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No. 99-527 IN THE SUPREME COURT OF THE STATE OF MONTANA 2001 MT 169N IN THE MATTER OF J.B.,

A Youth in Need of Care. APPEAL FROM: District Court of the Thirteenth Judicial District, In and for the County of Carbon, Honorable G. Todd Baugh, Judge Presiding COUNSEL OF RECORD: For Appellant: Kathryn S. Syth, Gillen, LaRance & Syth, P.C., Billings, Montana For Respondent: Honorable Mike McGrath, Attorney General; Stephen C. Bullock, Assistant Attorney General, Helena, Montana A. W. "Tony" Kendall, County Attorney, Red Lodge, Montana Damon Gannett, Billings, Montana (Guardian Ad Litem) Submitted on Briefs: May 10, 2001 Decided: August 23, 2001 Filed:

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__________________________________________ Clerk

Justice Jim Rice delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal Operating Rules, the following decision shall not be cited as precedent but shall be filed as a public document with the Clerk of the Supreme Court and shall be reported by case title, Supreme Court cause number, and result to the State Reporter Publishing Company and to West Group in the quarterly table of noncitable cases issued by this Court. ¶2 Rebecca K. (Rebecca) appeals from the Findings of Fact, Conclusions of Law and Order entered by the Thirteenth Judicial District Court, Carbon County, terminating her parental rights to J.B. We affirm. ¶3 We address the following issue on appeal: ¶4 Did the District Court err in terminating Rebecca's parental rights to J.B. based on abandonment?
BACKGROUND ¶5 Rebecca is the natural mother of J.B., born on May 1, 1991. The Department of Health and Human Services (DPHHS) first became involved with J.B.'s situation on January 8, 1998, when Social Worker John Clymer received a referral that J.B. had been severely physically abused by his mother's then-boyfriend, Shawn K., and was suffering neglect. Rebecca and Shawn K. were living in Lovell, Wyoming, at that time but J.B.-who was then six years old-was staying in Red Lodge, Montana, with Rebecca's mother, Kathy. ¶6 Following an initial investigation, DPHHS filed a Petition for Temporary Investigative Authority and Protective Services (TIA) on January 20, 1998. Social Worker Clymer's Report to the Court, attached to the TIA petition, alleged that Rebecca was in an abusive relationship with Shawn K. and had left J.B. with Kathy several times in the preceding months. Clymer alleged that J.B. arrived at these visits with numerous bruises and signs of

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STANDARD OF REVIEW ¶11 "In reviewing a decision to terminate parental rights, this Court determines whether the district court's findings of fact supporting termination are clearly erroneous and whether the district court's conclusions of law are correct." In re B.F. , 2000 MT 231, ¶ 7, 301 Mont. 281, ¶ 7, 8 P.3d 790, ¶ 7 (citation omitted). It is well established that a natural parent's right to care and custody of her child is a fundamental liberty interest which must be protected by fundamentally fair procedures. See, e.g., In re B.F. , ¶ 7; In re A.N. , 2000 MT 35, ¶ 22, 298 Mont. 237, ¶ 22, 995 P.2d 427, ¶ 22.
DISCUSSION ¶12 Did the District Court err in terminating Rebecca's parental rights to J.B. based on abandonment? ¶13 Rebecca's sole argument on appeal is that the District Court erred in terminating her parental rights to J.B. on grounds of abandonment because the statutorily prescribed notice procedures were not properly followed. Section 41-3-609, MCA (1997), authorizes a district court to order termination of the parent-child relationship if the child has been

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. . .

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. . . or (e) the child is an adjudicated youth in need of care and both of the following exist: (i) an appropriate treatment plan that has been approved by the court has not been complied with by the parents or has not been successful; and (ii) the conduct or condition of the parents rendering them unfit is unlikely to change within a reasonable time[.] Section 41-3-609(1), MCA (1997) (emphasis added). The five criteria set forth in § 41-3- 609, MCA (1997), are set forth disjunctively. Each of the individual criterion, standing alone, supports termination of a parent-child relationship. ¶17 In regard to § 41-3-609(1)(e), MCA (1997), the District Court made the following findings: 4. That [J.B.] was adjudicated a youth in need of care on February 2, 1998, and that he remains a youth in need of care. 5. That an appropriate treatment plan for Rebecca . . . was approved by this Court on March 16, 1998. 6. That Rebecca . . . has not complied with the terms of that plan in that she has failed to seek or attend individual therapeutic treatment counseling sessions even though such have been made available to her.

. . . 13. That the evidence is clear and the Court is convinced that the conduct of Rebecca . . . is unlikely to change within any reasonable time and that any continuation of the parent and child relationship between her and the above youth would result in even more abuse and neglect of the above youth. ¶18 Rebecca does not dispute the above findings nor does she argue that the District Court

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We concur: /S/ KARLA M. GRAY /S/ JIM REGNIER /S/ JAMES C. NELSON /S/ W. WILLIAM LEAPHART

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