                                                                                     February 20 2008


                                    DA 07-0585

          IN THE SUPREME COURT OF THE STATE OF MONTANA
                                    2008 MT 60N



IN THE MATTER OF THE CUSTODY
AND PARENTAL RIGHTS OF D.S.,

         A Youth in Need of Care.


APPEAL FROM:     District Court of the First Judicial District,
                 In and For the County of Lewis and Clark, Cause No. ADN 2005-021
                 Honorable Dorothy McCarter, Presiding Judge


COUNSEL OF RECORD:

          For Appellant:

                 Jim Wheelis, Chief Appellate Defender, Helena, Montana

          For Appellee:

                 Hon. Mike McGrath, Montana Attorney General, David Ole Olson,
                 Assistant Attorney General, Helena, Montana

                 Leo J. Gallagher, Lewis and Clark County Attorney, Carolyn Clemens,
                 Deputy County Attorney, Helena, Montana



                                             Submitted on Briefs: January 23, 2008

                                                        Decided: February 20, 2008


Filed:

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

¶1     Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal

Operating Rules, as amended in 2003, the following memorandum decision shall not be

cited as precedent. It shall be filed as a public document with the Clerk of the Supreme

Court and its case title, Supreme Court 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     K.S. appeals the termination of her parental rights. We affirm.

¶3     A restatement of the issue is whether the District Court abused its discretion in

terminating K.S.’s parental rights to D.S. because K.S. failed to complete multiple

treatment plans.

¶4     K.S. is the biological mother of D.S., born in 2000. In November 2005 the

Department of Public Health and Human Services (DPHHS or Department) moved for

temporary custody and adjudication of D.S. as a youth in need of care. The basis for the

petition was that K.S. was physically neglecting her son by failing to provide basic

necessities and allowing him to be exposed to an unreasonable physical or psychological

risk by leaving him with strangers or inappropriate caregivers. On December 1, 2005, the

District Court granted emergency protective services allowing the Department to remove

the child from the home and place him in temporary care. The court scheduled a show

cause hearing for December 12, 2005. On December 8, 2005, DPHHS gained temporary

legal custody (TLC) and a guardian ad litem was assigned to D.S. The show cause

hearing was subsequently continued and on December 20, 2005, K.S. stipulated that D.S.


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was a youth in need of care. The stipulation indicated that the District Court would hold

a review hearing in June 2006 to determine if the Department’s temporary custody of

D.S. should be extended. The Department then undertook proceedings against C.S.,

D.S.’s biological father.

¶5     K.S. entered into a treatment plan in January 2006. This plan was updated in April

and May 2006. It was approved by the court in June 2006 at which time the parties

stipulated to extend it for an additional six months. The June 2006 review hearing was

continued and rescheduled for December 8, 2006. K.S.’s treatment plan was updated in

August 2006 and in September 2006 the Department requested a six-month extension of

TLC which the court granted. In November 2006 a hearing on K.S.’s updated treatment

plan was held and the plan was approved by the District Court.

¶6     In March 2007 K.S.’s treatment plan was again updated and the Department

requested that TLC be extended again. The court granted the request. In May 2007

DPHHS petitioned for termination of both K.S.’s and C.S.’s parental rights with consent

for adoption. In July 2007 C.S. voluntarily relinquished his parental rights and consented

to adoption. The District Court held a hearing on June 26, and continued the hearing to

July 11, 2007. The court terminated K.S.’s rights on August 14, 2007. K.S. filed a

timely Notice of Appeal.

                                     DISCUSSION

¶7     The District Court found that K.S.’s treatment plan had been updated several times

between the time D.S. was adjudicated a youth in need of care and the termination

hearing, and that K.S. had not complied in full with the plan nor had the plan been


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successful. The court observed that at the time of the hearing, the case had been open for

nineteen months.     The District Court heard testimony that K.S. had an “unstable”

lifestyle, made poor decisions as to her own health, did not manage money well and made

poor decisions related to caregivers for D.S. A therapist testified that K.S. “would need

support services for a long time if she were to parent [D.S.]”. Additionally, the court was

told that K.S. could not meet her son’s emotional and physical needs because “she cannot

even meet her own basic needs.” Over the months before the hearing, K.S. was, at times,

unemployed and homeless, and she left the child in the care of a much older brother

whose parental rights to his own child had been terminated and of whom D.S. was

frightened.

¶8     This testimony and much more identifying the continued difficulties K.S.

encountered in parenting D.S., in combination with testimony describing D.S.’s foster

home situation as “positive,” and “safe,” supports the District Court’s decision to

terminate K.S.’s parental rights. The court, in accordance with § 41-3-609, MCA, found

or concluded that: (1) D.S. had been adjudicated a youth in need of care; (2) he had been

in the custody of the State for twenty of the twenty-three months leading up to the

termination order; (3) an appropriate and necessary court-approved treatment plan had

been created and updated for K.S.; (4) K.S. had failed to successfully complete the

treatment plans; (5) K.S.’s conduct, condition and circumstances were unlikely to change

in the foreseeable future; and (6) returning D.S. to his mother’s care was not in his best

interest because it would result in continued neglect to the detriment of D.S.




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¶9     We review a district court’s decision to terminate parental rights to determine

whether the court abused its discretion. The test for an abuse of discretion is “whether

the trial court acted arbitrarily, without employment of conscientious judgment, or

exceeded the bounds of reason resulting in substantial injustice.” However, because a

parent’s right to the care and custody of a child is a fundamental liberty interest, it must

be protected by fundamentally fair procedures.          To satisfy the relevant statutory

requirements for terminating a parent-child relationship, a district court must make

specific factual findings. We review those findings of fact to determine whether they are

clearly erroneous. Lastly, we review the court’s conclusions of law to determine whether

the court interpreted the law correctly. In re Custody and Parental Rights of C.J.K., 2005

MT 67, ¶ 13, 326 Mont. 289, ¶ 13, 109 P.3d 232, ¶ 13 (internal citations omitted).

¶10    Additionally, the district court is bound to give primary consideration to the

physical, mental and emotional conditions and needs of the children. Consequently, the

best interests of the child are of paramount concern in a parental rights termination

proceeding and take precedence over the parental rights. Section 41-3-609(3), MCA;

accord Parental Rights of C.J.K., ¶ 14.

¶11    We have determined to decide this case pursuant to Section 1, Paragraph 3(d) of

our 1996 Internal Operating Rules, as amended in 2003, which provides for

memorandum opinions. It is manifest on the face of the briefs and the record before us

that the findings of fact are supported by substantial evidence, the legal issues are clearly

controlled by settled Montana law which the District Court correctly interpreted, and the




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record supports the District Court’s conclusion to terminate K.S.’s parental rights. The

District Court did not abuse its discretion.

¶12    We affirm.


                                                   /S/ PATRICIA COTTER



We concur:

/S/ W. WILLIAM LEAPHART
/S/ JOHN WARNER
/S/ JAMES C. NELSON
/S/ BRIAN MORRIS




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