No. 03-119
IN THE SUPREME COURT OF THE STATE OF MONTANA
2004 MT 252N
IN THE MATTER OF CUSTODY
AND PARENTING RIGHTS OF C.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, Cause No. AND 2001-12,
Honorable Dorothy McCarter, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
John Moog, Assistant Public Defender, Helena, Montana
For Respondent:
Honorable Mike McGrath, Attorney General; Tammy K. Plubell,
Assistant Attorney General, Helena, Montana
Leo Gallagher, County Attorney; Carolyn A. Clemens, Deputy
County Attorney, Helena, Montana
Randi M. Hood, Chief Public Defender, Helena, Montana (For Youth)
Submitted on Briefs: August 11, 2004
Decided: September 14, 2004
Filed:
__________________________________________
Clerk
Justice W. William Leaphart delivered the Opinion of the Court
¶1 Pursuant to Section I, Paragraph 3(d)(i), Montana Supreme Court 1996 Internal
Operating Rules (Memorandum Opinions), we determine that the legal issues raised in this
appeal are clearly controlled by settled Montana law. Further, pursuant to Section I,
Paragraph 3(d)(v), the following decision shall not be cited as precedent but shall be filed
as a public document with the Clerk of the Supreme Court and shall be reported by case title,
Supreme Court cause number and result to the State Reporter Publishing Company and to
West Group in the quarterly table of noncitable cases issued by this Court.
¶2 C.C. appeals from the order of the District Court terminating parental rights of C.S.
pursuant to § 41-3-609, MCA (2001). We affirm.
BACKGROUND
¶3 C.S. was born to C.C., her mother, and P.S., her father, in August 1992. On the
morning of March 27, 2001, C.S. was unable to wake C.C. after C.C. had overdosed on
methadone. An ambulance took C.C. to the hospital.
¶4 When the Department of Public Health and Human Services (DPHHS) was notified,
it sought, and C.C. signed, a Voluntary Safety Plan. The plan provided, inter alia, that C.C.
would enter an inpatient chemical dependency treatment and stated that her failure may
result in DPHHS filing for temporary legal custody of C.S. C.C. entered treatment on April
9, 2001, and left against the advice of the staff three days later.
¶5 On April 18, 2001, the District Court entered an order granting DPHHS temporary
investigative authority, protective services, and temporary custody of C.S. for six months.
The parties stipulated C.S. is a youth in need of care.
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¶6 On October 23, 2001, the District Court extended temporary legal custody to DPHHS,
but returned C.S. to C.C.’s care upon C.C.’s adherence to conditions, among which, C.C.
shall not use alcohol or any other drug not specifically prescribed to her by a court-ordered
doctor and DPHHS may conduct random drug and alcohol testing. Eight days later C.C.
tested positive for opiates, and DPHHS removed C.S. from C.C.’s home on November 1,
2001.
¶7 Meanwhile, in addition to her three-day inpatient treatment which began on April 9,
2001, C.C. entered three more inpatient chemical dependency centers for treatment: on April
22, 2001, on May 13, 2001, and on November 23, 2001. Each time, C.C. left after only a
few days of treatment and against the staff’s advice. C.C. also entered numerous out-patient
chemical dependency treatment programs with no success. The doctors and staff of at least
three of these facilities testified that C.C. had no control over her drug habits. To explain
her multiple failures, one doctor cited C.C.’s “[u]nwillingness to affect [sic] behavioral
change, no desire to change her drug seeking habits and her continual search for the drugs
that she needed, and continual fault finding with state agencies rather than accepting
responsibility for her past actions.”
¶8 The District Court postponed another permanent custody hearing so C.C. could
complete her current chemical dependency treatment. When the father, P.S., failed to appear
at the permanent custody hearing, the District Court terminated his parental rights on August
12, 2002. Shortly thereafter, C.C. decided to relinquish custody and allow DPHHS to place
C.S. with C.C.’s brother and sister-in-law. After C.C. changed her mind and decided not to
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relinquish custody voluntarily, the District Court held a hearing on October 21, 2002, and
terminated C.C.’s parental rights pursuant to § 41-3-609, MCA (2001).
DISCUSSION
¶9 “[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.” Matter of A.T., 2003
MT 154, ¶ 10, 316 Mont. 255, ¶ 10, 70 P.3d 1247, ¶ 10. “The party seeking to terminate an
individual’s parental rights has the burden of proving by clear and convincing evidence that
the statutory criteria for termination have been met.” Matter of A.T., ¶ 10. “To satisfy the
relevant statutory requirements for terminating a parent-child relationship, a district court
must make specific factual findings. We review those findings of fact to determine whether
they are clearly erroneous.” Matter of D.V., 2003 MT 160, ¶ 14, 316 Mont. 282, ¶ 14, 70
P.3d 1253, ¶ 14. “A finding of fact is clearly erroneous if it is not supported by substantial
evidence; if the district court misapprehended the effect of the evidence; or if, after reviewing
the record, this Court is left with a definite and firm conviction that the district court made
a mistake.” Matter of A.T., ¶ 9. Last, we determine whether the district court’s conclusions
of law are correct. Matter of A.T., ¶ 9.
¶10 Section 41-3-609, MCA (2001), sets forth the criteria for termination of parental
rights. The court may terminate “the parent-child legal relationship upon a finding
established by clear and convincing evidence . . . that 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;
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and (ii) the conduct or condition of the parents rendering them unfit is unlikely to change
within a reasonable time.” Section 41-3-609(f), MCA.
¶11 The statutory requirements for termination of parental rights are satisfied in the
present case. Section 41-3-609(f), MCA. The parties stipulated that C.S. was a youth in
need of care. Clear and convincing evidence supports the District Court’s decision that C.C.
did not successfully complete all terms of her parenting plan and that the conduct or
condition that rendered C.C. unfit is unlikely to change within a reasonable time. Matter of
A.T., ¶ 10.
¶12 We review a district court’s decision to terminate parental rights to determine whether
the court abused its discretion. Matter of A.T., ¶ 9. “The test for an abuse of discretion is
whether the trial court acted arbitrarily, without employment of conscientious judgment, or
exceeded the bounds of reason resulting in substantial injustice.” Matter of D.V., ¶ 14
(citation and internal quotations omitted). C.C. has failed to show that the court abused its
discretion; no finding of fact was clearly erroneous and no conclusion of law was incorrect.
Matter of A.T., ¶ 9. Accordingly, we affirm.
/S/ W. WILLIAM LEAPHART
We concur:
/S/ KARLA M. GRAY
/S/ PATRICIA O. COTTER
/S/ JOHN WARNER
/S/ JAMES C. NELSON
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