                                                                                        09/19/2017


                                      DA 16-0621
                                                                                    Case Number: DA 16-0621

          IN THE SUPREME COURT OF THE STATE OF MONTANA
                                    2017 MT 234N



IN THE MATTER OF:

I.L.E.,

           A Youth in Need of Care.


APPEAL FROM:       District Court of the Eighth Judicial District,
                   In and For the County of Cascade, Cause No. BDN 15-125
                   Honorable Elizabeth Best, Presiding Judge


COUNSEL OF RECORD:

            For Appellant:

                   Gregory D. Birdsong, Birdsong Law Office, Missoula, Montana

            For Appellee:

                   Timothy C. Fox, Montana Attorney General, Ryan W. Aikin, Assistant
                   Attorney General, Helena, Montana

                   John Parker, Cascade County Attorney, Great Falls, Montana




                                               Submitted on Briefs: July 12, 2017

                                                          Decided: September 19, 2017


Filed:

                   __________________________________________
                                     Clerk
Justice Dirk M. Sandefur delivered the Opinion of the Court.

¶1    Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not

serve as precedent. Its case title, 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    J.E. (Father) appeals an order of the Montana Eighth Judicial District Court,

Cascade County, terminating his parental rights to I.L.E., a two-year-old child. Father

raises three issues on appeal: whether the District Court abused its discretion in denying

his motion to continue the termination hearing, whether the District Court abused its

discretion by entering findings of fact not supported by substantial evidence, and whether

the District Court committed reversible error by failing to correctly interpret § 41-3-

609(4)(c), MCA, in its conclusions of law. We affirm.

¶3    On May 6, 2015, the Montana Department of Public Health and Human Services

(DPHHS) removed I.L.E. from the care of Father and S.M. (Mother) into emergency

protective custody upon discovery of recent methamphetamine use by Father and Mother.

DPHHS subsequently sought and obtained emergency protective services and temporary

legal custody pursuant to Title 41, chapter 3, MCA. After adjudicating I.L.E. a youth in

need of care upon hearing, the District Court ordered a treatment plan on September 11,

2015, requiring Father to address his chemical dependency and mental health issues and

enroll in an approved parenting program. The treatment plan, scheduled to be completed


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on March 15, 2016, also required Father to “maintain[] constant contact with his child and

demonstrate his ability to independently attend to all of [I.L.E.’s] basic needs.”

¶4     At a status hearing on December 11, 2015, the State reported that Father continued

to test positive for methamphetamine, failed to maintain contact with DPHHS, and had yet

to complete any requirement of his treatment plan. On May 9, 2016, after being sentenced

to a 13-month commitment to the Montana Department of Corrections (DOC) for

placement in an appropriate correctional facility or program, and a consecutive 3-year DOC

commitment suspended, on the offense of felony DUI, Father enrolled in the Warm Springs

Addiction Treatment and Change Program (WATCh) for in-patient chemical dependency

treatment.

¶5     On August 16, 2016, during the pendency of his initial 13-month DOC commitment,

the State filed a petition to terminate Father’s parental rights on the asserted ground, inter

alia, of failure of court-ordered treatment plan. On September 13, 2016, prior to the

scheduled termination hearing, Father filed a motion seeking a continuance of the

termination hearing until January 2017 on the asserted grounds that: (1) the scheduled

hearing would interrupt his focus on treatment in the WATCh program; (2) without a

continuance he would have to participate in the hearing telephonically; and (3) he could

not adequately participate in the termination hearing by telephone. The District Court

denied Father’s motion.

¶6     At the termination hearing, Child Protection Specialist Darcie Rupp testified that

Father had not provided evidence of any mental health treatment, was enrolled but had not


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yet completed the WATCh program, and had not completed required parenting classes.

Rupp further testified that Father had only visited I.L.E. twice in the prior seventeen months

and that, under the circumstances, he could not complete the treatment plan requirement

for adequate parent-child bonding in a reasonable amount of time. Based on various

findings of fact and conclusions of law, the District Court granted the State’s petition and

terminated Father’s parental rights to I.L.E. Father appeals.

¶7     We review a district court’s decision to grant or deny a motion for a continuance for

an abuse of discretion. In re Marriage of Eslick, 2013 MT 53, ¶ 10, 369 Mont. 187, 304

P.3d 372. We will not overrule a district court’s discretionary denial of a motion for a

continuance absent an affirmative showing that the denial prejudiced the substantial rights

of the moving party. Eslick, ¶ 10. We similarly review a district court’s termination of

parental rights for an abuse of discretion. In re J.B., 2016 MT 68, ¶ 10, 383 Mont. 48, 368

P.3d 715. A district court abuses its discretion only when acting arbitrarily, without

employment of conscientious judgment, or by exceeding the bounds of reason resulting in

substantial injustice. In re M.A.D., 2003 MT 10, ¶ 12, 314 Mont. 38, 62 P.3d 717. Our

standard of review for district court findings of fact is whether they are clearly erroneous.

In re J.B., ¶ 10. Lower court findings of fact are clearly erroneous only if not supported

by substantial evidence, the court misapprehended the effect of the evidence, or we

nonetheless have a definite and firm conviction that the court was simply mistaken. In re

J.B., ¶ 10. We review lower court conclusions of law for correctness de novo. In re J.B.,

¶ 9.


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¶8     Father first asserts that the District Court unfairly and unreasonably rushed to

terminate his parental rights but makes no compelling argument or showing why or how,

upon reasonable diligence, he was unable to timely complete his treatment plan as ordered.

The record reflects that Father had ample opportunity to complete his treatment plan if so

inclined, but simply failed to do so. Father has similarly failed to make any affirmative

showing that the District Court’s denial of his motion for a continuance actually prejudiced

his ability to adequately participate in the scheduled termination hearing. We hold that the

District Court did not abuse its discretion in denying Father’s motion to continue the

termination hearing to afford him additional time to complete the WATCh program and

bond with I.L.E.

¶9     We further find no basis upon which to conclude that the District Court abused its

discretion in terminating Father’s parental rights. A district court may terminate parental

rights if: (1) a child is adjudicated a youth in need of care; (2) the parent fails to complete

an appropriate court-ordered treatment plan or the treatment plan fails; and (3) the conduct

or condition that rendered the parent unfit is unlikely to change within a reasonable time.

Section 41-3-609(1)(f), MCA. In making these determinations, the district court must

“assess past and present conduct of the parent.” In re L.H., 2007 MT 70, ¶ 23, 336 Mont.

405, 154 P.3d 622. It is undisputed that I.L.E. was adjudicated a youth in need of care.

Substantial credible evidence supported the District Court’s determination that Father

failed to complete his treatment plan and that the conduct or condition that rendered him

unfit was unlikely to change within a reasonable time under the circumstances. We hold


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that the District Court did not abuse its discretion in terminating Father’s parental rights

pursuant to § 41-3-609(1)(f), MCA (treatment plan failure/non-compliance).

¶10    Father nonetheless asserts that the District Court erroneously terminated his parental

rights based on an erroneous application and consideration of § 41-3-609(4)(c), MCA

(treatment plan/treatment plan failure not required for termination if parent will be

incarcerated more than 1 year). In support of this assertion, Father points to the undisputed

fact that, pursuant to the terms of his felony DUI sentence, he would likely discharge to

probation in less than 1 year upon successful completion of the WATCh program.

However, having found the District Court properly terminated his parental rights pursuant

to § 43-1-609(1)(f), MCA, we need not reach and address Father’s final argument. In re

M.P., 2008 MT 39, ¶ 22, 341 Mont. 333, 177 P.3d 495 (termination of parental rights is

proper if the district court correctly relies upon any one theory under § 41-3-609, MCA).

Therefore, the District Court’s judgment terminating Father’s parental rights to I.L.E. is

hereby affirmed.

¶11    We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our

Internal Operating Rules, which provides for memorandum opinions. In the opinion of the

Court, the case presents a question controlled by settled law or by the clear application of

applicable standards of review. For the foregoing reasons, we affirm.



                                                  /S/ DIRK M. SANDEFUR




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We concur:

/S/ MICHAEL E WHEAT
/S/ BETH BAKER
/S/ JAMES JEREMIAH SHEA
/S/ JIM RICE




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