In re DH, 01-084.
| Decision Date | 04 October 2001 |
| Docket Number | No. 01-084.,01-084. |
| Parties | In the Matter of D.H., S.H., K.H., N.S, J.B., Jr., Youths in Need of Care. |
| Court | Montana Supreme Court |
Kevin Gillen, Attorney at Law, Billings, MT, for appellants.
Mike McGrath, Attorney General; Nancy G. Schwartz, Assistant Attorney General, Helena, MT, for respondent.
¶ 1 This is an appeal by N.S. and J.B. Jr.'s mother, Marta, and J.B. Jr.'s father, James Sr., from the Findings of Fact, Conclusions of Law, and Order issued by the Thirteenth Judicial District Court, Yellowstone County, terminating their parental rights with respect to N.S. and J.B. Jr. We affirm.
¶ 2 We address the following issues on appeal:
¶ 3 1. Did the District Court err in concluding that Marta and James Sr.'s treatment plans, as set out by the Department of Public Health and Human Services, were unsuccessful?
¶ 4 2. Did the District Court abuse its discretion in terminating Marta and James Sr.'s parental rights when a less restrictive alternative existed?
¶ 5 Marta is the natural mother of nine children, the youngest four of whom were the subject of the District Court proceedings. Marta's current husband, James Sr., is the natural father of the youngest child, J.B. Jr.
¶ 6 In 1994 this family came to the attention of the Wyoming Child Protective Services upon allegations that D.H. (no longer subject to these proceedings) sexually abused some of his younger siblings. Wyoming courts placed D.H. on probation for sexually abusing S.H. and N.S. In 1995 the family moved to Billings, Montana. D.H.'s probation was transferred to Billings where he and the rest of the family underwent counseling for several years. However, in 1996 the Department of Public Health and Human Services ("DPHHS") closed the case upon determining that no new incidents of incest had occurred and the family was complying with the requisite counseling and treatment needs.
¶ 7 As of July 1998, five children lived with Marta and James Sr.: D.H., K.H., S.H., N.S., and J.B. Jr. On July 24, 1998, DPHHS again intervened upon receiving information that K.H. had raped N.S. while the parents were away celebrating an anniversary. DPHHS immediately filed a petition for temporary investigative authority and emergency protective services and removed N.S., J.B. Jr. and R.M. (a grandchild not subject to these proceedings) from the home, placing them in protective custody. DPHHS later removed S.H. from the home when she expressed fear of sexual abuse from D.H.
¶ 8 The District Court granted the temporary investigative authority for a period of ninety days following a show cause hearing and approved treatment plans for Marta and James Sr. The treatment plans sought to: establish financial stability to meet the children's needs, increase parenting abilities, provide a safe environment for the children, improve the parents' mental health status, and maintain and improve the parent-child bond.
¶ 9 After removing the children from the home, DPHHS discovered additional abuse. S.H. reported being raped by her older brother D.H. Further, N.S. and J.B. Jr. reported other incidents of sexual abuse by their older siblings. The children also reported instances of inappropriate punishment and severe neglect. Therefore, on November 9, 1998, DPHHS moved the District Court to extend temporary investigative authority for an additional ninety days. Marta and James Sr. did not object to the extension and the District Court granted DPHHS' motion without testimony based on the contents of the court file. The District Court approved a second treatment plan for Marta and James Sr. containing similar goals and objectives to the original plan.
¶ 10 On February 3, 1999, DPHHS filed a petition for temporary custody for a period of ninety days citing further disclosures of sexual abuse and intimidation by the older siblings and the parents' inability to provide a safe home and social environment for the children. Following a hearing on April 9, 1999, and no objections being made, the District Court granted temporary custody of S.H., K.H., N.S., and J.B. Jr. to DPHHS. Having reached the age of majority, the District Court dismissed D.H. from the custody proceedings. The District Court approved a third treatment plan for Marta and James Sr. similar to the previous plans.
¶ 11 On July 8, 1999, DPHHS filed a motion to extend temporary custody for a period of six months because of concerns about the parents' inability to provide a safe environment for the children. Following a September 1999 hearing and no objections being made, the District Court granted DPHHS' motion to extend temporary custody for a period of six months. The District Court approved a fourth treatment plan for Marta and James Sr. containing similar goals and objectives as the prior plans.
¶ 12 Finally, on March 16, 2000, DPHHS filed a petition for permanent legal custody, termination of parental rights, right to consent to adoption, and extension of temporary custody. DPHHS sought to: extend its temporary custody of S.H. and K.H. until they attained the age of eighteen; terminate Marta and N.S.'s father's parental rights as to N.S.; terminate Marta and James Sr.'s parental rights as to J.B. Jr.; and obtain permanent legal custody of N.S. and J.B. Jr. with the authority to consent to adoption. In the interim, the District Court approved a fifth and final treatment plan for Marta and James Sr.
¶ 13 On November 15, 2000, the District Court issued its Findings of Fact and Conclusions of Law wherein the court granted long term custody of S.H. and K.H. to DPHHS and terminated their father's parental rights; terminated Marta's parental rights as to N.S. and J.B. Jr.; terminated N.S.'s father's parental rights; and terminated James Sr.'s parental rights as to J.B. Jr. This appeal addresses only those issues pertinent to the termination of Marta and James Sr.'s parental rights as they relate to N.S. and J.B. Jr.
¶ 14 In reviewing a decision to terminate parental rights, we determine whether the district court's findings of fact supporting termination are clearly erroneous and whether the district court's conclusions of law are correct. In re C.B., 2001 MT 42, ¶ 6, 304 Mont. 252, ¶ 6, 20 P.3d 117, ¶ 6. Findings of fact are clearly erroneous if they are not supported by substantial evidence; or, if so supported, the district court misapprehended the effect of the evidence; or, if so supported and the district court did not misapprehend the effect of the evidence, this Court is left with the definite and firm conviction that a mistake has been committed. In re S.M., 1999 MT 36, ¶ 15, 293 Mont. 294, ¶ 15, 975 P.2d 334, ¶ 15. In regard to the statutorily required findings of fact supporting termination, we have stated that a natural parent's right to care and custody of a child is a fundamental liberty interest which must be protected by fundamentally fair procedures and, therefore, the burden is on the party seeking termination to demonstrate by clear and convincing evidence that every requirement set forth in the statute has been satisfied. In re C.B., ¶ 6, 20 P.3d 117.
¶ 15 Finally, a district court's decision to terminate parental rights is discretionary and we review that decision to determine whether the court abused its discretion. In re J.W., 2001 MT 86, ¶ 7, 305 Mont. 149, ¶ 7, 23 P.3d 916, ¶ 7. The test for abuse of discretion is whether the trial court acted arbitrarily without employment of conscientious judgment or exceeded the bounds of reason resulting in substantial injustice. In re J.M.J., 1999 MT 277, ¶ 16, 296 Mont. 510, ¶ 16, 989 P.2d 840, ¶ 16.
¶ 16 Did the District Court err in concluding that Marta and James Sr.'s treatment plans, as set out by DPHHS, were unsuccessful?
¶ 17 Pursuant to § 41-3-609(1)(f), MCA, a court may terminate parental rights upon a finding that the child is an adjudicated youth in need of care and both of the following exist:
When considering the criteria for termination, primary consideration must be given to the best interests of the child as demonstrated by the child's physical, mental, and emotional conditions and needs. In re S.M., 2001 MT 11, ¶ 31, 304 Mont. 102, ¶ 31, 19 P.3d 213, ¶ 31.
¶ 18 Marta and James Sr. have not challenged the District Court's finding that N.S. and J.B. Jr. are youths in need of care. They do challenge the appropriateness of the treatment plans, the District Court's finding that the treatment plans were unsuccessful, and the District Court's finding that their conduct is unlikely to change within a reasonable time.
¶ 19 From what we can deduce, Marta and James Sr. contend the treatment plans were inappropriate and unreasonable in light of the long term care required to help these sexually abused children. Further, Marta and James Sr. assert they were trapped into a treatment plan which was destined to fail due to the abbreviated time constraints of the plans. To support this proposition, Marta and James Sr. cite the concurring opinion in Matter of J.S. & P.S. (1994), 269 Mont. 170, 178-79, 887 P.2d 719, 724 (Gray, J., specially concurring).
¶ 20 This Court has not specifically defined what constitutes an "appropriate" treatment plan as a matter of law and, indeed, no such bright line definition is possible given the unique circumstances existing in each case. Matter of Custody and Parental Rights of M.M. (1995), 271 Mont. 52, 56, 894 P.2d 298, 301. In evaluating the appropriateness of a treatment plan, we have considered such factors as: (1) whether the parent...
To continue reading
Request your trial
-
In re S.R.
...record we have a definite and firm conviction that the district court was mistaken. L.D. , ¶ 10 ; In re D.H. , 2001 MT 200, ¶ 14, 306 Mont. 278, 33 P.3d 616. We review conclusions of law de novo for correctness. In re M.W. , 2004 MT 301, ¶ 16, 323 Mont. 433, 102 P.3d 6.DISCUSSION¶10 Whether......
- In re CH, 03-148.
- In re L.H.
-
In re D.E.
...the evidence, or this Court has a definite and firm conviction that the lower court was mistaken. In re D.H. , 2001 MT 200, ¶ 14, 306 Mont. 278, 33 P.3d 616. We review conclusions of law de novo for correctness. In re M.W. , 2004 MT 301, ¶ 16, 323 Mont. 433, 102 P.3d 6(citation omitted).DIS......