Montana

ABUSE

THERAPY

In re L.W.N., 318 P.3d 173 (Mont. 2013). In case where mother had suffered from years of sexual abuse as a child and equine therapy was found to be more effective for her than traditional therapy, but where the agency could not pay for the equine therapy, mother effectively waived her right to challenge the case plan that did not provide for the therapy. Mother waited to object on appeal of termination rather than timely objecting or appealing the case plan or court’s adoption of the case plan.

ADOPTION

CONSENT

In re D.S., 2015 WL 423269 (Mont.). Mother failed to establish by clear and convincing evidence that her relinquishment of parental rights and consent to adoption in termination of parental rights proceeding was obtained through duress. Mother was represented throughout proceedings and discussed relinquishment documents with her attorney, was provided clarification when unsure, and caseworker was not present when mother signed relinquishment papers and did not threaten or force her to sign.

 

DELINQUENCY

SEX OFFENDER REGISTRY

In re M.W., 272 P.3d 112 (Mont. 2012). Trial court correctly found that it could not grant youth’s petition to relieve him of the requirement to register as a sex offender after he completed his treatment program and supervision requirements. Because court had not made any other provision for the length of registration requirement in its original order, which the youth did not appeal, it did not have the power to alter this upon the later petition and youth was subject to the 10-year statutory registration requirement.

DEPENDENCY

AGGRAVATED CIRCUMSTANCES

In re A.D.L., 2015 WL 3385868 (Mont.). In termination of parental rights proceeding, finding that mother subjected children to aggravated circumstances of chronic abuse and neglect was supported by clear and convincing evidence. Children experienced unsanitary home conditions, physical abuse, violence between the parents, neglect of their physical, educational, and mental needs, and exposure to methamphetamine and drug paraphernalia. Despite numerous inpatient and outpatient treatment programs and multiple services, mother was unable to provide safe and stable home for children.

 

In re J.W., 307 P.3d 274 (Mont. 2013). Though court erred in failing to hold a permanency hearing within 30 days of determining that reasonable efforts were no longer required regarding the mother based on prior terminations and unchanged circumstances, the error did not require reversal where agency was actively working on plan for reunification with father. Goal of early hearing requirement is to ensure timely permanency and, despite technical violation, appropriate steps were underway. 

FAILURE TO PROTECT

In re K.H., 285 P.3d 474 (Mont. 2012). Trial court correctly determined that children were not dependent in case where, despite it being ultimately revealed that mother’s boyfriend caused the death of their infant by shaking, there was nothing to indicate to her before that incident that boyfriend was a threat to children and mother immediately took steps to protect them when safety risks where known.

NONCUSTODIAL PARENTS

In re M.J., 296 P.3d 1197 (Mont. 2013). Family court properly granted custody to father at dependency hearing after child was born exposed to methamphetamines requiring hospitalization for the first three months of life. Mother’s argument that the disposition prevented her from participating in reunification services because father was moving out of state did not require contrary result since father was moving to be close to medical facilities that could properly treat child and that mother was noncompliant with medical services.

REPRESENTATION

In re K.A., 2015 WL 4924671 (Mont.). Although mother alleged her attorneys did not object to hearsay statements, allowed admission of letters and reports that lacked proper foundation, allowed admission of other irrelevant material, and failed to call witnesses to testify on her behalf, she did not demonstrate prejudice by alleged ineffective assistance in termination of parental rights action. Substantial evidence of mother’s history of domestic violence, multiple criminal charges, and multiple incarcerations showed her behavior was unlikely to change in reasonable time.

 

TRIBAL COURT JURISDICTION

In re S.B.C., 340 P.3d 534 (Mont. 2014). Where tribe waited for over a year to ask for transfer of case to tribal court and child’s case was close to termination and adoption in the only home he knew, good cause existed to deny transfer of the case. Also, qualified expert witness was not required for termination where father never had custody per Adoptive Couple v. Baby Girl.FULL SUMMARY

 

GUARDIANSHIP

BEST INTERESTS

In re D.B.J., 286 P.3d 1201 (Mont. 2012). Trial court did not violate guardian’s due process rights in dependency proceeding by terminating guardianship on the best interests standard. Although state guardianship statute gives an appointed guardian many of the same rights as a parent, other state statutes and case law regarding parental rights showthat guardians do not enjoy the same level of protection as parents. FULL SUMMARY

TERMINATION OF PARENTAL RIGHTS

AGGRAVATED CIRCUMSTANCES

In re E.Z.C., 300 P.3d 1174 (Mont. 2013). District court properly terminated mother’s parental rights without ordering reunification services after finding aggravated circumstances existed given evidence that children were found to have been exposed to methamphetamines, their beds had rat feces on them, they lacked winter clothing, the seven year old was left alone to watch the three year old and these types of risks had persisted for a long period as shown by records involving an older sibling.

In re M.N., 261 P.3d 1047 (Mont. 2011).
Trial court properly found aggravated circumstances that justified foregoing reasonable efforts for the newborn child of parents who had been involved with the agency for years. Information from siblings’ neglect cases was relevant to show a longstanding pattern of substandard sanitary conditions in the home and an unexplained injury despite intense preventative services was sufficient for the finding of chronic, severe neglect.

In re M.V., 2015 WL 786893 (Mont.). Evidence warranted termination of mother’s parental rights based on failure to complete treatment plan and fact she subjected children to aggravated circumstances. Mother repeatedly failed to address serious health needs of children or take action to prevent future physical abuse of children. She failed to complete mental health therapy addressing her trauma and domestic violence history, and drugs were found in her home.

BEST INTERESTS

In re A.J., 2016 WL 4041811 (Mont.). Condition rendering mother unfit to parent was unlikely to change within reasonable time, supporting termination of mother’s parental rights to minor child. Although mother showed improvement while child was in custody of child welfare agency, child was removed from mother’s custody following drug arrest, majority of witnesses at hearing testified termination was in child’s best interests, and child had been in agency custody for two years of two-and-a-half years of child’s life.

CASE PLANS

In re C.J.M., 280 P.3d 899 (Mont. 2012). In termination proceeding where father claimed to have Asperger’s or some other autism-related condition and claimed he was not provided services, trial court properly found father’s treatment plan was appropriate. Father was represented by counsel, agreed to the treatment plans, and the plans addressed concerns he and his children faced.

In re J.D., 2015 WL 786887 (Mont.). Trial court did not abuse its discretion in terminating father’s parental rights after he failed to comply with fifth treatment plan that included “be nice” clause requiring father to behave in reasonable manner to ensure children’s special needs were met. Conduct rendering father unfit, including criminal and substance abuse histories, was unlikely to change within reasonable time.

CHILD SUPPORT

In re P.T.H., 2015 WL 6954885 (Mont.). Stepfather petitioned to terminate natural father’s parental rights so stepfather could adopt child. Petition was denied and stepfather appealed. Court was required to afford full faith and credit to 2010 order of California court that set natural father’s child support obligation at zero, and insufficient evidence existed to show natural father was unfit for failing to provide child support, as required to terminate his parental rights.

 

 

FAILURE TO IMPROVE

In re A.T., 318 P.3d 171 (Mont. 2013). District court properly terminated father’s parental rights after he failed to attend more than half his scheduled drug treatment, counseling, or visitation appointments while his children were in care. Father’s argument on appeal that case plan was not sufficiently individualized failed as he had not objected during trial proceedings. 

DISABILITY

In re C.B., 316 P.3d 177 (Mont. 2014). District court properly terminated mother’s parental rights. Although mother’s prescription drug addiction seemed to stem from a painful physical condition that could possibly be corrected with surgery, evidence also showed she had 12 years in which she could have attempted to get treatment other than prescription narcotics. Mother had resisted any treatment that would deprive her of the drugs. 

INCARCERATION

In re A.D.B., 305 P.3d 739 (Mont. 2013). Despite his efforts at visiting and supporting his child while in prison, trial court properly terminated father’s rights where his violent behavior, including the homicide which resulted in his incarceration for 40 years without the possibility of parole, prevented him from being able to assume custody of his child. 

INDIAN CHILDREN

In re D.S.B., 300 P.3d 702 (Mont. 2013). Trial court properly found active efforts were made to reunify in case where the Indian Child Welfare Act applied. The agency was ordered and attempted to assist father with visitation, drug testing, substance abuse treatment, counseling, and parenting coaching, but he did not comply with the plan even before his incarcerations made some of the tasks difficult. 

In re E.O., 2016 WL 901863 (Mont.). In termination of mother’s parental rights to two Indian children, trial court correctly assessed child welfare agency’s active efforts to keep family together. Active efforts standard was required by federal Indian Child Welfare Act, and courts had never combined federal active efforts and state reasonable efforts standards. Agency made concerted effort to encourage and facilitate mother’s need for trauma and addiction treatment and provided active monitoring and assistance until mother moved out of state. Agency’s efforts were timely, affirmative, and continued over two years.

 

In re I.B., 255 P.3d 56 (Mont. 2011). Evidence showed beyond a reasonable doubt that parents’ rights to Indian child should be terminated and that child welfare agency made active efforts to reunify the family. Numerous experts testified regarding parents’ failure to follow their treatment plans and their continued threat to child’s emotional and physical well-being, and agency made extensive efforts to promote reunification.

In re J.W.C., 265 P.3d 1265 (Mont. 2011). In Indian Child Welfare Act case, where mother had requested a transfer to tribal court, the state trial court erred in not transferring the case. Although the tribe was on notice of the mother’s request to transfer and did not affirmatively respond, the ICWA Guidelines indicate that the state court should transfer absent good cause, putting the burden on the tribal court to affirmatively decline jurisdiction.

In re K.B., 301 P.3d 836 (Mont. 2013).Enrolled Chippewa Creek mother’s rights were improperly terminated where notice and qualified expert witness testimony failed to comply with the law. No documentation showed that the tribe, which had earlier participated in the case, was notified of termination proceedings, and expert witness testified to incorrect standard of the child’s best interests, not whether termination was necessary to prevent serious emotional or physical damage to the child. 

KINSHIP CARE

In re C.W.E., 2016 WL 56305 (Mont.). Statutory presumption that termination of parental rights is in child’s best interests when child has been in foster care for 15 of most recent 22 months applies when child is placed in kinship care. Child welfare agency had temporary legal custody of mother’s two children during time they were placed in various kinship foster homes and with their respective noncustodial fathers. 

 

MENTAL HEALTH

In re A.K., 347 P.3d 711 (Mont. 2015). Evidence was sufficient to support finding that father’s parental unfitness was unlikely to change in reasonable time and supported terminating his parental rights. Father had history of domestic violence towards mother, mental health issues, drug and alcohol abuse, and unstable housing. Child welfare agency made reasonable efforts to reunite father with children.

In re M.C., 2017 WL 4641400 (Mont.). During dependency proceeding, court may order psychological evaluation of parent under multiple statutes. If treatment plan requires parent follow evaluation’s recommendations, court must have access to evaluation to determine whether parent complied with treatment plan. Psychological evaluations help courts evaluate parents’ mental health during termination proceedings. Such evaluations are part of court record and may be used by court throughout proceeding.

 

NOTICE

 

In re A.M.S., 2016 WL 324607 (Mont.). Mother and maternal grandfather filed a joint petition for termination of father’s parental rights to three children and adoption by grandfather. Father appealed the trial court’s default judgment terminating his parental rights and ordering adoption. The Montana Supreme Court found that service by publication could not be ordered by the clerk of court and such service did not put the father on notice that his parental rights would be terminated. FULL SUMMARY

 

 

PRIOR TERMINATION

In re J.S., 2015 WL 779170 (Mont.). Substantial evidence supported court’s finding that circumstances relating to prior termination of father’s parental rights to several children were relevant to his ability to care for the children in the current termination of parental rights case. Previous termination included concerns about sexual abuse, significant violent and antisocial behaviors, and emotionless affect and attachment disorders in the children.

 

REASONABLE EFFORTS

 

In re A.G., 2016 WL 4440533 (Mont.). Father appealed termination of his parental rights to son and daughter, claiming child welfare agency failed to make reasonable efforts to prevent children’s removal. While reasonable efforts are required to prevent removal, efforts must be tailored to facts of each case. Agency provided treatment plans and services during first removal of infant, was involved with and received referrals since older child was two months old until termination of father’s parental rights, and no options existed to ensure infant’s in-home safety given parents’ repeated alcohol abuse and domestic violence.

In re B.J.T.H., 340 P.3d 557 (Mont. 2015). Cover letter by permanency specialist with child welfare agency failed to include number of hours of counseling and topics covered with mother who voluntarily relinquished her parental rights. Deficiency was harmless and did not override best interests of children, particularly permanency. Mother received required amount of counseling regarding all necessary topics and was capable of knowingly relinquishing her parental rights.

In re D.B., 2015 WL 423256 (Mont.). Clear and convincing evidence supported trial court’s finding that treatment plan was appropriate for father in termination of parental rights action. Plan was appropriately designed to address needs of children, two of whom suffered from reactive attachment disorder, as well as father. Plan sought to address father’s anger issues, the primary cause of child welfare agency involvement. Agency provided multiple counseling referrals and additional time to complete tasks as result of father’s post-traumatic stress disorder diagnosis.

In re J.O., 2015 WL 4747167 (Mont.). Mother appealed termination of her parental rights, citing lack of reasonable efforts to reunify as prerequisite to termination. Agency placed child with aunt, provided drug treatment for mother, and reunified mother and child when mother completed treatment. When child entered care again, agency again placed child with aunt and developed treatment plan for mother, until mother was incarcerated. Agency was not required to provide phone contact between mother and child, given child’s choice not to have contact and his refusal to read her letters.

In re M.V.R., 2016 WL 6988851 (Mont.). Mother appealed termination of parental rights, arguing child welfare agency did not make reasonable efforts to reunite family. Agency created treatment plan mother did not challenge, repeatedly accepted her back after she relapsed into drug use, twice moved to extend child’s temporary legal custody to help mother complete treatment plan, and gave mother 14 months to get clean and comply with treatment plan before terminating rights.

In re R.J.F. , 443 P.3d 387 (Mont. 2019).

The Montana Supreme Court overturned a termination of parental rights decision, holding: (1) the child welfare agency failed to make reasonable efforts to reunite the mother with her child; and (2) the agency did not establish by clear and convincing evidence that the mother’s substance use disorder was unlikely to change within a reasonable time. Full Summary

RELINQUISHMENT

In re N.R.A., 2017 WL 4641362 (Mont.). Mother’s relinquishment of parental rights to children was not product of duress, although mother testified she felt pressured by child welfare agency’s repeated attempts to convince her to relinquish her rights. Mother initiated contact with agency and participated in counseling. Counselor testified she carefully discussed alternatives with mother, who did not raise any concerns about duress or undue influence, and mother explained to counselor that she believed relinquishment was in her children’s best interest.

 

 

REPRESENTATION

In re J.W.M., 2015 WL 4747053 (Mont.). Mother and husband petitioned to terminate biological father’s parental rights to mother’s two children, and to allow adoption of children by husband to proceed. Court found father, who appeared pro se, was adequately represented under equal protection analysis. He was represented by counsel during much of reunification part of proceeding, was notified upon counsel’s withdrawal that he was entitled to appoint other counsel or represent himself, acknowledged he was appearing pro se, cross-examined petitioners’ witnesses, directly examined witnesses, testified on his own behalf, never requested appointed counsel, and did not suggest or imply that he did not have money to engage new attorney.

SIBLING PLACEMENT

In re B.W.S., 386 Mont. 33 (2016). Trial court’s determination that continuing child’s placement with foster parents, rather than placing child with custodians of child’s half-siblings, was in child’s best interest was not an abuse of discretion. Custodians waived appellate due process argument when they failed to raise argument during trial. Child had resided with foster parents for over three years and had bonded with foster parents and siblings.