Matter of J.B. Jr. YINC , 383 Mont. 48 ( 2016 )

March 22 2016
DA 15-0356
IN THE SUPREME COURT OF THE STATE OF MONTANA
2016 MT 68IN THE MATTER OF:
J.B., Jr.,
A Youth in Need of Care.
APPEAL FROM: District Court of the Fourth Judicial District,
In and For the County of Missoula, Cause No. DN 13-120
Honorable Karen Townsend, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Tracy Labin Rhodes, Attorney at Law; Missoula, Montana (for Father)
For Appellee:
Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant
Attorney General; Helena, Montana
Karen P. Kane, Assistant Attorney General; Missoula, Montana
Submitted on Briefs: February 10, 2016
Decided: March 22, 2016
Filed:
__________________________________________
Clerk
Justice Jim Rice delivered the Opinion of the Court.
¶1 J.B., Sr., appeals from an order entered by the Fourth Judicial District Court,
Missoula County, terminating his parental rights to J.B., Jr.
¶2 We affirm, and address the following issues:
1. Did the District Court err by holding the treatment plan was appropriate?
2. Did the District Court abuse its discretion by terminating Father’s parental
rights?
PROCEDURAL AND FACTUAL BACKGROUND
¶3 J.B., Jr. (J.B.) was only a few weeks old when his parents, J.B., Sr. (Father), and
K.S. (Mother), took him shoplifting at Missoula’s JC Penney store. When confronted by
security, Mother fled in her car with J.B. Father pulled a knife, declaring he was “not
returning to prison,” and fled on foot. At the time, Father was on probation, and two
outstanding felony warrants for his arrest had been issued from Ravalli County.
¶4 Long before this incident, the Department of Public Health and Human Services,
Child and Family Services Division (Department), were familiar with Mother and Father.
The Department had previously been involved with proceedings regarding J.B.’s siblings,
including the termination of Father’s parental rights to J.B.’s brother, E.B., on grounds of
abandonment. After receiving the report of the shoplift-turned-robbery, the Department
investigated the incident and filed a petition for Emergency Protective Services,
Adjudication of J.B. as a Youth in Need of Care, and Temporary Legal Custody. The
District Court granted the Department’s petition upon Mother’s and Father’s stipulation
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to the adjudication of J.B. as a Youth in Need of Care. J.B. was then placed in a foster
home with his sibling, E.B.
¶5 In the Ravalli County action related to the two outstanding felony warrants, Father
was sentenced to ten years suspended on each felony, to run concurrently with an
unspecified sentence Father was serving in another Ravalli County action. The record
does not indicate the length of the other sentence. In the Missoula County robbery action
that arose from the incident here, the District Court, citing Father’s seven prior felony
convictions, sentenced him to the Department of Corrections for 20 years with 18 years
suspended, to run concurrently with his sentences in Ravalli County.
¶6 The Department provided a treatment plan for Father while he was incarcerated,
which was intended to preserve Father’s parent-child relationship with J.B. The
treatment plan had several goals designed to provide the Department with “the necessary
information to determine whether it will be safe for [J.B.] to return to [Father’s] care,”
and to instill “long-term change and . . . lasting stability so that further intervention by
[the Department] is no longer needed.” The treatment plan required Father to perform
numerous tasks, including refraining from committing further criminal offenses,
completing a chemical dependency evaluation, and attending available parenting classes.
The treatment plan stated the completion date for these tasks was “ongoing.” Father,
represented by counsel, stipulated to the treatment plan.
¶7 Although Father completed a chemical dependency evaluation and attended group
therapy sessions, he was involved in numerous behavioral incidents while incarcerated,
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including flooding his cell, breaking a sprinkler head, and not complying with orders. At
the termination hearing, Father testified:
Q: When you went into Missoula County Detention Facility in June of
2014, you were involved in several behavioral incidents in there, correct?
A: Yes, a few.
Q: Including flooding your cell?
A: Yes.
Q: Breaking a sprinkler head?
A: Yes.
Q: Disruptive behavior and not complying with orders?
A: Yes.
Q: And then just recently in boot camp you were disciplined for violating
and refusing to comply with a direct order, correct?
A: Yes.
¶8 The Department, alleging Father’s treatment plan had not been successful,
petitioned the District Court to terminate Father’s parental rights to J.B. The District
Court agreed, holding the treatment plan “was not successful” and that Father had an
“inability to conform his conduct to the law” that was “unlikely to change within a
reasonable time.” J.B. had been living in foster care with his brother, E.B., for over 15
months at that time. Father appeals.1
1
Mother’s parental rights to J.B., Jr., were also terminated by the District Court. She filed an appeal,
which was initially consolidated with Father’s appeal herein but ultimately dismissed upon her counsel’s
motion to withdraw and this Court’s independent examination of the record pursuant to Anders v.
California, 386 U.S. 738 (1967), on the ground that an appeal in her case would be wholly frivolous.
4
STANDARD OF REVIEW
¶9 Conclusions of law are reviewed to determine whether the district court
interpreted the law correctly. In re J.N., 1999 MT 64, ¶ 11, 293 Mont. 524, 977 P.2d
317.
¶10 A district court’s decision to terminate parental rights is reviewed for an abuse of
discretion. In re A.N.W., 2006 MT 42, ¶ 29, 331 Mont. 208, 130 P.3d 619. Findings of
fact are reviewed for clear error. In re D.B., 2007 MT 246, ¶ 18, 339 Mont. 240, 168
P.3d 691. 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 the Court a mistake was made. In re C.J.M., 2012 MT 137, ¶ 10, 365
Mont. 298, 280 P.3d 899. We view the evidence in the light most favorable to the
prevailing party when determining whether substantial credible evidence supports the
district court’s findings. In re B.D., 2015 MT 339, ¶ 5, 381 Mont. 505, 362 P.3d 636.
¶11 A district court’s decision will not be disturbed on appeal unless there is a mistake
of law or a finding of fact clearly erroneous that amounts to an abuse of discretion. In re
M.N., 2011 MT 245, ¶ 14, 362 Mont. 186, 261 P.3d 1047.
DISCUSSION
¶12 Under § 41-3-609(1)(f), MCA, a court may terminate parental rights upon a
finding, established by clear and convincing evidence, that the child is an adjudicated
youth in need of care and both of the following exist:
(i) an appropriate treatment plan that has been approved by the court has
not been complied with by the parents or has not been successful; and
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(ii) the conduct or condition of the parents rendering them unfit is unlikely
to change within a reasonable time.
¶13 Father makes two challenges on appeal. First, he argues the District Court erred
by concluding the treatment plan was appropriate. Second, he argues the District Court
erred by concluding the treatment plan was not successful.
¶14 1. Did the District Court err by holding the treatment plan was appropriate?
¶15 Father argues the treatment plan was not appropriate because it provided no
deadlines, instead stating the completion date for each task was “ongoing.” The
Department counters that Father did not properly preserve this issue for review by timely
objecting to the treatment plan.
¶16 “Where a parent fails to object to a treatment plan in a timely manner, the parent
waives any argument regarding the propriety of the treatment plan.” In re T.S., 2013 MT
274, ¶ 25, 372 Mont. 79, 310 P.3d 538 (citing In re C.J.M., 2012 MT 137, ¶ 16, 365
Mont. 298, 280 P.3d 899); see also In re A.A., 2005 MT 119, ¶¶ 21-28, 327 Mont. 127,
112 P.3d 993 (parent who, with representation of counsel, stipulated to several treatment
plans, and failed to object in a timely manner, waived her argument that the treatment
plans were not appropriate).
¶17 The treatment plan, upon Father’s stipulation, was approved by the District Court
in March 2014. Father was represented by counsel. It was not until just before the
termination hearing, in March 2015, that Father raised an objection to the lack of
deadlines in his treatment plan. If Father was legitimately concerned about the lack of
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deadlines in the treatment plan, he could have raised the issue when the plan was before
the District Court for approval. Neither did Father raise a concern about the lack of
deadlines during the course of the plan’s implementation, waiting until right before the
termination hearing to raise the issue. We agree with the Department. Under T.S., Father
waived his argument.
¶18 2. Did the District Court abuse its discretion by terminating Father’s parental
rights?
¶19 Father argues the District Court abused its discretion because its legal conclusion
that Father’s treatment plan was not successful was based on the finding that Father’s
incarceration rendered the plan unsuccessful—a rationale we expressly forbade in In re
A.T., 2003 MT 154, 316 Mont. 255, 70 P.3d 1247. While we acknowledge Father’s point
regarding sole reliance on incarceration contemplated by a treatment plan, we affirm the
District Court because of additional findings sufficient to support the District Court’s
conclusion that the plan was unsuccessful.
¶20 Section 41-3-609(1)(f)(i), MCA, is written in the disjunctive: the Department can
meet its burden by showing either the treatment plan has not been complied with, “or has
not been successful.” We have recognized that the disjunctive language indicates a
district court may find a treatment plan unsuccessful “even if the parent has completed all
the required tasks.” In re D.F., 2007 MT 147, ¶ 36, 337 Mont. 461, 161 P.3d 825 (citing
In re A.F., 2003 MT 254, ¶ 25, 317 Mont. 367, 77 P.3d 266); see also In re D.A., 2008
MT 247, ¶ 22, 344 Mont. 513, 189 P.3d 631 (“Well-intentioned efforts toward successful
completion of a treatment plan do not demonstrate either the completion or the success of
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the plan.”) (citation omitted). However, a district court may not conclude the treatment
plan has been unsuccessful simply because of a parent’s incarceration status when the
parent’s incarceration status was known and considered by the Department when
formulating the plan. A.T., ¶ 24.
¶21 The District Court’s conclusion that the treatment plan was unsuccessful was
based in part on Finding of Fact 13, which stated Father “has been incarcerated since the
inception of this case and was not released from his incarceration so that he could parent
[J.B.].” The Department’s treatment plan expressly considered Father’s incarceration and
nothing in the record indicates Father’s sentence was altered from that which the
Department contemplated when it formulated the treatment plan. Had the District Court
relied on nothing more, the District Court’s decision to terminate may well have
conflicted with our decision in A.T. However, a review of additional findings establishes
adequate grounds for termination.
¶22 To terminate parental rights under § 41-3-609(1)(f), MCA, a district court must
make two basic findings. First, the district court must find the treatment plan “has not
been complied with . . . or has been unsuccessful.” Section 41-3-609(1)(f)(i), MCA.
Second, the district court must find “the conduct or condition of the parents rendering
them unfit is unlikely to change within a reasonable time.” Section 41-3-609(1)(f)(ii),
MCA. The phrase, “the conduct or condition” (emphasis added), indicates that
§ 41-3-609(1)(f)(ii), MCA, is referring to a prior finding of a conduct or condition that
has rendered the parent unfit. Given the statute does not expressly require the district
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court to make such a finding, the meaning of the statute is that the condition rendering the
parent unfit is the condition(s) or reason(s) in § 41-3-609(1)(f)(i), MCA, that caused the
treatment plan to be unsuccessful.
¶23 Finding of Fact 14 states “Father’s conduct or condition of inability to conform his
conduct to the law resulting in incarceration, and inability to remain free of illicit drugs
when out of incarceration, is unlikely to change within a reasonable time.” The District
Court’s finding that Father had an “inability to conform his conduct to the law,” if
supported by the evidence, establishes the condition that rendered Father unfit, i.e., the
condition that rendered the treatment plan unsuccessful.2
¶24 Substantial evidence is evidence that a reasonable mind might accept as adequate
to support a conclusion, even if weak and conflicting. Siebken v. Voderberg, 2015 MT
296, ¶ 12, 381 Mont. 256, 359 P.3d 1073. It consists of more than a mere scintilla of
evidence but may be less than a preponderance. Marriage of Schmitz, 255 Mont. 159,
165, 841 P.2d 496, 500 (1992). Further, it is presumed that terminating a parent’s rights
is in the child’s best interests when the child has been in foster care for 15 of the last 22
months. D.B., ¶ 40 (citing § 41-3-604(1), MCA). The presumption is not a sufficient
basis, by itself, to terminate parental rights. D.B., ¶ 40.
2
It is insignificant here that the District Court articulated this finding to follow the language in
§ 41-3-609(1)(f)(ii), MCA, and not § 41-3-609(1)(f)(i), MCA. The District Court could have
satisfied both subsections by finding “the treatment plan was unsuccessful because of Father’s
inability to conform his conduct to the law” and then finding “that condition is unlikely to
change within a reasonable time.” As long as the condition found to render the parent unfit, i.e.,
the condition rendering the treatment plan unsuccessful, is clearly articulated in a district court’s
findings, as here, the particular formulation of the finding will generally not matter. Section
1-3-219, MCA (“The law respects form less than substance.”).
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¶25 Although it appears Father had completed several tasks of his plan, the
uncontroverted evidence establishes that Father had acted out while incarcerated,
including flooding his cell, breaking a sprinkler head, disruptive behavior, and refusing to
follow orders. While the District Court did not enter findings regarding Father’s conduct
while incarcerated, the evidence was uncontested, admitted by Father, and was
necessarily implied by the District Court’s finding that Father was unable to conform his
conduct to the law. See In re S.M., 2014 MT 309, ¶ 28, 377 Mont. 133, 339 P.3d 23(“[U]nder the doctrine of implied findings, we may consult hearing transcripts in addition
to the written findings. This doctrine holds that where ‘findings are general in terms, any
findings not specifically made, but necessary to the determination, are deemed to have
been implied, if supported by the evidence.’”) (citation omitted). Father argues that his
treatment plan required only that he refrain from committing further criminal offenses,
and that the State has never charged him or proven the elements of a crime arising out of
these incidents. However, while he was not criminally charged, Father’s admitted
property destruction could well have supported a charge. The larger point is that Father
was clearly not conforming his conduct to the legal requirements of his incarceration, and
therefore not achieving the “long-term change and . . . lasting stability” required by the
treatment plan for him to parent a child.
¶26 This evidence represents more than a “mere scintilla” in support of the District
Court’s conclusion that Father had an inability to conform his conduct to the law,
rendering the treatment plan unsuccessful. Given the presumption that termination was
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in J.B.’s best interests, D.B., ¶ 40, and that a treatment plan may be found unsuccessful
“even if the parent has completed all the required tasks,” D.F., ¶ 36, we cannot conclude
the District Court’s finding that the treatment plan was unsuccessful was clear error. The
termination of Father’s parental rights was therefore not an abuse of discretion.
¶27 Affirmed.
/S/ JIM RICE
We concur:
/S/ MIKE McGRATH
/S/ JAMES JEREMIAH SHEA
/S/ MICHAEL E WHEAT
Justice Laurie McKinnon, concurring.
¶28 I agree with the Court that the District Court’s termination of Father’s parental
rights to J.B. pursuant to § 41-3-609(1)(f), MCA, was not an abuse of discretion; that
there was substantial evidence in the record supporting the court’s findings; and that the
court correctly applied the law. The evidence establishes that, although not required
given the provisions of § 41-3-609(4)(c), MCA, an appropriate treatment plan was
approved by the court, but was not successful because Father remained unfit and unable
to provide J.B. with parental care. I would affirm the District Court, however, on the
alternative basis that Father had his rights to J.B.’s sibling, E.B., involuntarily terminated
and that the circumstances relating to the prior termination were relevant to his ability to
adequately care for J.B.
11
¶29 The applicable criteria for termination of Father’s rights are set forth in
§ 41-3-609(1)(a-f), MCA.1 The State relied upon two of the criteria in its petition
seeking termination: subsection (1)(f)—that J.B. was adjudicated a Youth in Need of
Care, an appropriate treatment plan was approved, but unsuccessful, and Father’s
condition was not likely to change within a reasonable time; and subsection (1)(d)—that
Father had subjected a child to the circumstances listed in § 41-3-423(2)(e), MCA, in that
Father had his “parental rights to [E.B.] involuntarily terminated and the circumstances
related to the termination of parental rights are relevant to Father’s ability to adequately
care for [J.B.].” We have explained that “[a] prior termination, followed by a parent’s
demonstration of continuing unfitness, indicates that decisive termination of parental
rights is the best way to protect a child’s welfare.” In re J.W., 2013 MT 201, ¶ 39, 371
Mont. 98, 307 P.3d 274 (internal quotation and citation omitted); In re T.S.B., 2008 MT
23, ¶ 48, 341 Mont. 204, 177 P.3d 429 (citation omitted) (“circumstances of a prior
termination continue to be relevant in a later termination of a sibling under
§§ 41-3-609(1)(d) and 41-3-423(2)(e), MCA, unless the circumstances have changed”);
In re A.H.D., 2008 MT 57, ¶ 21, 341 Mont. 494, 178 P.3d 131; In re A.P., 2007 MT 297,
¶ 30, 340 Mont. 39, 172 P.3d 105.
1
I believe this Court incorrectly stated in A.T., that “[the Department] could have requested
termination of father’s parental rights pursuant to § 41-3-609(4)(c), MCA.” A.T., ¶ 23. The
criteria for termination are set forth in subsection (1) of § 41-3-609, MCA, and not subsection
(4)(c). Section 41-3-609(4)(c), MCA, addresses whether a treatment plan is required in
evaluating criteria pursuant to (1)(f), and does, not by itself, establish a basis for termination.
12
¶30 In Father’s prior termination for abandoning E.B., Father chose not to participate
in the legal proceedings and, as here, was unwilling to put the needs of E.B. ahead of his
own interests. As here, Father was unavailable to parent E.B. because of criminal
activity, including periods of incarceration, and demonstrated a lack of initiative or
interest in parenting E.B. Father ignored efforts by the Department to establish visits and
contact with E.B. and ignored court orders to appear at the prior termination proceeding,
just as he has ignored court orders relevant to these proceedings. In the instant
proceedings, Father testified he has five children, ages ten and younger—one of whom is
deceased and one of whom his rights have been terminated. Father’s parenting with
respect to two of his other children has been limited to occasionally “writing letters,” a
few visits in between periods of incarceration, and phone calls. However, those
communications are not recent because Father is uncertain about where those children, C.
and X., live because he has “lost contact” with their respective moms. Father has failed
to adequately provide for his children by remaining unemployed or incarcerated and
demonstrates inadequate initiative to provide parental care for his children.
¶31 The District Court listened to this testimony and took judicial notice of two
sentences for which Father would remain incarcerated for several years. Father, with
respect to all of his children, has never parented and demonstrates a clear propensity to
engage in criminal behavior knowing the consequences of incarceration will remove him
from his children’s lives. The District Court’s finding that the circumstances leading to
the prior termination of Father’s rights to E.B. remained relevant is supported by
13
substantial evidence in the record which establishes Father has refused to take the
initiative to parent any of his children. Father’s termination of E.B. was a result of his
demonstrated lack of interest and inability to make himself available to E.B. and is
probative of Father’s conduct in the instant proceedings—Father has similarly chosen to
be absent from J.B.’s life and remains unavailable to parent.
¶32 The guiding principle in determining whether to terminate parental rights is
always the best interests of the child and the district court is bound to give
primary consideration to the physical, mental, and emotional conditions and needs of the
child—which take precedence over parental rights. Section 41-3-609(3), MCA; In re
K.J.B., 2007 MT 216, ¶ 29, 339 Mont. 28, 168 P.3d 629. Here, there was substantial
evidence to support the District Court’s findings that the circumstances surrounding
Father’s prior termination remained relevant to his inability to parent J.B. Indeed,
I believe Father’s lack of initiative to make the necessary changes in his life to adequately
parent was exhibited in both termination proceedings. The termination criteria set forth
in §§ 41-3-609(1)(d) and -423(2)(e), MCA, and relied upon by the District Court, is
supported by substantial evidence.
/S/ LAURIE McKINNON
Justice Beth Baker, dissenting.
¶33 I would reverse the termination of Father’s parental rights on the record before the
Court. The Department’s termination request focused on Father’s failure to comply with
14
his treatment plan pursuant to § 41-3-609(1)(f), MCA, and the Department failed to meet
its burden of proof under that statute.
¶34 I do not take issue with the Court’s analysis of the law. In particular, I agree that
whether the treatment plan was appropriate is not properly before us in this appeal and
that, under our precedent, the District Court could not conclude that Father’s treatment
plan was unsuccessful by virtue of his incarceration status alone, when that status “was
known and considered by the Department when formulating the plan.” Opinion, ¶ 20.
¶35 “The Department has the burden of proving by clear and convincing evidence that
the statutory criteria for termination have been satisfied.” In re K.L., 2014 MT 28, ¶ 14,
373 Mont. 421, 318 P.3d 691. As the Court observes, the Department sought termination
primarily under § 41-3-609(1)(f), MCA. The District Court’s single finding addressing
§ 41-3-609(1)(f)(i), MCA, stated that “Father did not successfully complete his treatment
plan because he has been incarcerated since the inception of this case and was not
released from his incarceration so that he could parent [J.B.], Jr.” But Father’s treatment
plan did not require that he be released from incarceration. The Phase I plan
contemplated that Father would remain incarcerated throughout that Plan’s duration.
¶36 The Department offered no evidence at the termination hearing that Father had not
complied with the tasks set forth in the treatment plan. Child Protection Specialist
Amanda Graziano was the State’s only witness who testified regarding Father’s
compliance with his treatment plan. Graziano testified extensively about Mother’s failure
to complete her treatment plan, including Mother’s chemical dependency issues,
15
substance abuse, use of illicit drugs, and inability to obtain adequate housing for herself.
In contrast, when asked whether Father had met the goals and addressed the
Department’s concerns through his treatment plan, Graziano’s only explanation was that
Father “was not able to follow through” because he had been incarcerated “for the
duration of the case.” On cross-examination, Graziano admitted that Father had been
present at all hearings throughout the case and that the Department had been made aware
of Father’s status with the Department of Corrections (DOC) throughout the proceedings.
¶37 Father testified that during his incarceration he had completed one group therapy
program and was in the process of completing two other group therapy programs. He
also testified that he had not had any disciplinary issues while incarcerated with the DOC.
Father explained that he was signed up to go to Connections Corrections and believed
that after completing that program he would be able to be a better parent for his son.
Father stated that when he gets to pre-release he intends to take parenting classes and
participate in outpatient counseling programs.
¶38 Although Father acknowledged in his testimony that he had acted out during his
detention at the Missoula Assessment and Sanctions Center (MASC) while awaiting
DOC placement, he had since been admitted to the Sanction Treatment Assessment
Revocation and Transition (START) program and was in full compliance with all
conditions of his confinement. His case manager, Patrick McGee, testified that Father
had been “very compliant” and “positive” during his time at START and that Father had
completed “whatever is necessary,” including participating in mental health and chemical
16
dependency counseling. McGee also testified that Father was administratively
transferred out of the boot camp program because it “was not a good fit for him,” and that
Father had not had any disciplinary problems during his incarceration with the DOC.
The Department offered no evidence that Father had any disciplinary infractions
throughout his incarceration—including the incidents that Father acknowledged—and the
District Court did not premise its decision on Father’s “disruptive behavior” while at
MASC.
¶39 The Department also presented no evidence that Father’s incarceration was
expected to be long-term. There are many parents who serve time in prison without
losing all rights to their children. Further, although the Department presented evidence
regarding the prior termination of Father’s rights to another child, it did not seek to
forego the requirements of a treatment plan by filing its petition under § 41-3-609(4)(a)
or (c), MCA. See A.T., ¶ 24. The Court does not rely on the prior termination or
long-term incarceration in affirming the District Court. Rather, the Court essentially
concludes that Father’s rights as a parent may be terminated because—despite the lack of
any affirmative evidence from the Department—he acknowledged acting out while at the
detention center and failing to follow an order. Opinion, ¶ 25. That is an awfully thin
reed, and one the District Court did not even mention in its findings of fact. Rather, as
noted, the court relied exclusively on Father’s incarceration to determine that he had not
complied with his treatment plan. The Department well may have adequate grounds for
termination in this case, particularly given Father’s history and the prior termination of
17
his parental rights to another child. It is perhaps the unlikelihood of Father’s ultimate
success that influences the Court’s decision today. But the requirements of the law must
be met, and the ruling has implications beyond this case. Having invoked
§ 41-3-609(1)(f), MCA, and given Father a treatment plan, the Department is bound to
prove the elements of that statute before asking the court to terminate his rights. I would
conclude that the Department failed to meet its burden.
/S/ BETH BAKER
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