                                     NO.00-566

           I THE SUPREME COURT OF THE STATE OF MONTANA
            N

                                    2001 MT 19


IN THE MATTER OF THE CUSTODY
AND PARENTAL RIGHTS OF C.F.,
H.F., AND J.F.,

          Youths in Need of Care.


APPEAL FROM:     District Court of the First Judicial District,
                 In and for the County of Lewis and Clark,
                 Honorable Thomas C. Honzel, Judge Presiding

COUNSEL OF RECORD:

          For Appellant:

                 Peter Bovingdon, Assistant Public Defender, Helena, Montana

          For Respondent:

                 Honorable Joseph P. Mazurek, Attorney General; Tammy K. Plubell,
                 Assistant Attorney General, Helena, Montana

                 Mike McGrath, County Attorney; Carolyn A. Clemens, Deputy
                 County Attorney, Helena, Montana

                 Randi M. Hood, Chief Public Defender, Helena, Montana (For Youth)


                                              Submitted on Briefs: December 2 1,2000

                                                         Decided: February 15,200 1

Filed:
Justice W. William Leaphart delivered the Opinion of the Court.

71     Appellant (Michael) appeals fkom the Findings ofFact, Conclusions of Law and Order

of the First Judicial District Court terminating parental rights to his five year-old son, J.F.

Michael is not the father of C.F. or H.F., the other children involved in this case. Although

the District Court also terminated the parental rights of J.F.'s mother in the same proceeding,

she is not a party to this appeal. We affirm the ruling of the District Court.

72     Michael has been in prison for a large portion of J.F.'s life. At the time of the District

Court's order terminating his parental rights, he was incarcerated in the Montana State

Prison, serving two consecutive five-year terms for forgery. He also has three convictions

for domestic violence. One involved J.F.'s mother. The other two involved a previous

relationship. Michael contends that these problems have all been related to his past alcohol

abuse. He has taken steps to address this abuse and has recently expressed a desire for a

relationship with his son.

73     The Montana Department of Health and Human Services (DPHHS) assumed

protective custody of J.F. in October, 1998, following an incident in which his mother was

arrested for drunken driving with J.F. and his sister in the car. Michael was incarcerated at

the time, so DPHHS placed J.F. with his maternal grandmother, although both DPHHS and

the grandmother noted that this was only a short term solution. J.F. was declared a "youth

in need of care" by stipulation of both parents in November, 1998.
74     At the time he signed the stipulation, Michael was incarcerated in the Lewis and Clark

County Jail awaiting sentencing on the forgery charges. He was sentenced in January 1999

to two five-year terms to be served consecutively but with all of the second term suspended.

He was initially placed in the Great Falls prerelease center and was determined to be eligible

for parole on May 16,2000.

75      At some point, Michael expressed an interest in regaining custody of his son

following his release. Therefore, in November, 1999, DPHHS prepared a treatment plan,

setting out conditions Michael would have to meet to regain custody of his son. This plan

required, among other things, that Michael be able to provide J.F. with a stable home, food,

clothing and shelter; that Michael complete a chemical dependency evaluation and follow

all recommendations; that he arrange for and participate in a program to address his domestic

violence; that he arrange for and participate in contacting J.F. via the telephone and letters;

that he successfully complete parenting classes; that he abstain from the use or possession

of alcohol or illegal drugs and submit to random urinalysis, breathalyser, or blood testing;

and that he abide by the law.

q6     Michael demonstrated significant compliance with the terms of his treatment plan.

He testified at the termination hearing that he had completed chemical dependency treatment

and had achieved over a year of sobriety. He successfLlly completed an anger management

program designed to address issues of domestic violence. The supervisor of Michael's

parenting classes testified that he did so well that they explored the possibility of having him
participate as a co-facilitator in future classes. Finally, although not a condition of his

treatment plan, Michael's testimony at the termination hearing expressed a sincere

commitment to change his life and establish a relationship with his son.

77     In January, 2000, DPHHS petitioned the District Court for a permanency plan and for

termination of Michael and J.F.'s mother's parental rights. This petition noted Michael's

progress on his treatment plan. However, as of the date of the petition, J.F. had been in the

temporary custody of DPHHS for over fourteen months, and DPHHS asserted that Michael

would not be in a position to parent his child in the near future. The petition asked the court

to terminate Michael's parental rights in the interests of finding a permanent home for J.F.

and the other children involved. The District Court scheduled a hearing on the petition for

February 29, 2000. This hearing was postponed to May 3 1, 2000, primarily to give J.F.'s

mother an opportunity to complete her treatment plan.

18
 1     On May 10,2000, shortly before his parole eligibility date, Michael was arrested for

violating the rules of the prerelease center. He pled guilty to seven infractions and was

transferred to the Montana State Prison to serve the remainder of his forgery sentences. As

a consequence of these violations, it was unclear when he might be eligible for parole and

available to parent J.F. Michael testified that he might be eligible for parole after as few as

120 days of clear conduct. DPHHS argued, however, that Michael would likely be subject

to annual parole review, with the possibility that he would serve at least another year before

becoming eligible for release.
79     Following the scheduled hearing, the District Court concluded that Michael had failed

to successfully complete his treatment plan and it was unreasonable to expect that he would

be able to successfully complete it in the foreseeable future. It then entered the order

terminating Michael's parental rights to J.F., which Michael now appeals.

                                             ISSUE

710    The sole issue on appeal is whether the District Court abused its discretion when it

determined that Michael had not successfully completed his treatment plan and that it would

not be reasonable to expect him to do so in the future. Michael argues that he substantially

complied with the conditions of the plan. The State argues that substantial compliance is not

the same as successful completion, that Michael will not be in a position to provide for his

son anytime in the near future, and that J.F.'s best interests are served by termination and

permanent placement with an adoptive family. We agree.

111    The decision to terminate parental rights is within the discretion of the trial court, and

we review such a ruling for an abuse of discretion. In re J.M.J., 1999 MT 277,q 16,296

Mont. 5 10,y 16,989 P.2d 840, T[ 16 (citing In re C.M. (1997), 28 1 Mont. 183,186,932 P.2d

 1063, 1065). While the decision is discretionary, the court must make specific factual

findings prior to terminating parental rights. We review such findings to determine whether

they are clearly erroneous. In re C.D.S., 2000 MT 3 13,B 5,302 Mont. 466, T[ 5,              P.3d

-7    7 5; In re J.H., 2000 MT 11, 7 20,298 Mont. 41,T 20,994 P.2d 37,7 20.            A finding

of fact is clearly erroneous if it is not supported by substantial evidence; if the district court
misapprehended the effect of the evidence; or if, after reviewing the record, this Court is left

with a definite and firm conviction that the district court made a mistake. In re T.Z., 2000

MT 205,7 10,300 Mont. 522, T[ 10,6 P.3d 960, T[ 10; In re Snyder, 2000 MT 61,710,299

Mont. 40, T[ 10,996 P.2d 875,7 10 (citing In re J.N., 1999 MT 64,7 11,293 Mont. 524, T[ 11,

977 P.2d 3 17,7 11).

712    Section 41-3-609(1), MCA, sets out specific findings the court must make prior to

terminating parental rights. For the purposes of this case, the District Court must have found

that J.F. is a "youth in need of care," as defined by 5 41-3-102(23), MCA, and that:

              (i) an appropriate treatment plan that 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. As J.F. was declared a "youth in need of care" by stipulation,

the only issues are whether the District Court erroneously found that Michael did not

successfully complete an appropriate treatment plan and that the conduct or condition

rendering him unfit is unlikely to change within a reasonable time.

713 A. Did the District Court erroneously find that Michael did not successfully complete
an appropriate treatment plan?

114    Michael does not contend that the treatment plan prepared by DPHHS and approved

by the District Court was inappropriate. Rather, he argues that by successfully completing

parenting and anger management class, attending chemical dependency treatment, and
staying sober, he substantially complied with the court-approved treatment plan and thus his

parental rights should remain intact.

715    Treatment plans, developed prior to a termination hearing, are intended to provide a

framework for a parent to meet the needs of the child, regain custody and preserve the

parent-child relationship. This Court has previously recognized that a parent's mere

compliance with a treatment plan is not enough to forestall an otherwise appropriate

termination. In re J.H., 7 23. Montana law requires not only that the parent comply with the

terms of the plan, but that it be successful. Section 41-3-609(l)(f)(i), MCA.

716    We have previously held that a parent's continuing incarcerationprecluded successful

completion of a treatment plan despite substantial compliance with its other conditions. In

re J.H.,7 22. In that case, several witnesses, including a probation officer, a DPHHS social

worker and persons involved with the parenting program at the prison, testified that the

child's mother made significant efforts to comply with the treatment plans. In re J.H., 7 26.

Nonetheless, we held that the treatment plan did not successfully achieve its objectives

because the mother's continuing incarceration prevented her from being able to parent her

child within a reasonable time. In re J.H., 7 26.

717    In this case, the District Court found that Michael's court-approved treatment plan did

not succeed in creating conditions that would allow him to provide for the welfare of his son.

There is substantial evidence to support that finding because, despite complying with many

of its conditions, Michael failed to achieve other important conditions of his treatment plan.
In particular, by virtue of his continuing incarceration in Montana State Prison, he failed to

"provide for [J.F.'s] basic supportive needs such as a stable home, food, clothing and

shelter." Wendy Cook, a social worker with DPHHS, testified that Michael had failed to

establish and maintain a home for his son for any of the nineteen months J.F. had been in

foster care and that, even if released on parole, he would be in no position to establish a home

in the near future. We conclude, therefore, as we did in In re J.H., that the District Court's

conclusion that Michael did not successfully complete an appropriate treatment plan was not

clearly erroneous.

718 B. Did the District Court erroneously find that the conduct or condition rendering
Michael unfit is unlikely to change within a reasonable time?

719    When determining whether the conduct or condition of the parents is unlikely to

change within a reasonable time, the court must 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 them unfit, unable, or unwilling to give the

child adequate parental care. Section 41-3-609(2), MCA. In making this determination the

court must consider judicially-ordered long-term confinement of the parent. Section 4 1-3-

609(2)(d), MCA. However, the court's primary consideration must be the physical, mental

and emotional needs of the child. Section 4 1-3-609(3), MCA.

720    The District Court concluded that, "[Ilt is not reasonable to expect that [Michael] will

be able to successfully complete his treatment plan in the foreseeable future, particularly in

light of his present incarceration at Montana State Prison" and that "it is in the best interests

                                               8
of [J.F.] that the parental rights of Michael    . . . be terminated."   Michael argued at the

termination hearing that there was a possibility that he would be paroled within 120 days and

could then resume parenting J.F. DPHHS presented evidence that it was unlikely that

Michael would be paroled in the near future and that, even if he was, he would not be able

to resume parenting J.F. immediately. Furthermore, DPHHS presented evidence that

termination of Michael's parental rights was in J.F.'s best interests.

72 1   Margaret Corbett, a probation and parole officer for the Helena district office, testified

that Michael would be eligible to apply for a prerelease program after 120 days but that the

usual practice of the parole board in cases where an inmate had been transferred to the

Montana State Prison following violations at a prerelease center was to set the prisoner for

annual parole review. In that case, Michael would not be eligible to be considered for parole

before June, 200 1.

722    Wendy Cook testified that J.F. had already been in temporary placement for nineteen

months and, even after Michael was released fiom prison, DPHHS would need an

opportunity to determine whether Michael could remain drug and alcohol free outside the

controlled setting of a prerelease center. She testified that it would then take at least six

months for him to reestablish a relationship with his son. Given these considerations, Cook

indicated she did not think J.F. could be reunited with his father sooner than nine to twelve

months after his release. Cook also testified that J.F.'s maternal grandmother was unable to

continue caring for him and that he needed a permanent home as soon as possible. She stated
that it was not in J.F.'s best interest to wait for further resolution of his parents' custody

status.

723       We conclude, based on this testimony, that the District Court's finding that the

conduct or condition rendering Michael unfit is unlikely to change within a reasonable time

was based on substantial evidence and was not, therefore, clearly erroneous.

724       The District Court made the findings required by    5   41-3-609(1), MCA. These

findings were not clearly erroneous. We conclude, therefore, that the District Court did not

abuse its discretion when it terminated the parental rights of Michael to his son, J.F. The

ruling of the District Court is affirmed.




                                                                     Justice   /


We concur:
