Matter of J.D. ( 2013 )

October 22 2013
DA 13-0268
IN THE SUPREME COURT OF THE STATE OF MONTANA
2013 MT 315NIN THE MATTER OF:
J.D.,
A Youth in Need of Care.
APPEAL FROM: District Court of the Eighth Judicial District,
In and For the County of Cascade, Cause No. DDN 11-219
Honorable Dirk M. Sandefur, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Lucy Hansen, Attorney at Law; Missoula, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Mardell Ployhar, Assistant
Attorney General; Helena, Montana
John Parker, Cascade County Attorney, Matthew S. Robertson, Deputy
County Attorney; Great Falls, Montana
Submitted on Briefs: October 2, 2013
Decided: October 22, 2013
Filed:
__________________________________________
Clerk
Justice Brian Morris delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d), 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 Father appeals the order of the Eighth Judicial District Court, Cascade County, that
terminated his parental rights. We affirm.
¶3 The Department of Public Health and Human Services (Department) filed a petition
for emergency protective services, adjudication of J.D. as a youth in need of care, and for
temporary legal custody of J.D. Mother had given birth to J.D. in October 2011. J.D. had
been premature at 33 weeks of gestation. J.D. tested positive for methamphetamines at birth.
J.D. spent several weeks in the neonatal intensive care unit.
¶4 The Department informed the court that J.D. had been released from the hospital and
placed with a relative in Browning, Montana. The Department presented testimony from a
neonatologist and an expert from the Blackfeet Indian Tribe at a hearing on November 28,
2011. The District Court initially declared J.D. a youth in need of care, but later vacated that
order due to the Department’s failure to serve Mother and Father.
¶5 The District Court set the matter for a second contested case hearing. The Department
filed a supplemental affidavit in which its child protection specialist informed the court that
the Department had attempted to have Mother move to Browning with J.D.’s kinship
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provider to assist in bonding. Mother instead had left Browning and returned to Great Falls
after a few weeks. Father had been arrested in late February 2012 and charged with robbery.
¶6 Both parties stipulated to adjudicate J.D. as a youth in need of care at the hearing on
March 26, 2012. The court granted the Department temporary legal custody. The Blackfeet
Tribe intervened pursuant to the Indian Child Welfare Act and monitored the proceedings.
¶7 The parties further stipulated to a treatment plan. Father’s treatment plan addressed
four major issues: 1) chemical dependency; 2) mental health issues; 3) a lack of consistent
contact with J.D.; and 4) Father’s lack of suitable housing and inconsistent employment.
The Department eventually filed a petition for permanent legal custody and termination of
parental rights in December 2012.
¶8 The court conducted a hearing on the Department’s petition on March 18, 2013. The
child protection specialist testified regarding Father’s lack of contact with J.D. due to his
failure to attend supervised visitations. The Department had offered to pay for travel and
lodging costs for Mother and Father from Great Falls to Browning to facilitate supervised
visitations with J.D. Mother and Father failed to take advantage of these accommodations.
¶9 The Department also presented evidence that Father failed to comply with random
urine analysis testing. Father started, but failed to complete, chemical dependency treatment.
Father also failed to attend two appointments to obtain a parenting assessment and one
appointment for a psychological assessment.
¶10 An ICWA expert agreed that J.D. would be “in imminent risk of danger” if J.D.
returned to her parents and that J.D. would likely suffer “serious emotional or physical
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damage.” The ICWA expert testified regarding her concern that Father had not completed
any of his treatment. She further testified that the termination would be in J.D.’s best
interest.
¶11 Father countered that he had gone to intensive outpatient treatment four times a week
for a month, but that his attendance had dropped when he had grown “sick of the
Department.” Father admitted that he failed to finish his treatment plan. The District Court
granted the Department’s petition to terminate. Father appeals.
¶12 We review for an abuse of discretion a district court’s decision to terminate a person’s
parental rights. In re A.H.D., 2008 MT 57, ¶ 11, 341 Mont. 494, 170 P.3d 131. Father
argues on appeal that the treatment plan to which he stipulated was not appropriate and that
the Department had failed to make active efforts to reunify Father with J.D. as required under
ICWA. We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our
1996 Internal Operating Rules, as amended in 2006, that provide for memorandum opinions.
¶13 The Department satisfied the requirement under ICWA that it made active efforts to
reunify J.D. with her parents. The Department also presented sufficient evidence that
reunification of J.D. with her parents likely would cause “serious emotional or physical
damage” to J.D. It is manifest on the face of the briefs and the record before us that
substantial evidence supports the District Court’s findings of fact and the District Court
correctly applied the law to these facts.
¶14 Affirmed.
/S/ BRIAN MORRIS
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We concur:
/S/ LAURIE McKINNON
/S/ PATRICIA COTTER
/S/ BETH BAKER
/S/ JIM RICE
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