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                                                                  No. 98-408



                               IN THE SUPREME COURT OF THE STATE OF MONTANA



                                                                1999 MT 131

                                                               294 Mont. 494

                                                               982 P.2d 1011




IN THE MATTER OF J.F. and C.F.,

Youths in Need of Care.




APPEAL FROM: District Court of the Third Judicial District,

In and for the County of Deer Lodge,

The Honorable Ted L. Mizner, Judge presiding.




COUNSEL OF RECORD:




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For Appellant:



Michael D. McLean; Knight, Dahood, McLean & Everett,

Anaconda, Montana



For Respondent:



Hon. Joseph P. Mazurek, Attorney General, Carol Schmidt, Ass't

Attorney General, Helena, Montana



Michael B. Grayson, Deer Lodge County Attorney; Joan S. Gonzales,

Deputy Deer Lodge County Attorney, Deer Lodge, Montana



Attorney for Youths:



Sherry P. Staedler, Attorney at Law, Anaconda, Montana




                                                                                                   Submitted on Briefs: March 25, 1999



                                                                                                                     Decided: June 14, 1999

Filed:


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__________________________________________

Clerk




Justice W. William Leaphart delivered the Opinion of the Court.




¶1. Robert Ford (Ford) appeals from the order of the Third Judicial District Court,
Deer Lodge County, terminating his parental rights with regard to his two minor
children, J.F. and C.F., and awarding permanent legal custody with the right to
consent to adoption to the Department of Public Health and Human Services
(DPHHS).

¶2.   We reverse and remand for further proceedings.

¶3. We address the following issue:

¶4. Whether the District Court erred in finding that a treatment plan was
impractical.

                                                         Standard of Review

¶5. In reviewing a district court's decision to terminate parental rights, we determine
whether the court interpreted the law correctly and whether its findings of fact are
clearly erroneous. In re E.W., 1998 MT 135, ¶ 9, 289 Mont. 190, ¶ 9, 959 P.2d 951, ¶ 9
(citation omitted). In termination of parental rights cases that involve youths in need
of care, we review purely factual findings under the clearly erroneous standard set
forth in Interstate Production Credit v. DeSaye (1991), 250 Mont. 320, 323, 820 P.2d
1285, 1287. In re E.W., ¶ 10. Because a natural parent's right to the custody and care
of a child is a fundamental liberty interest, we determine whether a district court has
adequately addressed each applicable statutory requirement before terminating an

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individual's parental rights. See Matter of R.B. (1985), 217 Mont. 99, 103, 703 P.2d
846, 848 (citation omitted). Finally, we presume that a district court's decision is
correct and we will not disturb it on appeal unless the court has made a mistake of
law or a finding of fact that is not supported by substantial evidence "that would
amount to a clear abuse of discretion." In re E.W., ¶14 (citations omitted).

                                            Factual and Procedural Background

¶6. In June, 1997 Ford was arrested on federal gun charges; he was eventually
sentenced to twenty months in federal custody with credit for time served and
placement at a federal facility in Rochester, Minnesota because of his AIDS-related
physical impairments. The day after Ford's arrest, DPHHS removed his children
from his home and placed them in foster care. DPHHS investigated the Ford home
and the condition of the children, J.F. and C.F., who at the time of their removal
were one and one-half years and eight months old, respectively, and petitioned the
District Court for temporary investigative authority and protective services for J.F.
and C.F.

¶7.A show-cause hearing was held late in June, 1997. The District Court granted the
petition for temporary investigative authority, finding that the children were abused,
neglected or dependent or in danger of becoming abused, neglected or dependent. In
September, 1997 DPHHS petitioned the District Court for temporary legal custody of
J.F. and C.F. Sheryl Driver (Driver), a social worker with DPHHS, requested that
the District Court waive a treatment plan for Ford because of his "unstable" health
and the length of his incarceration, which Driver said would limit his available
parenting time with his children. In October, 1997 the District Court granted
temporary custody of the children to DPHHS for six months, waiving a treatment
plan for Ford but ordering a plan for his wife, Lahoma. In December, 1997 Lahoma
Ford waived her parental rights to J.F. and C.F., and her parental rights were
subsequently terminated. In April, 1998 DPHHS petitioned the District Court for
permanent legal custody of J.F. and C.F. and termination of Ford's parental rights.

¶8. A termination hearing was held in June, 1998. Ford participated in the hearing
by telephone. In its findings of fact, conclusions of law and order, the District Court
concluded that J.F. and C.F. were Youths in Need of Care under § 41-3-102, MCA.
The District Court further concluded that it had properly waived the treatment plan
for Ford pursuant to § 41-3-609(4)(b), MCA. The District Court found that a


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treatment plan was not practical "considering the length of [Ford's] incarceration,
his lack of interest in cooperating with the Department, and the distance between
Anaconda, MT and Rochester, Minnesota." The District Court noted that Ford had
refused to release information regarding his medical condition. The District Court
terminated Ford's parental relationship with J.F. and C.F. and awarded permanent
legal custody of the children, with the right to consent to adoption, to DPHHS.

                                                                Discussion

¶9. Ford contends that the District Court erred in finding that a treatment plan was
impractical. Ford argues that DPHHS never discussed the implementation of a
treatment plan with him. Citing Matter of W.Z. (1997), 285 Mont. 16, 946 P.2d 125
and Matter of C.L.R. (1984), 211 Mont. 381, 685 P.2d 926, Ford argues that this
Court has warned that implementation plans must be attempted before they are
dismissed as impractical. Therefore, DPHHS should have discussed the possible
implementation of a treatment plan with Ford.

¶10. The State responds that the District Court did not err in finding that a
treatment plan was impractical and that "impractical" under § 41-3-609(4)(b),
MCA, does not mean that a treatment plan is "impossible" but rather that it is not
wise. The State argues that a treatment plan for Ford was impractical because of the
distance between J.F. and C.F. and the Rochester medical facility where Ford was
held, his refusal to cooperate with DPHHS, in particular his refusal to release his
medical records, and his children's need for stability and permanency. The State
argues further that Matter of W.Z. does not apply in the present case because in
Matter of W.Z. DPHHS apparently did not attempt to create or implement a
treatment plan, whereas Ford refused to cooperate and allow an implementation
plan to proceed.

¶11. Section 41-3-609, MCA, sets forth the criteria for termination of parental rights:

(1) The court may order a termination of the parent-child legal relationship upon a finding
that any of the following circumstances exist:

...

(e) the child is an adjudicated youth in need of care and both of the following exist:


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(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[.]



Section 41-3-609, MCA. However, § 41-3-609, MCA, provides an exception to the
requirement of a treatment plan:

(4) A treatment plan is not required under this part upon a finding by the court following
hearing if:

...

(b) the parent is incarcerated for more than 1 year and a treatment plan is not practical
considering the incarceration[.]



Section 41-3-609(4) and (4)(b), MCA.

¶12. In the present case, the District Court terminated Ford's parental rights after
finding that Ford had refused to cooperate with DPHHS. The District Court
specifically found that when a social worker contacted Ford at the Rochester medical
facility, Ford "refused to release information concerning his medical conditions,
namely H.I.V., 2nd stage, and tuberculosis." Thus, Ford's refusal to disclose his
medical records played an important role in the District Court's determination that a
treatment plan was impractical.

¶13. Although the record establishes that Driver asked Ford to release his medical
records, the record also shows that Driver neither told Ford that he had to release his
medical records in order to participate in a treatment plan nor discussed with him
the possibility of implementing a treatment plan. Further, the record establishes that
but for Ford's refusal to release his medical records, DPHHS was prepared to
explore the feasibility of a treatment plan. At the June, 1998 hearing, Driver was
asked about her contact with Ford:


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Q. Did you ever discuss the implementation of a treatment plan with Robert Ford?



A. I never had the chance to do that because I didn't have any evaluations.

Q. So you didn't discuss it with him, did you?



A. It was not appropriate.



Q. Nobody from the Department of Public Health and Human Services ever discussed
with Robert Ford the implementation of a parenting plan, did they?



A. A treatment plan, no there was never any discussion with it because we had no
evaluations to write one from.

Driver did not testify that she told Ford that there could be no evaluation or treatment plan
unless he released his medical records.

¶14. In Matter of W.Z., a treatment plan was also never discussed. The Court in
Matter of W.Z. determined that "[i]t is apparent from the record that neither DFS
nor the social worker involved in the case ever presented the father with a proposed
treatment plan, or even discussed with him the possibility of implementing one." Matter
of W.Z., 285 Mont. at 29, 946 P.2d at 133 (emphasis added). The Court concluded
that the district court erred in finding that a treatment plan was impractical.

¶15. In light of our decision in Matter of W.Z., we hold that the impracticality
provision of § 41-3-609(4)(b), MCA, requires at a minimum that DPHHS discuss the
possibility of implementing a treatment plan with a parent. Thus, a parent's lack of
cooperation in disclosing information is not a sufficient ground by itself to conclude
that a treatment plan is impractical unless the parent has been clearly informed that
his or her cooperation is necessary. We have previously recognized that a natural
parent's "right to care and custody of a child is a fundamental liberty interest, which


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must be protected by fundamentally fair procedures." Matter of R.B., 217 Mont. at 103,
703 P.2d at 848 (emphasis added).

¶16. Because no one discussed with Ford the possibility of implementing a treatment
plan or advised him that his cooperation was necessary for him to participate in a
plan, we hold that the District Court erred in finding that a treatment plan was
impractical. The order of the District Court terminating Ford's parental rights is
therefore reversed and this case is remanded for further proceedings consistent with
this opinion.



/S/ W. WILLIAM LEAPHART



We concur:



/S/ WILLIAM E. HUNT, SR.

/S/ JAMES C. NELSON

/S/ TERRY N. TRIEWEILER



Chief Justice J. A. Turnage dissenting.



¶17 In reversing the District Court's finding that a treatment plan for Ford was impractical,
the Court relies on Matter of W.Z. (1997), 285 Mont. 16, 946 P.2d 125, in which we held
that "the Court will not permit the termination of parental rights without first establishing
a treatment plan unless a showing of facts clearly proves the impossibility of any workable
plan." Because I believe the facts in this case are distinguishable from those presented in
Matter of W.Z., I respectfully dissent.

¶18 Unlike the social worker in W.Z., the social worker in this case did contact Ford to

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request the release of his medical records so that evaluations and recommendations could
be performed from which a treatment plan could be formulated. Ford, however, remained
consistent in his refusal to cooperate with DPHHS and declined to release his medical
records, leaving DPHHS with no resources from which to generate a treatment plan suited
to Ford's particular needs. Moreover, the Court's conclusion that "Ford's refusal to disclose
his medical records played an important role in the District Court's determination that a
treatment plan was impractical" overlooks additional facts which distinguish this case
from Matter of W.Z.

¶19 For instance, in its Findings of Fact, Conclusions of Law and Order, the District Court
noted that Ford's incarceration was at a considerable distance from the location of his
children in Montana. Once a treatment plan has been implemented and it appears that the
plan will be successful, a process of reunification is required in which visitations between
parent and child are slowly increased over a period of time. In Ford's case, execution of
the reunification process was made impractical by the financial and logistical difficulties
of transporting Ford's children to Minnesota on an increasingly regular basis.

¶20 Reunification was further hampered by Ford's incarceration because of the length of
separation it had already caused between Ford and his family. By the time reunification
could reasonably occur, the children would have been out of the home longer than they
ever lived in the home. This would have made reestablishing the relationships between
parent and child more difficult and would have required a longer period of reunification
before the children could again be placed with Ford.

¶21 Ford's incarceration in Minnesota also made a treatment plan impractical insofar as
DPHHS was limited in its ability to monitor his attendance at the programs recommended
for him and to perform periodic evaluations of the success of the treatment plan.
Additionally, the record in this case shows that any treatment plan designed for Ford
would have required the performance of a number of tasks, such as establishing a home
for the children and demonstrating an ability to manage the daily care of the children and
provide for their welfare. Ford's own testimony at the hearing indicated that the
completion of some or all of these tasks would have been rendered impractical during the
term of his incarceration.

¶22 Because I believe there is substantial credible evidence in the record to support the
findings of the District Court, I would hold that the District Court did not err in waiving
the implementation of a treatment plan and terminating Ford's parental rights in J.F. and C.


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F.

/S/ J. A. TURNAGE




Justice Karla M. Gray and Justice Jim Regnier dissenting.



¶23 We concur in the foregoing dissent of Chief Justice Turnage.



/S/ JIM REGNIER

/S/ KARLA M. GRAY




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