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In re K.J.

Supreme Court of Montana

October 22, 2013

IN THE MATTER OF: K.J., A Youth in Need of Care.

Submitted on Briefs: September 18, 2013

APPEAL FROM: District Court of the Eighth Judicial District, In and For the County of Cascade, Cause No. ADN 11-024 Honorable Greg Pinski, Presiding Judge.

For Appellants: Lisa B. Kauffman, Attorney at Law; Missoula, Montana (for Mother) Jeanne M. Walker; Hagen & Walker, PLLC; Billings, Montana (for Father)

For Appellee: Timothy C. Fox, Montana Attorney General; Jonathan M. Krauss, Assistant Attorney General; Helena, Montana John Parker, Cascade County Attorney; Great Falls, Montana

OPINION

Beth Baker, Justice.

¶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 S.T. (Mother) and R.J. (Father), the biological parents of K.J., both appeal an order of the Eighth Judicial District Court, Cascade County, terminating their parental rights to K.J. and granting permanent legal custody to the Montana Department of Health and Human Services (DPHHS or the Department). We affirm.

¶3 Early in 2011, DPHHS received a report that Mother recently injected and smoked methamphetamine in her home in front of K.J, who was then one year old. The report also indicated that Mother was selling her prescription medications and that assaults by Mother had caused Father to temporarily leave the home. Mother took several voluntary urinalysis tests and repeatedly tested positive for methamphetamine and benzodiazepine. On February 28, 2011, K.J. was removed from his parents' home at the request of the Department. A child protection specialist arranged for a hair sample from K.J., which tested positive for methamphetamine.

¶4 On March 11, 2011, DPHHS filed an amended petition for emergency protective services, adjudication as youth in need of care, and temporary legal custody for K.J. On May 18, 2011, the District Court held a hearing on the petition. Both parents were represented by counsel. No objections were made when the Department advised the court that the parents would be stipulating to adjudication of K.J. as a youth in need of care, and the District Court later concluded in its May 27, 2011 order that the parents had stipulated to adjudication. The court granted temporary legal custody to the Department for six months and ordered treatment plans for both parents. Afterward, both parents filed motions seeking the return of the child. The District Court later denied those motions.

¶5 The Department filed petitions on May 17, 2012, for permanent legal custody and termination of the birth parents' rights. On December 5, 2012, the District Court granted the Department's request for termination of both Mother's and Father's parental rights. In its order, the District Court found by clear and convincing evidence that both parents failed to complete treatment plans—observing, among other things, that Father admitted to using methamphetamines as recently as November 2012 and that Mother's completed urinalysis tests remained "positive for methamphetamine throughout the pendency of this case." The court made a conclusion of law that it previously had adjudicated K.J. as a youth in need of care on May 18, 2011. Finally, the court concluded that neither parent was likely to change within a reasonable period of time and that the best interests of the child were served by terminating both parents' legal rights and granting permanent custody to the Department.

¶6 We review a district court's order terminating parental rights for an abuse of discretion. In re J.C., 2008 MT 127, ¶ 33, 343 Mont. 30, 183 P.3d 22. A district court abuses its discretion when it "acts arbitrarily without conscientious judgment or exceeds the bounds of reason." J.C., ¶ 33. We review the trial court's findings of fact for clear error and its conclusions of law for correctness. In re D.B., 2008 MT 272, ¶ 13, 345 Mont. 225, 190 P.3d 1072.

¶7 Both parents argue on appeal that the District Court failed to follow statutory requirements for adjudicating K.J. a youth in need of care. To terminate parental rights under § 41-3-609(1)(f), MCA, the court first must adjudicate the child as a youth in need of care.

¶8 Parents may stipulate that "the child meets the definition of a youth in need of care by the preponderance of the evidence." Section 41-3-434(1), MCA. The parents argue that the record contains no written stipulation or affirmative statements in open court that they agreed that K.J. is a youth in need of care. Instead, counsel for the Department stated in the May 18, 2011 hearing, "It's my understanding the birth mother and father are going to be stipulating to an adjudication of the youth as a youth in need of care." No objection to this statement was made. The court made a subsequent finding of fact "[t]hat the parents have stipulated to the adjudication of the Youth as a Youth in Need of Care . . . ."

¶9 "To properly preserve an issue for appeal, a party must notify the court at the time the objectionable conduct is at issue." In re A.T., 2006 MT 35, ¶ 15, 331 Mont. 155, 130 P.3d 1249. "Failure to make a timely objection constitutes a waiver of the party's right to appeal." A.T., ΒΆ 15. Neither parent nor counsel for either parent objected to the Department's assertion at the May 18, 2011 hearing, to the court's finding of fact that the parents stipulated to adjudication, or at any ...


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