Matter of D.B. E.B. T.B. and C.B

January 27 2015
DA 14-0322
IN THE SUPREME COURT OF THE STATE OF MONTANA
2015 MT 26N
IN THE MATTER OF:
D.B., E.B., T.B., and C.B.,
Youths in Need of Care.
APPEAL FROM: District Court of the Eighth Judicial District,
In and For the County of Cascade, Cause Nos. CDN-11-244,
CDN-11-245, CDN-11-256, CDN-11-247, and CNN-12-054
Honorable Kenneth R. Neill, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Jennifer A. Giuttari, Attorney at Law, Missoula, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant
Attorney General, Helena, Montana
Theresa Diekhans, Assistant Attorney General, Great Falls, Montana
Submitted on Briefs: December 24, 2014
Decided: January 27, 2015
Filed:
__________________________________________
Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d), 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 J.E. appeals from an order of the Eighth Judicial District, Cascade County,
terminating his parental rights to D.B., E.B., T.B., and C.B. (hereinafter “children”). We
affirm.
¶3 The issues on appeal are whether J.E.’s treatment plan was appropriate in light of
his Post Traumatic Stress Disorder (PTSD) diagnosis and whether the District Court’s
findings of fact in the order of termination are clearly erroneous.
¶4 J.E. (“Father”) is the natural father of the children. In December 2011, the
Department of Health and Human Services (“Department”) filed a petition for emergency
protective services, adjudication as youths in need of care, and temporary legal custody
of D.B, E.B., and T.B.1 The Department intervened due to reports of physical abuse
against Father’s stepson, T.C., and physical neglect of all the children. In February 2012,
Father and M.E. (“Mother”) stipulated to the adjudication of the children as youths in
need of care.
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C.B. was born after the initial filing for temporary legal custody. On June 19, 2012, C.B. was
adjudicated a youth in need of care and Father’s treatment plan was approved to include C.B.
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¶5 In March 2012, the Department filed the treatment plan, after discussing the
objectives with Father and his counsel. Father did not object to any task or goal. The
treatment plan required Father to obtain an anger management assessment and follow the
recommendations, participate in individual and family counseling, establish a safe home,
attend parenting classes, and maintain employment. In September 2012, the Department
sought extension of temporary legal custody as the parents were making progress and
warranted additional time.
¶6 In February 2013, Father was arrested for felony theft.2 Despite Department
referrals, Father had not yet obtained an anger assessment and attended only five
individual counseling sessions between May 2012 and February 2013. On March 29,
2013, the Department filed a petition for termination of Father’s parental rights, noting
that he had failed to complete many treatment plan tasks.
¶7 In April 2013, the Department offered to reconsider termination if the parents
reengaged in their treatment plan. As a result, the hearing was continued five times.
During this period, Father started weekly counseling with Ralph Beeson at the Veteran’s
Center. In August 2013, Mr. Beeson diagnosed Father with PTSD. Also during this
time, Father completed an eleven-week anger management program with Roy
Harrington, his VTC counselor.
¶8 In January 2014, the Department moved to withdraw its termination petition. The
District Court denied the motion and reset the termination hearing for April 16, 2014. In
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Father received a three-year deferred imposition and was placed in Veterans’ Treatment Court
(VTC).
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February of that year, the children were returned to the home for a trial visit. Father
quickly disengaged from his treatment plan by failing to participate in counseling,
violating the rules of VTC, quitting his job, using drugs and alcohol, and violating a
no-contact order.
¶9 On April 16, 2014, the District Court held a termination hearing. Numerous
witnesses testified, including Father’s counselors. The District Court issued findings of
fact, conclusions of law, and an order terminating Father’s parental rights. The District
Court found that Father had failed to complete an appropriate treatment plan and his
conduct was unlikely to change.
¶10 We review a district court’s decision to terminate parental rights for abuse of
discretion. In re D.B., 2007 MT 246, ¶ 16, 339 Mont. 240, 168 P.3d 691 (citations
omitted). A district court abused its discretion only if it “acted arbitrarily, without
employment of conscientious judgment, or exceeded the bounds of reason resulting in
substantial injustice.” In re D.B., ¶ 16 (citations omitted). A parent’s fundamental liberty
interest in the care and custody of his child necessitates fundamentally fair procedures.
In re D.B., ¶ 17 (citations omitted). A district court must make specific factual findings
before terminating parental rights. In re D.B., ¶ 18 (citations omitted). Findings of fact
are reviewed for clear error and conclusions of law for correctness. In re D.B., ¶ 18
(citations omitted). “The district court is bound to give primary consideration to the
physical, mental and emotional conditions and needs of the children. Consequently, the
best interests of the children are of paramount concern in a parental rights termination
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proceeding and take precedence over the parental rights.” In re T.S.B., 2008 MT 23,
¶ 19, 341 Mont. 204, 177 P.3d 429 (citations omitted).
¶11 A court may order termination of parental rights upon a finding of clear and
convincing evidence that the child is an adjudicated youth in need of care, an appropriate
treatment plan has not been complied with or not been successful, and the conduct or
condition of the parents rendering them unfit is unlikely to change within a reasonable
time. Section 41-3-609(1)(f), MCA; In re A.D.B., 2013 MT 167, ¶ 41, 370 Mont. 422,
305 P.3d 739. Due to the unique nature of every situation, this Court has not established
a definite test for appropriateness, but generally, the Court considers whether the parents
were represented, whether they stipulated to the treatment plan, and whether the plan
considers the problems facing the parent and the child. In re A.D.B., ¶ 42 (citations
omitted). The Department bears the burden of proving, by clear and convincing
evidence, that a treatment plan is appropriate. In re A.D.B., ¶ 42 (citations omitted).
¶12 A parent must object to a treatment plan goal or risk waiving the right to argue the
goal’s appropriateness on appeal. In re H.R., 2012 MT 290, ¶ 10, 367 Mont. 338, 291
P.3d 583 (citations omitted). Father did not object to the treatment plan tasks. Father and
his counsel met with CPS worker, Kayla Moodie, to discuss the plan’s objectives and was
present when the District Court stated it would approve the plans unless the parties
objected. Father did not challenge his treatment plan and has waived his right to argue
that his treatment plan was inappropriate.
¶13 We nevertheless note that clear and convincing evidence supports the finding that
the treatment plan was appropriate. Father argues the treatment plan was inappropriate
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because the plan failed to consider his PTSD diagnosis. We disagree. A diagnosis,
post-treatment plan, does not automatically render the plan inappropriate; rather, clear
and convincing evidence must show that the plan anticipated the disabled parent’s
specific needs or was modified to address the needs. In re D.B., ¶ 35. The treatment plan
was appropriately designed to address the needs of the children, two of whom suffered
from reactive attachment disorder, as well as Father. In particular, the plan sought to
address Father’s anger issues, which were the primary cause of the Department’s
involvement with the family. Finally, the plan was not inappropriate, in light of Father’s
diagnosis, as the Department provided multiple counseling referrals and additional time
to complete tasks.
¶14 Father also challenges the District Court order, arguing that it failed to make a
specific finding as to whether Father’s treatment plan was appropriate in light of his
PTSD diagnosis. Montana law requires the district court to make a specific factual
finding that the parent did not comply with an appropriate treatment plan and that the
parent’s conduct or condition is unlikely to change within a reasonable time. In re D.B.,
¶ 21; § 41-3-609(1)(f), MCA.
¶15 Here, the District Court specifically found that “appropriate treatment plans were
Court ordered for J.E. and M.E. and they have not completed those treatment plans.” The
District Court made findings detailing Father’s diagnosis and the various counseling
services, including the Veteran’s Center. The Court noted that Father had failed to
consistently participate in mental health services and that both counselors agreed that
Father had considerable work to do before his anger issues were resolved. The District
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Court adequately addressed each statutory requirement by making a specific factual
finding that Father had not complied with an appropriate treatment plan and his conduct
was unlikely to change within a reasonable time.
¶16 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of
our Internal Operating Rules, which provides for memorandum opinions. The District
Court did not abuse its discretion in terminating Father’s parental rights. The District
Court’s findings of fact are supported by substantial evidence and the legal issues are
controlled by settled Montana law, which the District Court correctly interpreted.
¶17 Affirmed.
/S/ MIKE McGRATH
We Concur:
/S/ MICHAEL E WHEAT
/S/ PATRICIA COTTER
/S/ BETH BAKER
/S/ LAURIE McKINNON
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