Matter of A.D., YINC ( 2021 )

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DA 21-0134
Case Number: DA 21-0134
IN THE SUPREME COURT OF THE STATE OF MONTANA
2021 MT 241N
IN THE MATTER OF:
FILED
A.D.,
SEP 21 2021
A Youth in Need of Care. Bowen Greenwood
Clerk of Supreme Court
State of Montana
APPEAL FROM: District Court of the Second Judicial District,
In and For the County of Butte-Silver Bow, Cause No. DN 18-59-KK
Honorable Kurt Krueger, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Shannon Hathaway, Driscoll Hathaway Law Group, Missoula, Montana
For Appellee:
Austin Knudsen, Montana Attorney General, Katie F. Schulz, Assistant
Attorney General, Helena, Montana
Eileen Joyce, Butte-Silver Bow County Attorney, Mark Vucurovich,
Special Deputy County Attorney, Butte, Montana
Submitted on Briefs: August 25, 2021
Decided: September 21, 2021
Filed:
Clerk
Justice Ingrid Gustafson delivered the Opinion of the Court.
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 M.D. (Father) appeals from the Findings of Fact, Conclusions of Law and Order
Terminating Parental Rights and Granting Perrnanent Legal Custody, Re: Birth Father,
entered by the Second Judicial District Court, Butte-Silver Bow County, on February 24,
2021, terminating his parental rights to A.D. (Child). Father argues the District Court
violated his due process rights by failing to provide him with fundamentally fair procedures
and the District Court erred in concluding the continuation of the parent-child relationship
would likely result in continued abuse and neglect to Child.
¶3 Child is the only biological child of Father with M.W. (Mother).1 Father has an
extensive history with the Department of Public Health and Human Services, Child and
Family Services Division (Departrnent), involving other children dating back to 2009. The
Department began receiving reports involving domestic violence in front of Child in
September 2017. Mother obtained a permanent restraining order against Father in October
2017, following a physical altercation. Despite the restraining order, the Departrnent
I Father has other children not at issue in these proceedings.
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continued to receive reports of physical altercations between Mother and Father in front of
or involving Child, including reports that Father had forcibly removed Child from Mother's
care on multiple occasions. The Department counseled Mother and Father how to safely
exchange Child to avoid future violations of the order of protection.
¶4 The Departrnent ultimately removed Child from both Mother and Father on June 19,
2018, following an incident where Father broke into Mother's home and forcibly removed
Child from Mother in the early morning hours. Father was arrested and charged with
burglary, partner or family member assault (PFMA), and violation of a protection order.
The Department petitioned for Ernergency Protective Services, adjudication of Child as a
Youth in Need of Care (YINC) and Temporary Legal Custody (TLC) on June 26, 2018. A
joint show cause, adjudication, and disposition hearing was held July 18, 2018. Father
appeared at the hearing via VisionNet as he was incarcerated at the time of the hearing. He
stipulated Child was a YINC and to granting TLC to the Department. At the same hearing,
Mother stipulated to granting the Department Temporary Investigative Authority (TIA).
After the hearing, the court issued two orders: one granting the Department TLC as to
Father and one granting TIA as to Mother.2 Father did not object.
¶5 The Department petitioned for an extension of TLC in January 2019. In the
accompanying affidavit, Child Protection Specialist (CPS) Ciana Dale attested Father went
to the Department when he was released from prison in October 2018 but became defensive
2 The court later granted the Department TLC as to Mother on October 10, 2018.
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and left when they discussed developing a treatment plan. Dale attested she had not heard
from Father since that meeting and did not know his whereabouts. Father declined to
provide any information when Dale reached him by telephone and indicated he would not
participate in the Department's efforts. Nonetheless, the Department submitted referrals
for Father to providers for visitation, anger management, and chemical dependency. Father
did not engage with any of the providers. Dale attested the Department provided Father's
attorney with a proposed treatment plan on December 6, 2018, but had no communication
back regarding the plan. She attested Father was not working with the Department and had
made no efforts toward reunification. Before a hearing on the petition to extend TLC, the
Department filed a motion to approve Father's treatment plan on March 20, 2019. Dale
asserted in the accompanying affidavit the Department had attempted to resolve treatment
plan issues with Father but was unable to do so. The hearing set for April 10, 2019, on
extending TLC and approving Father's treatment plan was continued as Father sought
appointrnent of new counsel. The hearing was held on May 15, 2019, with new counsel
for Father present. Father was not present. The court extended TLC for an additional six
months and approved Father's treatment plan. The treatment plan stated Father was to
engage in some tasks by January 15, 2018.
¶6 The Department filed a rnotion for a perrnanency hearing on August 19, 2019. The
perrnanency plan was reunification with Mother, with a secondary plan of reunification
with Father. Dale attested in the accompanying affidavit the Department had atternpted to
reach out to Father through letters, phone calls, and contact with his attorneys but had been
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unable to contact him. She asserted if Father continued to avoid the Department and the
Department could not alleviate safety concerns, it would seek termination of Father's
parental rights.
¶7 The Department petitioned to terminate Father's parental rights on January 23,
2020. After several continuances and appointment of another new counsel for Father in
October 2020, the termination hearing was held on February 16, 2021. By the time of the
hearing, Child had been in a trial home visit with Mother for several months and the
Department indicated it intended to dismiss the dependent neglect case as to Mother.
Father was incarcerated at the time of the termination hearing on two separate five-year
sentences to the Department of Corrections, with an additional three felony cases still
pending, which included an incident of PFMA and violence involving another partner and
child.
¶8 Dale was the only witness at the termination hearing. She detailed the Department's
efforts to assist Father and testified Father "took absolutely no steps to assist the
Department and to assist himself in reunifying with [Child]." On cross-examination, Dale
acknowledged the deadlines in the treatment plan had passed before the plan was approved
by the court. She also acknowledged that since the appointrnent of new counsel in
October 2020, Father had reached out to the Department about chemical dependency and
mental health issues, but Dale had not verified whether he had participated in any
programming available at the jail. In closing, Father's counsel argued termination was not
appropriate, as Child was placed with Mother with no ongoing safety concerns. The
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District Court terminated Father's parental rights to Child under § 41-3-609(1)(f), MCA.
The court found Father had a history of dornestic violence and physical abuse against the
mothers of his children. The court found Father failed all components of his treatment plan
and the conduct or condition rendering him unfit, unable, or unwilling to give Child
adequate parental care was unlikely to change within a reasonable time because of a
complete failure to develop a relationship with Child or work with the Department and his
continued criminal activity. The Court found a continuation ofthe parent-child relationship
between Father and Child would likely result in continued abuse and neglect. Father
appeals.
¶9 We review a district court's decision to terminate a person's parental rights for an
abuse of discretion. In re A.B., 2020 MT 64, ¶ 23, 399 Mont. 219, 460 P.3d 405. "We will
not disturb a district court's decision on appeal unless there is a mistake of law or a finding
of fact not supported by substantial evidence that would amount to a clear abuse of
discretion." In re H.T, 2015 MT 41, ¶ 10, 378 Mont. 206, 343 P.3d 159.
11110 Father first argues his right to fundarnentally fair procedures was violated because
the District Court granted TLC as to Father and TIA as to Mother at the show cause hearing
in violation of the statutes governing dependent neglect proceedings and the Department
did not develop a treatment plan for him within thirty days of the grant of TLC. See
§§ 41-3-437, -438, -443, MCA. Father did not raise either of these issues before the District
Court and has waived the issues on appeal. In re A.A., 2005 MT 119, ¶ 26, 327 Mont. 127,
112 P.3d 993. Father stipulated to TLC and did not object to its repeated extension. The
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Court will not fault a District Court when the appealing party acquiesced or actively
participated in the ruling being challenged on appeal. In re A.A., ¶ 26. Further, any error
regarding the delay in obtaining court approval of Father's treatment plan was harmless.
In re A.L.P., 2020 MT 87, ¶ 26, 399 Mont. 504, 461 P.3d 136. Much of the delay regarding
the treatment plan was caused by Father's refusal to engage with the Department in any
way. The record further demonstrates Father did not engage with the Department in any
meaningful manner even after his treatment plan was ordered in May 2019. The
Department did not file for termination until January 2020 and the hearing on that petition
was not held until February 2021. Father failed to address any components of his treatment
plan in the over twenty months between the ordering of his treatment plan and the
termination hearing. The District Court did not find the treatment plan failed because
Father failed to complete tasks within the timeframe stated in the plan, but because he did
not complete any tasks within the twenty months the plan was approved by the court.
¶11 Next Father argues the District Court erred in concluding Father's continued
relationship with Child would result in continued abuse and neglect. Father argues it was
unnecessary to terminate his parental rights because Child was placed safely with Mother.
Father maintains any remaining safety concerns he poses to Child could be addressed by a
parenting plan.
¶12 A court may terminate parental rights when (1) a child has been adjudicated as a
YINC; (2) an appropriate treatrnent plan approved by the court has not been complied with
by the parent or has not been successful; and (3) the conduct or condition of the parent
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rendering him unfit is unlikely to change within a reasonable time. Section 41-3-609(1)(f),
MCA. Each factor must be supported by clear and convincing evidence.
Section 41-3-609(1), MCA. In determining whether the conduct or condition of the parent
is likely to change within a reasonable time, "the court shall enter a finding that
continuation of the parent-child legal relationship will likely result in continued abuse or
neglect or that the conduct or the condition of the parent[] renders the parent[] unfit, unable,
or unwilling to give the child adequate parental care." Section 41-3-609(2), MCA.
¶13 The District Court made sufficient findings and conclusions to support its decision
to terminate Father's parental rights under § 41-3-609(1)(f), MCA. Whether a child is
returned to the other parent is not determinative under § 41-3-609, MCA. The District
Court found Father was unlikely to change, citing Father's failure to develop a relationship
with A.D. over the two years of these proceedings, his refusal to work with the Departrnent,
and his continued criminal activity. The court found Father has a history of dornestic
violence and physical abuse against the mothers of his children. Father's behaviors had
not changed despite repeated Department interventions over more than a decade. Here,
Father's prior behaviors actively interfered with Mother's ability to safely parent and the
Department was warranted in seeking termination of Father's parental rights, rather than
leaving it to the parents to work out in a parenting plan action. See In re D.D., 2021 MT
66, ¶ 19, 403 Mont. 376, 482 P.3d 1176 ("[T]he evidence suggests Father has negatively
impacted Mother's parenting abilities and termination of Father's parenting rights
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irnproves Mother's potential to remain a safe, stable parent for Child which is at the heart
of Child's permanency.").
¶14 The District Court did not err in concluding Father's continued relationship with
Child would likely result in continued abuse and neglect. The District Court did not abuse
its discretion in terminating Father's parental rights.
¶15 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.
¶16 Affirmed.
(A 041-/Ar4 04 3
Justice
We concur:
4 6 -(1—
P Justi es
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