In re MAE

• Decision Date: 29 December 1999
• Docket Number: No. 98-401.,98-401.
• Citation: 991 P.2d 972,1999 MT 341
• Court: Montana Supreme Court
• Parties: In the Matter of M.A.E., a Youth in Need of Care

991 P.2d 972

1999 MT 341

In the Matter of M.A.E., a Youth in Need of Care

No. 98-401.

Supreme Court of Montana.

Submitted on Briefs November 18, 1999.

Decided December 29, 1999.

Kevin Gillen, Gillen Law Office, Billings, Montana, For Appellant.

Damon L. Gannett, Attorney at Law, Billings, Montana, Guardian Ad Litem.

Hon. Joseph P. Mazurek, Montana Attorney General, John Paulson, Assistant Montana Attorney General, Helena, Montana; Dennis Paxinos, Yellowstone County Attorney, Melanie Logan, Deputy Yellowstone County Attorney, Billings, Montana, For Respondent.

Justice JAMES C. NELSON delivered the Opinion of the Court.

¶ 1 Amanda Z. (Amanda), the natural mother of M.A.E., appeals from the Findings of Fact and Conclusions of Law entered by the Thirteenth Judicial District Court, Yellowstone County, terminating her parental rights to M.A.E., and awarding permanent legal custody with the right to consent to adoption to the Montana Department of Public Health and Human Services(hereinafter Department). We affirm.

¶ 2 We restate the issues raised on appeal as follows:

1. Did the District Court abuse its discretion when it concluded that Amanda did not comply with the court-approved treatment plan, or that the plan was not successful?

2. Did the District Court abuse its discretion when it concluded that the conduct or condition that rendered Amanda unfit as a parent was unlikely to change within a reasonable time?

Factual and Procedural Background

¶ 3 Amanda Z. gave birth to M.A.E. on September 17, 1996. Terry O. is believed to be the natural father of M.A.E., and his parenting rights are not at issue in this appeal. M.A.E. has been in foster care since March 21, 1997, and in the same foster home since June of 1997. Amanda is currently incarcerated in the Montana State Women's Correctional Facility, for forgery and felony possession of dangerous drugs convictions.

¶ 4 The Department's involvement with Amanda's parenting rights began in March of 1997. Amanda was not incarcerated at that time. On the morning of March 11, Amanda appeared before the District Court for the purpose of setting bond in proceedings for the revocation of her suspended sentence for forgery. Amanda had tested positive for methamphetamine on three occasions, which violated the terms of her intensive supervision parole program. None of these positive tests occurred during her pregnancy with M.A.E., but she would later testify that she had been under the influence of methamphetamine while caring for the infant, and had, in fact, become addicted to the substance.

¶ 5 The intensive supervision parole program began in 1996 following her parole from prison in South Dakota on a criminal possession of dangerous drugs conviction. Amanda had violated her original parole in Montana pursuant to her forgery conviction when she left the state and moved to South Dakota. Upon her parole there, she was then extradited back to Montana.

¶ 6 Shortly after the brief hearing on March 11, 1997, her parole officer found her in a bar, with M.A.E. and Terry O., the child's father. The fact that the six-month old M.A.E. was found strapped or tied to a bar stool with a blanket at the time is not disputed. Amanda alleged that she went to the bar following the hearing to seek a ride from Terry. Nevertheless, Amanda was arrested for violating the conditions of her intensive supervision program, which prohibited her from entering any establishment that served alcohol.

¶ 7 In April, Amanda was offered a chance to avoid revocation of her suspended sentence if she successfully completed a chemical dependency program. Several weeks after entering the program, however, her participation was terminated following a positive drug test. On May 27, 1997, Amanda's suspended sentence was revoked and she was sentenced to three years in the Women's Correctional Facility. Notwithstanding the possibility of early parole, the completion of her sentence would require that she remain in prison until November of 1998.

¶ 8 During this time, Amanda agreed to and signed a Department treatment plan on May 22, 1997. The plan was approved by the court on June 2, 1997. The May-September plan did not take into account the fact that Amanda's sentence would be revoked and that she would serve time in prison. Later testimony indicated, in fact, that the plan's goals and tasks were specifically tailored to a parent who was not incarcerated.

¶ 9 With regards to M.A.E., the Department filed a petition for temporary investigative authority and protective services on March 14, 1997. This petition was granted by the District Court on March 19, 1997. A hearing on the petition was held April 7, 1997. In the meantime, M.A.E. had been removed from the custody of Terry, and placed in foster care. The Department filed a petition for temporary custody on June 12, 1997. Following a hearing, this request was granted by the District Court on August 21, which determined that M.A.E. was a youth in need of care, pursuant to § 41-3-102, MCA.

¶ 10 With Amanda now in prison, her Department case worker developed a new treatment plan, which Amanda signed on October 16, 1997, and which the court approved on October 27, 1997. The new plan was necessarily two-fold, the first part requiring certain steps that Amanda would take while in prison in improving her parenting skills and overcoming her drug use; the second part involved further steps she would be required to take following her release. The first phase of the treatment plan stated that it covered the period from September 19, 1997, to February 19, 1998. The second phase would have been drafted upon Amanda's release, and later testimony indicated that it would have taken a minimum of six months to complete. After the court approved the plan, it appointed Amanda legal counsel on November 18, 1997.

¶ 11 A petition for permanent legal custody, termination of parental rights and right to consent to adoption was filed by the Department on December 10, 1997. The petition apparently resulted not from Amanda's conduct in following the terms of the new treatment plan, but her conduct while in prison. Shortly after the revocation of her suspended sentence, Amanda executed a plan to steal Valium from a nurse's cart at the county detention facility. She then allegedly dispensed the stolen drugs to other inmates, and ingested a quantity sufficient to require hospitalization. She testified later that at the time she was still under the influence of alcohol and methamphetamine, although she had been incarcerated for over a week. Following this June incident, she was charged with criminal possession and sale of dangerous drugs, and theft. In August of 1997, she pled guilty to the possession charge, and was apparently given a consecutive three-year prison sentence.

¶ 12 Amanda also had two altercations, or "severes," with other inmates in the fall of 1997. She received several "write-ups" for these incidents as well as other minor infractions of inmate conduct rules. As a result, Amanda was moved to the "close custody" area of the prison, which involved a reduction of her privileges, including greater restrictions on her visitation rights.

¶ 13 The hearing on the parental rights termination petition took place on two days, February 9, 1998, and March 30, 1998. The District Court issued its Findings of Fact and Conclusions of Law on May 4, 1998. The court terminated both Amanda's and Terry's parental rights to M.A.E., and awarded permanent legal custody with the right to consent to adoption to the Montana Department of Public Health and Human Services.

¶ 14 With regards to Amanda, the court specifically found that "it is unlikely she will be in a position to parent within the foreseeable future;" she "shows that she has little interest in doing what needs to be done to be in a position to parent this infant;" none of the treatment plan goals were achieved; "none of the treatment plans were successfully completed;" and, the "treatment plans were not successful in rehabilitating Amanda to properly parent this infant, and that situation is not likely to resolve in a reasonable time."

¶ 15 The court concluded that M.A.E. continued to be a youth in need of care, the clear and convincing evidence established that continued custody by Amanda would result in serious emotional and physical damage to M.A.E., and continuation of the parent-child relationship between Amanda and M.A.E. would result in the continued endangerment and neglect of the child. The court further concluded that it was in M.A.E.'s best interest to terminate the parent-child relationship between M.A.E. and Amanda.

¶ 16 From this judgment, Amanda now appeals.

Standard of Review

¶ 17 This Court reviews a district court's conclusions of law to determine whether the court interpreted the law correctly. See In re J.N., 1999 MT 64, ¶ 11, 293 Mont. 524, ¶ 11, 977 P.2d 317, ¶ 11 (citations omitted). We review a court's findings of fact to determine whether the court's findings are clearly erroneous. In re J.N., ¶ 11 (citations omitted). A finding of fact is clearly erroneous if it is not supported by substantial evidence; if the district court misapprehended the effect of the evidence; or, if after reviewing the record, this Court is left with a definite and firm conviction that the district court made a mistake. In re J.N., ¶ 11 (citations omitted).

¶ 18 This Court has further 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." In re J.N., ¶ 12 (quoting Matter of R.B., Jr. (1985), 217 Mont. 99, 103, 703 P.2d 846, 848) (citations omitted). Thus, a district court must adequately address each applicable statutory requirement before terminating an individual's parental rights. In re J.N., ¶ 12 (citations omitted). Additionally, the party seeking to terminate an individual's parental rights has the burden...