96-715
No. 96-719
IN THE SUPREME COURT OF THE STATE OF MONTANA
1997
IN RE MATTER OF W.Z.,
Youth in Need of Care.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Thomas A. Olson, Judge presiding.
COUNSEL OF RECORD:
For Appellants:
Daniel B. Buckley; Berg, Lilly, Andriolo & Tollefsen;
Bozeman, Montana (for Appellant Father)
Derik Pomeroy; Morgan, Cameron & Weaver;
Bozeman, Montana (for Appellant Mother)
For Respondent:
Hon. Joseph P. Mazurek, Attorney General; Tammy K. Plubell,
Assistant Attorney General; Helena, Montana
Marty Lambert, Gallatin County Attorney; Gary Balaz,
Deputy County Attorney; Bozeman, Montana
Submitted on Briefs: July 17, 1997
Decided: October 7, 1997
Filed:
__________________________________________
Clerk
Justice Jim Regnier delivered the opinion of the Court.
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Appellants C.W.M. (mother) and T.Z. (father) appeal from an order of the
Eighteenth Judicial District Court, Gallatin County, terminating appellants'
parental rights
over W.Z. For the reasons stated below, we affirm in part and reverse in part.
The following issues are present on appeal:
1. Did the District Court err in terminating the mother's parental rights?
2. Did the District Court err in terminating the father's parental rights?
FACTUAL BACKGROUND
W.Z. was born on November 4, 1991, to C.W.M., his biological mother, and
T.Z., his biological father. The mother and father divorced in February 1994,
following
which the mother received custody of W.Z. Pursuant to the February 10, 1994, custody
decree, the father received no visitation rights. In September 1994, while living,
working, and attending school in Eau Claire, Wisconsin, the father petitioned the
District
Court to modify the decree's visitation order. The court granted the father's
request,
modifying the decree to permit him supervised visitation rights with his son.
Early in the morning on September 13, 1994, police officers responding to a
call
arrived at the mother's home in Belgrade, Montana, to find W.Z., then age two, home
alone. Soon thereafter, officers located the mother, in an intoxicated condition,
walking
home from a local bar. The Department of Family Services (DFS) assumed protective
custody of W.Z., and the mother was cited for endangering the welfare of a child. W.
Z.
remained in protective custody until September 20, 1994, at which point he was
returned
to his mother's custody.
The DFS petitioned for temporary investigative authority, and the court
conducted
a hearing on October 4, 1994. Without objection from the mother, the court granted
DFS temporary investigative authority and protective services for a six-month
period.
The father, who was in Wisconsin at the time and whose location was unknown by DFS,
was not present at the hearing. On November 25, 1994, the court approved a treatment
plan for the mother which was intended to address, among other things, her chemical
dependency.
At approximately 1 a.m. on January 12, 1995, shortly after the father arrived
in
Montana with the expressed intention of visiting his son, an officer from the
Belgrade
Police Department found W.Z. walking alone on some railroad tracks and subsequently
found the mother in an intoxicated state. As a result of this incident, DFS removed
W.Z. from his mother's home and placed him in foster care, where he has since
remained.
The father did not see W.Z. during his return visit to Montana because W.Z. was
removed from the mother's home shortly after the father's arrival in Montana. On
January 14, 1995, the father and mother engaged in an altercation which resulted in
domestic abuse charges against the mother and felony assault charges against the
father.
On January 27, 1995, the mother and father were involved in yet another dispute
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which
resulted in a felony assault charge against the father to which he pled guilty. The
father
received a six-year sentence pursuant to which he remains incarcerated at Montana
State
Prison. During his incarceration, the father has enrolled in anger management
classes,
the alternatives to violence project, and an addictive disease study program.
Citing the mother's failure to comply with her treatment plan and her failure
to
maintain sobriety as partial grounds, DFS filed a petition for temporary custody of
W.Z.
on April 4, 1995. A hearing was held on April 17, 1995, with both the father and
mother in attendance. At the suggestion of the County Attorney, the court asked the
father whether he would waive any appearance at future hearings since he was not the
custodial parent, to which he agreed. The mother requested counsel, and the court
reset
the temporary custody hearing for May 23, 1995.
On August 15, 1995, following two continuances, the court again convened a
hearing on DFS's petition for an additional six-month temporary custody and
investigative
period. The mother was intoxicated when she appeared for the second day of testimony,
as evidenced by her disruptive behavior in court and the results of a court-ordered
blood
alcohol test. The father, who had waived his presence, remained incarcerated at the
time
of the hearing and did not appear. By stipulation of the parties, the court
adjudicated
W.Z. as a youth in need of care. At the conclusion of the hearing, the court granted
DFS temporary custody of W.Z., and on November 9, 1995, the court approved a second
treatment plan for the mother.
On December 22, 1995, the mother successfully completed an inpatient chemical
dependency treatment program at Montana Chemical Dependency Center in Butte. On
January 22, 1996, the mother was arrested for fraudulently obtaining dangerous drugs
and subsequently pled guilty to that charge, receiving a three-year suspended
sentence.
On February 15, 1996, DFS filed a petition to terminate both the mother's and
father's parental rights. DFS sought to terminate the mother's parental rights on
the basis
that she had failed to successfully complete her treatment plan. It sought to
terminate the
father's parental rights on the basis that he abandoned W.Z., or, alternatively,
that a
treatment plan was impractical due to his imprisonment.
Following a hearing on April 11 and 12, 1996, at which both the mother and
father were present, the District Court issued its findings of fact and conclusions
of law
terminating both the mother's and father's parental rights. It is from the
termination of
their parental rights that the mother and father now appeal.
DISCUSSION
The applicable standard of review for a district court's termination of
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parental
rights is whether the court interpreted the law correctly and whether the court's
findings
of fact are clearly erroneous. In re Matter of K.F.L. and N.L. (1996), 275 Mont.
102,
104, 910 P.2d 241, 243, (citing In re Matter of J.J.G. (1994), 266 Mont. 274, 281,
880
P.2d 808, 812).
In In re Matter of D.H. and F.H. (1994), 264 Mont. 521, 524, 872 P.2d 803, 805,
we clarified the standard of review for cases involving a youth in need of care and
termination of parental rights. The appropriate standard of review to be applied to
purely
factual findings in a termination of parental rights proceeding is the clearly
erroneous
standard as set forth in Interstate Production Credit Association v. DeSaye (1991),
250
Mont. 320, 323, 820 P.2d 1285, 1287. In re Matter of D.H., 264 Mont. at 524, 872
P.2d at 805 (see also In re Matter of J.J.G., 266 Mont. at 281, 880 P.2d at 812).
We
review conclusions of law in a termination proceeding to determine if those
conclusions
are correct. In re Matter of D.H. and F.H., 264 Mont. at 524, 872 P.2d at 805 (see
also
In re Matter of J.J.G., 266 Mont. at 281, 880 P.2d at 812).
This court has recognized that "a natural parent's right to care and custody
of a
child is a fundamental liberty interest, which must be protected by fundamentally
fair
procedures." In re Matter of R.B., Jr. (1985), 217 Mont. 99, 103, 703 P.2d 846,
848.
Accordingly, prior to terminating an individual's parental rights, the district
court must
adequately address each applicable statutory requirement. In re Matter of R.B.,
Jr., 217
Mont. at 103, 703 P.2d at 848.
ISSUE 1
Did the District Court err in terminating the mother's parental rights?
The State petitioned to terminate the mother's parental rights pursuant to
41-3-609(1)(c)(i) and (ii) (since renumbered 41-3-609(1)(e)(i) and (ii)), MCA,
which
provides as follows:
(1) The court may order a termination of the parent-child legal relationship
upon a finding that any of the following circumstances exist:
. . . .
(c) the child is an adjudicated youth in need of care and both of the
following exist:
(i) 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
(ii) the conduct or condition of the parents rendering them unfit is
unlikely to change within a reasonable time . . . .
Following the August 15, 1995, hearing on DFS's petition for temporary custody,
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and by stipulation of the parties, the court adjudicated W.Z. as a youth in need of
care.
The court approved the second of two appropriate treatment plans for the mother on
November 9, 1995. Therefore, the first issue on appeal is whether the District Court
erred in finding that the mother did not comply with, or successfully complete, her
treatment plan. The second issue on appeal is whether the District Court erred in
finding
that the conduct and conditions which make the mother unfit to parent W.Z. are
unlikely
to change within a reasonable time. We address each issue in turn.
A. Completion and success of appropriate treatment plan.
In its findings of fact and conclusions of law terminating the mother's
parental
rights, the District Court found that the mother did not complete either of her
court-
approved treatment plans, and that the plans were unsuccessful.
The record is replete with factual evidence which indicates the mother failed
to
comply with or successfully complete either of her treatment plans. Among the
requirements of her first court-ordered treatment plan, approved by the court on
November 25, 1994, were that the mother maintain sobriety, attend two AA meetings
each week, and avoid leaving her son alone or without proper care. It is undisputed,
however, that a mere two months after the plan's implementation, W.Z. was found
wandering outside alone in the middle of the night while the mother was intoxicated.
The evidence further indicates the mother continued to consume alcohol and
minimize her addiction. For example, the mother arrived at her social worker's
office
for two visits with W.Z. in February and March 1995, smelling of alcohol. On March
20, 1995, the mother refused to continue with the counseling sessions mandated by her
treatment plan. In addition, the mother was intoxicated when she appeared for the
second
day of the August 15, 1995, hearing on DFS's petition for temporary custody.
Accordingly, the District Court's finding that the mother failed to comply with her
first
treatment plan is supported by substantial evidence and is not clearly erroneous.
The factual record additionally supports the District Court's finding that the
mother
failed to complete her second treatment plan and that the plan was unsuccessful.
Among
the requirements of the mother's second treatment plan, approved by the court on
November 9, 1995, were that she complete inpatient and aftercare alcohol treatment
programs and continue to participate in AA. The plan further required that the
mother
abstain from consuming alcohol and drugs, avoid breaking the law, attend counseling
sessions, and request visits with her son.
There is testimony in the record to support the court's finding that the mother
continued to drink up until the time she began inpatient treatment in November 1995.
Although the mother completed inpatient treatment as required, she failed to
complete an
aftercare program and failed to document her alleged continuing participation in AA.
Although the mother claims she has maintained sobriety since completing inpatient
treatment in December 1995, she was arrested for obtaining dangerous drugs with a
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fraudulent prescription within weeks of completing treatment. Further, the mother
did
not participate in counseling, as required, and visited only infrequently with her
son.
The mother argues, however, that because her second treatment plan had only
been
in effect for three months when the State filed its petition to terminate her
parental rights
in February 1996, she did not have adequate time to demonstrate that the plan had
been
successful. The mother notes that the State filed for termination of her parental
rights
within two months of her discharge from inpatient chemical dependency treatment on
December 22, 1995. Therefore, she argues, the State moved to terminate her rights
just
weeks after she had finally gained control over her alcoholism.
The mother's argument that she did not have adequate time to demonstrate that
the
treatment plan was a success presupposes that she complied with the objectives of the
plan and completed it. As discussed above, we hold the District Court properly found
that the mother did not comply with either her first or second court-approved
treatment
plan. Further, this Court notes that, although the mother claims progress since the
implementation of her second treatment plan, she was arrested for fraudulently
obtaining
dangerous drugs within weeks of completing inpatient treatment and roughly three
weeks
before DFS filed its petition to terminate her parental rights.
Finally, the record indicates that DFS first became involved with the mother in
September 1994 in an attempt to help her improve her parenting skills and control her
chemical dependency. In the two-year period following DFS's initial involvement and
the eventual filing of the petition to terminate her parental rights, the mother
consistently
failed to comply with either of the treatment plans approved for her. Any progress
made
by the mother in the two months prior to the filing of the petition does not
accurately
reflect DFS's efforts to rehabilitate her relationship with W.Z. throughout the
preceding
two years. See In re Matter of B.T.B. and B.B. (1992), 254 Mont. 449, 452-53, 840
P.2d 558, 559-60 (citing In re Matter of M.J.D., C.K.D., A.R.D. (1987), 225 Mont.
200, 205, 731 P.2d 937, 939-40). Based on the foregoing, we hold the court properly
found that the mother failed to successfully complete her second treatment plan.
B. Likelihood that conduct and conditions rendering the mother unfit will change
within a reasonable time.
In terminating the mother's parental rights, the District Court additionally
found
that the conditions which make her unfit to parent her son are unlikely to change in
a
reasonable time, and that continuation of the parent-child relationship will likely
result
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in the continued abuse or neglect of the child.
In so finding, the court reviewed the following factors set out in 41-3-609
(2),
MCA:
(a) emotional illness, mental illness, or mental deficiency of the
parent of such duration or nature as to render the parent unlikely to care for
the ongoing physical, mental, and emotional needs of the child within a
reasonable time;
(b) a history of violent behavior by the parent;
. . . .
(d) excessive use of intoxicating liquor or of a narcotic or dangerous
drug that affects the parent's ability to care and provide for the child;
. . . . [and]
(g) any reasonable efforts by protective service agencies that have
been unable to rehabilitate the parent.
The court found that the mother suffers from chronic emotional and mental
problems such that she cannot care for W.Z.'s emotional needs and noted her history
of
violent encounters with the father. The court additionally found that the mother's
addiction to alcohol renders her unable to effectively parent her child. Finally,
the court
recognized DFS's lengthy involvement with the mother and her continued inability to
provide a stable home for her child, who has remained in foster care since January
12,
1995.
Substantial evidence of record clearly supports these findings by the District
Court.
For example, in a written assessment of the mother's fitness as a parent, clinical
psychologist Frank Seitz identified her most significant problem as alcoholism.
Furthermore, witness testimony at the termination hearing referred to the mother's
longstanding alcoholic behavior. Likewise, in an April 15, 1995, report, licensed
counselor Joseph Scalia opined that the mother has a borderline personality defect.
Incorporated into Dr. Seitz's August 14, 1995, court-ordered assessment of the
mother's
fitness as a parent, is the conclusion of Dr. Charles Kelly that the mother probably
has
a borderline personality disorder. The record additionally reveals continued
intervention
by DFS on the mother's behalf for a period of time in excess of two years. In light
of
these facts of record, the court did not err in finding that the conditions which
make the
mother unfit to parent her son are unlikely to change in a reasonable time.
Again, the mother argues that, at the time the State filed its petition to
terminate
her parental rights, she was in the midst of successfully altering her conduct and
the
conditions which had previously rendered her an unfit parent. She points out that
she
successfully completed inpatient chemical dependency treatment just two months before
the State filed its petition to terminate, and maintains she has not consumed
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alcohol since.
The mother further argues she regularly attended AA meetings, and made extensive
efforts to remain in contact with her son.
However, the record does not substantiate the mother's claim that she has been
attending AA meetings, nor does it document efforts on her part to remain in contact
with
her son. Although the record contains no evidence that she has consumed alcohol
since
her release from inpatient treatment in December 1995, the District Court properly
looked
to the mother's extensive history of alcoholic behavior and inadequate parenting
prior to
finding that her conduct and behavior was unlikely to change within a reasonable
time.
In re Matter of K.F.L. and N.L. (1996), 275 Mont. 102, 106, 910 P.2d 241, 244.
Finally, pursuant to 41-3-609(3), MCA, in determining whether the condition
or conduct rendering the mother unfit was likely to change within a reasonable time,
the
District Court was bound to "give primary consideration to the physical, mental, and
emotional conditions and needs of the child." Indeed, the "best interest of the
child is
paramount and takes precedence over parental rights." In re Custody of T.M. (1994),
267
Mont. 75, 79, 881 P.2d 1333, 1336 (citing In re Matter of J.J.C.H. (1992), 252 Mont.
158, 165, 827 P.2d 812, 816). The record in this case clearly indicates, and the
District
Court correctly found, that the termination of the mother's parental rights was in W.
Z.'s
best interest. For example, W.Z.'s counselor testified at the termination hearing
that the
child was thriving in his foster home and opined that termination of the mother's
parental
rights would be in W.Z.'s best interests.
Based on the foregoing, we hold that the District Court correctly found that
the
mother failed to comply with and successfully complete her treatment plans, and that
the
conditions that made the mother unfit as a parent were unlikely to change within a
reasonable time. Therefore, we hold that the District Court's findings of fact
terminating
the mother's parental rights are not clearly erroneous.
ISSUE 2
Did the District Court err in terminating the father's parental rights?
On February 15, 1996, the State petitioned to terminate the father's parental
rights
pursuant to 41-3-609(1)(b), MCA, which provides that the court may terminate the
parent-child legal relationship upon finding that the child has been abandoned by the
parents. The State alleged that the father abandoned W.Z. by committing crimes
against
the mother which he should have known would have resulted in his incarceration and
inability to parent his son.
On March 19, 1996, the State filed an amended petition for the termination of
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the
father's parental rights, alternatively alleging that, prior to his incarceration at
the
Montana State Prison, the father abandoned W.Z. during the period extending from
September 1994 through early January 1995. The State additionally petitioned for
termination of the father's parental rights pursuant to 41-3-609(1)(c) (since
renumbered
41-3-609(1)(e)) and (4)(b), MCA, on the grounds that a treatment plan was not
practical
in light of the father's incarceration.
A. Abandonment.
Without addressing the allegation that the father's incarceration constituted
abandonment, the District Court found that the father had abandoned W.Z. "by not
taking
any steps to remedy the youth's situation during the period of September 1994 through
early January 1995." The court further found that "[b]efore his imprisonment the
father
showed [n]o inclination to support the child emotionally or financially" and noted
that
though the father "says he wants to be a parent, he has not manifested any firm
intentions
to do so."
The State must present clear and convincing evidence to demonstrate that the
father
abandoned W.Z. during the relevant period. In re Matter of A.E., C.E., S.R., and J.
R.
(1992), 255 Mont. 56, 59, 840 P.2d 572, 574. The District Court's determination of
whether the father's actions during the relevant time period constitute abandonment
is a
factual one which will be upheld by this Court unless clearly erroneous. See, i.e.,
In re
Matter of R.B. (1985), 217 Mont. 99, 103, 703 P.2d 846, 848; In re Adoption of S.P.M.
(1994), 266 Mont. 269, 271, 880 P.2d 297, 298.
In defining abandonment, 41-3-102(7)(e) (since renumbered 41-3-102(9)(f)),
MCA, explains that a parent
abandons the child by leaving the child under circumstances that make
reasonable the belief that the parent . . . does not intend to resume care of
the child in the future or willfully surrenders physical custody for a period
of 6 months and during that period does not manifest to the child and the
person having physical custody of the child a firm intention to resume
physical custody or to make permanent legal arrangements for the care of
the child . . . .
(Emphasis added.)
We have previously held that the six-month requirement for establishing
abandonment applies only to the second clause of this definition. In re Matter of A.
E.,
255 Mont. at 60, 840 P.2d at 575. The first clause applies where, as here, "a parent
[allegedly] abandons a child under circumstances that make reasonable the belief the
parent does not intend to resume care of the child." No requisite time frame
applies to
this clause. In re Matter of A.E., 255 Mont. at 60, 840 P.2d at 575.
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In the instant case, the State alleges abandonment over a period of
approximately
four months. Pursuant to the relevant portion of 41-3-102(7)(e), MCA, the
pertinent
factual inquiry in this case is whether the father abandoned W.Z. from September 1994
through January 1995, and whether it was reasonable to believe that he did not
intend to
resume care of the child in the future.
This Court is aware that the father has an unimpressive history as a parent.
The
record indicates that the father has offered little, if any, financial or emotional
support
for his son in the past. The father, himself, testified that his son, now five
years old,
does not know him. The State, however, has alleged abandonment during the finite
period from September 1994 to January 1995. Thus, the issue is whether the father
abandoned his son during this specific time frame.
As the party seeking to establish abandonment, the State has the burden of
demonstrating by clear and convincing evidence that the father abandoned W.Z. during
the alleged time period. In re Matter of A.E., 255 Mont. at 59, 840 P.2d at 574.
The
State argues that the father was no more involved in W.Z.'s life during the fall of
1994
than he had ever been, and that it was reasonable to believe he had no intention of
resuming, or assuming, care of the child in future.
Review of the record, however, indicates otherwise. For example, this court
notes
that in September 1994, the father petitioned the court to modify the February 10,
1994,
dissolution decree to allow him supervised visitation with his son. Further, the
father
testified that, although he was living in Wisconsin at the time, he contacted the
mother
during the fall of 1994 to discuss W.Z.'s well-being and to schedule visitation in
Montana. Indeed, the father flew back to Montana in January 1995, and testified
that
he did so with the intent of visiting his son. Before any visitation occurred,
however,
W.Z. was placed in foster-care where he has since remained.
This evidence does not support the District Court's finding that the father
abandoned W.Z. during the period of September 1994 through early January 1995 by
failing to take any steps to remedy W.Z.'s situation. We hold the State failed to
sufficiently prove its allegations of abandonment during the relevant time period
with
clear and convincing evidence, and failed to adequately demonstrate that the
statutory
criteria of abandonment have been satisfied. Based on the foregoing, we hold the
District Court erred in finding that the father abandoned W.Z. from September 1994
through early January 1995, and reverse the lower court on this issue.
B. Practicality of treatment plan.
The State additionally petitioned to terminate the father's parental rights
pursuant
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to 41-3-609(1)(c) (since renumbered 41-3-609(1)(e)) and (4)(b), MCA, on the
grounds
that a treatment plan was not practical in light of the father's incarceration.
Because we
reverse the District Court's determination that the father abandoned his son in the
fall of
1994, we must next address this issue and determine whether the District Court erred
in
finding that a treatment plan was impractical in light of the father's incarceration.
Section 41-3-609(4)(b), MCA, provides an exception to the requirement that the
court approve an appropriate treatment plan prior to the termination of parental
rights and
states that:
(4) A treatment plan is not required under this part upon a finding
by the court following hearing if:
(b) the parent is incarcerated for more than 1 year and a treatment
plan is not practical considering the incarceration . . . .
In terminating the father's parental rights, the court recognized that no
treatment
plan was in effect, and concluded that one was unnecessary pursuant to 41-3-609(4)
(b),
MCA. As the court correctly noted, the father had been incarcerated for more than
one
year. Accordingly, the court then turned to the question of whether a treatment
plan was
practical considering the father's incarceration. The court found that such a plan
was in
fact impractical because the father's release date was not known. The court further
noted
that the father had shown minimal interest in the child, and had provided the mother
and
W.Z. with little financial or emotional support in the past.
Although the District Court found that a treatment plan was impractical in
light of
the father's incarceration, the record does not support such a finding. We have
previously stated that "we sound a stern warning that this Court will not permit the
termination of parental rights without first establishing a treatment plan unless a
showing
of facts clearly proves the impossibility of any workable plan." In re Matter of R.
B., Jr.
(1985), 217 Mont. 99, 105, 703 P.2d 846, 849 (citing In re Matter of C.L.R. (1984),
211
Mont. 381, 386, 685 P.2d 926, 928 (superseded by statute as stated in In Matter of
Baby
Boy Scott (1988), 235 Mont. 253, 767 P.2d 298)). The record presently before this
Court contains no such showing of facts.
It is apparent from the record that neither DFS nor the social worker involved
in
the case ever presented the father with a proposed treatment plan, or even discussed
with
him the possibility of implementing one. At the termination hearing, the social
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worker
testified that it would be difficult to implement a plan for the father while
incarcerated,
but conceded that certain prison programs might have been incorporated into a
potential
treatment plan.
In finding a treatment plan would be impractical, the court also relied, in
part, on
the fact that the father had shown little interest in his son in the past. Although
the fact
that the father has historically shown little or no interest in his son's life
indicates he
might well have failed to comply with any court-approved treatment plan, given the
fact
that no treatment plan was ever attempted, such a finding is mere speculation.
The present record simply does not support the District Court's finding that
implementation of a treatment plan would have been impractical under the
circumstances
of this case. We hold the State failed to demonstrate that a treatment plan would
have
been impractical in light of the father's incarceration.
Having held that the District Court erred in finding the father abandoned W.Z.,
and
erred in finding a treatment plan was impractical, we reverse the court's
termination of
the father's parental rights.
/S/ JIM REGNIER
We Concur:
/S/ J. A. TURNAGE
/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ TERRY N. TRIEWEILER
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