In re J.J.

2001 MT 131, 28 P.3d 1076, 305 Mont. 431, 2001 Mont. LEXIS 198
CourtMontana Supreme Court
DecidedJuly 25, 2001
DocketNo. 01-283
StatusPublished
Cited by2 cases

This text of 2001 MT 131 (In re J.J.) 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 J.J., 2001 MT 131, 28 P.3d 1076, 305 Mont. 431, 2001 Mont. LEXIS 198 (Mo. 2001).

Opinions

JUSTICE NELSON

delivered the Opinion of the Court.

¶1 L.B., the natural mother of J.J. and C. J., appeals an order of the District Court for the Eighth Judicial District, Cascade County, terminating her parental rights. We affirm.

¶2 We address the following issue on appeal: Whether the District [432]*432Court erred when it terminated L.B.’s parental rights based on the State’s argument that L.B. had abandoned the children.

Factual and Procedural Background

¶3 L.B. and W. J., the parents of J. J. and C. J., separated in 1993. L.B. gave custody of J. J., born October 5,1990, and C. J., born April 9,1992, to W.J. so that L.B. could begin a chemical dependency program. L.B. has not parented the children since February 1994. In fact, L.B. moved to Oregon and had no contact with her children for almost six years.

¶4 The Department of Public Health and Human Services (DPHHS) first became involved with the family in 1994 based on alleged physical abuse of J.J. by W.J. As a result, the children were removed from W. J.’s custody. A treatment plan was adopted for each parent, but L.B. failed to complete hers. W.J. successfully completed his treatment plan and the children were returned to his care in January 1996.

¶5 DPHHS commenced the present case in February 1999 when it received a report that the home was infested with “bed bugs” and that the children had multiple bites. It was also alleged that W.J. and his friends frequently used drugs in the home and that W.J. hit one of the children with a belt. In an interview with a social worker, the children corroborated the allegations óf drug use by describing a “horrible smell coming from the basement” and finding syringes and a round bowl-like apparatus with a tube attached to it. The social worker notified law enforcement officers and a subsequent search of the home produced evidence of a methamphetamine lab.

¶6 W.J. was taken into custody in March 1999. He pleaded guilty to felony accountability for the criminal production and manufacture of dangerous drugs and was sentenced to ten years at Montana State Prison with six years suspended. During his incarceration, W.J. has maintained contact with his children including visits at the prison and weekly telephone calls.

¶7 When the children were taken into protective custody after their father’s arrest, they complained of having a “hungry tummy most of the time” raising concerns of malnutrition. The children also disclosed that W.J. had physically abused them. Consequently, on June 15, 1999, the court declared the children youths in need of care, pursuant to § 41-3-102, MCA, and granted DPHHS legal custody of the children for six months. On January 4, 2000, the court approved a treatment plan for W.J. and extended the order for temporary legal custody for another six months.

¶8 After DPHHS filed for temporary legal custody of the children in March 1999, L.B. contacted DPHHS to ask if she would be considered a placement option. However, DPHHS had no further contact from her until April 3, 2000, more than one year after the children were placed in foster care. And, although there had been several hearings regarding the children’s welfare from the time they were placed into DPHHS’s custody in March 1999, L.B. failed to attend any of them.

[433]*433¶9 On June 18, 2000, L.B. signed a document entitled “Case Plan Recommendations.” The “case plan” contained the following five recommendations: (1) that L.B. complete a psychological evaluation; (2) that L.B. attend a domestic violence support group; (3) that L.B. acquire her own residence; (4) that L.B. obtain a chemical dependancy evaluation; and (5) that L.B. complete a parenting assessment and parenting classes.

¶10 On June 21, 2000, the State petitioned for permanent legal custody and termination of parental rights as to both L.B. and W.J. The State alleged that L.B. had abandoned her children; that the children had been in an out-of-home placement for longer than one year and that the parents neglected to remedy the circumstances that caused the out-of-home placement; and that W.J. failed to successfully complete a court-approved treatment plan.

¶11 The hearing on the State’s petition for permanent legal custody and termination of parental rights was held on October 31, 2000. L.B. was present with her attorney. W.J. was not present because his attorney failed to request a transport order. The District Court reopened the hearing on January 9, 2001, to afford W.J. the opportunity to appear.

¶12 On March 12, 2001, the District Court entered an order wherein it determined that it would be appropriate to hold the case open as to W.J., pending his upcoming parole hearing, because he had substantially complied with his treatment plan and had maintained contact with his children while incarcerated. As to L.B., the court determined that she had abandoned the children and that, under the circumstances, DPHHS was not required to provide a treatment plan for her. Consequently, the court terminated L.B.’s parental rights. L.B. appeals the District Court’s order terminating her parental rights.

Discussion

¶13 Whether the District Court erred when it terminated L.B.’s parental rights based on the State’s argument that L.B. had abandoned the children.

¶14 We review a district court’s decision to terminate parental rights for whether the court’s findings of fact are clearly erroneous and whether the court’s'conclusions of law are correct. In Re J.H., 2000 MT 11, ¶ 20, 298 Mont. 41, ¶ 20, 994 P.2d 37, ¶ 20 (citations omitted). Findings of fact are clearly erroneous if they are not supported by substantial evidence, the court misapprehends the effect of the evidence, or this Court’s review of the record convinces it that a mistake has been made. In Re M.J.W., 1998 MT 142, ¶ 7, 289 Mont. 232, ¶ 7, 961 P.2d 105, ¶ 7 (citations omitted).

¶15 We have long recognized that

a natural parent’s right to care and custody of a.child is a fundamental liberty interest, which must be protected by fundamentally fair procedures. Consequently, prior to [434]*434terminating an individual’s parental rights, the district court must adequately address each applicable statutory requirement. Further, the party seeking termination of an individual’s parental rights has the burden of proving by clear and convincing evidence that the statutory criteria for termination have been met.

In Re C.A., 2000 MT 227, ¶ 5, 301 Mont. 233, ¶ 5, 8 P.3d 116, ¶ 5 (internal quotations and citations omitted).

¶16 To terminate the parent-child legal relationship, a district court must determine that one of the criteria in § 41-3-609(1), MCA, exists. M.J.W., ¶ 16 (citing In Re Declaring D.H. (1994), 264 Mont. 521, 526, 872 P.2d 803, 806). Section 41-3-609(1), MCA, provides in pertinent part as follows:

Criteria for termination. (1) The court may order a termination of the parent-child legal relationship upon a finding that any of the following circumstances exist:
(a) the parents have relinquished the child pursuant to 42-2-402 and 42-2-412;
(b) the child has been abandoned by the parents;

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Related

Matter of T.H. C.D.F.
2002 MT 293N (Montana Supreme Court, 2002)
Matter of J.J. C.J.
2001 MT 131 (Montana Supreme Court, 2001)

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Bluebook (online)
2001 MT 131, 28 P.3d 1076, 305 Mont. 431, 2001 Mont. LEXIS 198, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-jj-mont-2001.