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In re T.N.

Supreme Court of Montana

April 2, 2019

IN THE MATTER OF: T.N. and O.N., Youths in Need of Care.

          Submitted on Briefs: March 6, 2019

          Appeal From District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. ADN-2015-114 Honorable Mike Menahan, Presiding Judge.

          For Appellant: Keith Newmeyer, Self-Represented, Helena, Montana Raye Newmeyer, Self-Represented, Helena, Montana

          For Appellee: Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana Leo J. Gallagher, Lewis and Clark County Attorney, Ann B. Penner, Deputy County Attorney, Helena, 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 R.N. (Mother) and K.N. (Father) appeal the Order of the First Judicial District Court, Lewis and Clark County, terminating their parental rights to their adopted children, T.N. and O.N. We affirm.

         ¶3 On October 15, 2015, the Montana Department of Public Health and Human Services (Department) petitioned for emergency protective services (EPS) and temporary investigative authority (TIA) of T.N. and O.N. due to concerns of: (1) physical and psychological abuse by Father, and (2) Mother failing to protect or intervene. Mother and Father adopted T.N. and O.N. from Ukraine. T.N. was born in 2007 and adopted in 2013. O.N. was born in 2001 and adopted in 2014. The Department's petition alleged routine occurrences of Father physically assaulting T.N. and O.N.; incidents of psychological abuse and intimidation, including Mother and Father's admission that they burned the Ukrainian flag in front of T.N. and O.N. after the children had expressed they liked their native country more than the United States; and that T.N. and O.N. were fearful of returning home after school due to Father's abuse. On December 8, 2015, Mother and Father stipulated to the District Court's grant of TIA to the Department.

         ¶4 During TIA, T.N. and O.N. continued to express fear of Father's abuse throughout an unsuccessful trial of family therapy sessions. On February 12, 2016, the Department petitioned for EPS, adjudication of T.N. and O.N. as youth in need of care (YINC), and temporary legal custody (TLC). On March 2-3, 2016, Mother and Father stipulated to the Department's petition. On March 15, 2016, the District Court granted the Department TLC and adjudicated T.N. and O.N. YINC.

         ¶5 On August 9, 2016, the District Court approved treatment plans for Mother and Father. Mother's and Father's treatment plans required them to submit to mental health services, mental health evaluations, counseling services, and to maintain cooperation with the Department to obtain the skills necessary to meet T.N.'s and O.N.'s physical and emotional needs. On August 17, 2016, the District Court extended the Department's TLC of T.N. and O.N. to allow Mother and Father additional time to complete their treatment plans.

         ¶6 On February 9, 2017, Mother and Father filed a motion to reinstate visitation and family therapy. On February 14, 2017, the Department filed a Petition for Permanent Legal Custody and Termination of Parental Rights to T.N. and O.N. The Department's Petition alleged that Father physically abused T.N. and O.N., that the youths feared Father, that Mother failed to protect the youths, and that Mother and Father had failed to comply with their treatment plans.

         ¶7 On June 23, 2017, the District Court directed the Department to make further efforts to reunify T.N. and O.N. with Mother and Father and to schedule supervised visits. The parties attended multiple supervised visits throughout the remainder of that summer. However, the counselor's summary of the visits expressed that they were "uncomfortable and tense," that neither parent had demonstrated progress in their therapy, and that it was not in T.N.'s and O.N.'s best interests to reunify. On November 6-8, 2017, January 22-24, 2018, and April 30, 2018, the District Court conducted a termination hearing on the Department's petition.

         ¶8 On May 7, 2018, the District Court issued its Order terminating Mother's and Father's parental rights to T.N. and O.N. The District Court held: T.N. and O.N. had been in foster care for approximately thirty months by the conclusion of the termination hearing; Mother and Father were provided appropriate treatment plans by the Department, with which they failed to comply; the condition and conduct rendering Mother and Father unfit to parent was unlikely to change within a reasonable amount of time; and that termination of Mother's and Father's parental rights was in T.N.'s and O.N.'s best interests. The District Court specifically noted that, prior to the Department's termination petition, Mother and Father had significant opportunity to obtain counseling to address the safety concerns that led to the removal of the children from their care. The District Court also noted that Mother and Father demonstrated an unwillingness or inability to identify and address those concerns, and that "the preponderance of psychological evidence demonstrated both [Mother] and [Father] have long-term and characterological impairments in which change is not likely." Mother and Father appeal.

         ¶9 We review a district court's decision to terminate parental rights for an abuse of discretion. In re K.B., 2013 MT 133, ¶ 18, 370 Mont. 254, 301 P.3d 836 (citation omitted). Findings of fact are reviewed for clear error. In re J.B., 2016 MT 68, ¶ 10, 383 Mont. 48, 368 P.3d 715 (citation omitted). 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 this Court a mistake was made. In re J.B., ΒΆ 10 (citation ...

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