Matter of M.I. L.I. , 2009 MT 325N ( 2009 )


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  •                                                                                            October 1 2009
    DA 09-0102
    IN THE SUPREME COURT OF THE STATE OF MONTANA
    2009 MT 325N
    IN THE MATTER OF:
    M.I. and L.I.,
    Youths in Need of Care.
    APPEAL FROM:            District Court of the Thirteenth Judicial District,
    In and For the County of Yellowstone, Cause Nos. DN 06-0131
    and DN 06-0132
    Honorable Ingrid G. Gustafson, Presiding Judge
    COUNSEL OF RECORD:
    For Appellant:
    James B. Wheelis, Chief Appellate Defender; Helena, Montana
    For Appellee:
    Hon. Steve Bullock, Montana Attorney General; John Paulson,
    Assistant Attorney General; Helena, Montana
    Dennis Paxinos, Yellowstone County Attorney; Corbit Harrington,
    Deputy County Attorney; Billings, Montana
    Submitted on Briefs: August 26, 2009
    Decided: October 1, 2009
    Filed:
    __________________________________________
    Clerk
    Justice W. William Leaphart 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     B.I. (father) appeals from the order of the Thirteenth Judicial District Court,
    Yellowstone County, terminating his parental rights to M.I. and L.I., his biological
    children. We affirm.
    ¶3     M.I. and L.I. were born in May 2001 and June 2002, respectively. In December
    2006 the Montana Department of Public Health and Human Services (DPHHS)
    petitioned the District Court for emergency protective services, temporary legal custody,
    and adjudication of M.I. and L.I. as youths in need of care. DPHHS asserted that the
    father was unemployed, had applied for disability benefits, and was allegedly verbally
    and physically abusive toward the children and their mother. DPHHS further alleged that
    the family’s home was unsanitary and unsafe, and that the children were poorly fed,
    poorly clothed, and poorly supervised. In January 2007 the District Court adjudicated the
    children as youths in need of care and granted temporary custody to DPHHS. DPHHS
    placed the children in a kinship foster home.
    2
    ¶4       In April 2007 the District Court approved a treatment plan for the father. The
    goals of the treatment plan were for the father to (1) stabilize his finances, (2) increase his
    parenting abilities, (3) provide a safe environment for his children, (4) improve his
    mental health status, (5) maintain and improve his bond with his children, and (6)
    cooperate to assist DPHHS in evaluating his progress with the treatment plan. Upon
    DPHHS’s motion, the District Court subsequently amended the treatment plan in January
    2008 to require the father additionally to address issues of chemical dependency and
    abuse.
    ¶5       In February 2008 DPHHS petitioned for permanent legal custody of M.I. and L.I.
    and to terminate the father’s parental rights. DPHHS contended that the father had not
    complied with the treatment plan and that the conduct and conditions rendering him unfit
    were unlikely to change within a reasonable period of time.             The father contested
    termination.    The District Court held a hearing on the petition.         DPHHS presented
    testimony from Cindy Iacopini, a social worker, Donna Veraldi, a clinical psychologist,
    and Deb Dalke, a family support specialist. During Iacopini’s testimony, the District
    Court took judicial notice of an affidavit prepared by Iacopini in support of DPHHS’s
    petition for termination. The father testified and also presented the testimony of Jeffrey
    Cummins, a licensed clinical social worker. Following the hearing, the District Court
    issued an order terminating the father’s parental rights and granting DPHHS permanent
    legal custody of the children.
    3
    ¶6     The issues on appeal are whether the District Court abused its discretion in
    admitting hearsay testimony and whether the District Court abused its discretion in
    concluding that the father is unfit.
    ¶7     We review a district court’s evidentiary rulings and decision to terminate parental
    rights for abuse of discretion. In re O.A.W., K.A.W., & W.L.W., 
    2007 MT 13
    , ¶ 32, 
    335 Mont. 304
    , 
    153 P.3d 6
    ; In re D.B. & D.B., 
    2007 MT 246
    , ¶ 16, 
    339 Mont. 240
    , 
    168 P.3d 691
    . A district court abuses its discretion when it acts arbitrarily or beyond the bounds of
    reason, resulting in substantial injustice. In re D.B. & D.B., ¶ 16. We review a district
    court’s findings of fact for clear error and its conclusions of law for correctness. In re
    O.A.W., ¶ 26.
    ¶8     The father argues first that the District Court erred by admitting hearsay evidence.
    This argument appears to have two parts: first, that the District Court allowed Iacopini to
    offer expert opinions under Rule 703, M. R. Evid., even though DPHHS had not qualified
    her as an expert; and second, that the District Court considered Iacopini’s affidavit, which
    contained hearsay. These objections lack merit. The father’s first argument fails because
    he did not object to Iacopini’s qualification as an expert at the termination hearing. State
    v. Clifford, 
    2005 MT 219
    , ¶ 33, 
    328 Mont. 300
    , 
    121 P.3d 489
    . The father’s second
    argument fails because Iacopini actually testified at the termination hearing—without
    objection from the father—to the alleged hearsay contained in the affidavit. The District
    Court did not abuse its discretion in considering Iacopini’s testimony and affidavit.
    4
    ¶9     The father next argues that the District Court erred in its conclusion that he is
    unfit. In developing this argument, the father first contends that the District Court clearly
    erred in finding he had a history of violent behavior, chemical dependency, and sleeping
    during visitations with the children. The father further asserts that the District Court did
    not adequately weigh his many meetings with Cummins, the clinical social worker.
    Finally, the father protests that the District Court did not adequately consider his injuries,
    limited physical condition, and poverty. These arguments fail to persuade us. The
    challenged findings are not clearly erroneous, but supported by substantial evidence.
    Moreover, the appropriate weighing of conflicting testimony was within the District
    Court’s discretion. In re A.N.W., 
    2006 MT 42
    , ¶ 29, 
    331 Mont. 208
    , 
    130 P.3d 619
    . The
    District Court did not abuse its discretion in concluding that the father is unfit.
    ¶10    It is appropriate to decide this case pursuant to Section I, Paragraph 3(d)(i) 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 before us that the appeal
    is without merit because the findings of fact are supported by substantial evidence, the
    legal issues are controlled by settled Montana law, and there was no abuse of discretion
    by the District Court. We affirm.
    /S/ W. WILLIAM LEAPHART
    We concur:
    /S/ MIKE McGRATH
    /S/ BRIAN MORRIS
    /S/ PATRICIA O. COTTER
    /S/ JAMES C. NELSON
    5
    

Document Info

Docket Number: 09-0103

Citation Numbers: 2009 MT 325N

Filed Date: 10/1/2009

Precedential Status: Precedential

Modified Date: 3/28/2017