In the Matter of JO

In the Matter of JO, 2015 MT 229 (Aug. 11, 2015) (Wheat, J.) (5-0, aff’d)

Issue: (1) Whether the district court erred in determining DPHHS made reasonable efforts to provide reunification services; and (2) whether the district court abused its discretion when it terminated CS’s parental rights.

Short Answer: (1) No, and (2) no.

Affirmed

Facts: JO was born in 2007 to CS, his mother. JO was removed from CS’s care twice as a result of CS’s criminal conduct before CS’s parental rights were eventually terminated on Jan. 20, 2015. She appeals the termination.

CS was serving a suspended sentence in 2010 for bad checks when she was discovered in possession of drug paraphernalia, and tested positive for several drugs. The district court revoked her sentence and she was committed to the DOC for five years. She completed drug and alcohol counseling and was conditionally released in October 2011.

In 2013, CS was again discovered in possession of drugs while passed out in the parking lot of a casino. Her conditional release was terminated in May 2013, and she was charged with and convicted of possession of dangerous drugs and drug paraphernalia. In March 2014 she was sentenced to several years set to run concurrently with her sentence for bad checks, and was sent to Passages Centers in Billings. Passages recommended Elkhorn Treatment Center and a pre-release center, but CS’s application was rejected based on letters she wrote saying she did not need treatment and would not comply. CS was transferred to the Montana Women’s Prison in August 2014.

JO was placed in foster care and then in the care of his paternal aunt in Nevada, DH. CS and JO were reunited after CS completed drug and alcohol counseling, and DPHHS moved to dismiss its petition to terminate CS’s parental rights after several months of monitoring JO’s welfare and CS’s compliance with her treatment plan. The district court granted the motion to dismiss in October 2012.

After CS’s May 2013 arrest and incarceration, DPHHS and CS entered into a voluntary protective services agreement. CS stipulated to adjudication of JO as a youth in need of care and to the department receiving temporary legal custody of him, and to JO being placed with DH in Nevada while the department had legal custody.

JO’s physical and emotional health began to improve after being placed in DH’s care. He began referring to DH and her husband as his mother and father, and expressed his desire to be adopted by them. 

Procedural Posture & Holding: DPHHS petitioned to terminate CS’s parental rights after CS was convicted of drug possession in July 2014. Finding that CS had subjected JO to aggravated circumstances, the district court held the department was not required to make reasonable efforts at reunification. It nevertheless found the department had provided reasonable services, and terminated CS’s parental rights because she had subjected JO to aggravated circumstances, and because she had not complied with her treatment plan and was unlikely to change in a reasonable time. CS appeals, and the Supreme Court affirms. 

Reasoning: (1) The department provided many preservation and reunification services to JO and CS, even after CS’s arrest and incarceration in 2013. After removing JO and placing him in DH’s care, the department worked with CS to develp a treatment plan so that she could reunite with JO. CS stipulated to the reasonableness of the treatment plan.

(2) Substantial evidence supports the district court’s findings that the statutory grounds for termination were met. CS’s drug problems have persisted for years, and she sabotaged every treatment opportunity by stating she did not need treatment, The district court had substantial evidence for its finding that the conditions rendering CS unfit as a parent were unlikely to change in a reasonable time.