No. DA 06-0592 IN THE SUPREME COURT OF THE STATE OF MONTANA 2007 MT 24N

IN THE MATTER OF D.S., A Youth in Need of Care.

APPEAL FROM: The District Court of the Eighteenth Judicial District, In and For the County of Gallatin, Cause No. DN 2004-019, Honorable Holly B. Brown, Presiding Judge

COUNSEL OF RECORD:

For Appellant: Peter B. Ohman, Office of the St ate Public Defender, Bozeman, Montana For Respondent: Hon. Mike McGrath, Montana Attorney General, C. Mark Fowler, Assistant Attorney Gene ral, Helena, Montana Marty Lambert, Gallatin Count y Attorney, Kimberly Dudik, Deputy County Attorney, Bozeman, Montana

Submitted on Briefs: January 10, 2007 Decided: February 6, 2007 Filed:

__________________________________________ ClerkJustice James C. Nelson 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 noncitable ca ses published in the Pacific Reporter and Montana Reports. ¶2 D.S. is the biological mother of the yo uth, D.S., who was born on December 9,

1996. Because the mother and the youth share the same initials we will hereafter refer to the Appellant as “Mother” and to the youth as “Youth.” ¶3 Mother appeals from the District Court’s Findings of Fact, Co nclusions of Law, and Order Terminating Mother’s Parental Rights to Youth. In her appeal Mother raises four issues: (1) whether the treatment plan requiring her to be em ployed was appropriate given the fact that she was disa bled, a fact known to the Depa rtment of Public Health and Human Services (Department); (2) whether giving her only four months to complete her treatment plan was an abuse of discretion; (3 ) whether the court’s findings of fact were clearly erroneous; and (4) whether the court received a valid stipulation for extension of temporary legal custody. ¶4 Mother’s appeal primarily centers around the inclusion in her treatment plan of a goal that she obtain and maintain employment. She argues that she is disabled by reason of back problems, and that th e inclusion of the employment requirement in her treatment

2plan was inappropriate. Mother states that the Department knew of her disability when it included the employment requirement in her treatment plan. ¶5 The State points out that Mother was represented by counsel at the time the treatment plan was signed, and at that ti me she did not object to the employment

condition or raise the issue of her disability. The State also points out that while Mother may have been “disabled” for purposes of obt aining Supplemental Security Income (SSI) benefits, the record does not support her conclusion that her “disability” rendered her unemployable such that she could not or shoul d not work. The State also maintains that the record does not support Mother’s criticis ms of the treatment plan or that the Department did not demonstrate good faith in working with her on her treatment plan. ¶6 The District Court found that while Mother had co mplied with parts of the treatment plan, she clearly had not complied with all seven go als or provided a basis to determine a change in her conduct or conditi ons in order for the tr eatment plan to be

considered successful. The co urt found that Mother did not follow the recommendations from her psychological evaluation or successfu lly complete alternative therapy, and that she had not stopped using alcoho l and drugs. The court also noted that while Mother had attended parenting classes, sh e had not dealt with the psyc hological problems that the evaluating psychologi st concluded were the cause of her inability to properly parent. ¶7 Based upon the evidence submitted, the cour t found that Mother’s condition is not likely to change within a reasonable time and that, at the time of the termination hearing in February 2006, there was still no indicati on that Mother had made any other changes or efforts to comply with her treatment pl an. The court found that based upon the

3testimony, affidavits and repo rts presented, the continuation of the parent-child legal relationship between Youth and Mother would likely result in continued abuse or neglect. ¶8 The court concluded that ther e was clear and convincing ev idence to establish that Mother had not complied with all aspects of th e court ordered treatment plan. Mother did not complete the therapy she began or deal with the psychological issues that were impairing her ability to parent; she continued to use alcohol and drug s; she had not been able to provide a safe a nd healthy home for Youth; an d she had not consistently

maintained her visitation or contact with Youth. ¶9 We review a district court’s findings of fact to determine whether those findings are clearly erroneous. In re A.N.W. , 2006 MT 42, ¶ 28, 331 Mont. 208, ¶ 28, 130 P.3d 619, ¶ 28 (citation omitted). We review a district court’s conclusions of law to determine whether the court correctly inte rpreted and applied the law. In re Custody and Parental Rights of M.A.D. , 2003 MT 10, ¶ 12, 314 Mont. 38, ¶ 12, 62 P.3d 717, ¶ 12. A review of

the record leads us to conclude that the District Court’s findi ngs of fact are supported by

substantial evidence and are no t clearly erroneous, and that its conclusions of law are

correct. ¶10 Therefore, we have determin ed to decide this case pursuant to Section I, Paragraph 3(d) of our 1996 Internal Operating Rules, as amended in 2003, which provides for memorandum opinions. It is manifest on the reco rd before us that the findings of fact are supported by substantial evidence. Additiona lly, the legal issues are clearly controlled by

settled Montana law which the Distri ct Court correctly interpreted.

4¶11 We affirm the decision of the District Court.

/S/ JAMES C. NELSON

We Concur:

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

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