                                                                                     January 13 2015


                                    DA 14-0399
                                                                                    Case Number: DA 14-0399

          IN THE SUPREME COURT OF THE STATE OF MONTANA
                                   2015 MT 13N



IN THE MATTER OF:

K.B.,

         A Youth in Need of Care.


APPEAL FROM:     District Court of the Thirteenth Judicial District,
                 In and For the County of Yellowstone, Cause No. DN 11-89
                 Honorable G. Todd Baugh, Presiding Judge


COUNSEL OF RECORD:

          For Appellants:

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

          For Appellee:

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

                 Scott D. Twito, Yellowstone County Attorney; Richard S. Helm, Deputy
                 County Attorney, Billings, Montana



                                             Submitted on Briefs: December 24, 2014
                                                        Decided: January 13, 2015


Filed:

                 __________________________________________
                                   Clerk
Justice Beth Baker delivered the Opinion of 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     S.B. (Mother) appeals an order of the Thirteenth Judicial District Court

terminating her parental rights and granting the Montana Department of Public Health

and Human Services (Department) permanent legal custody of her son, K.B. Mother

argues that her parental rights should not have been terminated because the Department

failed to make reasonable efforts at reunification by denying visitation between Mother

and K.B. We affirm.

¶3     The Department sought temporary legal custody of K.B. in July 2011, following a

series of reports to and interventions by the Department arising from the parents’

substance abuse and domestic violence incidents. K.B., who was born in 2006, was

adjudicated as a youth in need of care in September 2011 by stipulation of the parents.

Treatment plans were approved for both parents on December 22, 2011, with no

objection.   Following several extensions of temporary legal custody, K.B.’s father

relinquished his parental rights in April 2013. The Department petitioned in June 2013

for termination of Mother’s parental rights. Hearing on the Department’s petition began

in September 2013, and was continued to January 27, 2014. On May 29, 2014, the
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District Court entered findings of fact and conclusions of law, and an order terminating

Mother’s parental rights.

¶4     K.B. was placed with a paternal uncle and aunt upon his removal from the family

home and remained in that placement at the time of the termination hearing. Dan Cerise,

L.C.P.C., began therapy with K.B. on June 22, 2011, in weekly and bi-weekly individual

and family therapy sessions. Cerise began to supervise visits between Mother and K.B.

in October 2011 at the Department’s request, after Department staff observed Mother

making inappropriate statements during visits with K.B., such as telling him that his aunt

and uncle were lying to him and talking to him about coming home soon. Although

Cerise counseled Mother on the ground rules for appropriate behavior during visits,

Mother was emotional and crying during visits with K.B. and openly attempting to

question Cerise in front of her son about why K.B. could not be returned to her custody.

¶5     Several visits had to be cancelled because of Mother’s arrest and incarceration.

After Mother was arrested again on November 30, Cerise advised the Department that the

visits needed to stop because of the impact on K.B. Cerise told the court during an April

2013 hearing that Mother’s behaviors and the disruptions from her arrests had serious

negative impacts on K.B., including unprovoked incidents of violence against other

children at school and banging his head into the wall. Cerise explained to the court that

when the visit with K.B. was cancelled after Mother’s November 30 arrest, K.B. “just

curled up and -- into a ball, shut down.”


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¶6      Contact was stopped completely while Mother entered treatment through the

Passages program at the Montana Women’s Prison.                Cerise facilitated a gradual

reintroduction between Mother and K.B. beginning the following summer, first through

letters and then in-person visits starting in July 2012. Although the first visits that

summer went well, K.B.’s behavioral problems in the foster home again began to escalate

in August. At the same time, Mother began missing her own individual therapy sessions

and, on September 8, 2012, she was arrested again. Cerise testified that, after that arrest,

K.B. had numerous “major meltdowns,” both at home with his foster family and at

school, including sustained fits of crying, throwing himself on the floor, and increased

defiance at school. After this third arrest, Cerise recommended that visits be suspended

until Mother could demonstrate sustained compliance with treatment and stability in her

life.

¶7      Mother protested the termination of her visitation and argues on appeal that the

Department made it impossible for her to complete her treatment plan, which required her

to maintain and improve the parent-child bond. She argues that Cerise was punitive

toward her, demanding “a hundred percent” perfection before she would be allowed

contact with her child. She also argues that the District Court’s failure to act on Mother’s

requests for court-ordered visitation with K.B. was an abuse of discretion and the refusal

to allow contact constituted a constitutional violation of her right to parent.

¶8      We review a decision to terminate parental rights for abuse of discretion. In re

D.B., 2008 MT 272, ¶ 13, 345 Mont. 225, 190 P.3d 1072. We review a court’s findings
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of fact to determine whether they are clearly erroneous and its conclusions of law to

determine whether they are correct. In re T.S., 2013 MT 274, ¶ 21, 372 Mont. 79, 310

P.3d 538. We will not disturb a district court’s decision on appeal unless “there is a

mistake of law or a finding of fact not supported by substantial evidence that would

amount to a clear abuse of discretion.” In re T.S., ¶ 21 (quoting In re D.B., ¶ 17).

¶9     The District Court found that Mother had failed to complete her treatment plans:

she had not addressed her chemical dependency issues or refrained from the use of mood

altering chemicals; she did not successfully engage in individual counseling; she did not

follow the recommendations of her neuropsychological evaluation or her violence risk

assessment; she did not follow the conditions or restrictions ordered by the court in her

criminal cases; she did not work cooperatively with the Department; and she was

manipulative and dishonest with the professionals working with her. Mother does not

challenge any of these findings, but points out the tasks that she did complete prior to the

termination of visits with her son. Mother argues that the Department cut off whatever

hope she had of progressing on her treatment plan when it simply denied her all contact

with K.B. She argues that, because of the unrealistic standards of one counselor and the

Department’s obstinate support of that counselor over its statutory duties to make

reasonable efforts at reunification, she was denied the opportunity to advance toward

completion of her treatment plan and regain custody.

¶10    A district court may terminate the parent-child legal relationship if it finds by clear

and convincing evidence that:
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       (f) the child is an adjudicated youth in need of care and both of the
       following exist:

              (i) an appropriate treatment plan that has been approved by the court
              has not been complied with by the parents or has not been
              successful; and

              (ii) the conduct or condition of the parents rendering them unfit is
              unlikely to change within a reasonable time.

Section 41-3-609(1), MCA. “Section 41-3-423, MCA, obligates the Department to make

‘reasonable efforts’ to reunify families; however, the statute does not define the term and

indeed it would be impossible to do so, as each case must be evaluated on its own facts.”

In re K.L., 2014 MT 28, ¶ 41, 373 Mont. 421, 318 P.3d 691. Further, “[i]n determining

preservation or reunification services to be provided and in making reasonable efforts at

providing preservation or reunification services, the child’s health and safety are of

paramount concern.” Section 41-3-423(1), MCA.

¶11    The discontinuation of visits between Mother and K.B. cannot be laid at the feet of

“one counselor.”      In addition to his work with Cerise, K.B. also had two

neuropsychological evaluations completed by Dr. Brenda Roche, the first in May 2012,

after a series of sessions over several months, and the second in February and March

2013. Cerise and Dr. Roche diagnosed K.B. with various conditions, including Post

Traumatic Stress Disorder, Attention Deficit Hyperactivity Disorder, Sensory Processing

Disorder, and Dysthymic Disorder, a depressive condition attributed to a series of events

over time, as opposed to a single traumatic event. Both Cerise and Dr. Roche agreed that

K.B. should have no more contact with Mother until he has permanency with his
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prospective adoptive family. Roche told the court in May 2013 that K.B. had made

significant progress during the year between his two evaluations, but that contact between

K.B. and Mother at that time would harm their relationship, as Roche believed the child

would completely regress. Roche stated that if K.B. were reunified with Mother and then

she didn’t make it, it would cause K.B. irreparable harm. Roche testified, “He could not

take another disruption.”

¶12    Mother was incarcerated at the time of the termination hearing and awaiting

sentencing on felony drug charges, and her conditional release from a prior conviction

had been revoked. The District Court, noting that K.B. was eight years old by the time its

termination order was entered, made a finding that “K.B. cannot wait for S.B. to resolve

her current legal problems.” K.B. wanted to be adopted by his foster family and the

District Court noted, “He has lived with them for nearly half of his life. He needs

finality.”

¶13    The goals of Mother’s treatment plan were to address the factors that had made her

unable to parent K.B. effectively: to provide a safe and stable environment for him, with

parents who were not violent with each other and were free from the chemical abuse that

led to their unfitness. Mother did not successfully complete any of the tasks in Phase I of

her treatment plan and, although she completed a handful of the tasks in Phase II of the

plan, she did not address her chemical dependency and abuse issues. She continued to

violate her probation and to use narcotic drugs; her visits with K.B. were terminated due

to her own behavior and the impact that it was having on him. We have observed many
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times that “the best interests of the children are of paramount concern in a parental rights

termination proceeding and take precedence over the parental rights.” In re E.K., 2001

MT 279, ¶ 33, 307 Mont. 328, 37 P.3d 690.

¶14    “[A] parent’s likelihood of regaining fitness to parent is informed by her progress

on the treatment plan after ‘reasonable efforts’ have been made to provide her with the

tools to succeed.” In re K.L., ¶ 45 (J. Baker, dissenting). The Department provided

Mother with chemical dependency evaluations, individual counseling, inpatient

treatment, supervised visitations, social work case management, and other services.

Despite these efforts, Mother did not cooperate with the professionals involved in her

case and did not progress on key elements of her treatment plan. The District Court did

not err in concluding that Mother’s inability to respond to the negative impact of her

behavior presented too great a risk to K.B. to advance toward reunification.

¶15    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

record supports the District Court’s factual findings. Its refusal to order the Department

to compel visitation between Mother and K.B. was not an abuse of the court’s discretion

and it did not err in determining that clear and convincing evidence justified termination

of Mother’s parental rights.

¶16    Affirmed.

                                                 /S/ BETH BAKER


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We concur:

/S/ MIKE McGRATH
/S/ MICHAEL E WHEAT
/S/ PATRICIA COTTER
/S/ JIM RICE




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