                                                                                        May 7 2014


                                          DA 13-0650

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2014 MT 122



IN THE MATTER OF:

M.J.C.,

         A Youth in Need of Care.



APPEAL FROM:            District Court of the Thirteenth Judicial District,
                        In and For the County of Yellowstone, Cause No. DN 11-125
                        Honorable Russell C. Fagg, Presiding Judge


COUNSEL OF RECORD:

                 For Appellant:

                        Carolynn M. Fagen, Fagen Law Office, P.C., Missoula, Montana

                 For Appellee:

                        Timothy C. Fox, Montana Attorney General, Jonathan M. Krauss,
                        Assistant Attorney General, Helena, Montana

                        Scott Twito, Yellowstone County Attorney, Richard Helm, Deputy
                        County Attorney, Billings, Montana



                                                   Submitted on Briefs: April 9, 2014
                                                              Decided: May 7, 2014


Filed:

                        __________________________________________
                                          Clerk
Justice Laurie McKinnon delivered the Opinion of the Court.

¶1     D.W. appeals from an order of the Thirteenth Judicial District Court, Yellowstone

County, terminating his parental rights to his child M.J.C. The sole issue on appeal is

whether the District Court erred in terminating D.W.’s parental rights.

                                    BACKGROUND

¶2     The Department of Public Health and Human Services (the Department) has an

extensive history with Mother dating back to 1997. The Department became involved

with M.J.C. after blood in M.J.C.’s umbilical cord tested positive for a number of drugs,

including methamphetamine and opiates, at the time of her birth. Mother and M.J.C.

were released from the hospital, and Mother missed a follow-up pediatric appointment.

Upon investigation, the Department discovered that Mother had no stable home and was

facing incarceration due to a warrant issued by her probation officer.        Mother was

subsequently arrested, and M.J.C. was taken into protective custody by the Department

on August 30, 2011.

¶3     The District Court adjudicated M.J.C. a youth in need of care on November 30,

2011, and granted temporary legal custody (TLC) of M.J.C. to the Department based on

physical neglect by Mother, and absence of a father. At the time of the removal, Mother

named two men as putative fathers of M.J.C. A court-ordered paternity test determined

D.W. to be the father of M.J.C. in February 2012. At this time, D.W. had moved from

Billings back to his home state of Illinois, where he resided during the entire pendency of

this case. Throughout the proceedings, D.W. and Mother twice stipulated to an extension

of TLC.

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¶4     The State provided Mother and D.W. with treatment plans, which were approved

by the court. D.W.’s treatment plan required him to complete a number of tasks that

included in part: providing releases for fingerprints, a background check, and confidential

records; writing a detailed personal history; maintaining biweekly contact with the social

worker; cooperating with the home study process required by the Interstate Compact for

the Placement of Children (ICPC); and discussing a plan for developing a relationship

with M.J.C. The permanency plan at that time was to reunify M.J.C. with Mother.

¶5     Mother was initially very successful with her treatment plan, but ultimately

became noncompliant and abandoned M.J.C.           D.W. also did not comply with the

requirements of the treatment plan. The State then filed a petition to terminate the

parental rights of Mother and D.W. on May 24, 2013.

¶6     A hearing on the petition to terminate occurred in August 2013. D.W. appeared

by phone from Illinois, and Mother failed to appear. D.W. and social worker Sandy

Velin testified. D.W. testified that he did not complete his treatment plan because he

believed that M.J.C. would be returned to Mother, due to Mother’s early success in

treatment.   D.W. also testified that he understood that his parental rights could be

terminated if he did not complete his treatment plan. He did not know the name of the

social worker, or the birth date of M.J.C. D.W. stated that he had never met M.J.C., and

did not provide for her financially. He testified that he appeared by phone at all family

group meetings, and cooperated with the ICPC home study. The record is not clear on

whether the family group meetings were a part of D.W.’s treatment plan. Neither D.W.

nor D.W.’s mother were approved as a placement option by the home study.

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¶7     Next, Velin testified that D.W. failed to make even minimal attempts to complete

his treatment plan. She stated that D.W. failed to sign any releases, write a detailed

personal history including his criminal history, maintain contact with the Department, or

establish any sort of relationship with M.J.C. Velin stated she did not believe that D.W.’s

conduct or condition was likely to change within a reasonable time, especially in light of

two extensions of TLC, and that D.W. had not made any significant progress toward

becoming a minimally adequate parent. She concluded that continuing the relationship

between D.W. and M.J.C. would likely result in continued abuse or neglect, and

termination of D.W.’s parental rights would be in M.J.C.’s best interests.

¶8     Based on the evidence presented, the District Court found that D.W. failed to

comply with his treatment plan, that D.W.’s conduct was unlikely to change within a

reasonable time, and that a continuation of the parent-child legal relationship between

D.W. and M.J.C. would likely result in continued abuse or neglect pursuant to

§ 41-3-609(1)(f), MCA. The District Court also found that D.W. had abandoned M.J.C.

pursuant to § 41-3-609(1)(b), MCA. The court found that the conduct and condition of

D.W. renders him unfit, unable, or unwilling to provide M.J.C. with adequate parental

care. The District Court also noted that during the two years that M.J.C. had been in

foster care, D.W. never met her, and failed to establish a relationship with her. The

District Court gave primary consideration to the physical, mental, and emotional

conditions and needs of M.J.C., and concluded that her best interests would be served by

termination of D.W.’s parental rights pursuant to § 41-3-609(1)(b) and (f), MCA. On

appeal, D.W. challenges the District Court’s termination of his parental rights.

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                              STANDARDS OF REVIEW

¶9     We review a district court’s decision to terminate parental rights for abuse of

discretion. In re J.C., 2008 MT 127, ¶ 33, 343 Mont. 30, 183 P.3d 22. An abuse of

discretion occurs when a district court acts arbitrarily, without employment of

conscientious judgment, or exceeds the bounds of reason resulting in substantial injustice.

In re T.S.B., 2008 MT 23, ¶ 17, 341 Mont. 204, 177 P.3d 429 (citing In re A.S., 2006 MT

281, ¶ 24, 334 Mont. 280, 146 P.3d 778).

¶10    “When making a decision to terminate parental rights, the district court must make

specific factual findings in accordance with the requirements of § 41-3-609, MCA, and

we review these factual findings under the clearly erroneous standard.” In re J.C., ¶ 34

(citing In re L.H., 2007 MT 70, ¶ 13, 336 Mont. 405, 154 P.3d 622). “A finding is

clearly erroneous if it is not supported by substantial evidence, if the trial court

misapprehended the effect of the evidence, or if our review of the record convinces us

that a mistake has been committed.” In re J.C., ¶ 34 (citation omitted). We review a

district court’s conclusions of law in terminating parental rights to determine if they are

correct. In re L.H., ¶ 13.

                                     DISCUSSION

¶11    The criteria for termination of parental rights upon which the District Court based

its decision are set forth in two distinct and independent statutory provisions contained

within § 41-3-609, MCA. First, the court can order the termination of parental rights

upon a finding established by clear and convincing evidence that a child has been

abandoned. Section 41-3-609(1)(b), MCA. Abandonment is defined as “leaving a child

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under circumstances that make reasonable the belief that the parent does not intend to

resume care of the child in the future.” Section 41-3-102(1)(a)(i), MCA. Second, the

court can order the termination of parental rights if: (1) a child has been adjudicated a

youth in need of care; (2) the parent has been noncompliant with an appropriate treatment

plan that has been approved by a court; and (3) the conduct or condition rendering the

parent unfit is unlikely to change within a reasonable amount of time.             Section

41-3-609(1)(f), MCA. Each ground represents a separate and independent basis for

termination.   See In re T.H., 2005 MT 237, ¶ 32, 328 Mont. 428, 121 P.3d 541.

Additionally, § 41-3-604(1), MCA, states that the best interests of the child are presumed

to the served by the termination of parental rights when the child has been in foster care

for 15 of the most recent 22 months.

¶12    D.W. argues that the District Court’s finding that he abandoned M.J.C. was clearly

erroneous because it was not supported by substantial evidence. However, the record is

clear that the District Court correctly concluded that D.W. never intended to care for

M.J.C. D.W. had been involved in these proceedings and represented by counsel since

M.J.C. was approximately one month old. Yet, although D.W. has lived out-of-state for

M.J.C.’s entire life, he had not attempted or even expressed a plan to visit M.J.C. D.W.

has made little to no effort to establish a relationship with M.J.C., and has failed to

provide any sort of care, financial or otherwise, to M.J.C. during the two years she was in

foster care. D.W.’s noncompliance with his treatment plan also indicates that he had no

intention of caring for M.J.C. in the future. Such evidence supports the District Court’s

finding that D.W. abandoned M.J.C.        See In re adoption of K.P.M., 2009 MT 31,

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¶¶ 25-27, 349 Mont. 170, 201 P.3d 833 (the district court terminated mother’s parental

rights on the basis of abandonment when she “failed to manifest any intention she would

someday resume physical custody or make permanent legal arrangements for [her

child]”); In re T.H., ¶¶ 29-33 (the district court terminated mother’s parental rights on the

basis of abandonment when mother stipulated to TLC, left town, had minimal contact

with her children, and no contact with her social worker); In re M.J.W., 1998 MT 142,

¶¶ 16-17, 289 Mont. 232, 961 P.2d 105 (father’s failure to parent, with minimal

intermittent contact and visitation, made reasonable the belief that father did not intend to

resume care of the child in the future). Thus, clear and convincing evidence supports the

District Court’s finding that D.W. abandoned M.J.C. and did not intend to care for her in

the future pursuant to § 41-3-102(1)(a)(i), MCA.

¶13    D.W. also argues that the District Court erred in terminating his parental rights

because it lacked substantial evidence for termination under the second statutory ground

explained by § 41-3-609(1)(f), MCA. D.W. specifically argues that there was not enough

evidence to support the District Court’s finding that the conduct or condition rendering

D.W. unfit to parent was unlikely to change within a reasonable time. However, D.W.’s

argument is unpersuasive, as D.W.’s lack of involvement with M.J.C. is the basis for the

limited record.   We conclude that many of the same findings supporting abandonment

also support a conclusion that D.W. was unlikely to change his conduct toward M.J.C.

within a reasonable time. After over two years in foster care and without any relationship

with D.W., M.J.C. continued to be a youth in need of care, and dependent, abused, and

neglected due to the conduct of Mother and D.W. D.W. failed to complete even minimal

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requirements of the treatment plan and never met M.J.C. The District Court properly

gave primary consideration to the emotional and physical needs of M.J.C. and determined

that it was not likely D.W.’s conduct toward M.J.C. would change. We conclude that the

District Court’s determination is supported by clear and convincing evidence.

                                  CONCLUSION

¶14   For the foregoing reasons, we affirm.


                                                  /S/ LAURIE McKINNON

We Concur:

/S/ MICHAEL E WHEAT
/S/ JIM RICE
/S/ PATRICIA COTTER
/S/ BETH BAKER




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