                                                                                            June 10 2014


                                           DA 13-0672

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2014 MT 155N



IN THE MATTER OF:

D.L.,

         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 12-001
                        Honorable G. Todd Baugh, Presiding Judge


COUNSEL OF RECORD:

                 For Appellant:

                        Meri K. Althauser, Montana Legal Justice, PLLC, Missoula, Montana

                 For Appellee:

                        Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant
                        Attorney General, Helena, Montana

                        Scott Twito, Yellowstone County Attorney, Richard S. Helm, Deputy County
                        Attorney, Billings, Montana



                                                    Submitted on Briefs: May 8, 2014
                                                               Decided: June 10, 2014


Filed:

                        __________________________________________
                                          Clerk
Justice Michael E Wheat 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.

¶2     D.L. was born in 2005. D.L.’s biological father, B.L., did not have contact with D.L.

until a short visit in 2010, and he has not had contact with D.L. since that visit. D.L.’s

biological mother, R.M.B., had custody of D.L. until he was placed in protective care after

an abuse and neglect hearing. On January 13, 2012, the Department of Public Health and

Human Services (DPHHS) filed a petition for emergency protective services, adjudication of

D.L. as a youth in need of care, and temporary legal custody. B.L. was served by publication

because he could not be personally served prior to the hearing. The District Court

adjudicated D.L. to be a youth in need of care and granted temporary legal custody to

DPHHS. DPHHS filed a parenting treatment plan for B.L. and it was approved by the

District Court. DPHHS struggled to locate B.L. and eventually discovered that he had been

incarcerated in Alabama. DPHHS filed and received court approval for an amended

treatment plan to account for B.L.’s incarcerated status.

¶3     DPHHS first received correspondence from B.L. on December 18, 2012. On January

31, 2013, B.L. sent DPHHS his social/medical history form, pursuant to the tasks in his

amended treatment plan. B.L. was released from incarceration on May 30, 2013, but failed

to keep in contact with DPHHS. DPHHS was unable to locate B.L. through his family or by




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contacting the jail where he had been incarcerated. B.L. has not completed any portion of his

treatment plan since his release from prison.

¶4     DPHHS moved to terminate B.L.’s parental rights and a hearing was held on July 8,

2013. Counsel for B.L. appeared at that hearing and explained that he had spoken with B.L.

at the beginning of the case, but that B.L. had not responded to any recent correspondence.

The District Court heard testimony from DPHHS about its efforts to contact B.L. and his

failure to complete the treatment plan. The court granted DPHHS’s motion to terminate

B.L.’s parental rights over D.L.

¶5     We review a termination of parental rights for abuse of discretion. In re D.S.B., 2013

MT 112, ¶ 8, 370 Mont. 37, 300 P.3d 702 (citing In re A.N., 2005 MT 19, ¶ 17, 325 Mont.

379, 106 P.3d 556). We presume that a district court’s decision is correct and we will not

disturb it on appeal unless there is a mistake of law or a finding of fact not supported by

substantial evidence. In re E.K., 2001 MT 279, ¶ 33, 307 Mont. 328, 37 P.3d 690.

¶6     A court may terminate parental rights upon a finding that the child has previously

been adjudicated a youth in need of care, that the parent has not complied with a court-

approved treatment plan, and that the conduct or condition of the parents rendering them

unfit is unlikely to change within a reasonable time. Section 41-3-609(1)(f), MCA. In

evaluating whether the conduct or condition of a parent is unlikely to change, the court must

give primary consideration to the physical, mental and emotional needs of the child.

Section 41-3-609(3), MCA. The State is not excused from attempting to reunite a child with

an incarcerated parent; however, “a parent’s incarceration may limit the remedial and




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rehabilitative services that the State can make available to the parent . . . .” In re D.S.B., ¶ 15

(quotation and citations omitted).

¶7     B.L. argues that DPHHS did not make “reasonable efforts” to repair the parent-child

relationship and that much of its correspondence to him never reached him due to his change

of address and his incarceration. Reasonable efforts may include development of a treatment

plan, provision of services pursuant to a treatment plan, and periodic review of each case to

ensure timely progress. Section 41-3-423(1), MCA. The District Court did not include the

phrase “reasonable efforts” in its order; however, it took notice of the fact that DPHHS had

filed a treatment plan and amended that plan to account for B.L.’s incarceration. The court

heard testimony that, pursuant to the treatment plan, B.L. was eligible for benefits and

services to help him complete the treatment plan, and that DPHHS had attempted to contact

him several times throughout the process. The court also noted that B.L. had “failed to make

even minimal attempts to contact DPHHS or otherwise comply with his [treatment

plan] . . . .” B.L.’s lawyer told the court that he had originally contacted B.L. about the case,

but that B.L. was no longer answering his correspondence. The court heard testimony that

B.L. had been informed of his treatment plan and provided limited replies when asked to

provide information or complete certain tasks in the treatment plan. In the words of the

District Court, “[B.L.] knows the Department’s involved. He’s even contacted them a

couple of times. He’s never, as far as I can tell, had much contact with [his counsel] about

his rights or parenting this child.” The court heard substantial evidence to support the

conclusion that B.L. failed to properly communicate with DPHHS or his attorney and

thereby thwarted any efforts at reunification.


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¶8      Finally, B.L. contends that the District Court erred in determining that he failed to

complete the treatment plan and finding that his condition was unlikely to change within a

reasonable time. B.L.’s argument, however, relies entirely on his assertion that DPHHS did

not take reasonable efforts to reunify B.L. and D.L. We have already determined that the

District Court’s conclusion on that matter was legally correct and supported by substantial

evidence. Therefore, we also affirm the court’s conclusion that B.L. had not completed the

treatment plan and that his condition was unlikely to change within a reasonable time.

¶9      The District Court correctly concluded that “we can’t wait forever to make some final

plan for [D.L.].” The child’s need for a stable home is not subordinate to the timelines of

his parents. In re D.A. and M.A., 2008 MT 247, ¶ 26, 344 Mont. 513, 189 P.3d 631.

Accordingly, D.L.’s need for a permanent home raises a heavy presumption against B.L.’s

plea for continual delays that would result in permanency at some unascertainable future

date.

¶10     For the foregoing reasons, we affirm. The District Court’s decision was supported by

substantial evidence and the legal issues are controlled by settled Montana law, which the

District Court correctly interpreted. We have therefore determined to decide this case

pursuant to Section I, Paragraph 3(d), of our Internal Operating Rules, which provides for

noncitable memorandum opinions.


                                                  /S/ MICHAEL E WHEAT

We Concur:

/S/ JIM RICE
/S/ LAURIE McKINNON


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/S/ PATRICIA COTTER
/S/ BETH BAKER




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