In the Matter of Ps

No. 05-387

IN THE SUPREME COURT OF THE STATE OF MONTANA

2006 MT 4

IN THE MATTER OF P.S.,

A Youth in Need of Care.

APPEAL FROM: The District Court of the Eighteenth Judicial District,
In and For the County of Gallatin, Cause No. DN 2003-01,
Honorable Ed McLean, Presiding Judge

COUNSEL OF RECORD:

For Appellants:

Kirsten Mull Core, Attorney at Law, Bozeman, Montana (For Mother)

R. Stan Peeler, Peeler Law Office, Bozeman, Montana (For Father)

For Respondent:

Honorable Mike McGrath, Attorney General; Tammy K. Plubell and
Peter Bovingdon, Assistant Attorneys General, Helena, Montana

Marty Lambert, County Attorney, Bozeman, Montana

Ralph W. Steele, Tarlow & Stonecipher, Bozeman, Montana (For Guardian
Ad Litem)

Karen Tkach, Bozeman, Montana (Guardian Ad Litem)

Submitted on Briefs: November 9, 2005
Decided: January 10, 2006
Filed:

__________________________________________
Clerk
Justice W. William Leaphart delivered the Opinion of the Court.

¶1 In two separate hearings, the Eighteenth Judicial District Court, Gallatin County,

terminated the parental rights of L.W. and M.S. with regard to their daughter, P.S. On

different grounds, both parents appeal. We restate the issues as follows:

¶2 1. Did the District Court err by involuntarily terminating M.S.’s parental rights, rather

than allowing M.S. to voluntarily relinquish his parental rights during the termination

hearing?

¶3 2. Did the District Court properly exercise its discretion when it terminated LW.’s

parental rights to P.S.?

BACKGROUND

¶4 L.W. gave birth to a baby girl, P.S., on October 7, 2002. At twenty-two days old,

P.S.’s father, M.S., was arrested for a domestic altercation with L.W.; another physical

altercation between M.S. and L.W. occurred approximately one month later. These acts of

violence took place in the presence of P.S. When a social worker met with L.W. to discuss

concerns regarding P.S., L.W. admitted to using marijuana, but claimed it did not affect her

ability to parent. In light of the domestic violence disputes, drug use, as well as L.W.’s

extensive history with mental problems, including time spent in and out of residential

treatment, the Department of Public Health and Human Services (DPHHS) filed a petition for

temporary legal custody of P.S.

¶5 On January 7, 2003, the District Court filed an order for immediate protection of P.S.

and appointed counsel for all parties, and guardian ad litem, Karen Tkach (Tkach), to

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represent P.S. Based on an affidavit filed by social worker Gayle Frandsen, the court

determined that probable cause existed “to believe that P.[S]. is abused or neglected or in

danger of being abused or neglected and that immediate protection of the child is required.”

L.W. and M.S. were ordered to appear for a show cause hearing, at which time the court

explained the procedures to be followed, including their right to admit or deny the allegations

contained in the petition and to provide testimony. After considering all of the evidence,

including L.W.’s and M.S.’s stipulations that probable cause existed, the court determined

that P.S. required “further immediate protection” and ordered that in the best interest of the

child, she “should remain in temporary out-of-home care.” On February 3, 2003, the court

entered an order adjudicating P.S. a “youth in need of care” and ordered DPHHS to develop

treatment plans for L.W. and M.S. At the subsequent dispositional hearing, the court

approved separate treatment plans for L.W. and M.S., awarded temporary legal custody to

DPHHS for six months, ordered that L.W. and M.S. each be permitted to visit P.S. through

Hearts and Homes at least two times per week (contingent upon clean, random urine tests)

and scheduled a review hearing date.

¶6 Over much of the next two years, P.S. remained in the custody of DPHHS, while the

Department worked with L.W. and M.S. in hopes of reuniting the parents with their daughter.

Despite DPHHS’s efforts to reunify, community social worker Nikki Neville (Neville) filed

an affidavit on October 1, 2004, for termination of M.S.’s parental rights as P.S.’s father.

Neville concluded that while M.S. had successfully completed some of his treatment plan

goals—including attaining his GED and taking parenting classes through Hearts and

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Homes—overall, he had trouble maintaining the expected level of compliance. M.S. failed to

consistently provide a safe and stable home for himself and P.S. (in part due to losing his job)

and frequently tested positive for drug use. Psychological evaluations indicated that M.S.

had deficient coping skills, including acting in an angry, rebellious and poorly controlled

manner when unable to avoid emotional situations—all consistent with his history of

criminal behavior. Since losing custody of his daughter, M.S. was a suspect in two burglaries

and was charged with disorderly conduct as the result of an altercation with L.W. A

psychiatric evaluation reported as problematic M.S.’s significant depressive symptoms and

lack of interest in exploring feelings or psychological issues. While M.S. initially completed

the Intensive Outpatient treatment through Alcohol and Drug Services of Gallatin County, he

failed to follow through with the aftercare portion of the program. M.S. further failed to

comply with his treatment plan when he used drugs and did not attend Alcoholics

Anonymous/Narcotics Anonymous and Anger Management classes. Because of M.S.’s

inconsistent job history, Neville expressed doubt over his ability to provide. Moreover, by

the end of 2003, due to drug use and failure to schedule visitations, M.S. had gone

approximately six months without seeing his daughter. In light of M.S.’s irregular visits with

his daughter, Neville had serious concerns with M.S.’s failure to understand the importance

of a strong bond and consistent contact with his child.

¶7 At the same time DPHHS filed a petition to terminate M.S.’s parental rights, it also

sought to place P.S. with her mother, L.W. Guardian ad litem Tkach did not agree with

DPHHS and recommended termination of L.W.’s parental rights, as well. The court

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conducted a review hearing and ultimately decided to extend DPHHS’s temporary legal

custody of P.S. Shortly thereafter, DPHHS changed its stance and Neville filed an affidavit

for termination of L.W.’s parental rights. Neville explained that while L.W. completed the

minimum requirements of her treatment plan—including providing suitable housing,

completing a psychological evaluation and following recommendations, completing a

chemical dependency evaluation, allowing departmental access to her home and maintaining

acceptable contact with Neville, participating in mental health counseling and psychiatric

treatment, completing parenting classes, and cooperating with her AWARE case manager

and therapeutic aide—there were many difficulties along the way. L.W. was in an

automobile accident and suffered a broken neck the day after the court initially granted

DPHHS custody of P.S. Consequently, L.W. required ongoing medical treatment to deal

with her physical pain. Neville concluded that L.W. displayed a lack of judgment regarding

her medication—apparently consuming more than the recommended dosage—and often

appeared “out of it” or “loopy” during phone calls or house visits by providers; at times she

slurred her words to the point of being incomprehensible. In violation of her treatment plan,

L.W. admitted to drinking wine and failed to understand the problem with such conduct; she

also spent much of her time with people engaged in illegal drug use, although evidence

revealed no use of illegal substances on L.W.’s part. In addition, L.W. was convicted of

stealing a purse belonging to a foster child during one of her visits to Hearts and Homes.

¶8 In March of 2005, during two separate termination hearings, the District Court heard a

variety of testimony from public officials involved in P.S.’s well-being. During the hearing

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addressing M.S.’s rights as father, M.S. requested a sidebar after the State called its fifth

witness, at which time he explained his willingness to “voluntarily relinquish parental

rights,” but objected “to relinquishing parental rights in an involuntary fashion . . . .”

(Emphasis added.) In response, the court stated that unless M.S. agreed that the State would

not be required to provide a treatment plan to M.S. prior to initiating termination proceedings

regarding any future children M.S. may have (in accordance with § 41-3-423(2)(e), MCA),

the court would deny voluntary relinquishment and instead terminate M.S.’s parental rights

involuntarily. After a short recess and another sidebar, M.S. restated his request to

voluntarily relinquish his parental rights before the State fully presented its case, while the

State countered that it should finish presenting evidence sufficient to terminate. The court

ultimately allowed the termination hearing to continue, and concluded that it was in the best

interest of P.S.—a youth in need of care—to terminate M.S.’s parental rights and award

custody to DPHHS. The court further stated “that [it] does this with the understanding that

[M.S.] questions the authority of the Court to proceed with the termination after the father

has, number one, relinquished his parental rights and, number two, waived his right to

counseling prior to relinquishing his rights.”

¶9 During the second hearing, in which the court addressed L.W.’s parental rights,

several witnesses involved with her treatment plan testified, including DPHHS officials, law

enforcement and physicians—all of whom believed L.W. had made minimal progress since

the State took on her case two years earlier. Neville, who initially favored granting L.W.

custody, asserted that L.W.’s tendency to engage in unhealthy, unsafe and deceptive

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behaviors, warranted termination of her parental rights. Based on testimony from fifteen

witnesses, the court concluded that L.W. “had not come far enough to safely and adequately

parent her child”; therefore, in the best interests of P.S., it ordered her parental rights

terminated and awarded permanent legal custody to DPHHS.

STANDARD OF REVIEW

¶10 “In reviewing a decision to terminate parental rights, this Court determines whether

the district court’s findings of fact supporting termination are clearly erroneous and whether

the district court’s conclusions of law are correct. 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. This Court will not disturb a district court’s

findings on abuse and neglect unless a mistake of law exists or the factual findings are not

supported by substantial evidence.” In the Matter of F.M. and D.M., 2002 MT 180, ¶ 21, 311

Mont. 35, ¶ 21, 53 P.3d 368, ¶ 21 (citations omitted).

DISCUSSION

Issue 1

Did the District Court err by involuntarily terminating M.S.’s parental rights, rather than

allowing M.S. to voluntarily relinquish his parental rights during the termination hearing?

¶11 Section 41-3-609, MCA, instructs the following with regard to termination of parental

rights:

41-3-609. Criteria for termination. (1) The court may order a
termination of the parent-child legal relationship upon a finding established by
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 clear and convincing evidence . . . that any of the following circumstances
exist:
(a) the parents have relinquished the child pursuant to 42-2-402 and 42-
2-412;
(b) the child has been abandoned by the parents;
(c) the parent is convicted of a felony in which sexual intercourse
occurred or is a minor adjudicated a delinquent youth because of an act that, if
committed by an adult, would be a felony in which sexual intercourse occurred
and, as a result of the sexual intercourse, the child is born;
(d) the parent has subjected a child to any of the circumstances listed in
41-3-423(2)(a) through (2)(e);
(e) the putative father meets any of the criteria listed in 41-3-423(3)(a)
through (3)(c); or
(f) 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.

(Emphasis added.) Importantly, if the court involuntarily terminates a parent’s rights under

§ 41-3-609, MCA, DPHHS may forego “reasonable efforts to provide preservation or

reunification services” to that parent with regard to any future children placed with DPHHS.

Section 41-3-423(2)(e), MCA.

¶12 Section 42-2-402(1), MCA, states that voluntary relinquishment of a child is valid if

“the parent specifically relinquishes custody of the child to [DPHHS], a licensed child-

placing agency, or a specifically identified prospective adoptive parent . . . .” During the

termination hearing, the District Court made it clear that it would proceed with involuntary

termination unless M.S. stipulated that, should he have children in the future, the State would

not be required to provide him with a treatment plan prior to seeking termination of parental

rights. M.S. argues that no rational basis, nor statute, exists for requiring such a stipulation

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and that the only reason “to obtain an involuntary termination was to affect future children

that M.S. may have . . . [because] the State does not want to be obligated to provide a

treatment plan prior to seeking termination of parental rights.” Additionally, M.S. argues, the

fact that he verbally relinquished his parental rights under oath before the District Court

determined to involuntarily terminate his parental rights effectively preempted the court’s

determination and removed the issue from the court.

¶13 The State does not deny M.S.’s contention that it desires to simplify termination of

M.S.’s parental rights to future children, should he have any. Instead, the State argues in

response that no legal authority requires the District Court to allow a parent to voluntarily

relinquish his parental rights midway through a termination hearing in order to avoid the

court involuntarily terminating parental rights pursuant to § 41-3-609, MCA. The State

contends that in accordance with due process, DPHHS properly filed a petition to terminate

M.S.’s parental rights as mandated by § 41-3-604(1), MCA, and at the termination hearing

the District Court had the option to terminate M.S.’s parental rights pursuant to § 41-3-

609(1)(f)—due to abuse and/or neglect, rather than relinquishment. “If M.S. wished to

voluntarily relinquish custody of P.S.,” the State asserts, “then he should have done so before

P.S. had spent two years in foster care waiting for him to become rehabilitated, and DPHHS

provided him with numerous resources to enable him to become rehabilitated.” According to

the State, the only reason M.S. decided at the last minute to voluntarily relinquish his

parental rights during the termination hearing was because he “realized he had no defense to

present against the termination petition . . . .”

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¶14 Neither party cites case authority for their arguments. However, § 41-3-609(1)(a),

MCA, states that voluntary relinquishment is only one of several criteria a District Court may

take into account when ordering the termination of the parent-child legal relationship.

Specifically, subsection (1) states that “[t]he court may order a termination of the parent-

child legal relationship upon a finding established by clear and convincing evidence. . . that

any of the following circumstances exist: (a) the parents have relinquished the child pursuant

to 42-2-402 and 42-2-412 . . . .” 1 The statute then lists the other circumstances that permit

court termination of parental rights in (b) through (f). In other words, even assuming a

voluntary relinquishment of parental rights is valid under § 42-2-402, MCA, it is only one of

several different criteria by which a “court may order a termination of the parent-child legal

relationship . . . .” Section 41-3-609, MCA. Thus, despite M.S.’s contention that his

voluntary relinquishment of parental rights to P.S. sufficiently terminated his rights, thereby

precluding the court from continuing the hearing and ordering involuntary relinquishment, §

41-3-609(1)(a), MCA, clearly states otherwise—that is, although the court “may” take into

account voluntary relinquishment when determining whether to involuntarily terminate a

parent’s rights, it is not required to do so. Voluntary relinquishment is only one of six bases

for termination that are stated in the disjunctive We conclude that the District Court

complied with statutory law by ordering the involuntary termination of M.S.’s parental rights.

1
Section 42-2-402(1)(a), MCA, in turn, requires that before a voluntary relinquishment
is valid, the department to which the child is being relinquished must agree in writing to
accept custody until the child is adopted. Here, the record indicates that the Department had
not, and would not, agree in writing to accept custody pursuant to a voluntary relinquishment.

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 Issue 2

Did the District Court properly exercise its discretion when it terminated L.W.’s parental

rights to P.S.?

¶15 L.W. asserts a two-part argument that the District Court abused its discretion in

terminating her parental rights. First, L.W. “contends that although she stipulated that [P.S.]

met the legal definition of ‘youth in need of care’. . . the Court could not later use her

stipulation [at the termination hearing], without presenting the factual basis as a prerequisite

to terminating her parental rights to P.S.” We disagree. By definition, to “stipulate” is to

“[a]rrange or settle definitely, as an agreement or covenant.” BLACK’S LAW DICTIONARY,

1415 (6th ed. 1990). Thus, when L.W. stipulated to P.S. as a youth in need of care pursuant

to § 41-3-434, MCA, she definitively agreed that her daughter was “abused, neglected, or

abandoned.” Section 41-3-102(29), MCA. The court had no obligation to further establish

the factual basis for adjudicating P.S. as a youth in need of care. Moreover, the record does

not indicate that L.W. raised this issue during the lower court proceedings. This Court will

not review an issue raised for the first time on appeal. In re Custody of N.G.H., 1998 MT

212, ¶ 19, 290 Mont. 426, ¶ 19, 963 P.2d 1275, ¶ 19. We conclude that the District Court

properly ordered termination of L.W.’s parental rights, in part, based on P.S.’s status as an

adjudicated youth in need of care.

¶16 The second part of L.W.’s argument is that the District Court based its decision on

mistakes of fact and insufficient evidence, thus abusing its discretion. In its findings of fact,

conclusions of law and order terminating L.W.’s parental rights, the District Court cited the

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testimony of numerous witnesses involved in the termination hearing. The court’s findings

concluded with the following summation:

[L.W.] may have minimally completed her treatment plan, but the plan was not
successful. The professionals who worked with [L.W.] should be commended
for their extraordinary effort. This Court believes that she made progress due
in large part to their work, but it is clear she has not come far enough to safely
and adequately parent her child.

....

In making these findings, the Court considered the emotional illness,
mental illness, or mental deficiency of the parent of a 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, and the 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. In doing so, the Court gave primary
consideration to the physical, mental, and emotional conditions and needs of
the child.

¶17 L.W. contends that the court’s order includes “several mistakes of fact, attributing

statements to witnesses that were not made by the witness . . . [and that] the findings made

are clearly erroneous as they are not supported by substantial evidence.” Specifically, L.W.

points out that the District Court’s termination order inaccurately attributed testimony by one

witness to another witness. The court also misstated that L.W. was convicted of stealing a

“phone,” when in fact, the item was a purse. L.W.’s greatest contention, however, is that the

court order neglected to reference the positive testimony from hearing witnesses and instead

focused only on the negative testimony. While the termination order does in fact include

misstatements, these misstatements are immaterial to the court’s conclusion. And while it is

true that several witnesses provided positive testimony regarding L.W.’s progress, most of

these witnesses also expressed grave concerns, as well.
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¶18 As previously noted, “[t]his Court will not disturb a district court’s findings of abuse

and neglect unless a mistake of law exists or the factual findings are not supported by

substantial evidence.” In the Matter of F.M. and D.M., ¶ 21 (citations omitted). We

conclude that the District Court did not abuse its discretion in this case. Reviewing the

record as a whole, the court, with the exception of minor immaterial misstatements, based its

decision to terminate L.W.’s parental rights on factual findings supported by substantial

testimonial evidence from a variety of professionals.

CONCLUSION

¶19 We affirm the District Court’s termination of M.S.’s and L.W.’s parental rights to

their daughter, P.S.

/S/ W. WILLIAM LEAPHART

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We concur:

/S/ KARLA M. GRAY
/S/ JOHN WARNER
/S/ BRIAN MORRIS
/S/ PATRICIA O. COTTER
/S/ JIM RICE
/S/ JAMES C. NELSON

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