In re TE, 00-258.

• Decision Date: 05 September 2002
• Docket Number: No. 00-258.,00-258.
• Citation: 54 P.3d 38,311 Mont. 148,2002 MT 195
• Parties: In the Matter of T.E., M.E., and M.E., Youths in Need of Care.
• Court: Montana Supreme Court

54 P.3d 38

2002 MT 195

311 Mont. 148

In the Matter of T.E., M.E., and M.E., Youths in Need of Care.

No. 00-258.

Supreme Court of Montana.

Submitted on Briefs June 27, 2002.

Decided September 5, 2002.

Marge Johnson, Attorney at Law, Great Falls, Montana, for Appellant.

Honorable Mike McGrath, Attorney General; Cregg Coughlin, Assistant Attorney General, Helena, Montana, Brant Light, County Attorney, Great Falls, Montana, for Respondents.

Debra Upton, Attorney at Law, Great Falls, Montana, for Youths.

Justice JIM RICE delivered the Opinion of the Court.

¶ 1 F.E., the father of T.E., M.E., and M.E., appeals from the Findings of Fact, Conclusions of Law and Order issued by the District Court for the Eighth Judicial District in Cascade County terminating his parental rights to the children. We affirm the order of the District Court.

¶ 2 The sole issue on appeal is whether F.E. was denied fundamentally fair procedures in the proceedings by which the District Court terminated his parental rights.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 3 On April 1, 1998, after six months of informal intervention with F.E., the Department of Public Health and Human Services (DPHHS or Department) removed the three children, T.E. (age 13), M.E. (age 4, referred to herein as Mi.E.), and M.E. (age 3, referred to herein as Ma.E.), from the home and from the care of their father, F.E. On April 3, 1998, DPHHS petitioned the District Court for temporary legal custody of the three children. The petition alleged a history of the parents' neglect, domestic violence, and drug and alcohol abuse, dating back to 1985.

¶ 4 More recently, the children were in the primary care of the mother of the two younger children until she was incarcerated in October 1997. Department visits to the home in October, November, and December 1997, determined a dirty home environment, not enough food in the home, and numerous people living in and moving in and out of the home. During these visits the home met minimal standards only one time, and the caseworker discovered the younger children were either not dressed or dressed only in summer clothing. In one visit, a young woman, whom no one seemed to know, was living in the home and sharing a bedroom with T.E.

¶ 5 DPHHS received a referral on February 9, 1998, indicating that F.E. had been evicted and had moved to a new residence. Concern was expressed that F.E. was unable to properly parent his small children, that he was keeping T.E. home from school to help him watch the younger children and that he was sleeping and bathing with the younger children. Upon visiting the new residence, the caseworker found the home situation to be very disconcerting. The basement was knee deep in dirty clothes, and the upstairs living quarters were filthy. The living room was cluttered with garbage, dirty dishes, old food on the floor, and over-flowing ashtrays. In the kitchen, dirty dishes were stacked on the counters, in the sink, and on the stove. The bathroom was dirty, and there were piles of dirty clothing and sour towels on the floor. The caseworker was advised that F.E. was sharing the home with a woman and her four or five children. ¶ 6 In March 1998, F.E. posted bail for release of the children's mother from jail, and the caseworker received a report that she may be living in the house with F.E. and the children. Also during March, it was reported that the children's maternal grandmother was having to buy food for the children and cleaning supplies to maintain the home because F.E. had used all of his money to bail the mother out of jail or to buy drugs. Furthermore, F.E. and the mother were fighting in front of the children and using drugs in the home. An IV syringe was found on the living room floor.

¶ 7 On March 23, 1998, the caseworker interviewed T.E., and during their discussion T.E. revealed that her brother J.E., a juvenile sex offender whom DPHHS investigated in 1996 for molesting his younger siblings, was being permitted by F.E. to stay in the home. T.E. also described herself as the primary care-giver to her younger sisters.

¶ 8 On March 27, 1998, the caseworker received another referral. The caller expressed concern about the younger girls and described them as very sexualized in their behaviors. One of the children was acting out sexually and masturbating, and there were concerns the children may have been sexually abused. The children were removed from the home on April 1, 1998.

¶ 9 At the show cause hearing on June 9, 1998, the District Court inquired whether F.E. had any objection to an order granting DPHHS temporary legal custody of the children. F.E.'s counsel stated that F.E. "understands the treatment plan has been prepared and he's willing to work the treatment plan and work to get his children back." On June 16, 1998, the District Court entered an order finding the children were youths in need of care and continuing temporary legal custody of the children for a period of six months. The order further directed the parents to "maintain regular contact with the social worker assigned to this case and promptly inform DPHHS as to any changes in address or phone number." The District Court set the disposition hearing, within thirty days, for July 14, 1998, but due to a conflict in the court's calendar, the hearing was reset for August 11, 1998. At that time, F.E. requested a thirty-day continuance, because he intended to retain private counsel. The hearing was reset for September 1, 1998, but due to another conflict in the court's calendar, the hearing was reset for October 20, 1998.

¶ 10 At that time, F.E. testified that he had no objection to the treatment plan. F.E. signed the plan, and the District Court approved and adopted it.

¶ 11 A review hearing was held on December 8, 1998. F.E. was represented by counsel, but was not present due to his arrest and incarceration a few weeks earlier. The caseworker testified that F.E. had not completed any of the terms of the treatment plan and had not maintained contact with her, as was required by the order. Additionally, the caseworker requested that the temporary custody order be continued for six months. The District Court granted the request to continue the temporary custody order.

¶ 12 On March 9, 1999, DPHHS filed a petition to terminate F.E.'s parental rights because of his failure to comply with any of the terms of the treatment plan, which required F.E. to successfully complete parenting classes, obtain a chemical dependency evaluation and follow its recommendations, maintain sobriety, submit to random urinalyses, maintain adequate housing, and take a sex offender evaluation. F.E. had not completed any portion of the treatment plan at the time the petition to terminate parental rights was filed. At the June 1, 1999, hearing, F.E.'s counsel asked that the hearing be continued to allow F.E. to make a good faith effort to complete the treatment plan, which the District Court granted, continuing the hearing until November 30, 1999.

¶ 13 During that hearing, a licensed clinical therapist testified that Mi.E. (age 4) had been the victim of some type of sexual abuse, but made no determination as to who had perpetrated the sexual assault on the child. As a result of the sexual assault, Mi.E. was sexually reactive which required a greater level of parental care. For this reason, Mi.E. was removed from standard foster care and placed in therapeutic foster care that was designed to address her needs and prevent her from hurting herself, pets, and other children. The termination hearing continued on December 14, 1999, and again on February 15, 2000. At the conclusion of the termination hearing the District Court found that the children had been previously adjudicated youths in need of care; an appropriate treatment plan had been in place for almost a year and a half; the treatment plan had not been complied with; and the conditions were not likely to change within a reasonable time. Based on those findings and conclusion, the District Court ordered that F.E.'s parental rights be terminated. F.E. now appeals that order.

STANDARD OF REVIEW

¶ 14 We review a district court's decision to terminate parental rights to determine whether the district court abused its discretion. In re E.K., 2001 MT 279, ¶ 31, 307 Mont. 328, ¶ 31, 37 P.3d 690, ¶ 31. On review of a decision to terminate parental rights, we determine whether the district court's findings of fact supporting termination are clearly erroneous. In re B.H., 2001 MT 288, ¶ 13, 307 Mont. 412, ¶ 13, 37 P.3d 736, ¶ 13. A finding of fact is clearly erroneous if it is not supported by substantial evidence, if the court misapprehended the effect of the evidence, or if upon on reviewing the record, this Court is left with the definite and firm conviction that the district court made a mistake. In re E.K., ¶ 31. In reviewing a district court's conclusions of law, we determine if they are correct. In re E.K., ¶ 31.

¶ 15 In determining whether to terminate parental rights, "the district court is bound to give primary consideration to the physical, mental, and emotional conditions and needs of the children," thus "the best interests of the children are of paramount concern in a parental rights termination proceeding and take precedence over the parental rights." In re E.K., ¶ 33, quoting In re J.W., 2001 MT 86, ¶ 8, 305 Mont. 149, ¶ 8, 23 P.3d 916, ¶ 8. We will presume that a district court's decision is correct and will not disturb it on appeal unless there is a mistake of law or a finding of fact not supported by substantial evidence that would amount to a clear abuse of discretion. In re E.K., ¶ 33.

DISCUSSION

¶ 16 Was F.E. denied fundamentally fair procedures in the proceedings by which the District Court terminated his parental rights?

¶ 17 F.E. alleges that he was denied fundamentally fair procedures by the failure of the Department and the District Court to: (1) hold a show cause hearing within 20...