                                                                                            April 12 2016


                                        DA 15-0482

                IN THE SUPREME COURT OF THE STATE OF MONTANA

                                       2016 MT 89N



IN THE MATTER OF:

N. A., A.A., N.A., and Z.A.,

            Youths in Need of Care.



APPEAL FROM:          District Court of the Eighth Judicial District,
                      In and For the County of Cascade, Cause Nos. BDN-13-160,
                      BDN-13-161, BDN-13-162, BDN-13-163
                      Honorable Thomas McKittrick, Presiding Judge


COUNSEL OF RECORD:

              For Appellant:

                      Jill A. Hughes, Matrium Law Group, PLLC, Missoula, Montana

              For Appellee:

                      Timothy C. Fox, Montana Attorney General, C. Mark Fowler, Assistant
                      Attorney General, Helena, Montana

                      John Weston Parker, Cascade County Attorney, Valeria Winfield, Deputy
                      County Attorney, Great Falls, Montana



                                                  Submitted on Briefs: March 23, 2016

                                                             Decided: April 12, 2016


Filed:

                      __________________________________________
                                        Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.


¶1     Pursuant to Section I, Paragraph 3(c), 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     This case pertains to the termination of the parental rights of A.A. to his four

children, N.A., A.A., N.A., and Z.A. The children were placed into protective custody on

April 6, 2013. Temporary Legal Custody was granted to the Department of Public Health

and Human Services (“DPHHS”) on January 30 2014, and the children were adjudicated

as Youths in Need of Care the same day. The State petitioned the court to terminate the

parent-child relationship on January 15, 2015, and a hearing was held over two days on

June 18 and July 2, 2015. A written order terminating the parental rights of A.A. was

signed on July 23, 2015. A.A. appeals. We affirm.

¶3     On April 6, 2013, N.A. was born and DPHHS received information regarding

threatening and abusive behavior directed at the birth mother from the natural father,

A.A. DPHHS determined based on previous criminal history and abusive behavior that

the children should be taken into the care of DPHHS. Over the following months, there

were several instances during which A.A. intimidated his family members and verbally

and physically abused them.




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¶4     On February 9, 2014, a treatment plan was adopted. Among other tasks, the

treatment plan acknowledged that A.A. had mental health issues and imposed psychiatric

treatment requirements consistent with the goal of A.A. acquiring the necessary skills to

provide for his children’s’ safety, permanency, and well-being.

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

discretion. In re K.A., 2016 MT 27, ¶ 19, 382 Mont. 165, 365 P.3d 478. As a general

rule, we will not consider novel issues, or new arguments on appeal.              Siebken v.

Voderberg, 2015 MT 296, ¶ 19, 381 Mont. 256, 359 P.3d 1073; Day v. Payne, 280 Mont.

273, 276, 929 P.2d 864, 866 (1996).

¶6     Proceedings to terminate parental rights follow strict statutory criteria. In re J.W.,

2013 MT 201, ¶ 26, 371 Mont. 98, 307 P.3d 274. Title 41 of the Montana Code outlines

the statutory framework under which a court may assess the appropriateness of

terminating parental rights. See § 41-3-602, MCA. In making its assessment the court is

obliged to “give primary consideration to the physical, mental and emotional conditions

and needs of the child.” Section 41-3-609(3), MCA. If an appropriate treatment plan has

been approved but not successfully completed, the court may terminate parental rights if

it finds that a “continuation of the parent-child relationship will likely result in continued

abuse or neglect.” Section 41-3-609(2), MCA. Furthermore, if a child has been in the

“physical custody of the State for the last 15 months out of the most recent 22 months,

the best interest of the child must be presumed to be served by the termination of parental

rights.” Section 41-3-604(1), MCA.



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¶7     A.A. submits two arguments on appeal. First, A.A. invites this Court to consider

the applicability of the Americans with Disabilities Act and related federal provisions

(“ADA”). He posits that the treatment plan violated several provisions of the federal law,

which is liberally cited and extensively covered in his appellate brief. A.A. posits that

federal law would have mandated a modification of the treatment plan to better suit his

mental health issues. However, none of these arguments or citations occur in the record

and none were presented to the District Court.            We have consistently held that

introducing new legal arguments on appeal undermines the justice system and is

substantially unfair to the parties. Payne, 280 Mont. at 276-77, 929 P.2d at 866. That

rule is an essential aspect of litigation because “[i]t is based on the principle that it is

fundamentally unfair to fault the trial court for failing to rule correctly on an issue it was

never given the opportunity to consider.” Payne, 280 Mont. at 276-77, 929 P.2d at 866.

A.A. argues that although he never cited federal law or mentioned the ADA before the

District Court, doing so is not required under Nason v. Leistiko, 1998 MT 217, ¶ 18, 290

Mont. 460, 963 P.2d 1279. A.A. claims that the sporadic references in the record to his

needing greater accommodation for his mental health were “clearly rooted” in the ADA,

and that the federal nature of these references was apparent to “any party with legal

training.” However, whether the ADA was invoked or not, the court did consider the

seriousness of the mental health issues involved in reviewing the scope of A.A’s

treatment plan.

¶8     The District Court found that A.A. demonstrated some inconsistent progress in

addressing his mental health issues, but his “emotional deregulation” still posed a serious

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problem for the children. Although there was evidence to suggest that A.A. had an

intellectual disability, other evidence undermined the significance of those evaluations.

Testimony from a mental health professional showed that A.A. “appeared to have

fabricated being in treatment for brain cancer to manipulate the behaviors and feelings of

others towards him.” The testimony also showed that he remained “motivated to present

himself in a positive light, . . . externalized blame,” and “provided numerous invalid

results to tests administered during the [psychological] evaluation[s].”

¶9     Notwithstanding the presence of remarks regarding the mental health

accommodations A.A. requested in the record, the appeal still presents a new legal

argument because it relies on law that was never introduced to the District Court. A.A.’s

argument is especially unpersuasive because neither the District Court nor the State had

an opportunity to consider the issue A.A. now raises on appeal. Payne, 280 Mont. at

276-77, 929 P.2d at 866. Consequently, we decline to address the applicability of the

ADA in this appeal.

¶10    Second, A.A. claims that the District Court made an erroneous conclusion of law

by adopting a presumption that termination of parental rights was in the best interests of

the child because they had been in foster care for 27 months. A.A. argues that the time

period did not begin to run until after DPHHS received legal custody of the children,

which did not occur in this case until January 30, 2014. This argument is unpersuasive

because DPHHS became involved and controlled access to the children from April 6,

2013. The children were kept at the grandparent’s home under the supervision and

control of DPHHS. It is not necessary for DPHHS to place the children directly in a state

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institution for purposes of § 41-3-604(1), MCA. See In re B.M., 2010 MT 114, ¶ 20, 356

Mont. 327, 233 P.3d 338.

¶11    Furthermore, the District Court did not rely on the presumption for the termination

of A.A.’s parental rights. The District Court found by clear and convincing evidence that

continuation of the parent-child relationship between A.A. and the children would result

in ongoing risk of abuse and neglect to the youths, and that the Department more than

adequately satisfied the statutory requirements to offer services to A.A. to address the

underlying safety concerns and facilitate reunification prior to initiating the petition for

termination of parental rights. The court further concluded that the conduct or condition

rendering birth father unfit and unable to parent was unlikely to change within a

reasonable time. Thus, upon review of the record we cannot agree that the District Court

abused its discretion.

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

our Internal Operating Rules, which provides for memorandum opinions. In the opinion

of the Court, this case presents a question controlled by settled law or by the clear

application of applicable standards of review.

¶13    Affirmed.


                                                 /S/ MIKE McGRATH

We Concur:

/S/ MICHAEL E WHEAT
/S/ JAMES JEREMIAH SHEA
/S/ PATRICIA COTTER
/S/ JIM RICE

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