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In re X.S.

Supreme Court of Montana

February 14, 2017

IN THE MATTER OF: X.S., K.S., A.S., and I.S., Youths in Need of Care.

          Submitted on Briefs: January 25, 2017

         APPEAL FROM: District Court of the Nineteenth Judicial District, In and For the County of Lincoln, Cause Nos. DN-15-17, DN-15-18, DN-15-19, DN-15-20 Honorable James B. Wheelis, Presiding Judge

          For Appellant: Tracy Labin Rhodes, Attorney at Law, Missoula, Montana

          For Appellee: Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana, Bradley Custer, Assistant Attorney General, Kalispell, Montana, Bernard G. Cassidy, Lincoln County Attorney, Libby, Montana



         ¶1 Pursuant to Section I, Paragraph 3(c), 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 J.S. (Father) appeals the Nineteenth Judicial District Court's orders terminating his parental rights to his four children, X.S., I.S., A.S., and K.S.[1] We affirm.

         ¶3 The Child and Family Services Division of the Department of Health and Human Services (the Department) received numerous reports over the course of approximately four years of Father's lack of parenting skills and motivation to parent, his alleged drug use, and his children's exposure to unsanitary living conditions. Father entered into voluntary service agreements with the Department in October 2014 and March 2015, but he failed consistently to participate in mental health counseling or random drug testing in accordance with the agreements. Father completed a psychological and a chemical dependency evaluation in which he was diagnosed with bipolar disorder and marijuana abuse in early remission.

         ¶4 The Department petitioned for Emergency Protective Services, Adjudication as Youth in Need of Care, and Temporary Legal Custody for each of Father's four children in July 2015. The District Court granted these petitions, and the children were removed from Father's care.

         ¶5 Father agreed without objection to a court-approved treatment plan in October 2015. Under the terms of the treatment plan, Father committed to regularly attend mental health counseling sessions, submit to random drug testing, maintain safe and stable housing, maintain contact with the Department, and regularly visit and communicate with his children, among other things.

         ¶6 Father failed to comply with his treatment plan. He attended some counseling sessions but was discharged after missing several consecutive sessions. He failed a drug test and then missed a subsequent scheduled test. He did not communicate regularly with the Department or with his children. In fact, between the start of the treatment plan in October 2015 and the termination hearing in July 2016, he requested only one visit with his children. Father moved to Idaho in February 2016 to live with his mother and his biological father, a registered sex offender, contrary to his commitment to maintain a safe and stable home. ¶7 The Department petitioned for termination of Father's parental rights in April 2016. A hearing was scheduled for June and then continued to July 2016. Around the time that the Department filed its petition, Father told the Department he wanted to continue drug testing. Shortly before the July hearing, Father successfully completed "a few" drug tests and asked the Department to help him re-enroll in counseling and to coordinate a visit with his children.

         ¶8 The hearing proceeded as scheduled, and the court granted the Department's petition for termination. It concluded that "[t]he last minute efforts that [Father] made, while credible, " were "insufficient" to show that his conduct was likely to change within a reasonable time. The court followed with written findings of fact and conclusions of law. It explained that the Department had made reasonable efforts to reunite Father with his children, but that Father had failed to comply with the treatment plan. The court found that the conduct or condition rendering him unfit to parent was not likely to change within a reasonable time based upon Father's failure to timely address the issues that caused the children to be adjudicated as youths in need of care.[2] Father appeals.

         ¶9 We review for abuse of discretion a district court's termination of parental rights. In the Matter of C.J., 2010 MT 179, ¶ 20, 357 Mont. 219, 237 P.3d 1282. We determine whether the district court's findings of fact are clearly erroneous and whether its conclusions of law are correct. Matter of C.J., ¶ 20. Whether a district court violated a parent's constitutional right to fundamentally fair proceedings is a question of constitutional law for which this Court's review is plenary. In the Matter of B.W.S., 2014 MT 198, ¶ 10, 376 Mont. 43, 330 P.3d 467.

         ¶10 Father first argues that the termination proceeding violated his constitutional right to due process because the District Court erroneously applied a legal presumption under § 41-3-604(1), MCA, that termination was in the best interests of the children. He also maintains that his right to fundamentally fair procedures was compromised because the court apparently lost consciousness and had difficulty hearing during the proceeding. At the termination hearing, Father's attorney objected to a question that the Department's attorney asked of one of the witnesses. After the objection, the court stated, "You know what I just passed out. What was the question again?" After a brief ...

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