                                                                                            07/07/2020


                                        DA 19-0636

          IN THE SUPREME COURT OF THE STATE OF MONTANA
                                      2020 MT 177N



IN THE MATTER OF:

V.A.L. and J.D.L.,

            Youths in Need of Care.


APPEAL FROM:         District Court of the Fourth Judicial District,
                     In and For the County of Missoula, Cause Nos. DN 17-70 and DN 17-71
                     Honorable John W. Larson, Presiding Judge


COUNSEL OF RECORD:

             For Appellant:

                     Michael P. Sinks, Attorney at Law, Bozeman, Montana

             For Appellee:

                     Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant
                     Attorney General, Helena, Montana

                     Kirsten H. Pabst, Missoula County Attorney, Jessica Finley, Deputy County
                     Attorney, Missoula, Montana



                                                  Submitted on Briefs: July 1, 2020

                                                             Decided: July 7, 2020


Filed:
                              q3,,---,6mal•-.— 4(
                     __________________________________________
                                       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     J.H.L. (Father) appeals the Findings of Fact, Conclusions of Law and Order

Terminating the Mother’s and Father’s Parental Rights and Awarding CFS Permanent

Legal Custody with the Right to Consent to Adoption issued by the Fourth Judicial District

Court, Missoula County, on October 7, 2019. The Order terminated Father’s parental rights

to V.A.L. and J.D.L. (Children). We affirm.

¶3     On April 27, 2017, the Child and Family Services Division of the Montana

Department of Public Health and Human Services (Department) filed a Petition for

Emergency Protective Services, and Temporary Investigative Authority (TIA). Prior to

this time, the Department had, since November 2016, been steadily working with the

parents to address their unhealthy/unsafe living environment and their lacking/limited

parental skills and knowledge under a Voluntary Protective Services Agreement.

Subsequent to the TIA petition, both parents stipulated to complete a variety of tasks under

TIA to investigate the parents’ capacities to parent and provide for the Children’s

well-being. Despite intensive in-home services, neither parent demonstrated consistent,

sustained improvement such that removal of the Children was required and the Department
                                             2
filed a petition for adjudication and temporary legal custody (TLC) on August 2, 2017. At

that time, both Children exhibited special needs—V.A.L. was not meeting developmental

milestones and not cuing anyone to attend to her needs and there were concerns with

J.D.L.’s communication skills.

¶4     Both parents stipulated to adjudication, TLC, and the tasks and goals of their

proposed treatment plans. Over the next nearly 2 years, the Department worked intensely

with the parents to address their parenting deficiencies. Although the parents completed

or engaged in some treatment plan tasks, they did not exhibit sustained improvement—

with ongoing housing inconsistency, missed visitations, inability to demonstrate skills

taught in parenting courses in interacting with the Children, and inability to address the

Children’s special needs.

¶5     We review a district court decision to terminate parental rights for an abuse of

discretion under the applicable standards of Title 41, chapter 3, MCA. “In this context, a

court abuses its discretion if it terminates parental rights based on clearly erroneous

findings of fact, erroneous conclusions of law, or otherwise acts arbitrarily, without

employment of conscientious judgment, or exceeds the bounds of reason resulting in

substantial injustice.” In re D.E., 2018 MT 196, ¶ 21, 392 Mont. 297, 423 P.3d 586

(internal quotations omitted). Findings of fact are clearly erroneous if not supported by

substantial evidence, the court misapprehended the effect of the evidence, or this Court has

a definite and firm conviction that the lower court was mistaken. In re D.E., ¶ 21. We

review conclusions of law for correctness. In re D.E., ¶ 21.
                                             3
¶6        Father argues the District Court erred in concluding he would not have rendered

himself fit to parent the Children within a reasonable amount of time. Based on the record,

we are not persuaded by Father’s argument. Although Father completed the SafeCare

parenting class twice, worked with a parenting coach, and also completed the Circle of

Security Parenting Program, he has not shown the ability to use the skills and knowledge

taught in these courses or by the coach in interacting with Children. Further, Father did

not consistently attend individual therapy sessions and did not have regular contact with

his case manager. Due to his failure to maintain appointments with the nutritionist, this

service was cancelled. Likewise, Father was discharged from Child Development Center

(CDC) services for failing to consistently attend. Father was not consistent in attending

visits and at visits had difficulty maintaining attention such that at times he would fall

asleep.

¶7        Although there is no doubt Father loves his Children and desires to be a good parent,

he faces considerable individual challenges in parenting because of his mental health and

cognitive problems.        Father has been diagnosed with potential bipolar disorder,

post-traumatic stress disorder, generalized anxiety disorder, and, most primarily,

intellectual disability with a Full Scale IQ of 67 and auditory and memory deficits.

Unfortunately, due to his generalized cerebral dysfunction coupled with auditory and

memory deficits, Father has significantly decreased ability to learn and remember new

information such as that needed to address his parenting deficiencies and meet Children’s

special needs. At the time of the termination hearing, Children had been in an out-of-home
                                                4
placement approximately 27 1/2 months and the parents had been working with the

Department for nearly 3 years.1 Reviewing the record as a whole, we find the District

Court did not abuse its discretion in concluding the conduct or condition rendering Father

unfit was not likely to change within a reasonable time and in terminating Father’s parental

rights.

¶8        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.

¶9        Affirmed.


                                                     /S/ INGRID GUSTAFSON

We concur:

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




1
 Pursuant to § 41-3-604, MCA, if a child is in foster care for 15 months of the most recent 22
months, termination of parental rights is presumed to be in the child’s best interest. Here, Father
has failed to overcome this presumption.

                                                5
