In re L.V.-B.
delivered the Opinion of the Court.
¶1 F.V. (“Mother”) appeals from an order of the Nineteenth Judicial District Court, Lincoln County, terminating her parental rights to her daughter, L.V.-B. We affirm. We restate the issues on appeal as follows:
¶2 1. Whether Mother articulated a substantive due process claim
which required that the State’s petition to terminate be dismissed.
¶3 2. Whether
¶4 3. Whether the State’s petition to terminate was filed prematurely.
¶5 In October 2011, Mother gave birth to L.V.-B. In a prior proceeding in 2010, the Department of Public Health and Human Services (“Department”) removed a different child from Mother’s care due to her drug use, homelessness, and for leaving the child with an inappropriate caregiver. Mother did not comply with the treatment plan that the Department provided to enable her to parent her first child safely. The State ultimately did not petition to terminate Mother’s rights to the first child because it was able to place the child in the care of that child’s father.
¶6 In February 2012, the Department removed L.V.-B. from Mother’s care based on reports that Mother was using drugs, homeless, and had left L.V.-B. with inappropriate caregivers. The Department placed L.V.-B. with her maternal aunt, and established a voluntary services agreement with Mother that addressed the issues leading to L.V.-B.’s removal. Mother did not comply with the voluntary services agreement, and the State filed a petition for emergency protective services and temporary investigative authority in March 2012. The District Court granted temporary investigative authority to the Department upon stipulation of the parties in April 2012. In May 2012, paternity of L.V.-B. was established and the Department provided L.V.-B.’s father (“Father”) with a treatment plan. The parties do not dispute that Father successfully completed his treatment plan. L.V.-B. remained with her maternal aunt until placed with Father in April of 2013.
¶7 In July 2012, the District Court adjudicated L.V.-B. a youth in need of care. The Department provided Mother with a treatment plan requiring her to obtain a drug evaluation and follow through with treatment recommendations, participate with Family Concepts to improve her parenting skills, submit to random urinalysis testing, maintain an adequate home, avoid involvement with criminal activity, attend visitations with L.V.-B., obtain a job, and maintain weekly contact with the Department. Mother failed to comply with the terms of the treatment plan, and in January 2013 the State filed a petition to terminate Mother’s parental rights. Shortly before Mother’s termination hearing, the Department placed L.V.-B. with Father.
¶8 On April 18, 2013, Mother filed a motion to dismiss the State’s termination petition, arguing that L.V.-B.’s placement with Father diminished the State’s interest in L.V.-B., and that Mother’s fundamental constitutional right to remain L.V.-B.’s parent outweighed the State’s interest in termination. Mother additionally argued that the termination petition was filed prematurely. Mother was not present at the termination hearing on April 19, 2013. Her counsel explained that Mother had difficulties with transportation, but he also stated that he had offered to give Mother a ride to the hearing. Four witnesses testified on behalf of the Department: Denise Killingsworth, clinical supervisor and data coordinator for Flathead Valley Chemical Dependency Center (“Center”); Kayla White, family support worker for Family Concepts; Lisa Byington, Child Protection Specialist for the Department; and Donna Parrish, Child Protection Specialist for the Department.
¶9 Killingsworth testified that although Mother went to the Center to schedule an appointment for a drug evaluation, she never attended the evaluation or called back to reschedule. The Center attempted to contact Mother at the phone number she provided, but was unable to reach her. Therefore, Mother never received any drug treatment. White testified that Mother tested positive for drugs and/or alcohol on nine out of the ten urinalysis tests that she administered to Mother. Mother was either late or absent to many of her visitations with L.V.-B., despite White’s repeated offers to provide Mother with transportation to the visits. White also repeatedly offered to transport Mother to any other appointments or meetings related to her treatment plan, but Mother never accepted these offers. After 30 days had passed without any contact from Mother, the Department, based upon its policy, requested that Family Concepts terminate its services to Mother.
¶10 Byington was Mother’s caseworker in the Department’s case with Mother’s previous child. Byington testified that the conduct and conditions at issue in the prior case
¶11 The District Court terminated Mother’s parental rights pursuant to
STANDARD OF REVIEW
¶12 We review de novo a district court’s decision on a motion to dismiss. Hartsoe v. Tucker,
DISCUSSION
¶13 Mother argues that the District Court’s denial of her motion to dismiss violated her constitutional right to due process. Additionally, Mother argues that the District Court erred in terminating her parental rights because
¶14 Issue One: Whether Mother articulated a substantive due process claim which required that the State’s petition to terminate be dismissed.
¶15 The right to parent one’s children is a constitutionally protected fundamental liberty interest.
¶17 Mother does not allege that she received improper notice of the termination proceedings, or that she was not afforded the opportunity to be heard. Accordingly, Mother does not present a procedural due process claim. Rather, Mother purports to assert that the District Court violated her substantive due process rights when it found that L.V.-B’s best interests would be served by terminating Mother’s parental rights, even though L.V.-B. had been placed with Father. Although Mother attempts to raise a substantive due process claim, she then conducts her analysis using the framework (set forth above) that is clearly established to address procedural due process claims in termination of parental rights cases. As such, Mother’s balancing of her right to parent against the State’s dual interests (parens patriae and its fiscal and administrative interest) is not the proper framework for evaluating a substantive due process claim. Additionally, Mother does not provide the appropriate test for evaluating alleged substantive due process violations in termination cases, and misstates the standard of scrutiny afforded to such claims.
¶18 Issue Two: Whether
¶19 Mother argues that the State’s termination petition against Mother should have been dismissed in accordance with
¶21 Mother-argues that the termination of her parental rights was improper because the State filed the termination petition prematurely, and that “a little extra time would not have harmed L.V.-B. or the State.” She claims that
¶22 Statutes providing for the termination of parental rights establish the following: 1) the circumstances under which a petition must be filed; and 2) the requirements that must be met before parental rights are terminated. First,
¶23 Second, the State may proceed with termination when a child who has been adjudicated a youth in need of care has a parent who has been unsuccessful with an appropriate treatment plan, and the conduct or condition rendering the parent unfit is unlikely to change within a reasonable time.
¶24 Despite Mother’s argument that “there was simply no reason” to terminate Mother’s rights, numerous facts in the record indicate that Mother’d conduct or condition was unlikely to change in a reasonable time. At the termination hearing, Mother’s caseworker from her first child testified that Mother’s drug use, inability to parent, and homelessness led to the removal of her first child. In her prior case, the Department offered Mother a treatment plan that included a drug evaluation and treatment, housing, and assistance in establishing a safe and stable home environment, but Mother refused these services. Mother’s caseworker in the present case testified that, similar to the proceedings in 2010, the Department provided Mother with a treatment plan that addressed the same issues identified in the prior treatment plan. Mother failed to comply with both treatment plans. Presently, Mother has not attended a drug evaluation as required, nor has she received any type of drug treatment. Mother’s family support worker from Family Concepts testified that Mother failed nine out of ten urinalysis tests. Her family support worker repeatedly offered to provide Mother with transportation, yet Mother missed many scheduled visits with L.V.-B. Consequently, Mother went long periods of time without contacting the Department, which caused her to go long periods of time without seeing L.V.-B. Mother also obtained multiple criminal drug convictions during the time that the treatment plan was in place, and did not show up to the termination hearing.
¶25 All of the above facts detailing Mother’s past behavior support the District Court’s conclusion that the State met its burden in showing that Mother’s conduct or condition was unlikely to change within a
CONCLUSION
¶26 For the foregoing reasons, we affirm. We hold Mother did not raise a cognizable constitutionál claim, and the District Court did not err in denying Mother’s motion to dismiss. Lastly, the provisions of
Notes
Mother claims that Stanley v. Illinois,