In re K.A.

382 Mont. 165

365 P.3d 478

In the Matter of: K.A., A.A., & A. A., Youths in Need of Care.

No. DA 15–0160.

Supreme Court of Montana.

Submitted on Briefs Nov. 18, 2015.

Decided Feb. 2, 2016.

For Appellant: Nancy G. Schwartz, N.G. Schwartz Law, PLLC; Billings, Montana.

For Appellee: Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant Attorney General; Helena, Montana, Emily Von Jentzen, Assistant Attorney General, Child Protection Unit; Kalispell, Montana.

Justice JIM RICE delivered the Opinion of the Court.

¶ 1 The Ninth Judicial District Court, Glacier County, entered an order terminating the parental rights of the birth father (Father) to his three minor children, K.A., A.A., and A.A. Father appeals the District Court's decision. We affirm, and address the following restated issue on appeal:

¶ 2 Did the District Court err in terminating Father's parental rights?

PROCEDURAL AND FACTUAL BACKGROUND

¶ 3 The subject family consists of Father, the birth mother (Mother), and three minor children, ages seven, two and one, respectively, at the time of removal. Concerns were initially raised regarding this family in early 2013, when the Department of Public Health and Human Services (DPHHS or Department) received anonymous reports about the parents using methamphetamines "as often as they can get their hands on it," and reports of physical violence in front of the children. Stephanie Moran (Moran), a social worker, met with the oldest child, K.A., at school on March 7, 2013. K.A. appeared to be clean and adequately dressed, and spoke highly of his parents, but mentioned that the family had moved a lot and that his father had lost his job. Moran reviewed K.A.'s school attendance record, and found that he had a significant number of absences and tardies. K.A. explained to Moran that his mother was not waking up in time to get K.A. off to school.

¶ 4 Moran again met with K.A. at school on March 26, 2013, and K.A. told the case worker that he had not eaten breakfast that day because there was very little food in the home, and he wasn't sure he was going to eat dinner that night. K.A. also described physical violence between his parents, but denied that Father was physically violent towards him. During this interview, Moran noted with some concern that K.A.'s clothes were dirty and that his shoes had no soles on them and appeared to be falling apart.

¶ 5 On the same day, Moran made contact with Mother. The family was living in a motel room at this point and Moran observed only a jar of peanut butter and a can of chili on top of the refrigerator, and only bottled water in the refrigerator. Mother told the case worker that the family was out of money and out of public assistance funds until after the first of the month. Later that day, Moran returned to the motel room to meet with both Mother and Father, and questioned both parents about reports of their drug use. Both parents admitted to using methamphetamine within the past two months, and Father admitted to current use of cannabis and alcohol. When Moran asked, both parents agreed to submit to a urinalysis (UA) test that afternoon. When neither parent showed up for the scheduled UA, Moran returned to the motel.

¶ 6 No one answered the door when Moran knocked, although she knew the family was at home because she had seen K.A. arrive there from school, and she could hear the television and a baby crying from within the room. Fearing for the children's well-being, and due to the lack of cooperation by the parents, Moran contacted law enforcement, who eventually forced open the door to the motel room. Once inside, Moran informed the parents that she was removing the children. Moran testified that Father became very upset, " bouncing all over" the motel room, yelling and screaming with his hands raised. Moran believed that Father's behaviors were consistent with being under the influence of methamphetamine. All three children sat on the bed next to their mother, crying. Backup law enforcement officers were called to the scene; at one point the officers pulled out their Tasers to prevent a physical altercation with Father when he stood on the bed. Moran and law enforcement removed the children from the premises.

¶ 7 The next day, Father had been arrested on a charge of disorderly conduct arising out of an incident separate from removal of the children, and was unavailable for a UA. Mother submitted to a UA that day and tested positive for cannabis, methamphetamine, and Ecstasy. On April 2, 2013, DPHHS filed a petition seeking emergency protective authority, adjudication of the children as youth in need of care, and temporary legal custody. Attached to the petition was Moran's affidavit, which averred that Father and Mother did not have the resources to meet the basic needs of their children, that both parents were violent and aggressive, and that both parents were currently unable or unwilling to perform parental duties and responsibilities. The District Court promptly granted emergency protective custody, and an adjudicatory hearing was held on April 17.

¶ 8 At the hearing, Moran provided testimony concerning the above facts to the District Court. She added that Mother had failed to appear for UAs on two separate occasions since the children were removed, but that Mother and Father had provided a UA on April 6, 2013, and both tests were negative for illegal substances. Father testified that he and Mother had never used drugs in front of the children, that he had never physically abused Mother or the children, and that at the time the children were removed, there had been food in the freezer in the motel room. However, the District Court found that both parents had failed to take drug tests when requested, failed to provide for the basic needs of the children, abused the children by using illegal drugs, specifically methamphetamine, neglected to have K.A. attend school regularly, and that returning the children to the home would place them in unreasonable risk of harm. The court adjudicated all children as youths in need of care, granted temporary legal custody to DPHHS, and ordered that treatment plans be developed.

¶ 9 On June 4, 2013, the District Court signed treatment plans for both Mother and Father, each of which stated a primary goal of reunifying the children with their parents. At the time the plans were signed, Mother had engaged in initial services, but Father had not. The plan required Father to obtain a chemical dependency evaluation and follow all recommendations of that evaluation, and listed as a specific goal to maintain sobriety for "a period of six months." In addition, the Treatment Plan required Father to obtain individual counseling to address mental health issues, to complete parenting and anger management classes, and to stay in regular contact with Moran.

¶ 10 In early August 2013, DPHHS placed the children with Mother, who was then living with her parents, for a trial home visit. Since that date, the children have remained with Mother. In October 2013, DPHHS filed a petition to extend temporary legal custody of the children for another six months in order to allow the parents more time to complete their treatment plans. At that point, Father had completed in-patient treatment at Montana Chemical Dependency Center, but had not yet begun out-patient treatment, mental health counseling, or parenting and anger management classes. Upon a stipulation of all the parties, the District Court granted an order extending temporary legal custody for another six months.

¶ 11 In April 2014, DPHHS again requested an extension of temporary legal custody, given developments in the case, and a hearing was held in May 2014. Moran testified that, although Father had completed his chemical dependency evaluation, was participating in classes again (after having stopped for a period of time), and had completed anger management and parenting classes, he had returned to using alcohol. He was arrested for fighting at a bar and creating a disturbance in April 2014, and had brought "turmoil within the home." Father "went back to the home knowing that he had just been arrested," causing the District Court to express concerns about his drug and alcohol use and for the family's safety. Because Father and Mother were living together at this point with the children, Moran expressed concern about turmoil in the home and Mother's ability to display her protective capacity, concluding that DPHHS wanted additional time to monitor the family situation. Moran reported that Mother had made progress in her Treatment Plan, but that DPHHS still had some lingering concerns, specifically, that while Mother displayed that she was able to recognize threats to her and her children, a question remained about whether Mother was able to actually assert her protective role. The District Court granted DPHHS' petition, noting the family had made progress, but that DPHHS still had reason to be involved, especially in light of Father's recent setbacks in treatment. The results of Father's recent UA had not yet been returned, and Moran testified that if the UA was positive, the Department believed Father should live separately from the family. The District Court stated that Father had made a serious mistake in continuing to consume alcohol but that, before the Department could remove the children or either parent from the home, the court would conduct an emergency hearing.

¶ 12 DPHHS received the results of Father's drug test on June 19, 2014, which indicated that he had been using alcohol, methamphetamine, and amphetamines. Days later, DPHHS filed an expedited motion requesting that the District Court order Father to move from the family residence. The District Court held a hearing on July 2 and Father testified that he had been taking cold medication at the time of the drug test, and had not used methamphetamine, to which the District Court responded:

I don't believe you. Point blank. I don't believe that

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