                                    No. DA 06-0466

           IN THE SUPREME COURT OF THE STATE OF MONTANA

                                    2007 MT 121N



IN RE THE PARENTING OF
J.M. and R.M., JR.,

          Youths in Need of Care.




APPEAL FROM:     The District Court of the Thirteenth Judicial District,
                 In and For the County of Yellowstone, Cause No. DN 2003-086,
                 Honorable Gregory R. Todd, Presiding Judge


COUNSEL OF RECORD:

          For Appellant:

                 Connie Camino, Attorney at Law, Billings, Montana

          For Respondent:

                 Hon. Mike McGrath, Montana Attorney General, Mark W. Mattioli,
                 Assistant Attorney General, Helena, Montana

                 Dennis Paxinos, Yellowstone County Attorney, Billings, Montana

          For Natural Mother:

                 Roy W. Johnson, Attorney at Law, Billings, Montana

          For Guardian Ad Litem:

                 Patrick E. Kenney, Attorney at Law, Billings, Montana


                                                     Submitted on Briefs: March 7, 2007

                                                                 Decided: May 22, 2007

Filed:

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

¶1     Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal

Operating Rules, as amended in 2003, the following memorandum decision shall not be

cited as precedent. It shall be filed as a public document with the Clerk of the Supreme

Court and its case title, Supreme Court 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     S.M. and R.D.M., Sr. (hereinafter R.M.) are the biological parents of J.M. and

R.D.M., Jr. (hereinafter Junior). J.M. was born in August 2003 in Portland, Oregon, and

Junior was born in Montana in September 2004. Both children were removed from

S.M.’s care at the time of their births and subsequently adjudicated youths in need of care

(YINC). S.M.’s parental rights were terminated on July 7, 2005. R.M.’s parental rights

were terminated on May 1, 2006. R.M. appeals the Thirteenth Judicial District Court’s

order terminating his rights with respect to both children. We affirm.

¶3     R.M. has a lengthy criminal history with his earliest recorded criminal offense

occurring in 1975 just before his twelfth birthday. Through the rest of his years as a

minor, he continued to commit various offenses resulting in placements in juvenile

wards, alternative schools, and Pine Hills Youth Correctional Facility in Miles City,

Montana. His adult criminal record, which according to his own testimony during the

September 2005 custody hearing resulted in him spending fourteen of his then twenty-

three adult years in prison, includes numerous drug-related offenses.




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¶4    At the time the District Court entered its termination order in May 2006, R.M. had

been incarcerated since December 31, 2003, at Montana State Prison (MSP) on two

felony charges—Criminal Possession of Dangerous Drugs and Tampering With or

Fabricating Physical Evidence. R.M. was designated a Persistent Felony Offender and

received a twenty-year prison sentence on these charges. He was parole eligible on May

28, 2006, but it appears parole was denied at that time. If he serves his entire sentence,

his discharge date is May 24, 2021. As a result of the children’s removal from S.M.’s

custody and R.M.’s incarceration, R.M. has had nine supervised visits with J.M. since her

birth and has never met Junior.

¶5    R.M.’s first treatment plan covered the period from December 15, 2004, to April

25, 2005. His second treatment plan covered the period from April 25, 2005, to August

25, 2005.    Both plans contained numerous goals designed to assist R.M. toward

reunification with his children. To that end, two important goals of both plans were to

help R.M. improve his relationships with his children and improve his parenting skills

necessary to provide for the children’s physical, emotional and medical needs. R.M.’s

treatment plans also contained eleven specific tasks designed to assist R.M. in meeting

these goals. While four of these tasks were inapplicable in the prison setting, e.g.,

refraining from criminal activity and submitting to drug testing, the other seven tasks

were designed to be completed while he was incarcerated at MSP. Those seven tasks

included completing chemical dependency treatment, anger management classes and the

Cognitive Principles and Restructuring Program (CP&R), maintaining weekly contact

with his social worker, maintaining prison employment, and attending parenting classes,


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among others.    Testimony indicated that R.M. fully completed two tasks, partially

completed two tasks, and failed to successfully complete three important tasks—to

maintain prison employment, successfully complete CP&R, and successfully complete

Anger Management classes.

¶6    The District Court pointed out the many opportunities presented to R.M. to deal

with his anger, change his attitude, and learn valuable skills and apply them to his daily

life. The court also noted that R.M. continually failed. The District Court determined

that the best interests of J.M. and Junior would be served by terminating R.M.’s parental

rights based on his continued display of an unwillingness or inability to change his

negative behavior. The court found:

      The lifetime patterns of drug usage, criminal activity, probation violations,
      lack of stability, failure to accept responsibility, excuses, minimalization,
      and failure to follow a treatment plan have been exhibited by R.D.M., Sr.,
      in this case. He has been given multiple chances to change or improve in
      this case over the years but has repeatedly failed.

¶7    The District Court concluded that R.M. had not completed his treatment plans as

required by law and that under § 41-3-604(1), MCA (2003)(length of time a child has

been in foster care), it was in the children’s best interests to terminate R.M.’s parental

rights. It further concluded that the conduct and condition that rendered R.M. unfit,

unable or unwilling to parent his children adequately was unlikely to change within a

reasonable time. Lastly, the District Court relied on §§ 41-3-609(1)(f), -609(2)(c) and

(d), and -609(3), MCA (2003), and held that termination was proper.

¶8    R.M. argues on appeal that his inability to complete his treatment plan was the

fault of the prison, the boot camp program and the Department. He also claims that the


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District Court erred by not allowing him to present evidence designed to encourage the

court to place his children with his mother.

¶9     We review a district court’s findings of fact to determine if they are clearly

erroneous, and its conclusions of law to determine whether it correctly interpreted and

applied the law. In re A.N.W., 2006 MT 42, ¶ 28, 331 Mont. 208, ¶ 28, 130 P.3d 619,

¶ 28 (citation omitted).    We review a district court’s ultimate decision to terminate

parental rights for abuse of discretion. A.N.W., ¶ 29. This Court will neither reweigh

conflicting evidence nor substitute its judgment regarding the strength of the evidence for

that of the district court. A.N.W., ¶ 29.

¶10    Sections 41-3-609(1)(f)(i) and (ii), MCA, require complete compliance with a

treatment plan, as opposed to partial or even substantial compliance. In re T.L., 2005 MT

256, ¶ 14, 329 Mont. 58, ¶ 14, 122 P.3d 453, ¶ 14. As to any restrictions on R.M.’s

testimony, because placement of the children was not the issue before the court at the

termination hearing, the court did not err in denying R.M. the opportunity to testify

concerning placement prospects.

¶11    It is appropriate to decide this case pursuant to our Order of February 11, 2003,

amending Section 1.3 of our 1996 Internal Operating Rules and providing for

memorandum opinions. It is manifest on the face of the briefs and the record before us

that the District Court’s findings of fact are supported by substantial evidence, and its

legal conclusions are correct. We conclude the District Court did not abuse its discretion

by terminating R.M.’s parental rights.




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¶12   We affirm the judgment of the District Court.


                                               /S/ PATRICIA COTTER


We Concur:

/S/ JAMES C. NELSON
/S/ JOHN WARNER
/S/ BRIAN MORRIS
/S/ JIM RICE




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