May 8 2012
DA 11-0727
IN THE SUPREME COURT OF THE STATE OF MONTANA
2012 MT 103N
IN THE MATTER OF:
E.S.,
A Youth in Need of Care.
APPEAL FROM: District Court of the Eighth Judicial District,
In and For the County of Cascade, Cause No. ADN 10-028
Honorable Thomas M. McKittrick, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Elizabeth Thomas, Attorney at Law, Missoula, Montana
For Appellee:
Steve Bullock, Montana Attorney General; C. Mark Fowler, Assistant
Attorney General, Helena, Montana
Theresa L. Diekhans, Assistant Attorney General, Child Protection Unit,
Great Falls, Montana
Submitted on Briefs: April 17, 2012
Decided: May 8, 2012
Filed:
__________________________________________
Clerk
Justice Brian Morris delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not serve
as precedent. Its case title, 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 Appellant father appeals the District Court’s order terminating his parental rights to
E.S. We affirm.
¶3 Father is the natural father of E.S. The Department removed E.S. from father’s care
on February 24, 2010, after E.S. had been discovered in a hotel room with his father while
the father was intoxicated. Law enforcement discovered methamphetamine and drug
paraphernalia in the hotel room. E.S. suffered from a severe diaper rash and facial bruising.
¶4 Father stipulated to adjudication of temporary legal custody on April 7, 2010. The
court approved a treatment plan for father on April 28, 2010. The treatment plan primarily
sought to address father’s chemical dependency. The birth mother was incarcerated at this
time.
¶5 Father failed to complete his treatment plan. The Department sought termination of
father’s parental rights. Father, at the time of the termination hearing, was serving a two year
commitment with the Department of Corrections (DOC) that he began on June 19, 2011. He
was placed at a substance abuse treatment program in Missoula at the time of the hearing.
Father had no specific release date back in the community as of the hearing date.
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¶6 The District Court considered testimony from various social workers involved with
the case and made findings of fact and conclusions of law. The court determined that the
conduct or condition rendering father unfit or unable to care for E.S. was unlikely to change
within a reasonable amount of time given his lack of progress in the treatment plan and his
two-year commitment to DOC. E.S. was two years old at the time of the termination
hearing. The court noted that E.S. had spent the majority of his life in foster care by the time
of the hearing. Based on clear and convincing evidence, the court terminated father’s
parental rights. Father appeals.
¶7 Father argues on appeal the District Court abused its discretion in determining that
termination was in E.S.’s best interest. Father argues that E.S.’s best interest would have
been served by a guardianship with the paternal grandmother. The State counters that the
District Court had no obligation to resolve the possible guardianship placement of E.S. with
the paternal grandmother.
¶8 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. We will not disturb a
district court’s decision on appeal under these circumstances unless “there is a mistake of
law or a finding of fact not supported by substantial evidence that would amount to a clear
abuse of discretion.” In re M.N., 2011 MT 245, ¶ 14, 362 Mont. 186, 261 P.3d 1047. We
have determined to decide this case pursuant to Section I, Paragraph 3(d), of our 1996
Internal Operating Rules, as amended in 2006, that provides for memorandum opinions. It is
manifest on the face of the briefs and record before us that substantial evidence supports the
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District Court’s findings of fact and that the District Court correctly applied the law to these
facts.
¶9 Affirmed.
/S/ BRIAN MORRIS
We Concur:
/S/ MIKE McGRATH
/S/ JAMES C. NELSON
/S/ PATRICIA COTTER
/S/ JIM RICE
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