NO. 93-048
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
IN THE MATTER OF THE CUSTODY AND
PARENTAL RIGHTS OF M.D., a/k/a M.S.,
A Youth in Need of Care.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark,
The Honorable Jeffrey M. Sherlock, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Michael Donahoe; Donahoe & Yeshe, Helena, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General; Christian
D . Tweenten, Assistant Attorney General, Helena,
Montana
Mike McGrath, Lewis and Clark County Attorney;
Carolyn A. Clemens, Deputy County Attorney, Helena
Montana
Randi Hood, Attorney for the Youth, Helena, Montana
Submitted on Briefs: September 23, 1993
Decided: November 30, 1993
Justice John Conway Harrison delivered the Opinion of the Court.
Appellant James Lee Cameron (Cameron) appeals the order of the
First Judicial District Court, Lewis and Clark County, which
terminated his parental rights over his daughter, M.D. We affirm.
Cameron is M.D. 's natural father. On September 4, 1990,
Cameron pled guilty under North Carolina v. Alford (1970), 400 U.S.
25, 91 S.Ct. 160, 27 L.Ed.2d 162, to two counts of felony sexual
assault. One count to which Cameron pled guilty alleged that he
sexually assaulted M.D., who was eleven years old.
On November 15, 1990, the court sentenced him to twenty years
with five years suspended on each count. Cameron appealed and we
affirmed in State v. Cameron (1992), 253 Mont. 95, 830 P.2d 1284.
Cameron is incarcerated at the Montana State Prison. His
expected discharge date is November 1998. He was denied parole in
August 1992. The parole board determined that Cameron needed to
complete phase II of the sex offender program before it would grant
him parole.
Phase II of the sex offender program requires the offender to
admit his wrongdoing. Cameron, however, maintains that he did not
sexually assault M.D., and thus, he refuses to complete phase II of
the program.
On July 17, 1991, the State filed a petition seeking a
declaration that M.D. was a youth in need of care. On August 8,
1991, following a hearing, the court found that M.D. was a youth in
need of care.
A social worker with the Lewis and Clark County Department of
2
Family Services (DFS) prepared a treatment plan and transmitted it
to Cameron at the prison. Cameron refused to sign the plan.
On April 7, 1992, the State filed a petition to terminate
Cameron's parental rights. The State sought to terminate Cameron's
parental rights because: he was incarcerated for sexually
assaulting M.D.: a treatment plan was not practical: and the length
of his prison term precluded his ability to care for the needs of
M.D.
Cameron filed a motion to dismiss and a hearing on the motion
was held on August 19, 1992. The District Court denied the motion
to dismiss on August 28, 1992.
On October 15, 1992, the court held a hearing on the State's
petition to terminate Cameron's parental rights. At the hearing
the State presented evidence that: 1) Cameron refused to sign the
treatment plan: 2) Cameron had been incarcerated for more than one
year; 3) the parole board would not grant Cameron parole until he
completed phase II of the sex offender program: 4) Cameron had to
admit that he sexually abused M.D. to complete phase II of the
program: and 5) it was probable that Cameron would stay in prison
until November 1998, since he continued to deny that he sexually
abused M.D.
The District Court issued its findings of fact, conclusions of
law, and order on November 20, 1992, and terminated Cameron's
parental rights. This appeal followed.
We restate the issues as follows:
1. Did the petition for termination of Cameron's parental
3
rights state a claim upon which relief could be granted under § 41-
3-609, MCA?
2. Was the District Court's decision to terminate Cameron's
parental rights supported by substantial evidence?
3. Did the District Court improperly rely on Cameron's Alford
plea to terminate his parental rights?
Since M.D. has been adjudicated a youth in need of care, we
note that this determination meets the threshold requirement of
finding dependency, abuse or neglect. In re B.H.M., C.M.M., &
J.T.H. (1990), 245 Mont. 179, 186, 799 P.2d 1090, 1095. We presume
the correctness of a district court's decision to terminate
parental rights and we will not overturn that decision "unless
there is a mistake of law or a finding of fact not supported by
substantial credible evidence that would amount to a clear abuse of
discretion." In re S.P. (1990), 241Mont. 190, 194, 786 P.2d 642,
644. Accordingly, our review extends to the record to determine if
the trial court appropriately terminated Cameron's parental rights.
Did the petition for termination of Cameron's parental rights
state a claim upon which relief could be granted under § 41-3-609,
MCA?
Cameron contends that the State's petition lacked sufficient
grounds for terminating his parental rights. He asserts that § 41-
3-609(1)(c)(i), MCA, requires the implementation of a court-ordered
treatment plan. He argues that, since no court-ordered treatment
plan existed in his case, the allegations in the petition did not
4
satisfy § 41-3-609(1)(c)(i), MCA, and the court incorrectly
terminated his parental rights. We disagree.
We have previously held that § 41-3-609, MCA, does not require
the implementation of a court-ordered treatment plan in every case.
In re C.L.R. (1984), 211 Mont. 381, 384-86, 685 P.2d 926, 928;
B.H.M., 799 P.2d at 1094. In C.L.R., we held that § 41-3-609, MCA,
did not require a treatment plan where the parent was incarcerated
for a long period of time and the treatment plan was unworkable.
685 P.2d at 928. Moreover, the Legislature, in its first session
after our decision . C.L.R., eliminated any doubt inherent in the
. . in
statute when it added the following subsection:
(4) A treatment plan is not required under this
part upon a finding by the court following [a] hearing
if:
. . .
(b) the parent is incarcerated for more than 1 year
and such treatment plan is not practical considering the
incarceration[.]
Section 41-3-609(4)(b), MCA.
Here, after the required hearing, the District Court found
that Cameron was incarcerated for more than one year and a
treatment plan was not practical because Cameron refused to
complete phase II of the sex offender program at the prison. He
also failed to sign the treatment plan proposed by DFS. As the
District Court noted, Cameron "seems to think he can throw sand in
the wheels of judicial proceedings and then take advantage of his
action or lack thereof." We will not permit Cameron to complain of
an error he created.
5
We conclude that the District Court correctly followed the
statutory mandate of § 41-3-609, MCA. The court found that Cameron
was incarcerated for more than one year and the treatment plan was
not practical because Cameron would not complete phase II of the
sex offender program and he would not sign the proposed plan. We
hold that § 41-3-609, MCA, does not require the implementation of
a court-ordered treatment plan in this case and, therefore, the
petition stated a claim upon which the court could grant relief.
II
Was the District Court's decision to terminate Cameron's
parental rights supported by substantial evidence?
Cameron argues, similar to his first argument, that the State
did not prove that a court-ordered treatment plan existed, and
therefore, the District Court should not have terminated his
parental rights. This argument lacks merit.
Again, a court-ordered treatment plan is not required in this
case. Section 41-3-609(4)(b), MCA. Thus, the court is only
required to determine that:
the child is an adjudicated youth in need of care and
. . .
the conduct or condition of the parent rendering [him]
unfit is unlikely to change within a reasonable time[.]
Section 41-3-609(l)(c)(ii), MCA. Further, 5 41-3-609(Z), MCA,
states :
[i]n determining whether the conduct or condition of the
parent[] is unlikely to change within a reasonable time,
. . . . the court shall consider but is not limited to
the following:
. . .
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(e) present judicially ordered long-term confinement of
the parent[.]
Here, the District Court, in its findings and conclusions,
noted that M.D. was designated a youth in need of care. The court
concluded that Cameron's incarceration made him unfit to care for
the physical, mental, emotional and psychological needs of M.D.
The court also concluded that the situation was unlikely to change
within a reasonable time because Cameron was unwilling to comply
with recommended treatment and he remained in prison.
We conclude that the court's findings are supported by
substantial evidence and its conclusions are well grounded in law.
Cameron is incarcerated at the Montana State Prison and he will
probably remain there until November 1998. We hold that the
evidence was sufficient to support the court's decision to
terminate his parental rights.
III
Did the District Court improperly rely on Cameron's Alford
plea to terminate his parental rights?
Cameron argues that the court erred by using his Alford plea
to terminate his parental rights. Conversely, the State contends,
and we agree, that the court did not rely on Cameron's Alford plea
to terminate his parental rights. Rather, the court terminated
Cameron's parental rights because his incarceration made him unfit
to care for the needs of M.D.
The nature of Cameron's Alford plea is completely irrelevant
to the termination of his parental rights. Although he pled guilty
with the Alford plea, the court, in terminating Cameron's parental
rights, only considered his incarceration, the length of his prison
sentence and his refusal to complete sex offender treatment. See
5 41-3-609(l)(c)(ii) and (2)(e), MCA.
We distinguish between Cameron's continuing refusal to comply
with treatment and his Alford plea, which he used to plead guilty.
The District Court is not punishing Cameron, as he suggests, for
using the Alford plea. Rather, Cameron's continuing claim of
innocence and his refusal to admit his wrongdoing has extended his
stay at the prison.
We hold that the District Court did not use Cameron's Alford
plea to terminate his parental rights. We also hold that the
District Court appropriately terminated Cameron's parental rights.
Affirmed.
We concur:
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November 30, 1993
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
Michael Donahoe
Attorney at Law
P. 0. Box 413
Helena, MT 59624
Hon.~ Joseph P. Mazurek, Attorney General
Christian D. Tweeten, Assistant
21.5 N. Sanders, Justice Building
Helena, MT 59620
Mike McGrath,County Attorney
Carolyn A. Clemens, Deputy
228 Broadway
Helena, MT 59601
Randi Hood
Attorney at Law
228 Broadway
Helena. MT 59601
ED SMITH
CLERK OF THE SUPREME COURT