05/02/2017
DA 16-0472 Case Number: DA 16-0472
IN THE SUPREME COURT OF THE STATE OF MONTANA
2017 MT 105N
IN THE MATTER OF:
N.P-S.,
A Youth in Need of Care.
APPEAL FROM: District Court of the Sixteenth Judicial District, In and For the County of Custer, Cause No. DN-14-7 Honorable Michael B. Hayworth, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Tracy Labin Rhodes, Attorney at Law, Missoula, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Mardell Ployhar, Assistant Attorney General, Helena, Montana
Wyatt A. Glade, Custer County Attorney, Miles City, Montana
Submitted on Briefs: March 29, 2017
Decided: May 2, 2017
Filed:
__________________________________________ Clerk Justice Michael E Wheat 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 T.P.-S. (Father) appeals the Sixteenth Judicial District Court’s termination of his
parental rights to N.P.-S. We affirm.
¶3 E.R. (Mother) and Father are the biological parents of minor child N.P.-S. N.P.-S.
is currently three years old. The Department of Public Health and Human Services
(DPHHS or Department) removed N.P.-S. from her parents’ care in September 2014. The
Department filed a Petition for Emergency Protective Services, Adjudication of Child as
Youth in Need of Care and Temporary Legal Custody (Petition) on September 29, 2014,
alleging the parents used drugs in the presence of the child, parented while under the
influence of drugs, physically neglected N.P.-S., and failed to provide for the child’s basic
needs. On October 3, 2014, the Department amended its Petition, seeking a ruling under
§ 41-3-423(2)(a) and (e), MCA, that the Department was not required to provide
reunification services for Father and termination of Father’s parental rights. DPHHS noted
that Father previously had his rights to another child involuntarily terminated based upon
abandonment.
2 ¶4 Father subsequently stipulated to emergency protective services but contested the
remainder of the Petition. During a December 2014 hearing, the District Court queried
whether terminating Father’s rights would be in N.P.-S.’s best interests if Mother’s rights
were not terminated. The court reflected on the potential benefit of Father being required
to continue financial support of the child if Mother retained custody. DPHHS conceded
and agreed to continue pursuing reasonable efforts to reunify the child with Father. The
District Court adjudicated N.P.-S. a youth in need of care and the Department was granted
temporary legal custody.
¶5 The Department prepared a treatment plan for Father that the court approved in
January 2015. Under the plan Father was required, among other things, to complete a
chemical dependency (CD) evaluation, comply with treatment recommendations, maintain
sobriety, submit to drug/alcohol screening, complete a psychological evaluation, maintain
weekly contact with the Department, establish a safe residence, and have consistent and
appropriate visitation with the child.
¶6 In January 2016, the Department moved to terminate Father’s rights based, in part,
on Father’s previous termination and current abandonment of N.P.-S. DPHHS also
asserted that Father failed to complete his treatment plan and that he had not, among other
things, (1) completed a CD evaluation, (2) established his sobriety, (3) maintained
consistent housing, or (4) maintained contact with the Department. Significantly, the
Department noted that Father had left Montana and had no contact with N.P.-S. between
May 2015 and April 2016 and his visitation with the child when he was in Montana was
inconsistent and sporadic.
3 ¶7 In April 2016, the District Court conducted the first day of termination hearings for
both Mother and Father. However, Mother’s counsel was ill and the court agreed to
bifurcate the hearings. It heard evidence pertaining to Father exclusively; particularly to
Father’s non-compliance with his treatment plan. At the close of the day’s hearing, the
District Court informed the parties that it was not going to decide on termination of Father’s
rights until after Mother’s termination hearing was conducted.
¶8 The first day of Mother’s termination hearing was held on May 16, 2016. Near the
end of the hearing, Father’s counsel, acknowledging that Father’s case had “been fully
heard by the [c]ourt,” requested that she be excused from attending the remainder of
Mother’s proceeding. The District Court granted the attorney’s request and reminded both
Father and the Department that their obligations remained in effect because there had been
no ruling regarding Father’s termination. The District Court also stated that it was not
“reopening the evidence” as it pertained to Father. The court posited that in the event
Mother’s rights were not terminated, it would be financially beneficial to N.P.-S. that
Father’s rights not be terminated and he remain obligated to financially contribute to her
needs.
¶9 The second day of Mother’s hearing was held on July 6, 2016. During the hearing,
Father’s counsel attempted to introduce evidence of Father’s treatment plan compliances
between his April hearing and Mother’s July hearing. The District Court stated that it
would not consider Father’s post-hearing actions in its decision on termination. Father’s
counsel did not object to the court’s evidentiary ruling.
4 ¶10 The District Court terminated both Mother’s and Father’s parental rights to N.P.-S.
on July 6, 2016. Father’s termination was based upon his failure to complete or comply
with his treatment plan. The District Court further found that the conduct or condition
rendering Father unfit was unlikely to change within a reasonable time. Father appeals.
¶11 We review a district court’s termination of parental rights for an abuse of discretion.
In re J.W., 2013 MT 201, ¶ 25, 371 Mont. 98, 307 P.3d 274. A district court abuses its
discretion when it acts “arbitrarily, without employment of conscientious judgment or in
excess of the bounds of reason, resulting in substantial injustice.” In re M.J., 2013 MT 60,
¶ 17, 369 Mont. 247, 296 P.3d 1197. We review a district court’s factual findings for clear
error. In re A.K., 2015 MT 116, ¶ 20, 379 Mont. 41, 347 P.3d 711. We review a district
court’s application of law for correctness. In re K.B., 2013 MT 133, ¶ 18, 370 Mont. 254,
301 P.3d 836.
¶12 Father argues on appeal that the District Court’s refusal to consider his continued
efforts on his treatment plan following his April 2016 hearing rendered the termination
proceedings fundamentally unfair, in violation of his due process rights, and constituted an
abuse of the court’s discretion. Father argues that his objection to the District Court’s
bifurcation of the hearing preserved his fairness/due process argument on appeal. He
argues alternatively that we should review the constitutionality of his termination
proceeding under the plain error doctrine.
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05/02/2017
DA 16-0472 Case Number: DA 16-0472
IN THE SUPREME COURT OF THE STATE OF MONTANA
2017 MT 105N
IN THE MATTER OF:
N.P-S.,
A Youth in Need of Care.
APPEAL FROM: District Court of the Sixteenth Judicial District, In and For the County of Custer, Cause No. DN-14-7 Honorable Michael B. Hayworth, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Tracy Labin Rhodes, Attorney at Law, Missoula, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Mardell Ployhar, Assistant Attorney General, Helena, Montana
Wyatt A. Glade, Custer County Attorney, Miles City, Montana
Submitted on Briefs: March 29, 2017
Decided: May 2, 2017
Filed:
__________________________________________ Clerk Justice Michael E Wheat 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 T.P.-S. (Father) appeals the Sixteenth Judicial District Court’s termination of his
parental rights to N.P.-S. We affirm.
¶3 E.R. (Mother) and Father are the biological parents of minor child N.P.-S. N.P.-S.
is currently three years old. The Department of Public Health and Human Services
(DPHHS or Department) removed N.P.-S. from her parents’ care in September 2014. The
Department filed a Petition for Emergency Protective Services, Adjudication of Child as
Youth in Need of Care and Temporary Legal Custody (Petition) on September 29, 2014,
alleging the parents used drugs in the presence of the child, parented while under the
influence of drugs, physically neglected N.P.-S., and failed to provide for the child’s basic
needs. On October 3, 2014, the Department amended its Petition, seeking a ruling under
§ 41-3-423(2)(a) and (e), MCA, that the Department was not required to provide
reunification services for Father and termination of Father’s parental rights. DPHHS noted
that Father previously had his rights to another child involuntarily terminated based upon
abandonment.
2 ¶4 Father subsequently stipulated to emergency protective services but contested the
remainder of the Petition. During a December 2014 hearing, the District Court queried
whether terminating Father’s rights would be in N.P.-S.’s best interests if Mother’s rights
were not terminated. The court reflected on the potential benefit of Father being required
to continue financial support of the child if Mother retained custody. DPHHS conceded
and agreed to continue pursuing reasonable efforts to reunify the child with Father. The
District Court adjudicated N.P.-S. a youth in need of care and the Department was granted
temporary legal custody.
¶5 The Department prepared a treatment plan for Father that the court approved in
January 2015. Under the plan Father was required, among other things, to complete a
chemical dependency (CD) evaluation, comply with treatment recommendations, maintain
sobriety, submit to drug/alcohol screening, complete a psychological evaluation, maintain
weekly contact with the Department, establish a safe residence, and have consistent and
appropriate visitation with the child.
¶6 In January 2016, the Department moved to terminate Father’s rights based, in part,
on Father’s previous termination and current abandonment of N.P.-S. DPHHS also
asserted that Father failed to complete his treatment plan and that he had not, among other
things, (1) completed a CD evaluation, (2) established his sobriety, (3) maintained
consistent housing, or (4) maintained contact with the Department. Significantly, the
Department noted that Father had left Montana and had no contact with N.P.-S. between
May 2015 and April 2016 and his visitation with the child when he was in Montana was
inconsistent and sporadic.
3 ¶7 In April 2016, the District Court conducted the first day of termination hearings for
both Mother and Father. However, Mother’s counsel was ill and the court agreed to
bifurcate the hearings. It heard evidence pertaining to Father exclusively; particularly to
Father’s non-compliance with his treatment plan. At the close of the day’s hearing, the
District Court informed the parties that it was not going to decide on termination of Father’s
rights until after Mother’s termination hearing was conducted.
¶8 The first day of Mother’s termination hearing was held on May 16, 2016. Near the
end of the hearing, Father’s counsel, acknowledging that Father’s case had “been fully
heard by the [c]ourt,” requested that she be excused from attending the remainder of
Mother’s proceeding. The District Court granted the attorney’s request and reminded both
Father and the Department that their obligations remained in effect because there had been
no ruling regarding Father’s termination. The District Court also stated that it was not
“reopening the evidence” as it pertained to Father. The court posited that in the event
Mother’s rights were not terminated, it would be financially beneficial to N.P.-S. that
Father’s rights not be terminated and he remain obligated to financially contribute to her
needs.
¶9 The second day of Mother’s hearing was held on July 6, 2016. During the hearing,
Father’s counsel attempted to introduce evidence of Father’s treatment plan compliances
between his April hearing and Mother’s July hearing. The District Court stated that it
would not consider Father’s post-hearing actions in its decision on termination. Father’s
counsel did not object to the court’s evidentiary ruling.
4 ¶10 The District Court terminated both Mother’s and Father’s parental rights to N.P.-S.
on July 6, 2016. Father’s termination was based upon his failure to complete or comply
with his treatment plan. The District Court further found that the conduct or condition
rendering Father unfit was unlikely to change within a reasonable time. Father appeals.
¶11 We review a district court’s termination of parental rights for an abuse of discretion.
In re J.W., 2013 MT 201, ¶ 25, 371 Mont. 98, 307 P.3d 274. A district court abuses its
discretion when it acts “arbitrarily, without employment of conscientious judgment or in
excess of the bounds of reason, resulting in substantial injustice.” In re M.J., 2013 MT 60,
¶ 17, 369 Mont. 247, 296 P.3d 1197. We review a district court’s factual findings for clear
error. In re A.K., 2015 MT 116, ¶ 20, 379 Mont. 41, 347 P.3d 711. We review a district
court’s application of law for correctness. In re K.B., 2013 MT 133, ¶ 18, 370 Mont. 254,
301 P.3d 836.
¶12 Father argues on appeal that the District Court’s refusal to consider his continued
efforts on his treatment plan following his April 2016 hearing rendered the termination
proceedings fundamentally unfair, in violation of his due process rights, and constituted an
abuse of the court’s discretion. Father argues that his objection to the District Court’s
bifurcation of the hearing preserved his fairness/due process argument on appeal. He
argues alternatively that we should review the constitutionality of his termination
proceeding under the plain error doctrine.
¶13 Neither Father’s general objection to bifurcation of the proceedings nor his claim
that preservation/reunification attempts continued after his April 25 hearing preserved a
due process argument on appeal. Moreover, at Mother’s May hearing, the District Court
5 informed Father that the court did not intend to reopen the evidence portion of Father’s
proceeding. Consequently, Father was on notice that his proceeding was complete. We
conclude Father failed to preserve his due process claim.
¶14 However, as Father argues, this Court has the discretionary authority to find plain
error even when a party made no objection or requested no relief at trial. State v. Griffin,
2016 MT 231, ¶ 6, 385 Mont. 1, 386 P.3d 559. The decision to invoke plain error review
is discretionary and invoked sparingly where failing to do so may: (1) result in a manifest
miscarriage of justice, (2) leave unsettled the question of the fundamental fairness of the
trial, or (3) compromise the integrity of the judicial process. Our precedent requires that
the alleged error firmly convince the Court that there was a serious mistake that must be
addressed. In re H.T., 2015 MT 41, ¶ 14, 378 Mont. 206, 343 P.3d 159; In re J.S.W., 2013
MT 34, ¶¶ 15-16, 369 Mont. 12, 303 P.3d 741.
¶15 Here, the District Court carefully considered the best interests of N.P.-S and
correctly determined that Father had failed to successfully complete or comply with a
court-ordered treatment plan and that the condition or conduct of Father rendering him
unfit was unlikely to change within a reasonable time.
¶16 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, the District Court’s findings of fact are not clearly erroneous. Its interpretation and
application of the law are correct and the court’s ruling was not an abuse of discretion.
¶17 We affirm.
6 /S/ MICHAEL E WHEAT
We Concur:
/S/ JAMES JEREMIAH SHEA /S/ LAURIE McKINNON /S/ BETH BAKER /S/ DIRK M. SANDEFUR