March 16 2010
DA 09-0593
IN THE SUPREME COURT OF THE STATE OF MONTANA
2010 MT 47
IN THE MATTER OF J.A.S.,
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 08-051C
Honorable Stewart E. Stadler, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Elizabeth Thomas, PLLC; Missoula, Montana
For Appellee:
Hon. Steve Bullock, Montana Attorney General; Mark Mattioli,
Assistant Attorney General, Helena, Montana
Ed Corrigan, Flathead County Attorney; Katie F. Schulz, Deputy
County Attorney, Kalispell, Montana
Submitted on Briefs: February 23, 2010
Decided: March 16, 2010
Filed:
__________________________________________
Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 This is an appeal by M.C., the birth mother of J.A.S., from the September 28,
2008, order of the District Court of the Eleventh Judicial District terminating her parental
rights. We affirm.
¶2 The issue on appeal is whether the District Court properly terminated M.C.’s
parental rights to J.A.S.
BACKGROUND
¶3 The State, through the Department of Public Health and Human Services, filed the
initial petition for emergency services in December, 2008, when J.A.S. was less than a
month old. In late November and early December, 2008, medical and social services
providers in Flathead County became aware of the condition of J.A.S. Hospital personnel
observed him with unexplained chest and leg bruising, and M.C. failed to bring him for a
follow-up examination. Social workers searched for but were unable to find M.C. and
J.A.S.
¶4 M.C. brought the baby to the hospital again, where doctors observed chest,
abdominal and scrotal bruising. They also found rib factures of varying ages and a
fractured right tibia that they determined were not accidentally caused. The baby also
had weight loss, frequent vomiting and feeding problems. M.C. admitted to using drugs
during the pregnancy, and to using cocaine, marijuana and methamphetamine. M.C.
reported her suspicion that her boyfriend Roy may have injured the baby although she
later shifted the blame to her stepmother. M.C. has failed to successfully identify the
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father of J.A.S., and several possibilities she named were ruled out through DNA testing.
When the suspected child abuse was reported to the sheriff’s office, officers discovered
that M.C. had an outstanding arrest warrant from Texas for robbery. M.C. was arrested
for extradition to Texas and J.A.S. was placed in foster care when he was only a month
old.
¶5 M.C. had a history of child care problems in Montana going back to 2005 because
she exposed her two older children to domestic violence and drug use. On two occasions
when social services providers got involved to investigate the condition of the children,
M.C. left the state. Social workers working with J.A.S. in Montana learned that M.C.’s
two prior children were removed from her in Texas because of her drug use. She was
extradited to Texas where she was placed on probation for the robbery conviction. She
then committed another felony involving a stolen credit card and in March, 2009, was
sentenced to prison in Texas for two years.
¶6 In May, 2009 the State filed a petition for termination of parental rights because of
M.C.’s long term incarceration and the needs of the baby. The District Court held a
hearing on the petition in September, 2009, receiving testimony from Sue Kates, the
social worker who had been working on the case of J.A.S. Kates testified as to M.C.’s
criminal history and history of social services involvement with her children. She
described the baby’s myriad injuries and health issues arising from neglect, poor care and
deliberate abuse. She described the baby’s significant improvement and weight gain
since living with foster parents who want to adopt him. She testified that the baby had
bonded with the foster parents and that it would be detrimental to his psychological and
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emotional health to be removed from them in several years after M.C. is released from
prison.
¶7 M.C. testified from Texas, blaming her stepmother for the injuries to the baby.
She also proposed various scenarios, one of which required enactment of new legislation
in Texas, under which she might obtain early release from prison. She admitted that she
had not completed addiction and parenting classes required by her prior deferred sentence
and that she committed a second felony while on probation. She proposed that a
purported husband in Texas could drive the older children to Montana to see her, but she
admitted that he had not even brought them to visit her in Texas.
¶8 The District Court found that J.A.S. would be over two years old when M.C. gets
out of jail in Texas, and that even if she were finally able to straighten out her life after
release and complete a treatment plan, it would take another year or two before she would
be in a position to have the child returned to her care. M.C.’s history with child
protective services agencies in Montana and Texas arose from her mental health issues,
including depression, failure to take medication and suicidal ideation. M.C.’s children
were removed from her care in both states because of her drug use, the failure of the
children to grow and thrive, and exposure of the children to domestic violence. She has a
history of drug use involving cocaine, methamphetamine, and marijuana in addition to
alcohol abuse.
¶9 The District Court found that the baby deserved permanency and that M.C. had
not shown any likelihood that she could provide the care he or her other children needed.
The many services and efforts made by the State to safeguard the health of the baby and
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to allow M.C. to continue to have custody had not eliminated the necessity of
intervention. Considering M.C.’s history of substance abuse, her failure to participate in
ordered treatment, her continued criminal conduct, and her long-term imprisonment, the
District Court found that the conditions that rendered her unfit were unlikely to change in
a reasonable time.
¶10 The District terminated the parent-child legal relationship between M.C. and
J.A.S. and awarded permanent legal custody of J.A.S. to the Department of Public Health
and Human Services with the right to consent to adoption.
STANDARD OF REVIEW
¶11 This Court reviews a district court’s order terminating parental rights for abuse of
discretion, In the Matter of J.V., 2003 MT 68, ¶ 7, 314 Mont. 487, 67 P.3d 242. The
district court is required to give primary consideration to the physical, mental and
emotional needs of the child. Matter of J.V., ¶ 8.
DISCUSSION
¶12 The primary issue on appeal is whether the District Court could order the
termination of M.C.’s parental rights without first providing her with the opportunity to
complete a treatment plan. The State’s Petition for Termination of Parental Rights was
based upon § 41-3-609(1)(f) and (4), MCA. Subsection (1)(f) empowers a district court
to order termination of parental rights if the child is adjudicated as a youth in need of
care, if an appropriate treatment plan has not been complied with or has not been
successful, and if the conduct or condition of the parent rending her unfit is unlikely to
change within a reasonable time. Subsection (4)(c) provides that a treatment plan is not
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required if the parent “is or will be incarcerated for more than 1 year and reunification of
the child with the parent is not in the best interests of the child because of the child’s
circumstances, including placement options, age, and developmental, cognitive and
psychological needs. . . .” A treatment plan is an agreement or court order that specifies
the actions a parent must take to resolve the conditions that resulted in the need for
protective services for the child. Section 41-3-102(30), MCA.
¶13 The District Court found in this case that M.C. would be incarcerated for more
than one year, and that reunification with J.A.S. was not in the child’s best interest
because of the abuse he suffered, his unmet needs as an infant, and the likelihood that
continuation of the parent-child relationship could result in continued abuse or neglect.
The District Court found that M.C.’s conduct that threatened the health and safety of
J.A.S. was not likely to change in a reasonable time because of her history of substance
abuse, her failure to participate in treatment, her continuing criminal activity, her history
of domestic violence and her incarceration.
¶14 The District Court properly applied § 41-3-609, MCA, to determine whether to
terminate M.C.’s parental rights in this case. Under subsection (1)(f) of that statute,
J.A.S. had been adjudicated a Youth in Need of Care on December 23, 2008. While
M.C. was never subject to a treatment plan, subsection (4)(c) clearly provides that
parental rights may be terminated without implementation of a treatment plan if the
parent is or will be incarcerated for more than a year and reunification is not in the best
interests of the child. In the Matter of A.N.W., 2006 MT 42, ¶ 55, 331 Mont. 208, 130
P.3d 619. Therefore, since M.C. was incarcerated for more than a year, there was no
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requirement that a treatment plan be implemented prior to termination of her parental
rights.
¶15 It is also clear that even though there was no treatment plan, the State made
reasonable efforts to avoid permanent removal of the baby from M.C.’s custody. J.A.S.
was in clear immediate physical danger when he was brought to the hospital suffering
from neglect and with significant inflicted physical injuries including broken bones.
M.C. was soon thereafter returned to face charges in Texas, where she committed another
felony leading to her current long-term incarceration. The State meanwhile was working
to determine the best and safest future for the very young child. A potential placement
with a family member of M.C. was ruled out when the family member failed a drug test.
Placement with the child’s father was ruled out when DNA testing showed that none of
the men identified by M.C. could have been the father of the child.
¶16 The paramount best interests of the baby required that he be placed in a stable and
caring home. M.C.’s best plan was that she would complete her Texas jail term, transfer
her probation supervision to Montana, take the bus back to Montana, live with relatives
while working and saving money, successfully complete a treatment plan, and then be in
a position to regain custody of J.A.S. Even if that plan worked completely and without
any delays, J.A.S. would be two to three years old before M.C. would be able to seek re-
unification. At that point J.A.S. would have to be removed from the only home and
foster parents he had ever known.
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¶17 In addition, M.C.’s plan does not account for her two other children who now live
in Texas or how she planned to care for or even relate to them. As the District Court
explained:
The Court has given primary consideration to the physical, mental and
emotional conditions and needs of the child. JAS is not even a year old.
He deserves permanency and 16 months is much too long for a child to wait
for his parent to return to see if she is even able to care for him. MC has
not shown she can parent her older two children and has established no
viable plan to provide for them upon her release or how she could care for
all her children as is her stated intention.
The State succeeded in placing J.A.S. in a foster family where his life turned around and
he is thriving. His future is promising and he has escaped the egregious abuse and
neglect that he suffered in the short month that he was in the custody of M.C.
¶18 Therefore, under § 41-3-609(4)(c), MCA, it is clear that reunification with M.C. is
not in the best interest of the child, considering placement options, his age, and his
developmental, cognitive and psychological needs.
¶19 The decision of the District Court is affirmed.
/S/ MIKE McGRATH
We concur:
/S/ MICHAEL E WHEAT
/S/ W. WILLIAM LEAPHART
/S/ BRIAN MORRIS
/S/ JIM RICE
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