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In re B.J.J.

Supreme Court of Montana

June 4, 2019

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

          Submitted on Briefs: May 8, 2019

          APPEAL FROM: District Court of the Nineteenth Judicial District, In and For the County of Lincoln, Cause No. DN 17-13 Honorable Matthew J. Cuffe, Presiding Judge

          For Appellant: Tracy Labin Rhodes, Attorney at Law

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

          Marcia Boris, Lincoln County Attorney, Jeffrey Zwang, Deputy County Attorney

          Ingrid Gustafson, Justice delivered the Opinion of the Court.

          OPINION

          Ingrid Gustafson, Justice.

         ¶1 B.J. (Father) appeals from the Findings of Fact, Conclusions of Law and Order Terminating Parental Rights issued by the Nineteenth Judicial District Court, Lincoln County, on December 12, 2018. We affirm.

         ¶2 We restate the issues on appeal as follows:

1. Whether Father was denied due process when the District Court terminated Father's parental rights.
2. Whether Father's treatment plan was appropriate.

         FACTUAL AND PROCEDURAL BACKGROUND

         ¶3 The Montana Department of Health and Human Services, Child and Family Services Division (Department), became involved with B.J.J., Jr. (Child) when it learned Mother and Father were not actively parenting five-year old Child, but had left him in the care of his maternal grandmother without providing a power of attorney or any financial support.[1]

         ¶4 On April 6, 2017, the Department filed a petition for emergency protective services (EPS), appointment of a guardian ad litem, adjudication of Child as a youth in need of care (YINC), and for temporary legal custody (TLC). At the time of the petition, Child had been residing in Grandmother's home in Montana for some time, Mother was homeless and allegedly using illegal drugs, and Father was incarcerated in prison in Nevada. Father was appointed counsel to represent him. The show cause hearing was held on May 15, 2017. Although Father was still incarcerated and not present at the hearing and had not yet been personally served with the petition, his counsel represented he had spoken to Father and that Father did not agree with all of the allegations contained in the affidavit, but did not oppose the relief sought by the Department. At the time, as Father was still incarcerated in Nevada, he was not in a position to parent Child. At the conclusion of the hearing, the District Court granted the requested show cause relief, adjudicated Child a YINC, granted the Department TLC for a period of six months, and indicated it would allow Father to move the court to rescind or amend its order and relitigate the petition after Father was served should he so desire. Father was served on May 22, 2017. The court followed its oral order with a written order on June 5, 2017.

         ¶5 Father was released from prison in July 2017. He contacted Child Protection Specialist (CPS) Weber in mid-August and reported he was living with his father in Nevada and working two jobs at McDonald's and Dairy Queen. CPS Weber provided Father with his contact information as well as that of Father's attorney. CPS Weber also sent Father a copy of the Department's proposed treatment plan. CPS Weber again spoke with Father via telephone in October 2017. Father reported he had not yet begun the tasks of his treatment plan but was in compliance with his probation and in conjunction therewith was working, attending some counseling, and submitting to drug testing. CPS Weber requested Father sign and return the treatment plan which Father indicated he would. CPS Weber also discussed with Father the importance of Father maintaining contact with him and his attorney as well as Father's need to begin to build a relationship with Child by sending him pictures, cards, and letters, after which CPS Weber would then establish telephone contact between Father and Child. ...


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