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
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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
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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
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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
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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
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