                                   No. DA 06-0127

           IN THE SUPREME COURT OF THE STATE OF MONTANA

                                   2006 MT 143N


IN THE MATTER OF CUSTODY and
PARENTAL RIGHTS OF K.M.,

          Youth in Need of Care.




APPEAL FROM:     The District Court of the First Judicial District,
                 In and For the County of Lewis and Clark, Cause No. CDN 2005-12,
                 Honorable Thomas C. Honzel, Presiding Judge


COUNSEL OF RECORD:

          For Appellant:

                 Jeremy Gersovitz, Chris J. Lindsey, Assistant Public Defenders,
                 Helena, Montana (Attorneys for Appellant father)


          For Respondent:

                 Hon. Mike McGrath, Montana Attorney General, Jennifer Anders,
                 Assistant Attorney General, Helena, Montana; Carolyn Clemens,
                 Deputy County Attorney, Helena, Montana

          For Youth:

                 Allen Lanning, Conklin, Nybo & Lanning, P.C., Great Falls, Montana
                 Guardian ad litem


                                                     Submitted on Briefs: June 7, 2006

                                                                 Decided: June 27, 2006

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     T.M. appeals the termination of his parental rights. We affirm.

¶3     T.M. is the biological father of K.M., a special needs child born in 1998. In 2003,

T.M. was convicted of felony sexual assault involving the 12-year old daughter of his then

girlfriend. He was sentenced to eight years at Montana State Prison in November 2003, with

four years suspended. In February 2004, K.M.’s mother, with whom K.M. resided, was

arrested on drug charges. In March 2004, the Department of Public Health and Human

Services (the Department) filed a Petition for Emergency Protective Services, Adjudication

as Youth in Need of Care and Temporary Legal Custody. K.M. was then placed with his

maternal grandmother, with whom he has lived since that time. K.M.’s mother’s parental

rights are not at issue in this case.

¶4     On April 28, 2004, both parents stipulated at the adjudicatory hearing that K.M. was a

“youth in need of care.” The Department sought and obtained temporary legal custody over

K.M. and approved treatment plans for the parents. On August 5, 2005, shortly after the case

was transferred from Cascade County to the First Judicial District Court, the court held a

review hearing. The court continued the Department’s temporary custody for another six

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months. On October 13, 2005, the Department filed a petition for termination of T.M.’s

parental rights requesting that permanent legal custody of K.M. be awarded to the

Department with the right to consent to adoption or guardianship. The District Court held a

hearing on the petition on November 8, 2005.

¶5     In its November 29, 2005 Findings of Fact, Conclusions of Law and Order, the court

acknowledged that T.M. had made progress on the terms and conditions of his treatment plan

but noted that T.M. would not be able to complete the plan for several years because of the

restrictions placed on him while incarcerated and once released from prison. Several

witnesses presented the following examples of obstacles T.M. will face once released from

prison that will affect his attempt to reestablish a relationship with K.M.: 1) six months to

four years in pre-release in Missoula during which K.M., who lives in Helena, could not live

with him or have unsupervised visits; 2) two to three years to complete Phase II of the sexual

offender treatment program; and 3) the sentencing order provision restricting T.M.’s contact

with anyone under the age of 18.

¶6     Based on substantial evidence, the District Court also determined that K.M. required

intensive therapy to address his emotional disorders, including reactive attachment disorder

and post-traumatic stress disorder, and that immediate permanent placement would be in

K.M.’s best interests. The court noted that K.M. will be a challenging child to raise based in

large part upon his very unstable early childhood. The court heard testimony from child

social workers that K.M. requires a parent with good, if not exceptional, parenting skills to

help him overcome his emotional difficulties.

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¶7     Relying upon § 41-3-609(2)(c) and (d), MCA, the District Court, considering all the

evidence presented, concluded that T.M.’s treatment plan had not been fully complied with

and had not been successful and that the conduct and condition that makes T.M. unfit and

unable to parent K.M. is unlikely to change within a reasonable time.

¶8     Section 41-3-609, MCA, provides:

       (1) The court may order a termination of the parent-child legal relationship
       upon a finding established by clear and convincing evidence . . . 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.
       (2) In determining whether the conduct or condition of the parents is unlikely
       to change within a reasonable time . . . . In making the determinations, the
       court shall consider but is not limited to the following:
       ...
       (c) excessive use of intoxicating liquor or of a narcotic or dangerous drug that
       affects the parent's ability to care and provide for the child; and
       (d) present judicially ordered long-term confinement of the parent.

¶9     We review a district court’s decision to terminate parental rights to determine whether

the court abused its discretion. The test for an abuse of discretion is “whether the trial court

acted arbitrarily, without employment of conscientious judgment, or exceeded the bounds of

reason resulting in substantial injustice.” However, because a parent’s right to the care and

custody of a child is a fundamental liberty interest, it must be protected by fundamentally fair

procedures. To satisfy the relevant statutory requirements for terminating a parent-child

relationship, a district court must make specific factual findings. We review those findings


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of fact to determine whether they are clearly erroneous. Lastly, we review the court’s

conclusions of law to determine whether the court interpreted the law correctly. In re

Custody and Parental Rights of C.J.K., 2005 MT 67, ¶ 13, 326 Mont. 289, ¶ 13, 109 P.3d

232, ¶ 13 (internal citations omitted).

¶10     Additionally, the district court is bound to give primary consideration to the physical,

mental and emotional conditions and needs of the children. Consequently, the best interests

of the child are of paramount concern in a parental rights termination proceeding and take

precedence over the parental rights. Section 41-3-609(3), MCA. Parental Rights of C.J.K.,

¶ 14.

¶11     We have determined to decide this case pursuant to Section 1, Paragraph 3(d) of our

1996 Internal Operating Rules, as amended in 2003, which provides for memorandum

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

without merit because the findings of fact are supported by substantial evidence, the legal

issues are clearly controlled by settled Montana law which the District Court correctly

interpreted, and the record supports the District Court’s conclusion to terminate T.M.’s

parental rights. The District Court did not abuse its discretion.




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¶12   We affirm.


                          /S/ PATRICIA COTTER



We Concur:

/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ JOHN WARNER
/S/ BRIAN MORRIS




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