Matter of B.B. B.B. B.B.

No. DA 06-0672
IN THE SUPREME COURT OF THE STATE OF MONTANA
2007 MT 139N
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IN THE MATTER OF
B.B., B.B., and B.B.,
Youths in Need of Care.
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APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin, Cause No. DN 04-32,
The Honorable Mike Salvagni, Presiding Judge.
COUNSEL OF RECORD:
For Appellant:
Jim Wheelis, Chief Appellate Defender, Helena, Montana
For Respondent:
Hon. Mike McGrath, Attorney General; Carol E. Schmidt, Assistant
Attorney General, Helena, Montana
Marty Lambert, Gallatin County Attorney; Kimberly P. Dudik, Deputy
County Attorney, Bozeman, Montana
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Submitted on Briefs: April 18, 2007
Decided: June 12, 2007
Filed:
_____________________________________________
Clerk
Justice John Warner delivered the Opinion of the Court.
¶1 Pursuant to Section 1, 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 Mother (M.W.) appeals an Order from the Eighteenth Judicial District Court,
Gallatin County, terminating her parental rights to her children, B.B., B.B., and B.B. We
affirm.
¶3 M.W. is the mother of three children, each with the initials B.B. She and the
children’s father, S.B., are no longer together. On July 11, 2004, while in M.W.’s care,
the youngest child, who was three years old at the time, received a severe sunburn on his
back. Eventually the child’s back blistered and his father took him to the emergency
room to receive treatment. S.B. also spoke with officials from the Department of Public
Health and Human Services (DPHHS) about the sunburn. A couple of days later, two
social workers from DPHHS made an unannounced visit to M.W.’s home. Although they
heard voices coming from inside the home, no one answered the door. Eventually social
workers contacted the local police department for assistance in contacting M.W. A few
days after interviewing M.W., however, DPHHS determined the sunburn alone was an
insufficient basis for separating M.W. from the children and the children were returned to
her custody.
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¶4 On November 17, 2004, Jaylene Spannring (Spannring), a 16-year-old girl who
S.B. hired to babysit the children, went to M.W.’s apartment to pick them up. Spannring
noticed that when she arrived, all the children appeared upset. As the children walked to
Spannring’s vehicle, M.W. yelled obscenities from her apartment window. Spannring
told her mother about the incident and Spannring’s mother contacted DPHHS. Shortly
thereafter, DPHHS began proceedings in the case.
¶5 On March 11, 2005, the District Court determined the children were youths in
need of care, pursuant to § 41-3-437, MCA. Less than a month later, on April 1, 2005,
the court approved a treatment plan for M.W. On September 12, 2006, the District Court
determined M.W. had not successfully completed the treatment plan and terminated her
parental rights.
¶6 According to M.W., the District Court erred when it determined the children were
youths in need of care because this determination was not supported by sufficient
evidence, and the evidence included inadmissible hearsay. She also argues that
DPHHS’s approach to the treatment plan was unfair because it did not adequately
consider M.W.’s physical and mental conditions and, thus, the District Court abused its
discretion by ordering termination of her parental rights. The State responds that the
court’s adjudication of the children as youths in need of care was supported by substantial
evidence, the court’s findings were not clearly erroneous, and its conclusions of law were
correct. Furthermore, the State argues that M.W.’s complaints that hearsay was admitted
at the adjudication are incorrect. Finally, the State argues the District Court did not abuse
its discretion when it terminated M.W.’s parental rights because the record established
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that she failed to complete her treatment plan and M.W.’s conduct or condition rendering
her unfit was unlikely to change within a reasonable time.
¶7 This Court reviews a district court’s decision to terminate parental rights to
determine whether the district court abused its discretion. In re D.B., 2004 MT 371, ¶ 29,
325 Mont. 13, ¶ 29, 103 P.3d 1026, ¶ 29. The test for an abuse of discretion is whether
the district court acted arbitrarily, without employment of conscientious judgment, or
exceeded the bounds of reason resulting in substantial injustice. D.B., ¶ 29.
¶8 The District Court did not err in determining the children were youths in need of
care. The court’s determination that M.W. could not be relied upon to adequately address
the children’s medical needs is supported by the record, not only in regard to the
youngest child’s severe sunburn, but also in M.W.’s repeated aggressive behavior toward
the children on other occasions, and on DPHHS employees’ interviews with the children.
¶9 The District Court did not erroneously permit hearsay testimony at the
adjudicatory hearing. Hearsay is “a statement, other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” M. R. Evid. 801(c). Much of the testimony M.W. complains of was not
actually hearsay because it was not offered to prove the truth of the matter asserted.
M.W.’s other hearsay claims also fail because the testimony was never actually objected
to or the objection was withdrawn by M.W.’s counsel.
¶10 Nor did the District Court abuse its discretion in terminating M.W.’s parental
rights. The record establishes that M.W. failed to successfully complete the treatment
plan. Section 41-3-609(f), MCA, provides that once a child has been adjudicated a youth
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in need of care, parental rights may be terminated if both an appropriate court-approved
treatment plan has either not been complied with or has been unsuccessful, and the
conduct or condition rendering the parent unfit is unlikely to change within a reasonable
time. Here, more than a year after the District Court approved an appropriate treatment
plan, the court determined that M.W. had failed to comply with or successfully complete
the plan. The court’s findings of fact and conclusions of law are extensive and fully
supported by the record and the court did not abuse its discretion in terminating M.W.’s
parental rights.
¶11 It is manifest on the face of the briefs and record before us that there is sufficient
evidence to support the judgment of the District Court, that settled Montana law clearly
controls the legal issues presented and that the District Court correctly interpreted the
law.
¶12 Affirmed.
/S/ JOHN WARNER
We Concur:
/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ PATRICIA COTTER
/S/ JIM RICE
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