                                                                                             July 23 2013


                                         DA 13-0051

            IN THE SUPREME COURT OF THE STATE OF MONTANA
                                         2013 MT 201



IN THE MATTER OF:

J.W.,

         A Youth in Need of Care.


APPEAL FROM:           District Court of the Sixth Judicial District,
                       In and For the County of Park, Cause No. DN 12-10
                       Honorable William Nels Swandal, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Lucy W. Hansen; Hansen Law Practice; Missoula, Montana

                For Appellee:

                       Timothy C. Fox, Montana Attorney General; Kathryn F. Schulz, Assistant
                       Attorney General; Helena, Montana

                       Brett D. Linneweber, Park County Attorney; Kathleen Carrick, Deputy
                       County Attorney; Livingston, Montana



                                                   Submitted on Briefs: June 12, 2013

                                                              Decided: July 23, 2013




Filed:

                       __________________________________________
                                         Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1    A.L. appeals from the Order of the Sixth Judicial District Court, Park County,

terminating her parental rights to five-year-old J.W. We affirm, and address the issues:

¶2    1. Did the District Court err by failing to conduct a stand-alone hearing on
whether the Department should be required to make reasonable efforts to reunify Mother
and J.W.?

¶3   2. Did the District Court commit reversible error by failing to conduct a
permanency plan hearing?

¶4    3. Did the District Court err by concluding that the circumstances surrounding
Mother’s prior terminations in Colorado were relevant to her parenting of J.W.?

                 FACTUAL AND PROCEDURAL BACKGROUND

¶5    A.L. (Mother) and C.W. (Father) are the biological parents of J.W., a girl. On

December 24, 2012, the District Court terminated Mother’s parental rights to J.W.

because it determined that Mother’s unfit parenting behavior had not changed since a

Colorado court had terminated her rights to two other children. Mother argues that her

previously unfit parenting in Colorado should not provide a basis for terminating her

parental rights to J.W. because she has changed.

      Termination of Mother’s Parental Rights to A.K.M.H. and Q.D.J.W.

¶6    Mother is the biological mother of four children born from 1996 to 2008: Aus. L.

(1996), A.K.M.H. (2002), Q.D.J.W. (2005), and J.W. (2008). In 2005, Mother and

Father were living together in Colorado. Following a domestic violence incident between

Mother and Father, the Clear Creek County Department of Human Services (CCDHS)

instituted a child-abuse investigation regarding Mother’s three children (J.W. was not yet

                                         2
born). The investigation determined that Mother had a history of violence with her

domestic partners, used dangerous drugs, and had prior involvement with child protective

services in Washington and Idaho. In an attempt to remedy her parenting problems,

CCDHS instituted a treatment plan to which Mother agreed. The plan required Mother

to, among other things, maintain a clean and sober lifestyle, complete a drug and alcohol

evaluation, attend to the medical and mental health needs of her children, stay violence

free, and generally be able to parent her children. People ex rel. A.J.L., 243 P.3d 244,

247 (Colo. 2010). Mother failed to comply with the treatment plan: she continued to use

drugs and tested positive for methamphetamine several times between October 2006 and

March 2007. In May 2007, against the advice of the CCDHS treatment team, Mother

moved to Montana, leaving A.K.M.H. and Q.D.J.W. behind. Mother told CCDHS that

she was moving “to get away from [Father] and because she did not trust the CCDHS

treatment team.” People ex rel. A.J.L., 243 P.3d at 247. Truth be told, however, Mother

and Father were living together in Livingston, Montana. Mother continued to lie to

CCDHS caseworkers about not living with Father because their violent relationship was a

primary reason CCDHS was seeking removal of A.K.D.H. and Q.D.J.W.

¶7    In January and February 2009, a Colorado trial court held a three-day trial, which

Mother attended, on CCDHS’s petition to terminate Mother’s parental rights to A.K.M.H.

and Q.D.J.W. (Aus. L. was not subject to this proceeding). Based on the testimony, the

court terminated Mother’s rights because she was “unfit as a parent and unlikely to

change within a reasonable period of time”:

                                        3
                 At trial, the People produced substantial evidence and elicited
         testimony from witnesses supporting its contention that mother continues to
         deny the severity of abuse she inflicted on [A.K.M.H. and Q.D.J.W.]. They
         also produced evidence and elicited testimony from witnesses showing that
         mother’s inability or unwillingness to acknowledge the abuse and its impact
         on her children placed a substantial roadblock between mother and her
         ability to safely and effectively parent [A.K.M.H. and Q.D.J.W.]. While on
         the stand, at trial, mother admitted to abusing her oldest son [Aus. L.], but
         denied that she ever physically abused [A.K.M.H. and Q.D.J.W.] or
         withheld food from them.
                 Contrary to mother’s testimony, . . . the trial court found that mother
         left the children without supervision and food; mother and [Father]
         physically disciplined the children with belts, spoons, and hands; mother
         confined the children to a dark closet for long periods of time; and the
         children witnessed domestic violence between mother and [Father].

People ex rel. A.J.L., 243 P.3d at 248-49.

         Termination of Mother’s Parental Rights to J.W.

¶8       Mother gave birth to J.W. in 2008. She continued to be involved in violent

domestic relationships. In January 2011, the Department received a report that Mother

was intoxicated and fighting with an ex-boyfriend. When Aus. L. tried to stop the fight,

the ex-boyfriend began hitting him and the ex-boyfriend’s father pulled a gun on Aus. L.

¶9       Mother also continued to abuse drugs and alcohol. On February 9, 2012, the

Department received a report that Mother had left Aus. L. and J.W. with another

ex-boyfriend and had been missing for three days. When the ex-boyfriend went to

Mother’s house, she refused to open the door because she “was too drunk.” Later that

afternoon, Mother came to the ex-boyfriend’s house to pick up her children, but told Aus.

L. that he had to move out. Aus. L. subsequently moved in with Father.1


1
    Father is J.W.’s biological father, not Aus. L.’s.
                                                4
¶10   Over the next few days, Christopher Bly (Bly), a Child Protection Specialist for

the Department made unannounced visits to Mother’s home but no one answered the

door. Bly was subsequently informed by Aus. L.’s juvenile probation officer that Aus. L.

was residing in a youth home in Bozeman because Mother had kicked him out of Father’s

residence.   Bly visited Aus. L., who stated that he was sad that his mother had

“abandoned him” but was more concerned that there was no one to take care of J.W. in

his absence. Aus. L. usually took care of J.W. when Mother was drinking.

¶11   On February 29, 2012, the Department filed a Petition for Emergency Protective

Services and Temporary Investigative Authority, seeking leave to investigate J.W.’s

well-being and to temporarily place J.W. in a home out of Mother’s custody if the

circumstances required. The District Court granted the request, and ordered that David

Stanley serve as J.W.’s Court Appointed Special Advocate and Guardian Ad Litem

(CASA Stanley). The Department and CASA Stanley immediately tried to make contact

with Mother to assess J.W.’s well-being. However, Mother did not answer or return their

phone calls. On March 2, 2012, Father, with Mother’s permission, absconded with J.W.

to Washington State, where he left J.W. with her maternal grandmother.

¶12   CASA Stanley visited the grandmother’s home in Washington and described the

living situation as “wholly inappropriate” for J.W. The grandmother had neither the

resources nor the personal strength to care for J.W. She struggled with alcohol abuse and

had been the subject of prior child neglect findings in that state. CASA Stanley described

Mother’s placement of J.W. with the grandmother as “desperate and neglectful.” After it

                                        5
was determined the maternal grandmother was not an appropriate placement, J.W. was

returned to Montana and placed in a foster home.

¶13      On August 20, 2012, the District Court conducted a hearing on the Department’s

petition to adjudicate J.W. a youth in need of care. At the conclusion of the testimony,

the court ruled that J.W. was a youth in need of care, based on Mother’s past history, her

action of sending J.W. to Washington, her general instability, and her ongoing drug use.

¶14      Throughout the Montana proceedings, Mother failed to cooperate with the

Department. She repeatedly failed to meet with social workers who were trying to assess

her parental fitness, and refused to participate in drug testing. Ultimately, the Department

was forced to seek a court order to obtain a hair sample, which tested positive for

methamphetamine.2 During the fall, when the Department asked Mother to undergo

urinalysis testing, Mother agreed to the testing but then failed to show up.

¶15      On October 11, 2012, the Department filed a petition (1) to forego reasonable

efforts to reunify Mother and J.W. and (2) to terminate Mother’s parental rights. On

December 6, 2012, the District Court held a hearing to address both issues.

         December 6, 2012 Termination Hearing

¶16      Colorado child-protection worker Sarah Cassano (Cassano) testified that CCDHS

first become involved with Mother in 2005, when it received reports that Aus. L. was

outside in the cold because his mother would not let him in the home. Cassano said that

CCDHS’s investigation revealed that Mother had a drug problem and could not


2
    Mother also admitted to taking “ecstasy” during the summer of 2012.
                                              6
adequately parent her children.      Cassano also noted that Mother failed to take

responsibility for her actions and their impact on her children, and that she had been

dishonest throughout the CCDHS’s case. Mother’s significant problems and her inability

to take responsibility led Cassano to believe that Mother would not be able to correct her

parenting problems within a reasonable period of time.        The District Court found

Cassano’s testimony “credible” and “consistent with the other witnesses and documents.”

¶17   Barbara Maddren-Broughton (Maddren-Broughton), the child protective services

supervisor for Park County Child and Family Services, testified that her department first

dealt with Mother in 2011, but had received the most recent reports of neglect on

February 9, 2012.     This was when the Department was notified that Mother was

“intoxicated while parenting” and leaving her children with ex-boyfriends for days

without returning. Maddren-Broughton also confirmed the details of Father taking J.W.

to Washington with Mother’s permission. On cross-examination, Maddren-Broughton

admitted that the Department had decided to seek termination of Mother’s parental rights

without a current psychological evaluation or chemical dependency evaluation.

¶18   Prior to the hearing, the Department retained Dr. Michael Butz (Dr. Butz), a

clinical psychologist, to perform a “desk review” of various records pertaining to

Mother’s parenting. Dr. Butz concluded that several factors indicated that Mother would

not change her unfit behavior in the foreseeable future.      First, Dr. Butz noted that

psychological evaluations of Mother from 2007 and 2012 indicated that she “suffers from




                                        7
Personality Disorder and Cyclothymia.”3 These disorders, Dr. Butz explained, have an

“enduring and lasting effect” on Mother’s behavior, which explained why her parenting

had been “insufficient, neglectful and abusive even without the presence of verifiable

substance abuse.” Second, Dr. Butz noted that the documentation indicated that Mother

felt that she had done nothing wrong and, thus, had no reason to change her behavior.

Dr. Butz pointed out that according to the prevailing psychology literature Mother’s

failure to acknowledge her problems indicated she was unlikely to make substantial

changes in the “foreseeable future.”4 Third, Dr. Butz testified that Mother’s pattern of

abuse and neglect of children, across three states, supported the conclusion that her unfit

behavior would not change. Fourth, Dr. Butz noted that it was significant that Mother

had not shown, over all of her years of parenting trouble, a motivation to change her

behavior. Dr. Butz concluded that, without such motivation, all treatments were likely to

fail to prompt change in her behavior: “All therapies for the personality disorders, the

more recent updates on treating Cyclothymia could be reviewed and the latest on

Polysubstance Dependence with regard to methamphetamine could be analyzed but none



3
  Dr. Butz explained that “cyclothymia” was an “enduring mood disorder” that was similar to but
“lighter” than bipolar disorder. He testified that Mother’s diagnosis of a “personality disorder”
generally meant that she had experienced a “developmental rift” when growing up that left her
with “histrionic, borderline, and narcissistic traits.”
4
  Dr. Butz attributed Mother’s lack of motivation to her placement in the “precontemplation
stage” in the “Stages of Change” model: “Precontemplation is the stage at which there is no
intention to change behavior in the foreseeable future. Many individuals in this stage are
unaware or under aware of their problems.” (Quoting James O. Prochaska & Carlo C.
DiClemente, In Search of How People Change: Applications to Addictive Behaviors, American
Psychologist 1103 (Sept. 1992).)
                                         8
of this would have any impact so long as [Mother] remains unmotivated for change.”

The District Court found Dr. Butz’s testimony persuasive.

¶19    Mother called Joseph Scalia (Scalia), the therapist who treated Aus. L., to counter

Dr. Butz’s testimony. Scalia observed Mother with her children “approximately” eight

times. Although he had not reviewed any of the Colorado records pertaining to Mother’s

previous terminations, Scalia concluded the “odds” of Mother psychologically prevailing

over her “demons sufficiently to mother a child in the near future” were “substantial.”

The District Court rejected Scalia’s testimony because the court found “no basis for the

conclusion that [Mother’s] conduct will change in a reasonable amount of time.”

¶20    The Livingston Assistant Chief of Police testified as to Mother’s contacts with law

enforcement between 2009 and 2012. He stated that Mother was involved in several

domestic violence situations where the police were called, as well as numerous traffic

violations and arrest warrants. The District Court concluded: “While not all of the[se]

contacts are serious, they show a general disregard for the law and continuation of the

pattern of irresponsibility which carries over to her parenting.”

¶21    Donna Delich (Delich), a clinical social worker and licensed addition counselor,

testified about Mother’s substance-abuse treatment. Delich stated that Mother had only

come to see her during two time periods: (1) after Colorado instituted its proceeding to

terminate Mother’s rights to A.K.M.H. and Q.D.J.W. and (2) after the Department

instituted the abuse and neglect proceedings as to J.W. Delich further testified that

Mother had recently taken steps to address her drug and alcohol problems; however, it

                                          9
would take two years before Mother was functioning near her normal levels. The District

Court found that Delich’s testimony exemplified Mother’s behavior of only taking

corrective action at the 11th hour of termination proceedings: “[Mother’s] history with

Ms. Delich is typical. [Mother] would seek and attend counseling when something like a

hearing was hanging over her head, but otherwise shows little motivation to change.”

¶22    Mother also called Annie Fry (Fry), a child mentor who had supervised Mother’s

thirty-three visits while J.W. was in foster care. Fry stated that she saw “a strong bond

between mother and daughter” and only positive interactions during these visits.

However, on cross-examination, Fry admitted that a positive interaction during visits was

“typical.”

¶23    Mother had Linden Kacick (Kacick), a licensed addiction counselor, testify as to

Mother’s recent participation in a drug and alcohol treatment program. Kacick described

Mother’s participation in the treatment as “very cooperative,” and noted that she was

“motivated to make and seek changes in her life.” However, Kacick was surprised to

learn that Mother had gone through a similar treatment program during the Colorado

proceedings that had ultimately been unsuccessful in correcting her parenting problems.

¶24    Post-hearing, the District Court issued its order concluding that the Department

need not make reasonable efforts to reunite Mother and J.W., and terminating Mother’s

parental rights to J.W.   The District Court reasoned that reunification efforts were

unnecessary because Mother had her parental rights to A.K.M.H. and Q.D.J.W.

previously terminated and the circumstances pertaining to those terminations were

                                       10
“identical” to Mother’s unfit parenting of J.W. The court further found that it was in the

best interests of J.W. to terminate Mother’s parental rights.

                               STANDARD OF REVIEW

¶25    “We review for abuse of discretion a district court’s termination of parental

rights.” In re C.J., 2010 MT 179, ¶ 20, 357 Mont. 219, 237 P.3d 1282. This Court

reviews a district court’s conclusions of law for correctness and its findings of fact to

determine if they are clearly erroneous. In re D.B.J., 2012 MT 220, ¶ 23, 366 Mont. 320,

286 P.3d 1021.     Whether a district court violated a parent’s constitutional right to

“fundamentally fair procedures” in termination proceedings, is “a question of

constitutional law, for which our review is plenary.” In re T.S.B., 2008 MT 23, ¶ 20, 341

Mont. 204, 177 P.3d 429.

                                      DISCUSSION

¶26    Sections 41-3-601 through 612, MCA provide the “procedures and criteria by

which the parent-child legal relationship may be terminated by a court if the relationship

is not in the best interest of the child.” Section 41-3-602, MCA. These provisions are

only operative when “there has been a determination that a child is abused or neglected,

as defined in 41-3-102.” Section 41-3-602, MCA. “Abused and neglected” is defined as:

“(i) actual physical or psychological harm to the child; (ii) substantial risk of physical or

psychological harm to a child; or (iii) abandonment.” Section 41-3-102(7), MCA. If a

child is “abused or neglected,” the court is authorized to terminate the parent-child

relationship if it finds that any of the criteria enumerated in § 41-3-609(1), MCA, exist.

                                         11
In re A.H.D., 2008 MT 57, ¶ 17, 341 Mont. 494, 178 P.3d 131; In re K.J.B., 2007 MT

216, ¶ 25, 339 Mont. 28, 168 P.3d 629. Section 41-3-609(1)(d), MCA, permits the

termination of the parent-child relationship when “the parent has subjected a child to any

of the circumstances listed in 41-3-423(2)(a) through 2(e)[.]” Section 41-3-423(2)(e),

MCA, in turn permits termination when the parent has “had parental rights to the child’s

sibling or other child of the parent involuntarily terminated and the circumstances related

to the termination of parental rights are relevant to the parent’s ability to adequately care

for the child at issue.”

¶27    In addition to providing grounds for termination, § 41-3-423(2)(e), MCA, relieves

the Department of typical requirements under certain circumstances. Typically, before

seeking termination of parental rights, the Department must make “reasonable efforts” to

remedy the parenting problems that prompted its intervention—by providing, for

example, drug treatment programs—so as to preserve and reunify the family. Section 41-

3-423(1), MCA (“The department shall make reasonable efforts to prevent the necessity

of removal of a child from the child’s home and to reunify families.”). However, § 41-3-

423(2)(e), MCA, exempts the Department from providing these services if a court

determines that “preservation and reunification services need not be provided[.]” See In

re A.H.D., ¶ 18 (“Section 41-3-423(2)(a)-(e) frees DPHHS from making further efforts to

reunify the family once the statutory elements are met.”); In re Custody and Parental

Rights of A.P., 2007 MT 297, ¶ 17, 340 Mont. 39, 172 P.3d 105.




                                         12
¶28 1. Did the District Court err by failing to conduct a stand-alone hearing on
whether the Department should be required to make reasonable efforts to reunify Mother
and J.W.?

¶29    Mother alleges the District Court failed to employ fundamentally fair procedures

because it did not hold a separate “pre-hearing” to determine whether reunification of

J.W. with Mother was possible. The Department argues that Mother’s claim is without

merit because she was given the chance at the December 6, 2012 hearing to “present

evidence and cross examine all of the Department’s witnesses[.]” Thus, the Department

argues, Mother was provided with fundamentally fair procedures.

¶30    A parent’s right to the care and custody of their child is a fundamental liberty

interest, which can be terminated only through “fundamentally fair procedures.” In re

A.H.D., ¶ 12. In In re C.J., 2010 MT 179, 357 Mont. 219, 237 P.3d 1282, we analyzed

what constitutes “fundamentally fair procedures” when the Department seeks to terminate

parental rights based on a prior termination. There, the Department filed a petition to

terminate the parental rights of a mother who had her parental rights to two other children

previously terminated. In re C.J., ¶¶ 9, 13. The mother had significant mental-health

issues, learning disabilities, and abused drugs and alcohol. In re C.J., ¶ 5. Because of

these problems, the mother was unable to provide a safe and nurturing environment for

her first two children. In re C.J., ¶ 6. Five years later, the mother gave birth to C.J., and

the Department placed C.J. in protective custody because mother had induced her own

premature labor, her mental health issues, her lack of stable housing, her criminal

propensities, and the involuntary termination of her parental rights to her two other

                                         13
children. In re C.J., ¶ 11. Shortly after, the Department filed a petition requesting the

district court to (1) find that reasonable efforts to reunify C.J. and her mother were not

required and (2) terminate the mother’s parental rights. In re C.J., ¶ 13. The district

court held a combined hearing to take evidence relevant to both requests. In re C.J., ¶ 12.

On appeal, the mother argued that the district court should have held a separate hearing

on the Department’s request for an exemption from the “reasonable efforts” requirement.

In re C.J., ¶ 25. We held that the combined hearing constituted “fundamentally fair

procedures” that adequately protected the mother’s rights because she had notice and an

opportunity to be heard: she was on notice because the Department stated its intent to

forego reasonable efforts in its petition and she was given “ample opportunity” to be

heard during the combined hearing through the presentation of evidence and witnesses.

In re C.J., ¶¶ 14, 27.

¶31    Likewise, here, Mother was on notice that the Department was seeking to forgo

the typical “reasonable efforts” requirement and was given “ample opportunity” to be

heard. The Department put Mother on notice that it was seeking exemption from the

“reasonable efforts” requirement in its October 11, 2012 petition: “It is . . . requested that

the court make a judicial finding that preservation or reunification services are not

necessary pursuant to § 41-3-423(2)(e) and (5).” And, Mother had an opportunity to be

heard during the December 6, 2012 hearing.           At the hearing, Mother had several

witnesses testify on her behalf: her chemical dependency counselor, the woman who had

supervised Mother’s visits while J.W. was in foster care, and Aus. L.’s therapist. She

                                          14
also   elicited   helpful   testimony    from    the   Department’s    witnesses   through

cross-examination. By giving notice to Mother and allowing her to be properly heard, the

District Court employed “fundamentally fair procedures,” and was not required to hold a

separate, stand-alone hearing. In re A.H.D., ¶ 12; In re C.J., ¶ 27.

¶32 2. Did the District Court commit reversible error by failing to conduct a
permanency plan hearing?

¶33    Mother claims that the District Court’s order must be reversed because it failed to

conduct the necessary permanency plan hearing. The Department counters that although

the court failed to conduct the permanency plan hearing, the purpose of the hearing was

fulfilled because the Department was actively working with Father so J.W. could

permanently live with him.

¶34    Section 41-3-423(5) provides:

       If the court finds that preservation or reunification services are not
       necessary pursuant to subsection (2) or (3), a permanency hearing must be
       held within 30 days of that determination and reasonable efforts, including
       consideration of both in-state and out-of-state permanent placement options
       for the child, must be made to place the child in a timely manner in
       accordance with the permanency plan and to complete whatever steps are
       necessary to finalize the permanent placement of the child.

(Emphasis added.) We have explained that the “purpose of a permanency plan hearing is

to assure that children taken into protective custody by the [Department] do not languish

in foster care or fall through the proverbial administrative crack.” In re A.R., 2004 MT

22, ¶ 21, 319 Mont. 340, 83 P.3d 1287. While we do not condone the failure to hold a

permanency plan hearing, we have recognized that such failure is not a per se violation of

a parent’s rights. See e.g. In re A.R., ¶ 21; In re B.B., ¶ 27. So long as the Department’s
                                         15
actions are consistent with ensuring the child does not languish in foster-care or

administrative limbo, the district court’s failure to hold a permanency plan does not

violate the terminated parent’s right to fundamentally fair procedures. In re A.R., ¶¶ 15,

21-22 (mother’s rights not violated by court’s failure to conduct hearing within 30 days

because DPHHS was working with biological father on treatment plan in hopes to reunify

the children with him); In re B.B., ¶ 27 (parents’ rights not violated by court’s failure to

hold hearing because the “Department’s repeated efforts to reunite the children with their

parents, clearly demonstrate[d] the Department’s reunification goal.”).

¶35    Here, although the District Court failed to hold a permanency hearing, the

Department’s actions were consistent with the purposes of such a hearing. During the

same time it was seeking a judicial determination that reunification and preservation

services were not needed as to Mother, the Department had entered into a treatment plan

with J.W.’s father. One of the treatment plan’s explicit goals was to assess Father’s

ability to provide a “safe, appropriate, and stable home environment” for J.W. This plan

demonstrated that the purposes of a permanency hearing—to ensure that the Department

is moving forward with a permanent placement for the child—was being fulfilled. The

District Court’s failure to hold a permanency plan hearing did not violate Mother’s right

to fundamentally fair procedures. In re A.R., ¶ 21; In re B.B., ¶ 27.

¶36 3. Did the District Court err by concluding that the circumstances surrounding
Mother’s prior terminations in Colorado were relevant to her parenting of J.W.?

¶37    Mother argues that the problems giving rise to the Colorado termination of her

parental rights—she had moved to Montana, was involved in violent domestic
                                         16
relationships, and her unwillingness to acknowledge harm caused to her children—were

not present in her parenting of J.W., and, therefore the Colorado terminations are not

relevant to this proceeding.   The State counters that the Colorado proceedings are

relevant because the circumstances that led to the prior terminations have remained

unchanged: Mother continues to use dangerous drugs, is resistant to treatment, and

continues to be involved in relationships with domestic violence. These issues, the State

argues, have created a dangerous environment for J.W. just as it did for Mother’s

previous children.

¶38   At “any time during an abuse and neglect proceeding,” the Department may seek a

judicial determination that “preservation or reunification services need not be provided.”

Section 41-3-423(2), MCA. The court has the authority to make such a determination, if

the parent: “had parental rights to the child’s sibling or other child of the parent

involuntarily terminated and the circumstances related to the termination of parental

rights are relevant to the parent’s ability to adequately care for the child at issue.”

Section 41-3-423(2)(e), MCA. The court’s finding that (1) the parent’s parental rights

have previously been terminated and (2) that the circumstances surrounding the prior

termination are “relevant” to the current termination proceeding “must be supported by

clear and convincing evidence.”     Section 41-3-423(4), MCA; In re A.P., ¶ 23 (the

Department must show by clear and convincing evidence these two statutory

requirements have been met). Because it is undisputed that Mother has been subject to

previous involuntary terminations, we need only determine whether the District Court

                                        17
correctly concluded that the circumstances surrounding those terminations are “relevant”

to the current termination proceeding.

¶39    Circumstances surrounding previous involuntary terminations remain “relevant,”

“unless the circumstances have changed.” In re A.P., ¶ 30; In re K.J.B., ¶ 36. This

construction of “relevant” recognizes that a parent is not to be afforded multiple chances

to remedy the same problems at the expense of an abused or neglected child’s welfare:

“A prior termination, followed by a parent’s demonstration of continuing unfitness,

indicates that decisive termination of parental rights is the best way to protect a child’s

welfare.” Kathleen Haggard, Treating Prior Terminations of Parental Rights as Grounds

for Present Terminations, 73 Wash. L. Rev. 1051, 1053 (1998).

¶40    In re K.J.B., ¶¶ 3, 7, 9-10, dealt with termination of the parental rights of a mother

and father who had had their rights to four previous children terminated for being “unable

or unwilling to provide the child[ren] with the special care” they needed. The previous

children were all born with a “chromosomal abnormality” that left them needing

specialized care. In re K.J.B., ¶¶ 4, 9-10. The parents repeatedly failed to actively

participate with their treatment plans designed to teach them how to provide that care and

their parental rights were terminated. In re K.J.B., ¶¶ 5, 7. Later, K.J.B. was born with

the same chromosomal abnormality. In re K.J.B., ¶ 11. The Department petitioned to

terminate the parents’ rights and asked the court to find that reasonable efforts to reunify

the parents with K.J.B. were not required because of the previous terminations. In re

K.J.B., ¶ 13.    The District Court heard the testimony of several witnesses before

                                         18
concluding that reasonable efforts were not necessary because the circumstances present

in four previous terminations were relevant to their parenting of K.J.B. In re K.J.B., ¶ 21.

The parents appealed and we affirmed, reasoning the circumstances (the parents’ unfit

behavior) remained unchanged since the prior terminations:

       Our review of the record convinces us that DPHHS met its burden of
       establishing that [the parents] remain unable to safely and adequately
       address K.J.B.’s special needs and provide for her necessary care . . . . In
       this respect, their circumstances are unchanged from the circumstances
       surrounding and underlying their previous parental terminations. The
       District Court heard extensive testimony from numerous professionals who
       have worked with, observed or evaluated the parents . . . . Under these
       circumstances, it is apparent that the two critical circumstances—the
       parents’ limitations and the special needs of the child—that were relevant
       to the parents’ inability to care for their previous children had not changed.

In re K.J.B., ¶ 36; accord In re A.P., ¶¶ 29-30 (circumstances of prior termination

relevant because mother continued to make decisions detrimental to A.P.’s well-being).

¶41    Here, substantial evidence supported the District Court’s determination that

Mother’s unfit behavior remained unchanged since Colorado terminated her rights to

A.K.M.H. and Q.D.J.W. The testimony established that Mother continued to suffer from

the same mental health problems she did during the Colorado proceedings. Dr. Butz

reviewed psychological examinations of Mother from 2007 and 2012; both concluded

that Mother suffered from a personality disorder and “cyclothymia.” Testimony also

established that Mother continued to use dangerous drugs and abuse alcohol during her

parenting of J.W. A hair sample obtained from Mother by court order tested positive for

methamphetamine. The Department first began investigating Mother when it received

reports that she had left J.W. at an ex-boyfriend’s house and would not take her back
                                         19
because she “was too drunk.” Finally, the testimony established that Mother continues to

be involved in violent relationships that put her children in danger. On December 7,

2011, the Department received a report that Mother was intoxicated and fighting with an

ex-boyfriend. When Aus. L. stepped in to help, the ex-boyfriend’s father pointed a gun at

him. In addition, law enforcement testimony established that Mother had been involved

in several domestic violence situations.

¶42    These conditions once again contributed to Mother’s unacceptable parenting. Just

as she left A.K.M.H and Q.D.J.W. behind in Colorado when she moved to Montana,

Mother left J.W. with an ex-boyfriend for three days while she drank alcohol.5 Further,

she approved of Father’s absconding of J.W. to Washington, where the environment was

“wholly inappropriate” for a child; the grandmother was intoxicated while taking care of

J.W. and there was little food in the residence.         The competent testimony further

established that Mother is unlikely to change her unfit behavior in the “foreseeable

future.”   Dr. Butz testified that Mother’s psychological state and her track record

demonstrate that Mother did not have the necessary motivation to make the substantial

changes needed. To be sure, Mother did make what appear to be small steps in the right

direction just prior to the termination hearing—for example, she sought out




5
  Mother argues that her move to Montana was a primary reason that Colorado terminated her
parental rights, and that this reason is not relevant here because she has not moved anywhere.
However, Mother’s argument misses the point. Colorado terminated her parental rights, not
merely because she had moved, but because the move was evidence that she would abandon her
children. In this case, Mother likewise demonstrated her willingness to abandon J.W. when she
left her with an ex-boyfriend for three days while she was drinking.
                                             20
substance-abuse treatment.     However, Mother’s past demonstrates that she only

participates in treatment programs when a termination proceeding is pending.

¶43    The evidence that the circumstances surrounding Mother’s termination in

Colorado remained relevant to her parenting of J.W. was “definite, clear, and

convincing[.]” In re J.L., 277 Mont. at 289, 922 P.2d at 462. The District Court did not

abuse its discretion.

¶44    Affirmed.



                                               /S/ JIM RICE

We concur:

/S/ MIKE McGRATH
/S/ MICHAEL E WHEAT
/S/ LAURIE McKINNON
/S/ PATRICIA COTTER




                                       21
