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In re M.B.

Supreme Court of Montana

December 27, 2018

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

          Submitted on Briefs: November 28, 2018

          District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DN 15-85 Honorable Leslie Halligan, Presiding Judge.

          For Appellant: Michael P. Sinks, Attorney at Law, Bozeman, Montana.

          For Appellee: Timothy C. Fox, Montana Attorney General, Tammy A. Hinderman, Assistant Attorney General, Helena, Montana.

          Kirsten H. Pabst, Missoula County Attorney, Jessica Finley, Deputy County Attorney, Missoula, Montana.

          OPINION

          INGRID GUSTAFSON JUDGE.

         ¶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 The father of M.B. appeals from the Findings of Fact, Conclusions of Law and Order Terminating Father's Parental Rights and Awarding CFS Permanent Legal Custody with the Right to Consent to Adoption of the Montana Fourth Judicial District Court, Missoula County, which terminated his parental rights to M.B. We affirm.

         ¶3 In October 2016, M.B.'s paternal grandmother contacted the Department of Public Health and Human Services' Child and Family Services Division ("the Department") because Father had left M.B. in her care, she could not locate Father, and she was unable to care for M.B. The Department removed M.B. Father stipulated to M.B.'s adjudication as a youth in need of care with the Department assuming temporary legal custody.

         ¶4 In February 2017, the District Court approved a treatment plan for Father which required him, in part, to: undergo a chemical dependency evaluation and follow its recommendations; submit to random drug and alcohol testing; successfully complete parenting classes; attend visits and maintain contact with M.B.; submit to a mental health evaluation and follow its recommendations; successfully participate in counseling/therapy; obtain and maintain safe and adequate housing; and maintain contact with the Department.

         ¶5 On October 16, 2017, the Department petitioned the District Court for termination of Father's parental rights. The Department alleged the only progress Father had made on his treatment plan was completion of a mental health evaluation, but he failed to follow the recommendations. The Department acknowledged Father had participated in a chemical dependency evaluation, but noted the evaluator recommended re-evaluation because Father was uncooperative and the results were unreliable.

         ¶6 After hearing, the District Court terminated Father's parental rights. The court noted Father had been only sporadically engaged in the case, failing to appear at many of the hearings. It found Father failed to complete his treatment plan, including failing to: follow the recommendations of the chemical dependency evaluator; demonstrate an ability to remain sober and drug-free; participate in random drug testing; complete parenting classes; maintain regular contact with M.B.; participate in counseling; and maintain safe and stable housing.

         ¶7 The court further found Father's conduct was unlikely to change within a reasonable time. Although it acknowledged Father had recently obtained employment and housing, it found his overall progress had been marginal and inconsistent, and he had failed to demonstrate an ability to remain consistently in M.B.'s life, to provide M.B. with long-term stability, and to meet M.B.'s needs. The court based the finding that Father's conduct was unlikely to change within a reasonable time on Father's lack of motivation to be integrated into M.B.'s daily life, his unwillingness to accept accountability for M.B.'s circumstances, and his unwillingness or inability to address concerns regarding chemical dependency and mental health.

         ¶8 Father raises two issues on appeal: The District Court violated his due process rights by failing to advise him of his rights as required by § 41-3-432(4), MCA, and the District Court erred in ...


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