Matter of L.A.A. and C.C. YINC , 2016 MT 135N ( 2016 )

May 31 2016
DA 15-0784
IN THE SUPREME COURT OF THE STATE OF MONTANA
2016 MT 135N
IN THE MATTER OF:
L.A.A. and C.C.,
Youths in Need of Care.
APPEAL FROM: District Court of the Nineteenth Judicial District,
In and For the County of Lincoln, Cause Nos. DN 15-03 and DN 15-04
Honorable James B. Wheelis, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Shannon Hathaway, Montana Legal Justice, PLLC, Missoula, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant
Attorney General, Helena, Montana
Bernard Cassidy, Lincoln County Attorney, Libby, Montana
Submitted on Briefs: May 11, 2016
Decided: May 31, 2016
Filed:
__________________________________________
Clerk
Justice Patricia Cotter delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not
serve as precedent. Its case title, 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 Mother appeals the order of the Nineteenth Judicial District Court terminating her
parental rights to her two minor daughters on the ground that the condition or conduct
rendering Mother unfit to parent her children was not likely to change in a reasonable
time.
¶3 L.A.A. and C.C., aged 10 and 6 respectively, are Mother’s biological children but
they have different biological fathers. The Department of Public Health and Human
Services, Child and Family Services Division (the Department) first became involved
with Mother in 2009 when it received a report that C.C.’s father physically abused
L.A.A. The Department received numerous subsequent but unsubstantiated reports of
physical neglect of the children during 2013 and 2014. The children were removed from
Mother’s home in January 2015. Neither father was available to provide care for his
child.
¶4 A show cause hearing was conducted on March 2, 2015, at which the children
were declared youths in need of care and the court granted temporary legal custody of the
children to the Department for six months. On March 23, 2015, a scheduled dispositional
hearing was continued to April 13, 2015, because the parents failed to appear. The
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dispositional hearing was held on April 13 and the court ordered the parents’ treatment
plans to be put into effect. Mother stipulated to her plan which required that she
complete psychological and chemical dependency evaluations, find adequate housing,
maintain a steady and legal income, visit with her children, complete parenting classes,
implement the learned parenting techniques, and maintain weekly contact with the
Department. In September 2015, the County Attorney petitioned for permanent legal
custody and termination of Mother’s parental rights based upon her failure to complete an
appropriate treatment plan and asserting that the conduct or condition rendering her unfit
to parent was unlikely to change in a reasonable time. On November 2, 2015, the District
Court terminated the parental rights of Mother and both fathers. Mother appeals. Fathers
do not. We affirm.
¶5 Mother argues the District Court violated her constitutional right to parent her
children and abused its discretion by terminating her rights without meeting the proper
statutory criteria set forth in § 41-3-609(1)(f), MCA, and upon finding that the condition
that prevents her from currently parenting the children is unlikely to change within a
reasonable time. Mother asserts the District Court should have granted her request for
additional time to complete her treatment plan. The State counters that the District Court
did not abuse its discretion when it terminated Mother’s rights because adequate and
substantial evidence had been presented to support the court’s findings and conclusion
that Mother’s condition was unlikely to change in a reasonable period of time.
¶6 Section 41-3-609(1)(f), MCA, provides that a court may order termination of a
parent’s rights when clear and convincing evidence is presented that (1) the child is an
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adjudicated youth in need of care, (2) an appropriate and court-approved treatment plan
has not been complied with or has been unsuccessful, and (3) the conduct or condition
rendering the parent unfit is unlikely to change within a reasonable time. In determining
that the conduct or condition of the parents is unlikely to change within a reasonable
time, the court must find that continuation of the parent-child legal relationship will likely
result in continued abuse or neglect or that the conduct or the condition of the parents
renders the parents unfit, unable, or unwilling to give the child adequate parental care.
The court must consider the following, among other things: emotional or mental illness, a
history of violent behavior by the parent, and excessive use of intoxicating liquor or a
narcotic or dangerous drug that affects the parent’s ability to care and provide for the
child. Section 41-3-609(2), MCA.
¶7 In the case before us, the District Court heard evidence from Mother, Mother’s
departmental case workers, and a family support worker. Additionally, one of the
Department case workers testified to the results of a psychological evaluation performed
on Mother stemming from theft and criminal-endangerment charges brought against her.
While some of the evidence presented supported Mother’s request for additional time,
other evidence revealed the severity of Mother’s mental health condition, her use of
alcohol and drugs in the presence of her children, and her neglect of the children’s health
and dental needs. Along with other evidence, these factors supported the District Court’s
decision to deny Mother additional time and to terminate her parental rights.
¶8 It is within the district court’s province and discretion to weigh witness testimony
and evaluate the credibility of the witnesses. In re A.K., 2015 MT 116, ¶ 31, 379 Mont.
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41, 347 P.3d 711. Additionally, it is well-established that “in reviewing a district court’s
findings . . . we do not consider whether the evidence could support a different finding;
nor do we substitute our judgment for that of the fact-finder regarding the weight given to
the evidence.” In re S.H., 2003 MT 366, ¶ 10, 319 Mont. 90, 86 P.3d 1027. Moreover,
the existence of conflicting evidence does not preclude a trial court’s determination that
clear and convincing evidence exists to support a finding of fact.” A.K., ¶ 31.
¶9 In the case at bar, the District Court was presented with sufficient evidence to
support its determination that the conditions rendering Mother unfit were unlikely to
change within a reasonable period of time.
¶10 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of
our Internal Operating Rules, which provides for memorandum opinions. The court’s
findings of fact are not clearly erroneous and the legal issues are controlled by settled
Montana law, which the District Court correctly interpreted. Furthermore, there was no
abuse of discretion.
¶11 We affirm.
/S/ PATRICIA COTTER
We Concur:
/S/ MIKE McGRATH
/S/ BETH BAKER
/S/ JAMES JEREMIAH SHEA
/S/ LAURIE McKINNON
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