Matter of S.S-G. YINC

January 29 2014
DA 12-0651
IN THE SUPREME COURT OF THE STATE OF MONTANA
2014 MT 26N
IN THE MATTER OF:
S. S.-G.,
A. Youth in Need of Care
APPEAL FROM: District Court of the Fourth Judicial District,
In and For the County of Missoula, Cause No. DN 10-44
Honorable Karen Townsend, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Lucy Hansen, Attorney at Law; Missoula, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant
Attorney General; Helena, Montana
Fred R. Van Valkenburg, Missoula County Attorney, Diane Conner, Deputy
County Attorney; Missoula, Montana
Submitted on Briefs: January 8, 2014
Decided: January 29, 2014
Filed:
__________________________________________
Clerk
Justice Michael E Wheat 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 A.G. is the biological father of S.S.-G. On November 10, 2011, A.G. pled guilty to
attempted mitigated deliberate homicide and failing to stop immediately at a scene where
someone was killed or seriously injured. A.G. was sentenced for a term of 40 years for
attempted mitigated deliberate homicide, and a concurrent term of 10 years for the failure to
stop.
¶3 The Department of Public Health and Human Services (Department) filed a petition to
terminate A.G.’s parental rights on March 19, 2012. S.S.-G.’s birth mother and paternal
grandmother wanted the Department to take S.S.-G. into permanent legal custody so that the
paternal grandparents could then adopt through the Department. At the hearing to terminate
A.G.’s parental rights, the Department’s social worker testified that the Department would
place S.S.-G. with her paternal grandparents, and that the adoption would be completed
quickly. A.G. supported the adoption, but out of apparent distrust for the State, did not want
the Department to control the adoption. A.G.’s appeal contests the termination of his rights,
arguing that S.S.-G.’s adoption ought to be conducted through private adoption proceedings.
¶4 We review a termination of parental rights for abuse of discretion. In re D.S.B., 2013
MT 112, ¶ 8, 370 Mont. 37, 300 P.3d 702 (citing In re A.N., 2005 MT 19, ¶ 17, 325 Mont.
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379, 106 P.3d 556). We presume that a district court’s decision is correct and we will not
disturb it on appeal unless there is a mistake of law or a finding of fact not supported by
substantial evidence. In re E.K, 2001 MT 279, ¶ 33, 307 Mont. 328, 37 P.3d 690.
¶5 A court may terminate parental rights upon a finding that the child has previously
been adjudicated a youth in need of care, that the parent has not complied with a court-
approved treatment plan, and that 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. A
treatment plan is not required if the parent will be incarcerated for more than one year and if
“reunification is not in the best interests of the child based on the child’s circumstances,
including placement options, age, and developmental, cognitive, and psychological needs.”
Section 41-3-609(4)(c), MCA. In evaluating whether the conduct or condition of a parent is
unlikely to change, the court must give primary consideration to the physical, mental and
emotional needs of the child. Section 41-3-609(3), MCA. If a child has been in foster care
under the physical custody of the State for 15 of the most recent 22 months, the best interests
of the child are presumed to be served by a termination of parental rights. Section 41-3-
604(1), MCA.
¶6 The District Court did not abuse its discretion by terminating A.G.’s parental rights
under § 41-3-609(1)(f), MCA. S.S.-G. has previously been adjudicated a youth in need of
care, implicating that statute. Because A.G. will be incarcerated for more than one year, no
treatment plan is required, as long as reunification is not in S.S.-G.’s best interests. The
District Court found that S.S.-G.’s best interests were served by termination of parental
rights because A.G. faced extended incarceration for a violent felony, the child was very
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young and needed immediate permanency, and the child had been in State custody for 21
months of her 22 month life. A.G. also failed to complete a treatment plan tailored to
account for his incarceration, further demonstrating that reunification was unlikely.
Substantial evidence supported the court’s finding that the child’s best interests required
immediate termination of the parent-child relationship.
¶7 As to the final element of § 41-3-609(1)(f), MCA, the court found that A.G.’s
condition was unlikely to change. The court made that finding based on the length of his
incarceration and his failure to complete the amended treatment plan. The court also noted
that S.S.-G.’s needs deserve primary consideration in evaluating whether A.G.’s conduct or
condition is unlikely to change, citing to § 41-3-609(3), MCA. The court was clearly within
its discretion in finding that A.G.’s condition was unlikely to change.
¶8 A.G. contends that the District Court did not consider whether private adoption
proceedings, rather than the Department’s proceedings, would be in S.S.-G.’s best interests.
“No limitation is placed upon a court which requires consideration of other options, such as a
guardianship, prior to terminating parental rights.” In re E.A.T., 1999 MT 281, ¶ 33, 296
Mont. 535, 989 P.2d 860. The court nonetheless considered ample evidence that the
Department was a better option than A.G.’s alternative. The court considered testimony that
S.S.-G. and her grandparents were eligible for an adoption subsidy through the Department.
That subsidy would allow S.S.-G.’s grandparents to address any of her special needs or
disabilities, which could arise from her exposure in utero to dangerous drugs. The subsidy
aside, the court was also concerned that S.S.-G. would continue to wait in a “holding
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pattern” while her father obtained long-term custody and guardianship, followed by his
voluntary relinquishment of rights and a private adoption.
¶9 The court also considered testimony that Florida, where S.S.-G.’s grandparents live,
could not begin adoption proceedings until A.G.’s parental rights were terminated. The
Department, on the other hand, was required to maintain its petition for termination until
Florida approved an adoptive home. Even if that bureaucratic complication was sorted out,
A.G. provided no timeline or plan for voluntarily relinquishing his rights or arranging for
private adoption. In sum, A.G.’s proposed alternative provided no end in sight for S.S.-G.’s
holding pattern, while the Department presented an immediate solution. The child’s need for
a stable home is not subordinate to the timelines of her parents. In re D.A. and M.A., 2008
MT 247, ¶ 26, 344 Mont. 513, 189 P.3d 631. S.S.-G. should not be allowed to drift
indefinitely in legal limbo while A.G. attempts to craft an alternative adoption procedure.
The District Court acted within its discretion in determining that S.S.-G.’s best interests were
served through immediate termination of parental rights.
¶10 For the foregoing reasons, we affirm. The District Court’s decision was supported by
substantial evidence and the legal issues are controlled by settled Montana law, which the
District Court correctly interpreted. We have therefore determined to decide this case
pursuant to Section I, Paragraph 3(d), of our Internal Operating Rules, which provides for
noncitable memorandum opinions.
/S/ MICHAEL E WHEAT
We Concur:
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/S/ BETH BAKER
/S/ PATRICIA COTTER
/S/ LAURIE McKINNON
/S/ JIM RICE
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