Matter of M.B. ( 2010 )

March 16 2010
DA 09-0566
IN THE SUPREME COURT OF THE STATE OF MONTANA
2010 MT 53N
IN THE MATTER OF:
M.B.,
A Youth in Need of Care.
APPEAL FROM: District Court of the Nineteenth Judicial District,
In and For the County of Lincoln, Cause No. DN 08-12
Honorable Michael C. Prezeau, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Elizabeth Thomas, PLLC, Attorney at Law; Missoula, Montana
For Appellee:
Hon. Steve Bullock, Montana Attorney General; Tammy K Plubell,
Assistant Attorney General; Helena, Montana
Lucy W. Darty, Assistant Attorney General, Child Protection Unit;
Missoula, Montana
Submitted on Briefs: March 3, 2010
Decided: March 16, 2010
Filed:
__________________________________________
Clerk
Justice Jim Rice delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal
Operating Rules, as amended in 2006, the following memorandum decision shall not be
cited as precedent. It shall be filed as a public document with the Clerk of the Supreme
Court, and its case title, Supreme Court 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 On September 1, 2009, the District Court entered an order terminating C.B.’s
parental rights to his child M.B., based upon his failure to comply with two court-
approved treatment plans. Over the course of seventeen months, C.B. had conducted
himself inconsistently with the treatment plans by using drugs and alcohol, ignoring
scheduled visits with M.B., and failing to attend to treatment. C.B. violated the terms of
probation related to his convictions for distributing dangerous drugs, and was sent back to
the custody of the Department of Corrections. On appeal, C.B. argues that the Child and
Family Services Division, Department of Health and Human Services, had a duty to
amend his treatment plan after his revocation because it no longer took into account the
particular problems facing C.B. and M.B., particularly C.B.’s incarceration. C.B. also
alleges that the District Court abused its discretion when it concluded his conduct or
condition rendering him unfit was unlikely to change within a reasonable time.
¶3 The district court may terminate parental rights upon a finding supported by clear
and convincing evidence that the child is a youth in need of care, and the parent’s
2
conduct is unlikely to change in a reasonable time, particularly considering the “physical,
mental, and emotional conditions and needs of the child.” Section 41-3-609(1)-(3), MCA
(2007); In re C.M.C., 2009 MT 153, ¶ 18, 350 Mont. 391, 208 P.3d 809; In re C.J.K.,
2005 MT 67, ¶¶ 13-15, 326 Mont. 289, 109 P.3d 232. We review a district court’s order
terminating parental rights for an abuse of discretion. In re J.V., 2003 MT 68, ¶ 7, 314
Mont. 487, 67 P.3d 242 (citation omitted). The district court has abused its discretion if it
acted arbitrarily without employment of conscientious judgment, or in excess of the
bounds of reason, resulting in substantial injustice. C.J.K., ¶ 13 (citations omitted).
¶4 We have determined it is appropriate to decide this case pursuant to Section I,
Paragraph 3(d), of our 1996 Internal Operating Rules, as amended in 2006, which
provides for memorandum opinions. It is manifest on the face of the briefs and the
record before us that the appeal is without merit because there is clearly sufficient
evidence to support the District Court’s findings of fact and that the District Court
correctly applied settled Montana law.
¶5 Affirmed.
/S/ JIM RICE
We concur:
/S/ MIKE McGRATH
/S/ W. WILLIAM LEAPHART
/S/ PATRICIA O. COTTER
/S/ MICHAEL E WHEAT
3