05/30/2017
DA 16-0755 Case Number: DA 16-0755
IN THE SUPREME COURT OF THE STATE OF MONTANA
2017 MT 133N
IN THE MATTER OF:
A.R.N.,
A Youth in Need of Care.
APPEAL FROM: District Court of the Twenty-First Judicial District, In and For the County of Ravalli, Cause No. DN 15-10 Honorable James A. Haynes, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Tracy Labin Rhodes, Attorney at Law, Missoula, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, C. Mark Fowler, Assistant Attorney General, Helena, Montana
William E. Fulbright, Ravalli County Attorney, Howard F. Recht, Deputy County Attorney, Hamilton, Montana
Submitted on Briefs: May 24, 2017
Decided: May 30, 2017
Filed:
__________________________________________ Clerk Justice Laurie McKinnon delivered the Opinion of the Court.
¶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 Appellant Birth Father appeals the decision of the Twenty-First Judicial District
Court, Ravalli County, terminating his parental rights to A.R.N. Birth Father argues that
the court failed to identify the standard of proof it employed in terminating his rights and
that there was not clear and convincing evidence that the circumstances rendering him unfit
were unlikely to change within a reasonable amount of time. We affirm.
¶3 A.R.N. was born in May of 2014 and has resided in foster care since October of
2015, nearly two-thirds of A.R.N.’s life. Birth Mother and Birth Father are not married.
On January 19, 2015, Birth Mother was exhibiting paranoid, erratic, and incoherent
behaviors. Law enforcement witnessed her screaming profanities into her phone while
holding A.R.N., then eight months old, while under the influence of drugs. As a result,
Birth Mother was charged with two counts of felony criminal endangerment and A.R.N.
was placed with Birth Father by the Department of Public Health and Human Services,
Child and Family Services Division (the Department).
¶4 On August 14, 2015, Birth Father was arrested and detained on charges of partner
or family member assault and burglary. The Department placed A.R.N. in foster care, but
A.R.N. was subsequently returned to Birth Father. In October of 2015, however, Birth
2 Father was charged again with partner or family member assault and the Department again
removed A.R.N., due to concerns about Birth Father’s anger issues, personal instability,
and a chemical dependency evaluation in which Birth Father admitted to a long history of
untreated severe drug use. A.R.N. has remained in foster care since this most recent
removal from her Birth Father.
¶5 On August 21, 2015, the Department filed a Petition for Emergency Protective
Services, Adjudication of Child as Youth in Need of Care and for Temporary Legal
Custody or, in the Alternative, Temporary Investigative Authority. The court granted
emergency protective services and temporary investigative authority to the Department on
September 10, 2015. On February 11, 2016, the Court adjudicated A.R.N. a youth in need
of care for a period of 6 months and approved a treatment plan for Birth Father on March
17, 2016. On August 3, 2016, the Department petitioned the court to terminate Birth
Father’s parental rights to A.R.N. due to Birth Father’s failure to comply with the court
ordered treatment plan. Following a hearing on November 18, 2016, the District Court
terminated Birth Father’s rights on November 23, 2016. The District Court found that it
was established “by clear and convincing evidence” that the best interest of A.R.N. will be
served by termination of the parent-child legal relationship.
¶6 Birth Father has a history of unmanaged anger issues, as well as severe drug
addiction. The treatment plan approved by the court addressed these areas of concern.
Birth Father disclosed to the chemical dependency evaluator a long and extensive history
of illegal drug use involving crack cocaine, marijuana, heroin, opiates, methamphetamine,
amphetamine, and benzodiazepine. Intensive inpatient treatment with the Montana
3 Chemical Dependency Center (MCDC) was recommended. Birth Father entered
treatment, but left two days later because he disliked MCDC’s ban on smoking. Birth
Father refused to re-enter treatment, even following a second evaluation which similarly
recommended intensive inpatient treatment. Birth Father expressed he has no substance
abuse issues, despite testing positive for use of marijuana in a urinalysis and being charged
with possession and again jailed in August of 2016. The District Court found that Birth
Father had failed to comply with the treatment plan requirement that he follow through
with treatment recommendations concerning his drug addictions.
¶7 A psychological evaluation of Birth Father recommended that Birth Father
participate in anger management classes. Birth Father’s assessment for potential
dangerousness was elevated for both physical and emotional dangerousness, due to his
criminal record of assault, partner or family member assault, aggravated burglary, and
untreated and admitted methamphetamine addiction. The evaluator opined that Birth
Father was in need of serious intervention based upon Birth Father’s drug addiction and
admitted destruction of property, use of threatening and vulgar language, and throwing
things when angry. The District Court found that Birth Father had failed to follow through
with any of these treatment recommendations concerning his dangerousness and anger
issues.
¶8 The District Court found that, although there had been some visitation with A.R.N.,
Birth Father was inconsistent with his visitation opportunities and that Birth Father had
discontinued visits after October 29, 2016. The District Court also found that Birth Father
4 had failed to participate in family-based therapy and failed to secure appropriate housing
for A.R.N.
¶9 This Court reviews a district court’s decision to terminate parental rights for an
abuse of discretion. In re E.Z.C., 2013 MT 123, ¶ 18, 370 Mont. 116, 300 P.3d 1174. An
abuse of discretion occurs when a district court acts arbitrarily, without conscientious
judgment, or exceeds the bounds of reason. E.Z.C., ¶ 19. Upon review of the record, we
conclude that there was more than substantial evidence presented to the District Court for
its finding that Birth Father had failed to complete his treatment plan and the court’s
conclusion that the conduct rendering Birth Father unfit to parent A.R.N. was unlikely to
change. Birth Father had anger issues and a severe drug addiction. He refused to attend
anger management classes and did not complete the program at MCDC. His dangerousness
and risk to A.R.N. as a result of these untreated issues was elevated. His visitation with
A.R.N. was inconsistent. Despite an appropriate treatment plan being approved by the
court and resources made available to Birth Father, Birth Father did not avail himself of
the chance to remove the conditions rendering him unfit to parent.
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05/30/2017
DA 16-0755 Case Number: DA 16-0755
IN THE SUPREME COURT OF THE STATE OF MONTANA
2017 MT 133N
IN THE MATTER OF:
A.R.N.,
A Youth in Need of Care.
APPEAL FROM: District Court of the Twenty-First Judicial District, In and For the County of Ravalli, Cause No. DN 15-10 Honorable James A. Haynes, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Tracy Labin Rhodes, Attorney at Law, Missoula, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, C. Mark Fowler, Assistant Attorney General, Helena, Montana
William E. Fulbright, Ravalli County Attorney, Howard F. Recht, Deputy County Attorney, Hamilton, Montana
Submitted on Briefs: May 24, 2017
Decided: May 30, 2017
Filed:
__________________________________________ Clerk Justice Laurie McKinnon delivered the Opinion of the Court.
¶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 Appellant Birth Father appeals the decision of the Twenty-First Judicial District
Court, Ravalli County, terminating his parental rights to A.R.N. Birth Father argues that
the court failed to identify the standard of proof it employed in terminating his rights and
that there was not clear and convincing evidence that the circumstances rendering him unfit
were unlikely to change within a reasonable amount of time. We affirm.
¶3 A.R.N. was born in May of 2014 and has resided in foster care since October of
2015, nearly two-thirds of A.R.N.’s life. Birth Mother and Birth Father are not married.
On January 19, 2015, Birth Mother was exhibiting paranoid, erratic, and incoherent
behaviors. Law enforcement witnessed her screaming profanities into her phone while
holding A.R.N., then eight months old, while under the influence of drugs. As a result,
Birth Mother was charged with two counts of felony criminal endangerment and A.R.N.
was placed with Birth Father by the Department of Public Health and Human Services,
Child and Family Services Division (the Department).
¶4 On August 14, 2015, Birth Father was arrested and detained on charges of partner
or family member assault and burglary. The Department placed A.R.N. in foster care, but
A.R.N. was subsequently returned to Birth Father. In October of 2015, however, Birth
2 Father was charged again with partner or family member assault and the Department again
removed A.R.N., due to concerns about Birth Father’s anger issues, personal instability,
and a chemical dependency evaluation in which Birth Father admitted to a long history of
untreated severe drug use. A.R.N. has remained in foster care since this most recent
removal from her Birth Father.
¶5 On August 21, 2015, the Department filed a Petition for Emergency Protective
Services, Adjudication of Child as Youth in Need of Care and for Temporary Legal
Custody or, in the Alternative, Temporary Investigative Authority. The court granted
emergency protective services and temporary investigative authority to the Department on
September 10, 2015. On February 11, 2016, the Court adjudicated A.R.N. a youth in need
of care for a period of 6 months and approved a treatment plan for Birth Father on March
17, 2016. On August 3, 2016, the Department petitioned the court to terminate Birth
Father’s parental rights to A.R.N. due to Birth Father’s failure to comply with the court
ordered treatment plan. Following a hearing on November 18, 2016, the District Court
terminated Birth Father’s rights on November 23, 2016. The District Court found that it
was established “by clear and convincing evidence” that the best interest of A.R.N. will be
served by termination of the parent-child legal relationship.
¶6 Birth Father has a history of unmanaged anger issues, as well as severe drug
addiction. The treatment plan approved by the court addressed these areas of concern.
Birth Father disclosed to the chemical dependency evaluator a long and extensive history
of illegal drug use involving crack cocaine, marijuana, heroin, opiates, methamphetamine,
amphetamine, and benzodiazepine. Intensive inpatient treatment with the Montana
3 Chemical Dependency Center (MCDC) was recommended. Birth Father entered
treatment, but left two days later because he disliked MCDC’s ban on smoking. Birth
Father refused to re-enter treatment, even following a second evaluation which similarly
recommended intensive inpatient treatment. Birth Father expressed he has no substance
abuse issues, despite testing positive for use of marijuana in a urinalysis and being charged
with possession and again jailed in August of 2016. The District Court found that Birth
Father had failed to comply with the treatment plan requirement that he follow through
with treatment recommendations concerning his drug addictions.
¶7 A psychological evaluation of Birth Father recommended that Birth Father
participate in anger management classes. Birth Father’s assessment for potential
dangerousness was elevated for both physical and emotional dangerousness, due to his
criminal record of assault, partner or family member assault, aggravated burglary, and
untreated and admitted methamphetamine addiction. The evaluator opined that Birth
Father was in need of serious intervention based upon Birth Father’s drug addiction and
admitted destruction of property, use of threatening and vulgar language, and throwing
things when angry. The District Court found that Birth Father had failed to follow through
with any of these treatment recommendations concerning his dangerousness and anger
issues.
¶8 The District Court found that, although there had been some visitation with A.R.N.,
Birth Father was inconsistent with his visitation opportunities and that Birth Father had
discontinued visits after October 29, 2016. The District Court also found that Birth Father
4 had failed to participate in family-based therapy and failed to secure appropriate housing
for A.R.N.
¶9 This Court reviews a district court’s decision to terminate parental rights for an
abuse of discretion. In re E.Z.C., 2013 MT 123, ¶ 18, 370 Mont. 116, 300 P.3d 1174. An
abuse of discretion occurs when a district court acts arbitrarily, without conscientious
judgment, or exceeds the bounds of reason. E.Z.C., ¶ 19. Upon review of the record, we
conclude that there was more than substantial evidence presented to the District Court for
its finding that Birth Father had failed to complete his treatment plan and the court’s
conclusion that the conduct rendering Birth Father unfit to parent A.R.N. was unlikely to
change. Birth Father had anger issues and a severe drug addiction. He refused to attend
anger management classes and did not complete the program at MCDC. His dangerousness
and risk to A.R.N. as a result of these untreated issues was elevated. His visitation with
A.R.N. was inconsistent. Despite an appropriate treatment plan being approved by the
court and resources made available to Birth Father, Birth Father did not avail himself of
the chance to remove the conditions rendering him unfit to parent.
¶10 The District Court addressed all of the statutory mandates and made specific and
detailed findings of fact which addressed the primary consideration of A.R.N.’s best
interests. Section 41-3-609 (3), MCA; In re C.M.C., 2009 MT 153, ¶ 23, 350 Mont. 391,
208 P.3d 809. The court’s findings satisfied the requirements of § 41-3-609(1)(f), MCA,
that Father had not complied with an appropriate treatment plan and that the condition
rendering Birth Father unfit was unlikely to change. As the record clearly supports there
was substantial evidence supporting each of the statutory requirements, we will not address
5 Birth Father’s argument that any alleged deficiency in the court’s enunciation of the burden
of proof renders his termination of parental rights constitutionally infirm. The District
Court did not abuse its discretion in terminating Birth Father’s parental rights to A.R.N.
¶11 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our
Internal Operating Rules, which provides for unpublished opinions. This appeal presents
no constitutional issues, no issues of first impression, and does not establish new precedent
or modify existing precedent.
/S/ LAURIE McKINNON
We Concur:
/S/ MICHAEL E WHEAT /S/ JAMES JEREMIAH SHEA /S/ DIRK M. SANDEFUR /S/ JIM RICE