Montana Supreme Court overturns parental rights termination

HELENA — The state failed to make a reasonable effort to reunite a woman with the son who was taken away from her after he was born with methamphetamine in his system, the Montana Supreme Court ruled.

The justices unanimously overturned the July 2018 termination of the mother's parental rights and ordered the Division of Child and Family Services to work to reunite the woman with her son, who has lived with foster parents in Billings since his birth in October 2016.

"We understand (the) child has been in the foster placement for over two years and is apparently thriving and there is no guarantee mother's substance abuse disorder will remain in remission," Justice Ingrid Gustafson wrote in Tuesday's opinion. "There are times, however, when the court must recognize the parent has not received what the law guarantees before her rights may be terminated. This is such a case."

Fewer than five of the 250 dependent neglect appeals filed with the state Supreme Court since 2012 have been overturned, said Jon Ebelt, spokesman for the Department of Public Health and Human Services.

"The department is reviewing the decision to better understand the court's concerns," he said.

The justices found the state and the district court were wrong to keep the baby in Billings rather than grant the mother's request to move the case to Williston, North Dakota, where she lived. They also found the state failed to provide enough opportunities for visitation to allow her to bond with her baby and didn't arrange adequate services to help the mother address her substance abuse issues.

The health department's Child and Family Services Division "has a statutory obligation to work to reunify families and CFS did not meet that obligation in this case," the mother's attorney, Shannon Hathaway with Montana Legal Justice in Missoula, said in a statement. "I am very pleased that my client will be given a fair opportunity to reconnect with her child and build a future with him."

Justices said "reasonable efforts" at reunification don't require "herculean efforts" but they do require caseworkers to adhere to policies, use best efforts to place a child close enough to a parent to arrange sufficient visitation and requires more than "merely suggesting services" and waiting for a parent to arrange them.

"The means by which the department prescribed mother was going to accomplish visitation — whenever she could make it to Billings and later through flight every couple of weeks — would not realistically foster and develop a bond between mother and child," Gustafson wrote. "The department did not identify or document any reasons why it was in the child's best interest to be placed in a non-kinship placement nearly 300 miles away from mother's home."

The Division of Child and Family Services first moved to legally terminate the mother's parental rights in September 2017. Child and Family Services policy states it's in the best interest of the child to terminate parental rights if the child has been in foster care for 15 of the most recent 22 months.

"For the first eleven months of this case, the department primarily engaged in efforts to strengthen the bond between (the) child and the foster parents and faulted and penalized mother for living in another state," the court said.

The state argued the mother had substance abuse issues dating to age 9; that she continued using drugs, delayed entering substance abuse treatment and rarely visited her son, even though Child and Family Services bought her airplane tickets to fly from North Dakota to Billings.

By the time the court heard the case, the mother was living with family in California, attending intensive outpatient treatment, had been sober for five months, was residing in a sober living house, had a full-time job and was attending 12-step meetings, court records said. However, Child and Family Services would not cover transportation costs to visit her son and her third caseworker wouldn't answer her phone calls, court records said.

District Judge Mary Jane Knisely terminated the mother's parental rights in July 2018, saying it was not clear if the mother would be able to maintain her sobriety and that the mother chose to live in other states away from her child, "complicating and frustrating the reunification process."