Matter of J.W. F.L. A.W. and T

May 12 2015
DA 14-0677
IN THE SUPREME COURT OF THE STATE OF MONTANA
2015 MT 128N
IN THE MATTER OF:
J.W., F.L., A.W., and T.F.,
Youths in Need of Care.
APPEAL FROM: District Court of the Eighth Judicial District,
In and For the County of Cascade, Cause Nos. CDN 12-153, CDN 12-154,
CDN 12-155, CDN 12-156
Honorable Gregory Pinski, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Tracy Labin Rhodes, Attorney at Law, Missoula, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant
Attorney General, Helena, Montana
John W. Parker, Cascade County Attorney, Ryan C. Ball, Deputy County
Attorney, Great Falls, Montana
Submitted on Briefs: April 8, 2015
Decided: May 12, 2015
Filed:
__________________________________________
Clerk
Justice Laurie McKinnon 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Rules, this case is decided by unpublished opinion and shall not be cited and does not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 S.W. (Mother) appeals from an order of the Eighth Judicial District Court,
Cascade County, terminating her parental rights to her four children, J.W., T.F., A.W.,
and F.L. We affirm.
¶3 On appeal, Mother argues the District Court erred when it considered her failure to
complete drug testing; when it found that termination of her parental rights was in the
best interests of the children; and when it failed to hold a permanency hearing within the
statutory time frame.
¶4 On September 11, 2012, the Department of Public Health and Human Services
(Department) received a report that Mother had been assaulted by her partner, C.R., who
is the birth father of T.F. The Department’s investigation revealed a significant pattern of
domestic violence and sexual assault perpetrated by C.R. against Mother. The children
were interviewed, and each expressed love for Mother but fear of C.R. The children had
witnessed incidents of violence in the home. C.R. had reportedly also hit J.W. and T.F.
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¶5 Mother stipulated to adjudication of the children as youths in need of care on
November 28, 2012. Temporary legal custody (TLC) was granted to the Department.
On January 9, 2013, Mother agreed to a treatment plan including the following tasks:
address anger management issues; address mental health issues; actively participate in
domestic violence counseling; complete a parenting assessment and parenting classes;
refrain from using non-prescribed drugs; attend scheduled visits with the children; and
maintain a safe and stable home environment. At a status hearing on December 11, 2013,
counsel for the children moved to amend Mother’s treatment plan to include drug testing,
based on the children’s concerns about Mother’s possible drug use. The motion was
denied because the Department had no evidence of ongoing drug use by Mother.
¶6 On December 26, 2013, the Department moved to extend TLC for another six
months. At a hearing on the motion, the Department reported that Mother was making
some progress on her treatment plan, but neither the Court Appointed Special Advocate
(CASA) nor the attorney for the children believed that progress was significant. The
District Court extended TLC for three months, noting that “if substantial progress hasn’t
been made by the next review hearing . . . the State needs to evaluate where this case is
going then at that point.” On April 2, 2014, based on reports that Mother was continuing
to make progress, the District Court granted another extension of TLC for three months.
¶7 On April 21, 2014, Mother attended a birthday party at her parents’ house and was
involved in a violent confrontation with her sister. Some of the children witnessed the
incident. Mother was asked to submit to voluntary urinalysis due to her behavior. The
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test was positive for methamphetamine. At a status hearing on June 18, 2014, the District
Court noted that the case had continued for nearly two years, and informed counsel for
the Department that “at this point . . . the options are really that you file for termination or
you move to dismiss.” The Department represented that it would file a petition for
termination of Mother’s parental rights. The District Court extended TLC for a period of
60 days to allow the Department time to prepare its petition.
¶8 The termination hearing was held on August 14, 2014. Child Protection Specialist
Tonya Carpenter testified that Mother’s counseling related to anger management, mental
illness, and domestic violence were all ongoing, and she had not completed those aspects
of her treatment plan. Carpenter testified that Mother’s “attendance was an issue with
several providers” throughout the duration of the case. Mother had not consistently
maintained a safe and stable residence because of continued concerns regarding drug use
and domestic violence. Mother had resumed a relationship with F.L.’s birth father, who
was a violent drug user. The District Court terminated Mother’s parental rights, finding
she had failed to implement strategies learned in domestic violence counseling; was
discharged from family based services due to missed appointments; had not completed
any chemical dependency treatment; and had not maintained a safe and stable home. The
District Court concluded that Mother’s condition was unlikely to change within a
reasonable time and that continuation of the parent-child legal relationship would likely
result in ongoing abuse and neglect.
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¶9 A district court’s termination of parental rights is reviewed for abuse of discretion.
In re H.R., 2012 MT 290, ¶ 9, 367 Mont. 338, 291 P.3d 583. Findings of fact are
reviewed for clear error, and conclusions of law are reviewed for correctness. In re D.B.,
2007 MT 246, ¶ 18, 339 Mont. 240, 168 P.3d 691. 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 has 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.
Partial or substantial completion of a treatment plan is insufficient. In re D.B., 2004 MT
371, ¶ 41, 325 Mont. 13, 103 P.3d 1026.
¶10 Mother argues the District Court erred when it based its conclusion that her
treatment plan had not been complied with on her failure to complete chemical
dependency treatment. Mother argues this was never included in her treatment plan, and
so cannot be evidence of noncompliance. We acknowledge that the District Court’s
references to Mother’s failure to complete chemical dependency treatment were not
appropriate to its discussion of her treatment plan compliance. The record indicates,
however, that many other aspects of Mother’s treatment plan were not complied with.
She did not show up for individual and family counseling appointments, did not
understand and apply what she learned in counseling, and did not maintain a safe and
stable home for the children. Her violent behavior, continued involvement in abusive
relationships, and failure to actively and consistently participate in counseling over nearly
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two years demonstrated that her condition was unlikely to change within a reasonable
time. Section 41-3-609(1)(f), MCA.
¶11 Mother also argues that the District Court erred when it concluded that it was in
the best interests of the children to terminate her parental rights, because the testimony
showed that the children were closely bonded to Mother. A district court is required to
“give primary consideration to the physical, mental, and emotional conditions and needs
of the child.” Section 41-3-609(3), MCA. Furthermore, when a child has been in foster
care for 15 of the most recent 22 months, termination of parental rights is presumed to be
in the child’s best interest. Section 41-3-604(1), MCA. The children were in protective
care for 23 months, from September 2012 until August 2014. After hearing evidence of
extensive violence and drug use engaged in by Mother and her partners, either in front of
the children or in the home, the District Court concluded that the children’s need for
permanency and security was best served by termination of Mother’s parental rights.
Although the bond between Mother and the children was undisputedly loving, “love and
willingness are sometimes not sufficient to establish fitness to parent.” In re J.B.K.,
2004 MT 202, ¶ 29, 322 Mont. 286, 95 P.3d 699.
¶12 Finally, Mother asks this Court to find that the District Court committed plain
error by failing to hold a permanency hearing within 12 months of the children’s first 60
days of removal from the home. Section 41-3-445(1)(a)(i)(B), MCA. The District Court
did not hold a permanency hearing within the required timeframe. Mother did not raise
this issue in the District Court, and asks us to exercise our discretionary power of plain
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error review. We exercise plain error review only where “‘failing to review the claimed
error may result in a manifest miscarriage of justice, may leave unsettled the question of
the fundamental fairness of the trial or proceedings, or may compromise the integrity of
the judicial process.’” In re J.S.W., 2013 MT 34, ¶ 15, 369 Mont. 12, 303 P.3d 741
(quoting State v. Gunderson, 2010 MT 166, ¶ 99, 357 Mont. 142, 237 P.3d 74). Our
review of the proceedings here reveals that the District Court was, at all times, well aware
of the children’s placements and issues affecting their options for permanency. We are
therefore not convinced that failure to review this claimed error will result in a manifest
miscarriage of justice.
¶13 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of
our Internal Operating Rules, which provides for unpublished opinions. In the opinion of
the Court, the case presents a question controlled by settled law or by the clear
application of relevant standards of review.
¶14 Affirmed.
/S/ LAURIE McKINNON
We concur:
/S/ PATRICIA COTTER
/S/ BETH BAKER
/S/ MICHAEL E WHEAT
/S/ JAMES JEREMIAH SHEA
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