about whether
Mother was “really engaging” in counseling, rather than participating superficially.
Mother maintained only intermittent contact with the Department, and during many of
her conversations with Hides, “would yell and scream and swear.” Mother particularly
opposed moving the children to a new foster placement in another city, although it was
the only available placement where all three children could be together. Hides also
observed that Mother was no longer allowed to attend the children’s visits with Dr.
Garver due to her behavior in his office. Hides said Mother “continued to not accept
responsibility for her actions.”
¶12 Dr. Garver testified that L.M. “had some very . . . regressive-type activity where
he would act like a dog, and he was involved in biting both his sister and other children.”
Dr. Garver recounted an incident in which L.M., at age two, had attacked an infant. Dr.
Garver treated the infant, who “actually looked like she’d been mauled by a dog.” Dr.
Garver said L.M.’s behavior “was one of the most significant cases of traumatic child
abuse behavior that I’ve had to treat in my career.” L.M. improved significantly while in
foster care. Dr. Garver further testified that “these children were traumatized beyond
anything that I’ve ever seen before.”
¶13 The children’s counselor, Lisa Anderson Mangan, testified that L.M.’s behavior
had improved “tremendously,” to the extent that he was discharged from counseling.
Anderson Mangan testified that J.M. had made several disclosures to her regarding abuse
by Mother and F.H. J.M. said F.H. cut her on the area between her legs. J.M. also said
6
Mother “had touched her private parts and had allowed others to touch her private parts.”
J.M. was diagnosed with attention deficit hyperactivity disorder, reactive attachment
disorder, and post-traumatic stress disorder. Anderson Mangan believed J.M. would need
ongoing counseling.
¶14 Carrie Galvez, who provided foster care to J.M. and L.M. for approximately 15
months before they were moved to a new placement with A.H., also testified. Galvez
said that when L.M. entered care, “he had traits, characteristics of what one might
consider a dog where he’d be on all fours, he would bark, he would growl at you, he
would charge at you, he would try to bite you.” L.M. would also “dig[] through the
garbage, looking for food.” J.M. frequently masturbated, particularly while in the bath.
In response to this behavior, Galvez discussed with J.M. “private parts and who can touch
your private parts,” and “explained that a doctor can touch your private parts.” J.M.
responded, “[F.H.] touches my private parts.” J.M. exhibited a fear of running water in
the bathtub, describing one incident when Mother forgot to turn off the water and J.M.
thought she would drown, and another when Mother “began yelling at her” and
“submerged her head under water, and [J.M.] was crying and screaming bubbles.” J.M.
also disclosed to Galvez that L.M. was locked up in a dog kennel and fed dog treats.
Galvez noticed a “huge difference” in the children’s behavior while they were in her care.
¶15 At the conclusion of the hearing, the District Court found that “in order for the
Court to feel comfortable with a reunification, there needs to be more time that passes
here for additional time for the Mother to work on her issues.” The District Court said it
7
would need to hear testimony from Mother’s therapist regarding her progress before the
children could be returned.
¶16 The Department’s petition for termination of Mother’s parental rights was heard
on April 4, 2013. Dr. Susan Day, who performed Mother’s psychological evaluation,
testified that Mother was cooperative and forthcoming during the interview. Dr. Day
observed that Mother “[has] a lot of difficulty coping with everyday stress” and “tends to
externalize blame for her problems in her life.” Dr. Day further testified that Mother “has
a hard time identifying ways in which she can alter the course or take some responsibility
for what’s happened, particularly regarding her children.” Mother’s tendency to
externalize blame could prevent her from improving her functioning and judgment, which
Dr. Day believed could make the children vulnerable. Dr. Day recommended that
Mother participate in individual therapy for at least nine months.
¶17 Angela Meyers, Mother’s therapist, testified that Mother began attending a
domestic violence group facilitated by Meyers in February 2012. Mother was also
referred to Meyers for individual counseling, which she began in July 2012. Meyers
found that Mother made progress in some areas, but lacked insight and showed an
“inability to take responsibility for some of the events that led to involvement with the
Department at first.” Meyers found this concerning because “if she’s unable to take
responsibility for her behaviors . . . then it was pretty hard to change the behaviors . . . .”
Meyers reported that Mother had not yet attended the recommended number of individual
counseling sessions. Meyers concluded, “[T]here is compliance, there is good
8
attendance, for the most part, there is participation, but it doesn’t seem to have gone to a
deeper level, and I don’t know how to make that happen.”
¶18 Hides testified that Mother had completed some portions of her treatment plan.
Mother had received a psychological evaluation, but had not followed all of the
recommendations in that evaluation. Mother had remained in contact with the
Department, but their communications were often volatile. Mother completed parenting
education, supervised visitation, and obtained employment. Hides was still concerned,
however, that Mother had made minimal progress in therapy toward being able to change
her behavior. Additional witnesses testified that Mother had successfully completed two
parenting education programs.
¶19 The District Court stated that the case was a difficult one because Mother had
“substantially complied with her treatment plan” in many respects. The District Court
found that if Mother completed counseling for the recommended period, “she may well
be in a position to parent.” The District Court further observed that there had been “some
delay” in setting up counseling services for Mother. As a result, the District Court did
not find that the condition rendering Mother unfit to parent was unlikely to change within
a reasonable time. The District Court declined to terminate Mother’s parental rights,
allowing her additional time to complete the counseling portion of her treatment plan.
On May 1, 2013, temporary legal custody was extended for six months.
¶20 The Department continued to provide Mother with services including a second
psychological evaluation, therapy for J.M. to address her fears about returning to
Mother’s care, therapy for Mother to address past traumas and recognize safety threats to
9
her children, and increased visitation with the support of an in-home service provider.
On June 16, 2013, Mother was found driving a vehicle containing marijuana,
methamphetamine, and several items of paraphernalia. She was later charged with felony
possession of dangerous drugs. She did not notify the Department of the charges. On
August 24, 2013, the Department learned of the charges and confronted Mother. Mother
denied any involvement, but tested positive for marijuana use shortly thereafter. Mother
later admitted to her service providers that she was using marijuana daily for
self-medication.
¶21 On September 13 and 14, 2013, Mother had a two-day supervised visit with the
children. During the visit, L.M. pulled up his pant leg to show Mother a mark on his leg,
saying, “Look, this is where [F.H.] hit me with the hammer!” Mother responded, “[F.H.]
never hit you with a hammer.” Later that day, L.M. said, “Remember when we were
small and you used to put me in the dog cage?” Mother responded, “That never
happened. We never had a dog.” J.M. continued to exhibit sexualized behavior, which
Mother ignored. At a Family Group Decision Making meeting on September 23, 2013,
Mother did not acknowledge the Department’s concerns about her mental health and
ability to parent, stating that “everything is just fine.” Mother did not attend a visit with
the children scheduled for October 17 and 18, 2013, saying she was unable to take time
off from work. On October 31, 2013, the Department filed a second petition for
termination of Mother’s parental rights.
¶22 A hearing was held on the petition beginning January 30, 2014, and continuing on
February 20, 2014, and March 13, 2014. Counsel for Mother asked the court to take
10
notice of testimony presented at the previous termination hearing. Dr. Donna Veraldi
testified that she had performed a psychological evaluation of Mother on July 29, 2013.
Dr. Veraldi testified that Mother “didn’t understand how many things you have to do to
protect your children from harm.” With respect to the injuries to the children, Mother
“didn’t know who was doing it. Either she couldn’t see it, or she was in denial, or the
children couldn’t tell her, or she was making up excuses.” Mother reported to
Dr. Veraldi that she was good at managing her emotions, but Dr. Veraldi “felt that she
had a lot of emotional instability, mood instability.” Mother was “motivated to present
an unrealistically positive image of herself” and dealt with her problems through
avoidance and denial. Dr. Veraldi concluded, “And when she is so defensive and doesn’t
seem to have a lot of insight about what was done to her children, you get really
concerned about her being able to protect her children in the future but also help her
children heal from the damage of being in the situation.”
¶23 Meyers testified that Mother’s attendance at therapy was inconsistent. Of 53
sessions made available, Mother attended 34. Like Dr. Veraldi, Meyers testified that
Mother’s self-reports were positive, but “information that I was receiving from
caseworkers . . . was kind of conflicting, that there were anger outbursts and
inappropriate conflict.” Mother stopped attending therapy sessions when she told Meyers
“that she felt she was done with counseling, and she had met her treatment goals.”
Meyers testified that during their sessions, however, “there was still no acknowledgment
of any of the abuse . . . towards her children, even as we tried to look at [the] kids’
perception of the abuse, rather than whether it actually happened.” Mother believed that
11
no abuse had occurred, but that the children had been persuaded—perhaps by the
Department or their foster parents—to claim they had been abused.
¶24 Additional testimony was heard from Hides, Drs. Garver and Day, Detectives Tom
Lynch and Derek Mahlum, visitation supervisor Jill Miller, and caseworker Randi Rains.
J.M. also testified in camera. At the conclusion of the hearing, the District Court
observed that
the most important goal of the treatment plan . . . was that of the Mother’s
ability to come to terms with the needs of her children, to make any
acknowledgment that the children had suffered as a result of their
allegations of sexual abuse, emotional abuse, viewing domestic violence,
and being the subject of violence themselves . . . .
The District Court stated that despite giving Mother “every benefit of every doubt” at the
April 4, 2013 hearing, Mother had since proven “unable and unwilling to internalize the
counseling that she has received in order to understand the needs of her children,
acknowledge the fact that these children have been sexually abused, they have been
physically abused, they did witness domestic violence.” The District Court terminated
Mother’s parental rights on the grounds that Mother had not successfully completed her
treatment plan and the condition rendering her unfit to parent was unlikely to change
within a reasonable time.
STANDARDS OF REVIEW
¶25 We review a district court’s decision to terminate parental rights for abuse of
discretion. In re D.B., 2007 MT 246, ¶ 16, 339 Mont. 240, 168 P.3d 691. Findings of
fact are reviewed for clear error and conclusions of law are reviewed for correctness. In
re K.J.B., 2007 MT 216, ¶ 23, 339 Mont. 28, 168 P.3d 629. A parent’s right to the care
12
and custody of a child is a fundamental liberty interest, which must be protected by
fundamentally fair procedures. D.B., ¶ 17. “We will not reverse a district court’s ruling
by reason of an error that ‘would have no significant impact upon the result.’” In re
H.T., 2015 MT 41, ¶ 10, 378 Mont. 206, ___ P.3d ___ (quoting In re J.C., 2008 MT 127,
¶ 43, 343 Mont. 30, 183 P.3d 22).
DISCUSSION
¶26 1. Whether Mother’s due process rights were violated by delays in holding the
show cause, adjudicatory, and dispositional hearings.
¶27 A show cause hearing must be held within 20 days of the filing of an initial child
abuse and neglect petition, unless otherwise stipulated by the parties or unless an
extension of time is granted by the court. Section 41-3-432(1)(a), MCA; In re L.N.,
2014 MT 187, ¶ 15, 375 Mont. 480, 329 P.3d 598. An extension may be granted only
upon a showing of “substantial injustice,” and must consider the best interests of the
child. Section 41-3-432(1)(c), MCA. A child may be adjudicated a youth in need of care
either at the show cause hearing, by stipulation of the parties, or at a separate
adjudicatory hearing held within 90 days of the show cause hearing. Sections
41-3-432(9), -434(1), -437(1), MCA. A dispositional hearing must be held within 20
days after the entry of an adjudicatory order, unless otherwise stipulated by the parties or
ordered by the court. Section 41-3-438(1), MCA. The court may grant an exception to
this time limit only in cases of newly discovered evidence, unavoidable delay, or
unforeseen personal emergency. Section 41-3-438(1), MCA. If the applicable time
13
limitations are not met, the court must order an appropriate remedy that considers the best
interests of the child. Section 41-3-438(7), MCA.
¶28 Although we have often stated that statutory procedures must be strictly observed
in cases involving abused and neglected children, we have also held that a district court
may protect a child’s best interests despite procedural errors. In re F.H., 266 Mont. 36,
39-40, 878 P.2d 890, 892-93 (1994). This approach is consistent with the Legislature’s
recognition that, even when administering strict timelines, a district court must be guided
by the best interests of the child and give primary consideration to those interests.
Sections 41-3-432(1)(c), -438(7), MCA. Further, we have also often stated that “‘we
will not fault a district court for failing to address statutory deficiencies that are not
brought to its attention during the proceedings because doing so would encourage
litigants to withhold objections rather than raise the issues appropriately in the district
court.’” In re A.S., 2006 MT 281, ¶ 35, 334 Mont. 280, 146 P.3d 778 (quoting In re
Declaring A.N.W., 2006 MT 42, ¶ 41, 331 Mont. 208, 130 P.3d 619).
¶29 On appeal, Mother argues the District Court committed reversible error when it
failed to hold a show cause hearing within 20 days of the filing of the abuse and neglect
petition. The show cause hearing was initially scheduled for September 22, 2011, 38
days after the petition was filed on August 15, 2011. The show cause hearing was not
actually held until December 15, 2011, four months after the petition was filed. A review
of the record indicates that Mother did not object to the initial September 22, 2011 date,
which was already 18 days outside the statutory timeframe. Mother did object to the
Department’s first motion for continuance, and the Department’s second motion does not
14
indicate whether Mother was contacted; however, she did not file a separate objection,
move to dismiss the petition, or raise an objection at the hearing itself. We will not fault
the District Court for failing to address the alleged statutory deficiency when Mother took
no action to draw the court’s attention to the issue during the time the hearing was
pending. A.S., ¶ 35. Moreover, we will not reverse due to an error that “‘would have no
significant impact upon the result.’” H.T., ¶ 10 (quoting J.C., ¶ 43). Given that the
proceedings continued for two and a half years due to several extensions of the time
allowed Mother to work on her treatment plan, it appears unlikely that expediting the
proceedings by approximately three months would have led to a substantially different
outcome.
¶30 Mother also argues the District Court erred when it failed to hold a dispositional
hearing within 20 days of the show cause hearing. The dispositional hearing was held
February 9, 2012, 56 days after the combined show cause and adjudicatory hearing and
36 days after the District Court issued its written adjudicatory order. At no time while
the dispositional hearing was pending or at the hearing itself did Mother raise an
objection to the delay, and thus we will not fault the District Court for failing to address
it. A.S., ¶ 35. Mother argues, on appeal, that she was prejudiced by being forced to
endure this delay before she was provided with services to begin working toward
reunification. The record belies this argument; at the show cause hearing, testimony
demonstrated that the Department had already contacted Mother to begin providing
reunification services, she had already completed a parenting education program, and
supervised visitation was already being provided.
15
¶31 Mother further argues that she was prejudiced by the Department’s delay in
arranging individual counseling services. While Mother began group work to address
domestic violence in February 2012, she did not begin individual counseling until July
2012. The delay in counseling services was the primary reason cited by the District
Court when it denied the Department’s first petition for termination of Mother’s parental
rights on April 4, 2013. Mother was permitted to continue counseling for nearly an
additional seven months before the Department filed its second petition for termination of
parental rights on October 31, 2013. Testimony at the later termination hearing revealed
that Mother continued to lack insight, deny the children’s needs, and present an
unrealistically positive image to her counselor. Further, Mother unilaterally decided she
was done with counseling and had met her treatment goals, notwithstanding her service
providers’ opinions to the contrary. Despite the initial delay, Mother was provided ample
opportunity to engage in counseling, with little demonstrable result. We will not reverse
the order of the District Court where the record clearly demonstrates that the provision of
an additional few months of counseling—which were later provided—“‘would have no
significant impact upon the result.’” H.T., ¶ 10 (quoting J.C., ¶ 43).
¶32 We take note of the District Court’s observation, made October 25, 2012, that the
proceeding had already been open “way, way too long,” and should be progressing
toward a resolution. That resolution did not come for another 16 months. Delays such as
this are problematic, both for parent and child, and point to the difficulty faced by the
Department in attempting to provide a parent with long-term treatment within the
relatively short statutory timeframes designed to promote a child’s interest in resolution
16
and permanency. The abuse in this case was severe: the children’s pediatrician testified
that these three children were the most deeply traumatized children he had ever seen, and
despite his 20 years of experience, he doubted that he had the skills necessary to provide
them with adequate care. Dependency and neglect proceedings allow the Department,
guided by its legal counsel and overseen by the court, to exercise discretion in choosing
how to accomplish the often competing goals of reunification, permanency, and serving
the best interests of the child. When the Department chooses to provide a treatment plan
in a case involving severe physical, sexual, and emotional abuse, as here, rather than
proceeding under the aggravated circumstances provision of § 41-3-423(2)(a), MCA, it
must be cognizant of statutory timeframes and the challenges inherent in choosing this
avenue. We are not unsympathetic to the Department’s dilemma in effectively assessing
this delicate balance of interests. Dependency and neglect proceedings demand time and
require skill, management, and oversight by all parties involved, including the court.
Nevertheless, the procedural requirements of Title 41 exist to establish the outer limits of
what the Legislature has deemed compatible with permanency and the best interests of
the child. While exceptions to timeframes may be statutorily provided for, they are just
that—exceptions—and may not become the normal course of these proceedings.
¶33 In spite of the delays in holding the show cause, adjudicatory, and dispositional
hearings, we are convinced that Mother’s due process rights were not violated by the
efforts of the Department and court to provide her with services, a treatment plan, and
time to work toward reunification with her children. Our conclusion is based on a review
17
of the record as a whole, which makes clear that Mother was provided ample opportunity
to make the changes necessary to become a fit parent.
¶34 2. Whether the District Court erred when it found that Mother failed to complete
her treatment plan and the condition rendering her unfit to parent was unlikely
to change within a reasonable time.
¶35 A district court may terminate the parent-child legal relationship upon a finding
established by clear and convincing evidence that the child has been adjudicated a youth
in need of care, an appropriate treatment plan has not been complied with or has not been
successful, and the conduct or condition of the parent rendering him or her unfit is
unlikely to change within a reasonable time. Section 41-3-609(1)(f), MCA. A parent
must fully comply with a treatment plan. In re J.A.B., 2015 MT 28, ¶ 27, 378 Mont. 119,
342 P.3d 35. Partial or even substantial compliance is not sufficient. J.A.B., ¶ 27. Even
if a parent has completed the required tasks, a treatment plan may be considered
unsuccessful if the parent has failed to accomplish the overall goals of the treatment plan.
In re D.F., 2007 MT 147, ¶ 36, 337 Mont. 461, 161 P.3d 825.
¶36 In determining whether the condition of the parent is unlikely to change within a
reasonable time, the court must consider the following non-exclusive factors: emotional
illness, mental illness, or mental deficiency of the parent; a history of violent behavior by
the parent; excessive use of drugs or alcohol by the parent; and any present
judicially-ordered long-term confinement of the parent. Section 41-3-609(2), MCA;
D.F., ¶ 23. The court must enter a finding that continuation of the parent-child
relationship will likely result in continued abuse and neglect, or that the condition of the
parent renders him or her unfit, unable, or unwilling to provide adequate care. Section
18
41-3-609(2), MCA. The court is to give primary consideration to the physical, mental,
and emotional needs of the child. Section 41-3-609(3), MCA. In assessing whether a
parent’s condition is unlikely to change, the district court should assess a parent’s past
and present conduct. In re D.H., 2001 MT 200, ¶ 32, 306 Mont. 278, 33 P.3d 616.
¶37 The goals of the treatment plan were, among others, “[t]o assist [Mother] in
acquiring the necessary skills to provide for her children’s safety, permanency, and
well-being,” and “[t]o instill long-term change and to provide lasting stability so that
further intervention by the [Department] is no longer needed.” Toward these goals,
Mother was required to complete tasks including completing a psychological evaluation
and following recommendations made as a result of that evaluation. Mother completed
two psychological evaluations, one with Dr. Day on April 4, 2012, and the second with
Dr. Veraldi on July 29, 2013. Both evaluations found that Mother had difficulty
managing stress and a tendency to externalize her problems. Mother consistently had a
difficult time identifying her responsibility for events in her life and ways in which she
could alter her behaviors. Drs. Day and Veraldi both concluded that Mother’s denial of
the significant problems faced by her children impeded her ability to repair the
relationship and protect her children in the future. Although Mother completed other
aspects of her treatment plan, and made progress by ending her relationship with F.H.,
she did not successfully achieve the long-term change necessary to ensure that she would
be able to provide for her children’s well-being. The District Court did not err in finding
that Mother failed to successfully complete her treatment plan.
19
¶38 One year and eight months passed from the time Mother began individual
counseling in July 2012 until the conclusion of the second termination hearing on
March 13, 2014. Her treatment plan was in effect for two years, and earlier testimony
indicated that she began participating in services even before the treatment plan was
approved. Mother was provided more than ample opportunity to make the changes
necessary to become a fit parent. Throughout this time, however, Mother continued to
deny that any abuse had occurred. When visiting the children, she continued to minimize
and dismiss their reports of abuse. Several witnesses testified that the children required
extensive ongoing counseling, a need which Mother appeared not to recognize. Instead
of acknowledging even her children’s perception of abuse, Mother remained steadfastly
committed to a course of denial and avoidance. The District Court appropriately
considered Mother’s emotional and mental condition in relation to her ability and
willingness to provide the children with adequate care, and gave primary consideration to
the needs of the children. The District Court did not err in finding that Mother’s
condition was unlikely to change within a reasonable time.
¶39 The orders of the District Court terminating Mother’s parental rights to A.H.,
L.M., and J.M. is affirmed.
/S/ LAURIE McKINNON
We Concur:
/S/ JAMES JEREMIAH SHEA
/S/ BETH BAKER
/S/ PATRICIA COTTER
/S/ MICHAEL E WHEAT
20