In re C.S.

400 Mont. 115

464 P.3d 66

2020 MT 127

In the MATTER OF: C.S., A Youth in Need of Care.

DA 19-0426

Supreme Court of Montana.

Submitted on Briefs: April 15, 2020

Decided: May 19, 2020

For Appellant: Jennifer Dwyer, Avignone, Banick & Williams, Bozeman, Montana

For Appellee: Timothy C. Fox, Montana Attorney General, Damon Martin, Assistant Attorney General, Helena, Montana, Joshua A. Racki ; Cascade County Attorney, Great Falls, Montana

Justice Ingrid Gustafson delivered the Opinion of the Court.

¶1 A.B.-A. (Mother) appeals from the termination of her parental rights to her child C.S. issued July 3, 2019, by the Eighth Judicial District Court, Cascade County. We affirm.¹

¶2 We restate the issues on appeal as follows:

1. Whether C.S. was properly determined to be an abused or neglected child; and

2. Whether the District Court abused its discretion in determining reunification efforts were not necessary and terminating Mother's parental rights in relation to C.S. due to chronic and severe neglect.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 Mother has a substantial history of chemical dependency issues requiring intervention from the Department of Public Health and Human Services, Child and Family Services Division (the Department). Prior to this cause, the Department had previously removed C.S. on three occasions. C.S. was first removed on May 8, 2015. Mother then completed a treatment plan and C.S. was returned to her and the cause was closed December 10, 2015. In May 2016, the Department received a report of domestic violence involving Mother, and C.S. was again removed from her care on May 5, 2016. Mother again completed a treatment plan and C.S. was returned to her care on April 10, 2017, and that cause was then closed. Within weeks, Mother relapsed on methamphetamine. C.S. was removed for a third time in June 2017. That cause was closed on August 31, 2018, after Mother completed inpatient treatment, and C.S. later returned to Mother's care. On December 5, 2018, the Department received another report alleging Mother was using methamphetamine and domestic violence was occurring in her home. C.S. was again removed from Mother's care.

¶4 On January 4, 2019, the Department filed its Petition for Emergency Protective Services (EPS), Adjudication of Youth as Youth in Need of Care (YINC), Request for Finding of No Reasonable Efforts and Motion for Permanent Legal Custody, Termination of Parental Rights and Request for Hearing, wherein the Department alleged physical neglect and sought a finding from the court that it be relieved of the obligation to provide reasonable efforts to preserve and reunify the family under § 41-3-423(2)(a), MCA.² The Department contended a treatment plan was not required as Mother met the criteria of § 41-3-609(1)(d), MCA, by subjecting C.S. to the aggravating circumstance of chronic, severe neglect, as provided in § 41-3-423(2)(a), MCA, by her continued pattern of relapse and domestic violence. Oddly, despite prior representations to the contrary in the Department's motions to close the prior causes and despite the CPS workers’ supporting affidavits to the contrary and return of C.S. to Mother's care following her completion of prior treatment plans, the State also alleged Mother had failed to successfully comply with her treatment plans previously ordered in her three prior DN cases—ADN-15-132, DDN-16-155, and BDN-17-185.

¶5 On January 7, 2019, Judge Pinski issued an Order to Show Cause, Granting EPS, Notice of Show Cause and Adjudicatory Hearing, finding probable cause to believe C.S. was abused or neglected or in danger of being so—based on Mother's admission to relapsing on methamphetamine and that domestic violence occurred in her home—such that immediate protection was required. On January 23, 2019, Judge Pinski held a joint show cause/adjudication/termination hearing. Mother stipulated to show cause but requested the termination hearing be continued. Judge Pinski then found, based on Mother's stipulation, there was sufficient probable cause and adjudicated C.S. as a YINC. Mother did not object to this adjudication. It was then agreed to transfer this case to Judge Best. Judge Pinski followed up with a written order of January 28, 2019. In that order, Judge Pinski found that Mother stipulated to adjudication of C.S. as a YINC; that C.S. was at substantial risk of physical neglect due to Mother's ongoing substance use, lack of protective capacities, and her inability to meet his basic needs; and adjudicated C.S. as a YINC. Mother was served with this order and did not file any objection or motion to amend the order based on her assertion she had only stipulated to show cause.

¶6 Judge Best assumed the cause and set hearing on the Department's petition for termination and request that it not be required to provide reasonable efforts toward reunification on February 14, 2019. Mother requested continuance of the hearing as she was enrolled in inpatient chemical dependency treatment at Montana Chemical Dependency Center (MCDC). The hearing was ultimately rescheduled to April 25, 2019. At hearing on April 25, 2019, the State acknowledged Mother had completed most of the MCDC program—having left after three weeks—and was engaged in chemical dependency treatment. Mother requested the matter be continued for six to eight weeks. The District Court then indicated it would hold the matter in abeyance until June 20, 2019.

¶7 At hearing on June 20, 2019, Mother's counsel asserted Mother understood there was no adjudication of C.S. as a YINC—as Mother had not stipulated to such—and the Department was going straight for termination. The District Court reserved ruling on whether reunification services were required until the end of the hearing. At hearing, the State and Mother presented evidence that Mother had arranged for her own chemical dependency treatment through MCDC and Misfits, Mother was in compliance with her treatment program, and Mother had been referred to anger management counseling and was committed to attending. Other than paying for the drug patch after Mother requested the Department to do so, the Department was minimally involved with Mother and not providing her other services. CPS Jessica Armstrong did acknowledge Mother was "very committed to attending counseling and anger management and doing what she needs to be doing. This is probably the most engaged I've seen her." The Department, however, based on Mother's prior repeating cyclical pattern—Mother's relapse, Department intervention, Mother's improvement, Department's dismissal, Mother's relapse—did not trust Mother could maintain the necessary abstinence from drug use to successfully parent over an extended period of time. CPS Armstrong testified Mother had not done or said anything this cycle that gave her reason to believe Mother had a better likelihood of maintaining long-term sobriety. CPS Armstrong testified Mother "does well under supervision, but once the Department is out of her life, she relapses again."

¶8 At the conclusion of the hearing, the District Court implicitly determined C.S. was an abused or neglected child, found the Department need not make reasonable efforts to provide preservation or reunification services due to Mother's chronic, severe neglect of C.S., and terminated Mother's parental rights to C.S. Mother appeals.

STANDARD OF REVIEW

¶9 This Court reviews a district court's decision to terminate parental rights for an abuse of discretion. In re B.J.J. , 2019 MT 129, ¶ 9, 396 Mont. 108, 443 P.3d 488 ; In re A.S. , 2016 MT 156, ¶ 11, 384 Mont. 41, 373 P.3d 848 ; In re K.A. , 2016 MT 27, ¶ 19, 382 Mont. 165, 365 P.3d 478. The Department has the burden of proving by clear and convincing evidence that the statutory criteria for termination have been met. In re B.J.J. , ¶ 9. In the context of parental rights cases, clear and convincing evidence is the requirement that a preponderance of the evidence be definite, clear, and convincing. In re B.J.J., ¶ 9 ; In re K.L. , 2014 MT 28, ¶ 14, 373 Mont. 421, 318 P.3d 691. This Court reviews a district court's findings of fact for clear error and conclusions of law for correctness. In re B.J.J., ¶ 9 ; In re M.V.R. , 2016 MT 309, ¶ 23, 385 Mont. 448, 384 P.3d 1058. "A factual finding is clearly erroneous if it is not supported by substantial evidence, if the court misapprehended the effect of the evidence, or if review of the record convinces this Court a mistake was made." In re B.J.J., ¶ 9. "To reverse a district court's evidentiary ruling for an abuse of discretion, this Court must determine the district court either acted arbitrarily without employment of conscientious judgment or exceeded the bounds of reason resulting in substantial injustice." In re B.J.J. , ¶ 9 (quoting In re I.M. , 2018 MT 61, ¶ 13, 391 Mont. 42, 414 P.3d 797 ).

DISCUSSION

¶10 1. Whether C.S. was properly determined to be an abused or neglected child.

¶11 Mother asserts the District Court did not hold fundamentally fair procedures, erroneously finding C.S. to be a YINC based upon a stipulation Mother did not make. The State counters that adjudication of a child as a YINC is only required when termination is sought pursuant to § 41-3-609(1)(f), MCA. The State asserts termination pursuant to § 41-3-609(1)(a) through (e), MCA, only requires there be a "determination" that a child is abused or neglected.

¶12 As the care and custody of a child is a fundamental liberty interest protected by fundamentally fair procedures, termination procedures must satisfy the Due Process Clause of the Fourteenth Amendment. In re C.J. , 2010 MT 179, ¶ 26, 357 Mont. 219, 237 P.3d 1282. Sections 41-3-601 through -612, MCA, provide the procedures and criteria by which the parent-child relationship may be terminated. These provisions are only operative when there has first been a determination that a child has been abused or neglected as defined in § 41-3-102, MCA, or adjudicated as a YINC, depending upon which statutory basis is...