November 12 2014
DA 13-0673
IN THE SUPREME COURT OF THE STATE OF MONTANA
2014 MT 297N
IN THE MATTER OF:
C.A.O.,
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-12-16 Honorable Karen Townsend, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Meri K. Althauser, Montana Legal Justice, PLLC, Missoula, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana
Fred R. Van Valkenburg, Missoula County Attorney, Missoula, Montana
Submitted on Briefs: October 15, 2014 Decided: November 12, 2014
Filed:
Clerk Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d), 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 B.K.D. (Mother) appeals from an order of the Fourth Judicial District, Missoula
County, terminating her parental rights to her child, C.A.O. We affirm.
¶3 We restate the following issues raised on appeal:
¶4 Whether the District Court abused its discretion when it terminated Mother’s
parental rights.
¶5 Whether the District Court properly presided over Mother’s case.
¶6 In January 2012, C.A.O. was born premature, at 27 weeks gestation. She
remained in the neo-natal intensive care unit until April 2012 and continues to have
extensive health care needs. A month after C.A.O.’s birth, Mother moved to Washington
State, leaving C.A.O. She later returned to Montana in August 2012.
¶7 On March 1, 2012, the Department of Public Health and Human Services
(Department) filed for emergency protective services for C.A.O. and adjudication as a
youth in need of care. The case was assigned to Judge Townsend, who was presiding
over a separate case involving Mother’s older daughter and the Department. On June 5,
2012, Mother stipulated that C.A.O. was a youth in need of care. Mother’s attorney
2 agreed to a treatment plan on July 10, 2012. The treatment plan required Mother to
participate in mental health services, parenting courses, medication management services,
vocational rehabilitation, and to establish a safe home.
¶8 On January 10, 2013, Mother was accepted into Judge Larson’s Family Treatment
Court (FTC). Judge Larson accepted the case, but the following day the Department
substituted Judge Larson pursuant to § 3-1-804, MCA, and the case was sent back to
Judge Townsend.
¶9 On February 4, 2013, Judge Townsend issued a Notice, explaining that although
Mother was participating in FTC, she would continue to preside over substantive issues.
Judge Larson echoed this fact, stating, “Department 4[Townsend] retains jurisdiction
over all substantive dispositive things, such as the petition to terminate.” Mother did not
object to the arrangement, although the Department did.
¶10 On March 4, 2013, Judge Townsend amended the treatment plan to include a
provision permitting the FTC to “monitor and implement all provisions in the Mother’s
treatment plan with regard to visitation between Mother and Child as well as the
Mother’s Treatment.” Again, Mother did not object to the amendment, however the
Department did.
¶11 In the interim, on February 14, 2013, the Department petitioned to terminate
Mother’s parental rights to C.A.O. At Mother’s request, the District Court continued the
termination hearing to grant Mother more time to address her treatment plan goals. On
3 June 27, 2013, the Department renewed its petition for termination and Mother’s request
to continue the hearing was denied.
¶12 Testimony at the hearing established that Mother refused to address her serious
mental health issues and parenting problems. Mother was ultimately discharged from
parenting classes for failure to appear, despite having multiple opportunities to re-start
the programs. Additionally, Mother was homeless, having voluntarily left a
treatment-based housing unit. CFS worker Eden Roberts testified to Mother’s expressed
interest, but lack of actual follow-through. CFS worker Marilyn Thorn noted that Mother
had failed to complete any treatment plan task. After a three-day hearing in August 2013,
the District Court entered its findings terminating Mother’s parental rights.
¶13 Whether the District Court abused its discretion when it terminated Mother’s parental rights.
¶14 We review a district court’s decision to terminate parental rights for abuse of
discretion. In re D.B., 2007 MT 246, ¶ 16, 339 Mont. 240, 168 P.3d 691. Findings of
fact are reviewed for clear error and conclusions of law for correctness. In re D.B., ¶ 18.
A district court abused its discretion only if it “acted arbitrarily, without employment of
conscientious judgment, or exceeded the bounds of reason resulting in substantial
injustice.” In re D.B., ¶ 16 (citations omitted).
¶15 A court may order termination of parental rights upon a finding of clear and
convincing evidence that the child is an adjudicated youth in need of care, an appropriate
treatment plan has not been complied with or not been successful, and the conduct or
condition of the parents rendering them unfit is unlikely to change within a reasonable
4 time. Section 41-3-609(1)(f), MCA. “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 (citations omitted).
¶16 Mother argues that the District Court erred in adopting the amended treatment
plan. We will not consider arguments that are not properly preserved for appeal. Mother
requested to participate in FTC and did not object to the amended treatment plan. She
has waived the right to challenge its appropriateness on appeal.
¶17 We nevertheless note that clear and convincing evidence supports the finding that
the treatment plan was appropriate. There is no bright-line test for appropriateness, but
generally, the Court considers whether the parents were represented, whether they
stipulated to the treatment plan, and whether the plan considers the problems facing the
parent and the child. In re A.C., 2001 MT 126, ¶ 26, 305 Mont. 404, 27 P.3d 960. Here,
Mother was represented by counsel, she raised no concerns with the amended plan, and
the plan specifically addressed the mother’s mental health issues and the child’s need for
a safe home. Further, the District Court’s findings of fact focused almost exclusively on
tasks in the original treatment plan, which Mother concedes was appropriate.
¶18 Mother also argues that the Department gave her insufficient time to complete
treatment court which, at its earliest can be completed within 12 months. A parent’s
enrollment in treatment court does not alleviate the need to make progress on a treatment
plan. The Department became involved in March 2012, did not file its petition for
termination until February 2013, and the termination hearing was more than a year after
5 Mother stipulated to the original treatment plan. Mother failed to take the necessary steps
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November 12 2014
DA 13-0673
IN THE SUPREME COURT OF THE STATE OF MONTANA
2014 MT 297N
IN THE MATTER OF:
C.A.O.,
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-12-16 Honorable Karen Townsend, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Meri K. Althauser, Montana Legal Justice, PLLC, Missoula, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana
Fred R. Van Valkenburg, Missoula County Attorney, Missoula, Montana
Submitted on Briefs: October 15, 2014 Decided: November 12, 2014
Filed:
Clerk Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d), 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 B.K.D. (Mother) appeals from an order of the Fourth Judicial District, Missoula
County, terminating her parental rights to her child, C.A.O. We affirm.
¶3 We restate the following issues raised on appeal:
¶4 Whether the District Court abused its discretion when it terminated Mother’s
parental rights.
¶5 Whether the District Court properly presided over Mother’s case.
¶6 In January 2012, C.A.O. was born premature, at 27 weeks gestation. She
remained in the neo-natal intensive care unit until April 2012 and continues to have
extensive health care needs. A month after C.A.O.’s birth, Mother moved to Washington
State, leaving C.A.O. She later returned to Montana in August 2012.
¶7 On March 1, 2012, the Department of Public Health and Human Services
(Department) filed for emergency protective services for C.A.O. and adjudication as a
youth in need of care. The case was assigned to Judge Townsend, who was presiding
over a separate case involving Mother’s older daughter and the Department. On June 5,
2012, Mother stipulated that C.A.O. was a youth in need of care. Mother’s attorney
2 agreed to a treatment plan on July 10, 2012. The treatment plan required Mother to
participate in mental health services, parenting courses, medication management services,
vocational rehabilitation, and to establish a safe home.
¶8 On January 10, 2013, Mother was accepted into Judge Larson’s Family Treatment
Court (FTC). Judge Larson accepted the case, but the following day the Department
substituted Judge Larson pursuant to § 3-1-804, MCA, and the case was sent back to
Judge Townsend.
¶9 On February 4, 2013, Judge Townsend issued a Notice, explaining that although
Mother was participating in FTC, she would continue to preside over substantive issues.
Judge Larson echoed this fact, stating, “Department 4[Townsend] retains jurisdiction
over all substantive dispositive things, such as the petition to terminate.” Mother did not
object to the arrangement, although the Department did.
¶10 On March 4, 2013, Judge Townsend amended the treatment plan to include a
provision permitting the FTC to “monitor and implement all provisions in the Mother’s
treatment plan with regard to visitation between Mother and Child as well as the
Mother’s Treatment.” Again, Mother did not object to the amendment, however the
Department did.
¶11 In the interim, on February 14, 2013, the Department petitioned to terminate
Mother’s parental rights to C.A.O. At Mother’s request, the District Court continued the
termination hearing to grant Mother more time to address her treatment plan goals. On
3 June 27, 2013, the Department renewed its petition for termination and Mother’s request
to continue the hearing was denied.
¶12 Testimony at the hearing established that Mother refused to address her serious
mental health issues and parenting problems. Mother was ultimately discharged from
parenting classes for failure to appear, despite having multiple opportunities to re-start
the programs. Additionally, Mother was homeless, having voluntarily left a
treatment-based housing unit. CFS worker Eden Roberts testified to Mother’s expressed
interest, but lack of actual follow-through. CFS worker Marilyn Thorn noted that Mother
had failed to complete any treatment plan task. After a three-day hearing in August 2013,
the District Court entered its findings terminating Mother’s parental rights.
¶13 Whether the District Court abused its discretion when it terminated Mother’s parental rights.
¶14 We review a district court’s decision to terminate parental rights for abuse of
discretion. In re D.B., 2007 MT 246, ¶ 16, 339 Mont. 240, 168 P.3d 691. Findings of
fact are reviewed for clear error and conclusions of law for correctness. In re D.B., ¶ 18.
A district court abused its discretion only if it “acted arbitrarily, without employment of
conscientious judgment, or exceeded the bounds of reason resulting in substantial
injustice.” In re D.B., ¶ 16 (citations omitted).
¶15 A court may order termination of parental rights upon a finding of clear and
convincing evidence that the child is an adjudicated youth in need of care, an appropriate
treatment plan has not been complied with or not been successful, and the conduct or
condition of the parents rendering them unfit is unlikely to change within a reasonable
4 time. Section 41-3-609(1)(f), MCA. “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 (citations omitted).
¶16 Mother argues that the District Court erred in adopting the amended treatment
plan. We will not consider arguments that are not properly preserved for appeal. Mother
requested to participate in FTC and did not object to the amended treatment plan. She
has waived the right to challenge its appropriateness on appeal.
¶17 We nevertheless note that clear and convincing evidence supports the finding that
the treatment plan was appropriate. There is no bright-line test for appropriateness, but
generally, the Court considers whether the parents were represented, whether they
stipulated to the treatment plan, and whether the plan considers the problems facing the
parent and the child. In re A.C., 2001 MT 126, ¶ 26, 305 Mont. 404, 27 P.3d 960. Here,
Mother was represented by counsel, she raised no concerns with the amended plan, and
the plan specifically addressed the mother’s mental health issues and the child’s need for
a safe home. Further, the District Court’s findings of fact focused almost exclusively on
tasks in the original treatment plan, which Mother concedes was appropriate.
¶18 Mother also argues that the Department gave her insufficient time to complete
treatment court which, at its earliest can be completed within 12 months. A parent’s
enrollment in treatment court does not alleviate the need to make progress on a treatment
plan. The Department became involved in March 2012, did not file its petition for
termination until February 2013, and the termination hearing was more than a year after
5 Mother stipulated to the original treatment plan. Mother failed to take the necessary steps
to address her mental health issues, obtain housing, or participate in parenting classes.
The Department gave Mother ample time to complete her plan; however, Mother’s own
inability to meet treatment plan goals hindered her success.
¶19 Lastly, Mother argues that the Department did not make reasonable efforts to
reunite the family. Section 41-3-423(1), MCA, requires the Department to make
reasonable efforts to prevent the removal of the child and to reunify the family. For more
than a year, the Department worked to reunite Mother and C.A.O. by providing mental
health evaluations, counseling, parenting classes, supervised visitations, referrals for
medication management, and social work support. Despite the multitude of services
made available to Mother, she failed to utilize the services, frequently missed
appointments, and ultimately did not complete any tasks.
¶20 Whether the District Court properly presided over Mother’s case.
¶21 Mother argues that Judge Townsend lost subject matter jurisdiction after she made
the referral to Judge Larson’s Treatment Court. Mother maintains that the District Court
violated § 3-1-804, MCA, when Judge Townsend “resumed jurisdiction” after Judge
Larson was substituted. She characterizes both judges as “disqualified from the case.”
¶22 Jurisdiction is a comprehensive term used to describe the court’s power to hear
and determine controversies.1 In re Woodside-Florence Irr. Dist., 121 Mont. 346, 352,
1 The parties frame this issue as one of subject matter jurisdiction. Subject matter jurisdiction involves the court’s power to hear certain types of cases. All district courts within the Fourth Judicial District have the power to hear abuse and neglect cases brought under Title 41, chapter 3, MCA. Section 41-3-103, MCA. 6 194 P.2d 241, 244 (1948). “For reasons of efficient judicial administration, when the
basis for relinquishing jurisdiction of a cause disappears, the original judge should be
able to resume hearing the case.” State ex rel. McKendry v. District Court, 201 Mont.
244, 248, 653 P.2d 847, 849 (1982). Within a judicial district, district court judges have
the flexibility to interchange their work between the judges. The Fourth Judicial
District’s rules of practice specifically provide for an interchange of cases whether due to
absence, illness, or “upon the request of any judge.” Rules of Practice, Forms and
Orders, Mont. Fourth Judicial Dist., Rule 19.
¶23 Additionally, § 3-1-804, MCA, does not apply to Judge Townsend in this instance.
A judge’s power to act on the merits of the case is lost only after a party files a timely
motion to substitute. Section 3-1-804(5), MCA. Here, there was no motion to substitute
Judge Townsend. Rather, Judge Townsend invited Judge Larson to assume jurisdiction
due to Mother’s participation in FTC. When the Department exercised its right to
substitute Judge Larson, the case properly returned to Judge Townsend. No subsequent
motions to substitute were filed and Judge Townsend properly presided over the case.
¶24 For the foregoing reasons, we conclude that Judge Townsend had authority to
preside over Mother’s case. Additionally, the District Court did not abuse its discretion
in terminating Mother’s parental rights.
¶25 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of
our Internal Operating Rules, which provides for memorandum opinions. The District
7 Court’s findings of fact are supported by substantial evidence and the legal issues are
controlled by settled Montana law, which the District Court correctly interpreted.
¶26 Affirmed.
/S/ MIKE McGRATH
We Concur:
/S/ PATRICIA COTTER /S/ BETH BAKER /S/ LAURIE McKINNON /S/ MICHAEL E WHEAT