                                                                                            January 21 2014


                                          DA 13-0382

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2014 MT 13



IN THE MATTER OF:

L.V-B.,

         A Youth in Need of Care.



APPEAL FROM:            District Court of the Nineteenth Judicial District,
                        In and For the County of Lincoln, Cause No. DN 12-4
                        Honorable James B. Wheelis, Presiding Judge


COUNSEL OF RECORD:

                 For Appellant:

                        Carolynn M. Fagan, Fagan Law Office, P.C.; Missoula, Montana

                 For Appellee:

                        Timothy C. Fox, Montana Attorney General, Mardell Ployhar, Assistant
                        Attorney General; Helena, Montana

                        Emily Von Jentzen, Assistant Attorney General, Child Protection Unit;
                        Kalispell, Montana

                        Bernard G. Cassidy, Lincoln County Attorney; Libby, Montana



                                                    Submitted on Briefs: December 3, 2013
                                                               Decided: January 21, 2014


Filed:

                        __________________________________________
                                          Clerk
Justice Laurie McKinnon delivered the Opinion of the Court.

¶1     F.V. (“Mother”) appeals from an order of the Nineteenth Judicial District Court,

Lincoln County, terminating her parental rights to her daughter, L.V.-B. We affirm. We

restate the issues on appeal as follows:

¶2     1. Whether Mother articulated a substantive due process claim which required

that the State’s petition to terminate be dismissed.

¶3     2. Whether § 41-3-424, MCA, and the placement of L.V.-B. with Father required

that the State’s petition to terminate be dismissed.

¶4     3. Whether the State’s petition to terminate was filed prematurely.

                                      BACKGROUND

¶5      In October 2011, Mother gave birth to L.V.-B. In a prior proceeding in 2010, the

Department of Public Health and Human Services (“Department”) removed a different

child from Mother’s care due to her drug use, homelessness, and for leaving the child

with an inappropriate caregiver. Mother did not comply with the treatment plan that the

Department provided to enable her to parent her first child safely. The State ultimately

did not petition to terminate Mother’s rights to the first child because it was able to place

the child in the care of that child’s father.

¶6     In February 2012, the Department removed L.V.-B. from Mother’s care based on

reports that Mother was using drugs, homeless, and had left L.V.-B. with inappropriate

caregivers. The Department placed L.V.-B. with her maternal aunt, and established a

voluntary services agreement with Mother that addressed the issues leading to L.V.-B.’s

removal. Mother did not comply with the voluntary services agreement, and the State

                                                2
filed a petition for emergency protective services and temporary investigative authority in

March 2012.       The District Court granted temporary investigative authority to the

Department upon stipulation of the parties in April 2012. In May 2012, paternity of

L.V.-B. was established and the Department provided L.V.-B.’s father (“Father”) with a

treatment plan.    The parties do not dispute that Father successfully completed his

treatment plan. L.V.-B. remained with her maternal aunt until placed with Father in April

of 2013.

¶7     In July 2012, the District Court adjudicated L.V.-B. a youth in need of care. The

Department provided Mother with a treatment plan requiring her to obtain a drug

evaluation and follow through with treatment recommendations, participate with Family

Concepts to improve her parenting skills, submit to random urinalysis testing, maintain

an adequate home, avoid involvement with criminal activity, attend visitations with

L.V.-B., obtain a job, and maintain weekly contact with the Department. Mother failed to

comply with the terms of the treatment plan, and in January 2013 the State filed a petition

to terminate Mother’s parental rights. Shortly before Mother’s termination hearing, the

Department placed L.V.-B. with Father.

¶8     On April 18, 2013, Mother filed a motion to dismiss the State’s termination

petition, arguing that L.V-B.’s placement with Father diminished the State’s interest in

L.V.-B., and that Mother’s fundamental constitutional right to remain L.V.-B.’s parent

outweighed the State’s interest in termination.     Mother additionally argued that the

termination petition was filed prematurely. Mother was not present at the termination

hearing on April 19, 2013. Her counsel explained that Mother had difficulties with

                                            3
transportation, but he also stated that he had offered to give Mother a ride to the hearing.

Four witnesses testified on behalf of the Department: Denise Killingsworth, clinical

supervisor and data coordinator for Flathead Valley Chemical Dependency Center

(“Center”); Kayla White, family support worker for Family Concepts; Lisa Byington,

Child Protection Specialist for the Department; and Donna Parrish, Child Protection

Specialist for the Department.

¶9      Killingsworth testified that although Mother went to the Center to schedule an

appointment for a drug evaluation, she never attended the evaluation or called back to

reschedule. The Center attempted to contact Mother at the phone number she provided,

but was unable to reach her. Therefore, Mother never received any drug treatment. White

testified that Mother tested positive for drugs and/or alcohol on nine out of the ten

urinalysis tests that she administered to Mother. Mother was either late or absent to many

of her visitations with L.V.-B., despite White’s repeated offers to provide Mother with

transportation to the visits. White also repeatedly offered to transport Mother to any

other appointments or meetings related to her treatment plan, but Mother never accepted

these offers. After 30 days had passed without any contact from Mother, the Department,

based upon its policy, requested that Family Concepts terminate its services to Mother.

¶10    Byington was Mother’s caseworker in the Department’s case with Mother’s

previous child. Byington testified that the conduct and conditions at issue in the prior

case included Mother’s drug use, her inability to parent, and her homelessness. Byington

attempted to work with Mother by offering a drug evaluation, treatment, housing, and

assistance in establishing a safe and stable home environment, but Mother refused the

                                             4
voluntary services. Finally, Parrish, Mother’s caseworker in the present case, testified

that she provided Mother with a treatment plan, and offered Mother transportation and

referrals. Parrish noted that Mother had not complied with any of the requirements in her

treatment plan, and that Mother had been incarcerated for drug-related charges on three

separate occasions since initiation of these proceedings.       She acknowledged that in

Mother’s prior case, the Department placed that child with that child’s father, and did not

terminate Mother’s rights. Parrish then explained the Department’s decision to proceed

to terminate in this case, stating that she had some concerns about L.V.-B.’s current

placement with Father, and at the time of the hearing the Department was continuing to

monitor Father to determine whether he would be an appropriate placement. She testified

that proceeding with termination would: ensure that L.V-B. would not end up back in

Mother’s care; help the Department protect any future children Mother might have; and

allow L.V.-B. to be available for adoption by another mother.

¶11    The District Court terminated Mother’s parental rights pursuant to § 41-3-609,

MCA, and denied Mother’s motion to dismiss the termination petition, concluding that

“because of the Mother’s inability or unwillingness to resolve the issues which caused the

youth to be adjudicated a youth in need of care, the conduct and condition of the Mother

rendering her unfit is unlikely to change within a reasonable time.” The District Court

also found that L.V.-B.’s best interests would be served by termination. Mother now

appeals the District Court’s denial of her motion to dismiss the State’s termination

petition.



                                            5
                               STANDARD OF REVIEW

¶12    We review de novo a district court’s decision on a motion to dismiss. Hartsoe v.

Tucker, 2013 MT 256, ¶ 6, 371 Mont. 539, 309 P.3d 39. Whether a person has been

denied due process is a question of constitutional law, and we exercise plenary review.

In re T.S.B., 2008 MT 23, ¶ 20, 341 Mont. 204, 117 P.3d 429.

                                      DISCUSSION

¶13      Mother argues that the District Court’s denial of her motion to dismiss violated

her constitutional right to due process. Additionally, Mother argues that the District Court

erred in terminating her parental rights because § 41-3-424, MCA, required the dismissal

of the State’s termination petition, and because the State prematurely filed the

termination petition. For the reasons discussed below, we disagree.

¶14    Issue One: Whether Mother articulated a substantive due process claim which
       required that the State’s petition to terminate be dismissed.

¶15    The right to parent one’s children is a constitutionally protected fundamental

liberty interest. U.S. Const. amend. XIV; Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct.

2054, 2061 (2000) (plurality); In re A.S., 2004 MT 62, ¶ 12, 320 Mont. 268, 87 P.3d 408;

In re D.B.J., 2012 MT 220, ¶ 28, 366 Mont. 320, 286 P.3d 1201. Consequently, the State

must provide fundamentally fair procedures at all stages in the proceedings to terminate

parental rights. In re Declaring A.N.W., 2006 MT 42, ¶ 34, 331 Mont. 208, 130 P.3d

619. Proceedings to terminate parental rights must meet the due process requirements

guaranteed by the Montana and United States Constitutions, which hold that a parent

must not be placed at an unfair disadvantage.        A.N.W., ¶ 34. The right to parent,


                                             6
however, must yield to the State’s responsibility to protect and promote the welfare of the

child when clear and convincing evidence is presented that a parent is unfit. In re M.A.L.,

2006 MT 299, ¶ 26, 334 Mont. 436, 148 P.3d 606. “When considering the criteria

for termination of parental rights, courts must give primary consideration to the best

interests of the child as demonstrated by the child’s physical, mental, and emotional

needs.” In re F.M., 2002 MT 180, ¶ 22, 311 Mont. 35, 53 P.3d 368.

¶16    A specific framework is used to analyze procedural due process allegations in the

context of termination of parental rights. In raising a procedural due process claim, a

parent’s interests are balanced against both the State’s parens patriae interest in

preserving and promoting the welfare of the child, and the State’s fiscal and

administrative interest in reducing the cost and burden of such proceedings. Santosky v.

Kramer, 455 U.S. 745, 766, 102 S. Ct. 1388, 1401 (1982).

¶17    Mother does not allege that she received improper notice of the termination

proceedings, or that she was not afforded the opportunity to be heard. Accordingly,

Mother does not present a procedural due process claim. Rather, Mother purports to

assert that the District Court violated her substantive due process rights when it found

that L.V.-B’s best interests would be served by terminating Mother’s parental rights, even

though L.V.-B. had been placed with Father.          Although Mother attempts to raise a

substantive due process claim, she then conducts her analysis using the framework (set

forth above) that is clearly established to address procedural due process claims in

termination of parental rights cases. As such, Mother’s balancing of her right to parent

against the State’s dual interests (parens patriae and its fiscal and administrative interest)

                                              7
is not the proper framework for evaluating a substantive due process claim. Additionally,

Mother does not provide the appropriate test for evaluating alleged substantive due

process violations in termination cases, and misstates the standard of scrutiny afforded to

such claims.1 We decline to address Mother’s purported substantive due process claim

when it has not been adequately articulated, and the appropriate framework under which

to analyze such a claim has not been set forth.

¶18    Issue Two: Whether § 41-3-424, MCA, and the placement of L.V.-B with Father
       required that the State’s petition to terminate be dismissed.

¶19    Mother argues that the State’s termination petition against Mother should have

been dismissed in accordance with § 41-3-424, MCA, because L.V.-B. was placed with

Father at the time of the hearing. Section 41-3-424, MCA, provides that an abuse and

neglect petition can be dismissed only if all of the following three conditions are met: 1) a

child placed in foster care is reunited with his or her parents and returned home; 2) the

child remains in the home for a minimum of six months with no additional confirmed

reports of child abuse or neglect; and 3) the Department determines that the issues that

led to intervention have been resolved and that no reason exists for further Department

intervention or monitoring. Mother claims that L.V.-B.’s placement with Father satisfies

the first condition of § 41-3-424, MCA, and therefore the termination petition should
       1
          Mother claims that Stanley v. Illinois, 405 U.S. 645, 92 S. Ct. 1208 (1972), holds that all
fundamental liberty interests, including the right to parent, are subject to strict scrutiny. This is
incorrect. Stanley’s main holding is that as a matter of equal protection and procedural due
process, an unwed father is entitled to a hearing on his parental fitness before his parental rights
are terminated. Despite its classification as a fundamental liberty interest, neither the U.S.
Supreme Court nor the Montana Supreme Court has ever specified the standard applicable to a
substantive due process claim arising from a termination case. In any event, Stanley does not
apply to Mother’s case in which she raises a substantive due process claim, as it only addresses
constitutional claims based on the grounds of equal protection and procedural due process.
                                                 8
have been dismissed. However, the first condition is not satisfied, as L.V.-B. has not

been reunited with nor returned home to Mother. Section 41-3-424, MCA, applies to

situations in which an abuse and neglect petition filed against an offending parent (a

parent who has had a child removed from the home because of his or her conduct or

condition) is dismissed because the offending parent satisfies the three conditions. In this

case, the fact that L.V.-B. has been placed with Father (a nonoffending parent) has no

bearing on Mother (an offending parent) or her parental rights. The statute is clearly not

meant to benefit a noncompliant, offending parent, for the compliance of a nonoffending

parent. As such, Mother’s argument that the termination was improper due to L.V.-B.’s

placement with Father necessarily fails.

¶20    Issue Three: Whether the State’s petition to terminate was filed prematurely.

¶21    Mother argues that the termination of her parental rights was improper because the

State filed the termination petition prematurely, and that “a little extra time would not

have harmed L.V.-B. or the State.” She claims that § 41-3-604, MCA, establishes a

statutory waiting period that must pass before the State can file a termination petition.

Mother concedes, however, that there is no statute which requires the State to wait a

particular period of time before filing its termination petition.

¶22    Statutes providing for the termination of parental rights establish the following: 1)

the circumstances under which a petition must be filed; and 2) the requirements that must

be met before parental rights are terminated. First, § 41-3-604, MCA, outlines the

conditions under which the State must petition to terminate a parent’s rights, stating that

“[i]f a child has been in foster care under the physical custody of the state for 15 months

                                              9
of the most recent 22 months, the best interests of the child must be presumed to be

served by termination of parental rights.” Mother argues the State’s termination petition

was premature because L.V.-B. was no longer in foster care at the time of the termination

hearing, and had not spent 15 out of 22 months in foster care, pursuant to § 41-3-604,

MCA. However, this statute only pertains to a situation in which the State is under a

statutory obligation to proceed with termination; it does not require the State to wait a

certain amount of time before filing. No statute imposes such a waiting period, and in

fact, as the State correctly points out, under some circumstances a petition for termination

may be the initial document that the State files. Section 41-3-422(1)(a)(v), MCA; see e.g.

In re T.S.B., 2008 MT 23, ¶ 27, 341 Mont. 204, 177 P.3d 429.

¶23    Second, the State may proceed with termination when a child who has been

adjudicated a youth in need of care has a parent who has been unsuccessful with an

appropriate treatment plan, and the conduct or condition rendering the parent unfit is

unlikely to change within a reasonable time. Section 41-3-609(1)(f), MCA. Determining

whether a parent’s conduct is likely to change within a reasonable amount of time

“requires a predictive assessment based upon past and present conduct of the parent” in

question. In re C.M.C., 2009 MT 153, ¶ 25, 350 Mont. 391, 208 P.3d 809. A parent’s

past behavior is considered in determining fitness to parent in the future. In re A.J.E.,

2006 MT 41, ¶ 27, 331 Mont. 198, 130 P.3d 612.

¶24    Despite Mother’s argument that “there was simply no reason” to terminate

Mother’s rights, numerous facts in the record indicate that Mother’s conduct or condition

was unlikely to change in a reasonable time. At the termination hearing, Mother’s

                                            10
caseworker from her first child testified that Mother’s drug use, inability to parent, and

homelessness led to the removal of her first child.    In her prior case, the Department

offered Mother a treatment plan that included a drug evaluation and treatment, housing,

and assistance in establishing a safe and stable home environment, but Mother refused

these services. Mother’s caseworker in the present case testified that, similar to the

proceedings in 2010, the Department provided Mother with a treatment plan that

addressed the same issues identified in the prior treatment plan. Mother failed to comply

with both treatment plans. Presently, Mother has not attended a drug evaluation as

required, nor has she received any type of drug treatment. Mother’s family support

worker from Family Concepts testified that Mother failed nine out of ten urinalysis tests.

Her family support worker repeatedly offered to provide Mother with transportation, yet

Mother missed many scheduled visits with L.V.-B. Consequently, Mother went long

periods of time without contacting the Department, which caused her to go long periods

of time without seeing L.V-B. Mother also obtained multiple criminal drug convictions

during the time that the treatment plan was in place, and did not show up to the

termination hearing.

¶25   All of the above facts detailing Mother’s past behavior support the District Court’s

conclusion that the State met its burden in showing that Mother’s conduct or condition

was unlikely to change within a reasonable time. See In re J.M.J., 1999 MT 277, ¶¶ 26-

27, 296 Mont. 510, 989 P.2d 840 (mother’s failure to meet any of the goals established by

her court-approved treatment plans supports a finding that her conduct or condition was

unlikely to change with a reasonable time); In re A.D.B., 2013 MT 167, ¶ 48, 370 Mont.

                                           11
422, 305 P.3d 739 (mother’s failure of 40 out of 42 drug tests supports conclusion that

Mother’s conduct was unlikely to change within a reasonable time); In re M.A.W., 256

Mont. 296, 308-09, 846 P.2d 985, 992-93 (1993) (father’s failure to maintain the required

contact with his caseworker and with his children supports the finding that the conduct

rendering him unfit was unlikely to change within a reasonable time); In re A.S., 2006

MT 281, ¶ 50, 334 Mont. 280, 146 P.3d 778 (mother’s continued drug use, criminal

charges, and failure to maintain steady employment supports district court’s finding that

mother’s conduct was unlikely to change within a reasonable time). Accordingly, we

hold that the District Court did not err in denying Mother’s motion to dismiss.

                                    CONCLUSION

¶26    For the foregoing reasons, we affirm. We hold Mother did not raise a cognizable

constitutional claim, and the District Court did not err in denying Mother’s motion to

dismiss. Lastly, the provisions of § 41-3-424, MCA, and the placement of L.V.-B. with

Father did not require the District Court to grant Mother’s motion to dismiss.


                                                 /S/ LAURIE McKINNON

We Concur:

/S/ MIKE McGRATH
/S/ PATRICIA COTTER
/S/ BETH BAKER
/S/ MICHAEL E WHEAT




                                            12
