APPEAL FROM: District Court of the Twentieth Judicial District, In and For the County of Lake, Cause Nos. DN 11-10 & DN 11-11 Honorable C.B. McNeil, Presiding Judge
The opinion of the court was delivered by: Beth Baker
Submitted on Briefs: October 10, 2012
Decided: November 20, 2012
Justice Beth Baker 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 B.J. (Father), the biological father of D.J.(1) and D.J.(2), appeals the orders of the Montana Twentieth Judicial District Court, Lake County, terminating his parental rights to his daughters and granting permanent legal custody to the Montana Department of Public Health and Human Services (DPHHS or the Department). We affirm.
¶3 On June 21, 2011, D.J.(1) left her home in Pablo, Montana and walked down the road to a library on the Salish Kootenai College campus. D.J.(1) asked library workers to call the police because her father had sexually assaulted her and her sister, D.J.(2). A Lake County Sheriff's officer responded to the call and, after speaking briefly with D.J.(1), the officer called Alice Phelan (Phelan), a DPHHS child protection specialist, and asked her to provide assistance.
¶4 One week later, the State filed a petition for emergency protective services for D.J.(1) and D.J.(2) and requested that they be adjudicated as youths in need of care and that DPHHS be granted temporary legal custody of both girls. The petition included a report from Phelan, recounting the girls' allegations of Father's physical and sexual abuse, the services offered to Father, and Phelan's recommendations for temporary legal custody and other temporary relief during the pendency of the proceedings. The court held a hearing on the matter, at which time the State and Father stipulated that the Department should be granted temporary legal custody of D.J.(1) and D.J.(2). Father's stipulation was conditioned on the State agreeing to provide supervised visitation on a regular basis to J.J., his mother (Grandmother).
¶5 Based on those stipulations and on its conclusion that "[t]here has been sufficient evidence presented to establish, by a preponderance of the evidence, that [D.J.(1) and D.J.(2) are Youths in Need of Care] as defined in MCA 41-3-102," the court entered two orders adjudicating the girls as youths in need of care and granting temporary legal custody to DPHHS. Father later moved for an adjudicatory hearing and requested that his stipulation be withdrawn because Grandmother had not been granted sufficient visitation. Father argued that he had never stipulated to a youth in need of care determination and that the court was required by law to hold an adjudicatory hearing for that purpose. The Department responded, agreeing that the parties had not stipulated on the record that D.J.(1) and D.J.(2) were to be adjudicated youths in need of care and advising the court that it had no objection to the setting of a hearing and intended to file a motion to terminate Father's parental rights. Based on these filings, the court scheduled an adjudicatory hearing.
¶6 Before the adjudicatory hearing could be held, the State filed a petition to terminate Father's parental rights to D.J.(1) and D.J.(2) after the State learned that he previously had been convicted of lewd conduct with a minor child under the age of sixteen while living in Idaho. The State's petition argued that the court was authorized to terminate the parent-child legal relationship under § 41-3-609(1)(d), MCA, because "the father has subjected a child to an aggravated circumstance pursuant to Mont. Code. Ann. § 41-3-423(2)(a)." Father filed a motion to dismiss the petition on the grounds that the District Court erroneously had adjudicated D.J.(1) and D.J.(2) to be youths in need of care on the basis of his stipulation to temporary legal custody, and not after what he claimed was a required adjudicatory hearing. The court denied Father's motion.
¶7 On March 21, 2012, the District Court held a hearing on the State's petition for termination. Phelan testified to the reports of abuse and neglect that D.J.(1) and D.J.(2) had made and explained why the Department had concluded that Father's parental rights should be terminated. She stated that D.J.(1) and D.J.(2) were "terrified" of their father and that "their major fear is that they'll [be] reunited with him before they're adults and unable to protect themselves better."
¶8 Based on the evidence that had been presented, the court found it was in the best interests of D.J.(1) and D.J.(2) for Father's parental rights to be terminated under § 41-3-609(1)(d), MCA. The court concluded that it lawfully could terminate his parental rights without adjudicating the children as youths in need of care because it had determined that Father had subjected a child to an aggravated circumstance pursuant to § 41-3-423(2)(a), MCA. The court further concluded that it previously found ...