                                                                                           August 20 2013


                                   DA 13-0105 and DA 13-0106

                      IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2013 MT 235N



IN THE MATTER OF:

E.Z.C. and E.B.C.,

         Youths in Need of Care.



APPEAL FROM:            District Court of the Sixth Judicial District,
                        In and For the County of Park, Cause Nos. DN 12-04 and DN 12-05
                        Honorable Laurie McKinnon, Presiding Judge


COUNSEL OF RECORD:

                 For Appellant:

                        Lucy Hansen; Hanson Law Practice; Missoula, Montana

                 For Appellee:

                        Timothy C. Fox; Montana Attorney General; Katie F. Schulz, Assistant
                        Attorney General; Helena, Montana

                        Brett D. Linneweber, Park County Attorney, Livingston, Montana



                                                    Submitted on Briefs: July 24, 2013

                                                               Decided: August 20, 2013


Filed:

                        __________________________________________
                                          Clerk
Justice Patricia O. Cotter 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     C.C. (Father) appeals from orders of Montana’s Sixth Judicial District Court, Park

County, terminating his parental rights to his two children, E.Z.C. and E.B.C. We affirm

both orders in this consolidated appeal.

¶3     E.Z.C. and E.B.C.’s mother, J.C. (Mother), was arrested on January 18, 2012, after

law enforcement officers searched their home and discovered methamphetamine and drug

paraphernalia. On January 25, 2012, the State filed a petition for emergency protective

services, adjudication, and temporary legal custody of E.Z.C. and E.B.C.         Mother’s

parental rights were terminated on October 11, 2012, and affirmed by this Court’s

decision in In re E.Z.C., 2013 MT 123, 370 Mont. 116, 300 P.3d 1174. Father was

incarcerated in Washington when the proceedings commenced, but returned to Montana

following his release from jail on February 6, 2012. The District Court held a hearing on

the State’s petition on February 28, 2012. Father attended the hearing and stipulated to

his children being adjudicated as youths in need of care and to granting temporary

custody to the State.

¶4     The State prepared a treatment plan and Father received it on June 26, 2012. The

District Court suggested additional requirements, and all parties agreed to the revised

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treatment plan at an August 7, 2012 hearing. Father’s treatment plan addressed housing,

visitation, mental health, chemical use, and employment. On October 22, 2012, the

District Court held a review hearing. The State filed a petition to terminate Father’s

parental rights on November 19, 2012.

¶5     The District Court held a hearing on the termination petition on January 3, 2013.

Detective Tim Barnes of the Park County Sheriff’s Office testified that during a traffic

stop of Father on August 16, 2012, he discovered items commonly used to manufacture

methamphetamine in Father’s vehicle. Detective Barnes also testified that Father had

assisted in the development of a methamphetamine lab that Detective Barnes had

uncovered in a search on September 17, 2012. The lab was located in a shed situated

within 15 feet of a house occupied by children. Next, Jacqui Poe with the Department of

Public Health and Human Services (DPHHS), Child and Family Services Division,

testified that Father had not exhibited a change in attitude and remained at square one

with respect to actual progression on his treatment plan. Poe stated that Father often

tested positive for methamphetamine, marijuana, and alcohol, and frequently refused

testing.   Poe further testified that Father did not have an appropriate home for the

children, failed to maintain weekly contact, did not adhere to the visitation schedule,

failed to maintain steady employment, missed many of his anger management classes and

attended while under the influence of drugs, and failed to demonstrate that he could

provide for the basic needs of his children. Rie Hargraves with Community Health

Partners testified as to Father’s participation in parenting classes and Jana Lehman, a



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counselor at Southwest Chemical Dependency Center verified that Father was enrolled in

outpatient treatment.

¶6     On January 11, 2013, the District Court issued orders terminating Father’s parental

rights to E.Z.C. and E.B.C.     Relying on the testimony presented at the termination

hearing, the District Court ultimately concluded that Father had not successfully

completed the court-ordered treatment plan and that the conduct making him unfit to

parent E.Z.C. and E.B.C. was unlikely to change within a reasonable amount of time.

¶7     Father argues on appeal that the District Court erred in terminating his parental

rights because the District Court gave Father insufficient time to complete his treatment

plan and the evidence did not support the District Court’s conclusion that Father’s

conduct was unlikely to change within a reasonable period of time.

¶8     Pursuant to § 41-3-609(1)(f), MCA, a court may terminate parental rights to a

child who is adjudicated as a youth in need of care if “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 “the conduct or condition of the parents rendering them unfit is unlikely

to change within a reasonable time.” Courts must first determine whether DPHHS has

provided an “appropriate” treatment plan. In re D.B., 2012 MT 231, ¶ 19, 366 Mont.

392, 288 P.3d 160. No bright-line test exists to assist courts in determining whether a

treatment plan is appropriate; instead, courts consider various factors, including whether

the parent was represented by counsel, whether the parent stipulated to the plan, and

whether the plan addressed the particular problems facing both the parent and the child.

In re D.B., ¶ 19. Father’s arguments that the timelines in the treatment plan were not

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appropriate were waived when he agreed to the plan’s goals and tasks without objection.

See In re H.R., 2012 MT 290, ¶¶ 10-11, 367 Mont. 338, 291 P.3d 583. Nevertheless, the

record demonstrates that Father was represented by counsel, stipulated to the treatment

plan, and the plan took into consideration the particular problems facing Father and his

children. Father fails to point to any specific task that carried an unreasonable timeframe,

nor can he demonstrate that the District Court misinterpreted the timelines set forth in the

plan.

¶9      The determination of whether a parent’s behavior will change within a reasonable

amount of time requires the District Court to primarily consider the physical, mental, and

emotional needs of the child. In re D.B., ¶ 25; § 41-3-609(2)-(3), MCA. A court’s

foremost concern is the child’s best interests when evaluating whether to terminate

parental rights. In re D.B., ¶ 25. The record contains substantial evidence to support the

District Court’s conclusion that Father’s behavior was unlikely to change within a

reasonable amount of time. Father had an extensive history of chemical dependency

problems and continually failed to comply with drug testing requirements. When he did

appear for testing, he rarely passed. During the pendency of the treatment plan, Father

made little if any progress towards being able to provide for the basic needs of his

children, and failed to comply with many of the core requirements of the treatment plan

that were established to address these inadequacies.

¶10     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.

With respect to the issues in this case involving judicial discretion, the District Court

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clearly did not abuse its discretion. The District Court’s factual findings are supported by

substantial evidence and the legal issues in this case are controlled by settled Montana

law, which the District Court correctly interpreted.

¶11    Affirmed.


                                                 /S/ PATRICIA COTTER


We Concur:

/S/ MIKE McGRATH
/S/ BETH BAKER
/S/ MICHAEL E WHEAT
/S/ BRIAN MORRIS




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