NO. 93-048

IN THE SUPREME COURT OF THE STATE OF MONTANA

1993

IN THE MATTER OF THE CUSTODY AND

PARENTAL RIGHTS OF M.D., a/k/a M.S.,

A Youth in Need of Care.

APPEAL FROM: District Court of the First Judicial District,

In and for the County of Lewis and Clark,

The Honorable Jeffrey M. Sherlock, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Michael Donahoe; Donahoe & Yeshe, Helena, Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General; Christian

D . Tweenten, Assistant Attorney General, Helena,

Montana

Mike McGrath, Lewis and Clark County Attorney;

Carolyn A. Clemens, Deputy County Attorney, Helena

Montana

Randi Hood, Attorney for the Youth, Helena, Montana

Submitted on Briefs: September 23, 1993

Decided: November 30, 1993
Justice John Conway Harrison delivered the Opinion of the Court.

Appellant James Lee Cameron (Cameron) appeals the order of the

First Judicial District Court, Lewis and Clark County, which

terminated his parental rights over his daughter, M.D. We affirm.

Cameron is M.D. 's natural father. On September 4, 1990,

Cameron pled guilty under North Carolina v. Alford (1970), 400 U.S.

25, 91 S.Ct. 160, 27 L.Ed.2d 162, to two counts of felony sexual

assault. One count to which Cameron pled guilty alleged that he

sexually assaulted M.D., who was eleven years old.

On November 15, 1990, the court sentenced him to twenty years

with five years suspended on each count. Cameron appealed and we

affirmed in State v. Cameron (1992), 253 Mont. 95, 830 P.2d 1284.

Cameron is incarcerated at the Montana State Prison. His

expected discharge date is November 1998. He was denied parole in

August 1992. The parole board determined that Cameron needed to

complete phase II of the sex offender program before it would grant

him parole.

Phase II of the sex offender program requires the offender to

admit his wrongdoing. Cameron, however, maintains that he did not

sexually assault M.D., and thus, he refuses to complete phase II of

the program.

On July 17, 1991, the State filed a petition seeking a

declaration that M.D. was a youth in need of care. On August 8,

1991, following a hearing, the court found that M.D. was a youth in

need of care.

A social worker with the Lewis and Clark County Department of

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Family Services (DFS) prepared a treatment plan and transmitted it

to Cameron at the prison. Cameron refused to sign the plan.

On April 7, 1992, the State filed a petition to terminate

Cameron's parental rights. The State sought to terminate Cameron's

parental rights because: he was incarcerated for sexually

assaulting M.D.: a treatment plan was not practical: and the length

of his prison term precluded his ability to care for the needs of

M.D.

Cameron filed a motion to dismiss and a hearing on the motion

was held on August 19, 1992. The District Court denied the motion

to dismiss on August 28, 1992.

On October 15, 1992, the court held a hearing on the State's

petition to terminate Cameron's parental rights. At the hearing

the State presented evidence that: 1) Cameron refused to sign the

treatment plan: 2) Cameron had been incarcerated for more than one

year; 3) the parole board would not grant Cameron parole until he

completed phase II of the sex offender program: 4) Cameron had to

admit that he sexually abused M.D. to complete phase II of the

program: and 5) it was probable that Cameron would stay in prison

until November 1998, since he continued to deny that he sexually

abused M.D.

The District Court issued its findings of fact, conclusions of

law, and order on November 20, 1992, and terminated Cameron's

parental rights. This appeal followed.

We restate the issues as follows:

1 . Did the petition for termination of Cameron's parental

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rights state a claim upon which relief could be granted under § 41-

3-609, MCA?

2 . Was the District Court's decision to terminate Cameron's

parental rights supported by substantial evidence?

3 . Did the District Court improperly rely on Cameron's Alford

plea to terminate his parental rights?

Since M.D. has been adjudicated a youth in need of care, we

note that this determination meets the threshold requirement of

finding dependency, abuse or neglect. In re B.H.M., C.M.M., &

J.T.H. (1990), 245 Mont. 179, 186, 799 P.2d 1090, 1095. We presume

the correctness of a district court's decision to terminate

parental rights and we will not overturn that decision "unless

there is a mistake of law or a finding of fact not supported by

substantial credible evidence that would amount to a clear abuse of

discretion." In re S.P. (1990), 241Mont. 190, 194, 786 P.2d 642,

644. Accordingly, our review extends to the record to determine if

the trial court appropriately terminated Cameron's parental rights.

Did the petition for termination of Cameron's parental rights

state a claim upon which relief could be granted under § 41-3-609,

MCA?

Cameron contends that the State's petition lacked sufficient

grounds for terminating his parental rights. He asserts that § 41-

3-609(1)(c)(i), MCA, requires the implementation of a court-ordered

treatment plan. He argues that, since no court-ordered treatment

plan existed in his case, the allegations in the petition did not

4
satisfy § 41-3-609(1)(c)(i), MCA, and the court incorrectly

terminated his parental rights. We disagree.

We have previously held that § 41-3-609, MCA, does not require

the implementation of a court-ordered treatment plan in every case.

In re C.L.R. (1984), 211 Mont. 381, 384-86, 685 P.2d 926, 928;

B.H.M., 799 P.2d at 1094. In C.L.R., we held that § 41-3-609, MCA,

did not require a treatment plan where the parent was incarcerated

for a long period of time and the treatment plan was unworkable.

685 P.2d at 928. Moreover, the Legislature, in its first session

. . . after our decision in C.L.R., eliminated any doubt inherent in the

statute when it added the following subsection:

(4) A treatment plan is not required under this

part upon a finding by the court following [a] hearing

if:

. . .

(b) the parent is incarcerated for more than 1 year

and such treatment plan is not practical considering the

incarceration[.]

Section 41-3-609(4)(b), MCA.

Here, after the required hearing, the District Court found

that Cameron was incarcerated for more than one year and a

treatment plan was not practical because Cameron refused to

complete phase II of the sex offender program at the prison. He

also failed to sign the treatment plan proposed by DFS. As the

District Court noted, Cameron "seems to think he can throw sand in

the wheels of judicial proceedings and then take advantage of his

action or lack thereof." We will not permit Cameron to complain of

an error he created.

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We conclude that the District Court correctly followed the

statutory mandate of § 41-3-609, MCA. The court found that Cameron

was incarcerated for more than one year and the treatment plan was

not practical because Cameron would not complete phase II of the

sex offender program and he would not sign the proposed plan. We

hold that § 41-3-609, MCA, does not require the implementation of

a court-ordered treatment plan in this case and, therefore, the

petition stated a claim upon which the court could grant relief.

II

Was the District Court's decision to terminate Cameron's

parental rights supported by substantial evidence?

Cameron argues, similar to his first argument, that the State

did not prove that a court-ordered treatment plan existed, and

therefore, the District Court should not have terminated his

parental rights. This argument lacks merit.

Again, a court-ordered treatment plan is not required in this

case. Section 41-3-609(4)(b), MCA. Thus, the court is only

required to determine that:

the child is an adjudicated youth in need of care and

. . .

the conduct or condition of the parent rendering [him]

unfit is unlikely to change within a reasonable time[.]

Section 41-3-609(l)(c)(ii), MCA. Further, 5 41-3-609(Z), MCA,

states :

[i]n determining whether the conduct or condition of the

parent[] is unlikely to change within a reasonable time,

. . . . the court shall consider but is not limited to

the following:

. . .

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(e) present judicially ordered long-term confinement of

the parent[.]

Here, the District Court, in its findings and conclusions,

noted that M.D. was designated a youth in need of care. The court

concluded that Cameron's incarceration made him unfit to care for

the physical, mental, emotional and psychological needs of M.D.

The court also concluded that the situation was unlikely to change

within a reasonable time because Cameron was unwilling to comply

with recommended treatment and he remained in prison.

We conclude that the court's findings are supported by

substantial evidence and its conclusions are well grounded in law.

Cameron is incarcerated at the Montana State Prison and he will

probably remain there until November 1998. We hold that the

evidence was sufficient to support the court's decision to

terminate his parental rights.

III

Did the District Court improperly rely on Cameron's Alford

plea to terminate his parental rights?

Cameron argues that the court erred by using his Alford plea

to terminate his parental rights. Conversely, the State contends,

and we agree, that the court did not rely on Cameron's Alford plea

to terminate his parental rights. Rather, the court terminated

Cameron's parental rights because his incarceration made him unfit

to care for the needs of M.D.

The nature of Cameron's Alford plea is completely irrelevant

to the termination of his parental rights. Although he pled guilty
with the Alford plea, the court, in terminating Cameron's parental

rights, only considered his incarceration, the length of his prison

sentence and his refusal to complete sex offender treatment. See

5 41-3-609(l)(c)(ii) and (2)(e), MCA.

We distinguish between Cameron's continuing refusal to comply

with treatment and his Alford plea, which he used to plead guilty.

The District Court is not punishing Cameron, as he suggests, for

using the Alford plea. Rather, Cameron's continuing claim of

innocence and his refusal to admit his wrongdoing has extended his

stay at the prison.

We hold that the District Court did not use Cameron's Alford

plea to terminate his parental rights. We also hold that the

District Court appropriately terminated Cameron's parental rights.

Affirmed.

We concur:

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November 30, 1993

CERTIFICATE OF SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the following

named:

Michael Donahoe

Attorney at Law

P. 0. Box 413

Helena, MT 59624

Hon.~ Joseph P. Mazurek, Attorney General

Christian D. Tweeten, Assistant

21.5 N. Sanders, Justice Building

Helena, MT 59620

Mike McGrath,County Attorney

Carolyn A. Clemens, Deputy

228 Broadway

Helena, MT 59601

Randi Hood

Attorney at Law

228 Broadway

Helena. MT 59601

ED SMITH

CLERK OF THE SUPREME COURT