August 24 2009
DA 09-0106; DA 09-0107
IN THE SUPREME COURT OF THE STATE OF MONTANA
2009 MT 279N
IN THE MATTER OF
B.L. and C.T.,
Youths in Need of Care.
APPEAL FROM: District Court of the Eighth Judicial District,
In and For the County of Cascade, Cause Nos. BDJ-08-0102-Y and
BDJ-08-228-Y
Honorable Julie Macek, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Jim Wheelis, Chief Appellate Defender; Koan Mercer, Assistant Appellate
Defender, Helena, Montana
For Appellee:
Hon. Steve Bullock, Montana Attorney General; Matthew T. Cochenour,
Assistant Attorney General, Helena, Montana
John Parker, Cascade County Attorney, Great Falls, Montana
Submitted on Briefs: July 15, 2009
Decided: August 24, 2009
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 Mother appeals the District Court’s order terminating her parental rights to B.L. and
C.T. We affirm.
¶3 The Department of Public Health and Human Services (Department) earlier had
terminated mother’s rights to three other children based upon allegations that mother had
exposed them to a sex offender who currently is incarcerated for child pornography. The
Department placed B.L. in foster care after mother allowed B.L. to have unsupervised
contact with B.L.’s father, a registered sex offender. The Department specifically instructed
mother not to allow B.L. to have any contact with her father.
¶4 The Department learned on April 18, 2008, that Phillip Pyne, a registered sex
offender, was having contact with B.L. A child protection specialist for the Department
went to B.L.’s house and encountered Pyne outside the residence. Mother was asleep inside
the house at the time. Mother admitted to the Department that she knew Pyne was a sex
offender, but she contended that she was not concerned about Pyne having contact with B.L.
and had “no problem” with him sleeping unsupervised in the same room as B.L. The
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Department placed B.L. in protective custody based on mother’s lack of concern regarding
Pyne’s conduct with B.L. and the mother’s prior history associated with sex offenders.
¶5 B.L. told the Department that she slept in a “big bed” in the living room and that Pyne
slept on the couch in the living room when Pyne slept at mother’s house. B.L. further
informed the Department that she slept poorly on those occasions because Pyne “keeps
trying to put his hand in my underwear.” B.L. informed the Department that Pyne had
succeeded in getting his hand in her underwear. When B.L. told her mother what had
happened, mother responded only by stating that Pyne was a “crackhead.”
¶6 The Department filed a petition for emergency protective services, adjudication as a
youth in need of care, and temporary legal custody of B.L. Mother stipulated that B.L. was a
youth in need of care and the court adjudicated B.L. as a youth in need of care. Mother
further stipulated that the State should have temporary legal custody of B.L. and mother
stipulated to a treatment plan.
¶7 The treatment plan called for mother to get counseling to raise her level of self-esteem
and increase her ability to protect herself and her children from sex offenders. Mother had
been an abuse victim herself as a child. The Department did not provide the counseling
services and mother failed to get them on her own. The Department eventually sought to
terminate mother’s parental rights to B.L., and to her newborn son, C.T., and the court
granted the request. Mother appeals.
¶8 Mother argues on appeal that the Department failed to make reasonable efforts at
reunification when it did not provide her with the required counseling. Mother further
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contends that the District Court erred when it allowed the Department to file a petition for
termination and then proceed directly to termination without the State having requested or
proven that reunification services need not be provided. Mother further argues that the
District Court erred when it terminated her parental rights to her newborn son based upon its
findings that she had not completed a treatment plan that was court ordered in a separate case
five months before the newborn’s birth. Mother raises these last two issues for the first time
on appeal and asks the Court to review them under our plain error standard. We decline.
¶9 We review for an abuse of discretion a district court’s decision to terminate parental
rights. In re D.B., 2007 MT 246, ¶ 16, 339 Mont. 240, 168 P.3d 691. The court abuses its
discretion when it acts arbitrarily, without conscientious judgment, or when it exceeds the
bounds of reason and causes substantial injustice. In re D.B., ¶ 16. We review a district
court’s findings of fact for clear error and a court’s conclusions of law for correctness. In re
D.B., ¶ 18. 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 provide for memorandum
opinions. It is manifest on the face of the briefs and record before us that substantial
evidence supports the District Court’s findings of fact and that the District Court’s legal
conclusions were correct.
¶10 We affirm.
/S/ BRIAN MORRIS
We Concur:
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/S/ JOHN WARNER
/S/ W. WILLIAM LEAPHART
/S/ JIM RICE
/S/ JAMES C. NELSON
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