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No. 01-283 IN THE SUPREME COURT OF THE STATE OF MONTANA

2001 MT 131

IN THE MATTER OF J.J. & C.J.,

Youths in Need of Care. APPEAL FROM: District Court of the Eighth Judicial District, In and for the County of Cascade, The Honorable Kenneth R. Neill, Judge presiding.

COUNSEL OF RECORD: For Appellant: Carl Jensen, Great Falls, Montana (mother); Ronald Bissell, Great Falls, Montana (child) For Respondent: Mike McGrath, Montana Attorney General, Ilka Becker, Assistant Montana Attorney General, Helena, Montana; Brant S. Light, Cascade County Attorney, Susan Brooke, Deputy Cascade County Attorney, Great Falls, Montana Submitted on Briefs: June 29, 2001 Decided: July 25, 2001

Filed:

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__________________________________________ Clerk

Justice James C. Nelson delivered the Opinion of the Court. ¶1 L.B., the natural mother of J.J. and C.J., appeals an order of the District Court for the Eighth Judicial District, Cascade County, terminating her parental rights. We affirm. ¶2 We address the following issue on appeal: Whether the District Court erred when it terminated L.B.'s parental rights based on the State's argument that L.B. had abandoned the children. Factual and Procedural Background ¶3 L.B. and W.J., the parents of J.J. and C.J., separated in 1993. L.B. gave custody of J.J., born October 5, 1990, and C.J., born April 9, 1992, to W.J. so that L.B. could begin a chemical dependency program. L.B. has not parented the children since February 1994. In fact, L.B. moved to Oregon and had no contact with her children for almost six years. ¶4 The Department of Public Health and Human Services (DPHHS) first became involved with the family in 1994 based on alleged physical abuse of J.J. by W.J. As a result, the children were removed from W.J.'s custody. A treatment plan was adopted for each parent, but L.B. failed to complete hers. W.J. successfully completed his treatment plan and the children were returned to his care in January 1996. ¶5 DPHHS commenced the present case in February 1999 when it received a report that the home was infested with "bed bugs" and that the children had multiple bites. It was also alleged that W.J. and his friends frequently used drugs in the home and that W.J. hit one of the children with a belt. In an interview with a social worker, the children corroborated the allegations of drug use by describing a "horrible smell coming from the basement" and finding syringes and a round bowl-like apparatus with a tube attached to it. The social worker notified law enforcement officers and a subsequent search of the home produced evidence of a methamphetamine lab.

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¶6 W.J. was taken into custody in March 1999. He pleaded guilty to felony accountability for the criminal production and manufacture of dangerous drugs and was sentenced to ten years at Montana State Prison with six years suspended. During his incarceration, W.J. has maintained contact with his children including visits at the prison and weekly telephone calls. ¶7 When the children were taken into protective custody after their father's arrest, they complained of having a "hungry tummy most of the time" raising concerns of malnutrition. The children also disclosed that W.J. had physically abused them. Consequently, on June 15, 1999, the court declared the children youths in need of care, pursuant to § 41-3-102, MCA, and granted DPHHS legal custody of the children for six months. On January 4, 2000, the court approved a treatment plan for W.J. and extended the order for temporary legal custody for another six months. ¶8 After DPHHS filed for temporary legal custody of the children in March 1999, L.B. contacted DPHHS to ask if she would be considered a placement option. However, DPHHS had no further contact from her until April 3, 2000, more than one year after the children were placed in foster care. And, although there had been several hearings regarding the children's welfare from the time they were placed into DPHHS's custody in March 1999, L.B. failed to attend any of them. ¶9 On June 18, 2000, L.B. signed a document entitled "Case Plan Recommendations." The "case plan" contained the following five recommendations: (1) that L.B. complete a psychological evaluation; (2) that L.B. attend a domestic violence support group; (3) that L.B. acquire her own residence; (4) that L.B. obtain a chemical dependancy evaluation; and (5) that L.B. complete a parenting assessment and parenting classes. ¶10 On June 21, 2000, the State petitioned for permanent legal custody and termination of parental rights as to both L.B. and W.J. The State alleged that L.B. had abandoned her children; that the children had been in an out-of-home placement for longer than one year and that the parents neglected to remedy the circumstances that caused the out-of-home placement; and that W.J. failed to successfully complete a court-approved treatment plan. ¶11 The hearing on the State's petition for permanent legal custody and termination of parental rights was held on October 31, 2000. L.B. was present with her attorney. W.J. was not present because his attorney failed to request a transport order. The District Court reopened the hearing on January 9, 2001, to afford W.J. the opportunity to appear.

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¶12 On March 12, 2001, the District Court entered an order wherein it determined that it would be appropriate to hold the case open as to W.J., pending his upcoming parole hearing, because he had substantially complied with his treatment plan and had maintained contact with his children while incarcerated. As to L.B., the court determined that she had abandoned the children and that, under the circumstances, DPHHS was not required to provide a treatment plan for her. Consequently, the court terminated L.B.'s parental rights. L.B. appeals the District Court's order terminating her parental rights.

Discussion ¶13 Whether the District Court erred when it terminated L.B.'s parental rights based on the State's argument that L.B. had abandoned the children. ¶14 We review a district court's decision to terminate parental rights for whether the court's findings of fact are clearly erroneous and whether the court's conclusions of law are correct. In Re J.H. , 2000 MT 11, ¶ 20, 298 Mont. 41, ¶ 20, 994 P.2d 37, ¶ 20 (citations omitted). Findings of fact are clearly erroneous if they are not supported by substantial evidence, the court misapprehends the effect of the evidence, or this Court's review of the record convinces it that a mistake has been made. In Re M.J.W. , 1998 MT 142, ¶ 7, 289 Mont. 232, ¶ 7, 961 P.2d 105, ¶ 7 (citations omitted). ¶15 We have long recognized 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. Consequently, prior to terminating an individual's parental rights, the district court must adequately address each applicable statutory requirement. Further, the party seeking termination of an individual's parental rights has the burden of proving by clear and convincing evidence that the statutory criteria for termination have been met. In Re C.A., 2000 MT 227, ¶ 5, 301 Mont. 233, ¶ 5, 8 P.3d 116, ¶ 5 (internal quotations and citations omitted). ¶16 To terminate the parent-child legal relationship, a district court must determine that one of the criteria in § 41-3-609(1), MCA, exists. M.J.W. , ¶ 16 (citing In Re Declaring D. H. (1994), 264 Mont. 521, 526, 872 P.2d 803, 806). Section 41-3-609(1), MCA, provides in pertinent part as follows:

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file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/01-283%20(07-25-01)%20Opinion.htm (5 of 9)1/18/2007 10:03:11 AMfile:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/01-283%20(07-25-01)%20Opinion.htm (c) that the parent is unknown and has been unknown for a period of 90 days and that reasonable efforts to identify and locate the parent have failed. [Emphasis added.] ¶17 In its order terminating L.B.'s parental rights, the District Court determined that L.B. had not manifested to DPHHS or the children's caretaker any intention of resuming care or custody of the children. The court also determined that because L.B. had abandoned the children, DPHHS was not required to provide a treatment plan for her. ¶18 L.B. argues that the District Court erred in terminating her parental rights on the basis of abandonment. She maintains that she had resumed her involvement with her children and had begun a treatment plan. She argues that once she became involved, using abandonment to terminate her parental rights was in error. She maintains that she signed a treatment plan on June 18, 2000, but that she was not given the opportunity to complete the plan before the State moved for termination of her parental rights. She contends that the State conceded that it would take a minimum of six months to complete the plan, but that she was given only four months to do so. ¶19 Contrary to L.B.'s contentions, the District Court terminated her parental rights not because she did not complete a treatment plan, but because she had abandoned her children pursuant to § 41-3-609(1)(b), MCA. A treatment plan is not required upon a finding by the court that the parent has abandoned the child. Section 41-3-609(4)(a), MCA. ¶20 In addition, L.B.'s contention that she had begun a treatment plan but was not given the opportunity to complete it is in error. The "case plan" that she signed and returned to DPHHS in June 2000, was not a treatment plan that had been approved by a court as contemplated by § 41-3-609(1)(f), MCA. Moreover, L.B. acknowledged that it was not a treatment plan when her attorney asked the District Court to continue the termination hearing so that a treatment plan could be prepared for her. ¶21 Nevertheless, L.B.'s testimony regarding the "case plan" merely reinforces the court's conclusion that she abandoned the children. She signed the case plan in June 2000, but testified at the October 31, 2000 termination hearing that she had not begun work on any of the five recommendations. As the State pointed out in its brief on appeal, L.B.'s argument that she was not given sufficient time to complete the case plan is disingenuous. While the almost five months from the time L.B. signed the case plan on June 18, 2000, until the termination hearing on October 31, 2000, was not long enough to complete each

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/01-283%20(07-25-01)%20Opinion.htm (6 of 9)1/18/2007 10:03:11 AMfile:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/01-283%20(07-25-01)%20Opinion.htm of the five recommendations, it was certainly long enough to begin work on some of the recommendations. L.B. failed to show that she had begun any work on the case plan. ¶22 In M.J.W. , we concluded that the father's failure to parent his daughter for any extended period of time, including his failure to visit her regularly while in foster care, made reasonable the belief of DPHHS that he did not intend to resume care of the child in the future. M.J.W. , ¶ 17. Similarly, L.B.'s failure to parent her children or even visit them for more than six years, particularly the last year when they were in the care of DPHHS, made reasonable the belief that L.B. did not intend to resume care of the children. ¶23 L.B. failed to meet her burden of establishing error by the trial court. In fact, her own testimony at the termination hearing supported the court's findings. L.B. testified that she had not had regular contact with the children since 1994; that she was aware of the criminal charges against W.J. and that the children were in the custody of DPHHS; that the October 31, 2000 termination hearing was the first court hearing she attended; that she had not previously come to Montana to discuss the children's situation with the social worker, the attorney, or the children's caretakers; and that she had no contact with the children's therapist. L.B.'s minimal efforts to contact DPHHS after termination proceedings had been initiated were not sufficient to show that she intended to resume the care of her children. ¶24 Accordingly, we hold that the District Court did not err when it terminated L.B.'s parental rights on the basis that she had abandoned her children. ¶25 Affirmed.

/S/ JAMES C. NELSON

We Concur:

/S/ W. WILLIAM LEAPHART

/S/ JIM REGNIER Chief Justice Karla M. Gray specially concurring: ¶26 I agree with the Court's analysis of the abandonment issue before us and with the result reached. I write separately, as I have on previous occasions, to express concerns

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/S/ KARLA M. GRAY

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/S/ TERRY N. TRIEWEILER

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