                                  No. DA 06-0592

            IN THE SUPREME COURT OF THE STATE OF MONTANA

                                      2007 MT 24N



IN THE MATTER OF D.S.,

           A Youth in Need of Care.




APPEAL FROM:      The District Court of the Eighteenth Judicial District,
                  In and For the County of Gallatin, Cause No. DN 2004-019,
                  Honorable Holly B. Brown, Presiding Judge



COUNSEL OF RECORD:


           For Appellant:

                  Peter B. Ohman, Office of the State Public Defender, Bozeman, Montana

           For Respondent:

                  Hon. Mike McGrath, Montana Attorney General, C. Mark Fowler,
                  Assistant Attorney General, Helena, Montana

                  Marty Lambert, Gallatin County Attorney, Kimberly Dudik,
                  Deputy County Attorney, Bozeman, Montana



                                                    Submitted on Briefs: January 10, 2007

                                                               Decided: February 6, 2007

Filed:

                  __________________________________________
                                     Clerk
Justice James C. Nelson delivered the Opinion of the Court.

¶1    Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal

Operating Rules, as amended in 2003, the following memorandum decision shall not be

cited as precedent. It shall be filed as a public document with the Clerk of the Supreme

Court and its case title, Supreme Court cause number and disposition shall be included in

this Court's quarterly list of noncitable cases published in the Pacific Reporter and

Montana Reports.

¶2    D.S. is the biological mother of the youth, D.S., who was born on December 9,

1996. Because the mother and the youth share the same initials we will hereafter refer to

the Appellant as “Mother” and to the youth as “Youth.”

¶3    Mother appeals from the District Court’s Findings of Fact, Conclusions of Law,

and Order Terminating Mother’s Parental Rights to Youth. In her appeal Mother raises

four issues: (1) whether the treatment plan requiring her to be employed was appropriate

given the fact that she was disabled, a fact known to the Department of Public Health and

Human Services (Department); (2) whether giving her only four months to complete her

treatment plan was an abuse of discretion; (3) whether the court’s findings of fact were

clearly erroneous; and (4) whether the court received a valid stipulation for extension of

temporary legal custody.

¶4    Mother’s appeal primarily centers around the inclusion in her treatment plan of a

goal that she obtain and maintain employment. She argues that she is disabled by reason

of back problems, and that the inclusion of the employment requirement in her treatment




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plan was inappropriate. Mother states that the Department knew of her disability when it

included the employment requirement in her treatment plan.

¶5    The State points out that Mother was represented by counsel at the time the

treatment plan was signed, and at that time she did not object to the employment

condition or raise the issue of her disability. The State also points out that while Mother

may have been “disabled” for purposes of obtaining Supplemental Security Income (SSI)

benefits, the record does not support her conclusion that her “disability” rendered her

unemployable such that she could not or should not work. The State also maintains that

the record does not support Mother’s criticisms of the treatment plan or that the

Department did not demonstrate good faith in working with her on her treatment plan.

¶6    The District Court found that while Mother had complied with parts of the

treatment plan, she clearly had not complied with all seven goals or provided a basis to

determine a change in her conduct or conditions in order for the treatment plan to be

considered successful. The court found that Mother did not follow the recommendations

from her psychological evaluation or successfully complete alternative therapy, and that

she had not stopped using alcohol and drugs. The court also noted that while Mother had

attended parenting classes, she had not dealt with the psychological problems that the

evaluating psychologist concluded were the cause of her inability to properly parent.

¶7    Based upon the evidence submitted, the court found that Mother’s condition is not

likely to change within a reasonable time and that, at the time of the termination hearing

in February 2006, there was still no indication that Mother had made any other changes

or efforts to comply with her treatment plan. The court found that based upon the


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testimony, affidavits and reports presented, the continuation of the parent-child legal

relationship between Youth and Mother would likely result in continued abuse or neglect.

¶8     The court concluded that there was clear and convincing evidence to establish that

Mother had not complied with all aspects of the court ordered treatment plan. Mother did

not complete the therapy she began or deal with the psychological issues that were

impairing her ability to parent; she continued to use alcohol and drugs; she had not been

able to provide a safe and healthy home for Youth; and she had not consistently

maintained her visitation or contact with Youth.

¶9     We review a district court’s findings of fact to determine whether those findings

are clearly erroneous. In re A.N.W., 2006 MT 42, ¶ 28, 331 Mont. 208, ¶ 28, 130 P.3d

619, ¶ 28 (citation omitted). We review a district court’s conclusions of law to determine

whether the court correctly interpreted and applied the law. In re Custody and Parental

Rights of M.A.D., 2003 MT 10, ¶ 12, 314 Mont. 38, ¶ 12, 62 P.3d 717, ¶ 12. A review of

the record leads us to conclude that the District Court’s findings of fact are supported by

substantial evidence and are not clearly erroneous, and that its conclusions of law are

correct.

¶10    Therefore, we have determined to decide this case pursuant to Section I, Paragraph

3(d) of our 1996 Internal Operating Rules, as amended in 2003, which provides for

memorandum opinions. It is manifest on the record before us that the findings of fact are

supported by substantial evidence. Additionally, the legal issues are clearly controlled by

settled Montana law which the District Court correctly interpreted.




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¶11   We affirm the decision of the District Court.


                                                      /S/ JAMES C. NELSON


We Concur:

/S/ W. WILLIAM LEAPHART
/S/ BRIAN MORRIS
/S/ PATRICIA COTTER
/S/ JIM RICE




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