In the Matter of JW

 In the Matter of JW, 2012 MT 021 (July 23, 2013) (5-0) (Rice. J.)

Issue: (1) Whether the district court erred in failing to conduct a stand-alone hearing on whether DHHS should be required to make reasonable efforts to reunite Mother and JW; (2) whether the district court erred in failing to conduct a permanency plan hearing; and (3) whether the district court erred in concluding that the circumstances regarding Mother’s prior terminations in Colorado were relevant to her parenting of JW.

Short Answer: (1) No; (2) no; and (3) no.

Affirmed

Facts: AL (Mother) and CW (Father) are the biological parents of JW. Mother gave birth to four children: Aus. L. (1996); AKMH (2002); QDJW (2005) and JW (2008). In 2005, Mother and Father were living together in Colorado. Following a domestic violence incident between Mother and Father, the county department of human services began a child-abuse investigation, which 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. The department instituted a treatment plan to which Mother agreed, requiring her to stay sober, attend 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. She failed to comply.

In 2007 Mother moved to Montana, leaving AKMH and QSJW behind. She told the Colorado treatment team that she was moving to get away from Father, but was actually living with him in Livingston. She continued to lie to the Colorado case workers about living with Father, as their violent relationship was the primary reason the department was seeking to remove AKDH and QDJW from her care.

Mother gave birth to JW in 2008. In 2009, the Colorado department petitioned to terminate Mother’s parental rights to AKDH and QDJW. After a three-day trial, which Mother attended, the Colorado court found that Mother left the children without supervision and food, physically disciplined the children with belts, spoons and hands, and confined the children to a dark closet for long periods of time. It also found that the children witnessed domestic violence between their parents. The court held that Mother was an unfit parent and was unlikely to change within a reasonable time, and terminated her parental rights to AKMH and QDJW.

In 2011, Montana DHHS received a report that Mother had been in a drunken fight with an ex-boyfriend. When her oldest son, Aus. L., tried to stop the fight, the ex-boyfriend began hitting him and the ex-boyfriends’ father pulled a gun.

Mother continued to abuse drugs and alcohol. Aus. L. ended up in a youth home in Bozeman. A child protection specialist visited him and reported that Aus. L. was most concerned about who would take care of JW in his absence, as he usually took care of her when Mother was drinking.

DHHS petitioned for emergency protective services of JW and temporary investigative authority into JW’s well being. The court appointed a CASA, who tried to contact Mother. In early March 2012, Father tok JW to Washington State, with Mother’s permission, and left her with her maternal grandmother. The CASA traveled to Washington to visit the grandmother’s home, which he described as “wholly inappropriate” for JW. JW was returned to Montana and placed in a foster home.

The court adjudicated JW as a youth in need of care in August 2012. Throughout the proceedings, Mother failed to meet with social workers trying to assess her parental fitness, and refused to submit to drug testing. DHHS obtained a court order for a hair sample, which tested positive for methamphetamine.

In October 2012, DHHS petitioned to forego reasonable efforts to reunify Mother and JW, and to terminate Mother’s parental rights.

Procedural Posture & Holding: The court held a hearing in December 2012 at which several experts testified, both for the state and for Mother. The district court concluded the Department did not need to make reasonable efforts to reunite JW and Mother, as Mother had already had her parental rights to AKMH and QDJw terminated, and the circumstances pertaining to those termination were “identical” to Mother’s unfit parenting of JW. The court terminated Mother’s parental rights. She appeals, and the Supreme Court affirms.

Reasoning: (1) Mother contends the district court should have held a separate hearing to determine whether reunification with JW was possible. The department contends Mother was provided with fundamentally fair procedures, as she had the opportunity to present evidence and cross-examine witnesses. Parents’ right to the care of custody of their children is a fundamental liberty interest that can be terminated only through fundamentally fair procedures.  By giving notice to Mother and allowing her to be properly heard, the district court provided fundamentally fair procedures. A stand-alone hearing was not required.

(2) Section 41-3-423(5) requires a permanency plan hearing whenever the court finds that reunification efforts are not required. The purpose is to ensure the child doe snot languish in foster care or fall through administrative cracks. The failure to hold such a hearing is not a per se violation of the parent’s rights as long as the department is meeting the underlying purpose of the statute. While the department was seeking to terminate Mother’s parental rights, it had entered into a treatment plan with JW’s father. One of the goals is to assess Father’s ability to provide a safe home for JW. Thus, the purpose of a permanency plan hearing was being met.

(3) Mother argues that the problems giving rise to the termination of her parental rights in Colorado were not present in her parenting of JW and were not relevant to this proceeding. The state contends Mother is engaged in the same behaviors as she was in Colorado, thereby creating a dangerous environment for JW. Previous parental terminations are relevant to determining that reunification services need not be provided, if shown by clear and convincing evidence. § 41-3-423(2), (4). The district court’s determination that the previous terminations were relevant to the termination of Mother’s parental rights to JW was supported by clear and convincing evidence.