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In re B.S.

Supreme Court of Montana

July 10, 2018

IN THE MATTER OF: B.S., A Youth in Need of Care.

          Submitted on Briefs: June 20, 2018

          APPEAL FROM: District Court of the Second Judicial District, In and For the County of Butte-Silver Bow, Cause No. DN-16-30-BN Honorable Brad Newman, Presiding Judge

          For Appellant: Kelly M. Driscoll, Montana Legal Justice, PLLC, Missoula, Montana.

          For Appellee: Timothy C. Fox, Montana Attorney General, C. Mark Fowler, Assistant Attorney General, Helena, Montana.

          Eileen Joyce, Butte-Silver County Attorney, Mark Vucurovich, Deputy County Attorney, Butte, Montana.

          OPINION

          Ingrid Gustafson 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 Appellant B.M. (Father) appeals from the October 31, 2017 Findings of Fact, Conclusions of Law and Order Terminating Parental Rights, Re: Birth Father (Order) issued by the Second Judicial District Court, Butte-Silver Bow County. We affirm.

         ¶3 B.S. was born in March 2016. At the time of birth, B.S.'s umbilical cord tested positive for methamphetamine. The Department of Public Health and Human Services, Child and Family Services Division (Department), filed a Petition for Emergency Protective Services, Adjudication of Child as Youth in Need of Care (YINC), and Temporary Legal Custody (TLC) based on imminent danger of neglect related to parents' drug use. Father stipulated to the adjudication of B.S. as a YINC on April 20, 2016. At hearing on May 25, 2016, the District Court ordered a first treatment plan for Father. In November 2016, Father was arrested for parole violations. On December 2, 2016, the Department filed a petition to extend TLC and hearing was held December 21, 2016. Due to incarceration, Father was not present but stipulated to the extension of TLC. Father's counsel also indicated it was unknown how long Father would be incarcerated and thus amendment of a second treatment plan might be necessary in the future. Following this hearing, the Department offered Father a second treatment plan identical to his first treatment plan. Hearing on this second treatment plan was held January 11, 2017. Father was not present but his attorney reported Father had signed the second treatment plan and provided it to his parole officer. The District Court approved the second treatment plan on January 13, 2017. Father did not object to the second treatment plan or file any request to amend or modify it based on his incarceration status.

         ¶4 On June 14, 2017, the Department filed its third petition for extension of TLC. The Department alleged Father was not in compliance with his treatment plan and indicated it intended to reunify B.S. with the birthmother (Mother) and seek termination of Father's parental rights. On August 10, 2017, the Department petitioned to terminate Father's parental rights to B.S. Following hearing on October 25, 2017, from the bench the District Court terminated Father's parental rights. On October 31, 2017, the District Court issued the written Order from which Father appeals.

         ¶5 We review a district court's decision to terminate parental rights for an abuse of discretion. We review findings of fact for clear error. A factual finding is clearly erroneous if it is not supported by substantial evidence, if the court misapprehended the effect of the evidence, or if review of the record convinces us a mistake was made. In re J.B., 2016 MT 68, ¶ 10, 383 Mont. 48, 368 P.3d 715 (citations omitted). We review conclusions of law to determine whether the district court interpreted the law correctly. J.B., ¶ 9 (citation omitted).

         ¶6 This Court reviews a district court's evidentiary rulings for an abuse of discretion. To reverse a district court's evidentiary ruling for an abuse of discretion, this Court must determine the court either acted arbitrarily without employment of conscientious judgment or exceeded the bounds of reason resulting in substantial injustice. In re O.A.W., 2007 MT 13, ¶ 32, 335 Mont. 304, 153 P.3d 6 (citations and quotations omitted).

         ¶7 Father asserts the District Court abused its discretion in terminating his parental rights due to his failure to complete a treatment plan because his second treatment plan was not appropriate in light of his incarceration. Father argues the Department failed to make reasonable efforts designed to reunify him with his child and no clear and convincing evidence demonstrates his conduct was unlikely to change within a reasonable period of time. Father further asserts the District Court abused its discretion when it determined it was in B.S.'s best interest to terminate Father's parental rights. Finally, Father argues the District Court erred when it concluded Father abandoned B.S.

         ¶8 The State argues the District Court did not abuse its discretion by terminating Father's parental rights, as he did not object to the approval of the second treatment plan and substantial evidence supports the District Court's determination that Father failed to complete his treatment plans. The State further argues the Department made reasonable efforts designed to reunify Father with B.S. and evidence supports the District Court's finding that Father's conduct was unlikely to change ...


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