IN RE: L.A.O.-B. (2024)

¶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 K.O. (Mother) appeals an order of the Fourteenth Judicial District Court, Musselshell County, terminating her parental rights to L.A.O.-B. and granting permanent legal custody to the Montana Department of Public Health and Human Services, Child and Family Services Division (CFS). We affirm.

¶3 The procedural and factual background of this case is complex, spanning nearly two and a half years. L.A.O.-B. was born in 2019. Mother has a history of substance abuse and relapsed after the suicide of L.A.O.-B.’s father in June 2021. On October 4, 2021, CFS received a report that L.A.O.-B. was, or was in danger of being, abused and/or neglected. The confidential report stated that Mother and L.A.O.-B. were taken to the hospital after Mother and another person were observed running erratically through traffic on I-90. Mother admitted to active alcohol, marijuana, and methamphetamine use. L.A.O.-B. was placed under the care of her maternal grandmother, K.P. (Grandmother).

¶4 CFS filed its initial Petition for Emergency Protective Services and Temporary Investigative Authority on December 7, 2021. A show cause hearing was initially set for December 27, but continued to January 11 and then February 7 because the Office of the Public Defender had not yet assigned counsel for Mother. At the February 7 hearing, CFS informed the District Court that it was amending its petition to a Petition for Emergency Protective Services, Adjudication of Child as Youth in Need of Care, and Temporary Legal Custody. To ensure Mother's due process rights, the hearing was continued to February 22. Mother did not appear at the February 22 hearing and did not object to the relief sought. Based on Mother's admitted use of methamphetamine with L.A.O.-B. in the vehicle, past drug use, and continued drug use as evidenced by testing since October, the District Court adjudicated L.A.O.-B. a Youth in Need of Care and granted CFS temporary legal custody.

¶5 CFS Child Protection Specialist Michaela Viviano (CPS Viviano) developed a treatment plan which was filed with the District Court on June 21, 2022. Most pertinently, the treatment plan required Mother to take a parenting class, attend parenting time, complete a chemical dependency evaluation, remain sober and comply with drug testing, develop a relapse prevention and safety plan, complete a mental health evaluation, engage in individual therapy, attend anger management classes, find safe and stable housing, secure employment or other income, report any contact with law enforcement, and stay in weekly contact with CPS Viviano, among other requirements.

¶6 On August 23, 2022, CFS filed a Petition for Extension of Temporary Legal Custody for additional time for Mother to complete the treatment plan. The hearing was continued to October 31. At the hearing, CPS Viviano testified that Mother had recent positive drug patches and had not completed a chemical dependency evaluation. CPS Viviano testified that Mother had completed a mental health evaluation and was in individual therapy, and was doing well in parenting classes and visitation. Mother stipulated to the extension of temporary legal custody without agreeing to the facts underlying the petition, and the District Court granted the six-month extension. In January 2023, CFS presented its permanency plan for reunification of L.A.O.-B. with Mother within six months to a year. Mother did not object and the District Court approved the plan.

¶7 Ultimately, however, CFS filed a Petition to Terminate Parental Rights on May 2, 2023, based on Mother's noncompliance and/or lack of success with the treatment plan and evidence that Mother's conduct and conditions rendering her unfit were unlikely to change within a reasonable time. A hearing was originally set for May 23, but due to a number of motions not relevant to this appeal, it was ultimately held during a three-day period spanning November 17, 2023; December 7, 2023; and February 6, 2024. For clarity, this Court organizes the treatment plan categories and underlying facts as follows:

1. Parenting Tasks/Goals

¶8 When proceedings began, L.A.O.-B. and Mother both lived with Grandmother and continued to do so under an in-home care plan. However, on a January 2022 visit, CFS learned that Mother had failed to return home or visit L.A.O.-B. for 20 days, showed continued methamphetamine use, and had an earlier incident where L.A.O.-B. accidentally discharged a weapon from Mother's lap. These factors led CFS to request Mother move out of the home in January 2022. Mother had daily visitation until March 22, when Mother had an altercation with Grandmother. It is unclear what the visitation schedule was, if any, between this incident and supervised visitation beginning in June.

¶9 CPS Viviano arranged for supervised off-site visitation through a provider, Growing Together, beginning in June 2022. Mother successfully maintained these visits through February 2023, at which point CFS transitioned to unsupervised visits. After reports that Mother was out of compliance with aspects of her treatment plan, CFS switched back to supervised visits with Growing Together in April 2023. Mother then began a series of unexcused absences from visitation time that led to Growing Together closing Mother's case on July 26, 2023. After Growing Together closed the case, CFS arranged for one of its social service technicians to travel over an hour one-way to facilitate visitation. Mother continued to cancel or fail to schedule visitations for various reasons, including that she was out of town for a funeral, that her phone had fallen in mud, that she had food poisoning, that her brother's dog's nose was bleeding, that her hand was numb, and that she was stuck in her driveway. L.A.O.-B.’s teachers, therapist, and visitation supervisor testified that Mother's erratic behavior had an observable effect on L.A.O.-B.’s health and welfare.

¶10 Mother did, however, successfully complete parenting classes and an anger management class.

2. Mental Health and Chemical Dependency Evaluation/Counseling

¶11 In accordance with the treatment plan, Mother received a chemical dependency evaluation at the Roundup Mental Health Center/Journey Recovery on August 24, 2022. She was diagnosed with Amphetamine Use Disorder, severe; and Alcohol Use Disorder, severe. The evaluation recommended Level I outpatient treatment and noted her relapse potential as high. At the evaluation, Mother indicated she would meet with a counselor.

¶12 Mother missed or cancelled 6 of 14 scheduled appointments with the Roundup Mental Health Center from March 3, 2022, to September 13, 2022. When CPS Viviano questioned Mother about her appointments, Mother stated that she was making her appointments in Roundup and meeting with Dustin Duke at the Rimrock Treatment Center in Billings. Records presented at the hearing showed Mother met with Duke four times during summer 2022 before her file was closed.

¶13 In January 2023, Mother began seeing Dr. Tamara Greeling, Ph.D., LCPC, LAC. Dr. Greeling administered an assessment for chemical dependency and trauma therapy. She referred Mother to a psychiatrist, believing that Mother needed to be stabilized on medication to effectively engage in therapy. Mother engaged in Eye Movement Desensitization and Reprocessing (EMDR) therapy with Dr. Greeling, but her attendance was inconsistent. Dr. Greeling testified that Mother would attend regularly for a period of time, request a letter for CFS, and then begin attending sporadically again. Dr. Greeling reported these attendance concerns to CFS in April 2023. Nonetheless, Mother completed EMDR therapy in August 2023, at which point Dr. Greeling recommended Mother continue with Dr. Greeling and transition into chemical dependency treatment. Mother declined, stating that she had already completed chemical dependency treatment with Rimrock.

¶14 Mother sought psychiatric treatment from Jessica Hurlocker, PMHNP, beginning in May 2023. Mother received medication-assisted treatment for ADHD, anxiety, trauma, and depression.

¶15 Mother began attending weekly NA meetings the week before the termination hearing began. At the termination hearing, Mother testified repeatedly that she did not believe she had issues with substance abuse. On December 27, 2023, Mother obtained an additional chemical dependency evaluation from a different evaluator diagnosing her with Cannabis Use Disorder, moderate; Stimulant Use Disorder (methamphetamine, non-IV use), moderate; and Alcohol Use Disorder, moderate. Like the other evaluators, they recommended Level 1 outpatient treatment.

3. Substance Abuse Testing/Sobriety

¶16 Mother began random weekly urinalysis testing in October 2021. Mother tested positive for the presence of methamphetamine on October 21, 2021; November 24, 2021; December 9, 2021; March 22, 2022; and May 18, 2022. A sample taken on December 8, 2021, was determined to be diluted and Mother's friend later testified that Mother had asked her to obtain a product to “purify” urine to evade the test's accuracy. Around May 2022, CPS Viviano took over the case and recommended sweat patch testing through the Friedel Clinic in Billings. Sweat patch testing allows for continuous drug testing; the patch is applied and removed by the clinic on a set schedule and detects any drug usage during the time it is worn. Mother began sweat patch testing in July 2022 and tested positive for methamphetamine on July 21, July 29, August 5, and October 2 patches. For each patch from October 2022 through February 2023, Mother tested negative for methamphetamine and positive for THC. Mother was disenrolled from the testing program in February 2023 for noncompliance with program requirements when she failed to appear to have a patch removed. Mother paid for four additional urinalysis tests during 2023, all of which were negative. During the termination hearing, CFS requested Mother submit to a hair follicle test. Mother refused due to concerns that the hair follicle would show secondhand exposure to methamphetamine.

4. Other Legal Incidents

¶17 In March 2022, Mother and Grandmother were in an altercation and Mother was cited with partner/family member assault. A Sergeant from the Musselshell County Sheriff's Office testified that Mother had approximately monthly interaction with law enforcement from that time, ranging from calls for service and traffic offenses to more serious incidents. Two days before the termination hearing began, law enforcement found Mother and a companion off-road on state land behaving strangely, under the influence of marijuana, and with a firearm outside the vehicle that had been run over. Also, during the pendency of the termination hearing, Mother was charged with Burglary of a golf course where she stole items including computers and a toolbox.

¶18 Based on the foregoing facts, the District Court found that Mother had not substantially complied with requirements of her treatment plan, focusing particularly on her failures of communication and her failure to engage in meaningful chemical dependency treatment. The District Court found that Mother was unlikely to change her conduct or condition within a reasonable time and that clear and convincing evidence established that terminating Mother's parental rights was in L.A.O.-B.’s best interests.

¶19 Mother appeals based on two issues. First, she contends that the District Court failed to follow statutory timelines amounting to a deprivation of due process. Second, she contends that the District Court abused its discretion in terminating parental rights by finding that she was unlikely to change in a reasonable amount of time because CFS did not provide reasonable efforts towards reunification.

¶20 This Court has plenary review over whether a parent was denied their right to due process. In re C.B., 2019 MT 294, ¶ 13, 398 Mont. 176, 454 P.3d 1195. A district court's decision to terminate parental rights is reviewed for abuse of discretion. In re D.B., 2007 MT 246, ¶ 16, 339 Mont. 240, 168 P.3d 691. A district court abuses its discretion when it acts “arbitrarily, without conscientious judgment, or in an unreasonable fashion that results in substantial injustice.” In re Z.N.-M., 2023 MT 202, ¶ 10, 413 Mont. 502, 538 P.3d 21.

¶21 We review a district court's findings of fact for clear error and its conclusions of law for correctness. In re C.B., ¶ 13. A factual finding is clearly erroneous if it is not supported by substantial evidence, if the district court misapprehended the effect of the evidence, or if a review of the record leaves this Court with the definite and firm conviction that a mistake has been made. In re C.B., ¶ 13.

¶22 The “natural parent's right to care and custody of a child is a fundamental liberty interest” triggering the protections of the Due Process Clause of the Fourteenth Amendment. In re C.J., 2010 MT 179, ¶ 26, 357 Mont. 219, 237 P.3d 1282. “Fundamental fairness and due process require that a parent not be placed at an unfair disadvantage during the termination proceedings.” In re T.C., 2008 MT 335, ¶ 16, 346 Mont. 200, 194 P.3d 653. The key components comprising fundamentally fair proceedings are notice and an opportunity to be heard. In re C.B., ¶ 18.

¶23 Mother points to two instances where she alleges the District Court failed to adhere to the statutorily prescribed timeline, the cumulative effects of which violated her due process rights. The first alleged statutory violation was the delay between the initial petition filed on December 7, 2021, and the show cause hearing held on February 22, 2022. Under § 41-3-432(1)(a), MCA, a court must hold a show cause hearing within 20 days of the filing of the initial petition “unless an extension of time is granted by the court.” “The court may grant an extension of time for a show cause hearing only upon a showing of substantial injustice and shall order an appropriate remedy that considers the best interests of the child.” Section 41-3-432(1)(c), MCA. Here, the hearing was originally set for December 20, well within the statutory period. The first two continuances were because Mother had not yet been assigned counsel. Mother did not object at least to the first continuance,¹ and each time, the District Court found good cause. At the February 7 hearing where CFS informed the District Court it was amending its petition, Mother's counsel raised some concern about the delay. But the District Court specifically took Mother's due process rights into account, stating,

Due process would further dictate that [M]other have an opportunity to receive a copy of [the forthcoming amended petition] and review it together with any discovery with her counsel to decide whether she wants a contested hearing or to stipulate or something in between.

Indeed, it would have been a likely due process violation to conduct the show cause hearings without the continuances, as Mother would have either been unrepresented or uninformed as to the scope of the proceedings, depriving her of the requisite notice and opportunity to be heard.

¶24 Next, Mother points to the amount of time CFS took to submit the treatment plan. Under § 41-3-443(7), MCA, “[a] treatment plan must be ordered by no later than 30 days after the date of the dispositional hearing,” which in this case was the February 22 show cause hearing, where Mother stipulated to adjudication of L.A.O.-B. as a youth in need of care. A proposed treatment plan was in fact ordered as part of the District Court's written findings in its February 24 order (“CFS is further ordered to provide parents’ attorneys with the parents’ proposed treatment plans.”). The treatment plan was signed by Mother and her counsel on June 14 and 15, respectively, approved by the District Court on June 20, and filed by the District Court on June 21. At no point did Mother object to this delay. “We will not put a district court in error for an action to which the appealing party acquiesced or actively participated.” In re A.A., 2005 MT 119, ¶ 26, 327 Mont. 127, 112 P.3d 993.

¶25 Mother does not argue that either of these delays, on their own, constitute a violation of due process. Rather, Mother argues that the cumulative effect of these delays creates substantial injustice, which results in a violation of due process. Mother asserts that she was “prejudiced by the extensive length of [CFS's] involvement in the case before attending a hearing, the lack of a formal treatment plan until seven months after the child had been removed, and [CFS's] failure to provide reasonable efforts.” In support, Mother points to the District Court's reference to the duration of the case in its order terminating parental rights and its citation to § 41-3-422(14)(b), MCA (presumption that termination of parental rights is in the best interests of the child if a child has been in foster care for 15 of the last 22 months). But “[f]or a parent to establish a claim for violation of due process, he or she must demonstrate how the outcome would have been different had the alleged due process violations not occurred.” In re C.B., ¶ 18. The District Court's decision made reference to the duration of the proceedings in that Mother had ample time to fully comply with her treatment plan. But duration was far from the only evidence supporting the District Court's findings and conclusions. Mother cannot prove that the outcome would have been different had these delays not occurred, and we therefore hold that her due process rights were not violated.

¶26 We turn now to Mother's argument that the District Court abused its discretion by terminating her parental rights when CFS failed to make reasonable efforts as required by § 41-3-423(1), MCA. Termination of parental rights is appropriate when clear and convincing evidence establishes that the child is an adjudicated youth in need of care and “(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.” Section 41-3-609(1)(f), MCA. A determination of reasonable efforts is not a separate requirement for termination, but it may be a predicate for determining whether a parent's conduct or condition is likely to change. In re R.L., 2019 MT 267, ¶ 18, 397 Mont. 507, 452 P.3d 890.

¶27 In particular, Mother points to CFS's timing of the treatment plan; the acknowledged poor communication around the time the permanency plan was filed; and the decline in services after the termination petition was filed, including discontinuation of drug testing and refusal to provide gas vouchers. Even assuming arguendo that certain noncompliance issues could be excused by a lack of reasonable efforts, the extensive record taken as a whole is clear that Mother's behavior was unlikely to change. Over the course of two years and even throughout the termination hearing, Mother refused to accept her chemical dependency diagnoses or meaningfully pursue dependency treatment, including locally available treatment.

¶28 The inquiry as to whether a parent is unlikely to change within a reasonable amount of time is not “whether a parent has made progress or would make some progress in the future,” but rather “whether the parent is likely to make enough progress within a reasonable time to overcome the circumstances rendering [the parent] unfit to parent.” In re A.B., 2020 MT 64, ¶ 27, 399 Mont. 219, 460 P.3d 405. We agree with the District Court's finding that Mother had ample time and opportunity, even considering the earlier delays, to show enough progress but failed to do so.

¶29 We do not discount the positive progress that Mother made during the course of the proceedings and the efforts she made to comply with the treatment plan. The record evinces a lack of efficiency and clarity on the part of CFS, and stilted communication between involved parties. But it is not enough to show that the District Court abused its discretion in finding that the conduct rendering Mother unfit, namely her chemical dependency, was unlikely to change within a reasonable time. The District Court is affirmed.

¶30 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules, which provides for memorandum opinions. In the opinion of the Court, the case presents a question controlled by settled law or by the clear application of applicable standards of review.

¶31 Affirmed.

FOOTNOTES

1.   It is unclear whether Mother objected to the second motion for continuance. The District Court's second Order to Continue Show Cause Hearing struck through boilerplate “without objection by the parties” language. However, there is no record of a formal objection.

Justice Laurie McKinnon delivered the Opinion of the Court.

We Concur: JAMES JEREMIAH SHEA, J. BETH BAKER, J. INGRID GUSTAFSON, J. JIM RICE, J.