No. DA 06-0466 IN THE SUPREME COURT OF THE STATE OF MONTANA 2007 MT 121N

IN RE THE PARENTING OF J.M. and R.M., JR., Youths in Need of Care.

APPEAL FROM: The District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DN 2003-086, Honorable Gregory R. Todd, Presiding Judge

COUNSEL OF RECORD: For Appellant: Connie Camino, Attorney at Law, Billings, Montana For Respondent: Hon. Mike McGrath, Montana Attorney General, Mark W. Mattioli, Assistant Attorney Gene ral, Helena, Montana Dennis Paxinos, Yellowstone County Attorney, Billings, Montana For Natural Mother: Roy W. Johnson, Attorney at Law, Billings, Montana For Guardian Ad Litem: Patrick E. Kenney, Attorney at Law, Billings, Montana

Submitted on Briefs: March 7, 2007 Decided: May 22, 2007 Filed:

__________________________________________ ClerkJustice Patricia O. Cotter deliv ered the Opinion of the Court. ¶1 Pursuant to Section I, Para graph 3(d)(v), Montana Supreme Court 1996 Internal Operating Rules, as amended in 2003, the following memorandum decision shall not be cited as precedent. It shall be filed as a public document with the Clerk of the Supreme Court and its case title, Supreme Court cause number and disp osition shall be included in this Court's quarterly list of noncitable ca ses published in the Pacific Reporter and Montana Reports. ¶2 S.M. and R.D.M., Sr. (hereinafter R.M.) are the biological parents of J.M. and R.D.M., Jr. (hereinafter Junior). J.M. was born in August 2003 in Portland, Oregon, and Junior was born in Montana in September 2004. Both children were removed from

S.M.’s care at the time of their births and subs equently adjudicated yout hs in need of care (YINC). S.M.’s parental rights were terminated on July 7, 2005. R.M.’s parental rights were terminated on May 1, 2006. R.M. appeals the Thirteen th Judicial District Court’s order terminating his rights with resp ect to both children. We affirm. ¶3 R.M. has a lengthy criminal history with his earliest recorded criminal offense occurring in 1975 just before his twelfth bi rthday. Through the rest of his years as a minor, he continued to commit various offenses resulting in placements in juvenile wards, alternative schools, and Pine Hills Youth Correctional Facility in Miles City,

Montana. His adult criminal record, which according to his own testimony during the September 2005 custody hearing resulted in him spending fourteen of his then twentythree adult years in prison, includes numerous drug-related offenses.

2¶4 At the time the District Court entered its termination order in May 2006, R.M. had been incarcerated since December 31, 2003 , at Montana State Prison (MSP) on two felony charges—Criminal Possession of Da ngerous Drugs and Ta mpering With or Fabricating Physical Evidence. R.M. was designated a Persistent Felony Offender and received a twenty-year prison se ntence on these charges. He was parole eligible on May 28, 2006, but it appears parole was denied at that time. If he serves his entire sentence, his discharge date is May 24, 2021. As a result of the children’s removal from S.M.’s custody and R.M.’s incarceration, R.M. has had nine supervised visits with J.M. since her

birth and has never met Junior. ¶5 R.M.’s first treatment plan covered the pe riod from December 15, 2004, to April 25, 2005. His second treatment plan covered the period from April 25, 2005, to August 25, 2005. Both plans contained numerous goals designed to assist R.M. toward

reunification with his children. To that end, two important goals of both plans were to help R.M. improve his relati onships with his children and improve his parenting skills necessary to provide for the children’s physical, emotional and medical needs. R.M.’s treatment plans also contained eleven specific tasks designed to assist R.M. in meeting these goals. While four of these tasks were inapplicable in the prison setting, e.g., refraining from criminal activity and submitting to drug testing, the other seven tasks were designed to be completed while he wa s incarcerated at MSP. Those seven tasks included completing chemical dependency trea tment, anger management classes and the Cognitive Principles and Restructuring Prog ram (CP&R), maintain ing weekly contact with his social worker, mainta ining prison employment, and attending parenting classes,

3among others. Testimony indicated that R.M. fully completed two tasks, partially completed two tasks, and failed to successfully complete three important tasks—to maintain prison employment, successfully co mplete CP&R, and succ essfully complete Anger Management classes. ¶6 The District Court pointed out the many op portunities presented to R.M. to deal with his anger, change his attitude, and learn valuable skills and appl y them to his daily

life. The court also noted that R.M. contin ually failed. The District Court determined

that the best interests of J.M. and Junior w ould be served by termin ating R.M.’s parental rights based on his c ontinued display of an unwillingness or inability to change his negative behavior. The court found: The lifetime patterns of drug usage, cr iminal activity, probation violations, lack of stability, failure to accept re sponsibility, excuses, minimalization, and failure to follow a treatment plan have been exhibi ted by R.D.M., Sr., in this case. He has been given multip le chances to change or improve in this case over the years but has repeatedly failed. ¶7 The District Court concluded that R.M. had not completed his treatment plans as required by law and that under § 41-3-604( 1), MCA (2003)(length of time a child has been in foster care), it was in the children’s best interests to terminate R.M.’s parental rights. It further concluded that the co nduct and condition that rendered R.M. unfit, unable or unwilling to parent his children adequately was un likely to change within a reasonable time. Lastly, the District Court relied on §§ 41-3- 609(1)(f), -609(2)(c) and (d), and -609(3), MCA (2003 ), and held that termination was proper. ¶8 R.M. argues on appeal that his inability to complete his treatment plan was the fault of the prison, the boot camp program and the Department. He also claims that the

4District Court erred by not allowing him to present evidence designed to encourage the court to place his child ren with his mother. ¶9 We review a district court’s findings of fact to determine if they are clearly erroneous, and its conclusions of law to determine whethe r it correctly interpreted and applied the law. In re A.N.W ., 2006 MT 42, ¶ 28 , 331 Mont. 208, ¶ 28, 130 P.3d 619, ¶ 28 (citation omitted). We review a distri ct court’s ultimate decision to terminate parental rights for abuse of discretion. A.N.W ., ¶ 29. This Court will neither reweigh conflicting evidence nor substitute its judgment regarding the st rength of the evidence for

that of the district court. A.N.W ., ¶ 29. ¶10 Sections 41-3-609(1)(f)(i) and (ii), MCA, require complete compliance with a treatment plan, as opposed to partia l or even substantial compliance. In re T.L ., 2005 MT 256, ¶ 14, 329 Mont. 58, ¶ 14, 122 P.3d 453, ¶ 14. As to any restrictions on R.M.’s testimony, because placement of the children wa s not the issue before the court at the termination hearing, the court did not err in denying R.M. the op portunity to testify concerning placement prospects. ¶11 It is appropriate to decide this case pur suant to our Order of February 11, 2003, amending Section 1.3 of our 1996 Inte rnal Operating Rules and providing for memorandum opinions. It is manifest on the face of the briefs and the record before us that the District Court’s findings of fact are supported by substantial evidence, and its legal conclusions are correct. We conclude th e District Court did not abuse its discretion by terminating R.M.’s parental rights.

5¶12 We affirm the judgment of the District Court.

/S/ PATRICIA COTTER

We Concur:

/S/ JAMES C. NELSON /S/ JOHN WARNER /S/ BRIAN MORRIS /S/ JIM RICE

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