                                           DA 07-0655

                      IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2008 MT 247



IN THE MATTER OF THE CUSTODY
AND PARENTAL RIGHTS OF

D.A. and M.A.,

         Youths in Need of Care.



APPEAL FROM:            District Court of the First Judicial District,
                        In and For the County of Lewis and Clark, Cause Nos. BDN 2006-19 and
                        BDN 2006-20
                        Honorable Jeffrey M. Sherlock, Presiding Judge


COUNSEL OF RECORD:

                 For Appellant:

                        Jim Wheelis, Chief Appellate Defender; Roberta R. Zenker, Assistant
                        Appellate Defender, Helena, Montana

                 For Appellee:

                        Hon. Mike McGrath, Attorney General; Jonathan M. Krauss, Assistant
                        Attorney General, Helena, Montana

                        Leo J. Gallagher, Lewis and Clark County Attorney; Carolyn Clemens,
                        Deputy County Attorney, Helena, Montana


                                                    Submitted on Briefs: April 2, 2008

                                                                Decided: July 15, 2008


Filed:

                        __________________________________________
                                          Clerk
Justice John Warner delivered the Opinion of the Court.

¶1     A.A. and I.A. appeal a judgment of the First Judicial District Court, Lewis and Clark

County, terminating their parental rights to D.A. and M.A.

¶2     The parents raise three issues on appeal, which we restate as follows:

¶3     Did the District Court err in terminating the parental rights of A.A. and I.A.?

¶4     Did the District Court erroneously terminate A.A. and I.A.’s parental rights based

solely on the presumption that when a child has been in foster care in custody of the state for

15 of the most recent 22 months, the best interests of the child will be served by termination

of parental rights?

¶5     Did the District Court commit plain error which violated the parents’ due process

rights when it ordered DPHHS to take steps to permanently place the children following the

permanency hearing?

                                     BACKGROUND

¶6     In 2003 I.A. prematurely gave birth to D.A. He tested positive for methamphetamine

at birth, as did both parents. The Department of Public Health and Human Services

(DPHHS) immediately obtained temporary legal custody of D.A. The case was dismissed

ten months later. In 2005, I.A. gave birth to M.A. prematurely, and I.A. again tested positive

for methamphetamine. DPHHS removed both children from I.A. and A.A. and placed them

in foster care. The parents completed treatment plans, the children were returned to their

care, and the case was dismissed in December 2005.




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¶7     Two months later, in February 2006, I.A. and A.A. were arrested on drug-related

charges. DPHHS again removed the children and placed them in foster care, and the children

were adjudicated youths in need of care. In April 2006, the children were relocated from

Great Falls to Helena, where they were placed in foster care with relatives.

¶8     The District Court approved a treatment plan, stipulated to by the parents, which set

out what they needed to accomplish in order to be reunified with their children. One of the

primary goals of the treatment plan was for the parents to address and conquer their drug

addictions. Among other things, the plan also required A.A. and I.A. to maintain visitation

with their children. If and when it was appropriate, the parents were to increase visitation

with the children. Their parenting responsibilities were to be increased until they were

reunified with D.A. and M.A.

¶9     Following the approval of the treatment plan, both A.A. and I.A. made improvements

in their ability to remain clean and sober. Both completed in-patient drug treatment, attended

counseling, and made other lifestyle changes to help them stay sober.

¶10    After the children’s third removal from their parents in February 2006, D.A. and

M.A.’s foster mother took them to a pediatrician, who found that they exhibited significant

developmental delays. The pediatrician believed this was a combination of prenatal exposure

to drugs and alcohol, along with trauma experienced while in their parents’ care. Both

children began an intensive schedule of therapy, and D.A. began attending a special

education preschool. The foster parents were devoted to giving the children the necessary




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care to address their special needs. Their foster mother quit her job so she could provide

round-the-clock care.

¶11    A.A. and I.A. engaged in weekly visitation with the children for several months. They

interacted well with their children during visits. However, both the foster parents and the

children’s therapist noted that the children had extremely negative reactions after parental

visits, including reversed toilet training, poor speech, tantrums, aggression, and other

disruptive behavior. Sometimes these reactions lasted several days. The therapist believed

that the parental visits impaired the children’s progress.       Based on the therapist’s

recommendation, parental visits were reduced to every other week to allow the children more

time to adjust following the visits and to lessen the adverse impact the visits had on them.

¶12    After the children had been in the custody of DPHHS for another 13 months, in March

2007, a permanency hearing for D.A. and M.A. was held as required by § 41-3-445, MCA.

At the hearing, DPHHS and the parents advised the District Court that they wished to

continue working toward reunification of the parents with their children. DPHHS moved to

continue its temporary legal custody (TLC) of the children for another six months. However,

the children’s attorney opposed the plan for reunification and requested a further hearing on

the matter.

¶13    In April 2007, the District Court held an evidentiary hearing on DPHHS’s proposed

permanency plan which advocated another six months of TLC by DPHHS and eventual

reunification. The attorney for the children again argued that more delay and then possible




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reunification was not in their best interests. The children’s pediatrician, therapist, and

guardian ad litem all testified against reuniting the children with their parents.

¶14    At the permanency plan hearing, an addiction counselor testified that I.A. and A.A.

had made progress, and he believed they were committed to staying sober and getting their

children back. Also, a social worker testified that the parents had interacted well with their

children during visits. However, she also testified she thought reunification would be

difficult and did not offer an opinion as to whether reunification was in the children’s best

interest.

¶15    On May 15, 2007, the District Court issued an order which rejected DPHHS’s

proposed permanency plan calling for reunification and denied the motion to continue TLC

another six months. The order included extensive findings of fact which considered the

evidence introduced at the permanency plan hearing. Based on these findings, the District

Court concluded that the best interests of D.A. and M.A. would not be served by continuing

to reside in foster care for another six months with the mere possibility of someday being

reunited with their parents. The District Court’s order recognized that A.A. and I.A. were

making progress overcoming their drug addictions, but noted the children’s immediate need

for a stable and loving home. The District Court ordered DPHHS to take steps within three

months to permanently place the children and suggested that the foster parents would be an

appropriate placement.

¶16    DPHHS subsequently filed a motion to terminate A.A. and I.A.’s parental rights. On

August 20, 2007, the District Court held a termination hearing. The hearing incorporated the


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evidence from the permanency plan hearing and additional testimony was presented.

Witnesses testified that it would take another year to know if reunification would be possible

and, if so, to transition D.A. and M.A. to their parents’ care. The District Court issued an

order on October 9, 2007, terminating A.A. and I.A.’s parental rights. They filed a timely

appeal.

                                STANDARD OF REVIEW

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

discretion. In re D.B., 2007 MT 246, ¶ 16, 339 Mont. 240, ¶ 16, 168 P.3d 691, ¶ 16. We

review the findings of fact to determine if they are clearly erroneous and the conclusions of

law to determine if they are correct. In re D.B., ¶ 18. A factual finding is clearly erroneous

“if it is not supported by substantial evidence, if the district court misapprehended the effect

of the evidence underlying the finding, or if a review of the record leaves this Court with a

definite and firm conviction that a mistake has been made.” In re D.F., 2007 MT 147, ¶ 21,

337 Mont. 461, ¶ 21, 161 P.3d 825, ¶ 21 (citation omitted).

¶18    The right to parent a child is a fundamental liberty interest, and it must be protected by

fundamentally fair procedures. In re D.B., ¶ 17.

                                       DISCUSSION

                                            Issue 1

¶19    Did the District Court err in terminating the parental rights of A.A. and I.A.?

¶20    A district court may terminate parental rights if the child is adjudicated a youth in

need of care and it finds that two conditions are met: “(i) an appropriate treatment plan that


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has been approved by the court has not been complied with by the parents or has not been

successful; and (ii) the conduct or condition of the parents rendering them unfit is unlikely to

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

evidence to meet each of the statutory criteria in § 41-3-609(1)(f), MCA, and the District

Court must make specific factual findings on each requirement. In re D.B., ¶¶ 26, 29.

¶21    In deciding whether to terminate a parent-child relationship, a district court must give

primary consideration to the physical, mental, and emotional conditions and needs of the

children. Thus, “‘the best interests of the children are of paramount concern in a parental

rights termination proceeding and take precedence over the parental rights.’” In re E.K.,

2001 MT 279, ¶ 33, 307 Mont. 328, ¶ 33, 37 P.3d 690, ¶ 33 (quoting In re J.W., 2001 MT 86,

¶ 8, 305 Mont. 149, ¶ 8, 23 P.3d 916, ¶ 8). A child’s need for a permanent placement in a

stable, loving home supercedes the right to parent a child. In re A.T., 2006 MT 35, ¶ 20, 331

Mont. 155, ¶ 20, 130 P.3d 1249, ¶ 20. If a child is in foster care for 15 of the most recent 22

months, termination of parental rights is presumed to be in the best interests of the child.

Section 41-3-604(1), MCA.

¶22    Complete compliance by the parents with a treatment plan is required; partial or even

substantial compliance is insufficient under § 41-3-609(1)(f)(i), MCA. In re D.V., 2003 MT

160, ¶ 27, 316 Mont. 282, ¶ 27, 70 P.3d 1253, ¶ 27. As we have previously stated, “[w]ell-

intentioned efforts toward successful completion of a treatment plan do not demonstrate

either the completion or the success of the plan.” In re J.W., ¶ 17 (citation omitted).




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¶23    When determining whether parents’ conduct is unlikely to change in a reasonable

time, a district court

       shall enter a finding that continuation of the parent-child legal relationship will
       likely result in continued abuse or neglect or that the conduct or the condition
       of the parents renders the parents unfit, unable, or unwilling to give the child
       adequate parental care. In making the determinations, the court shall consider
       but is not limited to the following: . . .
            ....
       (c) excessive use of intoxicating liquor or of a narcotic or dangerous drug that
       affects the parent’s ability to care and provide for the child . . . .

Section 41-3-609(2), MCA. Courts should also examine the past and present conduct of the

parent. Because district courts “do not have a crystal ball to look into to make this

determination . . . it must, to some extent, be based on a person’s past conduct.” In re E.K.,

¶ 47 (internal quotation omitted).

¶24    The parents do not dispute that the children were adjudicated youths in need of care or

that there was an appropriate treatment plan in place. The parents argue that the District

Court did not have substantial evidence to support its findings that they had not successfully

completed their treatment plans and that their conduct was unlikely to change in a reasonable

time. They argue the evidence showed that reunification with the parents was in the best

interests of the children. We disagree.

¶25    Substantial evidence presented at the permanency hearing and at the termination

hearing supports the District Court’s finding that A.A. and I.A. had not fully completed their

treatment plans. The evidence was undisputed that A.A. and I.A. had made progress in

becoming and staying sober, and they had completed several of the other tasks set forth in the

treatment plan. However, the evidence that they had not taken over parenting responsibilities

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and were not ready to do so was also undisputed. In addition, visits with D.A. and M.A.

actually decreased in frequency due to the reactions of the children following the visits.

There was evidence that it might well be another year before the treatment plan would be

completed and that, given the high level of care the children require, even more time could be

required. Thus, at the time of the termination hearing, A.A. and I.A. had demonstrated some

success in accomplishing the goals of their treatment plan, but they had not yet completed the

plan, and it was unclear whether or when they could complete it. Their progress was not

sufficient under § 41-3-609(1)(f)(i), MCA, to demonstrate that they successfully completed

their treatment plans. In re D.V., ¶ 27. We conclude, therefore, that the District Court’s

finding in that regard was supported by substantial evidence and not otherwise clearly

erroneous.

¶26    The District Court also found as a matter of fact that the conditions rendering the

parents unfit were unlikely to change in a reasonable time, based primarily on the parents’

past use of drugs and the effect their use had on their ability to care for their children. The

record supports this finding and is not otherwise clearly erroneous. Under § 41-3-609(2),

MCA, the parents’ past drug use is a legitimate consideration for the Court. The District

Court was also justified in considering the parents’ past behavior in determining whether they

would become fit parents in the future. In re E.K., ¶ 47. The District Court’s remark after

the permanency hearing, that the children need a stable home and should not have to “adjust

their timelines and subordinate their needs to meet the timelines of their parents” represents a




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correct statement of the law because the children’s need for a stable home is paramount. In

re A.T., ¶ 20.

¶27    The District Court made adequate findings of fact which are not clearly erroneous.

Based on this record, we hold the parents have failed to establish that the District Court

abused its discretion in terminating their parental rights.

                                           Issue 2

¶28    Did the District Court erroneously terminate A.A. and I.A.’s parental rights

based solely on the presumption that when a child has been in foster care in custody of

the state for 15 of the most recent 22 months, the best interests of the child will be

served by termination of parental rights?

¶29    A.A. and I.A. argue the District Court terminated their parental rights based only on

the requirement that “[i]f a child has been in foster care under the physical custody of the

state for 15 months of the most recent 22 months, the best interests of the child must be

presumed to be served by termination of parental rights.” Section 41-3-604(1), MCA. In this

case, D.A. and M.A. had been in foster care at least 17 of the most recent 22 months by the

time of the permanency hearing and at the termination hearing. Thus, the statutory

presumption applied.

¶30    The statutory presumption alone is an insufficient basis on which to terminate parental

rights. In re D.B., ¶ 40. The party seeking termination must still meet the clear and

convincing burden of proof, as well as the substantive statutory requirements of § 41-3-609,

MCA. In re B.H., 2001 MT 288, ¶ 29, 307 Mont. 412, ¶ 29, 37 P.3d 736, ¶ 29.


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¶31    Because the children had been in foster care over 17 months at the time of the

termination hearing, the District Court did not err in considering the presumption that

termination of parental rights was in their best interest. See In re D.B., ¶¶ 39-40. Yet, the

presumption was not the only basis for the District Court’s decision. As discussed above, the

District Court also made findings, supported by clear and convincing evidence, that the

parents had not completed their parenting plan and the conduct rendering them unfit was

unlikely to change in a reasonable time. Because the District Court correctly determined that

DPHHS had presented sufficient evidence to meet all of the statutory criteria for termination,

it did not err by applying the presumption that termination was in D.A. and M.A.’s best

interest.

                                           Issue 3

¶32    Did the District Court commit plain error that violated the parents’ due process

rights when it ordered DPHHS to take steps to permanently place the children

following the permanency hearing?

¶33    A.A. and I.A. concede they did not raise this issue before the District Court. This

Court will generally not review an issue raised for the first time on appeal. State v.

Adgerson, 2003 MT 284, ¶ 12, 318 Mont. 22, ¶ 12, 78 P.3d 850, ¶ 12. However, if an issue

was not raised below, this Court may invoke the plain error doctrine to enable review in those

limited situations where the failure to review the claimed error may result in a manifest

miscarriage of justice or compromise the integrity of the judicial process. In re S.C., 2005

MT 241, ¶ 35, 328 Mont. 476, ¶ 35, 121 P.3d 552, ¶ 35.


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¶34    A.A. and I.A. argue the District Court committed plain error by violating their due

process rights to a fundamentally fair hearing. See In re B.N.Y., 2003 MT 241, ¶ 21, 317

Mont. 291, ¶ 21, 77 P.3d 189, ¶ 21. The District Court’s order stated, in part:

       2. The Court finds DPHHS’s permanency plan for reunification of D.A. and
       M.A. with their biological parents is not in their best interests.
       3. DPHHS’s legal custody of D.A. and M.A. is continued for three months,
       and DPHHS is ORDERED to take steps to have the children permanently
       placed within that time. In determining how to permanently place the children,
       DPHHS should be aware that the Court believes the foster parents . . . can
       provide a safe and stable home for the boys and can meet their special needs.

A.A. and I.A. argue that this order required DPHHS to file a petition for termination of their

parental rights and thus rendered the termination hearing meaningless because the District

Court had already made a decision as to the result of the hearing.

¶35    In a child abuse and neglect proceeding, a district court is required to hold a

permanency hearing “no later than 12 months after the initial court finding that the child has

been subjected to abuse or neglect or 12 months after the child’s first 60 days of removal

from the home, whichever comes first.” Section 41-3-445(1)(a)(i)(B), MCA. Following the

hearing, the district court must make written findings on the permanency plan, including

whether the proposed permanency plan is in the best interests of the child. Section 41-3-

445(6), MCA. A district court also has discretion to enter “any other order that it determines

to be in the best interests of the child.” Section 41-3-445(7), MCA.

¶36    Section 41-3-445(6), MCA, required the District Court to enter written findings as to

whether DPHHS’s proposed permanency plan for reunification was in the best interests of

D.A. and M.A. This is what the District Court’s May 15, 2007, order did. After making


                                             12
findings of fact regarding the extensive testimony and evidence the District Court heard at

the permanency hearing, the District Court concluded that the permanency plan presented by

DPHHS, which advocated reunification after another six months of temporary custody, was

not in the children’s best interest. There is no plain error in the District Court issuing

findings required by statute, and, as discussed above, there is sufficient evidence in the

record to support the District Court’s findings.

¶37    The District Court’s order was in accord with § 41-3-445(6), MCA, which requires a

specific permanency plan. Having appropriately rejected the plan proposed by DPHHS,

which would have continued foster care placement for a significant time, the District Court

had the authority to order DPHHS to take specific steps to effectuate an alternate plan.

Section 41-3-445(6)(c), MCA. The ordered plan could include adoption of the children.

Section 41-3-445(8)(c), MCA.        This order did not require a particular outcome or

demonstrate any bias towards the parents. The order did not terminate the treatment plan,

and it remained possible to complete it, albeit in a shortened time frame. The District Court

properly exercised its discretion under § 41-3-445(7), MCA, by entering an order that would

advance the best interests of D.A. and M.A. as they appeared at that time. The District Court

did not commit plain error and violate the parents’ due process rights in its order following

the permanency plan hearing.

                                      CONCLUSION

¶38    The District Court did not abuse its discretion when it terminated the parental rights of

A.A. and I.A. to their children, D.A. and M.A. The District Court’s findings of fact that


                                              13
DPHHS had proven all the requirements for termination by clear and convincing evidence

are not clearly erroneous, and the District Court correctly applied the applicable law.

¶39    The District Court did not rely solely on the statutory presumption that because the

children had been in foster care over 15 of the most recent 22 months at the time of the

termination hearing, termination of parental rights was in their best interest.

¶40    The District Court did not commit plain error in its order following the permanency

hearing.

¶41    Affirmed.

                                                  /S/ JOHN WARNER

We Concur:

/S/ KARLA M. GRAY
/S/ W. WILLIAM LEAPHART
/S/ JIM RICE
/S/ BRIAN MORRIS




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