DA 09-0102

IN THE SUPREME COURT OF THE STATE OF MONTANA

2009 MT 325N

IN THE MATTER OF:

M.I. and L.I.,

Youths in Need of Care.

APPEAL FROM: District Court of the Thirteenth Judicial District,

In and For the County of Yellowstone, Cause Nos. DN 06-0131

and DN 06-0132

Honorable Ingrid G. Gustafson, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

James B. Wheelis, Chief Appellate Defender; Helena, Montana

For Appellee:

Hon. Steve Bullock, Montana Attorney General; John Paulson,

Assistant Attorney General; Helena, Montana

Dennis Paxinos, Yellowstone County Attorney; Corbit Harrington,

Deputy County Attorney; Billings, Montana

Submitted on Briefs: August 26, 2009

Decided: October 1, 2009

Filed:

__________________________________________

Clerk

October 1 2009
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Justice W. William Leaphart delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 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 disposition shall be included

in this Court=s quarterly list of noncitable cases published in the Pacific Reporter and

Montana Reports.

¶2 B.I. (father) appeals from the order of the Thirteenth Judicial District Court,

Yellowstone County, terminating his parental rights to M.I. and L.I., his biological

children. We affirm.

¶3 M.I. and L.I. were born in May 2001 and June 2002, respectively. In December

2006 the Montana Department of Public Health and Human Services (DPHHS)

petitioned the District Court for emergency protective services, temporary legal custody,

and adjudication of M.I. and L.I. as youths in need of care. DPHHS asserted that the

father was unemployed, had applied for disability benefits, and was allegedly verbally

and physically abusive toward the children and their mother. DPHHS further alleged that

the family’s home was unsanitary and unsafe, and that the children were poorly fed,

poorly clothed, and poorly supervised. In January 2007 the District Court adjudicated the

children as youths in need of care and granted temporary custody to DPHHS. DPHHS

placed the children in a kinship foster home.
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¶4 In April 2007 the District Court approved a treatment plan for the father. The

goals of the treatment plan were for the father to (1) stabilize his finances, (2) increase his

parenting abilities, (3) provide a safe environment for his children, (4) improve his

mental health status, (5) maintain and improve his bond with his children, and (6)

cooperate to assist DPHHS in evaluating his progress with the treatment plan. Upon

DPHHS’s motion, the District Court subsequently amended the treatment plan in January

2008 to require the father additionally to address issues of chemical dependency and

abuse.

¶5 In February 2008 DPHHS petitioned for permanent legal custody of M.I. and L.I.

and to terminate the father’s parental rights. DPHHS contended that the father had not

complied with the treatment plan and that the conduct and conditions rendering him unfit

were unlikely to change within a reasonable period of time. The father contested

termination. The District Court held a hearing on the petition. DPHHS presented

testimony from Cindy Iacopini, a social worker, Donna Veraldi, a clinical psychologist,

and Deb Dalke, a family support specialist. During Iacopini’s testimony, the District

Court took judicial notice of an affidavit prepared by Iacopini in support of DPHHS’s

petition for termination. The father testified and also presented the testimony of Jeffrey

Cummins, a licensed clinical social worker. Following the hearing, the District Court

issued an order terminating the father’s parental rights and granting DPHHS permanent

legal custody of the children.
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¶6 The issues on appeal are whether the District Court abused its discretion in

admitting hearsay testimony and whether the District Court abused its discretion in

concluding that the father is unfit.

¶7 We review a district court’s evidentiary rulings and decision to terminate parental

rights for abuse of discretion. In re O.A.W., K.A.W., & W.L.W., 2007 MT 13, ¶ 32, 335

Mont. 304, 153 P.3d 6; In re D.B. & D.B., 2007 MT 246, ¶ 16, 339 Mont. 240, 168 P.3d

691. A district court abuses its discretion when it acts arbitrarily or beyond the bounds of

reason, resulting in substantial injustice. In re D.B. & D.B., ¶ 16. We review a district

court’s findings of fact for clear error and its conclusions of law for correctness. In re

O.A.W., ¶ 26.

¶8 The father argues first that the District Court erred by admitting hearsay evidence.

This argument appears to have two parts: first, that the District Court allowed Iacopini to

offer expert opinions under Rule 703, M. R. Evid., even though DPHHS had not qualified

her as an expert; and second, that the District Court considered Iacopini’s affidavit, which

contained hearsay. These objections lack merit. The father’s first argument fails because

he did not object to Iacopini’s qualification as an expert at the termination hearing. State

v. Clifford, 2005 MT 219, ¶ 33, 328 Mont. 300, 121 P.3d 489. The father’s second

argument fails because Iacopini actually testified at the termination hearing—without

objection from the father—to the alleged hearsay contained in the affidavit. The District

Court did not abuse its discretion in considering Iacopini’s testimony and affidavit.
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¶9 The father next argues that the District Court erred in its conclusion that he is

unfit. In developing this argument, the father first contends that the District Court clearly

erred in finding he had a history of violent behavior, chemical dependency, and sleeping

during visitations with the children. The father further asserts that the District Court did

not adequately weigh his many meetings with Cummins, the clinical social worker.

Finally, the father protests that the District Court did not adequately consider his injuries,

limited physical condition, and poverty. These arguments fail to persuade us. The

challenged findings are not clearly erroneous, but supported by substantial evidence.

Moreover, the appropriate weighing of conflicting testimony was within the District

Court’s discretion. In re A.N.W., 2006 MT 42, ¶ 29, 331 Mont. 208, 130 P.3d 619. The

District Court did not abuse its discretion in concluding that the father is unfit.

¶10 It is appropriate to decide this case pursuant to Section I, Paragraph 3(d)(i) of our

1996 Internal Operating Rules, as amended in 2003, which provides for memorandum

opinions. It is manifest on the face of the briefs and the record before us that the appeal

is without merit because the findings of fact are supported by substantial evidence, the

legal issues are controlled by settled Montana law, and there was no abuse of discretion

by the District Court. We affirm.

/S/ W. WILLIAM LEAPHART

We concur:

/S/ MIKE McGRATH

/S/ BRIAN MORRIS

/S/ PATRICIA O. COTTER

/S/ JAMES C. NELSON