                                                                                               12/06/2016


                                           DA 16-0049
                                                                                           Case Number: DA 16-0049

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2016 MT 320N



IN THE MATTER OF:

N.W.,

         A Youth 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 13-12
                        Honorable Ray Dayton, Presiding Judge


COUNSEL OF RECORD:

                 For Appellant:

                        Shannon Hathaway, Montana Legal Justice, PLLC, Missoula, Montana

                 For Appellee:

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

                        Ben Krakowka, Deer Lodge County Attorney, Ellen Donohoe, Deputy
                        County Attorney, Anaconda, Montana



                                                    Submitted on Briefs: October 5, 2016

                                                               Decided: December 6, 2016


Filed:

                        __________________________________________
                                          Clerk
Justice Patricia Cotter delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(c), 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     Biological father, W.W. (Father), appeals from a December 2015 order of the

Third Judicial District Court, Deer Lodge County, terminating his parental rights to N.W.

We affirm.

¶3     On August 8, 2013, the Montana Department of Health and Human Services,

Child and Family Services Division (CFS), received a report alleging that N.W., a

newborn, was in danger of being abused and/or neglected as her biological mother, P.J.

(Mother), had medical and mental health issues that were not being properly addressed.

On August 14, 2013, CFS received another report regarding N.W. after an incident at the

Pintler Medical Clinic in Anaconda, Montana. Clinic staff called law enforcement after

Father’s threatening behavior made the staff concerned for the safety of Mother and N.W.

CFS subsequently removed N.W. from parental care and placed N.W. in out-of-home

foster care with N.W.’s maternal grandparents. On August 19, 2013, the Department of

Public Health and Human Services (Department) filed a Petition for Emergency

Protective Services, Adjudication as Youth in Need of Care and Granting Temporary

Custody. On September 6, 2013, the District Court adjudicated N.W. a youth in need of

care, and temporary legal custody was granted to the Department.


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¶4    On October 2, 2013, the District Court held a hearing and approved a Treatment

Plan for Father. At a hearing in March 2014, the District Court expressed concerns that

Father appeared to be “going through the motions,” regarding his obligations under the

Treatment Plan, and noted that it appeared Father did not believe he needed to change.

Subsequently, Father stipulated to a new Treatment Plan in April 2014. This cycle would

occur once more in the following year. After the same concerns were raised before the

District Court at a hearing in October 2014, Father once again stipulated to a new

Treatment Plan.

¶5    In March 2015, CFS filed a Petition for Termination of Parental Rights and

Permanent Legal Custody with Right to Consent to Adoption. In April 2015, Mother

voluntarily relinquished her parental rights to N.W. The District Court held a hearing in

July 2015 to determine whether to terminate Father’s parental rights. During the hearing,

CFS presented extensive evidence, including testimony from Dr. Susan Day, a licensed

clinical psychologist who evaluated Father on two separate occasions, Dr. Bowman

Smelko, a licensed clinical psychologist who evaluated Father in January 2015, Renee

Riley-Finnegan, a mental health therapist who had worked with Father from March 2014

until February 2015, and Colleen McGuire, an employee of the Anaconda Family

Resource Center who supervised visits between N.W. and Father and Mother from

January 2014 until February 2015.       All four witnesses called by the Department

expressed significant concerns regarding Father’s behavior and ability to care for N.W.

Also, Grace Schapansky, a CFS Child Protection Specialist, testified that Father did not

successfully complete any of his three Treatment Plans. Following the conclusion of the


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hearing, the District Court determined that Father’s conduct and condition rendered him

unfit to parent N.W. The District Court found that continuation of the parent-child legal

relationship between N.W. and Father was likely to result in continued abuse and/or

neglect. The District Court determined that CFS had undertaken reasonable efforts

towards reunification and/or preservation of the family unit.          Finally, the Court

determined that it was in the best interest of N.W. to terminate the parental rights of

Father and award permanent legal custody to CFS with authority to consent to N.W.’s

adoption or guardianship.

¶6     “A court’s decision to terminate a parent’s legal rights to a child is not a decision

made lightly.” In re M.N., J.N., Jr., and R.N., 2011 MT 245, ¶ 14, 362 Mont. 186, 261

P.3d 1047 (citation omitted). “We will presume that a district court’s decision is correct

and will not disturb it 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 M.N., J.N., Jr., and R.N., ¶ 14 (citation omitted). “The right to parent is a fundamental

liberty interest and an order terminating the right must be supported by clear and

convincing evidence.” In re M.N., J.N., Jr., and R.N., ¶ 14 (citation omitted). However,

the best interests of the child are of paramount concern and take precedence over parental

rights. In re M.N., J.N., Jr., and R.N., ¶ 14.

¶7     Father argues that the District Court violated his constitutional right to parent his

child and abused its discretion when it terminated his parental rights because the State did

not meet its burden of establishing that it used reasonable efforts to reunify the family or

that the treatment plan given to Father was appropriate.


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¶8     We conclude that the District Court’s decision was supported by the applicable

law and by ample, clear, and convincing evidence in the record.           In making this

determination, we note that the Department made considerable efforts attempting to

reunify the family, and even if we were to determine that certain elements in Father’s

Treatment Plan were unwarranted, he still failed to complete the remaining and

unchallenged tasks.    Therefore, we conclude that the District Court did not err in

terminating Father’s parental rights to N.W.

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

our Internal Operating Rules, which provides for memorandum opinions. In the opinion

of this Court, this case presents a question controlled by settled law.

¶10    Affirmed.


                                                   /S/ PATRICIA COTTER


We Concur:


/S/ BETH BAKER
/S/ LAURIE McKINNON
/S/ JAMES JEREMIAH SHEA
/S/ MICHAEL E WHEAT




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