No. DA 06-0123

IN THE SUPREME COURT OF THE STATE OF MONTANA

2006 MT 157N

_______________________________________ IN RE THE MATTER OF R.L.T. and M.A.T.,

Youths in Need of Care.

______________________________________ APPEAL FROM: District Court of the Ninth Judicial District, In and for the County of Toole, Cause No. DN 04-002 The Honorable Marc G. Buyske, Judge presiding.

COUNSEL OF RECORD: For Appellant: William E. Hunt, Jr., Hunt Law Firm, Shelby, Montana For Respondent: Hon. Mike McGrath, Attorney Gene ral; Jennifer Anders, Assistant Attorney General, Helena, Montana Merle Raph, Toole County Attorney, Shelby, Montana

____________________________________ Submitted on Briefs: May 23, 2006 Decided: July 12, 2006

Filed:

______________________________________ ClerkJustice John Warner delivered 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 nonciteable cases published in the Pacific Reporter and Montana Reports. ¶2 J.T. appeals from an order of the Ninth Judicial District Court, Toole County, terminating his parental rights to his children, R.L.T. and M.A.T. He argues that the District Court abused its discretion by no t ordering at least some minimal contact between him and the children, and by failing to pr ovide him with a f undamentally fair hearing. We affirm. ¶3 J.T. killed a woman by shootin g her in the head. R.L.T. and M.A.T. witnessed the shooting, as well as J.T.’s attempt to hide the body. J.T. pled guilty to homicide in Oklahoma, and is currently serv ing a life sentence in prison. ¶4 The Department of Public Health and Hu man Services took custody of R.L.T. and M.A.T. following J.T.’s arre st, and petitioned for permanent legal custody of the children with the right to consent to adoption. ¶5 The District Court held a termination hear ing on October 27, 2005. J.T. could not participate by telephone conference. However, his counsel declined the District Court’s offer to recess the proceeding from time to time and allow him to contact with J.T. when he deemed it necessary.

2¶6 The District Court terminated the parent -child legal relations hip existing between J.T. and the children, and denied J.T.’s reque st for continued contact with them. This appeal followed. ¶7 We have determined to deci de this case pursuant to Se ction I, Paragraph 3(d) of our 1996 Internal Operating Rules, as amended in 2003, which provides for memorandum opinions. ¶8 This Court reviews a district court’s ultim ate decision to terminate parental rights

for abuse of discretion. In re A.N.W. , 2006 MT 42, ¶ 29, 331 Mont. 208, ¶ 29, 130 P.3d 619, ¶ 29. To terminate parental rights, the State must provide a fundamentally fair procedure which includes repres entation by counsel and an equal opportunity to both present evidence an d scrutinize the State’s evidence. In re M.W. and C.S. , 2001 MT 78, ¶ 25, 305 Mont. 80, ¶ 25, 23 P.3d 206, ¶ 25. ¶9 J.T. argues that the District Court abused its discretion by failing to order contact between him and the children. He argues that continued contact woul d be in their best interests pursuant to § 41-3-609 (3), MCA, which requires that, in terminating the parentchild relationship, the court give primary consideration to the physical, mental, and

emotional conditions a nd needs of the child. ¶10 Section 41-3-609(3), MCA, does not require contact between children and a parent whose rights have been terminated. Parental rights may be terminated if the parent has a history of violent behavior or is subject to a judicially or dered long-term confinement. Sections 41-3-609(2)(b ), (d), MCA. There is no questi on that J.T. meets both these criteria for termination of his parental right s. The District Court did not abuse its

3discretion in determining that c ontact with their father was not in the best interest of the

children. ¶11 J.T.’s argument that the District Court failed to provide him a fundamentally fair hearing also fails. The courtroom in which th e hearing was held lack ed the capacity for J.T.’s presence by telephone. However, the pr esiding judge offered to take a recess from

time to time and allow contact between J.T. and his counsel, whenev er counsel deemed it necessary. J.T.’s counsel dec lined this offer and advised th at he believed he adequately understood J.T.’s concerns and his position. Under the circumstances of this case, the District Court provided J.T. with a fundamentally fair hearing. ¶12 Affirmed.

/S/ JOHN WARNER

We Concur:

/S/ W. WILLIAM LEAPHART /S/ PATRICIA COTTER /S/ BRIAN MORRIS /S/ JIM RICE

4