                                                                                           August 12 2014


                                          DA 13-0795

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2014 MT 219N



IN THE MATTER OF:

J.N.,

         A Youth in Need of Care.



APPEAL FROM:            District Court of the Third Judicial District,
                        In and For the County of Anaconda-Deer Lodge, Cause No. DN 12-07
                        Honorable Ray J. Dayton, Presiding Judge


COUNSEL OF RECORD:

                 For Appellant:

                        Anne-Marie K. Simeon, Attorney at Law, Billings, Montana

                 For Appellee:

                        Timothy C. Fox, Montana Attorney General; C. Mark Fowler, Assistant
                        Attorney General; Helena, Montana

                        Ben Krakowka, Deer Lodge County Attorney, Anaconda, Montana



                                                   Submitted on Briefs: June 25, 2014
                                                              Decided: August 12, 2014


Filed:

                        __________________________________________
                                          Clerk
Justice James Jeremiah Shea 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     This appeal is the companion of Mont. Sup. Ct. No. DA 13-0796, In re M.S. & J.S.,

2014 MT 220N. Both appeals arise from the same August 2013 parental rights termination

hearing before the District Court in Deer Lodge County. The three children (Children) in

both matters share the same biological mother (Mother), while J.N., the subject of this

appeal, has a different biological father than M.S. and J.S.

¶3     Mother appeals the District Court’s decision to terminate her parental rights to J.N.,

claiming that the District Court abused its discretion by concluding that the circumstances

surrounding Mother’s prior parental rights termination in Texas in 1998 were relevant to the

present matter. We affirm.

¶4     J.N. was born in 2003. J.N.’s biological father relinquished all of his parental rights

in 2013. In August 2012, the Department of Public Health and Human Services, Division of

Family Services (DPHHS), removed the Children from Mother’s care following reports that

the Children were sexually abused by Mother’s friend and that Mother knowingly took the

Children to the home of a registered sex offender for a birthday party. DPHHS placed the

Children in foster care and petitioned the District Court for Emergency Protective Services,

Adjudication of the Children as Youths in Need of Care, Temporary Investigative Authority,

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and Temporary Legal Custody of the Children. The District Court adjudicated the Children

as youths in need of care, granting DPHHS temporary legal custody in December 2012, and

approved a treatment plan for Mother in January 2013. Mother failed to complete the

treatment plan.

¶5     In May 2013, DPHHS filed a Petition for Termination of Mother’s Parental Rights

under § 41-3-609(1)(f), MCA.1 In August 2013, DPHHS filed a motion seeking judicial

notice of facts related to the prior termination of Mother’s parental rights to three other

children in Texas in 1998. The same day, Mother filed a Motion in Limine requesting that

the Court exclude any evidence and witnesses relating to the Texas termination, contending

that the circumstances of that case were irrelevant to the present termination and would be

unduly prejudicial, as the Texas termination was over fifteen years earlier. The District

Court denied Mother’s motion, reasoning that evidence relating to the Texas termination was

relevant to her ability to adequately care for the Children in the present matter, and entered

its Findings of Fact, Conclusions of Law, and Order terminating Mother’s parental rights to

the Children on October 30, 2013.

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

discretion. In re D.S.B., 2013 MT 112, ¶ 8, 370 Mont. 37, 300 P.3d 702. The district court

abuses its discretion when it “acts arbitrarily, without employment of conscientious

judgment, or in excess of the bounds of reason, resulting in substantial injustice.” In re


1
 DPHHS subsequently filed an amended Petition with an alternate theory under § 41-3-609(1)(d),
MCA. At the August 16, 2013 termination hearing, however, DPHHS withdrew the amended
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E.Z.C., 2013 MT 123, ¶ 19, 370 Mont. 116, 300 P.3d 1174. We presume the district court is

correct and will not disturb its decision unless “there is a mistake of law or a finding of fact

not supported by substantial evidence that would amount to a clear abuse of discretion.” In

re D.B., 2012 MT 231, ¶ 17, 366 Mont. 392, 288 P.3d 160.

¶7     A court may terminate parental rights upon a finding of clear and convincing evidence

that the child has been adjudicated a youth in need of care, the parent has not complied with

an approved treatment plan, and the condition or conduct rendering the parent unfit is

unlikely to change within a reasonable time. Section 41-3-609(1)(f), MCA. Mother does not

dispute that J.N. was adjudicated a youth in need of care, or that she has not complied with

the approved treatment plan. Her sole argument is that evidence relating to the Texas

termination was not relevant to the present termination, and therefore the District Court

abused its discretion by admitting such evidence and by terminating her parental rights.

¶8     “When addressing whether a parent’s conduct is unlikely to change in a reasonable

time, the court must assess the past and present conduct of the parent.” In re Matter of E.K.,

2001 MT 279, ¶ 47, 307 Mont. 328, 37 P.3d 690. Section 41-3-609(2), MCA, which guides

the determination of whether a parent’s conduct is likely to change within a reasonable time,

instructs courts to look into a parent’s past by considering factors such as the duration of

mental illness or history of violent behavior.              Section 41-3-609(2)(a), MCA;

§ 41-3-609(2)(b), MCA.




Petition, opting to proceed only on the original theory under § 41-3-609(1)(f), MCA.
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¶9     The District Court heard testimony from doctors and therapists who described

Mother’s cognitive difficulties, poor judgment, and post-traumatic stress disorder. The Court

also heard the testimony of caseworkers—including the caseworker from the Texas

termination—each of whom described Mother’s deficient parenting skills. The Court

concluded that the circumstances surrounding the Texas termination were relevant because

Mother continued to display the same cognitive difficulties and deficient parenting skills as

she had in Texas fifteen years ago. The Texas termination, therefore, provided an historical

context that informed the Court’s consideration of whether Mother’s conduct was likely to

change in a reasonable time, which the Court concluded was unlikely. This conclusion is

certainly within the bounds of reason, and therefore the District Court did not abuse its

discretion in considering evidence from the Texas termination and terminating Mother’s

parental rights to J.N.

¶10    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 issues

in this case are ones of judicial discretion and there clearly was not an abuse of discretion.

¶11    Affirmed.

                                                  /S/ JAMES JEREMIAH SHEA



We concur:


/S/ MIKE McGRATH
/S/ BETH BAKER

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/S/ LAURIE McKINNON
/S/ MICHAEL E WHEAT




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