No
No. 98-392
IN THE SUPREME COURT OF THE STATE OF MONTANA
1999 MT 174
IN THE MATTER OF THE INQUIRY INTO
T.B., D.H., and R.H.,
Youths in Need of Care.
APPEAL FROM: District Court of the Sixth Judicial District,
In and for the County of Sweet Grass,
The Honorable Wm. Nels Swandal, Judge presiding.
COUNSEL OF RECORD:
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For Appellant:
Dan Yardley, Yardley & Yardley; Livingston, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General; Mark W. Mattioli,
Assistant Attorney General; Helena, Montana
Christopher Manos, Sweet Grass County Attorney; Big Timber, Montana
Kendra K. Anderson, Attorney at Law; Livingston, Montana
Submitted on Briefs: March 18, 1999
Decided: July 27, 1999
Filed:
__________________________________________
Clerk
Justice Jim Regnier delivered the opinion of the Court.
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¶1. Richard "Denver" Hinman appeals from an April 20, 1998, order of the Sixth
Judicial District Court, Sweetgrass County, terminating his parental rights to his
children, D.H. and R.H. His rights were terminated while serving a twelve-year
prison sentence in the Montana State Prison for the crime of felony sexual assault
involving his stepdaughter, T.B. The mother of the children relinquished her
parental rights and consented to adoption. We affirm the District Court's order.
¶2. The dispositive issue on appeal is whether the District Court erred when it
terminated the parental rights of Richard "Denver" Hinman?
FACTUAL BACKGROUND
¶3. Richard "Denver" Hinman and Roben Beatty Hinman are the natural parents of
twins, D.H. and R.H., who were born on January 18, 1993. Roben also is the natural
mother and Richard was the stepfather of T.B., who was born on May 12, 1985.
¶4. On February 4, 1994, an order was entered in the Sixth Judicial District Court,
Sweetgrass County, which granted the Department of Public Health and Human
Services (DPHHS) temporary investigative authority and protective services over the
children, because T.B. reported that Richard sexually abused her. Roben, at the
suggestion of DPHHS, previously obtained a temporary restraining order against
Richard, and she and the children found a separate place to live. Richard's visits with
the twins were scheduled and monitored by DPHHS.
¶5. On April 28, 1994, the District Court extended the time for which DPHHS had
authority over the children. The District Court also ordered Roben to clean her
house and to keep the children neat and clean. There were concerns that Roben did
not sufficiently provide for the children's care.
¶6. T.B. was placed in a foster care setting on May 20, 1994, at the recommendation
of her therapist. Just six days later, on May 26, 1994, Roben and the twins were
found at Richard's residence in violation of the restraining order. For the twins'
protection, they were placed in foster care on May 27, 1994.
¶7. Richard was arrested and placed in the Sweet Grass County Jail on June 16,
1994, after he was found at Roben's house in violation of the restraining order. On
July 7, 1994, Richard pled guilty to charges of felony sexual assault involving T.B. He
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was sentenced to the Montana State Prison for twelve years. Just months later,
Roben and Richard were divorced.
¶8. Finally, on August 14, 1995, the District Court granted DPHHS temporary
custody of the children, which was repeatedly extended. Then, on May 16, 1997,
DPHHS filed a petition for permanent legal custody and termination of parental
rights regarding the three children. A hearing was held on March 31, 1998. Robin
submitted an affidavit and relinquished her parental rights, consenting to the
adoption of her children. Richard contested DPHHS's petition as it related to his
parental rights over the twins. Nonetheless, on April 20, 1998, the District Court
entered its findings of fact and conclusions of law, and terminated Richard's rights to
his twins.
¶9. On appeal, we consider the following pertinent facts: Richard was sentenced to
twelve years in prison on July 7, 1994; he has had no visitation with the twins since
then; to be eligible for parole, Richard must serve three years of his sentence or
successfully complete phases I and II of the sex offender program at the Montana
(1)
State Prison; he was denied parole in July 1997 and is not eligible for parole again
until year 2000; and as a condition of parole, Richard will be prohibited from
unsupervised contact with minors, including his children.
¶10. Both Roben and Richard signed service treatment plans. In the first of these
plans, which apparently was signed on February 28, 1994, Richard was required to
submit to a sexual offender evaluation. In the second plan, which apparently was
signed on June 8, 1994, Roben and Richard were required to attend a parenting skills
program and Roben was required to have a psychological evaluation. Then, after
Richard and Roben were divorced, Roben and her new boyfriend signed a service
treatment agreement on May 19, 1995, which was approved by the District Court.
The service treatment agreement required both Roben's boyfriend and Richard to
undergo sex offender evaluations; however, Richard did not sign the agreement.
¶11. The first two treatment plans were not admitted into evidence and cannot be
found in the record. The third plan is found in the record, but it was not admitted
into evidence.
STANDARD OF REVIEW
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¶12. In In 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. Findings of fact are clearly erroneous if they are not supported
by substantial evidence, the court misapprehended the effect of the evidence, or this
Court's review of the record convinces it that a mistake has been made. See Interstate
Prod. Credit Ass'n v. DeSaye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287. We
review conclusions of law in a termination proceeding to determine if those
conclusions are correct. See In 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. (1994), 266 Mont. 274, 281, 880 P.2d 808, 812.
¶13. 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 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, see In Matter of R.
B., Jr., 217 Mont. at 103, 703 P.2d at 848, and find clear and convincing evidence that
the statutory criteria have been met, see In Matter of J.L., D.L. and A.G. (1996), 277
Mont. 284, 288, 922 P.2d 459, 461.
DISCUSSION
¶14. The appropriate statutory requirements in this case are found in § 41-3-609,
MCA, which provides:
(1) The court may order a termination of the parent-child legal relationship upon a finding
that . . . :
....
(e) the child is an adjudicated youth in need of care and both of the following exist:
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(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.
....
(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.
¶15. The parties disagree about whether these requirements have been met. The
State argues that the District Court correctly found that it was not practical to expect
resolution of Richard's condition via an in-prison treatment plan. The State points
out that an express provision of Richard's twelve-year sentence prohibits him from
having unsupervised contact with minors. Richard contends that the reason he has
not completed a treatment plan is because DPHHS made no attempt to have him
complete one once he was incarcerated.
¶16. Richard cites our decision In Matter of W.Z. (1997), 285 Mont. 16, 29, 946 P.2d
125, 133, in which we stated that before a district court may terminate parental
rights it must first establish a treatment plan, otherwise establish that a plan is not
practical under the criteria set forth in § 41-3-609(4)(b), MCA. In In Matter of W.Z.,
285 Mont. 16, 29-30, 946 P.2d 125, 133, we concluded that the District Court erred
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when it terminated a father's right before a treatment plan was proposed and when
DPHHS did not attempt to create or implement a treatment plan with certain prison
programs that might have been incorporated into an acceptable plan.
¶17. Here, the District Court confronted facts which were substantially different than
those present in In Matter of W.Z. Section 41-3-609(4)(b), MCA, provides that "[a]
treatment plan is not required . . . upon a finding by the court following hearing if . . .
the parent is incarcerated for more than 1 year and a treatment plan is not practical
considering the incarceration." In Richard's case, no treatment plan would obviate
the difficulty his twin children would have in knowing him as their father. The twins
were only one year old when Richard went to prison, and they have not seen him
since then. They are now six years old. Without parole, Richard will not get out of
prison for another seven years, when the children are thirteen years old. Even with
parol, Richard would be limited to only supervised visits with the twins. Thus,
Richard's incarceration and sentencing conditions present a substantial, long-term
impediment to his ability to provide for his children's physical, mental, and
emotional needs. Therefore, under the facts of this case, we conclude that the District
Court did not err when it determined that a treatment plan was not practical.
¶18. Since a treatment plan was not required, the District Court needed only to
consider whether Richard's conduct or condition rendering him unfit as a parent is
unlikely to change within a reasonable period of time, pursuant to § 41-3-609(1)(e)
(ii), MCA. In addressing this issue, the court found that Richard's twelve-year
conviction and the condition that he can have only supervised contact with the two
children renders him unable to provide his children adequate parental care. The
District Court's findings are appropriate pursuant to § 41-3-609(2), MCA, which
requires the court to consider whether the conduct or the condition of the parent
renders the parent unfit, unable, or unwilling to give the child adequate parental
care, and § 41-3-609(2)(e), MCA, which requires the court to consider the parent's
long-term confinement. Section 41-3-609(3), MCA, further provides that:
In considering any of the factors . . . in terminating the parent-child relationship, the court
shall give primary consideration to the physical, mental, and emotional conditions and
needs of the child.
¶19. In the case before us, the record substantially supports the District Court's
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determination that Richard cannot resume his parental responsibilities of caring for
his children within a reasonable time. Richard's long-term confinement combined
with a condition of supervised visitation with his children severely limits his
parenting abilities to the extent that a continuation of the parent-child relationship is
not in the children's best interests. Although Richard contends that the court could
ultimately modify the condition that prevents him from having unsupervised contact
with his children, this is speculative at best.
¶20. We therefore conclude that the District Court did not err when it terminated
Richard's parental rights.
¶21. Affirmed.
/S/ JIM REGNIER
We Concur:
/S/ TERRY N. TRIEWEILER
/S/ W. WILLIAM LEAPHART
/S/ JAMES C. NELSON
/S/ KARLA M. GRAY
1
1. We concluded in a December 15, 1998, order that to be eligible for parole Richard must either successfully
complete phases I and II of the sex offender program at the Montana State Prison, or serve three years of his
sentence.
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