Matter of D.S.

February 20 2008
DA 07-0585
IN THE SUPREME COURT OF THE STATE OF MONTANA
2008 MT 60N
IN THE MATTER OF THE CUSTODY
AND PARENTAL RIGHTS OF D.S.,
A Youth in Need of Care.
APPEAL FROM: District Court of the First Judicial District,
In and For the County of Lewis and Clark, Cause No. ADN 2005-021
Honorable Dorothy McCarter, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Jim Wheelis, Chief Appellate Defender, Helena, Montana
For Appellee:
Hon. Mike McGrath, Montana Attorney General, David Ole Olson,
Assistant Attorney General, Helena, Montana
Leo J. Gallagher, Lewis and Clark County Attorney, Carolyn Clemens,
Deputy County Attorney, Helena, Montana
Submitted on Briefs: January 23, 2008
Decided: February 20, 2008
Filed:
__________________________________________
Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.
¶1 Pursuant to Section I, 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 K.S. appeals the termination of her parental rights. We affirm.
¶3 A restatement of the issue is whether the District Court abused its discretion in
terminating K.S.’s parental rights to D.S. because K.S. failed to complete multiple
treatment plans.
¶4 K.S. is the biological mother of D.S., born in 2000. In November 2005 the
Department of Public Health and Human Services (DPHHS or Department) moved for
temporary custody and adjudication of D.S. as a youth in need of care. The basis for the
petition was that K.S. was physically neglecting her son by failing to provide basic
necessities and allowing him to be exposed to an unreasonable physical or psychological
risk by leaving him with strangers or inappropriate caregivers. On December 1, 2005, the
District Court granted emergency protective services allowing the Department to remove
the child from the home and place him in temporary care. The court scheduled a show
cause hearing for December 12, 2005. On December 8, 2005, DPHHS gained temporary
legal custody (TLC) and a guardian ad litem was assigned to D.S. The show cause
hearing was subsequently continued and on December 20, 2005, K.S. stipulated that D.S.
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was a youth in need of care. The stipulation indicated that the District Court would hold
a review hearing in June 2006 to determine if the Department’s temporary custody of
D.S. should be extended. The Department then undertook proceedings against C.S.,
D.S.’s biological father.
¶5 K.S. entered into a treatment plan in January 2006. This plan was updated in April
and May 2006. It was approved by the court in June 2006 at which time the parties
stipulated to extend it for an additional six months. The June 2006 review hearing was
continued and rescheduled for December 8, 2006. K.S.’s treatment plan was updated in
August 2006 and in September 2006 the Department requested a six-month extension of
TLC which the court granted. In November 2006 a hearing on K.S.’s updated treatment
plan was held and the plan was approved by the District Court.
¶6 In March 2007 K.S.’s treatment plan was again updated and the Department
requested that TLC be extended again. The court granted the request. In May 2007
DPHHS petitioned for termination of both K.S.’s and C.S.’s parental rights with consent
for adoption. In July 2007 C.S. voluntarily relinquished his parental rights and consented
to adoption. The District Court held a hearing on June 26, and continued the hearing to
July 11, 2007. The court terminated K.S.’s rights on August 14, 2007. K.S. filed a
timely Notice of Appeal.
DISCUSSION
¶7 The District Court found that K.S.’s treatment plan had been updated several times
between the time D.S. was adjudicated a youth in need of care and the termination
hearing, and that K.S. had not complied in full with the plan nor had the plan been
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successful. The court observed that at the time of the hearing, the case had been open for
nineteen months. The District Court heard testimony that K.S. had an “unstable”
lifestyle, made poor decisions as to her own health, did not manage money well and made
poor decisions related to caregivers for D.S. A therapist testified that K.S. “would need
support services for a long time if she were to parent [D.S.]”. Additionally, the court was
told that K.S. could not meet her son’s emotional and physical needs because “she cannot
even meet her own basic needs.” Over the months before the hearing, K.S. was, at times,
unemployed and homeless, and she left the child in the care of a much older brother
whose parental rights to his own child had been terminated and of whom D.S. was
frightened.
¶8 This testimony and much more identifying the continued difficulties K.S.
encountered in parenting D.S., in combination with testimony describing D.S.’s foster
home situation as “positive,” and “safe,” supports the District Court’s decision to
terminate K.S.’s parental rights. The court, in accordance with § 41-3-609, MCA, found
or concluded that: (1) D.S. had been adjudicated a youth in need of care; (2) he had been
in the custody of the State for twenty of the twenty-three months leading up to the
termination order; (3) an appropriate and necessary court-approved treatment plan had
been created and updated for K.S.; (4) K.S. had failed to successfully complete the
treatment plans; (5) K.S.’s conduct, condition and circumstances were unlikely to change
in the foreseeable future; and (6) returning D.S. to his mother’s care was not in his best
interest because it would result in continued neglect to the detriment of D.S.
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¶9 We review a district court’s decision to terminate parental rights to determine
whether the court abused its discretion. The test for an abuse of discretion is “whether
the trial court acted arbitrarily, without employment of conscientious judgment, or
exceeded the bounds of reason resulting in substantial injustice.” However, because a
parent’s right to the care and custody of a child is a fundamental liberty interest, it must
be protected by fundamentally fair procedures. To satisfy the relevant statutory
requirements for terminating a parent-child relationship, a district court must make
specific factual findings. We review those findings of fact to determine whether they are
clearly erroneous. Lastly, we review the court’s conclusions of law to determine whether
the court interpreted the law correctly. In re Custody and Parental Rights of C.J.K., 2005
MT 67, ¶ 13, 326 Mont. 289, ¶ 13, 109 P.3d 232, ¶ 13 (internal citations omitted).
¶10 Additionally, 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 child are of paramount concern in a parental rights termination
proceeding and take precedence over the parental rights. Section 41-3-609(3), MCA;
accord Parental Rights of C.J.K., ¶ 14.
¶11 We have determined to decide this case pursuant to Section 1, Paragraph 3(d) of
our 1996 Internal Operating Rules, as amended in 2003, which provides for
memorandum opinions. It is manifest on the face of the briefs and the record before us
that the findings of fact are supported by substantial evidence, the legal issues are clearly
controlled by settled Montana law which the District Court correctly interpreted, and the
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record supports the District Court’s conclusion to terminate K.S.’s parental rights. The
District Court did not abuse its discretion.
¶12 We affirm.
/S/ PATRICIA COTTER
We concur:
/S/ W. WILLIAM LEAPHART
/S/ JOHN WARNER
/S/ JAMES C. NELSON
/S/ BRIAN MORRIS
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