In re D.S.B.

2013 MT 112, 300 P.3d 702, 370 Mont. 37, 2013 WL 1804289, 2013 Mont. LEXIS 139
CourtMontana Supreme Court
DecidedApril 30, 2013
DocketNo. DA 12-0495
StatusPublished
Cited by35 cases

This text of 2013 MT 112 (In re D.S.B.) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re D.S.B., 2013 MT 112, 300 P.3d 702, 370 Mont. 37, 2013 WL 1804289, 2013 Mont. LEXIS 139 (Mo. 2013).

Opinion

CHIEF JUSTICE McGRATH

delivered the Opinion of the Court.

¶1 Birth father J.H. appeals from an order issued by the Fourth Judicial District Court, Missoula County, that terminated his parental rights to his two children, D.S.B. 1 and D.S.B. 2 (the children). We affirm.

¶2 We address the following issues on appeal:

¶3 Issue One: Whether the District Court properly concluded that J.H.’s treatment plans were appropriate.

¶4 Issue Two: Whether the State presented sufficient evidence to terminate J.H.’s parental rights under the Indian Child Welfare Act (ICWA).

PROCEDURAL AND FACTUAL BACKGROUND

¶5 Through the Department of Public Health and Human Services (DPHHS), the State petitioned for Emergency Protective Services, Adjudication as Youths in Need of Care, and Temporary Legal Custody for the children on February 24,2010. The State’s petition alleged that J.H. had sexually abused the children, medically neglected the children, physically neglected the children, and exposed the children to unreasonable risks. J.H. stipulated on June 11, 2010, that the children should be adjudicated as Youths in Need of Care. At a hearing on July 7, 2010, the District Court held that the children are Indian Children, and the ICWA applies.

¶6 The DPHHS prepared Phase I and Phase II treatment plans for J.H. The District Court approved the treatment plans on January 28, 2011. The treatment plans included a variety of tasks that J.H. had to complete that were intended to address the issues that led to the children being removed from the parents’ care. When the court approved the treatment plans, J.H. was in the Department of Correction’s custody for failing to register as a violent offender.

¶7 The State petitioned for permanent legal custody and termination of J.H.’s parental rights on February 7, 2012. The District Court held [39]*39hearings on February 24, 2012, May 2, 2012, May 29, 2012, and May 31, 2012. At the hearings, the court heard testimony from an ICWA expert, the State’s Child Protection Specialist (CPS), the children’s therapist, and J.H. The District Court issued an order on August 2, 2012, that terminated J.H.’s parental rights to the children.

STANDARD OF REVIEW

¶8 We review a district court’s termination of parental rights for an abuse of discretion. In re A.N., 2005 MT 19, ¶ 17, 325 Mont. 379, 106 P.3d 556. A district court abuses its discretion if it acts arbitrarily without conscientious judgment or exceeds the bounds of reason. In re A.N., ¶ 17. We review a district court’s findings of fact to determine if they are clearly erroneous and its conclusions of law to determine if they are correct. In re I.B., 2011 MT 82, ¶ 18, 360 Mont. 132, 255 P.3d 56.

DISCUSSION

¶9 Issue One: Whether the District Court properly concluded that J.H.’s treatment plans were appropriate.

¶10 J.H. argues that the District Court erroneously concluded that his treatment plans were appropriate because they were not narrowly tailored to fit his needs and circumstances. J.H. failed, however, to object to either of the treatment plans or any of their specific tasks. “A parent who does not object to a treatment plan’s goals or tasks waives the right to argue on appeal that the plan was not appropriate.” In re H.R., 2012 MT 290, ¶ 10, 367 Mont. 338, 291 P.3d 583. We therefore refuse to consider J.H.’s argument that his treatment plans were not appropriate. We nevertheless note that substantial evidence supports the District Court’s finding that the treatment plans were appropriate because they sought to address J.H.’s reported sexual abuse of the children and his chemical dependency issues, the issues that caused the children to be adjudicated as youths in need of care.

¶11 Issue Two: Whether the State presented sufficient evidence to terminate J.H.’s parental rights under the ICWA.

¶12 Under Montana law, a district court may terminate parental rights if the child is adjudicated as a youth in need of care; an appropriate treatment plan has been approved by the court; the parent has not complied with the treatment plan or the treatment plan has not been successful; and the conduct or condition of the parent rendering him unfit is unlikely to change within a reasonable time. Section 41-3-609(l)(f), MCA. The parent must completely comply with [40]*40the treatment plan. In re H.R., ¶ 12. Partial or even substantial compliance is insufficient. In re I.B., ¶ 27. A court must consider the best interests of the child as the paramount factor when determining whether the conduct or condition rendering the parent unfit is likely to change within a reasonable time. Section 41-3-609(3), MCA; In re B.S., 2009 MT 98, ¶ 32, 350 Mont. 86, 206 P.3d 565.

¶13 When the ICWA applies, the State additionally has to satisfy the court that it made “active efforts” to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that those efforts were unsuccessful. 25 U.S.C. § 1912(d). Because the State was seeking termination of J.H.’s parental rights, the State had to prove that it had made “active efforts” beyond a reasonable doubt. In re G.S., 2002 MT 245, ¶ 33, 312 Mont. 108, 59 P.3d 1063. The ICWA also requires a state seeking termination of parental rights of an Indian child to prove beyond a reasonable doubt that the child would likely suffer serious emotional or physical damage if the parent was to maintain custody. 25 U.S.C. § 1912(f). The evidence that supports such a finding must include the testimony of a qualified expert. 25 U.S.C. § 1912(f).

¶14 Accordingly, we will affirm the District Court’s termination of J.H.’s parental rights if the District Court did not abuse its discretion when it determined that termination was warranted under § 41-3-609, MCA, a rational trier of fact could have concluded beyond a reasonable doubt that the State had made “active efforts” to provide J.H. with remedial services and rehabilitative programs, and a rational trier of fact could have concluded beyond a reasonable doubt that the children would have likely suffered serious emotional or physical damage if J.H. was to maintain custody. See In re I.B., ¶ 18.

A. Active Efforts

¶15 J.H. argues that the State failed to prove beyond a reasonable doubt that it had made “active efforts” as required by the ICWA. “Active efforts” implies a heightened responsibility compared to passive efforts. In re T.W.F., 2009 MT 207, ¶ 27, 351 Mont. 233, 210 P.3d 174. Although the State cannot simply wait for the parent to complete a treatment plan under the ICWA, a court may consider the parent’s failure to participate when determining whether the State had made “active efforts.” In re T.W.F., ¶ 27. Additionally, a parent’s incarceration may limit the remedial and rehabilitative services that the State can make available to the parent to prevent the breakup of the Indian family. That is not to say that the State’s obligation to make “active efforts” is excused if a parent is incarcerated, but we will not [41]

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Bluebook (online)
2013 MT 112, 300 P.3d 702, 370 Mont. 37, 2013 WL 1804289, 2013 Mont. LEXIS 139, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-dsb-mont-2013.