                                                                                               May 28 2013


                                               DA 12-0670



                 IN THE SUPREME COURT OF THE STATE OF MONTANA


                                             2013 MT 141N




IN THE MATTER OF:


Q.R.K.,


     A Youth in Need of Care.




APPEAL FROM:           District Court of the Fourth Judicial District,
                       In and For the County of Missoula, Cause No. DN 09-53
                       Honorable John W. Larson, Presiding Judge




COUNSEL OF RECORD:



               For Appellant:


                       Johnna K. Baffa; Van de Wetering Law Offices, P.C.; Missoula, Montana


               For Appellee:
         Timothy C. Fox, Montana Attorney General; Katie F. Schulz; Assistant Attorney
         General; Helena, Montana


         Fred R. Van Valkenburg, Missoula County Attorney; Diane Connor,

         Deputy Missoula County Attorney; Missoula, Montana




                                        Submitted on Briefs: April 24, 2013



                                                   Decided: May 28, 2013




Filed:


         __________________________________________
                                Clerk




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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        L.R., the biological mother of Q.R.K., appeals an order of the Montana Fourth Judicial District

Court, Missoula County, terminating her parental rights to Q.R.K. and granting permanent legal custody

to the Montana Department of Public Health and Human Services (DPHHS or the Department). We

affirm.


¶3        In September 2009, Missoula County police officers were asked to check on the welfare of a

woman, L.R., who was intoxicated and unconscious at a local restaurant with her three-year-old

daughter, Q.R.K. The police arrested L.R. and a social worker referred Q.R.K.’s case to DPHHS. On the

ground that L.R. had abused or neglected Q.R.K., the Department filed a petition for emergency

protective services. In April 2010, by stipulation of the parties, the court adjudicated Q.R.K. as a youth in

need of care and awarded temporary legal custody of the child to DPHHS, which placed Q.R.K. with a

foster family.


¶4        On July 27, 2010, following a hearing, the District Court approved in open court a phase-one

treatment plan for L.R., which it then formally adopted on September 14, 2010. The treatment plan

stated that L.R.’s history of chemical dependency and mental health issues, which were consistent with

schizophrenia, had impaired her ability to effectively care for and parent Q.R.K.—a special needs child

diagnosed with reactive attachment disorder (RAD). The plan provided detailed tasks and goals, as well

as measures of success including, among other factors, L.R.’s demonstration of “regular and improved
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parenting” and “put[ting] Q.K. first.” On motion of the Department, the District Court subsequently

extended the order for temporary legal custody until April 2011 to allow L.R. more time to work toward

completion of the treatment plan. The court also approved the permanency plan of reunification if L.R.

successfully completed her treatment plan within a reasonable time and reunification was found to be

in the child’s best interest.


¶5      In April 2011, the Department filed a petition to terminate L.R.’s parental rights to Q.R.K. The

District Court denied that petition, citing L.R.’s progress, as well as her persistence in attending

counseling sessions, parent-coaching sessions and court hearings. Instead, the court approved a phase-

two treatment plan, which stated in part that “[f]or reunification to occur, [L.R.] will need to

demonstrate consistently that she can positively and safely parent [Q.R.K.] without any coaching or

support.”


¶6      DPHHS filed a second petition to terminate L.R.’s parental rights in July 2012. The Department

alleged that L.R. had failed to comply with the phase-two treatment plan and that the plan had not been

successful. The District Court held a termination hearing on the matter over a period of three days in

September 2012.


¶7      During the hearing, the District Court heard testimony from fourteen different witnesses,

including mental health counselors, social workers, and four psychologists who had evaluated both L.R.

and Q.R.K. Although the psychologists generally commended L.R. for her dedication to and love for

Q.R.K., they also testified that L.R. lacked basic parenting skills and that she could not adequately care

for a high needs child with reactive attachment disorder. One psychologist stated that children with

RAD require high levels of structure, consistency and clear feedback. L.R. was unable to provide such

support due to her mental illness, but another psychologist testified that Q.R.K.’s foster parents had

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been able to do so. A third psychologist worried that Q.R.K. was “aging out” of the window in which

attachment therapy, a means to address RAD, still would be effective.


¶8      The court also heard testimony from counselors who had provided hundreds of hours of

parenting lessons to L.R. These counselors testified that L.R. could not provide the parental care that

Q.R.K. needed, that any progress L.R. had made in her parenting skills was inconsistent at best, and that

this was unlikely to change within a reasonable time.


¶9      After the termination hearing, the District Court entered findings of fact and conclusions of law.

The court found that Q.R.K. could not successfully be parented by someone with “marginal or erratic

skills” and that “even after nearly three years of parenting coaching, none of the professionals working

with [Q.R.K.] have recommended even starting unsupervised visitation with her mother” because L.R.

lacked the skills to parent Q.R.K. adequately. For those reasons, the court found that “L.R. has failed to

fully comply with the . . . Phase Two Treatment Plan or, more likely, she is unable to comply” and that, in

any event, the treatment plan had been unsuccessful. The court further found that L.R. would not be

able to acquire the skills necessary to adequately parent Q.R.K. within a reasonable time.


¶10     Although the District Court acknowledged that L.R. loved Q.R.K., it determined that it had to give

“primary consideration to [Q.R.K’s] needs” and that Q.R.K. could no longer wait for L.R. to improve her

parenting skills. Finding that it was in Q.R.K’s best interests for the court to terminate L.R.’s parental

rights and award custody to the Department so that Q.R.K. could be adopted by her foster family, the

District Court ordered that L.R.’s parental rights be terminated pursuant to § 41-3-609(1)(f), MCA.


¶11     L.R. appeals. She contends that the District Court erred in finding that she had failed to comply

with her treatment plan because she successfully had addressed her chemical dependency problems

and because she had made progress in developing her parenting skills and addressing her mental health
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issues. L.R. also asserted that the court erred by finding it was in Q.R.K.’s best interests to terminate her

parental rights.


¶12     We review a district court’s order terminating parental rights for an abuse of discretion. In re

J.M., 2009 MT 332, ¶ 12, 353 Mont. 64, 218 P.3d 1213. A district court abuses its discretion when it

“acts arbitrarily without conscientious judgment or exceeds the bounds of reason.” In re J.C., 2008 MT

127, ¶ 33, 343 Mont. 30, 183 P.3d 22. 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.


¶13     A court may terminate parental rights if “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 “the conduct or

condition of the parents rendering them unfit is unlikely to change within a reasonable time.” Section

41-3-609(1)(f), MCA. Although a natural parent’s right to “care and custody of a child is a fundamental

liberty interest,” parental rights may be terminated when a parent only partially complies with a

treatment plan and fails to improve her parenting skills as required by her treatment plan. In re D.H.,

2001 MT 200, ¶¶ 14, 29-30, 306 Mont. 278, 33 P.3d 616; see also In re C.H., 2003 MT 308, ¶¶ 27-28, 318

Mont. 208, 79 P.3d 822.


¶14     Although L.R. may have complied with her treatment plan’s terms regarding chemical

dependency, L.R. never was able to demonstrate consistently that she could “positively and safely

parent [Q.R.K.] without any coaching or support,” as required by her treatment plan. The court correctly

concluded that Q.R.K. did not have to wait for her mother to improve her parenting, as Q.R.K.’s need for

stability is “paramount.” In re Custody & Parental Rights of D.A., 2008 MT 247, ¶ 26, 344 Mont. 513, 189

P.3d 631.




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¶15     The District Court also found that the conditions rendering L.R. unfit were unlikely to change

within a reasonable time, based primarily on L.R.’s inability to demonstrate that she adequately could

care for Q.R.K.’s special needs, despite three years of coaching on her parenting skills. The record

supports this finding.


¶16     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.           The District Court made

adequate findings of fact that find ample support in the record and its legal analysis correctly applied

settled Montana law. Based on this record, we hold that L.R. has failed to establish that the District

Court abused its discretion in terminating her parental rights.


¶17     Affirmed.




                                                          /S/ BETH BAKER



We concur:



/S/ MIKE McGRATH

/S/ MICHAEL E WHEAT

/S/ LAURIE McKINNON

/S/ BRIAN MORRIS




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