                                                                                             March 26 2013


                                           DA 12-0559

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2013 MT 76N



IN THE MATTER OF:

K.M. and R.M.

         Youths in Need of Care.



APPEAL FROM:            District Court of the Seventh Judicial District,
                        In and For the County of Dawson, Cause Nos. DN-10-015 and DN-10-016
                        Honorable Katherine M. Bidegaray, Presiding Judge


COUNSEL OF RECORD:

                 For Appellant:

                        Elizabeth Thomas, Attorney at Law, Missoula, Montana

                 For Appellee:

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

                        Anne Sheehy Yegen, Assistant Attorney General, Child Protection Unit,
                        Billings, Montana



                                                    Submitted on Briefs: February 20, 2013

                                                                Decided: March 26, 2013




Filed:

                        __________________________________________
                                          Clerk
Justice Patricia O. Cotter delivered the Opinion to the Court.

¶1     Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not

serve as precedent. Its case title, cause number, and disposition shall be included in this

Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana

Reports.

¶2     Mother appeals the order terminating her parental rights to her two minor

daughters on the ground that the State failed to make reasonable efforts to assist her in

successfully completing her treatment plan.

                 FACTUAL AND PROCEDURAL BACKGROUND

¶3     The Department of Health and Human Services, Child and Family Services

Division (CFSD) has been involved with J.L. (Mother) and J.M. (Father) since 2006

when their two older children were removed and permanently placed in kinship foster

care. In March 2009, Mother gave birth to R.M. CFSD remained actively involved with

the family as a result of multiple reports alleging physical neglect of the newborn.

During this time neither parent consistently complied with CFSD’s orders or instructions.

In May 2010, K.M. was born.

¶4     In July 2010, Mother and Father went out of town for several days leaving R.M.

and infant K.M. with babysitters. Mother, who had a prescription for and regularly used

methadone, instructed the babysitter to give liquid methadone to K.M. because she feared


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the baby would go into withdrawal while she was away and not breast-feeding. The

authorities were notified but by that time K.M. had received methadone doses for four

days. K.M. was hospitalized and released two days later. Both girls were removed from

the home. In August 2010, the children were returned to their parents under CFSD’s

Temporary Investigative Authority.

¶5     In March 2011, the children were adjudicated youths in need of care and the State

was granted temporary legal custody of the children but they continued to reside in the

family home. In May 2011, the District Court approved and ordered treatment plans for

Mother and Father. Mother and Father thereafter separated. In August 2011, after CFSD

received a corroborated report that Mother was using intravenous drugs, the children

were again removed from Mother’s care. In October 2011, Mother’s Treatment Plan was

extended to give her more time to complete the required goals and tasks, one of which

was reunification with the children.

¶6     In April 2012, the State petitioned for permanent legal custody and termination of

both parents’ parental rights on the grounds that the parents had not successfully

completed their treatment plans and were unlikely to do so within a reasonable time.

¶7     On July 13, 2012, the District Court conducted the first day of the termination

hearing. Father relinquished his parental rights and consequently is not a party to this

appeal. Following a full day of testimony, the hearing was continued to August 6, 2012.

¶8     On August 17, 2012, the District Court issued its Findings of Fact, Conclusions of

Law, and Order Terminating Mother’s Parental Rights and Granting Permanent Legal

Custody to Department, With Right to Consent to Adoption to both children. Mother

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appeals, arguing the State failed to make reasonable efforts to assist her in successfully

completing her treatment plan.      Notably, she does not appeal the District Court’s

conclusion concerning adjudication of the children as youths in need of care, her failure

to comply with her Treatment Plan or her lack of success, or whether her conduct

rendering her unfit was likely to change in a reasonable time. Addressing Mother’s

allegation that the State failed to assist her in successfully completing the Treatment Plan,

we disagree for the following reasons.

¶9     The record indicates that CFSD continued working closely with Mother from

shortly after R.M.’s birth in March 2009 until April 2012 when it petitioned for

termination. It provided resources to Mother to address her chemical dependency needs,

her mental health concerns and her parenting skills. The agency reported that Mother

frequently failed to attend meetings, was often uncooperative and belligerent, and

continued using drugs. She routinely refused mandatory random UA drug testing or was

unavailable for testing. She was witnessed (and videotaped) using intravenous drugs in a

public grocery store bathroom. Additionally, she was charged with theft for allegedly

pawning stolen items. She failed to maintain consistent contact with her social worker

and failed to attend, or arrived late for, many counseling sessions. These failures are not

the fault of CFSD; these failures are Mother’s for which she alone is responsible. The

agency worked with Mother for two years and concluded that the behavior that rendered

her unfit to parent her children showed no signs of improving in a reasonable time. The

District Court complied with the applicable statutes, including but not limited to,



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§ 41-3-609(1)(f)(i)   and   (ii),   MCA,    and   the   State   met    its   burden   under

§ 41-3-422(5)(a)(iv), MCA.

¶10    We have determined to decide this case pursuant to Section I, Paragraph 3(d) of

our Internal Operating Rules, which provides for noncitable memorandum opinions. The

District Court’s findings of fact are supported by substantial evidence and the legal issues

are controlled by settled Montana law, which the District Court correctly interpreted.

Furthermore, there was no abuse of discretion.

¶11    We affirm.


                                                  /S/ PATRICIA COTTER


We Concur:

/S/ MIKE McGRATH
/S/ BETH BAKER
/S/ LAURIE McKINNON
/S/ BRIAN MORRIS




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