Matter of B.B. , 2007 MT 27N ( 2007 )

No. DA 06-0616
IN THE SUPREME COURT OF THE STATE OF MONTANA
2007 MT 27N
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IN THE MATTER OF B.B.,
A Youth in Need of Care.
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APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade, Cause No. CDJ-04-190-Y,
The Honorable Kenneth Neill, Presiding Judge.
COUNSEL OF RECORD:
For Appellant:
Jim Wheelis and Roberta R. Zenker, Appellate Defenders Office, Helena,
Montana
For Respondent:
Hon. Mike McGrath, Attorney General; Mark W. Mattioli, Assistant
Attorney General, Helena, Montana
Brant S. Light, County Attorney; Sarah Corbally, Deputy County
Attorney, Great Falls, Montana
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Submitted on Briefs: January 24, 2007
Decided: February 6, 2007
Filed:
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Clerk
Justice Brian Morris 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 J.W. appeals from the Order of the Eighth Judicial District Court, Cascade County,
terminating his parental rights to his daughter, B.B., and extending temporary legal
custody to the Montana Department of Public Health and Human Services (Department),
pending resolution of the Department’s Petition for Termination of Parental Rights of the
Mother and Permanent Legal Custody. We affirm.
¶3 The District Court adjudicated B.B. as a Youth in Need of Care on December 7,
2004. The court found the proposed treatment plan to be reasonable and ordered J.W. to
complete the treatment plan. J.W. absconded from probation shortly after the
dispositional hearing. J.W. failed to maintain contact with B. B. and with the
Department’s social worker assigned to his case. J.W. finally resurfaced in May 2005,
when he was arrested in Oklahoma. J.W. was jailed in Oklahoma on charges of child
neglect involving another child. J.W. transferred to prison in Montana in 2006 based on
the warrant issued following his flight from probation in 2004.
¶4 At the conclusion of the termination hearing on August 9, 2006, the District Court
found that J.W. had failed to complete a single goal of his treatment plan since 2004.
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J.W. testified that he was enrolled in some classes in prison, including chemical
dependency treatment, but he failed to provide any documentation of this attendance
either at the hearing or to the Department’s social worker. J.W. further testified that he
would remain incarcerated for another six to eight months from the date of the
termination hearing, after which time he would be transferred to a prerelease center. The
District Court found that the conduct rendering J.W. unfit or unable to care for B.B. was
unlikely to change within a reasonable amount of time. The court also noted that B.B.
had been in foster care for twenty-one of the twenty-two months preceding the
termination hearing.
¶5 J.W. argues on appeal that the court arbitrarily terminated his parental rights
without allowing him the opportunity to perform the conditions of his treatment plan.
We review a district court’s decision to terminate a person’s parental rights under an
abuse of discretion standard. In re Custody and Parental Rights of C.J.K., 2005 MT 67, ¶
13, 326 Mont. 289, ¶ 13, 109 P.3d 232, ¶ 13. To satisfy the relevant statutory
requirements for terminating a parent-child relationship, a district court must make
specific factual findings. In re C.J.K., ¶ 13. We review the district court’s findings of
fact to determine whether those findings are clearly erroneous. In re Custody and
Parental Rights of M.A.D., 2003 MT 10, ¶ 12, 314 Mont. 38, ¶ 12, 62 P.3d 717, ¶ 12. We
review the court’s conclusions of law with respect to those findings to determine whether
the court correctly interpreted and applied the law. In re M.A.D., ¶ 12.
¶6 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
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memorandum opinions. It is manifest on the face of the briefs and record before us that
substantial evidence supports the District Court’s findings of fact. It is also manifest on
the face of the briefs and record before us that settled Montana law clearly controls the
legal issues and that the District Court correctly interpreted the law.
¶7 We affirm the judgment of the District Court.
/S/ BRIAN MORRIS
We Concur:
/S/ KARLA M. GRAY
/S/ JOHN WARNER
/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
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