                                                                                 February 17 2015


                                    DA 14-0288
                                                                                 Case Number: DA 14-0288

            IN THE SUPREME COURT OF THE STATE OF MONTANA

                                    2015 MT 45N



IN THE MATTER OF:

S.W.,

         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 13-045
                  Honorable Julie Macek, Presiding Judge


COUNSEL OF RECORD:

           For Appellant:

                  Julie Brown, Montana Legal Justice, PLLC, Missoula, Montana

           For Appellee:

                  Timothy C. Fox, Montana Attorney General, Micheal S. Wellenstein,
                  Assistant Attorney General, Helena, Montana

                  John Parker, Cascade County Attorney, Jennifer Quick, Deputy County
                  Attorney, Great Falls, Montana


                                             Submitted on Briefs: January 21, 2015
                                                        Decided: February 17, 2015


Filed:

                  __________________________________________
                                    Clerk
Justice Laurie McKinnon 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      N.W. (Mother) appeals from the order of the Eighth Judicial District Court,

Cascade County, terminating her parental rights to her child S.W. We affirm.

¶3      The issue presented for review is whether the District Court erred when it found

that the conduct or condition rendering Mother unfit to parent was unlikely to change

within a reasonable time.

¶4      S.W., born in 2013, is Mother’s second child. Mother’s first child was removed

by the Department of Public Health and Human Services (Department) in 2011.

Mother’s rights to that child were terminated in 2013, after Mother failed to complete her

treatment plan. In re K.L., 2014 MT 28, 373 Mont. 421, 318 P.3d 691. S.W. was born

while the termination petition regarding Mother’s first child was pending and was

removed two days after birth.

¶5      A few weeks prior to S.W.’s birth, J.B., the man Mother believed to be S.W.’s

father, was arrested for assaulting a security guard in Mother’s apartment building. A

few days after this incident, Mother informed a social worker with the Department that

J.B. had recently assaulted her. Mother appeared with bruising and swelling around both

eyes.   The Department had ongoing concerns about Mother’s ability to protect her


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children from exposure to violent individuals, based in part on similar circumstances

surrounding the removal of K.L. two years earlier. The Department was also concerned

about Mother’s ability to maintain basic hygiene and provide for S.W.’s basic needs.

Mother needed frequent reminders to bathe and wash her clothes.         Mother had not

obtained adequate supplies, such as diapers and clothing, for the care of the newborn.

Mother has significant cognitive limitations and an I.Q. of 69. She has no source of

income other than public assistance.

¶6    On August 22, 2013, Mother and the Department entered a treatment plan

requiring the following tasks: complete a parenting assessment; complete parenting

training; complete an in-home parenting program; address mental health issues; maintain

a safe and stable home environment; have enough income to meet S.W.’s needs; attend

every scheduled visit with S.W.; maintain consistent, appropriate contact with S.W.; sign

all necessary releases; and contact the Department on a weekly basis.

¶7    On February 19, 2014, the Department petitioned to terminate Mother’s parental

rights, claiming she had failed to successfully complete her treatment plan.           A

termination hearing was held on April 10, 2014. At the termination hearing, psychologist

Susan Day testified that Mother exhibited unrealistic thinking and poor judgment about

complex situations. Day also testified that Mother’s hygiene was quite poor, and that

Mother was unable to identify areas she needed to work on as a parent. Day described

Mother’s problems as “chronic” and “intractable.” Mother’s therapist, Sarah Karls,

testified that “employment did not seem to be on [Mother’s] radar,” and that Mother

intended to remain in a long-term, family relationship with J.B. Julie Trosper supervised


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Mother’s visits with S.W., and testified that “it was a struggle” for Mother to learn to care

for S.W. “without always having to be told what to do.” Trosper said Mother had “really

kind of unrealistic expectations, like he was a little adult rather than an infant.”

¶8     Child Protective Specialist Isaac Jessee testified that Mother received in-home

parenting services, but was never able to progress to the family-based services stage that

would have preceded reunification. Jessee testified that although Mother was able to

maintain a residence, the Department was concerned about her ability to provide a safe

home environment because she appeared unable to recognize threats to S.W.’s safety

from violent individuals. Jessee testified that although Mother received public assistance

and performed some volunteer work, she had taken no steps to obtain employment and

was unable to articulate how she would provide for the child’s needs. Jessee testified that

although Mother’s attendance at parenting education, counseling, and visitation had been

generally good, her actual progress in those programs was unsatisfactory. The District

Court ordered termination of Mother’s parental rights after finding that Mother had not

successfully completed her treatment plan and that the conditions rendering her unfit to

parent were unlikely to change within a reasonable time.

¶9     We review a district court’s termination of parental rights for abuse of discretion.

In re J.W., 2013 MT 201, ¶ 25, 371 Mont. 98, 307 P.3d 274. We review a district court’s

conclusions of law for correctness and its findings of fact for clear error. J.W., ¶ 25. A

finding is clearly erroneous if it is not supported by substantial evidence, if the district

court misapprehended the effect of the evidence, or if we are left with the definite and




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firm conviction that a mistake has been made.         In re S.B.C., 2014 MT 345, ¶ 17,

377 Mont. 400, 340 P.3d 534.

¶10    A court may order termination of the parent-child legal relationship if it finds by

clear and convincing evidence that the child is an adjudicated youth in need of care, an

appropriate treatment plan has not been complied with or been successful, and the

conduct or condition of the parent rendering her unfit is unlikely to change within a

reasonable time. Section 41-3-609(1)(f), MCA. It is not sufficient merely to comply

with the tasks assigned by a treatment plan; the treatment must also be successful. In re

S.M., 2001 MT 11, ¶ 44, 304 Mont. 102, 19 P.3d 213. In determining whether the

condition of the parent is unlikely to change, the court must consider, among other

factors, any mental deficiency of the parent that renders the parent unlikely to care for the

ongoing physical, mental, and emotional needs of the child. Section 41-3-609(2)(a),

MCA.

¶11    Mother argues there was insufficient evidence supporting the District Court’s

finding that the condition rendering her unfit to parent was unlikely to change within a

reasonable time. The evidence before the District Court showed that Mother had been

receiving services from the Department since the removal of her older child in 2011. The

Department’s concerns about Mother’s ability to provide for the children’s needs and

recognize threats to their safety remained consistent throughout that time. Day testified

that Mother had problems with complex reasoning and judgment that were “chronic” and

“intractable.” Mother had difficulty identifying the areas in which she struggled and

needed to develop as a parent. Trosper testified that Mother continually needed to be told


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what to do to provide daily care for S.W., and that this did not change over months of

supervised visits. Jessee testified that despite participation in services, Mother had not

successfully addressed aspects of the treatment plan involving her relationships with

violent individuals and her ability to provide an income to support S.W. The District

Court’s finding that the condition rendering Mother unfit to parent was unlikely to

change within a reasonable time was supported by substantial evidence and was not

clearly erroneous. The District Court did not abuse its discretion when it terminated

Mother’s parental rights to S.W.

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

our Internal Operating Rules, which provides for memorandum opinions. The District

Court’s findings of fact are supported by substantial evidence and there clearly was not

an abuse of discretion.

¶13    Affirmed.

                                                /S/ LAURIE McKINNON

We Concur:

/S/ MIKE McGRATH
/S/ JAMES JEREMIAH SHEA
/S/ BETH BAKER
/S/ JIM RICE




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