In the Matter of CWE and CME

In the Matter of CWE and CME, 2016 MT 2 (Jan. 5, 2016) (McKinnon, J.) (5-0, aff’d)

Issue: (1) Whether the district court erred in concluding that the conduct or condition that made Mother unfit to parent was unlikely to change in a reasonable time; (2) whether the district court improperly relied on the statutory presumption in § 41-3-604(1), MCA, to conclude that termination of Mother’s parental interests was in her children’s best interests; and (3) whether Mother received ineffective assistance of counsel.

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


Facts: DPHHS removed CWE, age 7, and CME, age 5, from Mother’s care after 17 referrals over a period of three years alleging abuse or neglect.  CWE currently lives with his father in Livingston, and CMW lives with his father in Oklahoma. The district court terminated Mother’s parental rights in June 2015, two years after they were removed from her care.

DPHHS developed a treatment plan for Mother, which she and her counsel signed in July 2013 and the court approved in August 2013. Central to the treatment plan was Mother’s obtaining a chemical dependency evaluation and any recommended treatment, and abstaining from drugs and alcohol. Although Mother obtained two evaluations and completed an outpatient detoxification program, she did not complete an inpatient treatment program as required by her treatment plan.

Procedural Posture & Holding: The district court held a termination hearing in January 2015, with continuations in February and March. Mother appeared by phone once, but did not testify. The psychologist treating Mother testified that her prognosis was poor, and that if she did reunite with her children, she would need significant and intense in-home services about appropriate parenting. The district court issued findings and conclusions and an order terminating Mother’s parental rights. Mother appeals, and the Supreme Court affirms.

Reasoning: (1) The record contains clear and convincing evidence that the conduct or condition rendering Mother unfit to parent is unlikely to change in a reasonable time.

(2) If a child is in foster care under the physical custody of the state for 15 of the most recent 22 months, termination of parental rights is presumed to be in the children’s best interests. § 41-3-604(1), MCA. Mother argues this presumption should not apply because her children were placed with family. However, DPHHS placed the children in various kinship foster homes before placing them with their fathers. DPHHS had legal custody of CWE and CME for more than 15 of the 22 months preceding termination.

(3) Mother has not demonstrated that her counsel was ineffective or that she was prejudiced as a result.