Matter of T.D.D.J.

No. DA 06-0181

IN THE SUPREME COURT OF THE STATE OF MONTANA

2007 MT 4N

IN THE MATTER OF: T.D.D.J.

APPEAL FROM: The District Court of the Twenty-First Judicial District,
In and For the County of Ravalli, Cause No. DN 2005-09,
Honorable Jeffrey H. Langton, Presiding Judge

COUNSEL OF RECORD:

For Appellant Mother:

M. Montgomery, Montgomery Law Offices, PLLC, Hamilton, Montana

For Appellant Father:

Mark McLaverty, Eli M. Parker, McLaverty & Associates, PLLC,
Missoula, Montana

For Respondent:

Hon. Mike McGrath, Montana Attorney General, Mark W. Mattioli,
Assistant Attorney General, Helena, Montana

Howard Recht, Recht and Recht, LLP, Hamilton, Montana

Submitted on Briefs: November 22, 2006

Decided: January 9, 2007

Filed:

__________________________________________
Clerk
Justice Patricia O. Cotter 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 K.J. and H.J. (respectively, the biological father and mother of T.D.D.J.) appeal

the order terminating their parental rights to T.D.D.J. We affirm.

¶3 T.D.D.J. was born in September 2003. In October 2004, K.J. was charged with

issuing a bad check and accountability for issuing a bad check. He pled guilty to these

two charges and was sentenced to ten years, with five suspended. On April 17, 2005,

H.J. was arrested and detained for methamphetamine use.

¶4 As a result of K.J.’s incarceration and H.J.’s arrest, on April 17, 2005, the

Department of Public Health and Human Services (DPHHS), Child and Family Services

Division (CFS) petitioned for emergency protective services and placed T.D.D.J. with his

paternal great-grandparents (Grandparents). The record reveals that the Grandparents

had taken care of T.D.D.J. on several occasions since his birth. On May 11, 2005, the

District Court adjudicated T.D.D.J. a youth in need of care and granted temporary legal

custody to the Department. The Department maintained T.D.D.J.’s placement in kinship

care with his Grandparents. In June 2005, the court approved treatment plans for both

parents.

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¶5 In July 2005, H.J. entered pleas of guilty to three felony charges: criminal

possession of dangerous drugs, fraudulently obtaining dangerous drugs, and

accountability for issuing a bad check. She received a deferred sentence. However, in

November 2005, her deferred sentence was revoked after she violated several conditions

of the sentence. Additionally, prior to her revocation she had received a citation for

shoplifting which included theft of alcoholic beverages. She was also arrested in

September for food stamp theft. She was sentenced in November 2005 to custody of the

Montana Department of Corrections (DOC) for ten years, with five suspended.

¶6 In November 2005, the Department petitioned to terminate K.J.’s and H.J.’s

parental rights. As of that date, T.D.D.J. had been in kinship foster care with his

Grandparents for approximately seven months. The District Court concluded that neither

K.J. nor H.J. had successfully complied with their approved treatment plans and that

neither K.J.’s, nor H.J.’s, conduct or condition was likely to change within a reasonable

time. The court therefore ordered termination of parental rights in accordance with § 41-

3-609(1)(f), MCA (2005).

¶7 On appeal, both K.J. and H.J. argue that the District Court erred in finding that:

(1) DPHHS had made reasonable efforts to reunify the family, and (2) K.J.’s and H.J.’s

conduct was unlikely to change within a reasonable time. In response, DPHHS maintains

that the court’s determinations were supported by substantial evidence, and that the

District Court did not abuse its discretion in terminating their parental rights.

¶8 This Court reviews a district court’s findings of fact to determine if they are

clearly erroneous, and its conclusions of law to determine whether it correctly interpreted

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and applied the law. In re A.N.W., 2006 MT 42, ¶ 28, 331 Mont. 208, ¶ 28, 130 P.3d 619,

¶ 28 (citation omitted). We review a district court’s ultimate decision to terminate

parental rights for abuse of discretion. A.N.W., ¶ 29. This Court will neither re-weigh

conflicting evidence nor substitute its judgment regarding the strength of the evidence for

that of the district court. A.N.W., ¶ 29.

¶9 Section 41-3-609(1)(f), MCA, requires complete compliance with a treatment

plan, as opposed to partial or even substantial compliance. In re T.L., 2005 MT 256, ¶

14, 329 Mont. 58, ¶ 14, 122 P.3d 453, ¶ 14. The evidence shows that DPHHS’s efforts to

reunify the family were thwarted and ultimately unsuccessful because of the parents’

inability or unwillingness to adequately address the serious concerns raised in their

treatment plans. The court received considerable testimony during the termination

hearing with regard to the various legal and drug-related problems of the parents.

Further, sufficient evidence was presented to show that neither parent had succeeded in

complying with the majority of their respective treatment plans, including the

requirements that they maintain safe and suitable housing, undergo CFS-approved

evaluation and treatments, maintain supervised contact with T.D.D.J., and address their

drug and/or legal problems. Additionally, there was ample evidence to support the

conclusion that neither parents’ conditions were likely to change. The court thus

concluded that the treatment plans had been unsuccessful and the behavior of K.J. and

H.J. would not change within a reasonable time. Moreover, evidence was presented

showing the T.D.D.J. was “well-adjusted” and “thriving” under the care of his

Grandparents.

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¶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/ PATRICIA COTTER

We Concur:

/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
/S/ JIM RICE
/S/ BRIAN MORRIS