                                                                                           August 12 2014


                                          DA 13-0796
                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2014 MT 220N



IN THE MATTER OF:

M.S. and J.S.,

         Youths in Need of Care.



APPEAL FROM:            District Court of the Third Judicial District,
                        In and For the County of Anaconda-Deer Lodge, Cause No. DN 12-08
                        Honorable Ray J. Dayton, Presiding Judge

COUNSEL OF RECORD:

                 For Appellant Mother:

                        Anne-Marie K. Simeon, Attorney at Law; Billings, Montana

                 For Appellant Father:

                        Elizabeth Cunningham Thomas, Attorney at Law; Missoula, Montana


                 For Appellee:

                        Timothy C. Fox, Montana Attorney General; C. Mark Fowler, Assistant
                        Attorney General; Helena, Montana

                        Ben Krakowka, Deer Lodge County Attorney; Anaconda, Montana



                                                   Submitted on Briefs: June 25, 2014
                                                              Decided: August 12, 2014

Filed:

                        __________________________________________
                                          Clerk
Justice James Jeremiah Shea delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(d), 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     This appeal is the companion of Mont. Sup. Ct. No. DA 13-0795, In re J.N., 2014 MT

219N. Both appeals arise from the same August 2013 parental rights termination hearing

before the District Court in Deer Lodge County. The three children (Children) in both

matters share the same biological mother (Mother), while M.S. and J.S., the subjects of this

appeal, have a different biological father than J.N.

¶3     Mother appeals the District Court’s decision to terminate her parental rights to M.S.

and J.S., claiming that the District Court abused its discretion by concluding that the

circumstances surrounding Mother’s prior parental rights termination in Texas in 1998 were

relevant to the present matter. The biological father of M.S. and J.S. (Father) also appeals,

claiming that the District Court abused its discretion in deciding a treatment plan for him was

not required and in concluding that the conditions rendering him unfit to parent are unlikely

to change in a reasonable time. We affirm.

¶4     M.S. was born in 2011 and J.S. was born in 2008. Father has been in federal prison in

Fort Worth, Texas, since May 2012. In August 2012, the Department of Public Health and

Human Services, Division of Family Services (DPHHS), removed the Children from

Mother’s care following reports that the Children were sexually abused by Mother’s friend

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and that Mother knowingly took the Children to the home of a registered sex offender for a

birthday party. DPHHS placed the Children in foster care and petitioned the District Court

for Emergency Protective Services, Adjudication of the Children as Youths in Need of Care,

Temporary Investigative Authority, and Temporary Legal Custody of the Children.

¶5     The District Court adjudicated the Children as youths in need of care, granting

DPHHS temporary legal custody in December 2012, and approved a treatment plan for

Mother in January 2013.       Mother failed to complete the treatment plan.         Pursuant

to § 41-3-609(4)(c), MCA, the District Court determined that a treatment plan was not

required for Father. In May 2013, DPHHS filed petitions for termination of both Mother’s

and Father’s parental rights under § 41-3-609(1)(f), MCA.1

¶6     In August 2013, DPHHS filed a motion seeking judicial notice of facts related to the

prior termination of Mother’s parental rights to three other children in Texas in 1998. The

same day, Mother filed a Motion in Limine requesting that the Court exclude any evidence

and witnesses relating to the Texas termination, contending that the circumstances of that

case were irrelevant to the present termination and would be unduly prejudicial, as the Texas

termination was over fifteen years earlier. The District Court denied Mother’s motion,

reasoning that evidence relating to the Texas termination was relevant to her ability to

adequately care for the Children in the present matter, and entered its Findings of Fact,

Conclusions of Law, and Order terminating Mother’s parental rights to the Children on


1
 DPHHS subsequently filed an amended Petition with an alternate theory under § 41-3-609(1)(d),
MCA. At the August 16, 2013 termination hearing, however, DPHHS withdrew the amended
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October 30, 2013.

¶7     DPHHS also sought judicial notice of the judgment in Father’s 1982 deliberate

homicide conviction, this Court’s Opinion in Father’s appeal of his 2008 conviction for

felony sexual intercourse without consent,2 and the judgment and sentence in Father’s 2012

conviction as a felon in possession of firearms.

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

discretion. In re D.S.B., 2013 MT 112, ¶ 8, 370 Mont. 37, 300 P.3d 702. The district court

abuses its discretion when it “acts arbitrarily, without employment of conscientious judgment

or in excess of the bounds of reason, resulting in substantial injustice.” In re E.Z.C., 2013

MT 123, ¶ 19, 370 Mont. 116, 300 P.3d 1174. We presume the district court is correct and

will not disturb its decision unless “there is a mistake of law or a finding of fact not

supported by substantial evidence that would amount to a clear abuse of discretion.” In re

D.B., 2012 MT 231, ¶ 17, 366 Mont. 392, 288 P.3d 160.

¶9     A court may terminate parental rights upon a finding of clear and convincing evidence

that the child has been adjudicated a youth in need of care, the parent has not complied with

an approved treatment plan, and the condition or conduct rendering the parent unfit is

unlikely to change within a reasonable time. Section 41-3-609(1)(f), MCA. A treatment

plan is not required if the court finds that the parent will be incarcerated for more than one

year and reunification with the parent is not in the child’s best interests. Section 41-3-



Petition, opting to proceed only on the original theory under § 41-3-609(1)(f), MCA.
2
  In that case we reversed the District Court and remanded for a new trial.
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609(4)(c), MCA.

¶10       Mother does not dispute that M.S. and J.S. were adjudicated youths in need of care, or

that she has not complied with the approved treatment plan. Her sole argument is that

evidence relating to the Texas termination was not relevant to the present termination, and

therefore the District Court abused its discretion by admitting such evidence and by

terminating her parental rights.

¶11       Father does not dispute that M.S. and J.S. were adjudicated youths in need of care.

He argues, however, that the District Court erred in terminating his parental rights because

DPHHS failed to prove each element of § 41-3-609(4)(c), MCA, to establish that a treatment

plan was not required, and failed to prove that the condition rendering Father unfit to parent

was unlikely to change within a reasonable time.

¶12       “When addressing whether a parent’s conduct is unlikely to change in a reasonable

time, the court must assess the past and present conduct of the parent.” In re Matter of E.K.,

2001 MT 279, ¶ 47, 307 Mont. 328, 37 P.3d 690. Section 41-3-609(2), MCA, which guides

the determination of whether a parent’s conduct is likely to change within a reasonable time,

instructs courts to look into a parent’s past by considering factors such as the duration of

mental illness or a history of violent behavior. A parent’s present incarceration is also a

factor.

¶13       As to Mother, the District Court heard testimony from doctors and therapists who

described Mother’s cognitive difficulties, poor judgment, and post-traumatic stress disorder.

The court also heard the testimony of caseworkers—including the caseworker from the
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Texas termination—each of whom described Mother’s deficient parenting skills. The court

concluded that the circumstances surrounding the Texas termination were relevant because

Mother continued to display the same cognitive difficulties and deficient parenting skills as

she had in Texas fifteen years ago. The Texas termination, therefore, provided an historical

context that informed the court’s consideration of whether Mother’s conduct was likely to

change in a reasonable time, which the court concluded was unlikely. This conclusion is

certainly within the bounds of reason, and therefore the District Court did not abuse its

discretion in considering evidence from the Texas termination and terminating Mother’s

parental rights to M.S. and J.S.

¶14    As to Father, the District Court took judicial notice of his May 2012 sentence of 46

months in Federal Prison and of a separate document from the Federal Bureau of Prisons

indicating a release date of September 29, 2015. The District Court did not abuse its

discretion in considering these facts, along with Father’s violent history, in concluding that

Father’s conduct and condition rendering him unfit to parent is unlikely to change in a

reasonable time.

¶15    The District Court also took judicial notice of Father’s present incarceration and his

release date which is more than one year in the future. The District Court also heard

testimony that M.S. and J.S. do not know their father and reunification would be disruptive.

This is sufficient evidence to determine that a treatment plan is not required for Father under

§ 41-3-609(4)(c), MCA. Because no treatment plan was required and Father’s conduct and

condition rendering him unfit to parent were unlikely to change in a reasonable time, the
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District Court did not abuse its discretion by terminating Father’s parental rights to M.S. and

J.S.

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

Internal Operating Rules, which provides for noncitable memorandum opinions. The issues

in this case are ones of judicial discretion and there clearly was not an abuse of discretion.

¶17    Affirmed.

                                                   /S/ JAMES JEREMIAH SHEA

We concur:


/S/ MIKE McGRATH
/S/ BETH BAKER
/S/ LAURIE McKINNON
/S/ MICHAEL E WHEAT




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