                                                                                           October 23 2012
                                          DA 12-0327

                 IN THE SUPREME COURT OF THE STATE OF MONTANA
                                         2012 MT 237N



IN THE MATTER OF:

D.M.M.,

         A Youth in Need of Care.



APPEAL FROM:            District Court of the Eleventh Judicial District,
                        In and For the County of Flathead, Cause No. DN 10-70
                        Honorable Ted O. Lympus, Presiding Judge


COUNSEL OF RECORD:

                 For Appellant:

                        Elizabeth L. Griffing, Axilon Law Group, PLLC; Missoula,
                        Montana

                 For Appellee:

                        Steve Bullock, Montana Attorney General; Mark W. Mattioli,
                        Appellate Bureau Chief; Helena, Montana

                        Ed Corrigan, Flathead County Attorney, Emily von Jentzen, Deputy
                        County Attorney; Kalispell, Montana



                                                    Submitted on Briefs: October 2, 2012

                                                               Decided: October 23, 2012


Filed:

                        __________________________________________
                                          Clerk
Justice Jim Rice 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      Mother M.M. appeals the order of the Eleventh Judicial District Court terminating her

parental rights to D.M.M. We affirm.

¶3      The Department of Child and Family Services (Department) became involved with M.M.

and her family following referrals which began in 2006. M.M. and a boyfriend were arrested for

fighting in a vehicle pulled over by law enforcement in 2009. M.M. was arrested again in 2010.

A Voluntary Protective Services Agreement (VPSA) was entered in November 2010 which

focused on M.M.’s drug and alcohol abuse, and when M.M. failed to comply with the terms of

the VPSA, the Department filed a petition for temporary custody. M.M. stipulated to the entry of

a six-month temporary custody order on January 14, 2011, and agreed to a treatment plan.

Temporary custody was extended by subsequent orders to January 8, 2012, or until further order

of the court.

¶4      On January 6, 2012, the Department filed a petition for termination of M.M.’s parental

rights, citing her failure to successfully complete her treatment requirements under the treatment

plan. M.M. moved to dismiss the petition because temporary custody had expired prior to the

termination hearing. She also objected to the Department’s motion to permit telephonic

testimony of a social worker who had moved to New Zealand. The District Court denied the

motion to dismiss and permitted the social worker’s telephonic testimony. After the hearing, the



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District Court concluded M.M. had “failed to successfully complete her Court ordered Treatment

Plan(s)” and further reasoned as follows:

                The Court has given significant consideration to MM’s fundamental rights
       as the natural parent to DMM. However, MM’s failure/inability to meet the core
       elements of her Treatment Plan in a timely manner signifies she has a limited
       ability/interest in exercising her fundamental rights in a responsible manner.
       Ultimately, there is no way to conclude that MM should be afforded the
       opportunity to exercise her fundamental rights as DMM’s parent given her history
       of actions and inactions.

The Court noted that D.M.M. had been in foster care 15 out of the most recent 22 months and

accordingly cited the presumption under § 41-3-604(1), MCA, that termination of parental rights

was in D.M.M.’s best interest.

¶5     On appeal, M.M. argues that the District Court erred by denying M.M.’s motion to

dismiss after expiration of temporary custody, by permitting the telephonic testimony of the

social worker, by adopting the Department’s proposed findings and conclusions, and by applying

the presumption under § 41-3-604(1), MCA.

¶6     We review a district court’s decision to terminate parental rights for abuse of discretion.

In re L.H., 2007 MT 70, ¶ 13, 336 Mont. 405, 154 P.3d 622. Because a parent’s right to the

custody of his or her children is a fundamental right, district courts must make specific findings

of fact as provided in § 41-3-609, MCA. In re L.H., ¶ 13. Section 41-3-609, MCA, provides that

parental rights may be terminated if a court finds that clear and convincing evidence establishes

the parents failed to comply with an appropriate treatment plan that has been approved by the

court. We review these findings of fact to determine whether they are clearly erroneous. In re

L.H., ¶ 13. We review a district court’s conclusions of law for correctness. In re L.H., ¶ 13. We

have held that the presumption under § 41-3-604(1), MCA, “neither eliminates the substantive

requirements of § 41-3-609, MCA, nor diminishes the clear and convincing burden of proof on

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the party seeking termination of parental rights.” In re B.H., 2001 MT 288, ¶ 29, 307 Mont. 412,

37 P.3d 736.

¶7     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. 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 there was clearly no

abuse of discretion by the District Court.

¶8     We affirm the judgment of the District Court.



                                                                     /S/ JIM RICE

We concur:

/S/ MIKE McGRATH
/S/ BRIAN MORRIS
/S/ MICHAEL E WHEAT
/S/ PATRICIA COTTER




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