April 12 2016
DA 15-0482
IN THE SUPREME COURT OF THE STATE OF MONTANA
2016 MT 89N
IN THE MATTER OF:
N. A., A.A., N.A., and Z.A.,
Youths in Need of Care.
APPEAL FROM: District Court of the Eighth Judicial District, In and For the County of Cascade, Cause Nos. BDN-13-160, BDN-13-161, BDN-13-162, BDN-13-163 Honorable Thomas McKittrick, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Jill A. Hughes, Matrium Law Group, PLLC, Missoula, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, C. Mark Fowler, Assistant Attorney General, Helena, Montana
John Weston Parker, Cascade County Attorney, Valeria Winfield, Deputy County Attorney, Great Falls, Montana
Submitted on Briefs: March 23, 2016
Decided: April 12, 2016
Filed:
__________________________________________ Clerk Chief Justice Mike McGrath 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 This case pertains to the termination of the parental rights of A.A. to his four
children, N.A., A.A., N.A., and Z.A. The children were placed into protective custody on
April 6, 2013. Temporary Legal Custody was granted to the Department of Public Health
and Human Services (“DPHHS”) on January 30 2014, and the children were adjudicated
as Youths in Need of Care the same day. The State petitioned the court to terminate the
parent-child relationship on January 15, 2015, and a hearing was held over two days on
June 18 and July 2, 2015. A written order terminating the parental rights of A.A. was
signed on July 23, 2015. A.A. appeals. We affirm.
¶3 On April 6, 2013, N.A. was born and DPHHS received information regarding
threatening and abusive behavior directed at the birth mother from the natural father,
A.A. DPHHS determined based on previous criminal history and abusive behavior that
the children should be taken into the care of DPHHS. Over the following months, there
were several instances during which A.A. intimidated his family members and verbally
and physically abused them.
2 ¶4 On February 9, 2014, a treatment plan was adopted. Among other tasks, the
treatment plan acknowledged that A.A. had mental health issues and imposed psychiatric
treatment requirements consistent with the goal of A.A. acquiring the necessary skills to
provide for his children’s’ safety, permanency, and well-being.
¶5 We review a district court’s decision to terminate parental rights for an abuse of
discretion. In re K.A., 2016 MT 27, ¶ 19, 382 Mont. 165, 365 P.3d 478. As a general
rule, we will not consider novel issues, or new arguments on appeal. Siebken v.
Voderberg, 2015 MT 296, ¶ 19, 381 Mont. 256, 359 P.3d 1073; Day v. Payne, 280 Mont.
273, 276, 929 P.2d 864, 866 (1996).
¶6 Proceedings to terminate parental rights follow strict statutory criteria. In re J.W.,
2013 MT 201, ¶ 26, 371 Mont. 98, 307 P.3d 274. Title 41 of the Montana Code outlines
the statutory framework under which a court may assess the appropriateness of
terminating parental rights. See § 41-3-602, MCA. In making its assessment the court is
obliged to “give primary consideration to the physical, mental and emotional conditions
and needs of the child.” Section 41-3-609(3), MCA. If an appropriate treatment plan has
been approved but not successfully completed, the court may terminate parental rights if
it finds that a “continuation of the parent-child relationship will likely result in continued
abuse or neglect.” Section 41-3-609(2), MCA. Furthermore, if a child has been in the
“physical custody of the State for the last 15 months out of the most recent 22 months,
the best interest of the child must be presumed to be served by the termination of parental
rights.” Section 41-3-604(1), MCA.
3 ¶7 A.A. submits two arguments on appeal. First, A.A. invites this Court to consider
the applicability of the Americans with Disabilities Act and related federal provisions
(“ADA”). He posits that the treatment plan violated several provisions of the federal law,
which is liberally cited and extensively covered in his appellate brief. A.A. posits that
federal law would have mandated a modification of the treatment plan to better suit his
mental health issues. However, none of these arguments or citations occur in the record
and none were presented to the District Court. We have consistently held that
introducing new legal arguments on appeal undermines the justice system and is
substantially unfair to the parties. Payne, 280 Mont. at 276-77, 929 P.2d at 866. That
rule is an essential aspect of litigation because “[i]t is based on the principle that it is
fundamentally unfair to fault the trial court for failing to rule correctly on an issue it was
never given the opportunity to consider.” Payne, 280 Mont. at 276-77, 929 P.2d at 866.
A.A. argues that although he never cited federal law or mentioned the ADA before the
District Court, doing so is not required under Nason v. Leistiko, 1998 MT 217, ¶ 18, 290
Mont. 460, 963 P.2d 1279. A.A. claims that the sporadic references in the record to his
needing greater accommodation for his mental health were “clearly rooted” in the ADA,
and that the federal nature of these references was apparent to “any party with legal
training.” However, whether the ADA was invoked or not, the court did consider the
seriousness of the mental health issues involved in reviewing the scope of A.A’s
treatment plan.
¶8 The District Court found that A.A. demonstrated some inconsistent progress in
addressing his mental health issues, but his “emotional deregulation” still posed a serious
4 problem for the children. Although there was evidence to suggest that A.A. had an
intellectual disability, other evidence undermined the significance of those evaluations.
Testimony from a mental health professional showed that A.A. “appeared to have
fabricated being in treatment for brain cancer to manipulate the behaviors and feelings of
others towards him.” The testimony also showed that he remained “motivated to present
himself in a positive light, . . . externalized blame,” and “provided numerous invalid
results to tests administered during the [psychological] evaluation[s].”
¶9 Notwithstanding the presence of remarks regarding the mental health
accommodations A.A. requested in the record, the appeal still presents a new legal
argument because it relies on law that was never introduced to the District Court. A.A.’s
argument is especially unpersuasive because neither the District Court nor the State had
an opportunity to consider the issue A.A. now raises on appeal. Payne, 280 Mont. at
276-77, 929 P.2d at 866. Consequently, we decline to address the applicability of the
ADA in this appeal.
¶10 Second, A.A. claims that the District Court made an erroneous conclusion of law
by adopting a presumption that termination of parental rights was in the best interests of
the child because they had been in foster care for 27 months. A.A. argues that the time
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April 12 2016
DA 15-0482
IN THE SUPREME COURT OF THE STATE OF MONTANA
2016 MT 89N
IN THE MATTER OF:
N. A., A.A., N.A., and Z.A.,
Youths in Need of Care.
APPEAL FROM: District Court of the Eighth Judicial District, In and For the County of Cascade, Cause Nos. BDN-13-160, BDN-13-161, BDN-13-162, BDN-13-163 Honorable Thomas McKittrick, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Jill A. Hughes, Matrium Law Group, PLLC, Missoula, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, C. Mark Fowler, Assistant Attorney General, Helena, Montana
John Weston Parker, Cascade County Attorney, Valeria Winfield, Deputy County Attorney, Great Falls, Montana
Submitted on Briefs: March 23, 2016
Decided: April 12, 2016
Filed:
__________________________________________ Clerk Chief Justice Mike McGrath 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 This case pertains to the termination of the parental rights of A.A. to his four
children, N.A., A.A., N.A., and Z.A. The children were placed into protective custody on
April 6, 2013. Temporary Legal Custody was granted to the Department of Public Health
and Human Services (“DPHHS”) on January 30 2014, and the children were adjudicated
as Youths in Need of Care the same day. The State petitioned the court to terminate the
parent-child relationship on January 15, 2015, and a hearing was held over two days on
June 18 and July 2, 2015. A written order terminating the parental rights of A.A. was
signed on July 23, 2015. A.A. appeals. We affirm.
¶3 On April 6, 2013, N.A. was born and DPHHS received information regarding
threatening and abusive behavior directed at the birth mother from the natural father,
A.A. DPHHS determined based on previous criminal history and abusive behavior that
the children should be taken into the care of DPHHS. Over the following months, there
were several instances during which A.A. intimidated his family members and verbally
and physically abused them.
2 ¶4 On February 9, 2014, a treatment plan was adopted. Among other tasks, the
treatment plan acknowledged that A.A. had mental health issues and imposed psychiatric
treatment requirements consistent with the goal of A.A. acquiring the necessary skills to
provide for his children’s’ safety, permanency, and well-being.
¶5 We review a district court’s decision to terminate parental rights for an abuse of
discretion. In re K.A., 2016 MT 27, ¶ 19, 382 Mont. 165, 365 P.3d 478. As a general
rule, we will not consider novel issues, or new arguments on appeal. Siebken v.
Voderberg, 2015 MT 296, ¶ 19, 381 Mont. 256, 359 P.3d 1073; Day v. Payne, 280 Mont.
273, 276, 929 P.2d 864, 866 (1996).
¶6 Proceedings to terminate parental rights follow strict statutory criteria. In re J.W.,
2013 MT 201, ¶ 26, 371 Mont. 98, 307 P.3d 274. Title 41 of the Montana Code outlines
the statutory framework under which a court may assess the appropriateness of
terminating parental rights. See § 41-3-602, MCA. In making its assessment the court is
obliged to “give primary consideration to the physical, mental and emotional conditions
and needs of the child.” Section 41-3-609(3), MCA. If an appropriate treatment plan has
been approved but not successfully completed, the court may terminate parental rights if
it finds that a “continuation of the parent-child relationship will likely result in continued
abuse or neglect.” Section 41-3-609(2), MCA. Furthermore, if a child has been in the
“physical custody of the State for the last 15 months out of the most recent 22 months,
the best interest of the child must be presumed to be served by the termination of parental
rights.” Section 41-3-604(1), MCA.
3 ¶7 A.A. submits two arguments on appeal. First, A.A. invites this Court to consider
the applicability of the Americans with Disabilities Act and related federal provisions
(“ADA”). He posits that the treatment plan violated several provisions of the federal law,
which is liberally cited and extensively covered in his appellate brief. A.A. posits that
federal law would have mandated a modification of the treatment plan to better suit his
mental health issues. However, none of these arguments or citations occur in the record
and none were presented to the District Court. We have consistently held that
introducing new legal arguments on appeal undermines the justice system and is
substantially unfair to the parties. Payne, 280 Mont. at 276-77, 929 P.2d at 866. That
rule is an essential aspect of litigation because “[i]t is based on the principle that it is
fundamentally unfair to fault the trial court for failing to rule correctly on an issue it was
never given the opportunity to consider.” Payne, 280 Mont. at 276-77, 929 P.2d at 866.
A.A. argues that although he never cited federal law or mentioned the ADA before the
District Court, doing so is not required under Nason v. Leistiko, 1998 MT 217, ¶ 18, 290
Mont. 460, 963 P.2d 1279. A.A. claims that the sporadic references in the record to his
needing greater accommodation for his mental health were “clearly rooted” in the ADA,
and that the federal nature of these references was apparent to “any party with legal
training.” However, whether the ADA was invoked or not, the court did consider the
seriousness of the mental health issues involved in reviewing the scope of A.A’s
treatment plan.
¶8 The District Court found that A.A. demonstrated some inconsistent progress in
addressing his mental health issues, but his “emotional deregulation” still posed a serious
4 problem for the children. Although there was evidence to suggest that A.A. had an
intellectual disability, other evidence undermined the significance of those evaluations.
Testimony from a mental health professional showed that A.A. “appeared to have
fabricated being in treatment for brain cancer to manipulate the behaviors and feelings of
others towards him.” The testimony also showed that he remained “motivated to present
himself in a positive light, . . . externalized blame,” and “provided numerous invalid
results to tests administered during the [psychological] evaluation[s].”
¶9 Notwithstanding the presence of remarks regarding the mental health
accommodations A.A. requested in the record, the appeal still presents a new legal
argument because it relies on law that was never introduced to the District Court. A.A.’s
argument is especially unpersuasive because neither the District Court nor the State had
an opportunity to consider the issue A.A. now raises on appeal. Payne, 280 Mont. at
276-77, 929 P.2d at 866. Consequently, we decline to address the applicability of the
ADA in this appeal.
¶10 Second, A.A. claims that the District Court made an erroneous conclusion of law
by adopting a presumption that termination of parental rights was in the best interests of
the child because they had been in foster care for 27 months. A.A. argues that the time
period did not begin to run until after DPHHS received legal custody of the children,
which did not occur in this case until January 30, 2014. This argument is unpersuasive
because DPHHS became involved and controlled access to the children from April 6,
2013. The children were kept at the grandparent’s home under the supervision and
control of DPHHS. It is not necessary for DPHHS to place the children directly in a state
5 institution for purposes of § 41-3-604(1), MCA. See In re B.M., 2010 MT 114, ¶ 20, 356
Mont. 327, 233 P.3d 338.
¶11 Furthermore, the District Court did not rely on the presumption for the termination
of A.A.’s parental rights. The District Court found by clear and convincing evidence that
continuation of the parent-child relationship between A.A. and the children would result
in ongoing risk of abuse and neglect to the youths, and that the Department more than
adequately satisfied the statutory requirements to offer services to A.A. to address the
underlying safety concerns and facilitate reunification prior to initiating the petition for
termination of parental rights. The court further concluded that the conduct or condition
rendering birth father unfit and unable to parent was unlikely to change within a
reasonable time. Thus, upon review of the record we cannot agree that the District Court
abused its discretion.
¶12 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of
our Internal Operating Rules, which provides for memorandum opinions. In the opinion
of the Court, this case presents a question controlled by settled law or by the clear
application of applicable standards of review.
¶13 Affirmed.
/S/ MIKE McGRATH
We Concur:
/S/ MICHAEL E WHEAT /S/ JAMES JEREMIAH SHEA /S/ PATRICIA COTTER /S/ JIM RICE