                                                                                          May 7 2013


                                          DA 12-0678

             IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          2013 MT 123



IN THE MATTER OF:

E.Z.C. and E.B.C.,

         Youths in Need of Care.



APPEAL FROM:            District Court of the Sixth Judicial District,
                        In and For the County of Park, Cause No. DN 12-4 and 12-5
                        Honorable Laurie McKinnon, Presiding Judge


COUNSEL OF RECORD:

                 For Appellant:

                        Julie Brown, Montana Legal Justice, PLLC; Missoula, Montana

                 For Appellee:

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

                        Brett D. Linneweber, Park County Attorney; Livingston, Montana



                                                    Submitted on Briefs: March 20, 2013

                                                               Decided: May 7, 2013


Filed:

                        __________________________________________
                                          Clerk
Justice Michael E Wheat delivered the Opinion of the Court.

¶1        J.C. (Mother) appeals from an order of the Sixth Judicial District Court, Park County,

terminating her parental rights to her two children, E.B.C. and E.Z.C (the children). We

affirm.

¶2        We review the following issue on appeal:

¶3        Did the District Court err when it found Mother subjected the children to chronic

abuse or chronic, severe neglect and terminated her parental rights without requiring

reunification efforts and a treatment plan?

                    FACTUAL AND PROCEDURAL BACKGROUND

¶4        Mother and C.C. (Father) are the biological parents of the children. On January 18,

2012, law enforcement searched Mother’s home, where she resided with three-year-old

E.B.C. and seven-year-old E.Z.C, and discovered methamphetamine and drug paraphernalia

in Mother’s room. Mother and E.B.C. were home during the search; E.Z.C. was at school.

Father was incarcerated in Lewis County Washington jail at the time. Mother was arrested

for possessing methamphetamine and for criminal endangerment and the children were

placed in foster care.

¶5        On January 25, 2012, the Department of Public Health and Human Services

(Department) filed a petition for immediate protection and emergency protective services, for

adjudication as youth in need of care and for temporary legal custody (TLC) in regard to the

children. The District Court granted immediate protection and emergency protective



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services and, after conducting a show cause hearing on February 28, 2012, determined there

was probable cause the children were youths in need of care and granted the State TLC.

¶6     On April 2, 2012, the Department filed a petition to terminate Mother’s parental rights

and approve a permanency plan. The Department asserted that Mother subjected the

children to aggravated circumstances pursuant to § 41-3-423(2)(a), MCA, and reunification

efforts were not required. An adjudicatory hearing was held on May 14, 2012, at which time

the court heard testimony from several witnesses. Among them was Jacqui Poe (Poe), a

Department social worker with extensive experience and training in the investigation of child

abuse, neglect, and endangerment. Poe is the case worker assigned to this matter and was

called upon to find placement for the children after law enforcement searched Mother’s

home. Poe testified to the dirty conditions of the house—it was cluttered, had “stuff that was

splattered on the side of the wall,” and smelled like “rotten food, garbage, dirty laundry,

body odor, cigarette smoke . . . .” Poe observed rats and animal feces on the children’s bed,

and noted the bed did not have any sheets on it. According to the children, the rats were

pets. Poe stated E.B.C. was dirty with matted, tangled hair and had chocolate all over her

face. E.B.C. told Poe that she consumed a candy bar for breakfast, and E.Z.C. later said that

their diet was chips, candy, and popsicles. Poe also observed sores on E.B.C.’s face and

scratches on her arms and legs. E.B.C. did not have warm winter clothing.

¶7     After transporting E.B.C. to a foster home, Poe picked up E.Z.C. from school and

noted that he also did not have warm winter clothing. Poe testified that E.Z.C. told her he

felt unsafe at home because he and E.B.C. were frequently left alone—sometimes at night—
                                              3
and that he was required to take care of his three-year-old sister. Poe also stated that E.Z.C.

described drug paraphernalia he had seen in his home and explained what Mother used them

for. Poe testified that after the children were put in foster care, E.B.C. began to exhibit

“bizarre behaviors” that were consistent with methamphetamine use. She had night sweats,

was vomiting, and complained of things “crawling all over her.” Patrick Minno, a scientist

who conducts drug testing at Omega Laboratories, testified that a hair follicle test performed

on E.B.C. came back positive for a low level of methamphetamine use.

¶8     Poe briefly testified about Mother’s prior involvement with the Department and other

child protective services. Specifically, Poe stated that in 2002, Mother relinquished her

parental rights to a child in Washington State because the child was born with

methamphetamine in his system. A few years later, in 2007, E.Z.C. was placed in foster care

for approximately six months after Mother and Father were arrested for operating a

marijuana grow operation and Mother admitted to using methamphetamine.

¶9     Detective Shawn Misner, one of the many detectives who searched Mother’s home on

January 18, 2012, also testified at the adjudicatory hearing. Detective Misner described the

methamphetamine and drug paraphernalia discovered in Mother’s bedroom, and noted the

items were found in places that were “very accessible to a young child.”

¶10    Jim Huntzicker, the principal at E.Z.C.’s school, testified to E.Z.C.’s attendance and

performance at school. Huntzicker informed the court that when E.Z.C. lived with Mother

he missed approximately one quarter of his school days and often times did not complete his

homework. During this time E.Z.C. was quiet, constantly complained of being hungry, and
                                              4
on occasion was not picked up from school by Mother. Huntzicker testified to a drastic

improvement in E.Z.C.’s attendance and school performance since being placed in foster

care.

¶11     The court also heard from Dr. Todd Steinmetz and Dr. Kathryn Wells. Dr. Steinmetz

is an expert in pediatric dentistry who has provided dental care to E.B.C. since 2009. Dr.

Steinmetz testified that over the past few years he has treated E.B.C. for tooth decay and an

“excessive amount of childhood cavities,” which included crowning and performing root

canals on all four of E.B.C.’s front primary incisors.

¶12     Dr. Wells is an expert in child abuse pediatrics who testified about the risks and side

effects associated with methamphetamine use.          Specifically, Dr. Wells testified that

methamphetamine ingestion by a young child could be toxic to the child and potentially

fatal. Further, Dr. Wells addressed the concern that methamphetamine users cannot meet the

needs of children, explaining that users often binge on the drug and then crash for days at a

time during which they prioritize their drug use beyond anything else, including caring for

their children.

¶13     At the end of the hearing, the District Court determined the children were “chronically

and severely neglected” and were youths in need of care. The court ordered a dispositional

hearing for June 26, 2012.

¶14     At the dispositional hearing, Poe expanded upon her testimony of the Department’s

prior involvement with Mother. Poe explained that in March 2007, E.Z.C. was found

wandering by a creek unattended. E.Z.C. was three at the time. Law enforcement attempted
                                               5
to locate Mother and Father at their home; Father was home but would not come to the door,

and Mother was at work. When Mother came home, law enforcement entered the house and

observed that it was extremely dirty and unsanitary and contained a marijuana grow

operation of fifty-two marijuana plants.            Mother stated she had been using

methamphetamine—she admitted she would use it in the bathroom when E.Z.C. was

sleeping and then wipe down the surface of the table. E.Z.C. was placed in foster care and

the Department offered Mother and Father treatment plans, which included professional

addiction treatment. Mother and Father successfully completed the plans and E.Z.C. was

returned to their care.

¶15     Poe testified that since the 2007 incident, Mother’s neglect has worsened.

Specifically, she described E.B.C.’s severe dental decay, the extremely unsanitary conditions

in which the children live—which include a rat feces infested bed—the exposure of both

children to methamphetamine, and E.B.C.’s positive test for methamphetamine use. Further,

Poe testified that there is a significant burden on E.Z.C. that did not exist in 2007—the duty

to parent his three-year-old sister with such things as toileting, dressing, providing food, and

running bath water because of Mother’s neglect. Poe also indicated that there were concerns

of domestic violence in the home between Mother and her boyfriend, Kenney Swanson, and

possible harassment of E.B.C. by Swanson. Poe stated E.B.C. was fearful of men when

living with Mother and would often defecate in her pants whenever a male approached her.

Poe testified that the children have been doing much better since their placement in foster

care.
                                               6
¶16    Poe explained that the Department sought termination of Mother’s parental rights

based on its ten-year involvement with Mother during which she parented with “a blatant

disregard for the children’s safety.” Poe noted that the Department already offered Mother a

treatment plan after the 2007 incident. Because the neglect has only worsened with time and

Mother continues to expose the children to severe danger, Poe did not recommend another

treatment plan before terminating Mother’s rights.

¶17    Laraine Lambert (Lambert), the CASA in the matter, also testified at the dispositional

hearing. Lambert has observed Mother’s visits with the children since their removal, and

testified to an improvement in their contact and bond. Lambert stated she was “on the fence”

regarding whether Mother should receive a treatment plan or, rather, have her parental rights

terminated. Lambert testified that based on her “gut feeling” she believed there was “some

possibility and potential” with Mother, and she therefore recommended a treatment plan.

¶18    On October 11, 2012, the District Court entered an order terminating Mother’s

parental rights. The court took judicial notice of the prior proceedings and testimony and

incorporated them into its order. The court found the severity of the abuse and neglect had

worsened over the Department’s ten-year involvement with Mother, and Mother had failed

to place the best interests of the children above her drug-seeking behaviors. The court

determined Mother subjected the children to circumstances listed in § 41-3-423(2)(a), MCA,

which amount to chronic abuse or chronic, severe neglect that create a substantial risk of

serious bodily injury or death. Accordingly, the court terminated Mother’s parental rights of

the children without requiring reunification efforts or a treatment plan.
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                                STANDARD OF REVIEW

¶19    We review a district court’s termination of parental rights for abuse of discretion. In

re T.W.F., 2009 MT 207, ¶ 17, 351 Mont. 233, 210 P.3d 174. A court abuses its discretion

when it acts arbitrarily, without employment of conscientious judgment or in excess of the

bounds of reason, resulting in substantial injustice. In re A.J.W., 2010 MT 42, ¶ 12, 355

Mont. 264, 227 P.3d 1012. We review the findings of fact to determine whether they are

clearly erroneous and the conclusions of law to determine whether they are correct. In re

T.W.F., ¶ 17. A finding of fact is clearly erroneous if it is not supported by substantial

evidence, if the court misapprehended the effect of the evidence or if this Court is left with a

definite and firm conviction that the district court made a mistake. In re T.W.F., ¶ 17.

                                       DISCUSSION

¶20    Did the District Court err when it found Mother subjected the children to chronic

abuse or chronic, severe neglect and terminated her parental rights without requiring

reunification efforts and a treatment plan?

¶21    A parent’s right to the care and custody of her child is a fundamental liberty interest

which must be protected by fundamentally fair proceedings. In re A.J.W., ¶ 15. A court may

terminate the parent-child legal relationship upon clear and convincing evidence that the

parent has subjected a child to aggravated circumstances, including but not limited to

abandonment, torture, chronic abuse, or sexual abuse or chronic, severe neglect of a child.

Sections 41-3-609(1)(d) and -423(2)(a), MCA. If the District Court makes this finding,



                                               8
reunification efforts and a treatment plan are not required. Sections 41-3-609(4)(a) and -

423(2)(a), MCA.

¶22    Clear and convincing evidence is

       Simply a requirement that a preponderance of the evidence be definite, clear,
       and convincing, or that a particular issue must be established by a
       preponderance of the evidence or by a clear preponderance of the proof. This
       requirement does not call for unanswerable or conclusive evidence. The
       quantity of proof, to be clear and convincing, is somewhere between the rule
       in ordinary civil cases and the requirement of criminal procedure—that is, it
       must be more than a mere preponderance but not beyond a reasonable doubt.

In re A.J.W., ¶ 15 (citing In the Matter of E.K., 2001 MT 279, ¶ 32, 307 Mont. 328, 37 P.3d

690). The paramount concern is the health and safety of the child, and the district court must

give “‘primary consideration to the physical, mental and emotional conditions and needs of

the child.’” In re A.J.W., ¶ 15 (quoting § 41-3-609(3), MCA).

¶23    Mother contends the Department’s involvement with her case amounted to “random

and sporadic incidents” that do not show by clear and convincing evidence that she subjected

the children to chronic abuse or chronic, severe neglect. Mother cites In re D.S., 2005 MT

275, 329 Mont. 180, 122 P.3d 1239, and In re M.N., 2011 MT 245, 362 Mont. 186, 261 P.3d

1047, as the type of circumstances necessary for a district court to find chronic abuse or

chronic, severe neglect, and maintains her case is distinguishable because her history with

the Department is not as extensive and the neglect not as severe.

¶24    In D.S., the district court heard several witnesses testify to the impact that A.S.’s

methamphetamine abuse had on her son, D.S. D.S. spent years floating from one person’s

home to another while A.S. was incarcerated or undergoing drug treatment, and as a result
                                              9
did not form the strong bonds or experience the stability necessary to develop normally. In

re D.S., ¶ 25. Because of inconsistent caregiving and D.S. not feeling safe or secure in his

surroundings, D.S. suffered from extreme anxiety and emotional problems and was

diagnosed with anxiety disorder and reactive attachment disorder. In re D.S., ¶¶ 26-29.

Once D.S. was placed in a foster home, he was “happy, calm and growing to trust adults.” In

re D.S., ¶ 30. We concluded there was substantial evidence for the district court to find that

A.S. subjected D.S. to chronic and severe emotional neglect and to terminate parental rights.

In re D.S., ¶ 31.

¶25    In M.N., we again upheld a district court’s decision to terminate parental rights

without requiring reunification efforts or a treatment plan due to a finding of aggravated

circumstances. There, the Department’s involvement with the parents began in 2005 when

the father’s two children from a previous marriage were adjudicated as youths in need of

care. In re M.N., ¶ 2. The father failed to complete his treatment plan and the children were

placed with his ex-wife. In re M.N., ¶ 2. Later, in an attempt to place the children back in

the father’s care, the Department provided services to the parents to teach them how to

maintain a safe home and instruct them on family skill building, behavior skill building, and

organization. In re M.N., ¶ 2. However, the Department ultimately determined the children

could not be placed in the parents’ home and the father relinquished his rights to the

children. In re M.N., ¶ 3.

¶26    In 2008, a child protection specialist with the Department visited the parents’ home on

three different occasions and found it progressively messy and below minimum safety
                                             10
standards. In re M.N., ¶ 4. The parents had one child living with them at this time. The

Department established a treatment plan for the parents and provided extensive services over

the next fourteen months, including parenting and basic life skills training. In re M.N., ¶¶ 5-

6. However, in 2010 the parents ceased using all services and, not long after, their child was

admitted to the hospital for a depressed skull fracture—the cause of the injury unknown. In

re M.N., ¶¶ 6-7. At this time, a social worker observed the home to be extremely dirty and

saw the mother with a moldy bottle. In re M.N., ¶ 8. The Department sought determination

that reasonable efforts at reunification were not required under § 41-3-423(2)(a), MCA, and

petitioned for termination of parental rights. In re M.N., ¶ 11. The district court granted the

Department’s petition, determining the parents’ behavior was “‘not likely to change over

time’ and despite the love they had for the children, it was clear the needs of the children

were ‘simply above the parental capacity of these parents.’” In re M.N., ¶ 13.

¶27    On appeal, we noted that the legislature did not define the term “chronic” under Title

41, and we thus looked to the dictionary definition to determine the plain meaning of the

word. In re M.N., ¶ 27. Webster’s Dictionary defines “chronic” as “marked by long

duration, by frequent recurrence over a long time, and often by slowly progressing

seriousness.” Webster’s Third New International Dictionary 402 (G & C Merriam Co.

1961); In re M.N., ¶ 27. We concluded “the parents’ history, combined with the neglect

which precipitated the filing of the 2010 petition, amounted to recurring instances over a

long time, or chronic neglect.” In re M.N., ¶ 30. Further, we found that the “unsafe and

unsanitary home, a serious and unexplained head injury to their child, failure by the parents
                                              11
to attend therapy treatments for the children, and cancellation of important family based

services” was severe. In re M.N., ¶ 30.

¶28    In the case at hand, we disagree with Mother’s assertion that her “random and

sporadic” incidents of neglect do not constitute chronic abuse or chronic, severe neglect.

“Discrete instances of neglect, when viewed within a consistent pattern of similar behavior,

provide a clear basis by which a district court can find ‘chronic, severe neglect.’” In re M.N.,

¶ 30. Similar to D.S. and M.N., Mother’s history of drug use and neglect of her children

began several years ago and, despite having received services and a treatment plan in the

past, only worsened with time. First, Mother gave birth to a child with methamphetamine in

his system. A few years later, Mother allowed three-year-old E.Z.C. to wander unattended

by a creek. During this time, Mother had a marijuana grow operation in her dirty, unsanitary

home, and admitted to using methamphetamine while parenting. Most recently, the

Department observed Mother subjecting the children to similar types of abuse and neglect,

although even more severe. The court heard substantial testimony about the exceptionally

dirty and unsanitary conditions in which the children were living, their poor diet, E.B.C.’s

extreme tooth decay, the children frequently being left unattended and exposed to drugs, and,

perhaps most severe, E.B.C.’s positive test for methamphetamine use.

¶29    We conclude that like M.N., Mother’s actions amounted to chronic, severe neglect

because they occurred over a long duration, were frequently recurring, and became

increasingly serious. As we have previously stated, “[c]hildren need not be left to ‘twist in

the wind’ before neglect may be found chronic and severe.” In re M.N., ¶ 29.
                                              12
¶30    Mother asserts the District Court relied predominantly on Poe’s testimony and

completely ignored the testimony offered by Lambert, which included a recommendation for

a treatment plan. To the contrary, the court took Lambert’s testimony into consideration—

noting in its order that Lambert testified she was on the fence between a treatment plan and

termination, and that her decision had a lot to do with her gut feelings—but ultimately was

persuaded by Poe’s testimony. It is within a court’s realm to determine the credibility of

witnesses and the weight to be given their testimony. In re M.W., 2004 MT 301, ¶ 35, 323

Mont. 433, 102 P.3d 6. In this case, the record reveals the District Court’s conclusion that

Mother’s abuse and neglect of her children has worsened over the past ten years and that

reunification efforts and another treatment plan are not in the children’s best interests is

supported by the testimony presented.

¶31    In her reply brief, Mother argues that the District Court also erred by failing to make a

finding regarding whether Mother’s condition or conduct that caused the Department’s

involvement was likely to change within a reasonable time. However, this argument was not

raised in Mother’s opening brief, and we therefore will not address it. See M. R. App. P.

23(c); Pengra v. State, 2000 MT 291, ¶ 13, 302 Mont. 276, 14 P.3d 499 (holding that this

Court will not address the merits of an issue presented for the first time in a reply brief).

                                      CONCLUSION

¶32    For the reasons stated above, we conclude the District Court did not abuse its

discretion in terminating Mother’s parental rights without requiring reunification efforts and

a treatment plan.
                                              13
¶33   Affirmed.

                        _________________________________
                        /S/ MICHAEL E WHEAT

We concur:

/S/ MIKE McGRATH
/S/ BETH BAKER
/S/ BRIAN MORRIS
/S/ JIM RICE




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