February 9 2010
DA 09-0362
IN THE SUPREME COURT OF THE STATE OF MONTANA
2010 MT 31N
IN THE MATTER OF:
J.N.C.,
A Youth in Need of Care.
APPEAL FROM: District Court of the Twenty-First Judicial District,
In and For the County of Ravalli, Cause No. DN 06-20
Honorable James A. Haynes, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Kathleen Foley; Boggs & Foley Law Office, Missoula, Montana
For Appellee:
Hon. Steve Bullock, Montana Attorney General; John Paulson,
Assistant Attorney General, Helena, Montana
Submitted on Briefs: January 20, 2010
Decided: February 9, 2010
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 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 Birth mother A.M. appeals from an order of the Twenty-First Judicial District
Court, Ravalli County, terminating her parental rights to 15-year-old son, J.N.C. We
affirm.
¶3 A.M. raises the following issues on appeal:
¶4 Whether the District Court’s finding that A.M. was not capable of change within a
reasonable time was supported by clear and convincing evidence.
¶5 Whether the District Court erred by not appointing a separate guardian ad litem for
J.N.C. after appointing separate counsel for the youth due to a conflict of interest.
¶6 Whether the District Court’s finding that termination of A.M.’s parental rights is
in J.N.C.’s best interests was supported by clear and convincing evidence.
¶7 Whether a de facto termination of A.M.’s parental rights occurred prior to the
termination hearing when the social worker stopped efforts to assist A.M. in accessing
services required by her treatment plan.
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¶8 On November 21, 2006, the Montana Department of Public Health and Human
Services (Department) filed a petition requesting emergency protective services,
adjudication as youths in need of care, and temporary legal custody of J.N.C., then 13
years old, as well as his two younger half-sisters; this petition followed the arrest and
incarceration of their father and the mother of his half-sisters. J.N.C.’s birth mother,
A.M., was living in Spokane, Washington, when the Department intervened. J.N.C. had
been living with his father since 2001, following a Washington superior court order
constraining A.M.’s parental rights due to willful abandonment, child abuse, domestic
violence, neglect of parenting functions, long-term parental impairment by substance
abuse, and absence or impairment of emotional ties between mother and child. The
Washington court limited A.M.’s visitation with J.N.C. to two hours a week under
supervision.
¶9 On March 8, 2007, the District Court adjudicated J.N.C. as a youth in need of care
and granted temporary legal custody to the Department. A.M. acquiesced in the
Department’s petition and did not contest the adjudication. On May 17, 2007, the court
approved a treatment plan for A.M. On November 10, 2008, the Department filed a
petition for termination of parental rights and permanent legal custody of J.N.C. The
court held hearings on the petition on March 9, 2009, April 17, 2009, and May 4, 2009.
On May 22, 2009, the District Court issued its findings of fact, conclusions of law, and
order terminating A.M.’s parental rights. A.M. now appeals the termination of her
parental rights.
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¶10 This Court reviews a district court’s decision to terminate parental rights for abuse
of discretion. Matter of D.B. & D.B., 2007 MT 246, ¶ 16, 339 Mont. 240, 168 P.3d 691.
In 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.” Matter of D.B., ¶ 16. Before terminating
parental rights, a district court must make specific factual findings addressing applicable
statutory requirements. Matter of 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. Matter of D.B., ¶ 18.
¶11 Whether the District Court’s finding that A.M. was not capable of change within a
reasonable time was supported by clear and convincing evidence.
¶12 Montana law provides that a court may terminate parental 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 parent unfit is unlikely to
change within a reasonable time. Section 41-3-609(1)(f), MCA.
¶13 J.N.C. was adjudicated a youth in need of care and A.M. conceded that she had not
completed her treatment plan. A.M. argues that the Department has not proven by clear
and convincing evidence that the conduct or condition rendering her unfit was not likely
to change within a reasonable period of time. A.M. argues that the court essentially
collapsed two requirements of § 41-3-609(1)(f), MCA, by using evidence of her
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noncompliance with the treatment plan as evidence of her inability to change within a
reasonable time.
¶14 The District Court order meets the statutory requirements. The court found that
A.M.’s “conduct and condition that led to the Department’s intervention has not been
successfully corrected or resolved. This condition includes A.M.’s unresolved chemical
dependency, her unstable lifestyle that is unsuited to caring for her child, and the lack of
an appropriate parent-child relationship with her child.” The court specifically found that
“[t]he conduct and condition of A.M. is unlikely to change within a reasonable time,
which is evidenced by her failure to make any significant progress on her Treatment
Plan.” The court further found that “[t]he continuation of the parent-child relationship
with A.M. will likely result in continued abuse or neglect” and that “[t]he conduct or
condition of A.M. renders her unfit, unable or unwilling to give her child adequate
parental care.”
¶15 The court looked to more than A.M.’s noncompliance with her treatment plan as
evidence that the conduct rendering her unfit to parent was unlikely to change within a
reasonable time. The court supported this finding by noting A.M.’s inability to provide a
nurturing and healthy living environment for J.N.C., her ongoing chemical dependency,
and her unfamiliarity with J.N.C.’s disorders, including reactive-attachment disorder,
significant learning disabilities, and cognitive problems. A.M. counters that she
completed treatment and was staying clean. However, A.M.’s background of long-term
drug use, criminal activities, and homelessness, together with her failed attempts at
treatment and ongoing substance abuse, is set out at length in the social worker’s report to
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the court. Although the court did list some positive changes A.M. has made to improve
the stability of her life, a parent’s past behavior is considered in determining fitness to
parent in the future. Matter of A.J.E., III, 2006 MT 41, ¶ 27, 331 Mont. 198, 130 P.3d
612. “[E]vidence of rehabilitation does not render a district court powerless to find future
danger to the child. . . .” Matter of A.J.E., ¶ 27. The determination of future ability to
parent under § 41-3-609(1)(f)(ii), MCA, must be based in part on the parent’s past
conduct, because it is not otherwise possible to anticipate whether the parent’s conduct or
condition will change within a reasonable time. Matter of D.F., 2007 MT 147, ¶ 23, 337
Mont. 461, 161 P.3d 825. The issue is not merely whether a parent has made progress or
would make some progress in the future; the issue is whether the parent is likely to make
enough progress, within a reasonable time, to overcome the circumstances rendering her
unfit. Matter of D.F., ¶ 43. A.M. fails to demonstrate that the District Court’s findings
are clearly erroneous.
¶16 Whether the District Court erred by not appointing a separate guardian ad litem
for J.N.C. after appointing separate counsel for the youth due to a conflict of interest.
¶17 A.M. contends that the District Court should have appointed another guardian ad
litem at the time it appointed separate counsel for J.N.C. due to a conflict of interest
between J.N.C. and his half-sisters. However, the record contains no request, by A.M. or
anyone else, to appoint a separate guardian ad litem for J.N.C. This Court generally
refuses to consider an issue raised for the first time on appeal. Matter of Custody and
Parental Rights of D.A. & M.A., 2008 MT 247, ¶ 33, 344 Mont. 513, 189 P.3d 631.
Furthermore, given that the focus of the termination hearing was on A.M.’s compliance
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with her treatment plan, the appointment of a new guardian ad litem for J.N.C. would not
have had a significant impact on the result. “[N]o civil case shall be reversed by reason
of error which would have no significant impact upon the result. . . .” Matter of D.B. &
D.B., 2008 MT 272, ¶ 38, 345 Mont. 225, 190 P.3d 1072. The District Court did not err
by not appointing a separate guardian ad litem for J.N.C.
¶18 Whether the District Court’s finding that termination of A.M.’s parental rights is
in J.N.C.’s best interests was supported by clear and convincing evidence.
¶19 A.M. suggests that given J.N.C.’s stated preference to live with his mother, the
court lacked clear and convincing evidence that terminating A.M.’s parental rights was in
J.N.C.’s best interests. However, the judge discussed his intent to put J.N.C. in the best
position, particularly to finish high school, and that when J.N.C. turns 18 years old, he
may have whatever contact with his natural parents that he chooses.
¶20 The District Court specifically found that “[t]he actions of A.M. have been
contrary to the best interests and welfare of her child.” The court’s extensive findings
indicating that it gave primary consideration to the child’s “physical, mental and
emotional condition and needs,” reflect the statutory definition of the best interests of the
child provided at § 41-3-102(5), MCA. The court recited the factual background leading
to J.N.C.’s placement at the Bitterroot Youth Home and found that A.M., “while
expressing a desire to parent him, has done no work on her Treatment Plan until very
recently, and insufficient work recently, nor has she demonstrated the ability to provide
J.N.C. with the high level of parental care he needs.” The court found that J.N.C.’s
current placement is in his best interests because the placement is designed to meet his
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individual needs. The court further found that it is in J.N.C.’s best interests for the court
to reach a permanent resolution, since permanency is crucial to his health, safety, and
well-being. The court cited the report of the guardian ad litem that after two years and
multiple placements, J.N.C. required immediate permanency and certainty. The court
noted J.N.C.’s desire to live with his mother, but noted that he was “on track to graduate
from high school, if he remains in a stable placement setting.”
¶21 Furthermore, the District Court concluded that since J.N.C. had been in foster care
under the physical custody of the Department for more than 15 of the most recent 22
months, the best interests of J.N.C. must be presumed to be served by termination of the
parental rights of his parents, citing § 41-3-604(1), MCA. The court held that terminating
the parental rights of A.M. was in the best interests of J.N.C. considering his physical,
mental, and emotional conditions and needs. Contrary to A.M.’s suggestion, the District
Court considered J.N.C.’s stated desire to live with his mother. The court’s findings and
conclusions are based upon the statutory definition of the best interests of the child and
are supported by clear and convincing evidence. The District Court’s findings of fact are
not clearly erroneous and its conclusions of law are correct.
¶22 Whether a de facto termination of A.M.’s parental rights occurred prior to the
termination hearing when the social worker stopped efforts to assist A.M. in accessing
services required by her treatment plan.
¶23 A.M. suggests that her treatment plan was not entirely appropriate, that her
compliance with the plan was frustrated by poverty and geography, and that the social
worker had refused to provide a telephone calling card to J.N.C. so that he could call
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A.M. A.M. does not allege or show any error by the court with respect to this claim.
A.M. and her counsel stipulated to the appropriateness of her treatment plan, and the
record contains no objection to the plan or request for modification at any time during the
protracted proceedings. The social worker at the time of the hearing was cross-examined
at length concerning the Department’s decision to seek termination of A.M.’s parental
rights and the Department’s efforts to assist A.M. in completing her treatment plan. The
social worker stated that she did not stop assisting A.M. with her treatment plan and
explained the reasons for refusing J.N.C.’s request for a phone card. A.M. fails to
establish any error in the District Court’s findings and we conclude that the District Court
did not abuse its discretion in terminating her parental rights.
¶24 We have determined 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 that the
appeal is without merit because the issues are ones of judicial discretion and there clearly
was not an abuse of discretion.
¶25 Affirmed.
/S/ MIKE McGRATH
We concur:
/S/ W. WILLIAM LEAPHART
/S/ PATRICIA O. COTTER
/S/ JIM RICE
/S/ BRIAN MORRIS
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