                                                                                           October 22 2013


                                         DA 13-0193

            IN THE SUPREME COURT OF THE STATE OF MONTANA
                                        2013 MT 314N



IN THE MATTER OF:

K.J.,

         A Youth in Need of Care.


APPEAL FROM:           District Court of the Eighth Judicial District,
                       In and For the County of Cascade, Cause No. ADN 11-024
                       Honorable Greg Pinski, Presiding Judge


COUNSEL OF RECORD:

                For Appellants:

                       Lisa B. Kauffman, Attorney at Law; Missoula, Montana (for Mother)

                       Jeanne M. Walker; Hagen & Walker, PLLC; Billings, Montana
                       (for Father)

                For Appellee:

                       Timothy C. Fox, Montana Attorney General; Jonathan M. Krauss,
                       Assistant Attorney General; Helena, Montana

                       John Parker, Cascade County Attorney; Great Falls, Montana



                                                   Submitted on Briefs: September 18, 2013
                                                              Decided: October 22, 2013


Filed:

                       __________________________________________
                                         Clerk
Justice Beth Baker 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     S.T. (Mother) and R.J. (Father), the biological parents of K.J., both appeal an

order of the Eighth Judicial District Court, Cascade County, terminating their parental

rights to K.J. and granting permanent legal custody to the Montana Department of Health

and Human Services (DPHHS or the Department). We affirm.

¶3     Early in 2011, DPHHS received a report that Mother recently injected and smoked

methamphetamine in her home in front of K.J, who was then one year old. The report

also indicated that Mother was selling her prescription medications and that assaults by

Mother had caused Father to temporarily leave the home. Mother took several voluntary

urinalysis tests and repeatedly tested positive for methamphetamine and benzodiazepine.

On February 28, 2011, K.J. was removed from his parents’ home at the request of the

Department. A child protection specialist arranged for a hair sample from K.J., which

tested positive for methamphetamine.

¶4     On March 11, 2011, DPHHS filed an amended petition for emergency protective

services, adjudication as youth in need of care, and temporary legal custody for K.J. On

May 18, 2011, the District Court held a hearing on the petition. Both parents were
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represented by counsel. No objections were made when the Department advised the

court that the parents would be stipulating to adjudication of K.J. as a youth in need of

care, and the District Court later concluded in its May 27, 2011 order that the parents had

stipulated to adjudication. The court granted temporary legal custody to the Department

for six months and ordered treatment plans for both parents. Afterward, both parents

filed motions seeking the return of the child. The District Court later denied those

motions.

¶5     The Department filed petitions on May 17, 2012, for permanent legal custody and

termination of the birth parents’ rights. On December 5, 2012, the District Court granted

the Department’s request for termination of both Mother’s and Father’s parental rights.

In its order, the District Court found by clear and convincing evidence that both parents

failed to complete treatment plans—observing, among other things, that Father admitted

to using methamphetamines as recently as November 2012 and that Mother’s completed

urinalysis tests remained “positive for methamphetamine throughout the pendency of this

case.” The court made a conclusion of law that it previously had adjudicated K.J. as a

youth in need of care on May 18, 2011. Finally, the court concluded that neither parent

was likely to change within a reasonable period of time and that the best interests of the

child were served by terminating both parents’ legal rights and granting permanent

custody to the Department.

¶6     We review a district court’s order terminating parental rights for an abuse of

discretion. In re J.C., 2008 MT 127, ¶ 33, 343 Mont. 30, 183 P.3d 22. A district court
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abuses its discretion when it “acts arbitrarily without conscientious judgment or exceeds

the bounds of reason.” J.C., ¶ 33. We review the trial court’s findings of fact for clear

error and its conclusions of law for correctness. In re D.B., 2008 MT 272, ¶ 13, 345

Mont. 225, 190 P.3d 1072.

¶7      Both parents argue on appeal that the District Court failed to follow statutory

requirements for adjudicating K.J. a youth in need of care. To terminate parental rights

under § 41-3-609(1)(f), MCA, the court first must adjudicate the child as a youth in need

of care.

¶8      Parents may stipulate that “the child meets the definition of a youth in need of care

by the preponderance of the evidence.” Section 41-3-434(1), MCA. The parents argue

that the record contains no written stipulation or affirmative statements in open court that

they agreed that K.J. is a youth in need of care. Instead, counsel for the Department

stated in the May 18, 2011 hearing, “It’s my understanding the birth mother and father

are going to be stipulating to an adjudication of the youth as a youth in need of care.” No

objection to this statement was made. The court made a subsequent finding of fact “[t]hat

the parents have stipulated to the adjudication of the Youth as a Youth in Need of

Care . . . .”

¶9      “To properly preserve an issue for appeal, a party must notify the court at the time

the objectionable conduct is at issue.” In re A.T., 2006 MT 35, ¶ 15, 331 Mont. 155, 130

P.3d 1249. “Failure to make a timely objection constitutes a waiver of the party’s right to

appeal.”        A.T., ¶ 15.   Neither parent nor counsel for either parent objected to the
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Department’s assertion at the May 18, 2011 hearing, to the court’s finding of fact that the

parents stipulated to adjudication, or at any other time during the District Court

proceedings. Neither parent raised the issue until the briefs on appeal.

¶10    This Court continually has stated that “we will not fault a district court for failing

to address statutory deficiencies that are not brought to its attention during the

proceedings because doing so would encourage litigants to withhold objections rather

than raise the issues appropriately in the district court.” In re A.S., 2006 MT 281, ¶ 35,

334 Mont. 280, 146 P.3d 778 (quoting In re A.N.W., 2006 MT 42, ¶ 41, 331 Mont. 208,

130 P.3d 619). In A.S., we pointed out that a parent acquiesced to a child’s adjudication

as a youth in need of care when there was no objection to the adjudication and the

adjudication was repeatedly referenced in court documents leading up to the termination

hearing. A.S., ¶ 35. Similarly, we hold here that the parents waived the right to appeal

the adjudication issue because they did not timely object or raise the issue before the

District Court.

¶11    Mother raises two additional issues: whether her treatment plan failed to

accommodate her disabilities and whether the Department made sufficient efforts to

reunify her with K.J.     All parties recognize that Mother has been diagnosed with

agoraphobia, major depressive disorder, and anxiety and panic disorders. The record

shows, however, that DPHHS and the District Court made reasonable modifications to

her treatment plan to accommodate her disabilities. The District Court made specific


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findings on this point and Mother has not demonstrated that its findings were clearly

erroneous.

¶12    The record also establishes that Mother failed to complete the goals of her

treatment plan. Even substantial compliance is insufficient to complete a treatment plan;

complete compliance is required. In re D.A., 2008 MT 247, ¶ 22, 344 Mont. 513, 189

P.3d 631. Based on our review of the record, we hold that the District Court did not

clearly err in its findings related to this issue and correctly concluded that the Department

made good-faith, reasonable efforts to assist Mother in complying with her treatment plan

within a reasonable time in order to reunify her with her child.

¶13    Father also raises two additional issues: whether the District Court properly

determined that he did not complete his treatment plan and whether the condition or

conduct rendering him unfit was unlikely to change in a reasonable time. Father argues

that he could not complete his treatment plan during the time that he was incarcerated for

failure to pay fines and that his work often prevented him from meeting other objectives.

Father also argues against his treatment plan on the ground that his continued dependence

on alcohol and drug use is neither reasonably related to his ability to parent nor identified

as a factor prohibiting his ability to parent.

¶14    In concluding that “the continuation of the parent-child relationship between

[Father] and the child will likely result in continued abuse or neglect to the child[,]” the

District Court clearly stated that its conclusion was based “upon consideration of

[Father’s] excessive use of methamphetamine, marijuana, and other substances that affect
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his ability to care for and provide for his son.” Further, the court found that a significant

factor making Father unable to care for K.J.—in addition to his substance abuse issues—

is “his lack of recognition of the danger [Mother] poses to the child.” Father failed to

acknowledge and accept his role in protecting K.J. from harm. The court reasonably

believed that Father’s uncontrolled substance abuse, coupled with his inability to show

that he can protect K.J. from Mother, warranted his treatment plan.

¶15    Despite his commendable efforts, Father also did not complete his treatment plan.

The record demonstrates that Father admittedly continued to use alcohol, marijuana, and

methamphetamine as recently as one month prior to the termination hearing. The District

Court did not clearly err in its findings related to this issue and correctly concluded that

Father failed to complete his treatment plan.

¶16    Finally, the court properly determined that the conduct or condition rendering

Father unfit was unlikely to change in a reasonable time. A “parent’s past conduct is

relevant in determining whether that parent’s conduct is unlikely to change.” In re G.S.

& S.S., 2002 MT 245, ¶ 43, 312 Mont. 108, 59 P.3d 1063. Father failed to address his

substance abuse issues that affected his ability to care and provide for K.J., and the

evidence showed he had failed or been unable to protect K.J. when Mother subjected him

to unacceptable risks.

¶17    “In determining whether to terminate parental rights, . . . the best interests of the

child are of paramount concern and take precedence over the parental rights.” A.S., ¶ 25.

We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our
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Internal Operating Rules, which provides for noncitable memorandum opinions. Having

reviewed the briefs and the record on appeal, we conclude that the appellants have not

met their burdens of persuasion. They have not shown error in either the District Court’s

factual findings or its conclusions of law. The District Court did not abuse its discretion

in terminating the parents’ rights. The judgment is affirmed.



                                                        /S/ BETH BAKER

We concur:

/S/ MICHAEL E WHEAT
/S/ LAURIE McKINNON
/S/ PATRICIA COTTER
/S/ BRIAN MORRIS




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