August 17 2010
DA 10-0115
IN THE SUPREME COURT OF THE STATE OF MONTANA
2010 MT 182N
IN THE MATTER OF:
C.A.D. III,
A Youth in Need of Care.
APPEAL FROM: District Court of the Twentieth Judicial District,
In and For the County of Lake, Cause No. DN 08-21
Honorable C.B. McNeil, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Johnna K. Baffa; Van de Wetering Law Offices, P.C.; Missoula, Montana
(Attorney for Appellant Mother)
For Appellee:
Steve Bullock, Montana Attorney General; Helena, Montana
Lucy Darty, Assistant Attorney General, Child Protection Unit;
Missoula, Montana
Mitch Young, Lake County Attorney; Kurt Moser, Deputy County
Attorney; Polson, Montana
Submitted on Briefs: July 28, 2010
Decided: August 17, 2010
Filed:
__________________________________________
Clerk
Justice Jim Rice 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 2006, 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 J.K. is the birth mother of C.A.D. III. On July 18, 2008, the Department of Public
Health and Human Services (Department) removed C.A.D. III from the care and custody
of his parents, pursuant to § 41-3-301, MCA. The Department based its decision to
immediately remove the child upon the parents’ violation of voluntary protection service
agreements, illegal drug use, domestic violence, and their lack of parenting skills. After
removing C.A.D. III, the Department petitioned for temporary investigative authority and
emergency protective services. J.K. filed a motion to dismiss, arguing that the
emergency removal of C.A.D. III was not justified by the facts. C.A.D. Jr., the child’s
birth father, filed a similar motion. The District Court denied the motions.
¶3 J.K. and C.A.D. Jr. entered into a stipulation on October 22, 2008, agreeing to
undergo chemical dependency testing and take parenting education classes, and C.A.D.
Jr. additionally agreed to participate in anger management counseling. When they failed
to abide by these terms, the Department filed a petition for adjudication of C.A.D. III as a
youth in need of care and for temporary legal custody, on January 16, 2009. After
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hearing, the District Court concluded that C.A.D. III was a youth in need of care and
granted temporary legal custody to the Department. J.K., represented by counsel, agreed
to a treatment plan on April 29, 2009, to be completed by August 1, 2009. On
September 4, 2009, the Department petitioned for permanent legal custody and
termination of J.K.’s parental rights to C.A.D. III, pursuant to § 41-3-609(1), MCA.
After hearing, the District Court granted the petition. C.A.D. Jr.’s parental rights were
also terminated.
¶4 J.K. challenges the basis for the Department’s initial emergency removal of
C.A.D. III and the District Court’s denial of her motion to dismiss on that basis. She also
challenges the District Court’s conclusion that the statutory criteria regarding the
appropriateness of the treatment plan and the likelihood that her condition would change
within a reasonable time was supported by sufficient evidence.
¶5 Recently, we addressed the initial emergency removal of C.A.D. III, at issue here
in the appeal prosecuted by C.A.D. Jr., and affirmed the District Court’s denial of the
motion to dismiss as correctly entered. In re C.A.D., III, 2010 MT 146N. We reach the
same conclusion here.
¶6 “The standard of review of a district court’s findings of fact in a parental
termination case is whether the findings in question are clearly erroneous.” In re K.C.H.,
2003 MT 125, ¶ 12, 316 Mont. 13, 68 P.3d 788. “The standard of review of a district
court’s conclusions of law in such cases is whether its conclusions are correct.” In re
K.C.H., ¶ 12. When reviewing a district court’s determination that a child is abused or
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neglected, as well as a decision to terminate parental rights, we review for an abuse of
discretion. In re D.H., 264 Mont. 521, 524-26, 872 P.2d 803, 805-06 (1994); In re
K.J.B., 2007 MT 216, ¶ 22, 339 Mont. 28, 168 P.3d 629.
¶7 We have determined it is appropriate to decide this case pursuant to Section I,
Paragraph 3(d) of our 1996 Internal Operating Rules, as amended in 2006, which
provides 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 District Court’s factual
findings are not clearly erroneous, the District Court did not abuse its discretion, and the
legal issues are controlled by settled Montana law, which the District Court correctly
interpreted.
¶8 Affirmed.
/S/ JIM RICE
We concur:
/S/ MIKE McGRATH
/S/ PATRICIA COTTER
/S/ JAMES C. NELSON
/S/ MICHAEL E WHEAT
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