                                                                                           April 30 2013


                                        DA 12-0495

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                       2013 MT 112



IN THE MATTER OF:

D.S.B. and D.S.B.,

           Youths in Need of Care.



APPEAL FROM:         District Court of the Fourth Judicial District,
                     In and For the County of Missoula, Cause Nos. DN 10-6 and DN 10-7
                     Honorable John W. Larson, Presiding Judge


COUNSEL OF RECORD:

              For Appellant:

                     Elizabeth Thomas, Attorney at Law, Missoula, Montana

              For Appellee:

                     Timothy C. Fox, Montana Attorney General; Katie F. Schulz, Assistant
                     Attorney General, Helena, Montana

                     Lucy Hansen, Assistant Attorney General, Child Protection Unit, Missoula,
                     Montana


                                                  Submitted on Briefs: February 27, 2013

                                                             Decided: April 30, 2013




Filed:

                     __________________________________________
                                       Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.

¶1     Birth father J.H. appeals from an order issued by the Fourth Judicial District Court,

Missoula County, that terminated his parental rights to his two children, D.S.B. 1 and D.S.B.

2 (the children). We affirm.

¶2     We address the following issues on appeal:

¶3     Issue One: Whether the District Court properly concluded that J.H.’s treatment plans

were appropriate.

¶4     Issue Two: Whether the State presented sufficient evidence to terminate J.H.’s

parental rights under the Indian Child Welfare Act (ICWA).

                  PROCEDURAL AND FACTUAL BACKGROUND

¶5     Through the Department of Public Health and Human Services (DPHHS), the State

petitioned for Emergency Protective Services, Adjudication as Youths in Need of Care, and

Temporary Legal Custody for the children on February 24, 2010. The State’s petition

alleged that J.H. had sexually abused the children, medically neglected the children,

physically neglected the children, and exposed the children to unreasonable risks. J.H.

stipulated on June 11, 2010, that the children should be adjudicated as Youths in Need of

Care. At a hearing on July 7, 2010, the District Court held that the children are Indian

Children, and the ICWA applies.

¶6     The DPHHS prepared Phase I and Phase II treatment plans for J.H. The District

Court approved the treatment plans on January 28, 2011. The treatment plans included a

variety of tasks that J.H. had to complete that were intended to address the issues that led to

the children being removed from the parents’ care. When the court approved the treatment
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plans, J.H. was in the Department of Correction’s custody for failing to register as a violent

offender.

¶7     The State petitioned for permanent legal custody and termination of J.H.’s parental

rights on February 7, 2012. The District Court held hearings on February 24, 2012, May 2,

2012, May 29, 2012, and May 31, 2012. At the hearings, the court heard testimony from an

ICWA expert, the State’s Child Protection Specialist (CPS), the children’s therapist, and J.H.

The District Court issued an order on August 2, 2012, that terminated J.H.’s parental rights

to the children.

                                STANDARD OF REVIEW

¶8     We review a district court’s termination of parental rights for an abuse of discretion.

In re A.N., 2005 MT 19, ¶ 17, 325 Mont. 379, 106 P.3d 556. A district court abuses its

discretion if it acts arbitrarily without conscientious judgment or exceeds the bounds of

reason. In re A.N., ¶ 17. We review a district court’s findings of fact to determine if they are

clearly erroneous and its conclusions of law to determine if they are correct. In re I.B., 2011

MT 82, ¶ 18, 360 Mont. 132, 255 P.3d 56.

                                       DISCUSSION

¶9     Issue One: Whether the District Court properly concluded that J.H.’s treatment plans

were appropriate.

¶10    J.H. argues that the District Court erroneously concluded that his treatment plans were

appropriate because they were not narrowly tailored to fit his needs and circumstances. J.H.

failed, however, to object to either of the treatment plans or any of their specific tasks. “A

parent who does not object to a treatment plan’s goals or tasks waives the right to argue on
                                             3
appeal that the plan was not appropriate.” In re H.R., 2012 MT 290, ¶ 10, 367 Mont. 338,

291 P.3d 583. We therefore refuse to consider J.H.’s argument that his treatment plans were

not appropriate. We nevertheless note that substantial evidence supports the District Court’s

finding that the treatment plans were appropriate because they sought to address J.H.’s

reported sexual abuse of the children and his chemical dependency issues, the issues that

caused the children to be adjudicated as youths in need of care.

¶11    Issue Two: Whether the State presented sufficient evidence to terminate J.H.’s

parental rights under the ICWA.

¶12    Under Montana law, a district court may terminate parental rights if the child is

adjudicated as a youth in need of care; an appropriate treatment plan has been approved by

the court; the parent has not complied with the treatment plan or the treatment plan has not

been successful; and the conduct or condition of the parent rendering him unfit is unlikely to

change within a reasonable time.       Section 41-3-609(1)(f), MCA.        The parent must

completely comply with the treatment plan. In re H.R., ¶ 12. Partial or even substantial

compliance is insufficient. In re I.B., ¶ 27. A court must consider the best interests of the

child as the paramount factor when determining whether the conduct or condition rendering

the parent unfit is likely to change within a reasonable time. Section 41-3-609(3), MCA; In

re B.S., 2009 MT 98, ¶ 32, 350 Mont. 86, 206 P.3d 565.

¶13    When the ICWA applies, the State additionally has to satisfy the court that it made

“active efforts” to provide remedial services and rehabilitative programs designed to prevent

the breakup of the Indian family and that those efforts were unsuccessful. 25 U.S.C.

§ 1912(d). Because the State was seeking termination of J.H.’s parental rights, the State had
                                            4
to prove that it had made “active efforts” beyond a reasonable doubt. In re G.S., 2002 MT

245, ¶ 33, 312 Mont. 108, 59 P.3d 1063. The ICWA also requires a state seeking

termination of parental rights of an Indian child to prove beyond a reasonable doubt that the

child would likely suffer serious emotional or physical damage if the parent was to maintain

custody. 25 U.S.C. § 1912(f). The evidence that supports such a finding must include the

testimony of a qualified expert. 25 U.S.C. § 1912(f).

¶14    Accordingly, we will affirm the District Court’s termination of J.H.’s parental rights if

the District Court did not abuse its discretion when it determined that termination was

warranted under § 41-3-609, MCA, a rational trier of fact could have concluded beyond a

reasonable doubt that the State had made “active efforts” to provide J.H. with remedial

services and rehabilitative programs, and a rational trier of fact could have concluded beyond

a reasonable doubt that the children would have likely suffered serious emotional or physical

damage if J.H. was to maintain custody. See In re I.B., ¶ 18.



A. Active Efforts

¶15    J.H. argues that the State failed to prove beyond a reasonable doubt that it had made

“active efforts” as required by the ICWA.           “Active efforts” implies a heightened

responsibility compared to passive efforts. In re T.W.F., 2009 MT 207, ¶ 27, 351 Mont. 233,

210 P.3d 174. Although the State cannot simply wait for the parent to complete a treatment

plan under the ICWA, a court may consider the parent’s failure to participate when

determining whether the State had made “active efforts.” In re T.W.F., ¶ 27. Additionally, a

parent’s incarceration may limit the remedial and rehabilitative services that the State can
                                            5
make available to the parent to prevent the breakup of the Indian family. That is not to say

that the State’s obligation to make “active efforts” is excused if a parent is incarcerated, but

we will not fault the State if its efforts are curtailed by the parent’s own criminal behavior.

¶16    Here, the State provided J.H. with two court-ordered treatment plans, assistance of a

CPS, supervised visitation, drug testing, chemical dependency treatment, counseling,

referrals to treatment providers, in-home services, and parenting coaching. J.H. refused to

avail himself of those services even before he was incarcerated. After J.H. was incarcerated,

the CPS attempted to help him keep in contact with the children, one of his Phase II

treatment plan tasks. The CPS testified, however, that J.H. had only sent one letter to the

children.

¶17    The “active efforts” that the State made to provide services for the birth mother and

the children are also relevant to our review because the purpose of the ICWA is to prevent

the breakup of the Indian family.        The State provided the children with individual

counseling, implemented a trial home visit with the birth mother, and attempted to place the

children with Indian family members. Based on all of the evidence presented at the hearings,

a rational trier of fact could have concluded that the State had made “active efforts” to

provide remedial services and rehabilitative programs designed to prevent the breakup of the

Indian family and that those efforts were unsuccessful.

B. Serious Emotional or Physical Damage

¶18    J.H. argues that the ICWA expert’s testimony at the termination hearings failed to

establish beyond a reasonable doubt that the children would likely suffer severe emotional or

physical harm if he was to maintain custody. Under the ICWA, the evidence supporting
                                           6
termination of parental rights must include expert testimony. 25 U.S.C. 1912(f). Though

expert testimony is required on the issue, a court’s finding that a child will likely suffer

serious emotional or physical harm if the parent continues custody does not have to be based

on that testimony alone. In re A.N., ¶ 32 (“a district court need not conform its decision to a

particular piece of evidence or a particular expert’s report or testimony . . . .”).

¶19    The record contains more than sufficient evidence for a rational trier of fact to

conclude beyond a reasonable doubt that the children would likely suffer serious emotional

or physical harm if J.H. retained custody. The State’s ICWA expert testified that she

believed that the children would suffer both emotional and physical harm if J.H. was to

retain custody. The children’s therapist also testified that she would have concerns if J.H.

was to retain custody. The therapist explained the children’s significant emotional needs,

and testified that she did not think that those needs would be met if the children were placed

in J.H.’s care. Moreover, the CPS testified that J.H. had failed to complete a single task on

either of his treatment plans in twenty-five months and had failed to address the conduct or

condition that had rendered him unfit to parent. Based on all of the evidence presented at the

hearings, the District Court did not err when it concluded that the State had proven beyond a

reasonable doubt that the children would likely suffer serious emotional or physical harm if

J.H. was to retain custody.

¶20    For the reasons stated above, the order of the District Court is affirmed.



                                                   /S/ MIKE McGRATH

We concur:
                                               7
/S/ JIM RICE
/S/ MICHAEL E WHEAT
/S/ BRIAN MORRIS
/S/ LAURIE McKINNON




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