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In re G.P.

Supreme Court of Montana

February 27, 2018

IN THE MATTER OF: G.P., D.P., and M.P., Youths in Need of Care.

          Submitted on Briefs: February 7, 2018

         APPEAL FROM: District Court of the Sixteenth Judicial District, In and For the County of Custer, Cause Nos. DN 14-08, DN 14-09, and DN 14-10 Honorable Michael B. Hayworth, Presiding Judge

          For Appellant: Gregory D. Birdsong, Birdsong Law Office, PC, Missoula, Montana

          For Appellee: Timothy C. Fox, Montana Attorney General, C. Mark Fowler, Assistant Attorney General, Helena, Montana Wyatt A. Glade, Custer County Attorney, Miles City, Montana

          Beth Baker Justice

         ¶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 T.R. (Mother) appeals the order from the Sixteenth Judicial District Court, Custer County, terminating her parental rights to her three children, G.P., M.P., and D.P. We affirm.

         ¶3 Mother and C.P. (Father) are the birth parents of G.P., M.P., and D.P. In early October 2014, the Montana Department of Public Health and Human Services, Child and Family Services Division (the Department) received a report about the family regarding the conditions of the home, drug use by both birth parents, and ongoing domestic violence. This was not the first report that the Department had received. After an initial investigation by the Department, the children were placed in protective custody on October 20, 2014. The District Court adjudicated the children as Youths in Need of Care in April 2015 and ordered the Department to develop treatment plans for the birth parents. The District Court approved the first Department-proposed treatment plan in July 2015 and a second in January 2016. Mother's treatment plans addressed three areas of concern: possible chronic substance abuse, possible domestic violence, and inability to provide or maintain a safe and clean home. The plans grouped tasks into these three categories and included requirements to complete chemical dependency and psychological evaluations.

         ¶4 From the beginning, the birth parents informed the Department that they would not cooperate or complete any tasks from the treatment plans. They both failed to attend multiple appointments for evaluations that the Department set up for them. They expressed to the Department that they did not feel it was necessary to comply with the treatment plans. They maintained that the Department did not have the right to remove their children because there was no hard evidence of drug use or domestic violence.

         ¶5 The birth parents moved out of Custer County during these proceedings. Two days before the termination hearing, Mother and Father moved to appear at the hearing via Judicial Video Network (JVN) due to outstanding warrants for their arrest in Custer County. The District Court denied the motion, citing the difficulty with communication between the birth parents and their respective counsels, which previously had resulted in multiple continuances. The court addressed the outstanding warrants issue by ordering that, pursuant to § 46-15-120(1), MCA, neither parent could be arrested or subjected to service of process for any matter that arose before the date of the hearing if they came to court for the hearing. Neither Mother nor Father attended the termination hearing.

         ¶6 After the hearing, the District Court terminated both parents' rights under § 41-3-609(1)(f), MCA. The District Court found that the children had been adjudicated Youths in Need of Care, that the treatment plans were appropriate, that Mother and Father had failed to comply with the treatment plans, and that the conduct or condition of the parents rendering them unfit was unlikely to change within a reasonable time.

         ¶7 We review for abuse of discretion a district court's termination of parental rights. In re D.B., 2007 MT 246, ¶ 16, 399 Mont. 240, 168 P.3d 691. A parent's right to the care and custody of children is a fundamental liberty interest, which must be protected by fundamentally fair procedures. In re D.B., ¶ 17. Thus, a district court must adequately address each applicable statutory requirement. In re D.B., ¶ 17. We review a district court's factual findings for clear error and conclusions of law for correctness. In re D.B., ¶ 18.

         ¶8 The State bears the burden of proving by clear and convincing evidence that a treatment plan is appropriate. See § 41-3-422(5)(a)(iv), MCA; In re D.B., ¶ 33. This Court has not adopted "any single, generalized definition of an 'appropriate' treatment plan." In re D.B., ¶ 32. To determine whether a treatment plan is "appropriate, " we consider multiple factors, such as: "whether the parent was represented by counsel, whether the parent stipulated to the plan, and whether the plan 'takes into consideration the particular problems facing both the parent and the child.'" In re D.B., ¶ 32 (quoting In re A.N., 2000 MT 35, ¶ 27, 298 Mont. 237, 995 P.2d 427). Further, "the State has a duty to act in good faith in developing and executing a treatment plan to preserve the parent-child relationship and the family unit." In re D.B., ¶ 33.

         ¶9 Mother argues that the Department failed to prove that her treatment plans were appropriate and that the District Court abused its discretion when it denied her ...

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