                                                                                              05/02/2017


                                          DA 16-0472
                                                                                          Case Number: DA 16-0472

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2017 MT 105N



IN THE MATTER OF:

N.P-S.,

         A Youth in Need of Care.



APPEAL FROM:            District Court of the Sixteenth Judicial District,
                        In and For the County of Custer, Cause No. DN-14-7
                        Honorable Michael B. Hayworth, Presiding Judge


COUNSEL OF RECORD:

                 For Appellant:

                        Tracy Labin Rhodes, Attorney at Law, Missoula, Montana

                 For Appellee:

                        Timothy C. Fox, Montana Attorney General, Mardell Ployhar,
                        Assistant Attorney General, Helena, Montana

                        Wyatt A. Glade, Custer County Attorney, Miles City, Montana



                                                    Submitted on Briefs: March 29, 2017

                                                               Decided: May 2, 2017


Filed:

                        __________________________________________
                                          Clerk
Justice Michael E Wheat 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     T.P.-S. (Father) appeals the Sixteenth Judicial District Court’s termination of his

parental rights to N.P.-S. We affirm.

¶3     E.R. (Mother) and Father are the biological parents of minor child N.P.-S. N.P.-S.

is currently three years old. The Department of Public Health and Human Services

(DPHHS or Department) removed N.P.-S. from her parents’ care in September 2014. The

Department filed a Petition for Emergency Protective Services, Adjudication of Child as

Youth in Need of Care and Temporary Legal Custody (Petition) on September 29, 2014,

alleging the parents used drugs in the presence of the child, parented while under the

influence of drugs, physically neglected N.P.-S., and failed to provide for the child’s basic

needs. On October 3, 2014, the Department amended its Petition, seeking a ruling under

§ 41-3-423(2)(a) and (e), MCA, that the Department was not required to provide

reunification services for Father and termination of Father’s parental rights. DPHHS noted

that Father previously had his rights to another child involuntarily terminated based upon

abandonment.




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¶4     Father subsequently stipulated to emergency protective services but contested the

remainder of the Petition. During a December 2014 hearing, the District Court queried

whether terminating Father’s rights would be in N.P.-S.’s best interests if Mother’s rights

were not terminated. The court reflected on the potential benefit of Father being required

to continue financial support of the child if Mother retained custody. DPHHS conceded

and agreed to continue pursuing reasonable efforts to reunify the child with Father. The

District Court adjudicated N.P.-S. a youth in need of care and the Department was granted

temporary legal custody.

¶5     The Department prepared a treatment plan for Father that the court approved in

January 2015. Under the plan Father was required, among other things, to complete a

chemical dependency (CD) evaluation, comply with treatment recommendations, maintain

sobriety, submit to drug/alcohol screening, complete a psychological evaluation, maintain

weekly contact with the Department, establish a safe residence, and have consistent and

appropriate visitation with the child.

¶6     In January 2016, the Department moved to terminate Father’s rights based, in part,

on Father’s previous termination and current abandonment of N.P.-S. DPHHS also

asserted that Father failed to complete his treatment plan and that he had not, among other

things, (1) completed a CD evaluation, (2) established his sobriety, (3) maintained

consistent housing, or (4) maintained contact with the Department. Significantly, the

Department noted that Father had left Montana and had no contact with N.P.-S. between

May 2015 and April 2016 and his visitation with the child when he was in Montana was

inconsistent and sporadic.

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¶7       In April 2016, the District Court conducted the first day of termination hearings for

both Mother and Father. However, Mother’s counsel was ill and the court agreed to

bifurcate the hearings. It heard evidence pertaining to Father exclusively; particularly to

Father’s non-compliance with his treatment plan. At the close of the day’s hearing, the

District Court informed the parties that it was not going to decide on termination of Father’s

rights until after Mother’s termination hearing was conducted.

¶8       The first day of Mother’s termination hearing was held on May 16, 2016. Near the

end of the hearing, Father’s counsel, acknowledging that Father’s case had “been fully

heard by the [c]ourt,” requested that she be excused from attending the remainder of

Mother’s proceeding. The District Court granted the attorney’s request and reminded both

Father and the Department that their obligations remained in effect because there had been

no ruling regarding Father’s termination. The District Court also stated that it was not

“reopening the evidence” as it pertained to Father. The court posited that in the event

Mother’s rights were not terminated, it would be financially beneficial to N.P.-S. that

Father’s rights not be terminated and he remain obligated to financially contribute to her

needs.

¶9       The second day of Mother’s hearing was held on July 6, 2016. During the hearing,

Father’s counsel attempted to introduce evidence of Father’s treatment plan compliances

between his April hearing and Mother’s July hearing. The District Court stated that it

would not consider Father’s post-hearing actions in its decision on termination. Father’s

counsel did not object to the court’s evidentiary ruling.



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¶10    The District Court terminated both Mother’s and Father’s parental rights to N.P.-S.

on July 6, 2016. Father’s termination was based upon his failure to complete or comply

with his treatment plan. The District Court further found that the conduct or condition

rendering Father unfit was unlikely to change within a reasonable time. Father appeals.

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

In re J.W., 2013 MT 201, ¶ 25, 371 Mont. 98, 307 P.3d 274. A district court abuses its

discretion when it acts “arbitrarily, without employment of conscientious judgment or in

excess of the bounds of reason, resulting in substantial injustice.” In re M.J., 2013 MT 60,

¶ 17, 369 Mont. 247, 296 P.3d 1197. We review a district court’s factual findings for clear

error. In re A.K., 2015 MT 116, ¶ 20, 379 Mont. 41, 347 P.3d 711. We review a district

court’s application of law for correctness. In re K.B., 2013 MT 133, ¶ 18, 370 Mont. 254,

301 P.3d 836.

¶12    Father argues on appeal that the District Court’s refusal to consider his continued

efforts on his treatment plan following his April 2016 hearing rendered the termination

proceedings fundamentally unfair, in violation of his due process rights, and constituted an

abuse of the court’s discretion. Father argues that his objection to the District Court’s

bifurcation of the hearing preserved his fairness/due process argument on appeal. He

argues alternatively that we should review the constitutionality of his termination

proceeding under the plain error doctrine.

¶13    Neither Father’s general objection to bifurcation of the proceedings nor his claim

that preservation/reunification attempts continued after his April 25 hearing preserved a

due process argument on appeal. Moreover, at Mother’s May hearing, the District Court

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informed Father that the court did not intend to reopen the evidence portion of Father’s

proceeding. Consequently, Father was on notice that his proceeding was complete. We

conclude Father failed to preserve his due process claim.

¶14    However, as Father argues, this Court has the discretionary authority to find plain

error even when a party made no objection or requested no relief at trial. State v. Griffin,

2016 MT 231, ¶ 6, 385 Mont. 1, 386 P.3d 559. The decision to invoke plain error review

is discretionary and invoked sparingly where failing to do so may: (1) result in a manifest

miscarriage of justice, (2) leave unsettled the question of the fundamental fairness of the

trial, or (3) compromise the integrity of the judicial process. Our precedent requires that

the alleged error firmly convince the Court that there was a serious mistake that must be

addressed. In re H.T., 2015 MT 41, ¶ 14, 378 Mont. 206, 343 P.3d 159; In re J.S.W., 2013

MT 34, ¶¶ 15-16, 369 Mont. 12, 303 P.3d 741.

¶15    Here, the District Court carefully considered the best interests of N.P.-S and

correctly determined that Father had failed to successfully complete or comply with a

court-ordered treatment plan and that the condition or conduct of Father rendering him

unfit was unlikely to change within a reasonable time.

¶16    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 the

Court, the District Court’s findings of fact are not clearly erroneous. Its interpretation and

application of the law are correct and the court’s ruling was not an abuse of discretion.

¶17    We affirm.



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                              /S/ MICHAEL E WHEAT


We Concur:

/S/ JAMES JEREMIAH SHEA
/S/ LAURIE McKINNON
/S/ BETH BAKER
/S/ DIRK M. SANDEFUR




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