Matter of M.J.C. ( 2014 )


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  •                                                                                         May 7 2014
    DA 13-0650
    IN THE SUPREME COURT OF THE STATE OF MONTANA
    
    2014 MT 122
    IN THE MATTER OF:
    M.J.C.,
    A Youth in Need of Care.
    APPEAL FROM:            District Court of the Thirteenth Judicial District,
    In and For the County of Yellowstone, Cause No. DN 11-125
    Honorable Russell C. Fagg, Presiding Judge
    COUNSEL OF RECORD:
    For Appellant:
    Carolynn M. Fagen, Fagen Law Office, P.C., Missoula, Montana
    For Appellee:
    Timothy C. Fox, Montana Attorney General, Jonathan M. Krauss,
    Assistant Attorney General, Helena, Montana
    Scott Twito, Yellowstone County Attorney, Richard Helm, Deputy
    County Attorney, Billings, Montana
    Submitted on Briefs: April 9, 2014
    Decided: May 7, 2014
    Filed:
    __________________________________________
    Clerk
    Justice Laurie McKinnon delivered the Opinion of the Court.
    ¶1     D.W. appeals from an order of the Thirteenth Judicial District Court, Yellowstone
    County, terminating his parental rights to his child M.J.C. The sole issue on appeal is
    whether the District Court erred in terminating D.W.’s parental rights.
    BACKGROUND
    ¶2     The Department of Public Health and Human Services (the Department) has an
    extensive history with Mother dating back to 1997. The Department became involved
    with M.J.C. after blood in M.J.C.’s umbilical cord tested positive for a number of drugs,
    including methamphetamine and opiates, at the time of her birth. Mother and M.J.C.
    were released from the hospital, and Mother missed a follow-up pediatric appointment.
    Upon investigation, the Department discovered that Mother had no stable home and was
    facing incarceration due to a warrant issued by her probation officer.        Mother was
    subsequently arrested, and M.J.C. was taken into protective custody by the Department
    on August 30, 2011.
    ¶3     The District Court adjudicated M.J.C. a youth in need of care on November 30,
    2011, and granted temporary legal custody (TLC) of M.J.C. to the Department based on
    physical neglect by Mother, and absence of a father. At the time of the removal, Mother
    named two men as putative fathers of M.J.C. A court-ordered paternity test determined
    D.W. to be the father of M.J.C. in February 2012. At this time, D.W. had moved from
    Billings back to his home state of Illinois, where he resided during the entire pendency of
    this case. Throughout the proceedings, D.W. and Mother twice stipulated to an extension
    of TLC.
    2
    ¶4     The State provided Mother and D.W. with treatment plans, which were approved
    by the court. D.W.’s treatment plan required him to complete a number of tasks that
    included in part: providing releases for fingerprints, a background check, and confidential
    records; writing a detailed personal history; maintaining biweekly contact with the social
    worker; cooperating with the home study process required by the Interstate Compact for
    the Placement of Children (ICPC); and discussing a plan for developing a relationship
    with M.J.C. The permanency plan at that time was to reunify M.J.C. with Mother.
    ¶5     Mother was initially very successful with her treatment plan, but ultimately
    became noncompliant and abandoned M.J.C.           D.W. also did not comply with the
    requirements of the treatment plan. The State then filed a petition to terminate the
    parental rights of Mother and D.W. on May 24, 2013.
    ¶6     A hearing on the petition to terminate occurred in August 2013. D.W. appeared
    by phone from Illinois, and Mother failed to appear. D.W. and social worker Sandy
    Velin testified. D.W. testified that he did not complete his treatment plan because he
    believed that M.J.C. would be returned to Mother, due to Mother’s early success in
    treatment.   D.W. also testified that he understood that his parental rights could be
    terminated if he did not complete his treatment plan. He did not know the name of the
    social worker, or the birth date of M.J.C. D.W. stated that he had never met M.J.C., and
    did not provide for her financially. He testified that he appeared by phone at all family
    group meetings, and cooperated with the ICPC home study. The record is not clear on
    whether the family group meetings were a part of D.W.’s treatment plan. Neither D.W.
    nor D.W.’s mother were approved as a placement option by the home study.
    3
    ¶7     Next, Velin testified that D.W. failed to make even minimal attempts to complete
    his treatment plan. She stated that D.W. failed to sign any releases, write a detailed
    personal history including his criminal history, maintain contact with the Department, or
    establish any sort of relationship with M.J.C. Velin stated she did not believe that D.W.’s
    conduct or condition was likely to change within a reasonable time, especially in light of
    two extensions of TLC, and that D.W. had not made any significant progress toward
    becoming a minimally adequate parent. She concluded that continuing the relationship
    between D.W. and M.J.C. would likely result in continued abuse or neglect, and
    termination of D.W.’s parental rights would be in M.J.C.’s best interests.
    ¶8     Based on the evidence presented, the District Court found that D.W. failed to
    comply with his treatment plan, that D.W.’s conduct was unlikely to change within a
    reasonable time, and that a continuation of the parent-child legal relationship between
    D.W. and M.J.C. would likely result in continued abuse or neglect pursuant to
    § 41-3-609(1)(f), MCA. The District Court also found that D.W. had abandoned M.J.C.
    pursuant to § 41-3-609(1)(b), MCA. The court found that the conduct and condition of
    D.W. renders him unfit, unable, or unwilling to provide M.J.C. with adequate parental
    care. The District Court also noted that during the two years that M.J.C. had been in
    foster care, D.W. never met her, and failed to establish a relationship with her. The
    District Court gave primary consideration to the physical, mental, and emotional
    conditions and needs of M.J.C., and concluded that her best interests would be served by
    termination of D.W.’s parental rights pursuant to § 41-3-609(1)(b) and (f), MCA. On
    appeal, D.W. challenges the District Court’s termination of his parental rights.
    4
    STANDARDS OF REVIEW
    ¶9     We review a district court’s decision to terminate parental rights for abuse of
    discretion. In re J.C., 
    2008 MT 127
    , ¶ 33, 
    343 Mont. 30
    , 
    183 P.3d 22
    . An abuse of
    discretion occurs when a district court acts arbitrarily, without employment of
    conscientious judgment, or exceeds the bounds of reason resulting in substantial injustice.
    In re T.S.B., 
    2008 MT 23
    , ¶ 17, 
    341 Mont. 204
    , 
    177 P.3d 429
    (citing In re A.S., 
    2006 MT 281
    , ¶ 24, 
    334 Mont. 280
    , 
    146 P.3d 778
    ).
    ¶10    “When making a decision to terminate parental rights, the district court must make
    specific factual findings in accordance with the requirements of § 41-3-609, MCA, and
    we review these factual findings under the clearly erroneous standard.” In re J.C., ¶ 34
    (citing In re L.H., 
    2007 MT 70
    , ¶ 13, 
    336 Mont. 405
    , 
    154 P.3d 622
    ). “A finding is
    clearly erroneous if it is not supported by substantial evidence, if the trial court
    misapprehended the effect of the evidence, or if our review of the record convinces us
    that a mistake has been committed.” In re J.C., ¶ 34 (citation omitted). We review a
    district court’s conclusions of law in terminating parental rights to determine if they are
    correct. In re L.H., ¶ 13.
    DISCUSSION
    ¶11    The criteria for termination of parental rights upon which the District Court based
    its decision are set forth in two distinct and independent statutory provisions contained
    within § 41-3-609, MCA. First, the court can order the termination of parental rights
    upon a finding established by clear and convincing evidence that a child has been
    abandoned. Section 41-3-609(1)(b), MCA. Abandonment is defined as “leaving a child
    5
    under circumstances that make reasonable the belief that the parent does not intend to
    resume care of the child in the future.” Section 41-3-102(1)(a)(i), MCA. Second, the
    court can order the termination of parental rights if: (1) a child has been adjudicated a
    youth in need of care; (2) the parent has been noncompliant with an appropriate treatment
    plan that has been approved by a court; and (3) the conduct or condition rendering the
    parent unfit is unlikely to change within a reasonable amount of time.             Section
    41-3-609(1)(f), MCA. Each ground represents a separate and independent basis for
    termination.   See In re T.H., 
    2005 MT 237
    , ¶ 32, 
    328 Mont. 428
    , 
    121 P.3d 541
    .
    Additionally, § 41-3-604(1), MCA, states that the best interests of the child are presumed
    to the served by the termination of parental rights when the child has been in foster care
    for 15 of the most recent 22 months.
    ¶12    D.W. argues that the District Court’s finding that he abandoned M.J.C. was clearly
    erroneous because it was not supported by substantial evidence. However, the record is
    clear that the District Court correctly concluded that D.W. never intended to care for
    M.J.C. D.W. had been involved in these proceedings and represented by counsel since
    M.J.C. was approximately one month old. Yet, although D.W. has lived out-of-state for
    M.J.C.’s entire life, he had not attempted or even expressed a plan to visit M.J.C. D.W.
    has made little to no effort to establish a relationship with M.J.C., and has failed to
    provide any sort of care, financial or otherwise, to M.J.C. during the two years she was in
    foster care. D.W.’s noncompliance with his treatment plan also indicates that he had no
    intention of caring for M.J.C. in the future. Such evidence supports the District Court’s
    finding that D.W. abandoned M.J.C.        See In re adoption of K.P.M., 
    2009 MT 31
    ,
    6
    ¶¶ 25-27, 
    349 Mont. 170
    , 
    201 P.3d 833
    (the district court terminated mother’s parental
    rights on the basis of abandonment when she “failed to manifest any intention she would
    someday resume physical custody or make permanent legal arrangements for [her
    child]”); In re T.H., ¶¶ 29-33 (the district court terminated mother’s parental rights on the
    basis of abandonment when mother stipulated to TLC, left town, had minimal contact
    with her children, and no contact with her social worker); In re M.J.W., 
    1998 MT 142
    ,
    ¶¶ 16-17, 
    289 Mont. 232
    , 
    961 P.2d 105
    (father’s failure to parent, with minimal
    intermittent contact and visitation, made reasonable the belief that father did not intend to
    resume care of the child in the future). Thus, clear and convincing evidence supports the
    District Court’s finding that D.W. abandoned M.J.C. and did not intend to care for her in
    the future pursuant to § 41-3-102(1)(a)(i), MCA.
    ¶13    D.W. also argues that the District Court erred in terminating his parental rights
    because it lacked substantial evidence for termination under the second statutory ground
    explained by § 41-3-609(1)(f), MCA. D.W. specifically argues that there was not enough
    evidence to support the District Court’s finding that the conduct or condition rendering
    D.W. unfit to parent was unlikely to change within a reasonable time. However, D.W.’s
    argument is unpersuasive, as D.W.’s lack of involvement with M.J.C. is the basis for the
    limited record.   We conclude that many of the same findings supporting abandonment
    also support a conclusion that D.W. was unlikely to change his conduct toward M.J.C.
    within a reasonable time. After over two years in foster care and without any relationship
    with D.W., M.J.C. continued to be a youth in need of care, and dependent, abused, and
    neglected due to the conduct of Mother and D.W. D.W. failed to complete even minimal
    7
    requirements of the treatment plan and never met M.J.C. The District Court properly
    gave primary consideration to the emotional and physical needs of M.J.C. and determined
    that it was not likely D.W.’s conduct toward M.J.C. would change. We conclude that the
    District Court’s determination is supported by clear and convincing evidence.
    CONCLUSION
    ¶14   For the foregoing reasons, we affirm.
    /S/ LAURIE McKINNON
    We Concur:
    /S/ MICHAEL E WHEAT
    /S/ JIM RICE
    /S/ PATRICIA COTTER
    /S/ BETH BAKER
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