                                                                                           May 12 2015


                                       DA 14-0677

          IN THE SUPREME COURT OF THE STATE OF MONTANA
                                      2015 MT 128N



IN THE MATTER OF:

J.W., F.L., A.W., and T.F.,

            Youths in Need of Care.


APPEAL FROM:        District Court of the Eighth Judicial District,
                    In and For the County of Cascade, Cause Nos. CDN 12-153, CDN 12-154,
                    CDN 12-155, CDN 12-156
                    Honorable Gregory Pinski, Presiding Judge


COUNSEL OF RECORD:

             For Appellant:

                    Tracy Labin Rhodes, Attorney at Law, Missoula, Montana

             For Appellee:

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

                    John W. Parker, Cascade County Attorney, Ryan C. Ball, Deputy County
                    Attorney, Great Falls, Montana



                                                Submitted on Briefs: April 8, 2015
                                                           Decided: May 12, 2015


Filed:

                    __________________________________________
                                      Clerk
Justice Laurie McKinnon 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Rules, this case is decided by unpublished opinion and shall not be cited and does not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.W. (Mother) appeals from an order of the Eighth Judicial District Court,

Cascade County, terminating her parental rights to her four children, J.W., T.F., A.W.,

and F.L. We affirm.

¶3     On appeal, Mother argues the District Court erred when it considered her failure to

complete drug testing; when it found that termination of her parental rights was in the

best interests of the children; and when it failed to hold a permanency hearing within the

statutory time frame.

¶4     On September 11, 2012, the Department of Public Health and Human Services

(Department) received a report that Mother had been assaulted by her partner, C.R., who

is the birth father of T.F. The Department’s investigation revealed a significant pattern of

domestic violence and sexual assault perpetrated by C.R. against Mother. The children

were interviewed, and each expressed love for Mother but fear of C.R. The children had

witnessed incidents of violence in the home. C.R. had reportedly also hit J.W. and T.F.



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¶5    Mother stipulated to adjudication of the children as youths in need of care on

November 28, 2012. Temporary legal custody (TLC) was granted to the Department.

On January 9, 2013, Mother agreed to a treatment plan including the following tasks:

address anger management issues; address mental health issues; actively participate in

domestic violence counseling; complete a parenting assessment and parenting classes;

refrain from using non-prescribed drugs; attend scheduled visits with the children; and

maintain a safe and stable home environment. At a status hearing on December 11, 2013,

counsel for the children moved to amend Mother’s treatment plan to include drug testing,

based on the children’s concerns about Mother’s possible drug use. The motion was

denied because the Department had no evidence of ongoing drug use by Mother.

¶6    On December 26, 2013, the Department moved to extend TLC for another six

months. At a hearing on the motion, the Department reported that Mother was making

some progress on her treatment plan, but neither the Court Appointed Special Advocate

(CASA) nor the attorney for the children believed that progress was significant. The

District Court extended TLC for three months, noting that “if substantial progress hasn’t

been made by the next review hearing . . . the State needs to evaluate where this case is

going then at that point.” On April 2, 2014, based on reports that Mother was continuing

to make progress, the District Court granted another extension of TLC for three months.

¶7    On April 21, 2014, Mother attended a birthday party at her parents’ house and was

involved in a violent confrontation with her sister. Some of the children witnessed the

incident. Mother was asked to submit to voluntary urinalysis due to her behavior. The

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test was positive for methamphetamine. At a status hearing on June 18, 2014, the District

Court noted that the case had continued for nearly two years, and informed counsel for

the Department that “at this point . . . the options are really that you file for termination or

you move to dismiss.” The Department represented that it would file a petition for

termination of Mother’s parental rights. The District Court extended TLC for a period of

60 days to allow the Department time to prepare its petition.

¶8     The termination hearing was held on August 14, 2014. Child Protection Specialist

Tonya Carpenter testified that Mother’s counseling related to anger management, mental

illness, and domestic violence were all ongoing, and she had not completed those aspects

of her treatment plan. Carpenter testified that Mother’s “attendance was an issue with

several providers” throughout the duration of the case. Mother had not consistently

maintained a safe and stable residence because of continued concerns regarding drug use

and domestic violence. Mother had resumed a relationship with F.L.’s birth father, who

was a violent drug user. The District Court terminated Mother’s parental rights, finding

she had failed to implement strategies learned in domestic violence counseling; was

discharged from family based services due to missed appointments; had not completed

any chemical dependency treatment; and had not maintained a safe and stable home. The

District Court concluded that Mother’s condition was unlikely to change within a

reasonable time and that continuation of the parent-child legal relationship would likely

result in ongoing abuse and neglect.




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¶9     A district court’s termination of parental rights is reviewed for abuse of discretion.

In re H.R., 2012 MT 290, ¶ 9, 367 Mont. 338, 291 P.3d 583. Findings of fact are

reviewed for clear error, and conclusions of law are reviewed for correctness. In re D.B.,

2007 MT 246, ¶ 18, 339 Mont. 240, 168 P.3d 691. A court may order termination of

parental rights upon a finding of clear and convincing evidence that the child is an

adjudicated youth in need of care, an appropriate treatment plan has not been complied

with 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.

Partial or substantial completion of a treatment plan is insufficient. In re D.B., 2004 MT

371, ¶ 41, 325 Mont. 13, 103 P.3d 1026.

¶10    Mother argues the District Court erred when it based its conclusion that her

treatment plan had not been complied with on her failure to complete chemical

dependency treatment. Mother argues this was never included in her treatment plan, and

so cannot be evidence of noncompliance. We acknowledge that the District Court’s

references to Mother’s failure to complete chemical dependency treatment were not

appropriate to its discussion of her treatment plan compliance. The record indicates,

however, that many other aspects of Mother’s treatment plan were not complied with.

She did not show up for individual and family counseling appointments, did not

understand and apply what she learned in counseling, and did not maintain a safe and

stable home for the children. Her violent behavior, continued involvement in abusive

relationships, and failure to actively and consistently participate in counseling over nearly

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two years demonstrated that her condition was unlikely to change within a reasonable

time. Section 41-3-609(1)(f), MCA.

¶11   Mother also argues that the District Court erred when it concluded that it was in

the best interests of the children to terminate her parental rights, because the testimony

showed that the children were closely bonded to Mother. A district court is required to

“give primary consideration to the physical, mental, and emotional conditions and needs

of the child.” Section 41-3-609(3), MCA. Furthermore, when a child has been in foster

care for 15 of the most recent 22 months, termination of parental rights is presumed to be

in the child’s best interest. Section 41-3-604(1), MCA. The children were in protective

care for 23 months, from September 2012 until August 2014. After hearing evidence of

extensive violence and drug use engaged in by Mother and her partners, either in front of

the children or in the home, the District Court concluded that the children’s need for

permanency and security was best served by termination of Mother’s parental rights.

Although the bond between Mother and the children was undisputedly loving, “love and

willingness are sometimes not sufficient to establish fitness to parent.” In re J.B.K.,

2004 MT 202, ¶ 29, 322 Mont. 286, 95 P.3d 699.

¶12   Finally, Mother asks this Court to find that the District Court committed plain

error by failing to hold a permanency hearing within 12 months of the children’s first 60

days of removal from the home. Section 41-3-445(1)(a)(i)(B), MCA. The District Court

did not hold a permanency hearing within the required timeframe. Mother did not raise

this issue in the District Court, and asks us to exercise our discretionary power of plain

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error review. We exercise plain error review only where “‘failing to review the claimed

error may result in a manifest miscarriage of justice, may leave unsettled the question of

the fundamental fairness of the trial or proceedings, or may compromise the integrity of

the judicial process.’” In re J.S.W., 2013 MT 34, ¶ 15, 369 Mont. 12, 303 P.3d 741

(quoting State v. Gunderson, 2010 MT 166, ¶ 99, 357 Mont. 142, 237 P.3d 74). Our

review of the proceedings here reveals that the District Court was, at all times, well aware

of the children’s placements and issues affecting their options for permanency. We are

therefore not convinced that failure to review this claimed error will result in a manifest

miscarriage of justice.

¶13    We have determined to decide this case pursuant to Section I, Paragraph 3(c) of

our Internal Operating Rules, which provides for unpublished opinions. In the opinion of

the Court, the case presents a question controlled by settled law or by the clear

application of relevant standards of review.

¶14    Affirmed.



                                                   /S/ LAURIE McKINNON

We concur:

/S/ PATRICIA COTTER
/S/ BETH BAKER
/S/ MICHAEL E WHEAT
/S/ JAMES JEREMIAH SHEA




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