                                                                                          October 22 2013


                                          DA 13-0268

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                        2013 MT 315N



IN THE MATTER OF:

J.D.,

         A Youth in Need of Care.



APPEAL FROM:            District Court of the Eighth Judicial District,
                        In and For the County of Cascade, Cause No. DDN 11-219
                        Honorable Dirk M. Sandefur, Presiding Judge


COUNSEL OF RECORD:

                 For Appellant:

                        Lucy Hansen, Attorney at Law; Missoula, Montana

                 For Appellee:

                        Timothy C. Fox, Montana Attorney General, Mardell Ployhar, Assistant
                        Attorney General; Helena, Montana

                        John Parker, Cascade County Attorney, Matthew S. Robertson, Deputy
                        County Attorney; Great Falls, Montana



                                                   Submitted on Briefs: October 2, 2013
                                                              Decided: October 22, 2013


Filed:

                        __________________________________________
                                          Clerk
Justice Brian Morris 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     Father appeals the order of the Eighth Judicial District Court, Cascade County, that

terminated his parental rights. We affirm.

¶3     The Department of Public Health and Human Services (Department) filed a petition

for emergency protective services, adjudication of J.D. as a youth in need of care, and for

temporary legal custody of J.D. Mother had given birth to J.D. in October 2011. J.D. had

been premature at 33 weeks of gestation. J.D. tested positive for methamphetamines at birth.

J.D. spent several weeks in the neonatal intensive care unit.

¶4     The Department informed the court that J.D. had been released from the hospital and

placed with a relative in Browning, Montana. The Department presented testimony from a

neonatologist and an expert from the Blackfeet Indian Tribe at a hearing on November 28,

2011. The District Court initially declared J.D. a youth in need of care, but later vacated that

order due to the Department’s failure to serve Mother and Father.

¶5     The District Court set the matter for a second contested case hearing. The Department

filed a supplemental affidavit in which its child protection specialist informed the court that

the Department had attempted to have Mother move to Browning with J.D.’s kinship



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provider to assist in bonding. Mother instead had left Browning and returned to Great Falls

after a few weeks. Father had been arrested in late February 2012 and charged with robbery.

¶6     Both parties stipulated to adjudicate J.D. as a youth in need of care at the hearing on

March 26, 2012. The court granted the Department temporary legal custody. The Blackfeet

Tribe intervened pursuant to the Indian Child Welfare Act and monitored the proceedings.

¶7     The parties further stipulated to a treatment plan. Father’s treatment plan addressed

four major issues: 1) chemical dependency; 2) mental health issues; 3) a lack of consistent

contact with J.D.; and 4) Father’s lack of suitable housing and inconsistent employment.

The Department eventually filed a petition for permanent legal custody and termination of

parental rights in December 2012.

¶8     The court conducted a hearing on the Department’s petition on March 18, 2013. The

child protection specialist testified regarding Father’s lack of contact with J.D. due to his

failure to attend supervised visitations. The Department had offered to pay for travel and

lodging costs for Mother and Father from Great Falls to Browning to facilitate supervised

visitations with J.D. Mother and Father failed to take advantage of these accommodations.

¶9     The Department also presented evidence that Father failed to comply with random

urine analysis testing. Father started, but failed to complete, chemical dependency treatment.

Father also failed to attend two appointments to obtain a parenting assessment and one

appointment for a psychological assessment.

¶10    An ICWA expert agreed that J.D. would be “in imminent risk of danger” if J.D.

returned to her parents and that J.D. would likely suffer “serious emotional or physical
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damage.” The ICWA expert testified regarding her concern that Father had not completed

any of his treatment. She further testified that the termination would be in J.D.’s best

interest.

¶11    Father countered that he had gone to intensive outpatient treatment four times a week

for a month, but that his attendance had dropped when he had grown “sick of the

Department.” Father admitted that he failed to finish his treatment plan. The District Court

granted the Department’s petition to terminate. Father appeals.

¶12    We review for an abuse of discretion a district court’s decision to terminate a person’s

parental rights. In re A.H.D., 2008 MT 57, ¶ 11, 341 Mont. 494, 170 P.3d 131. Father

argues on appeal that the treatment plan to which he stipulated was not appropriate and that

the Department had failed to make active efforts to reunify Father with J.D. as required under

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

1996 Internal Operating Rules, as amended in 2006, that provide for memorandum opinions.

¶13    The Department satisfied the requirement under ICWA that it made active efforts to

reunify J.D. with her parents. The Department also presented sufficient evidence that

reunification of J.D. with her parents likely would cause “serious emotional or physical

damage” to J.D. It is manifest on the face of the briefs and the record before us that

substantial evidence supports the District Court’s findings of fact and the District Court

correctly applied the law to these facts.

¶14    Affirmed.

                                                          /S/ BRIAN MORRIS

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We concur:

/S/ LAURIE McKINNON
/S/ PATRICIA COTTER
/S/ BETH BAKER
/S/ JIM RICE




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