                                                                                    October 15 2009




                                     DA 09-0202

           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                    2009 MT 339N




IN THE MATTER OF B.P. and B.P.,

          Youths in Need of Care.




APPEAL FROM:      District Court of the Twenty-First Judicial District,
                  In and For the County of Ravalli, Cause Nos. DN-07-04; DN-07-05
                  Honorable Jeffrey H. Langton, Presiding Judge


COUNSEL OF RECORD:

           For Appellant:

                  Elizabeth Thomas, Attorney at Law, Missoula, Montana

           For Appellee:

                  Hon. Steve Bullock, Montana Attorney General; Tammy Plubell,
                  Assistant Attorney General, Helena, Montana; Helena, Montana



                                             Submitted on Briefs: September 16, 2009

                                                        Decided: October 15, 2009


Filed:

                  __________________________________________
                                    Clerk
Chief Justice Mike McGrath 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        Birth father M.P. appeals from an order of the Twenty-First Judicial District

Court, Ravalli County, terminating parental rights to his children, B.P. and B.P. We

affirm.

¶3        M.P. raises the following issues on appeal:

¶4        Whether the District Court abused its discretion when it denied M.P.’s motion to

continue the termination hearing.

¶5        Whether the District Court erred in terminating M.P.’s parental rights to his

children B.P. and B.P.

¶6        M.P. and B.R. are the birth parents of B.P. (age 12) and B.P. (age 11). In 2006,

B.R. moved from Illinois, where M.P. still resided, to Montana with her boyfriend D.S.

B.R. and D.S. had a volatile relationship resulting in repeated referrals to the Department

of Public Health and Human Services (DPHHS) concerning domestic violence in the

home. On March 31, 2007, law enforcement officers responded to a report of domestic

violence at B.R.’s home and arrested D.S. for assaulting B.R. in the presence of the

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children. When B.R. resumed contact with D.S. and developed a plan to flee with him

and the children, DPHHS placed the children in foster care and filed a petition for

emergency placement and temporary legal custody.

¶7     M.P. signed a written stipulation that B.P. and B.P. were youths in need of care on

July 21, 2007. DPHHS developed a treatment plan for M.P., which he signed. The court

adjudicated B.P. and B.P. as youths in need of care on August 1, 2007, and granted

DPHHS temporary legal custody of the children. The court approved M.P.’s treatment

plan on September 12, 2007. DPHHS requested and received an extension of temporary

legal custody after six months, because neither parent had successfully completed their

treatment plan. At that time, M.P. had completed a chemical dependency evaluation, but

DPHHS had not received a copy, despite repeated requests from M.P.’s assigned social

worker, Rhonda Harris (Harris). Further, M.P. had not complied with random urinalysis

testing and had failed to keep in contact with Harris.       M.P. had not completed a

psychological evaluation or an age-appropriate parenting class, and his telephone

visitation with his children had been sporadic.       Significantly, M.P. had made no

arrangements to visit his children in person and had not contacted Harris to inquire about

his children’s welfare.

¶8     On September 25, 2008, a year after the treatment plan was adopted, DPHHS filed

a petition to terminate parental rights. The court originally scheduled the termination

hearing for January 8, 2009. On January 7, 2009, M.P.’s counsel filed a motion to

continue the hearing because M.P. had not been personally served and because M.P. was

incarcerated in Illinois until March 7, 2009. The District Court granted M.P.’s request to

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continue the hearing, resetting the hearing for February 20, 2009. At the beginning of the

hearing on February 20, 2009, M.P.’s counsel orally moved to continue the hearing,

citing M.P.’s due process right to be able to participate in the hearing. DPHHS objected

to the last-minute continuance because the State of Illinois Department of Corrections

website projected M.P.’s parole date as September 5, 2009. The children’s attorney

objected to the continuance based upon the needs of the children. The District Court

established that M.P. and his counsel still had regular communication about the case

despite M.P.’s incarceration, and concluded that M.P.’s counsel should be able “to

effectively cross-examine and present [M.P.’s] point of view even though he’s not

physically present here.” The court denied the oral motion to postpone the hearing.

¶9    At the termination hearing, Harris testified about her repeated efforts to provide

assistance to M.P. and his continuous lack of cooperation. Amber Francis (Francis)

testified at the termination hearing regarding her interstate compact home study of M.P.’s

Illinois residence to determine if he was an appropriate placement option for the children.

Francis interviewed M.P. on April 15, 2008. M.P. stated that he had been arrested once

for failure to pay child support and that he did not drink alcohol. Francis attempted

unsuccessfully to follow up with M.P., who did not return her calls. Francis determined

through a records check that M.P. had prior convictions for assault and invasion of

privacy, and that M.P. was arrested on May 6, 2008, for driving under the influence

(DUI). In light of M.P.’s dishonesty about his past criminal record and his use of alcohol,

Francis did not approve M.P. as an appropriate placement option for the children.



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¶10    Anna Marie White (White) testified as a family support worker that supervised

telephone conversations between M.P. and the children. White testified that it took some

effort to even make initial contact with M.P. and that she believed that M.P. was not

always truthful with her or DPHHS.           White recounted how M.P. communicated

inappropriate information to the children, needed to be redirected during phone

conversations, failed to act on her constructive suggestions, and did not demonstrate any

interest in learning better parenting skills. Julie Telfer (Telfer), the children’s therapist,

testified similarly regarding a supervised visit between M.P. and the children when he

came to Montana on one occasion during the youth in need of care proceeding.

¶11    The District Court terminated M.P.’s parental rights to B.P. and B.P. on March 4,

2009, following the hearing.

¶12    Whether the District Court abused its discretion when it denied M.P.’s motion to

continue the termination hearing.

¶13    The decision to grant a continuance is within the discretion of the district court.

Section 25-4-503, MCA. A district court’s decision on whether to grant a continuance in

an abuse and neglect action is a matter of discretion. The court should consider whether

the movant has shown good cause and whether the continuance would be in the

furtherance of justice. In re H.E., 2002 MT 257, ¶ 25, 312 Mont. 182, 59 P.3d 29.

¶14    Montana law provides that when children have been in foster care for 15 months

of the last 22 months, the children’s best interests are presumed to be served by

termination of parental rights. Section 41-3-604(1), MCA. This Court has concluded

that a district court did not abuse its discretion when it denied a mother’s motion to

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continue a termination hearing, made on the day of the hearing, because granting such a

continuance would not have been in the furtherance of justice. In re H.E., ¶¶ 29-30. B.P.

and B.P. had spent nearly 19 months in foster care at the time of the termination hearing.

Their therapist, Telfer, testified at the hearing that further delay would be harmful. The

District Court granted M.P.’s initial request for a continuation of the January 8, 2009,

hearing and rescheduled the hearing for about six weeks later. Yet M.P. never filed a

second motion to continue, nor did he alert the court of any problem until the actual day

of the hearing. The only reason M.P. gave for again postponing the hearing was that it

would be difficult, if not impossible, for him to attend the hearing since he was

incarcerated in Illinois. M.P. never disclosed what efforts, if any, he had made to try to

attend the hearing or to participate from Illinois via remote access technology. The

District Court did not abuse its discretion when it denied M.P.’s untimely motion to

continue the termination hearing.

¶15   Whether the District Court erred in terminating M.P.’s parental rights to his

children B.P. and B.P.

¶16   This Court reviews a district court’s decision to terminate parental rights for abuse

of discretion. In re D.B. and D.B., 2007 MT 246, ¶ 16, 339 Mont. 240, 168 P.3d 691.

We review findings of fact to determine whether they are clearly erroneous and

conclusions of law to determine whether they are correct. In re D.B., ¶ 18.

¶17   Montana law provides that a court may terminate a parent’s rights upon clear and

convincing evidence that (1) the child has been adjudicated a youth in need of care, (2) an

appropriate court-approved treatment plan has not been complied with or has not been

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successful, and (3) the conduct or condition rendering the parents unfit is unlikely to

change within a reasonable time. Section 41-3-609(1)(f), MCA. M.P. signed a written

stipulation that B.P. and B.P. were youths in need of care on July 21, 2007, which the

court accepted when it adjudicated B.P. and B.P. as youths in need of care on August 1,

2007. The court approved an appropriate treatment plan for M.P. on September 12, 2007.

The District Court made specific findings that an appropriate treatment plan was not

successful in its March 4, 2009, findings of fact, conclusions of law, and order

terminating parental rights. Finally, the District Court concluded that M.P.’s conduct was

unlikely to change within a reasonable time, as evidenced by ongoing legal problems

stemming from his alcohol use and his inability to appropriately parent his children.

Thus, the District Court did not abuse its discretion in terminating M.P.’s parental rights

pursuant to § 41-3-609(1)(f), MCA.

¶18    M.P. argues that the District Court erroneously terminated his parental rights,

because the State failed to make reasonable efforts to reunify M.P. with his children, as

required by § 41-3-423, MCA, and because the court’s findings of fact regarding M.P.’s

compliance with his treatment plan were not sufficiently supported by the record.

¶19    Section 41-3-423(1), MCA, requires DPHHS to make reasonable efforts “to

reunify families that have been separated by the state.” The statute lists some reasonable

efforts, such as the development of a written plan specifying state efforts to reunify

families and the provision of services pursuant to the plan, as well as periodic reviews to

ensure timely progress. Section 41-3-423(1), MCA. The statute emphasizes that the



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child’s health and safety are of paramount concern in this process. Section 41-3-423(1),

MCA.

¶20    DPHHS made reasonable efforts to reunite M.P. with his children.          DPHHS

developed an appropriate treatment plan for M.P., which M.P. signed and agreed to

complete. DPHHS also arranged and paid for services M.P. needed to complete under

the plan or provided necessary information regarding such services, and attempted to

facilitate contact between M.P. and the children.

¶21    M.P.’s own efforts at reunification were limited at best. DPHHS provided him

with the opportunity to have regular telephone visits with his children through White.

However, M.P. only availed himself of this opportunity sporadically, and seemingly

ignored White’s constructive suggestions for improving the quality of contact between

M.P. and his children. According to White, M.P. showed no interest in using her as a

resource to better his parenting skills. Similarly, DPHHS engaged Telfer to provide

psychotherapy for the children.     Telfer supervised one visit between M.P. and the

children, at which M.P. did not act appropriately as a parent. M.P. did not contact Telfer

again to check on his children’s progress. All of these varied actions demonstrate that

DPHHS made reasonable efforts to reunite M.P. with B.P. and B.P., however M.P. failed

to adequately complete his obligations under the treatment plan.

¶22    The District Court’s findings of fact regarding M.P.’s compliance with his

treatment plan and grounds for termination are sufficiently supported by the record. The

District Court heard testimony from Harris, regarding her efforts to facilitate completion

of the treatment plan; Francis, regarding the home study process in Illinois; White,

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regarding her unsuccessful effort to establish regular, healthy contact between M.P. and

his children; and Telfer, regarding the children’s emotional state and immediate needs, as

well as her contact with M.P. during the one visit she supervised between M.P. and the

children. Moreover, M.P. was serving time in Illinois for aggravated DUI and did not

openly and honestly complete his chemical dependency evaluation. M.P. failed to follow

through with urinalysis testing and failed to complete a psychological evaluation even

though Harris had given him sufficient opportunities to do so. M.P. failed to keep Harris

informed of his whereabouts and even lied to her by reporting that he was in truck driving

school when he was actually in jail. The District Court’s findings were not clearly

erroneous and its conclusions of law were correct.

¶23    We have determined to decide this case pursuant to Section I, 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 that the

appeal is without merit because the issues are ones of judicial discretion and there clearly

was not an abuse of discretion.

¶24    Affirmed.

                                                 /S/ MIKE McGRATH


We concur:

/S/ W. WILLIAM LEAPHART
/S/ PATRICIA O. COTTER
/S/ BRIAN MORRIS
/S/ JIM RICE




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