Matter of J.F. A.F. , 2006 MT 306N ( 2006 )

No. DA 06-0291
IN THE SUPREME COURT OF THE STATE OF MONTANA
2006 MT 306N
IN THE MATTER OF J.F. and A.F.,
Youths in Need of Care.
APPEAL FROM: District Court of the Fourth Judicial District,
In and For the County of Missoula, Cause No. DN-03-23
Honorable Ed McLean, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Kathleen Foley; Boggs & Foley Law Office, Missoula, Montana
For Respondent:
Hon. Mike McGrath, Attorney General, Helena, Montana
Kathleen Jenks, Assistant Attorney General, Child Protection
Unit, Missoula, Montana
Submitted on Briefs: October 25, 2006
Decided: November 28, 2006
Filed:
__________________________________________
Clerk
Chief Justice Karla M. Gray 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 2003, 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 The biological father of J.F. and A.F. appeals from the order entered by the Fourth
Judicial District Court, Missoula County, terminating his parental rights. He contends some
of the District Court’s findings are clearly erroneous and the evidence was not clear and
convincing, as required for termination under § 41-3-609(1)(f), MCA. He sets forth various
witnesses’ testimony at length, asserting certain professionals acted inappropriately and
others did not believe termination was appropriate. He also asserts he substantially complied
with his treatment plan.
¶3 For the most part, the biological father’s arguments are not supported by authority, as
required by Rule 23(a)(4), M.R.App.P. See In re T.H., 2005 MT 237, ¶ 43, 328 Mont. 428, ¶
43, 121 P.3d 541, ¶ 43. He advances §§ 41-3-609(1) and (2), MCA. He also cites to two
cases for the standard of review, a parent’s fundamental liberty interest in child abuse and
neglect proceedings, and the criteria for termination under § 41-3-609(1)(f), MCA. In his
reply brief, he advances one of the two above-mentioned cases—In re E.K., 2001 MT 279, ¶
43, 307 Mont. 328, ¶ 43, 37 P.3d 690, ¶ 43 (citation omitted)—for the proposition that
conflicting evidence “‘does not automatically preclude a finding that clear and convincing
evidence to support a given position exists.’” He asserts this language leaves open the
possibility that, in the face of conflicting evidence, a court might properly find that clear and
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convincing evidence does not exist to support termination.
¶4 We have determined to decide this case pursuant to Section I, Paragraph 3(d), of our
1996 Internal Operating Rules, as amended in 2003, which provides for memorandum
opinions. It is manifest on the face of the briefs and the record that this appeal is without
merit because substantial credible evidence supports many of the District Court’s findings,
and the biological father has not established error or abuse of discretion in the court’s
determination that clear and convincing evidence justified termination pursuant to § 41-3-
609(1)(f), MCA.
¶5 Affirmed.
/S/ KARLA M. GRAY
We concur:
/S/ JAMES C. NELSON
/S/ PATRICIA COTTER
/S/ JIM RICE
/S/ BRIAN MORRIS
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