Matter of D.K. K.K.

No. 03-024
IN THE SUPREME COURT OF THE STATE OF MONTANA
2003 MT 164N
IN THE MATTER OF D.K. & K.K.,
Youths in Need of Care.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade, Cause Nos. ADJ-02-009-Y, ADJ-01-142-Y
The Honorable Thomas M. McKittrick, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Carl Jensen, Chief Deputy Public Defender, Great Falls, Montana
(for father)
For Respondent:
Hon. Mike McGrath, Attorney General; Jennifer Anders,
Assistant Attorney General, Helena, Montana
Brant Light, Cascade County Attorney; Gina Bishop, Deputy County
Attorney, Great Falls, Montana
Submitted on Briefs: May 1, 2003
Decided: June 10, 2003
Filed:
__________________________________________
Clerk
Chief Justice Karla M. Gray delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal
Operating Rules, the following decision shall not be cited as precedent. It shall be filed as
a public document with the Clerk of the Supreme Court and shall be reported by case title,
Supreme Court cause number and result to the State Reporter Publishing Company and to
West Group in the quarterly table of noncitable cases issued by this Court.
¶2 The natural father of D.K. and K.K. appeals from the termination of his parental
rights. We affirm the judgment entered by the Eighth Judicial District Court, Cascade
County.
¶3 Eleven-month-old K.K. was adjudicated a youth in need of care in August of 2001
because she was deemed in danger of abuse or neglect as a result of domestic violence
between her parents, both admitted methamphetamine abusers. D.K. was born in January
of 2002, placed in foster care with his sister K.K. and adjudicated a youth in need of care
shortly thereafter. The father was sentenced to prison during these proceedings and
remained incarcerated until after the District Court terminated his parental rights.
¶4 We review a district court's decision to terminate parental rights for abuse of
discretion. In re Custody of C. F., 2001 MT 19, ¶ 11, 304 Mont. 134, ¶ 11, 18 P.3d 1014,
¶ 11 (citations omitted). We review the court's findings of fact to determine whether the
findings are clearly erroneous and its conclusions of law not involving the exercise of
discretion to determine whether they are correct. In re M.J.W., 1998 MT 142, ¶ 7, 289
Mont. 232, ¶ 7, 961 P.2d 105, ¶ 7 (citations omitted).
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¶5 The District Court terminated the father's parental rights under § 41-3-609(1)(f),
MCA, which provides that parental rights may be terminated if the child has been
adjudicated a youth in need of care, the parents have not complied with an appropriate
treatment plan approved by the court, and the conduct or condition of the parents rendering
them unfit is unlikely to change within a reasonable time. The court determined K.K. and
D.K. had been adjudicated youths in need of care, the father had not complied with an
appropriate court-approved treatment plan, and the conduct or condition of the father
rendering him unfit is unlikely to change within a reasonable time.
¶6 The District Court made extensive additional findings of fact. It found, for example,
the father did not satisfy the requirements of his treatment plan that he successfully complete
parenting classes, demonstrate that he successfully achieved and maintained a chemical-free
lifestyle, provide verification to the Department of Public Health and Human Services
(DPHHS) social worker that he obtained a psychological evaluation or successfully
completed an anger management program, or maintain a relationship with the children by
attending every scheduled visitation and writing, sending pictures, and calling them on the
telephone. The court also found that the children have special needs including stability,
consistency and permanency and that, based on the father's history and unwillingness to
cooperate or change his behaviors, continuing the parent-child legal relationship likely would
result in continued abuse or neglect. Based on these findings, the District Court determined
the father did not comply with or successfully complete the treatment plan, the treatment
plan was not successful and the conduct of the father is not likely to change within a
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reasonable time. As a result, the court terminated the father's parental rights to K.K. and
D.K.
¶7 The father does not challenge the District Court's findings and, indeed, the findings
are supported by substantial evidence and are not otherwise clearly erroneous. The father
contends, however, that termination of his parental rights violates principles of fundamental
fairness and constitutes an abuse of discretion. We disagree.
¶8 The father argues that he substantially complied with the terms of his treatment plan,
which he claims was impossible to complete on time because of his imprisonment. He says
he finished anger management classes and an addictive disease study program and that the
only reason he did not complete parenting classes in prison was that he was told he would
have to complete that class "on the street."
¶9 This was not a situation in which the father's opportunity to comply with the treatment
plan was cut short. The District Court found that the treatment plan which DPHHS
developed--and the court approved--for the father was detailed, reasonable and achievable.
The father refused to sign his treatment plan and the court found he refused to participate in
urinalysis testing, as required under the treatment plan. In addition, the court found that the
father did not provide DPHHS with verification of the programs he claims to have completed
in prison.
¶10 The father states he was very diligent in turning his life around after his children were
taken from him and argues termination of his parental rights at this time is not in D.K.'s and
K.K.'s best interests, because he had a good relationship with them. Although the record
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indicates the father demonstrated good rapport with his children during visits before he went
to prison, that does not negate the domestic abuse issues which led to DPHHS's involvement
with this family. The father's sister-in-law testified that a week before the termination
hearing, she received a letter from the father in which he threatened to blacken the eyes of
K.K.'s and D.K.'s mother if the sister-in-law let her have any of the items from his apartment
which had been placed in storage. Further, as noted above, the District Court found the
father had not complied with several requirements of his treatment plan. Partial compliance
with a treatment plan is insufficient. In re D.H., 2001 MT 200, ¶ 30, 306 Mont. 278, ¶ 30,
33 P.3d 616, ¶ 30 (citing In re A.N., 2000 MT 35, ¶ 45, 298 Mont. 237, ¶ 45, 995 P.2d 427,
¶ 45).
¶11 On the record before us, we conclude the father has not established that termination
of his parental rights violated principles of fundamental fairness. Therefore, we hold the
District Court did not abuse its discretion in terminating the father's parental rights.
¶12 Affirmed.
/S/ KARLA M. GRAY
We concur:
/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
/S/ PATRICIA COTTER
/S/ JIM REGNIER
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