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In re K.F.

Supreme Court of Montana

August 28, 2018

IN THE MATTER OF: K.F. and T.F. IV, Youths in Need of Care.

          Submitted on Briefs: August 1, 2018.

          APPEAL FROM: District Court of the Second Judicial District, In and For the County of Silver Bow, Cause No. DN 15-79 Honorable Brad Newman, Presiding Judge.

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

          For Appellee Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana.

          Eileen Joyce, Silver Bow County Attorney, Mark Vucurovich, Special Deputy County Attorney, Butte, 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 T.F. III (Father) appeals the Silver Bow County District Court's January 5, 2018, Orders terminating his parental rights to his children (Children) K.F. (born in 2010), and T.F. IV (born in 2006). Although a separate cause number was assigned for each child's case, proceedings occurred simultaneously in the District Court with shared factual information and procedural histories. We consolidated these two cases for purposes of appeal. Father has also appealed the termination of his parental rights to half sibling P.F. in DA 18-0057 who, unlike K.F. and T.F. IV, may be an Indian child. A separate opinion is being issued in P.F.'s case to address the potential Indian Child Welfare Act issues not present here. We affirm.

         ¶3 On September 11, 2015, the Child and Family Services Division of the Montana Department of Public Health and Human Services (Department) filed a Petition for Emergency Protective Services (EPS), Adjudication of Child as Youth in Need of Care (YINC), and Temporary Legal Custody (TLC) regarding the Children due to concerns of domestic violence, drug use, Father absconding from conditional release, and inappropriate people in the home with the children. K.F. and T.F. IV's mother is deceased. Half-sibling P.F.'s mother, C.F., married Father in September 2014. Upon removal, the Children were initially placed with paternal grandparents, then with Father's girlfriend Emily, then in the Watson Children's Shelter in Missoula.

         ¶4 At hearing October 21, 2015, Father stipulated to the court adjudicating the Children as YINC and granting the Department TLC for six months. TLC was extended several times and the last TLC order was granted on September 11, 2017. On November 17, 2015, the District Court approved Father's first Treatment Plan. On September 13, 2016, the Department filed a second Treatment Plan for Father which provided separate requirements if Father was incarcerated. On October 10, 2017, the Department petitioned to terminate Father's parental rights to Children based on § 41-3-609(1)(f), MCA, citing his failure to complete a treatment plan and asserting he was unlikely to change within a reasonable time.

         ¶5 On October 26, 2017, Father filed a motion to continue the hearing set for November 1, 2017, as his criminal trial was set for January 22, 2018, and he had yet to receive discovery. On October 30, 2017, the court ordered that the November 1, 2017 hearing be reset to December 6, 2017, to allow for completion of discovery. The court declined to delay trial based on Father's pending criminal matter:

The father's counsel seeks a continuance to January 24, 2018, following the father's trial . . . on an apparent criminal charge(s). A delay of approximately three months is unnecessary in this case, as disposition of the State's petition to terminate parental rights is not dependent on the outcome of a separate criminal proceeding in another jurisdiction.

Discovery was hand-delivered to Father's counsel on November 14, 2017.

         ¶6 At the termination hearing on December 6, 2017, Father presented exhibits to support his progress on his treatment plan. On January 5, 2018, the District Court issued orders for each child terminating Father's parental rights for failure to complete his treatment plan and finding the conduct or condition rendering him unfit or unable to parent was not likely to change within a reasonable period of time. The orders found that "throughout the majority of ...

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