                                                                                          March 13 2012


                                      DA 11-0588

                IN THE SUPREME COURT OF THE STATE OF MONTANA

                                     2012 MT 65N



IN THE MATTER OF:

A.H.,

         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-09-055
                  Honorable G. Todd Baugh, Presiding Judge


COUNSEL OF RECORD:

           For Appellant:

                  Elizabeth Thomas, Attorney at Law, Missoula, Montana

           For Appellee:

                  Steve Bullock, Montana Attorney General, Micheal S. Wellenstein,
                  Assistant Attorney General, Helena, Montana

                  Scott J. Pederson, Assistant Attorney General, Child Protection Unit,
                  Billings, Montana

           For Youth Appellee:

                  Judy A. Williams, Goodrich Law Firm, P.C., Billings, Montana



                                                Submitted on Briefs: February 22, 2012

                                                           Decided: March 13, 2012


Filed:

                  __________________________________________
                                    Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(d), 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.

                 FACTUAL AND PROCEDURAL BACKGROUND

¶2     T.M. is A.H.’s biological mother and J.H. is her biological father. On August 9,

2009, T.M. and J.H. were under the influence of drugs and alcohol when four-year-old

A.H. was discovered unattended. On August 10, 2009, the Department of Health and

Human Services, Child and Family Services Division (Department or Child Services)

removed A.H. from her parents’ home based upon allegations of physical neglect. The

Department subsequently obtained temporary legal custody of the child.           A.H. was

adjudicated a youth in need of care. The parents were appointed counsel and a guardian

ad litem (GAL) was appointed for A.H.

¶3     In January 2010, due to the parents’ chemical dependency issues, the case was

transferred to the Drug Treatment Court Program (Drug Program). Both parents were

inducted into the program. Treatment plans were developed and approved for T.M. and

J.H.   In May 2010, the District Court extended temporary legal custody to the

Department. In August 2010, the Department moved for a permanency hearing stating

that family reunification remained the goal. The parents stipulated to the permanency

plan; therefore, no permanency hearing was held. In October 2010, the case was moved

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from Drug Court back to the District Court. In November 2010, the Department moved

for permanent legal custody of A.H. and termination of both parents’ rights, claiming the

parents’ treatment plans had been unsuccessful and the conditions preventing the parents

from providing adequate parental care to A.H. remained. The District Court held a

three-day hearing in July 2011. Also in July 2011, J.H. voluntarily relinquished his

parental rights to A.H. upon condition that T.M.’s rights were terminated. In September

2011, the District Court terminated T.M.’s parental rights. She appeals. We affirm.

                                           ISSUE

¶4     Did the District Court abuse its discretion in terminating T.M.’s parental rights?

                               STANDARD OF REVIEW

¶5     We review a district court’s termination of parental rights for an abuse of

discretion. In re J.W.C., 2011 MT 312, ¶ 15, 363 Mont. 85, 265 P.3d 1265. Section

41-3-609(1)(f)(i), MCA, authorizes a district court to terminate a parent’s rights if it finds

by clear and convincing evidence that the child has been adjudicated a youth in need of

care, an appropriate treatment plan has not been complied with or has been unsuccessful,

and the conduct or condition rendering the parent unfit is unlikely to change within a

reasonable time. The court must also consider the best interest of the child. In re Matter

of E.K., 2001 MT 279, ¶ 56, 307 Mont. 328, 37 P.3d 690.

                                      DISCUSSION

¶6     A.H. has been outside of her mother’s care since August 2009. During this time,

T.M. has been in the Drug Court program, Intensive Outpatient treatment, and various

therapeutic treatment programs. She was expelled from some programs for lack of

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cooperation and progress. She has also been incarcerated. At the time of the hearing in

July 2011, T.M. was incarcerated at Passages, a community correctional program.

¶7     Meanwhile, A.H. was first placed with an aunt and then into non-family foster

care upon allegations of abuse to A.H. by another child in the aunt’s house. After foster

care, A.H. was placed with her maternal grandfather and his wife where, at the time of

the hearing, she had been residing for approximately seven months. A.H.’s grandfather

and step-grandmother have agreed to adopt A.H. in the event T.M.’s parental rights are

terminated. A.H.’s counselors acknowledge that while A.H. is very bonded with her

mother, she is doing very well in the care of her grandparents.

¶8     At the July 2011 hearing, the District Court heard testimony from numerous

specialists who have worked with T.M. during the past two years, including two

addiction counselors, her probation and parole officer, a visitation specialist with Family

Support Network, and a child protection specialist with the Department. T.M. and her

father also testified. During the three-day hearing, the District Court heard conflicting

testimony from witnesses.

¶9     Some witnesses testified that the first year and a half of T.M.’s treatment was

riddled with numerous setbacks and failures. In addition to being diagnosed with serious

mental illness, she was frequently angry, disruptive and uncooperative during therapy

sessions. As a result she was expelled from some programs. However, both she and her

Passages’ addiction counselor testified that her progress improved once she entered

Passages in January 2011. She was six months into the Passages program at the time of

the hearing.

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¶10   We have repeatedly held that when presented with conflicting evidence it is the

district court’s role to weigh and resolve such conflicts and to judge the credibility of

witnesses. Grice v. Price (In re A.P.P.), 2011 MT 50, ¶ 11, 359 Mont. 386, 251 P.3d 127

(citations omitted). Here, the District Court was fully engaged in the hearing, asking

relevant questions of various witnesses.    We must presume that the court carefully

weighed the conflicting evidence in reaching its decision. Ultimately, the court found

that T.M. had not satisfied numerous requirements of her court-approved treatment plan

and that the condition rendering her unable to safely parent her child was not likely to

change in a reasonable time. Furthermore, based upon testimony that A.H. needed

permanence and stability and should not have to wait another year or longer to see how

T.M.’s treatment progressed, the court concluded that termination of T.M.’s parental

rights was in A.H.’s best interest. These findings are supported by the evidence and the

conclusions based upon them are correct.

¶11   We also note, as did the District Court during the hearing, that termination of

T.M.’s rights does not mean that she cannot have an ongoing relationship with A.H.,

providing she remains drug and alcohol-free. T.M.’s father testified that once T.M.

completed treatment she would be allowed generous visitation and participation in A.H.’s

life. He stated however that as A.H.’s adopted parent, he would protect A.H. and deny

T.M. access to the child should T.M.’s mental health diminish or she relapses into

substance abuse.    This arrangement should provide T.M. with strong incentive to

continue the healing process she appears to have started in Passages.         While we

appreciate the positive strides T.M. may have made since she began treatment at

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Passages, we cannot say the District Court abused its discretion in terminating T.M.’s

parental rights based upon the reasons set forth above.

¶12    We have determined to decide this case pursuant to Section I, Paragraph 3(d) of

our Internal Operating Rules, which provides for noncitable memorandum opinions. The

District Court’s findings of fact are supported by substantial evidence and the legal issues

are controlled by settled Montana law, which the District Court correctly interpreted.

Furthermore, there was no abuse of discretion.

¶13    We affirm.


                                                 /S/ PATRICIA COTTER


We concur:


/S/ MIKE McGRATH
/S/ MICHAEL E WHEAT
/S/ BETH BAKER
/S/ BRIAN MORRIS




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