                                       No. 02-179

            IN THE SUPREME COURT OF THE STATE OF MONTANA

                                      2002 MT 169


IN THE MATTER OF A.L.,
A.L. and C.L.,

           Youths in Need of Care.




APPEAL FROM:      District Court of the Eighth Judicial District,
                  In and For the County of Cascade,
                  Honorable Kenneth R. Neill, Judge Presiding


COUNSEL OF RECORD:

           For Appellant:

                  Carl B. Jensen, Jr., Public Defender’s Office, Great Falls, Montana

           For Respondent:

                  Honorable Mike McGrath, Attorney General; Mark Mattioli,
                  Assistant Attorney General, Helena, Montana

                  Brant Light, County Attorney; Susan J. Brooke, Deputy County
                  Attorney, Great Falls, Montana

           For Youths:

                  Eric Olson, Public Defender’s Office, Great Falls, Montana



                                                 Submitted on Briefs: July 11, 2002

                                                             Decided: July 30, 2002

Filed:

                  __________________________________________
                                    Clerk
Justice W. William Leaphart delivered the Opinion of the Court.
¶1      Tony   appeals    from    the    Eighth    Judicial       District   Court’s

judgment terminating his parental rights.                 We affirm.
¶2      The following issue is raised on appeal:

¶3      Did the District Court err in terminating Tony’s parental

rights after the State conceded that he could have more time to

complete his treatment plan?

                     FACTUAL AND PROCEDURAL BACKGROUND
¶4      A.F. (mother) and Tony (father) are the natural parents of

A.L., A.L. and C.L.         The termination of A.F.’s parental rights is

not at issue in this appeal.

¶5      The Department of Public Health and Human Services (DPHHS)

petitioned for       temporary legal custody of A.L., A.L. and C.L. in
November 2000.        On February 2, 2001, the District Court declared

the children youths in need of care and granted DPHHS temporary

legal custody.       The parents stipulated to this determination.               The
court also approved and ordered treatment plans for the parents.
¶6      Tony’s treatment plan required him to complete parenting

classes, obtain a chemical dependency evaluation and follow the
recommendations of the evaluation, maintain adequate housing and

means of support, begin mental health counseling and visit and
maintain contact with the children through DPHHS.                     Although the

court approved and ordered Tony’s treatment plan in February 2001,

Tony, who was incarcerated on a drug offense and then released, did

not contact a DPHHS social worker or visit the children until July

2001.


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¶7      On July 26, 2001, pursuant to the parties’ stipulation, the

court extended DPHHS’ temporary legal custody for six months in

order    for   the parents to complete       the   requirements   of   their
treatment plans.     Tony was present at this hearing.       DPHHS social

worker Lori Clark (Clark) testified that Tony had begun parenting

classes, contacted a doctor to conduct a psychological evaluation

and had begun the process to obtain a chemical health evaluation.

He also had moved in with his mother and visited the children.

However, in the month after the hearing, Tony tested positive for
methamphetamine and cocaine and was arrested and incarcerated for

violating the conditions of his release.

¶8      By the time of the court’s review hearing set for January

2002, DPHHS had filed a petition for permanent legal custody and
termination of parental rights.    DPHHS alleged that Tony had failed

to successfully comply with an ordered treatment plan and that his

unfitness was unlikely to change within a reasonable period.
¶9      The District Court held a hearing.    Clark testified that prior

to DPHHS’ involvement in this case, Tony’s parental rights were
terminated with respect to another child due to parental neglect

stemming from his substance abuse issues.           She stated that while

Tony had made some progress toward completing his treatment plan in
the two months he was released from jail, he violated his bail

conditions by using drugs and alcohol.       She stated that he did well
with his children at visits and that his interaction with them was

appropriate and that she      generally liked Tony.       Clark testified

that if he was sober and not incarcerated, he would be a proper



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placement    for the children.         However,     due    to      Tony’s    ongoing

addiction to drugs and alcohol, Clark recommended the termination

of his parental rights.
¶10     Tony also testified.     He admitted that he had a substance

abuse    problem and stated that           he   wanted   to   obtain       inpatient

treatment.     Tony requested that the court extend the temporary
legal custody for another six months so that he could obtain

substance abuse treatment.      At the same time, Tony conceded that he

had verbally agreed to a plea agreement on the pending drug charges

which included seven years incarceration.

¶11     With regard to Tony’s request for an extension of temporary
                                                                                       Comment [COMMENT1]: Tr 120
legal custody, the State        responded that “[Tony] is going to be
incarcerated for a long time.         If the Court wants to give him some

additional time until we see when his sentence is, that’s fine with
the State.     He’s at least partially complied with his treatment

requests.”
¶12     Nevertheless, the District Court found that Tony, who did not

attempt to meet the conditions of his treatment plan until five
months after it was approved, had failed to even moderately comply

with its requirements.    The court found that Tony had a significant
chemical dependency problem which he had not adequately addressed,

that he was incarcerated for methamphetamine use during the period

of these proceedings, and that he had not successfully accomplished

any of the goals of his treatment plan.            The court concluded that,
due to Tony’s extensive history with DPHHS, including having

another     child   removed    from    his      custody,      as    well    as   his



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noncompliance with his treatment plan, Tony’s conduct and condition

rendering him unfit was unlikely to change within a reasonable

time.   The court concluded that it was in the best interests of the
children to terminate Tony’s parental rights.    Tony appeals.




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                           STANDARD OF REVIEW

¶13   In reviewing a decision to terminate parental rights, this

Court determines whether the district court’s findings of fact

supporting   termination   are    clearly     erroneous     and    whether   the
district court’s conclusions of law are correct.                  In re C.R.O.,

2002 MT 50, ¶ 10, 309 Mont. 48, ¶ 10, 43 P.3d 913, ¶10 (citation

omitted).    A finding of fact is clearly erroneous if it is not

supported    by   substantial     evidence;     if   the     district     court

misapprehended the effect of the evidence; or if, after reviewing
the record, this Court is left with a definite and firm conviction

that the district court made a mistake.              In re C.R.O., ¶ 10

(citation omitted).

¶14   It is well established that a natural parent’s right to care

and custody of his or her child is a fundamental liberty interest
which must be protected by fundamentally fair procedures.                 In re

C.R.O., ¶ 10 (citation omitted).         Accordingly, with regard to the
statutorily-required findings supporting termination of parental

rights, we have stated that the burden is on the party seeking

termination to demonstrate by clear and convincing evidence that

every statutory requirement has been satisfied.            In re C.R.O., ¶ 10
(citation omitted).

                                 DISCUSSION
¶15   Did the District Court err in terminating Tony’s parental

rights after the State conceded that he could have more time to
complete his treatment plan?




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¶16   The District Court reached its decision to terminate Tony’s

parental rights based on its conclusion that the following criteria

set forth in § 41-3-609(1)(f), MCA (1999), were satisfied:




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      (1) The court may order a termination of the parent-child
      legal relationship upon a finding that any of the
      following circumstances exist:
      . . .
            (f) the 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.
¶17        On appeal, Tony claims that the court’s decision to

terminate his parental rights based upon his inability to change

his conduct within a reasonable time was clearly erroneous since
the State did not oppose allowing him additional time to comply

with his treatment plan.   He contends that according to the State’s

testimony, he was good with the children, and he should have been
given more time to address his substance abuse problems.          Tony

insists that it was not in the children’s best interests to

terminate his parental rights.
¶18        We disagree.    Although Tony was aware that DPHHS had

removed his children from his home in November 2000, and obtained

temporary legal custody of his children in February 2001, he failed
to contact the social worker in the case until July 2001.   Although

he was incarcerated on drug charges for part of this time, Tony

fails to sufficiently explain his lack of contact for the period he
was not incarcerated.




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¶19   Additionally, Tony attempted to comply with his treatment plan

for less than two months before he violated the conditions of his

release    by    continuing   to   use       drugs.   Tony    admitted   at   the
termination hearing that he had not completed his treatment plan

because he was incarcerated.             Accordingly, the District Court’s

finding    that Tony failed to even              moderately   comply   with   the

requirements of his treatment plan was supported by substantial

evidence and, thus, not clearly erroneous.
¶20   Although the State conceded that it would not oppose allowing

Tony additional time to complete his treatment plan until his

sentence on the drug charges was known, the District Court’s
finding that Tony’s conduct or condition rendering him unfit was
unlikely to change within a reasonable time was supported by

substantial evidence.         Tony’s parental rights with regard to

another child were previously terminated due to his substance abuse

problems.       We have stated that in making termination decisions, we
must, to some extent, base the determination on a person’s past
conduct.    In re S.M., 2001 MT 11, ¶ 41, 304 Mont. 102, ¶ 41, 19

P.3d 213, ¶ 41 (citation omitted).

¶21   Furthermore, during the instant proceedings, Tony was arrested

and jailed on drug-related charges.              By continuing his drug use,
Tony ruined his chances for a favorable plea agreement and he

instead, admittedly, faced several years of incarceration on the

charges.    Under these circumstances, the District Court correctly
concluded that Tony’s substance abuse problems were unlikely to

change within a reasonable time.              In so concluding, the District



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Court     gave    paramount   consideration   to   the   children’s   best

interests.       See In re E.K., 2001 MT 279, ¶ 33, 307 Mont. 328, ¶ 33,

37 P.3d 690, ¶ 33.
¶22     Therefore, we conclude that there is substantial evidence in

the record supporting the District Court’s findings that Tony

failed to successfully complete the court-approved treatment plan
and that his conduct rendering him unfit would not change within a

reasonable time.       Accordingly, we hold that the District Court did

not err in terminating Tony’s parental rights.

¶23     We affirm.



                                          /S/ W. WILLIAM LEAPHART

We concur:

/S/   JAMES C. NELSON
/S/   TERRY N. TRIEWEILER
/S/   PATRICIA COTTER
/S/   JIM RICE




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