In re C. R. O.

CHIEF JUSTICE GRAY,

specially concurring.

¶29 I concur in the result the Court reaches in this case. I am not persuaded, however, that, in enacting § 41-3-609(4)(b), MCA, which permits the Department to terminate a parent’s rights without a treatment plan upon the testimony of two medical doctors or clinical psychologists that the parent “cannot assume the role of parent,” the Legislature intended only the same “within a reasonable time” standard applicable to § 41-3-609(1)(f), MCA, cases where a treatment plan has been adopted, the parent has failed to complete-or to successfully complete-the treatment plan, and the trial court determines the conduct or condition of the parent rendering him or her unfit is unlikely to change “within a reasonable time.”

¶30 The Legislature did not state a time frame for application of the § 41-3-609(4)(b), MCA, exception to the treatment plan requirement. Clearly, it did not mean that the parent merely could not assume the role of parent “at this very moment.” Just as clearly, it did not mean that the two doctors or psychologists were required to testify that the parent could “never” assume the role of parent. As a result, the Court necessarily falls back on the “within a reasonable time” standard. This time frame seems inappropriately short to me in this type of case where no treatment plan is offered.

¶31 We have held repeatedly that a parent has a fundamental liberty interest in parenting his or her child. See, e.g., In re J.N., 1999 MT 64, ¶ 12, 293 Mont. 524, ¶ 12, 977 P.2d 317, ¶ 12 (citations omitted). That constitutional right must be protected by fundamentally fair procedures. In re J.N., ¶ 12. In addition, Montana’s policies with regard to abused and neglected children, while making the health and safety of the children the paramount concern, also require the Department to “preserve the unity and welfare of the family whenever possible.” See § 41-3-101, MCA.

¶32 The Department ordinarily, and properly, makes serious efforts to meet this latter requirement by means of permitting a parent to complete a treatment plan and, often, a series of treatment plans. Under that approach, the Department proceeds with a petition to terminate parental rights only when it believes-and can prove to a court-that the parent has not completed the treatment plan or the completed treatment plan has not been successful, and the reason therefore is “unlikely to change within a reasonable time.” See § 41-3-609(l)(f), MCA. In other words, the parent is afforded an opportunity to establish his or her ability to successfully parent the child, and only when that ability has not been established over a period of time and is unlikely to be established within a reasonable time still to come, can the Department succeed in terminating the parent’s fundamental constitutional right to parent his or her children.

¶33 It seems to me that applying the same “within a reasonable time” standard to the exception to the treatment plan requirement set forth in § 41-3-609(4)(b), MCA, as is applied when a parent has not completed or has not successfully completed a treatment plan and the condition rendering the parent unfit is unlikely to change within a reasonable time does not adequately protect the parent’s constitutional rights. It also allows the Department to avoid making any effort whatsoever to achieve the state’s policy of preserving the unity and welfare of the family whenever possible.

¶34 Under the “reasonable time” standard applied to the § 41-3-609(4)(b), MCA, exception to the treatment plan requirement, the following scenario could occur: the Department could remove a child from its parents at birth; petition on the same day for temporary legal custody and protective services based on “previous involvement” with one or both of the parents; obtain an adjudication that the child is a youth in need of care and temporary legal custody of the child within approximately 120 days (see §§ 41-3-432, 41-3-437, and 41-3-438, MCA); immediately file a petition to terminate parental rights; seek and obtain an immediate hearing after finding two doctors or psychologists to testify that the parent cannot assume the role of a parent within a reasonable time; and have the parent’s rights terminated. Conceivably this process could be completed within 5 to 6 months of the child’s birth, and without the parent having any opportunity whatsoever to establish the ability to parent and to obtain the Department’s help through the provision of appropriate services to achieve that goal. Indeed, in the present case, C.R.O.’s father’s rights were terminated less than 10 months after the child’s birth.

¶35 I am not unmindful of the importance of protecting Montana’s children. Nor, obviously, is the Montana Legislature. I also am not unmindful of the fact that children, as well as parents, have constitutional rights. I simply am not convinced that the Legislature intended such a “rush to judgment” as can occur through the Court’s addition-for lack of any other available time frame-of the “within a reasonable time” standard to the exception contained in § 41-3-609(4)(b), MCA, which differs significantly from the other exceptions set forth in § 41-3-609, MCA. Therefore, I encourage the Legislature to revisit the § 41-3-609(4)(b), MCA, exception in light of the Court’s interpretation in this case.

¶36 All that being said, I agree totally with the result reached by the Court here.

JUSTICE TRIEWEILER joins in the foregoing specially concurring opinion.