DA 16-0049

IN THE SUPREME COURT OF THE STATE OF MONTANA

2016 MT 320N

IN THE MATTER OF:

N.W.,

 A Youth in Need of Care.

APPEAL FROM: District Court of the Third Judicial District,

In and For the County of Anaconda-Deer Lodge, Cause No. DN 13-12

Honorable Ray Dayton, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Shannon Hathaway, Montana Legal Justice, PLLC, Missoula, Montana 

For Appellee:

Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant

Attorney General, Helena, Montana 

Ben Krakowka, Deer Lodge County Attorney, Ellen Donohoe, Deputy

County Attorney, Anaconda, Montana 

Submitted on Briefs: October 5, 2016

 Decided: December 6, 2016

Filed:

__________________________________________

Clerk

12/06/2016

Case Number: DA 16-0049
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Justice Patricia Cotter delivered the Opinion of the Court. 

¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating 

Rules, this case is decided by memorandum opinion and shall not be cited and does not 

serve as precedent. Its case title, 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 Biological father, W.W. (Father), appeals from a December 2015 order of the 

Third Judicial District Court, Deer Lodge County, terminating his parental rights to N.W. 

We affirm. 

¶3 On August 8, 2013, the Montana Department of Health and Human Services, 

Child and Family Services Division (CFS), received a report alleging that N.W., a 

newborn, was in danger of being abused and/or neglected as her biological mother, P.J. 

(Mother), had medical and mental health issues that were not being properly addressed. 

On August 14, 2013, CFS received another report regarding N.W. after an incident at the 

Pintler Medical Clinic in Anaconda, Montana. Clinic staff called law enforcement after 

Father’s threatening behavior made the staff concerned for the safety of Mother and N.W. 

CFS subsequently removed N.W. from parental care and placed N.W. in out-of-home 

foster care with N.W.’s maternal grandparents. On August 19, 2013, the Department of 

Public Health and Human Services (Department) filed a Petition for Emergency 

Protective Services, Adjudication as Youth in Need of Care and Granting Temporary 

Custody. On September 6, 2013, the District Court adjudicated N.W. a youth in need of 

care, and temporary legal custody was granted to the Department. 
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¶4 On October 2, 2013, the District Court held a hearing and approved a Treatment 

Plan for Father. At a hearing in March 2014, the District Court expressed concerns that 

Father appeared to be “going through the motions,” regarding his obligations under the 

Treatment Plan, and noted that it appeared Father did not believe he needed to change. 

Subsequently, Father stipulated to a new Treatment Plan in April 2014. This cycle would 

occur once more in the following year. After the same concerns were raised before the 

District Court at a hearing in October 2014, Father once again stipulated to a new 

Treatment Plan. 

¶5 In March 2015, CFS filed a Petition for Termination of Parental Rights and 

Permanent Legal Custody with Right to Consent to Adoption. In April 2015, Mother 

voluntarily relinquished her parental rights to N.W. The District Court held a hearing in 

July 2015 to determine whether to terminate Father’s parental rights. During the hearing, 

CFS presented extensive evidence, including testimony from Dr. Susan Day, a licensed 

clinical psychologist who evaluated Father on two separate occasions, Dr. Bowman 

Smelko, a licensed clinical psychologist who evaluated Father in January 2015, Renee 

Riley-Finnegan, a mental health therapist who had worked with Father from March 2014 

until February 2015, and Colleen McGuire, an employee of the Anaconda Family 

Resource Center who supervised visits between N.W. and Father and Mother from 

January 2014 until February 2015. All four witnesses called by the Department 

expressed significant concerns regarding Father’s behavior and ability to care for N.W. 

Also, Grace Schapansky, a CFS Child Protection Specialist, testified that Father did not 

successfully complete any of his three Treatment Plans. Following the conclusion of the 
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hearing, the District Court determined that Father’s conduct and condition rendered him 

unfit to parent N.W. The District Court found that continuation of the parent-child legal 

relationship between N.W. and Father was likely to result in continued abuse and/or 

neglect. The District Court determined that CFS had undertaken reasonable efforts 

towards reunification and/or preservation of the family unit. Finally, the Court 

determined that it was in the best interest of N.W. to terminate the parental rights of 

Father and award permanent legal custody to CFS with authority to consent to N.W.’s 

adoption or guardianship. 

¶6 “A court’s decision to terminate a parent’s legal rights to a child is not a decision 

made lightly.” In re M.N., J.N., Jr., and R.N., 2011 MT 245, ¶ 14, 362 Mont. 186, 261 

P.3d 1047 (citation omitted). “We will presume that a district court’s decision is correct 

and will not disturb it on appeal unless there is a mistake of law or a finding of fact not 

supported by substantial evidence that would amount to a clear abuse of discretion.” In 

re M.N., J.N., Jr., and R.N., ¶ 14 (citation omitted). “The right to parent is a fundamental 

liberty interest and an order terminating the right must be supported by clear and 

convincing evidence.” In re M.N., J.N., Jr., and R.N., ¶ 14 (citation omitted). However, 

the best interests of the child are of paramount concern and take precedence over parental 

rights. In re M.N., J.N., Jr., and R.N., ¶ 14. 

¶7 Father argues that the District Court violated his constitutional right to parent his 

child and abused its discretion when it terminated his parental rights because the State did 

not meet its burden of establishing that it used reasonable efforts to reunify the family or 

that the treatment plan given to Father was appropriate. 
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¶8 We conclude that the District Court’s decision was supported by the applicable 

law and by ample, clear, and convincing evidence in the record. In making this 

determination, we note that the Department made considerable efforts attempting to 

reunify the family, and even if we were to determine that certain elements in Father’s 

Treatment Plan were unwarranted, he still failed to complete the remaining and 

unchallenged tasks. Therefore, we conclude that the District Court did not err in 

terminating Father’s parental rights to N.W. 

¶9 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of 

our Internal Operating Rules, which provides for memorandum opinions. In the opinion 

of this Court, this case presents a question controlled by settled law. 

¶10 Affirmed.

/S/ PATRICIA COTTER

We Concur: 

/S/ BETH BAKER

/S/ LAURIE McKINNON

/S/ JAMES JEREMIAH SHEA

/S/ MICHAEL E WHEAT