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In re E.V.C.C.

Supreme Court of Montana

July 10, 2018

IN THE MATTER OF: E.V.C.C., A Youth in Need of Care.

          Submitted on Briefs: May 16, 2018

          APPEAL FROM: District Court of the Second Judicial District, In and For the County of Butte-Silver Bow, Cause No. DN-15-53-BN Honorable Brad Newman, Presiding Judge.

          For Appellant: Jennifer Dwyer, Law Office of Jennifer Dwyer, PLLC, Bozeman, Montana

          For Appellee: Timothy C. Fox, Montana Attorney General, Ryan Aikin, Assistant Attorney General, Helena, Montana

          Ross Richardson, Henningsen, Vucurovich & Richardson, Butte, Montana.


          Mike McGrath Chief 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 S.C. (Mother) appeals from the Second Judicial District Court's order terminating Mother's parental rights to her child, E.V.C.C. We affirm.

         ¶3 E.V.C.C. was born on August 20, 2014. On May 27, 2015, the Department of Public Health and Human Services, Child and Family Services Division (the Department) received a report that Mother was arrested at her residence for possession of drug paraphernalia, marijuana, and possible methamphetamine. The Department had investigated Mother for child abuse and neglect on eight prior occasions. Upon her arrest, Mother was taken to Butte Pre-Release for a urinary analysis. She tested positive for methamphetamine. After completing a present danger plan, the Department removed E.V.C.C. and placed E.V.C.C. in foster care.[1]

         ¶4 On June 23, 2015, the Department filed a Petition for Emergency Protective Services, Adjudication as Youth in Need of Care (YINC), and Temporary Legal Custody (TLC). On July 8, 2015, the District Court held a hearing regarding the Department's petition. Mother and Father stipulated to adjudication of E.V.C.C. as a YINC and to TLC. A treatment plan was prepared for Mother and approved by the District Court on July 31, 2015. The treatment plan was designed to address Mother's chemical dependency and mental health issues. She was required to abstain from using drugs and alcohol, "maintain a safe and stable home that is drug/alcohol free," and prohibited from allowing known drug users into her home. It also required supervised visits and Mother to regularly contact the Department.

         ¶5 Numerous petitions to extend TLC of E.V.C.C. were filed over the next year and a half, all of which were approved by the District Court. On June 18, 2017, almost two years after the child was removed from Mother's custody, the Department filed a Petition for Permanent Legal Custody and Termination of Parental Rights with Right to Consent to Adoption. On August 23, 2017, the District Court held a hearing on the Department's petition. Testimony from the hearing established that while Mother complied with some of her treatment plan's requirements, she did not comply with the chemical dependency and safe and stable housing requirements. Specifically, Mother continued to use marijuana and consistently failed to maintain housing that was safe and appropriate for a child. The District Court concluded that termination of Mother's parental rights was in the best interest of E.V.C.C., and that Mother's conduct or condition was unlikely to change within a reasonable time. On August 25, 2017, the District Court terminated Mother's parental rights. Mother appeals.

         ¶6 This Court reviews a district court's decision to terminate parental rights for an abuse of discretion. In re A.S., 2016 MT 156, ¶ 11, 384 Mont. 41, 373 P.3d 848. A district court abuses its discretion when it acts arbitrarily, without employing conscientious judgment, or exceeds the bounds of reason, resulting in substantial injustice. In re K.A., 2016 MT 27, ¶ 19, 382 Mont. 165, 365 P.3d 478. We review findings of fact for clear error and conclusions of law for correctness. In re E.Z.C., 2013 MT 123, ¶ 19, 370 Mont. 116, 300 P.3d 1174. A finding of fact is clearly erroneous if it is not supported by substantial evidence, if the court misapprehended the effect of the evidence, or if this Court is left with a definite and firm conviction that the district court made a mistake. In re T.W.F., 2009 MT 207, ¶ 17, 351 Mont. 233, 210 P.3d 174.

         ¶7 A court may terminate parental rights when (1) a child has been adjudicated as a YINC; (2) an appropriate treatment plan that has been approved by the court has not been complied with by the parent or has not been successful; and (3) the conduct or condition of the parent's rendering him or her unfit is unlikely to change within a reasonable time. Section 41-3-609(1)(f), MCA. Each factor must be supported by clear and convincing evidence. Section 41-3-609(1), MCA.

         ¶8 Mother argues that the District Court abused its discretion when it concluded the factors of § 41-3-609(1)(f), MCA, were satisfied. The District Court determined that Mother failed to comply with her treatment plan. A parent must completely comply with her treatment plan, as partial or even substantial compliance is not sufficient. In re S.M., 2001 MT 11, ¶ 44, 304 Mont. 102, 19 P.3d 213. Although Mother complied with parts of her treatment plan, she tested positive for marijuana on multiple occasions after her treatment plan was established. Urinary analyses performed on February 7, February 23, March 1, and March 21, 2017, were all positive for marijuana. Mother asserts that methamphetamine was the Department's main concern when it created her treatment plan, and that she uses marijuana for medical purposes. However, her treatment plan specifically requires her to maintain a ...

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