                                                                                          October 1 2013


                                          DA 13-0219

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2013 MT 284N



IN THE MATTER OF:

A.T. and R.T.,

     Youths in Need of Care.



APPEAL FROM:            District Court of the Twentieth Judicial District,
                        In and For the County of Sanders, Cause No. DN 11-03
                        Honorable Deborah Kim Christopher, Presiding Judge


COUNSEL OF RECORD:

                 For Appellant:

                        Lucy Hansen, Hansen Law Practice; Missoula, Montana

                 For Appellee:

                        Timothy C. Fox, Montana Attorney General, Mardell Ployhar, Assistant
                        Attorney General; Helena, Montana

                        Robert Zimmerman, Sanders County Attorney, Amy Kenison, Deputy
                        County Attorney; Thompson Falls, Montana



                                                    Submitted on Briefs: September 11, 2013

                                                               Decided: October 1, 2013


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      J.Z.T., the Father, appeals from the Order of the District Court for the Twentieth

Judicial District of Montana, Sanders County, terminating his parental rights to his two

children (Children). We affirm.

¶3      The Children were adjudicated Youths In Need of Care (YINC) on January 3, 2012,

due to allegations of psychological abuse, physical neglect and exposure to unreasonable

risk.

¶4      The record demonstrates that the Father and the Mother (parents) fight constantly in

front of the Children, pushing each other and shouting profanities at each other. They smoke

marijuana in the presence of, and while caring for, the Children.          They also abuse

prescription drugs. The Father has submitted urinalysis scans that were positive for

amphetamine, opiates and benzodiazepines. The parents were evicted from rental homes

twice in three months. They currently reside in a trailer behind the paternal grandfather’s

home that does not have heat or running water.

¶5      The Department of Public Health and Human Services, Child and Family Services

Division (the Department), made reasonable efforts to avoid protective placement of the

Children or to make it possible to safely return the Children to their parents’ care. The

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parents agreed to place the Children in foster care for a week in 2011 so the Mother could

detox at home. The parents were offered voluntary treatment plans on April 15, 2011. The

parents completed chemical dependency evaluations. Both evaluations recommended

inpatient treatment. Neither parent completed inpatient chemical dependency treatment.

¶6     The District Court approved a treatment plan for the parents on February 27, 2012.

The treatment plan sought to address chemical dependency issues and how they affect

parenting skills; to work on anger management skills, communication skills, relationship

skills and parenting skills; to complete psychological/parental evaluations and follow

recommendations; to maintain safe and stable housing; to refrain from criminal activity; to

improve parenting skills, child development, nutrition and life skills; and, to maintain

income through employment or other legal means. Both parents signed the treatment plan on

February 16, 2012. The Father’s attorney signed the plan on February 21, 2012.

¶7     The treatment plan was not successful. The Father claims he tried to gain admittance

to the Montana Chemical Dependency Center (MCDC) on two occasions to receive inpatient

treatment, but failed. The Father obtained some outpatient treatment from Flathead Valley

Chemical Dependency Center.        On August 7, 2012, the Flathead Valley Chemical

Dependency Center sent the parents a letter stating that, due to no-show appointments, their

files would be closed. From July through August, the Father attended only thirty-six percent

of scheduled therapy sessions. The parents attended only approximately fifty percent of the

parenting classes they were required to complete. In a report to the court on August 15,

2012, the child protection specialist assigned to the case reported that visits between the
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parents and Children had been shortened to one two-hour visit a week. The parents attended

only about fifty percent of the visits. Because the Children were disappointed when the

parents failed to show up for visits, the parents were required to call the visitation supervisor

twenty-four hours in advance for a visit. The parents failed to maintain safe and stable

housing. They failed to find employment or provide a household budget. The Father pled

guilty to driving with a suspended license and no insurance.

¶8     The District Court found that the parents had not complied with the treatment plan. It

further found that the parents’ conditions rendering them unfit were unlikely to change

because, even after the Children had been in foster care for over a year, both parents had

unaddressed chemical dependency issues and were unable or unwilling to care for the

Children. Accordingly, the District Court ordered termination of both parents’ parental

rights. Only the Father appeals.

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

discretion. In re E.Z.C., 2013 MT 123, ¶ 19, 370 Mont. 116, 300 P.3d 1174. This Court will

not disturb a district court’s decision on appeal unless there is a mistake of law or a finding

of fact not supported by substantial evidence that would amount to a clear abuse of

discretion. In re D.B., 2012 MT 231, ¶ 17, 366 Mont. 392, 288 P.3d 160 (internal quotation

omitted). We review a district court’s findings of fact to determine whether they are clearly

erroneous and its conclusions of law to determine whether they are correct. In re E.Z.C., ¶

19.



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¶10    A district court may order termination of a parent-child legal relationship when the

court makes a finding that the child is an adjudicated YINC and both of the following exist:

(1) an appropriate treatment plan that has been approved by the court has not been complied

with by the parent, or has not been successful; and (2) the conduct or condition of the parent

rendering the parent unfit is unlikely to change within a reasonable time. Section 41-3-

609(1)(f), MCA. Factors a court must consider in determining whether a parent’s conduct or

condition rendering the parent unfit are likely to change include “emotional illness, mental

illness, or mental deficiency of the parent of a duration or nature as to render the parent

unlikely to care for the ongoing physical, mental, and emotional needs of the child within a

reasonable time.” Section 41-3-609(2)(a), MCA. Prior to entering an order terminating

parental rights, a district court must adequately address each applicable statutory criterion

and the party seeking termination of parental rights must present clear and convincing

evidence to the district court that the applicable statutory criteria have been met. In re M.T.,

2002 MT 174, ¶ 26, 310 Mont. 506, 51 P.3d 1141.

¶11    The Father argues that the Department’s treatment plan was inadequate because it was

not individualized and the Department did not assist him in entering an inpatient chemical

dependency treatment program. He argues that the District Court therefore abused its

discretion by terminating his parental rights relying, in part, on its finding that he failed to

complete the treatment plan.

¶12     A parent who does not object to a treatment plan’s goals or tasks waives the right to

argue on appeal that the plan was not appropriate. In re D.S.B., 2013 MT 112, ¶ 10, 370
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Mont. 37, 300 P.3d 702 (quotation omitted). Where a parent fails to object to a treatment

plan in a timely manner, the parent waives any argument regarding the propriety of the

treatment plan. See In re A.A., 2005 MT 119, ¶¶ 21-28, 327 Mont. 127, 112 P.3d 993.

¶13    We will not consider the Father’s argument regarding his treatment plan’s propriety

because he failed to object to the treatment plan in a timely manner. The Father signed the

treatment plan on February 16, 2012. His attorney signed it on February 21, 2012. The

Father did not object to the treatment plan at that time, or at any time until after his parental

rights had already been terminated. We will not consider the Father’s challenge to the plan’s

adequacy now.

¶14    The Father also challenges the District Court’s determination that the conduct or

condition making him unfit was unlikely to change within a reasonable time. He alleges that

the District Court’s determination was not based on clear and convincing evidence because it

did not consider testimony from the psychologist who evaluated the Father.

¶15    Although § 41-3-609(2)(a), MCA, requires the District Court to consider a parent’s

“emotional illness, mental illness, or mental deficiency” in determining fitness, no statutory

criterion requires that such consideration be based on a professional psychological

evaluation. Here, ample evidence supported the District Court’s determination that the

Father’s conduct or condition was unlikely to change within a reasonable time. The Father

had not completed inpatient chemical dependency treatment, had made minimal progress in

counseling sessions with the Mother, had submitted several dirty urinalyses, and had failed

to show for a number of treatment appointments. Further, the Father’s “emotional illness,
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mental illness, or mental deficiency” were not the primary factors underlying the District

Court’s decision about his fitness—his persistent drug problem, and failure to address that

drug problem, were more determinative.

¶16    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 determination that the Father’s conduct or condition was unlikely to change,

under the circumstances cited above, did not amount to an abuse of discretion.

¶17    Affirmed.

                                                  /S/ MICHAEL E WHEAT


We concur:

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




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