June 30 2010
DA 10-0021
IN THE SUPREME COURT OF THE STATE OF MONTANA
2010 MT 146N
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:
Elizabeth Thomas, Attorney at Law; Missoula, Montana
(Attorney for Appellant Father)
For Appellee:
Steve Bullock, Montana Attorney General; Mark Mattioli, Assistant
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: May 25, 2010
Decided: June 30, 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. and C.A.D. Jr. are the birth parents 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. C.A.D. Jr. filed a
motion to dismiss, arguing that the emergency removal of C.A.D. III was not justified by
the facts. The District Court denied the motion to dismiss and granted the Department’s
petition.
¶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,
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2009. After 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. Later, pursuant to § 41-3-
609(1), MCA, the Department petitioned for permanent legal custody and termination of
C.A.D. Jr.’s parental rights to C.A.D. III. After hearing, the District Court ordered “[t]hat
the parent-child legal relationship existing between [C.A.D. Jr.] and [C.A.D. III] is
hereby terminated.”
¶4 C.A.D. Jr. challenges the basis for the Department’s initial emergency removal of
C.A.D. III, and the District Court’s denial of his motion to dismiss on that basis. He also
challenges the sufficiency of the evidence in support of the court’s adjudicatory order.
The parental rights of J.K. are not at issue in this appeal.
¶5 “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. We likewise review a district court’s denial of a motion to dismiss for
correctness. In re D.B., 2008 MT 272, ¶ 12, 345 Mont. 225, 190 P.3d 1072. When
reviewing a district court’s determination that a child is abused or 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.
¶6 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
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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.
¶7 Affirmed.
/S/ JIM RICE
We concur:
/S/ MICHAEL E WHEAT
/S/ PATRICIA COTTER
/S/ BRIAN MORRIS
/S/ JAMES C. NELSON
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