Matter of D.K. K.K.

2003 MT 164N

• Court: Montana Supreme Court
• Decided: June 10, 2003
• Docket: 03-024
• Status: Published

Opinion

No. 03-024

IN THE SUPREME COURT OF THE STATE OF MONTANA

2003 MT 164N

IN THE MATTER OF D.K. & K.K.,

Youths in Need of Care.

APPEAL FROM: District Court of the Eighth Judicial District, In and for the County of Cascade, Cause Nos. ADJ-02-009-Y, ADJ-01-142-Y The Honorable Thomas M. McKittrick, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Carl Jensen, Chief Deputy Public Defender, Great Falls, Montana (for father)

For Respondent:

Hon. Mike McGrath, Attorney General; Jennifer Anders, Assistant Attorney General, Helena, Montana

Brant Light, Cascade County Attorney; Gina Bishop, Deputy County Attorney, Great Falls, Montana

Submitted on Briefs: May 1, 2003

Decided: June 10, 2003 Filed:

__________________________________________ Clerk Chief Justice Karla M. Gray delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal

Operating Rules, the following decision shall not be cited as precedent. It shall be filed as

a public document with the Clerk of the Supreme Court and shall be reported by case title,

Supreme Court cause number and result to the State Reporter Publishing Company and to

West Group in the quarterly table of noncitable cases issued by this Court.

¶2 The natural father of D.K. and K.K. appeals from the termination of his parental

rights. We affirm the judgment entered by the Eighth Judicial District Court, Cascade

County.

¶3 Eleven-month-old K.K. was adjudicated a youth in need of care in August of 2001

because she was deemed in danger of abuse or neglect as a result of domestic violence

between her parents, both admitted methamphetamine abusers. D.K. was born in January

of 2002, placed in foster care with his sister K.K. and adjudicated a youth in need of care

shortly thereafter. The father was sentenced to prison during these proceedings and

remained incarcerated until after the District Court terminated his parental rights.

¶4 We review a district court's decision to terminate parental rights for abuse of

discretion. In re Custody of C. F., 2001 MT 19, ¶ 11, 304 Mont. 134, ¶ 11, 18 P.3d 1014,

¶ 11 (citations omitted). We review the court's findings of fact to determine whether the

findings are clearly erroneous and its conclusions of law not involving the exercise of

discretion to determine whether they are correct. In re M.J.W., 1998 MT 142, ¶ 7, 289

Mont. 232, ¶ 7, 961 P.2d 105, ¶ 7 (citations omitted).

2 ¶5 The District Court terminated the father's parental rights under § 41-3-609(1)(f),

MCA, which provides that parental rights may be terminated if the child has been

adjudicated a youth in need of care, the parents have not complied with an appropriate

treatment plan approved by the court, and the conduct or condition of the parents rendering

them unfit is unlikely to change within a reasonable time. The court determined K.K. and

D.K. had been adjudicated youths in need of care, the father had not complied with an

appropriate court-approved treatment plan, and the conduct or condition of the father

rendering him unfit is unlikely to change within a reasonable time.

¶6 The District Court made extensive additional findings of fact. It found, for example,

the father did not satisfy the requirements of his treatment plan that he successfully complete

parenting classes, demonstrate that he successfully achieved and maintained a chemical-free

lifestyle, provide verification to the Department of Public Health and Human Services

(DPHHS) social worker that he obtained a psychological evaluation or successfully

completed an anger management program, or maintain a relationship with the children by

attending every scheduled visitation and writing, sending pictures, and calling them on the

telephone. The court also found that the children have special needs including stability,

consistency and permanency and that, based on the father's history and unwillingness to

cooperate or change his behaviors, continuing the parent-child legal relationship likely would

result in continued abuse or neglect. Based on these findings, the District Court determined

the father did not comply with or successfully complete the treatment plan, the treatment

plan was not successful and the conduct of the father is not likely to change within a

3 reasonable time. As a result, the court terminated the father's parental rights to K.K. and

D.K.

¶7 The father does not challenge the District Court's findings and, indeed, the findings

are supported by substantial evidence and are not otherwise clearly erroneous. The father

contends, however, that termination of his parental rights violates principles of fundamental

fairness and constitutes an abuse of discretion. We disagree.

¶8 The father argues that he substantially complied with the terms of his treatment plan,

which he claims was impossible to complete on time because of his imprisonment. He says

he finished anger management classes and an addictive disease study program and that the

only reason he did not complete parenting classes in prison was that he was told he would

have to complete that class "on the street."

¶9 This was not a situation in which the father's opportunity to comply with the treatment

plan was cut short. The District Court found that the treatment plan which DPHHS

developed--and the court approved--for the father was detailed, reasonable and achievable.

The father refused to sign his treatment plan and the court found he refused to participate in

urinalysis testing, as required under the treatment plan. In addition, the court found that the

father did not provide DPHHS with verification of the programs he claims to have completed

in prison.

¶10 The father states he was very diligent in turning his life around after his children were

taken from him and argues termination of his parental rights at this time is not in D.K.'s and

K.K.'s best interests, because he had a good relationship with them. Although the record

4 indicates the father demonstrated good rapport with his children during visits before he went

to prison, that does not negate the domestic abuse issues which led to DPHHS's involvement

with this family. The father's sister-in-law testified that a week before the termination

hearing, she received a letter from the father in which he threatened to blacken the eyes of

K.K.'s and D.K.'s mother if the sister-in-law let her have any of the items from his apartment

which had been placed in storage. Further, as noted above, the District Court found the

father had not complied with several requirements of his treatment plan. Partial compliance

with a treatment plan is insufficient. In re D.H., 2001 MT 200, ¶ 30, 306 Mont. 278, ¶ 30,

33 P.3d 616, ¶ 30 (citing In re A.N., 2000 MT 35, ¶ 45, 298 Mont. 237, ¶ 45, 995 P.2d 427,

¶ 45).

¶11 On the record before us, we conclude the father has not established that termination

of his parental rights violated principles of fundamental fairness. Therefore, we hold the

District Court did not abuse its discretion in terminating the father's parental rights.

¶12 Affirmed.

/S/ KARLA M. GRAY

We concur:

/S/ JAMES C. NELSON /S/ W. WILLIAM LEAPHART /S/ PATRICIA COTTER /S/ JIM REGNIER