No. DA 06-0489
IN THE SUPREME COURT OF THE STATE OF MONTANA
2006 MT 343N
IN THE MATTER OF T.F., T.M.,
M.F., and B.M.,
Youths In Need Of Care.
APPEAL FROM: The District Court of the Eighth Judicial District,
In and For the County of Cascade, Cause No. CDJ-04-136Y,
Honorable Kenneth R. Neill, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Jim Wheelis, Chief Appellate Defender; David Avery, Assistant
Appellate Defender, Helena, Montana
For Respondent:
Honorable Mike McGrath, Attorney General; C. Mark Fowler,
Assistant Attorney General, Helena, Montana
Brant S. Light, County Attorney; Sarah Corbally, Deputy County
Attorney, Great Falls, Montana
Submitted on Briefs: December 6, 2006
Decided: December 21, 2006
Filed:
__________________________________________
Clerk
Justice W. William Leaphart delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court 1996 Internal
Operating Rules, as amended in 2003, the following memorandum decision shall not be
cited as precedent. It shall be filed as a public document with the Clerk of the Supreme
Court and its case title, Supreme Court 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 D.S. appeals the order terminating her parental rights to T.F. and M.F. We affirm.
¶3 D.S. is the birth mother of four children: T.M., T.F., M.F., and B.M. This appeal
only pertains to the termination of D.S.’s parental rights regarding T.F. and M.F. as D.S.
concedes that T.M. and B.M. have been placed with an adoptive family that will best
serve their interests.
¶4 On August 19, 2004, the Department of Public Health and Human Services (the
Department) filed a petition for emergency protective services, adjudication as youths in
need of care, and temporary legal custody regarding T.M., T.F., and M.F. after a
Department social worker was told by D.S. that she had given T.M. a pain killer without
a prescription to do so. The Department had been involved with D.S. concerning her
parenting since 1997, during which time the Department had received a total of eighteen
reports regarding D.S., including that her residence was unsanitary, that she excessively
yelled at her children and that L.S., D.S.’s husband who lived at her residence on and off,
had abused T.M.
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¶5 After the District Court adjudicated T.M., T.F., and M.F. youths in need of care
and granted temporary legal custody to the Department, the court ordered the preparation
of a treatment plan for D.S., which was implemented on September 28, 2004. In May of
2005, D.S. gave birth to her fourth child, B.M., who was soon adjudicated a youth in
need of care and whose case was eventually consolidated with the original action
concerning D.S.’s three older children. D.S. initially made good progress, and by July
2005 the Department submitted a permanency plan calling for gradual reunification of the
children, one at a time, with the mother. T.M. was returned to D.S.’s care first, followed
by T.F. and M.F. Within six months, however, the Department once again removed the
children from D.S.’s home based on reports that D.S.’s home was unsanitary and unsafe,
including a report that D.S. had misplaced T.M.’s prescription medication which an in-
home worker with Youth Dynamics eventually found in the child’s closet.
¶6 Subsequently, on March 3, 2006, the Department petitioned to terminate D.S.’s
parental rights over all four children. As of that date, T.F. and M.F. had been in state
custody for over twenty months. At the hearing, two psychologists testified that D.S.
could not safely parent her children given her severe mental health problems and that
these problems would prevent D.S. from becoming fit to parent within a reasonable time.
April Jones, the primary social worker on the case for the Department testified that D.S.
had failed to complete her treatment plan because she had not, among other things,
maintained a safe and sanitary home, maintained consistent employment (she had five or
six jobs within a year), or achieved a healthy mental status. The District Court, pursuant
to § 41-3-609(1)(f), MCA, concluded that the approved treatment plan had not been
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successfully complied with and that D.S.’s conduct or condition was unlikely to change
within a reasonable time. The court therefore ordered termination of D.S.’s parental
rights to all four children.
¶7 On appeal, D.S., challenging only the termination of her rights to T.F. and M.F.,
contends she was steadily improving during the time her children were under the
Department’s care, as evidenced by the fact that the Department had begun reunification.
Accordingly, she argues that the court incorrectly applied § 41-3-604(1), MCA, which
states that termination is presumed to be in the best interests of the child if the child has
been in foster care for fifteen of the last twenty-two months. Attempting to distinguish In
re B.H., 2001 MT 288, 307 Mont. 412, 37 P.3d 736, where we held that the presumption
does not diminish the burden of proof on the party seeking termination, D.S. contends
that, in her case, the presumption impermissibly relieved the State of the burden to prove
that D.S. failed to comply with the treatment plan and was unlikely to change.
¶8 However, the State notes, and we agree, that D.S. failed to raise this issue below.
We will not allow her to raise the issue for the first time on appeal, because it is
fundamentally unfair to fault a district court for failing to rule correctly on an issue it
never had the opportunity to consider. State v. Johnson, 2005 MT 318, ¶ 13, 329 Mont.
497, ¶ 13, 125 P.3d 1096, ¶ 13.
¶9 Finally, D.S. failed to contest the District Court’s findings that D.S. had not fully
completed her treatment plan and that the conditions rendering her unfit were unlikely to
change within a reasonable time. Nonetheless, we note that the court did, in fact, receive
substantial evidence that D.S. failed to complete several parts of her treatment plan and
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that D.S.’s condition was unlikely to change within a reasonable time due to her mental
health needs.
¶10 It is appropriate to decide this case pursuant to our Order of February 11, 2003,
amending Section 1.3 of our 1996 Internal Operating Rules and providing for
memorandum opinions. It is manifest on the face of the briefs and the record before us
that the appeal is without merit because the findings of fact are supported by substantial
evidence, the legal issues are clearly controlled by settled Montana law which the District
Court correctly interpreted, and there was clearly no abuse of discretion by the District
Court.
¶11 We affirm the judgment of the District Court.
/S/ W. WILLIAM LEAPHART
We concur:
/S/ KARLA M. GRAY
/S/ JOHN WARNER
/S/ PATRICIA COTTER
/S/ BRIAN MORRIS
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