In Re Jc-Em

                                                                                          August 25 2009




                                         DA 09-0217

               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                        2009 MT 284N



IN THE MATTER OF:

J.C.-E.M.,

         A Youth in Need of Care.


APPEAL FROM:          District Court of the Eleventh Judicial District,
                      In and For the County of Flathead, Cause No. DN 07-24(A)
                      Honorable Ted O. Lympus, Presiding Judge


COUNSEL OF RECORD:

               For Appellant:

                      Jim Wheelis, Chief Appellate Defender; Lisa S. Korchinski,
                      Assistant Appellate Defender, Helena, Montana

               For Appellee:

                      Hon. Steve Bullock, Montana Attorney General; Jonathan M. Krauss,
                      Assistant Attorney General, Helena, Montana

                      Lucy W. Darty, Assistant Attorney General, Child Protection Unit,
                      Missoula, Montana



                                                   Submitted on Briefs: August 5, 2009

                                                              Decided: August 25, 2009


Filed:

                      __________________________________________
                                        Clerk
Chief Justice Mike McGrath 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    Birth mother L.M. appeals from an order of the Eleventh Judicial District Court,

Flathead County, terminating parental rights to her then 21-month-old son, J.C.-E.M

(J.M.). We affirm.

¶3    The issue on appeal is whether the District Court properly exercised its discretion

when it terminated L.M.’s parental rights with regard to her son J.M. In particular, L.M.

claims that the District Court erroneously approved her stipulation designating J.M. as a

Youth in Need of Care when she signed the stipulation “w/ prejudice.” L.M. further

claims that the District Court erroneously determined that her treatment plan was

appropriate.

¶4    The Department of Public Health and Human Services (DPHHS) initially removed

J.M. from L.M.’s care when he was about three weeks old, because L.M. falsely tested

positive for cocaine and benzodiazepines while she was hospitalized for kidney stones.

The District Court later summarized the nature of the abuse and neglect of J.M. as “the

mother’s criminal history, history of chemical dependency, mental health issues, inability


                                            2
to provide proper care to J.M., and general instability.” On November 20, 2007, DPHHS,

L.M., her counsel, J.M.’s counsel, and a CASA volunteer (the Parties), filed a stipulation

agreeing that “the child shall be designated by the Court as a Youth in Need of Care.”

L.M. wrote “w/ prejudice” next to her signature. The District Court adjudicated J.M. to

be a youth in need of care based on the stipulation.

¶5     After the State obtained temporary legal custody of J.M., the social worker and

L.M. developed a treatment plan together. L.M. was arrested twice in Flathead County

for DUI, resulting in the revocation of L.M.’s probation for a prior Lincoln County

offense of tampering with official records. The Lincoln County judge ordered L.M. to

complete a 90-day chemical dependency treatment and a 6-month pre-release program.

L.M. completed her court-ordered chemical dependency treatment with Passages in

Billings and was transferred to their pre-release program on March 31, 2008. In the

meantime, the District Court approved the treatment plan that L.M. had signed,

specifically finding that it was appropriate. L.M. voluntarily stipulated to the extension

of temporary legal custody of J.M. while she remained in pre-release and needed

additional time to complete the tasks of her treatment plan.         When L.M. failed to

complete her assigned pre-release programs in both Billings and Great Falls, DPHHS

petitioned to terminate L.M.’s parental rights to J.M. Following a hearing with all Parties

present, the District Court issued findings of fact, conclusions of law and an order

terminating L.M.’s parental rights on March 13, 2009.

¶6     This Court reviews a district court’s decision to terminate parental rights for abuse

of discretion. In re D.B. and D.B., 2007 MT 246, ¶ 16, 339 Mont. 240, 168 P.3d 691. In

                                             3
reviewing for abuse of discretion, we consider “whether the trial court acted arbitrarily,

without employment of conscientious judgment, or exceeded the bounds of reason

resulting in substantial injustice.” In re D.B., ¶ 16. Before terminating parental rights, a

district court must make specific factual findings addressing applicable statutory

requirements. In re D.B., ¶¶ 17-18. We review these findings of fact to determine

whether they are clearly erroneous and conclusions of law to determine whether they are

correct. In re D.B., ¶ 18.

¶7     Montana law provides that a court may terminate a parent’s rights upon clear and

convincing evidence that (1) the child has been adjudicated a youth in need of care, (2) an

appropriate court-approved treatment plan has not been complied with or has not been

successful, and (3) the conduct or condition rendering the parents unfit is unlikely to

change within a reasonable time. Section 41-3-609(1)(f), MCA.

¶8     The District Court adjudicated J.M. as a youth in need of care pursuant to the

stipulation of L.M., as authorized by § 41-3-434(1), MCA, on November 20, 2007. L.M.

argues on appeal that the stipulation she signed should be disregarded as involuntary

because she wrote “w/ prejudice” after her signature. L.M. cites no Montana authority to

support her proposition that signing a stipulation with any particular phrase renders that

stipulation involuntary. While “w/ prejudice” may indicate L.M.’s dissatisfaction with

the stipulation, this does not signify that her signature was not knowing and voluntary.

Indeed, there is no other evidence in the record to suggest that her stipulation was

involuntary. The stipulation states that L.M. understood its contents, was advised by

counsel, and signed it voluntarily. The stipulation represents that L.M. knew she had a

                                             4
right to a hearing on the merits of adjudication and that she waived that hearing. The

District Court’s findings of fact determining that J.M. was adjudicated as a youth in need

of care were not clearly erroneous on this record and its conclusions of law were correct.

¶9     The District Court made specific findings that an appropriate treatment plan was

not successful. The court approved a Phase I treatment plan on February 22, 2008,

following a hearing at which L.M.’s attorney advised that L.M. signed the plan and

agreed that it was appropriate. L.M. argues on appeal that her treatment plan was not

appropriate because it did not address her mental health issues. However, the Phase I

treatment plan addressed L.M.’s particular needs relating to chemical dependency and

was intended to be followed by a Phase II treatment plan that would further address other

issues such as L.M.’s mental health. The court’s findings further conclude that L.M. did

not successfully complete her court-ordered Phase I treatment plan, specifically noting

that L.M. was discharged from two pre-release programs following numerous rule

violations. L.M. admitted that she had committed numerous rule violations while in

custody, contrary to the terms of her treatment plan. The court’s findings further note

that L.M. will not be released from prison until October 2009, whereupon she will require

a great deal of time to adjust to starting life anew. The court concluded that the conduct

rendering L.M. unfit as a parent is unlikely to change within a reasonable time. The

District Court’s findings were not clearly erroneous and its conclusions of law were

correct.

¶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, which provides for

                                             5
memorandum opinions. It is manifest on the face of the briefs and the record that the

appeal is without merit because the issues are ones of judicial discretion and there clearly

was not an abuse of discretion.

¶11    Affirmed.


                                                 /S/ MIKE McGRATH


We concur:


/S/ JOHN WARNER
/S/ PATRICIA O. COTTER
/S/ W. WILLIAM LEAPHART
/S/ JIM RICE




                                             6