Opinion
DA 18-0221
12-18-2018
IN THE MATTER OF: K.C., A Youth in Need of Care.
COUNSEL OF RECORD: For Appellant: Gregory D. Birdsong, Birdsong Law Office, PC, Missoula, Montana For Appellee: Timothy C. Fox, Montana Attorney General, C. Mark Fowler, Assistant Attorney General, Helena, Montana Cory Swanson, Broadwater County Attorney, Townsend, Montana
APPEAL FROM: District Court of the First Judicial District, In and For the County of Broadwater, Cause No. BDN-2017-05 Honorable Michael F. McMahon, Presiding Judge COUNSEL OF RECORD: For Appellant: Gregory D. Birdsong, Birdsong Law Office, PC, Missoula, Montana For Appellee: Timothy C. Fox, Montana Attorney General, C. Mark Fowler, Assistant Attorney General, Helena, Montana Cory Swanson, Broadwater County Attorney, Townsend, Montana Filed: /s/_________
Clerk Chief Justice Mike McGrath delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(c), 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 P.G. (Mother) appeals from an order of the First Judicial District Court, Broadwater County, terminating parental rights to her child K.C. pursuant to § 41-3-609(1)(d), MCA. We affirm. ¶3 The Montana Department of Health and Human Services, Child and Family Services Division (Department), became involved with the family in February 2013, after receiving a report that Mother had been arrested for Partner or Family Member Assault (PFMA) against her male partner and was exposing K.C. and K.G. (K.C.'s half-sister by another father) to domestic violence. Mother, K.C., and K.G. lived in a three-bedroom trailer on family property near Toston, Montana. K.C.'s grandmother also lived on the property, one hundred yards from the trailer. ¶4 Child Protection Specialist (CPS) Supervisor Brent Lashinsky testified the fight was over the male partner's meth use and whether he showed nude photographs on his phone to K.C. and K.G. The male partner was on probation for drug-related charges. The girls were asleep when the fight took place. The State later dismissed the charge. The Department was unable to locate the family and could not verify the report. Mother was twice previously convicted of PFMA for physical altercations with male partners, on June 12, 1999, and on June 27, 2011. ¶5 On June 18, 2013, the Department received a second report concerning the family. Mother was arrested for punching K.G. several times in the face with a closed fist and pulling her hair. K.G. was ten and K.C. was six at the time. K.C. was present for the incident and told the CPS who investigated that Mother asked K.G. if she wanted to die while hitting her repeatedly. CPS Lashinsky testified that K.G.'s injuries were "extensive enough that she needed to be taken to the doctor," where an x-ray verified her broken nose. When asked by the Department about the incident, Mother explained that she did not know what happened and that she "blacked out" due to her bipolar disorder. On April 2, 2014, Mother pleaded guilty to the charge of assault on a minor, a felony, and the District Court sentenced her to five years, suspended. ¶6 On September 17, 2013, the District Court adjudicated K.C. and K.G. as youths in need of care (YINC) and granted the Department temporary legal custody (TLC) of the girls. K.C. stayed with her paternal aunt's family for six weeks during this time. ¶7 The Department designed a treatment plan for Mother, which required Mother to engage in counseling with K.G., chemical dependency testing and evaluation, and advised Mother to keep her children away from men that jeopardized their safety. The Department acknowledged that Mother was bipolar and required her to have "medication management done," but did not require her to engage in any form of anger management. CPS Lashinsky testified that this treatment plan was "very basic." Mother quickly completed the treatment plan, was reunited with K.C. and K.G, and the Department dismissed the case in October 2014. ¶8 In January 2015, the Department received a report that Mother was arrested for another PFMA, this time for slapping K.C. across the face. Halane Vandyken, the family's neighbor, testified that at 8:30 or 9:00 p.m., K.G. ran across the road to her house, knocked, was "crying and frantic," and asked her to call the police because Mother hit K.C. The Vandykens called the police and Mother was arrested. An officer brought K.C. over to the Vandykens' house and asked if the Vandykens could house the girls. Two and a half weeks later, Halane Vandyken called the Department and explained that she could not permanently care for K.C. and K.G. ¶9 The Department asked Virginia Larson, the mother of one of K.G.'s friends from school, if K.G. and K.C. could stay with the Larson family. The Vandykens dropped K.C. and K.G. off at the Larsons' home in Townsend, Montana. Virginia Larson testified that K.G. was very motherly toward K.C. and that she did not perceive the girls to have much parental oversight or structure at home. During this time, Mother would call, ask about K.G. and K.C., and say things like, "I'm trying my best to get the girls." The Department, however, did not communicate with Virginia Larson about a timeline or plan to reunite the girls with Mother. After one month, Virginia Larson called the Department and the Department indicated that the girls could go home. K.G. stayed an additional two weeks because she was afraid to return. Virginia Larson later testified that, "as a parent," her experience with the Department made her "mad"; she felt like the Department had failed the girls. ¶10 Following this arrest, Mother entered into a deferred prosecution agreement. By October 27, 2015, having complied with the agreement, the case against Mother was dismissed. The Department's records indicate that the girls had been removed from Mother for thirty days while she worked with the Department on a present danger plan. ¶11 On November 4, 2016, the Department received a report that another couple moved into the trailer. The male was on probation for a felony charge and there was concern over meth use. K.G. told her counselor that the male "creep[ed] her out." ¶12 On November 29, 2016, the Department received a report that Mother's new male partner, B.V., was living and using meth in the home. B.V. and Mother regularly fought, verbally and physically, in front of the girls. K.C. told CPS Rebecca Averill she would hide out of fear during these fights. K.C. and K.G. had a plan that if B.V. punched Mother, K.C. would call K.G., who would call the police. Mother's parole officer found meth on B.V. and he was arrested. The Department further learned that B.V. had absconded from probation in Yellowstone County and found a report that B.V. sexually assaulted a minor, though no criminal charges existed. Mother also admitted to using meth, and re-engaged in relapse prevention therapy. ¶13 On July 14, 2017, Mother was again arrested and charged with felony PFMA for slapping K.C., now ten, across the face. The State reduced the charge and Mother pleaded guilty to a misdemeanor. Mother spent two weeks in jail and enrolled in anger management. In a forensic interview held two weeks after the incident, K.C. stated Mother slapped her because she did not want to eat and that she was "really scared" when Mother hit her. K.C. also stated that B.V. had told her to tell the police that Mother hit the wall, not her. ¶14 On July 25, 2017, the Department filed a petition seeking emergency protective services (EPS), temporary investigative authority (TIA), and TLC of K.C. K.C. and K.G. were subsequently removed from the home and placed in kinship care. The Department originally placed K.C. with her maternal grandmother, but moved her due to the proximity of Mother's home and reports of prohibited contact between Mother and K.C. K.C. has lived with her paternal aunt's family in Belgrade, Montana, since September 15, 2017. ¶15 Following a contested show cause hearing, Mother stipulated to EPS and TIA, and on October 6, 2017, the District Court adjudicated K.C. a YINC and granted the Department TLC. The District Court did not order Mother to complete a treatment plan. On October 27, 2017, the Department petitioned for a determination that reasonable efforts at reunification were not required under § 41-3-423(2)(a), MCA, and sought termination of Mother's parental rights for subjecting K.C. to chronic abuse and neglect. ¶16 The District Court appointed a Guardian ad Litem (GAL) to investigate the allegations against Mother and make recommendations concerning K.C.'s welfare. The GAL filed his report on February 8, 2018. The report verified the facts in the Department's petition, but recommended the District Court not terminate Mother's parental rights without providing Mother with the opportunity to address her anger management issues through a treatment plan. The report stated:
I don't wish to give the impression that I believe [Mother] has been wrongly accused of child mistreatment. She acknowledges that she has angrily struck both of her daughters. . . . Still, the question that troubles me is whether her actions rise to the standard contemplated in the law for termination of parental rights.¶17 The report noted that Mother ended her relationship with B.V. and that B.V. was no longer living in the home. Mother sought anger management and mental health counseling, was engaged in medication management, and called the Department regularly, though the Department had not asked her to do so. ¶18 The GAL visited K.C. in Belgrade and reported she was adjusting well, "forming new friendships with classmates and [displaying] few problems with peer relationships." While K.C. was previously behind her grade level in several academic areas, she had progressed significantly since moving to Belgrade. K.C. told her GAL that she missed Mother. ¶19 The hearing over termination of Mother's parental rights began on February 16, 2018. The District Court heard about the incidents described above in detail from seven witnesses, including Halane Vandyken, Virginia Larson, Mother's parole officer, CPS Lashinsky, CPS Tamara Todd, CPS Averill, and K.C.'s paternal aunt. All parties, including the District Court, acknowledged Mother's love for K.C. and Mother's desire to get K.C. back. ¶20 When asked about the Department's reasoning not to offer Mother a treatment plan, CPS Lashinsky testified that the Department had given Mother treatment plans
before and she just repeats the same behavior. I don't know how many times we can give her the same programming and have her do it and then have [her] repeat the same behavior. . . . [W]hile I know she loves her child and her child loves her, it comes down to the repetition of those behaviors.CPS Averill testified that while Mother seemed remorseful for the situation, there was no real "resolve" or plan to correct the issues preventing reunification with K.C., namely Mother's repeated physical outbursts and aggression, continued substance abuse, lack of medication management, and choice to bring unsafe male partners to the home. ¶21 Based on the record before it, the District Court found the Department was not required to make reasonable efforts to reunify K.C. with Mother because Mother had subjected K.C. to chronic abuse. On March 21, 2018, the District Court ordered the termination of the parent-child relationship between K.C. and Mother. Mother appeals. ¶22 This Court reviews a district court's decision to terminate parental rights for an abuse of discretion. In re A.S., 2016 MT 156, ¶ 11, 384 Mont. 41, 373 P.3d 848. A district court abuses its discretion when it acts arbitrarily, without employment of conscientious judgment, or exceeds the bounds of reason resulting in substantial injustice. In re K.A., 2016 MT 27, ¶ 19, 382 Mont. 165, 365 P.3d 478. This Court reviews a district court's findings of fact for clear error and conclusions of law for correctness. In re M.V.R., 2016 MT 309, ¶ 23, 385 Mont. 448, 384 P.3d 1058. This Court exercises plenary review over constitutional questions. In re M.V.R., ¶ 24. ¶23 A district court may terminate parental rights when clear and convincing evidence demonstrates that a parent has "subjected a child to aggravated circumstances, including . . . chronic abuse." Sections 41-3-609(1)(d), -423(2)(a), MCA. While Montana law generally requires the Department to develop a treatment plan designed to reunite parents with their children, the Department "need not make reasonable efforts to provide preservation or reunification services" when parents subject their children to chronic abuse. Section 41-3-423(2)(a), MCA. The best interests of the child "take precedence over the parental rights." In re T.S.B, 2008 MT 23, ¶ 19, 341 Mont. 204, 177 P.3d 429. ¶24 Chronic child abuse is actual physical or psychological harm or substantial risk of physical or psychological harm to a child by the person responsible for the child's welfare, "marked by long duration, by frequent recurrence over a long time, and often by slowly progressing seriousness." Section 41-3-102(7)(a)(i-ii), MCA; In re Custody & Parental Rights of D.S., 2005 MT 275, ¶ 23, 329 Mont. 180, 122 P.3d 1239; In re E.Z.C., 2013 MT 123, ¶ 27, 370 Mont. 116, 300 P.3d 1174 (citing Webster's Third New International Dictionary 402 (G & C Merriam Co. 1961). Discrete instances of child abuse, when viewed within a consistent pattern of similar behavior, provide a clear basis by which a district court can find behavior chronic. In re M.N., 2011 MT 245, ¶ 30, 362 Mont. 186, 261 P.3d 1047. "Children need not be left to 'twist in the wind' before a parent's behavior may be found chronic and severe." In re M.N., ¶ 29. ¶25 Mother argues that clear and convincing evidence does not support the District Court's conclusion. Mother acknowledges that slapping K.C. across the face in two separate instances was abuse, but argues that this abuse was not chronic; the Department should have given her the opportunity to address her anger issues and reunite with K.C. through the completion of a treatment plan. Mother argues that the District Court's decision to terminate her parental rights was therefore an abuse of discretion and a violation of her due process rights. ¶26 This Court has been mindful not to specifically delineate when abuse amounts to chronic abuse. Chronic abuse is more nuanced than two instances of violence versus ten instances of violence. It incorporates psychological harm and the risk of continued harm, abuse less easily identified but just as damaging to the well-being of a child. And the circumstances and needs of each child are unique. The cases in which this Court has upheld a district court's finding of chronic abuse may factually overlap, but are not based on the existence of any specific fact. Rather, the district court discretionarily determines that abuse is chronic based on the entirety of the record before it and the unique needs and circumstances of each child. In re Custody & Parental Rights of D.S., ¶ 17. ¶27 Here, the District Court's decision that Mother chronically abused K.C. is supported by the record. While Mother views the two instances of slapping K.C. across the face in isolation, the District Court properly took a broader view of the record. Since K.C. was six years old, Mother was arrested four times for PFMA, twice for instances of violence toward K.C., once for an instance of violence toward K.C.'s sister, which K.C. observed, and once for an instance of violence against a man living and allegedly using meth in the home. K.C. witnessed domestic violence between Mother and her male partners severe enough that K.C. hid during the episodes and K.C. and K.G. had a plan to call the police. K.C. was afraid when Mother hit her in 2017, and fears her Mother's latest male partner, B.V. K.C., now eleven, has endured at least five years of her Mother's repeated and unpredictable outbursts of violence. ¶28 K.C. was previously adjudicated as a YINC and reunited with Mother after completion of a treatment plan. While the Department could have better helped Mother address her anger issues, Mother has been given numerous opportunities to prove her ability to safely care for K.C. At this point, while the Court acknowledges that Mother loves and wishes to reunite with K.C., the scale is tipped in favor of K.C.'s best interests. In addition to the instances of physical violence, Mother repeatedly exposed K.C. to meth use and individuals who threatened K.C.'s safety in the home. Mother has not appropriately managed her medications. Ultimately, Mother has not demonstrated an ability to keep K.C. safe. ¶29 Each time Mother was arrested, the Department uprooted K.C. from her life and moved her in with anyone who would take her, including with her paternal aunt, the Vandykens, the Larsons, and her grandmother, for unspecified and unstructured amounts of time. If Mother were to successfully complete a treatment plan, K.C. would again be uprooted after adjusting well to living with her paternal aunt's family in Belgrade. Instability in a child's life is its own form of abuse. In re Custody & Parental Rights of D.S., ¶ 25. This instability has impacted K.C.'s academic development, which has improved since her move to Belgrade. Mother has established a pattern of repeating negative behavior once monitoring ends. The Department determined that it risked subjecting K.C. to continued abuse and instability were K.C. reunited with Mother. Additionally, K.C. would return to live with Mother without K.G. ¶30 The Department decided not to pursue a treatment plan for Mother because K.C. had been removed and reunited several times, had undergone numerous traumas, and had been subjected to longstanding abuse, "and it needed to stop." The District Court agreed, and concluded that Mother subjected K.C. to chronic abuse and that K.C.'s "best interests, health and safety, [were] served by terminating Mother's parental rights" without reunification services. ¶31 Clear and convincing evidence supports the District Court's decision. The District Court did not abuse its discretion in terminating P.G.'s parental rights to K.C. ¶32 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules, which provides for memorandum opinions. In the opinion of the Court, the case presents a question controlled by settled law or by the clear application of applicable standards of review. ¶33 Affirmed.
On July 9, 2001, K.M., K.C.'s biological father, was convicted of sexual assault of a minor. He is scheduled to be released on probation in 2020. K.M.'s parental rights to K.C. were terminated on March 21, 2018.
In 2017, the District Court revoked this sentence and sentenced Mother to an additional two years, suspended.
K.G. currently lives in Helena, Montana, with her biological father.
/S/ MIKE McGRATH We Concur: /S/ JAMES JEREMIAH SHEA
/S/ BETH BAKER
/S/ INGRID GUSTAFSON
/S/ DIRK M. SANDEFUR