                                                                                               04/14/2020


                                         DA 19-0418
                                                                                           Case Number: DA 19-0418

            IN THE SUPREME COURT OF THE STATE OF MONTANA
                                         2020 MT 87



IN THE MATTER OF:

A.L.P,

         A Youth in Need of Care.


APPEAL FROM:           District Court of the Thirteenth Judicial District,
                       In and For the County of Yellowstone, Cause No. DN-18-48
                       Honorable Michael G. Moses, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Kelly M. Driscoll, Montana Legal Justice, PLLC, Missoula, Montana

                For Appellee:

                       Timothy C. Fox, Montana Attorney General, Jonathan M. Krauss, Assistant
                       Attorney General, Helena, Montana

                       Scott Twito, Yellowstone County Attorney, Corbit Harrington, Deputy
                       County Attorney, Billings, Montana


                                                   Submitted on Briefs: February 19, 2020

                                                              Decided: April 14, 2020


Filed:

                                     r--6ta•--df
                       __________________________________________
                                          Clerk
Justice Beth Baker delivered the Opinion of the Court.

¶1     J.P. (“Father”) appeals the Thirteenth Judicial District Court’s order terminating his

parental rights to his child, A.L.P. Father asserts that the court erred when it concluded

that Father failed to complete an appropriate treatment plan and that his condition was

unlikely to change within a reasonable time. We hold that the District Court committed

harmless error when it found Father’s treatment plan unsuccessful due solely to his

incarceration. We affirm.

                 FACTUAL AND PROCEDURAL BACKGROUND

¶2     In August 2017, the Department of Health and Human Services Child and Family

Services Division (“Department”) became involved with the family due to concerns of

B.A.’s (“Mother”) methamphetamine use while she was pregnant with A.L.P.1 The parties

entered into a voluntary protection plan, A.L.P. remained with the parents, and the

Department continued its intervention with the family. A month after A.L.P. was born,

Father was arrested and incarcerated for probation violations in an unrelated matter. He

would remain incarcerated for the duration of the proceedings in this case. When Mother

began testing positive for methamphetamine, the Department filed a petition on

February 8, 2018, for emergency protective services, adjudication of A.L.P. as a youth in

need of care, and temporary legal custody due to A.L.P.’s risk of physical neglect resulting

from Mother’s methamphetamine use and Father’s incarceration. The petition noted that



1
  The District Court terminated Mother’s parental rights in the same proceeding. Her parental
rights are not at issue in this appeal.
                                              2
“Birth father [] is currently incarcerated and enrolled in the Start Program.” At the show-

cause hearing, Father stipulated to the Department’s petition without agreeing to the facts

as alleged in the petition or affidavit. The parties indicated to the court that Father was in

the START program with the “possible” transition into prerelease. Twenty days later, the

District Court issued a written order adjudicating A.L.P. as a youth in need of care, granting

the Department temporary legal custody, and directing the Department to develop

treatment plans for the parents. A.L.P. was placed in non-kinship foster care.

¶3     A.L.P. was admitted to the hospital the following month due to breathing problems.

She was diagnosed with severe laryngotracheobronchomalacia, a condition that makes

breathing more difficult and increases risk for more serious respiratory infections.

A.L.P. underwent three to four hours of intense treatment per day to keep her lungs open

and clear. In one report, her physician highlighted the seriousness of the condition,

stating: “The severity of [her] lung condition requires an absolute commitment to her

treatment plan. . . . Her caretakers must understand the necessity of following the

prescribed treatment plan and ensure that she is followed by her healthcare team per their

recommendations.”

¶4     In July 2018, the Department proposed—and the District Court approved—a

treatment plan for Father to complete while incarcerated. The plan required Father to

complete a number of tasks designed to address the conditions that led to A.L.P.’s removal,

including attending parenting classes and attending visits with A.L.P. Father did not object

to the treatment plan. At the time of the proposed treatment plan, Father informed the

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Department that he had appealed his probation revocation to the Montana Supreme Court

and advised the court that he was expecting to have his parole hearing in late 2019 or

early 2020.

¶5     Father indicated to the Department’s caseworker that he had taken measures to

comply with his treatment plan while incarcerated.        He had completed a chemical

dependency evaluation; submitted a request to the prison board for a psychological

evaluation and counseling; completed a parenting class; and would forward to the

Department the results of his drug tests conducted by the prison. Father also reported that

he had undergone an anger assessment completed by prison staff and that further treatment

was not recommended following that assessment.

¶6     According to his caseworker, Father failed to comply with all the requirements of

his treatment plan. She noted that although he completed two family engagement meetings

via conference call, he did not provide the Department with copies of his chemical

dependency evaluation, drug test results, or anger management assessment, and did not

complete a psychological evaluation. She observed that due to his incarceration, Father

was unable to visit A.L.P. or to secure appropriate housing and employment.             She

concluded that Father had not “successfully and completely completed his treatment plan,”

had not demonstrated his ability to parent the child, and was “in no position to provide any

kind of home or care and won’t be for some time.”                 Upon the caseworker’s

recommendation, the Department filed a petition for termination of parental rights on

November 26, 2018.

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¶7     The District Court held a termination hearing on March 27, 2019. The Department

caseworker    testified   that   she   had   three   contacts   with   Father   during   the

Department’s intervention—a phone call from him and two conference calls. She believed

Father had anger issues. She confirmed that he told her the prison would not let him

undergo another anger assessment because he already had completed two in prison. She

testified that Father also had advised her that he requested evaluations, counseling, and

parenting classes as required by his treatment plan, but she said she had not received

“any verification of him completing any of those.” She confirmed Father’s assertion that

he believed he would be eligible for release in January 2020. When asked about Father’s

visitation requirement under his treatment plan, she testified that he was not provided an

opportunity to have visits with A.L.P. due to his incarceration because “[h]e’s been in other

towns and counties.” According to the caseworker, the conduct that made Father unfit,

unable, or unwilling to parent was his ongoing incarceration.

¶8     Father testified that he had completed required tasks under his treatment plan. He

asserted that he provided copies of proof of his compliance to the Department. Father

testified that he had one phone call with the Department in which he discussed the treatment

plan and that the contact on the two family engagement meeting conference calls was brief.

He expressed that he did not believe he had been given a “fair shake” in his treatment plan

and he had tried everything he could and completed every program that was available to

him at the prison in order to comply. Father anticipated his first parole hearing would be

in November 2019 and was hopeful for release in late 2019 or early 2020. He asked the

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court to extend temporary legal custody for a second time to allow him additional time to

work on his treatment plan and to not terminate his parental rights.

¶9     At the termination hearing, the District Court stated that it was accepting Father’s

testimony concerning his completion of a chemical dependency evaluation, parenting

classes, anger assessment, and his programming at the prison, but that Father nonetheless

had not completed all of the tasks in the treatment plan, rendering the plan unsuccessful.

The court observed that Father had not been able to parent A.L.P. since she was a month

old because he had been incarcerated. It concluded that reunification was not in A.L.P.’s

best interests because of her serious medical issues.

¶10    The District Court terminated Father’s rights, finding that Father had an

appropriate treatment plan designed to rehabilitate his parenting skills for the purpose of

reuniting him with A.L.P. The court found further that Father had not successfully

completed the plan—he had failed to maintain contact with A.L.P. and had been

incarcerated for over a year, with the prospect of being available to parent several months

away. The court specifically noted that there was no evidence that Father could assume

the intensive care required by A.L.P. in the reasonable future. Referencing Father’s

suggestion that he soon would be eligible for parole, the District Court stated:

       It was a long-term confinement of ten years from the district judge in
       Lewis and Clark County as a result of your probation violations and your
       violations of the conditions of your previous sentence. Once again, that was
       a long-term confinement as set forth by the judge in Helena as testified to by
       [Father] today to include a total of ten years with none suspended, which
       suggests [Father] will be on parole for a long time. If, indeed, [he is] paroled.


                                              6
¶11    It found clear and convincing evidence to conclude that A.L.P. was adjudicated as

a youth in need of care, that Father had not successfully completed his treatment plan, that

his conduct or condition was unlikely to change within a reasonable time, and that it was

in the best interests of A.L.P. to terminate Father’s parental rights.

                               STANDARDS OF REVIEW

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

discretion.   In re R.L., 2019 MT 267, ¶ 12, 397 Mont. 507, 452 P.3d 890 (citing

In re A.S., 2016 MT 156, ¶ 11, 384 Mont. 41, 373 P.3d 848; In re K.A., 2016 MT 27, ¶ 19,

382 Mont. 165, 365 P.3d 478). The Department carries the burden of proving by clear and

convincing evidence that the statutory criteria for termination have been satisfied.

In re R.L., ¶ 12 (quoting In re K.L., 2014 MT 28, ¶ 14, 373 Mont. 421, 318 P.3d 691). This

Court reviews a district court’s findings of fact for clear error and its conclusions of law

for correctness. In re R.L., ¶ 12 (citing In re M.V.R., 2016 MT 309, ¶ 23, 385 Mont. 448,

384 P.3d 1058).

                                       DISCUSSION

¶13    A parent’s right to parent a child is a fundamental liberty interest. In re R.L., ¶ 17.

A district court “must adequately address each applicable statutory requirement” prior to

terminating parental rights. In re R.L., ¶ 17 (citing In re Matter of A.T., 2003 MT 154, ¶ 10,

316 Mont. 255, 70 P.3d 1247). Under § 41-3-607(2), MCA, “[t]he termination of a

parent-child legal relationship may be considered only after the filing of a petition pursuant

to 41-3-422 alleging the factual grounds for termination pursuant to 41-3-609.”

                                               7
¶14     There are several circumstances for which a court may terminate parental rights

under    §     41-3-609(1),   MCA.    Relevant    to   the   Department’s     petition   here,

§ 41-3-609(1)(f), MCA, requires that a district court find, by clear and convincing

evidence, that the child is a youth in need of care and the court finds that: “(1) an

appropriate court-approved treatment plan was not complied with by the parents or was not

successful; and that (2) the conduct or condition of the parents rendering them unfit was

unlikely to change within a reasonable time.”          In re X.M., 2018 MT 264, ¶ 18,

393 Mont. 210, 429 P.3d 920 (citing §§ 41-3-609(1)(f)(i)-(ii), MCA).

¶15     A treatment plan specifies the actions a parent must take to resolve the conditions

that resulted in the need for protective services for the child. Section 41-3-102(31), MCA.

Partial or substantial compliance with a treatment plan is insufficient to preclude

termination of parental rights. In re D.F., 2007 MT 147, ¶ 30, 337 Mont. 461, 161 P.3d 825.

Even if a parent has completed all required tasks, a district court still may find a treatment

plan unsuccessful. In re J.B., 2016 MT 68, ¶ 20, 383 Mont. 48, 368 P.3d 715 (citing In re

D.F., ¶ 36).

¶16     Father first argues that he was not given an appropriate treatment plan as required

by § 41-3-609(1)(f)(i), MCA. Recognizing that he failed to object to the treatment plan in

the first instance, he asserts that he preserved the issue for appellate review when he stated

at the termination hearing that he had not been given a “fair shake” to complete his

treatment plan. The Department responds that an appropriate treatment plan was approved

for Father without objection, and Father actively participated in the plan.

                                              8
¶17    This Court has consistently held that a parent who does not object to a treatment

plan waives the right to argue on appeal that the plan was not appropriate. In re X.B.,

2018 MT 153, ¶ 24, 392 Mont. 15, 420 P.3d 538. Father admits that he did not object

because one of his grounds for his ineffective assistance of counsel claim is that counsel

failed to object to inappropriate treatment plan tasks. He urges us to invoke plain error

review to hold the court in error for finding that Father’s treatment plan was appropriate

under § 41-3-609(1)(f)(i), MCA. Because, as discussed below, we find harmless error in

the District Court’s findings regarding the treatment plan’s success, we decline to review

for plain error whether the plan was appropriate.

¶18    A district court may not find a treatment plan unsuccessful solely based on a finding

that a parent’s incarceration rendered the plan unsuccessful. In re J.B., ¶ 19 (citing

In re A.T.). In In re A.T., ¶ 25, we held that the district court abused its discretion when it

terminated the father’s parental rights due to noncompliance with his treatment plan solely

because he was incarcerated.       We held that the Department did not demonstrate a

good-faith effort to preserve the parent-child relationship and the family unit when it

developed a treatment plan knowing that the parent was incarcerated, and then petitioned

to terminate parental rights because of the parent’s incarceration. In re A.T., ¶ 24.

¶19    Father asserts that the District Court erred when it found that the treatment plan was

unsuccessful because the court based its finding solely on Father’s incarceration, contrary

to our holdings in In re A.T. and In re J.B. He asserts that because all parties had knowledge

of his incarceration at the time the treatment plan was approved by the court, it was error

                                              9
for the court to conclude the plan was unsuccessful because of his incarceration and to

terminate his parental rights on that basis.

¶20    The Department acknowledges that Father was incarcerated at the time his treatment

plan was prepared but argues that incarceration was not the sole basis for the

District Court’s finding that the plan was unsuccessful. The Department further contends

that when the treatment plan was adopted, Father had told the Department he would be

released in four to six months. And it emphasizes the court’s clear finding that Father’s

long-term incarceration and A.L.P.’s special needs made reunification not in the child’s

best interests. Father admitted that he was responsible for being in prison and absent from

his daughter’s life; thus, the Department argues, Father’s own conduct led to the treatment

plan’s failure.

¶21    Father’s case bears many similarities to In re A.T. The Department alleged in its

petition that Father’s parental rights should be terminated because he failed to comply with

an appropriate court-ordered treatment plan; it was obliged to prove by clear and

convincing evidence that the statutory criteria for § 41-3-609(1)(f), MCA, had been

satisfied. In re K.L., ¶ 14. Father’s treatment plan, approved well after he was incarcerated,

expressly stated that visitation was a required task, but the Department based its

recommendation for termination on its conclusion that visitation was not viable because

Father was incarcerated. Like in In re A.T., the Department “developed the treatment plan

with the knowledge that the father would remain incarcerated throughout the plan’s

applicable period.” In re A.T., ¶ 21. The District Court record is unclear when Father’s

                                               10
probation was revoked. We take judicial notice from the criminal record, however, that

the First Judicial District Court revoked Father’s suspended sentence and imposed a

ten-year term of imprisonment in December 2017. State v. J.T.P., No. BDC 2010-216

(Mont. First Judicial Dist. Court Dec. 8, 2017). The District Court ordered release of

Father’s criminal justice information on March 1, 2018, four months before it approved the

treatment plan. Father also sent a letter to the Department’s caseworker in May 2018, prior

to the treatment plan’s approval. He informed the Department that he was “sentenced back

to prison and received all 10 years back” and would not be released for at least two years.

Armed with this information, the Department reasonably should have known that his

incarceration would prevent compliance with the visitation component of Father’s plan.

¶22    The record makes clear that the District Court’s finding under subsection (1)(f)(i)

was grounded in Father’s failure to complete visitation. After accepting Father’s testimony

that he completed certain treatment plan requirements, the court noted that he nonetheless

had failed to complete the visitation requirement, which made his treatment plan

unsuccessful. The District Court stated:

       The reason that they weren’t completed is because you are incapable of
       completing those items in the treatment plan. You are incapable of visiting
       this child. It is very difficult to keep in contact with the Department as a
       result of your imprisonment. Your imprisonment has been – was judicially
       ordered.

In its termination order, the court noted that “[Father] has failed to maintain contact with the

child and [Father] has been confined in long term confinement for over a year,” and—on

that basis—the treatment plan was unsuccessful.

                                              11
¶23    Our holding in In re A.T. makes it clear that a court cannot find a treatment plan

unsuccessful based solely on a parent’s incarceration where, as here, the Department was

aware of the parent’s incarceration and proposed a treatment plan with the full knowledge

that the parent was incarcerated. We reasoned:

       DPHHS did not invoke § 41-3-609(4)(c), MCA, in its petition for permanent
       legal custody and termination of parental rights. DPHHS sought termination
       of the father's parental rights solely on the basis of § 41-3-609(1)(f), MCA.
       One of the State's own witnesses . . . agreed that the father complied with
       five of the six treatment plan obligations. Nevertheless, it appears that the
       District Court deemed the plan unsuccessful because of the father’s
       long-term incarceration, a status known to DPHHS when it developed the
       plan. To develop a treatment plan with knowledge of a parent’s incarceration
       status, exact compliance with the plan, and then terminate the parental rights
       because the incarceration rendered the plan unsuccessful does not suggest a
       good faith effort by DPHHS to preserve the parent-child relationship and the
       family unit.

In re A.T., ¶ 24. Given the same statutory basis for the Department’s petition here, a similar

procedural history, and the District Court’s analysis, we conclude that the court erred in

finding that Father failed to successfully complete his treatment plan resulting solely from

his incarceration.

¶24    The Department asserts for the first time on appeal that a treatment plan was not

needed in this instance.     Section 41-3-609(4)(c), MCA, exempts the treatment plan

requirement if “the parent is or will be incarcerated for more than 1 year and reunification

of the child with the parent is not in the best interests of the child.” The Department may

seek exemption from the treatment plan requirement during the district court proceedings,

but it may not raise the exemption for the first time on appeal. See In re A.T., ¶ 25

(“Further, DPHHS did not raise § 41-3-609(4)(c), MCA, in its petition for . . . termination
                                             12
of parental rights. Accordingly, that provision cannot support termination of the father’s

parental rights.”). Like in In re A.T., Father here was given a treatment plan and led to

believe that completing it would prevent termination of his parental rights.               The

Department made the choice to give him a treatment plan under § 41-3-609(1)(f), MCA.

It is not fair for the Department to first assert, on appeal, that a treatment plan was not even

necessary under § 41-3-609(4)(c), MCA. The facts that make subsection (4)(c) applicable

were known to the Department at the time of the termination petition.

¶25    Importantly, when the Department seeks termination under § 41-3-609(1)(f), MCA,

a district court may consider a parent’s “present judicially ordered long-term confinement”

in determining whether the conduct or condition rendering the parent unfit is likely to

change within a reasonable time. Section 41-3-609(2)(d), MCA. If the parent is not in

prison or facing extended incarceration when a child is removed, the Department certainly

acts in good faith by proceeding with a treatment plan; in that case, the Department must

make reasonable efforts to provide services and work with the parent toward the objectives

of the treatment plan. Section 41-3-423(1), MCA. The Department also may revise a

treatment plan in light of a parent’s changed circumstances.              See In re M.A.E.,

1999 MT 341, ¶ 10, 297 Mont. 434, 991 P.2d 972 (Department developed a second

treatment plan after mother was incarcerated that specifically addressed her incarceration

and tailored the treatment plan to her status).         Here, however, Father’s long-term

incarceration was apparent for most of the proceedings. The Department neither sought to

revise the treatment plan nor worked with Father on the tasks he could accomplish while

                                              13
incarcerated (having a total of three calls with him during the life of the case); it seemingly

recognized that Father’s long-term incarceration would make it impossible for him to

parent within a reasonable time. Under those circumstances, the Department appropriately

should have moved the court to forego the treatment plan under § 41-3-609(4)(c), MCA.

¶26    Nonetheless, in matters involving abused and neglected children, a district court

may protect the children’s best interests despite procedural errors, if the error would have

no impact upon the ultimate result. In re M.S., 2014 MT 265A, ¶ 22, 376 Mont. 394,

336 P.3d 930 (citing In re J.C., 2008 MT 127, ¶ 43, 343 Mont. 30, 183 P.3d 22;

In re F.H., 266 Mont. 36, 39, 878 P.2d 890, 892 (1994); In re A.N., 2000 MT 35, ¶ 39,

298 Mont. 237, 995 P.2d 427). “No civil case shall be reversed by reason of error which

would have no significant impact upon the result; if there is no showing of substantial

injustice, the error is harmless.” In re L.M.A.T., 2002 MT 163, ¶ 21, 310 Mont. 422,

51 P.3d 504 (citing In re J.M., 2001 MT 51, ¶ 16, 304 Mont. 303, 21 P.3d 618).

¶27    In this case, unlike in In re A.T., the District Court made express findings of fact to

support the conclusion that a treatment plan was not necessary. The court’s findings make

it clear that, had the Department asserted § 41-3-609(4)(c), MCA, a treatment plan would

not have been required. The District Court found that Father had been incarcerated for

more than a year. It found further that A.L.P.’s serious ongoing medical issues require

specialized training and care and that there was no evidence Father could assume such

intensive care in the reasonable future. The District Court found that Father’s ten-year

incarceration would make him unavailable to parent A.L.P. Though Father represented to

                                              14
the court that he would be eligible for parole, that possibility was speculative, and Father

would not even see the parole board until eight to nine months after the termination hearing,

at the very earliest. The District Court considered Father’s long-term incarceration and

weighed it against A.L.P.’s serious medical concerns when it found that it was in A.L.P.’s

best interests to terminate Father’s parental rights. These findings support the conclusion

that the treatment plan exemption applied. We conclude that the court’s erroneous finding

that Father’s treatment plan was unsuccessful is harmless in light of the fact that the

District Court made express findings that rendered a treatment plan unnecessary. Even

though the Department failed to assert the statutory exemption in its termination petition,

reversing for this procedural error would have no impact on the ultimate result.

In re M.S., ¶ 22. On the record of this case, the District Court did not err in finding that

termination would be in A.L.P.’s best interests and did not abuse its discretion in granting

the Department’s petition.

¶28    Lastly, Father asserts that he received ineffective assistance of counsel.         He

maintains that counsel was ineffective when he failed to introduce evidence relating to

Father’s chemical dependency evaluation and parenting classes; to challenge on

cross-examination the Department’s reasonable efforts at reunification; or to object to the

appropriateness of the treatment plan. To determine whether assistance was effective, we

review counsel’s training, experience, and advocacy. In re B.H., 2020 MT 4, ¶ 49,

398 Mont. 275, 456 P.3d 233 (citing In re A.S., ¶ 26). Father makes no claim about

counsel’s training or experience.

                                             15
¶29    We are not persuaded that counsel’s advocacy here was ineffective. First, the

District Court accepted Father’s testimony regarding his completion of a chemical

dependency evaluation and parenting classes. Second, the court based its finding that the

conduct or condition rendering Father unfit was unlikely to change within a reasonable

amount of time on Father’s incarceration, which did not involve the Department’s

reasonable efforts.    Finally, counsel’s failure to object to the treatment plan’s

appropriateness is irrelevant given our holding that the court erred when it determined that

the treatment plan was unsuccessful.

                                     CONCLUSION

¶30    The District Court erred when it based its finding that the treatment plan was

unsuccessful solely on Father’s incarceration. We hold that the error is harmless on the

record presented in this case. The District Court did not abuse its discretion when it

concluded that it was in A.L.P.’s best interests to terminate Father’s parental rights. The

order of termination is affirmed.


                                                 /S/ BETH BAKER


We Concur:

/S/ JAMES JEREMIAH SHEA
/S/ LAURIE McKINNON
/S/ JIM RICE
/S/ INGRID GUSTAFSON




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