                                                                                            03/25/2020


                                       DA 19-0494

         IN THE SUPREME COURT OF THE STATE OF MONTANA
                                       2020 MT 66N



IN THE MATTER OF:

K.M.V. and D.R.V.,

           Youths in Need of Care.


APPEAL FROM:         District Court of the Twenty-First Judicial District,
                     In and For the County of Ravalli, Cause Nos. DN 17-14 and DN 17-15
                     Honorable Jennifer B. Lint, Presiding Judge


COUNSEL OF RECORD:

            For Appellant:

                     Katy Stack, Attorney at Law, Missoula, Montana

            For Appellee:

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

                     William E. Fulbright, Ravalli County Attorney, Hamilton, Montana



                                                 Submitted on Briefs: February 12, 2020

                                                            Decided: March 24, 2020


Filed:

                                   r--6ta•--df
                     __________________________________________
                                       Clerk
Justice Ingrid Gustafson 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     M.V. (Mother) appeals from the Findings of Fact, Conclusions of Law[,] and Order

Terminating Parental Rights issued by the Twenty-First Judicial District Court, Ravalli

County, on March 4, 2019. On appeal, Mother argues the District Court erred when it

relied on her continued relationship with S.V. (Father) in terminating her parental rights to

K.M.V. and D.R.V. (Children). She maintains, first, that her right to due process was

violated because she was never given notice that she was required to separate from Father

in order to reunify with Children and, second, that her treatment plan was not appropriate

because it did not require her to separate from Father. She further challenges the District

Court’s findings that the conduct or condition rendering her unfit is unlikely to change

within a reasonable time as unsupported by substantial evidence. She finally challenges

the admission of hearsay testimony at the termination hearing.

¶3     On August 10, 2017, the Department of Public Health and Human Services, Child

and Family Services Division (Department), removed Children from Mother and Father’s

home, following years of reported neglect, squalid living conditions, bruises on Children,

and domestic violence in the home. On October 5, 2017, Mother stipulated to adjudication

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of Children as Youths in Need of Care (YINC) and to temporary legal custody (TLC) by

the Department.      On October 18, 2017, the District Court issued its written order

adjudicating Children as YINC and granting the Department TLC.

¶4       On November 30, 2017, the court approved a stipulated treatment plan for Mother

which identified two conditions, resulting in the abuse and neglect of Children. First,

Mother was unwilling or unable to perform parental duties and responsibilities, evidenced

by Children’s exposure to domestic violence, Mother’s failure to provide for Children’s

hygiene and basic needs, her inability to recognize Children’s emotional and cognitive

needs, and her failure to recognize Children are in need of a higher level of care. Second,

Mother participated in violent altercations with Father and did not apply basic safety

measures to keep Children safe. The treatment plan required Mother to complete a

parenting class; participate in monitored visitation; complete an anger management

assessment and follow recommendations; participate in individual and family therapy and

follow     recommendations;    complete    a       child-parent   assessment   and   follow

recommendations; complete a psychological evaluation and follow recommendations;

register for Medicaid; and participate in family-based therapy and parent coaching prior to

reunification. Mother largely completed the tasks laid out in the treatment plan but was

terminated from parent-child interaction therapy shortly before the Department filed for

termination.

¶5       On November 2, 2018, the Department petitioned for termination of Mother’s

parental rights. The termination hearing was held February 12, 2019. At the hearing,

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Father’s counsel represented that Father wished to relinquish his parental rights and then

filed Father’s written relinquishment on February 14, 2019.             Because of Father’s

relinquishment, the Department only presented evidence against Mother. On March 4,

2019, the court issued its order terminating Mother’s and Father’s parental rights. The

District Court found Children to have significant special needs and require exceptional

skilled parenting.1 The court found Mother failed to successfully complete her treatment

plan and the conditions that led to child abuse and neglect had not been successfully

corrected. The court held that although Mother completed a parenting class, participated

in monitored visitation, completed an anger management assessment, participated in

individual therapy and family therapy, and completed a parent-child assessment and

psychological evaluation, Mother did not successfully complete any of her treatment plan

tasks because she was not able to demonstrate an understanding and ability to effectively

meet Children’s needs or protect them from domestic violence. The court concluded the

conduct or condition rendering Mother unfit to parent was unlikely to change in a

reasonable time as evidenced by her “diagnosed personality profile” and her failure to

complete her treatment plan.




1
  One child has been diagnosed with Autism Spectrum Disorder and receives services through
school and attends individual therapy to address behavioral outbursts. The other child has been
diagnosed with Reactive Attachment Disorder, Attention Deficit Hyperactivity Disorder, and
Disruptive Mood Dysregulation Disorder and also receives services through school and attends
individual therapy to address inappropriate behavior. Both suffer from enuresis and encopretic
accidents.
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¶6    We review a district court’s order terminating parental rights for an abuse of

discretion. In re T.D.H., 2015 MT 244, ¶ 18, 380 Mont. 401, 356 P.3d 457.

¶7    A court may terminate parental rights when (1) a child had been adjudicated as a

YINC; (2) an appropriate treatment plan approved by the court has not been complied with

by the parent or has not been successful; and (3) the conduct or condition of the parent

rendering him or her unfit is unlikely to change within a reasonable time. Section

41-3-609(1)(f), MCA. Each factor must be supported by clear and convincing evidence.

Section 41-3-609(1), MCA. A natural parent’s right to the care and custody of a child is a

fundamental liberty interest which courts must protect with fundamentally fair procedures

at all stages of termination proceedings. In re C.J., 2010 MT 179, ¶ 26, 357 Mont. 219,

237 P.3d 1282.

¶8    Upon review of the record and the District Court’s order terminating Mother’s

parental rights, we are unconvinced Mother’s due process rights were violated or that her

treatment plan was not appropriate. We disagree that under the District Court’s decision

separating from Father was a “key task” required of Mother to reunify her with Children.

Although the District Court found Father remained in the home, making it unsafe, the

court’s decision to terminate Mother’s parental rights relied on her own unchanged conduct

and conditions to terminate her parental rights.     While Mother was compliant with

treatment plan tasks, Mother did not successfully complete her treatment plan as she failed

to address the treatment plan’s two identified underlying issues. Mother continued to

minimize or deny the domestic violence between her and Father and psychological

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evaluators concluded Mother had antisocial personality traits and continued to lack

empathy for her children.

¶9     Further, the District Court did not abuse its discretion in determining the conduct or

condition rendering Mother unfit was unlikely to change within a reasonable time. After

months of therapy and other services, Mother continued to minimize or deny any domestic

violence in her relationship with Father and failed to demonstrate understanding of the

higher level of care needed for her special needs Children. This, combined with Mother’s

difficult-to-treat antisocial personality traits and resistance to change, provided substantial

evidence supporting the District Court’s determination the conditions rendering Mother

unfit were unlikely to change in a reasonable time. The District Court did not abuse its

discretion in terminating Mother’s rights.2

¶10    Finally, we decline to address Mother’s hearsay arguments because she failed to

object to the admission of the statements at trial and thus waived her objection. See In re

H.T., 2015 MT 41, ¶ 14, 378 Mont. 206, 343 P.3d 159.




2
  While we find the District Court did not abuse its discretion given the very high parenting needs
of Children and Mother’s inability to recognize and meet those needs, the Department could and
should have been more direct and transparent in developing Mother’s treatment plan to assist her
in recognizing the implications of the domestic violence issues. The Department could have better
informed Mother about the potential issues her continued relationship with Father could have for
her reunification with Children and better prepared her for the potential she would need to be able
to parent alone. Here, the Department should have directly advised Mother that choosing to stay
in a relationship with Father, an abusive partner, would likely put her own parental rights at risk
should Father fail to successfully address the domestic violence issues and complete his treatment
plan. Her treatment plan’s requirement to maintain appropriate housing with “no one residing in
the home [who] is considered by [the Department] to be a threat to her children” somewhat
obscured the risks to Mother’s own parental rights of a continued relationship with Father.
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¶11    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, the case presents a question controlled by settled law or by the clear application of

applicable standards of review. The District Court’s order was not an abuse of discretion.

¶12    Affirmed.



                                                 /S/ INGRID GUSTAFSON


We concur:

/S/ JIM RICE
/S/ LAURIE McKINNON
/S/ BETH BAKER
/S/ DIRK M. SANDEFUR




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