                                                                                     February 18 2014


                                     DA 13-0473

            IN THE SUPREME COURT OF THE STATE OF MONTANA

                                    2014 MT 43N



IN THE MATTER OF:

S.K.,

         Youth in Need of Care.




APPEAL FROM:      District Court of the Eighth Judicial District,
                  In and For the County of Cascade, Cause No. CDN-12-136
                  Honorable Kenneth R. Neill, Presiding Judge


COUNSEL OF RECORD:

           For Appellant:

                  Carl B. Jensen, Attorney at Law, Great Falls, Montana

           For Appellee:

                  Timothy C. Fox, Montana Attorney General, Pamela P. Collins, Assistant
                  Attorney General, Helena, Montana

                  Theresa L. Diekhans, Assistant Attorney General, Great Falls, Montana



                                               Submitted on Briefs: January 29, 2014
                                                          Decided: February 18, 2014


Filed:

                  __________________________________________
                                    Clerk
Justice Beth Baker 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     J.J. (Mother) appeals an order of the Eighth Judicial District Court terminating her

parental rights and granting the Montana Department of Public Health and Human

Services (DPHHS) permanent legal custody of her son, S.K. The sole issue raised on

appeal is whether Mother should have been given additional time to complete a treatment

plan in order to reunite her with S.K. We affirm.

¶3     On September 18, 2012, DPHHS filed a petition for emergency protective

services, adjudication as a youth in need of care, and temporary legal custody, alleging

that S.K. was abused or neglected or in danger of being abused or neglected because his

parents exposed him to methamphetamine. The District Court issued an order to show

cause and granted the petition for emergency protective services on September 24, 2012.

A supplemental affidavit indicated that a hair sample taken from S.K. tested positive for

methamphetamine and amphetamine.

¶4     The court ordered a treatment plan for Mother on October 10, 2012. After the

treatment plan was ordered, Mother was arrested and indicted on federal drug charges.

She later pleaded guilty and was sentenced on March 12, 2013, by a federal court in

Montana to 44 months’ imprisonment.

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¶5      On April 1, 2013, DPHHS filed a petition for permanent legal custody and

termination of Mother’s parental rights. A contested hearing on the petition was held on

May 28, 2013. The court issued its order on the petition on June 24, 2013, ordering the

termination of Mother’s parental rights pursuant to § 41-3-609(1)(f), MCA, and

§ 41-3-609(4)(c), MCA.

¶6      We review a decision to terminate parental rights for abuse of discretion. In re

D.B., 2008 MT 272, ¶ 13, 345 Mont. 225, 190 P.3d 1072. We review a court’s findings

of fact to determine whether they are clearly erroneous and its conclusions of law to

determine whether they are correct. In re T.S., 2013 MT 274, ¶ 21, 372 Mont. 79, 310

P.3d 538. We will not disturb a district court’s decision on appeal 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 T.S., ¶ 21 (quoting In re D.B., ¶ 17).

¶7      In a case such as this, which does not involve an Indian child, a district court may

terminate the parent-child legal relationship if it finds by clear and convincing evidence

that:

               (f) the child is an adjudicated youth in need of care and both of the
        following exist:
               (i) 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
               (ii) the conduct or condition of the parents rendering them unfit is
        unlikely to change within a reasonable time.

Section 41-3-609(1), MCA.

¶8      S.K. was adjudicated as a youth in need of care in an order filed on October 10,

2012. Mother does not challenge the adjudication. It is undisputed that Mother failed to


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comply with the treatment plan due to her incarceration. The court determined that the

conduct or condition rendering Mother unfit is unlikely to change within a reasonable

time.    The court considered whether the “present judicially ordered long-term

confinement of the parent” rendered her “unfit, unable, or unwilling to give the child

adequate parental care” in making its determination that the conduct or condition

rendering Mother unfit was unlikely to change. Section 41-3-609(2), MCA.

¶9      The court further concluded that, although Mother had not complied with a

court-ordered treatment plan, “[a] treatment plan was not necessary in any event pursuant

to [§ 41-3-609(4)(c), MCA,]” because “the Mother’s incarceration is more than one year

and reunification is not in the child’s best interests . . . .” The court reasoned, “The

physical, mental and emotional needs of this two year-old child require placement and

permanency within these 44 months.”

¶10     Mother argues that termination of her parental rights was improper because she

“would be able to parent the child in the reasonably foreseeable future and it was not in

the child’s best interests to terminate the mother’s rights.” She contends that she could

have completed her treatment plan if given additional time.       She testified that she

anticipated serving approximately thirteen more months of her sentence based in part on

completion of a treatment program. She maintained that S.K.’s interest in permanency

would be met because of her anticipated early release.

¶11     The District Court was not persuaded by her arguments, given the absence of

objective support for her testimony. The court found that nothing guaranteed Mother’s

success in completing a treatment program. Also, contrary to Mother’s assertion that she

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may be released early for completing a treatment program, the court noted that her

sentencing order clearly stated that completion of the program would “not reduce time in

custody.”      The record supports the court’s factual findings and it did not err in

determining that clear and convincing evidence justified termination of Mother’s parental

rights.

¶12       Mother also argues for the first time on appeal that the State’s expert was not

properly qualified. To “preserve a claim or objection for appeal, an appellant must first

raise that specific claim or objection in the district court.” In re T.E., 2002 MT 195, ¶ 20,

311 Mont. 148, 54 P.3d 38. We decline to consider this issue.

¶13       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

District Court’s findings of fact are supported by substantial, credible evidence and are

not clearly erroneous. The court correctly interpreted the applicable law and did not

abuse its discretion in concluding that Mother’s parental rights should be terminated.

¶14       Affirmed.


                                                  /S/ BETH BAKER

We concur:

/S/ LAURIE McKINNON
/S/ PATRICIA COTTER
/S/ MICHAEL E WHEAT
/S/ JIM RICE




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