                                                                                        07/26/2016


                                     DA 15-0755
                                                                                    Case Number: DA 15-0755

            IN THE SUPREME COURT OF THE STATE OF MONTANA

                                    2016 MT 182N



IN THE MATTER OF:

A.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. DDN 2013-39
                  Honorable James P. Reynolds, Presiding Judge


COUNSEL OF RECORD:

           For Appellant:

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

           For Appellee:

                  Timothy C. Fox, Montana Attorney General, C. Mark Fowler, Assistant
                  Attorney General, Helena, Montana

                  Leo Gallagher, Lewis and Clark County Attorney, Helena, Montana



                                             Submitted on Briefs: June 29, 2016

                                                        Decided: July 26, 2016


Filed:

                  __________________________________________
                                    Clerk
Justice James Jeremiah Shea 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.R. appeals the findings of fact, conclusions of law, and order of the First Judicial

District Court, Lewis and Clark County, terminating her parental rights to her daughter,

A.S. We address whether the District Court abused its discretion in terminating T.R.’s

parental rights. We affirm.

¶3     On July 22, 2013, T.R. was arrested, incarcerated, and charged with three counts

of child endangerment and two counts of possession of drug paraphernalia. On July 29,

2013, the Department of Health and Human Services, Child and Family Services

Division (Department) filed a petition for emergency protective services, adjudication as

a youth in need of care, temporary investigative authority, and temporary legal custody of

A.S. The attached affidavit, signed by Child Protective Specialist (CPS) Angi Rayfield,

indicated that the Department had “numerous concerns” that T.R. lacked supervision over

A.S. and her two other minor children, M.R. and F.R. These concerns were based on

several reports filed with the Department between March 14, 2013, and T.R.’s arrest on

July 22, 2013. On September 12, 2013, A.S. was adjudicated as a youth in need of care.

On December 12, 2013, the District Court approved T.R.’s treatment plan.




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¶4     After obtaining two extensions of temporary legal custody, on March 4, 2015, the

Department filed a petition to terminate T.R.’s parental rights to A.S. On June 9 and

September 3, 2015, the District Court held a termination hearing, during which it heard

testimony from various social workers with experience working with T.R. and her

children. On November 16, 2015, the District Court granted the Department’s petition to

terminate T.R.’s parental rights to A.S.

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

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

district court’s factual findings for clear error. A.K., ¶ 20. Pursuant to § 41-3-609(1)(f),

MCA, a court may terminate parental rights if it finds, by “clear and convincing

evidence,” that:

       [T]he child is an adjudicated youth in need of care and both of the
       following exist: (i) an appropriate treatment plan that has been approved by
       the court has not been complied with by the parents or has not been
       successful; and (ii) the conduct or condition of the parents rendering them
       unfit is unlikely to change within a reasonable time.

Clear and convincing evidence is “simply a requirement that a preponderance of the

evidence be definite, clear, and convincing, or that a particular issue must be clearly

established by a preponderance of the evidence or by a clear preponderance of proof.”

In re D.B., 2007 MT 246, ¶ 29, 339 Mont. 240, 169 P.3d 691 (citation omitted). “It does

not call for unanswerable or conclusive evidence.” A.K., ¶ 22 (quoting In re J.M.W.E.H.,

1998 MT 18, ¶ 33, 287 Mont. 239, 954 P.2d 26) (internal quotation marks omitted).

¶6     T.R. contends that the District Court abused its discretion in terminating her

parental rights to A.S. because, she alleges, the Department did not demonstrate by clear


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and convincing evidence that the conduct or condition rendering her unfit to parent was

unlikely to change within a reasonable time. We disagree.

¶7        Although multiple witnesses testified that T.R. obviously loved her children and

was trying to improve her parenting, the same witnesses overwhelmingly testified that it

was not in A.S.’s best interests to remain with T.R. For example, CPS Rayfield and CPS

Jeannie Weasel Tail both testified that they believed it was in A.S.’s best interests that

T.R.’s parental rights be terminated. Marilyn Ketchum, a family support worker for

Family Concepts, testified that T.R. had trouble accepting her suggestions and lied to her

on multiple occasions. In the fall of 2014, T.R. informed Ketchum that she would be

unable to attend visitation with her children because she was going out of town to see a

medical specialist. When Ketchum discovered that T.R. never visited a specialist, she

confronted her with this information, and T.R. “went nuclear” in front of M.R. and A.S.

by angrily yelling at Ketchum. In June 2014, T.R. began having unsupervised overnight

visits with A.S. According to Ketchum, these visits stopped when A.S. was returned to

her foster mother with “significant marks and bruising.”        T.R. told Ketchum three

different, conflicting stories to explain the incident, none of which Ketchum was able to

verify.

¶8        While T.R. did comply with numerous aspects of her treatment plan—such as

attending some parenting classes, having supervised visitation with A.S., and completing

a psychological evaluation and a chemical dependency evaluation—multiple witnesses

testified that she still lacked essential parenting skills.   CPS Rayfield, who started

working with the family before A.S. was removed and continued working with them until


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February 2014, testified that T.R. had not learned appropriate and safe boundaries for

herself and her children, one of her treatment plan tasks. Mary Huigen, a family support

specialist with Family Outreach, testified that when A.S. was removed from T.R.’s care

at six months old, she was fifty-percent delayed in her “gross motor, fine motor,

cognitive, language, and social/emotional” abilities, meaning that she was testing at a

three-month-old level. Cheryl Ronish, a licensed clinical social worker, testified that

T.R. did not have the ability to manage a child with special needs.           Although two

witnesses testified that A.S. was no longer delayed, she had been living with a foster

family since the Department removed her from T.R.’s care.

¶9     “A parent’s right to the care and custody of a child is a fundamental liberty interest

which must be protected by fundamentally fair procedures.” A.K., ¶ 20. However, a

child’s best interests take precedence over parental rights, and courts must give primary

consideration to the “physical, mental, and emotional conditions and needs of the child.”

A.K., ¶ 20 (quoting § 41-3-609(3), MCA). Pursuant to § 41-3-604(1), MCA, “[i]f a child

has been in foster care under the physical custody of the state for 15 months of the most

recent 22 months, the best interests of the child must be presumed to be served by

termination of parental rights.” When the Department filed its petition for termination of

T.R.’s parental rights, A.S. was two-and-a-half years old and had been in the

Department’s custody for over two years.

¶10    “[E]vidence of rehabilitation on the part of the parent is germane to the issue of

that parent’s ability to care for his or her child in the future;” however, such evidence

“does not render a district court powerless to find future danger to the child, it is simply


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evidence to be considered by the district court, and is subject to the same standard of

review as any other evidence.” In re J.C., 2003 MT 369, ¶ 16, 319 Mont. 112, 82 P.3d

900 (citations omitted). While T.R. did show some improvement, the majority of the

witnesses who gave an opinion regarding termination of T.R.’s parental rights testified

that it was in A.S.’s best interests for T.R.’s rights to be terminated. Several witnesses

testified that T.R.’s inability to parent A.S. was unlikely to change within a reasonable

time, and that A.S. needed permanency. Ketchum and Rayfield both testified that T.R.

continued to exhibit the same inability to supervise her children that led to the

Department’s initial involvement in the case.

¶11    Clear and convincing evidence supported the District Court’s decision that T.R.’s

court-approved treatment plan had not been successful, and that the conduct or condition

rendering her unfit to parent was unlikely to change within a reasonable time. See

§ 41-3-609(1)(f), MCA. The District Court did not abuse its discretion in terminating

T.R.’s parental rights to A.S.

¶12    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 case presents a question controlled by settled law or by the clear

application of applicable standards of review. The District Court’s findings of fact are

not clearly erroneous, and its ruling was not an abuse of discretion. We affirm.


                                                /S/ JAMES JEREMIAH SHEA




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We Concur:

/S/ LAURIE McKINNON
/S/ PATRICIA COTTER
/S/ BETH BAKER
/S/ JIM RICE




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