No. DA 07-0070
No. DA 07-0071
IN THE SUPREME COURT OF THE STATE OF MONTANA
2007 MT 127N
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IN THE MATTER OF THE CUSTODY AND
PARENTAL RIGHTS OF M.A. and J.A.,
Youths In Need of Care.
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APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade, Cause Nos. BDJ 06-111-Y
and BDJ 06-112-Y
The Honorable Julie Macek, Presiding Judge.
COUNSEL OF RECORD:
For Appellant:
Jim Wheelis, Chief Appellate Defender; Joslyn Hunt, Assistant Appellant
Defender, Helena, Montana
For Respondent:
Mike McGrath, Attorney General; Mark W. Mattioli, Assistant Attorney
General, Helena, Montana
Brant S. Light, Cascade County Attorney; Sarah Corbally, Deputy County
Attorney, Great Falls, Montana
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Submitted on Briefs: May 16, 2007
Decided: May 31, 2007
Filed:
_____________________________________________
Clerk
Justice Brian Morris delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d)(v), 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 W.K. appeals from the decision of the Eighth Judicial District Court, Cascade
County, denying her motion for a continuance of her termination hearing and the court’s
order terminating her parental rights to her children, M.A. and J.A. We affirm.
¶3 The Department of Public Health and Human Services (Department) petitioned for
emergency protective services regarding M.A. and J.A. on March 16, 2006. The
Department alleged that W.K. had attempted suicide by ingesting sixty Tegratol pills
while the children had been sleeping. W.K. stipulated at the show cause hearing on April
25, 2006, that probable cause existed for the Department’s petition. The District Court
adjudicated the children as youths in need of care.
¶4 The court held the dispositional hearing on May 4, 2006, at which W.K. was
present. W.K. agreed to a treatment plan. The court approved the treatment plan on May
4, 2006, and ordered W.K. to complete it.
¶5 The treatment plan called for, among other things, that W.K. address her mental
health problems, that she obtain a chemical dependency evaluation and follow its
recommendations, that she maintain a safe home and employment, that she attend and
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complete anger management classes, that she attend parenting classes, and that she
maintain contact with the children and her social worker during the dependency treatment
plan. The Department petitioned for termination of W.K.’s parental rights in October
2006. The court set a hearing on the Department’s petition for January 11, 2007.
¶6 W.K. failed to appear for the termination hearing and her counsel moved for a
continuance. W.K.’s counsel informed the court that he did not know why W.K. was not
at the hearing, but speculated that W.K. may have been attempting to obtain an
independent psychological evaluation. The District Court denied the motion and
proceeded to the merits of the Department’s petition.
¶7 The Department presented the testimony of a social worker and two mental health
professionals. The District Court determined that W.K. had failed to complete nearly
every portion of her proposed treatment plan and that the continuation of the parent-child
legal relationship likely would result in continued abuse and neglect of the children due
to W.K.’s failure to address and resolve her mental health issues.
¶8 We review a denial of a motion for continuance under an abuse of discretion
standard. State v. Walker, 225 Mont. 415, 419, 733 P.2d 352, 355 (1987). W.K. argues
on appeal that the District Court’s denial of her motion for continuance constitutes an
abuse of discretion in light of the fact that W.K. was in the process of obtaining an
independent psychological evaluation. W.K. contends that she was having difficulty
obtaining an independent psychological evaluation because of her financial constraints.
¶9 We also review a district court’s decision to terminate a person’s parental rights
under an abuse of discretion standard. In re Custody and Parental Rights of C.J.K., 2005
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MT 67, ¶ 13, 326 Mont. 289, ¶ 13, 109 P.3d 232, ¶ 13. To satisfy the relevant statutory
requirements for terminating the parent-child relationship, a district court must make
specific factual findings. In re C.J.K., ¶ 13. We review a district court’s findings of fact
to determine whether those findings are clearly erroneous. In re Custody and Parental
Rights of M.A.D., 2003 MT 10, ¶ 12, 314 Mont. 38, ¶ 12, 62 P.3d 717, ¶ 12. We review
the court’s conclusions of law with respect to those findings to determine whether the
court correctly interpreted and applied the law. In re M.A.D., ¶ 12.
¶10 We have determined to decide this case pursuant to Section I, Paragraph 3(d), of
our 1996 Internal Operating Rules, as amended in 2003, that provides for memorandum
opinions. It is manifest on the face of the briefs and record before us that the District
Court did not abuse its discretion in denying W.K.’s motion for a continuance. It also is
manifest on the face of the briefs and record before us that substantial evidence supports
the District Court’s findings of fact. Finally, it also is manifest on the face of the briefs
and record before us that settled Montana law clearly controls the legal issues and that the
District Court correctly interpreted the law.
¶11 We affirm the judgment of the District Court.
/S/ BRIAN MORRIS
We Concur:
/S/ KARLA M. GRAY
/S/ PATRICIA COTTER
/S/ W. WILLIAM LEAPHART
/S/ JAMES C. NELSON
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