DA 10-0274

IN THE SUPREME COURT OF THE STATE OF MONTANA

2010 MT 277N

IN THE MATTER OF:

M.C.B.,

A Youth in Need of Care.

APPEAL FROM: District Court of the First Judicial District,

In and For the County of Lewis and Clark, Cause No. CDN 08-39

Honorable Kathy Seeley, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Joslyn Hunt, Chief Appellate Defender; Sarah Chase Rosario y Naber,

Assistant Appellate Defender, Helena, Montana

For Appellee:

Steve Bullock, Montana Attorney General; Micheal S. Wellenstein,Assistant

Attorney General, Helena, Montana

Leo Gallagher, Lewis and Clark County Attorney; Tara Harris, Deputy

County Attorney, Helena, Montana

Submitted on Briefs: December 1, 2010

Decided: December 21, 2010

Filed:

__________________________________________

Clerk

December 21 2010
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Justice Michael E Wheat delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal

OperatingRules, as amended in 2006, the following memorandumdecision shall not be cited

as precedent. It shall be filed as a public document with the Clerk ofthe 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 M.C.B. was born in December of 2008. M.C.B. was removed from the care of his

mother, L.B., and father, T.B., on December 22, 2008, due to concernsregarding his weight

loss and his parents’ inability to properly feed him. On March 3, 2009, after a hearing,

M.C.B. was adjudicated a youth in need of care based upon his weight loss after birth, his

parents’ inability to properly prepare bottles and feed him, M.C.B.’s infected umbilical cord

stump, T.B.’s previous anger and mental health issues, M.C.B.’s missed doctor’s

appointment, and Dr. Theresa Augustine’s opinion that M.C.B was not safe in the care of

L.B. and T.B. Temporary custody, not to exceed six months, was awarded to the

Department of Public Health and Human Services (DPHHS).

¶3 On April 2, 2009, the District Court approved a treatment plan for T.B. and L.B. Both

T.B. and L.B. generally complied with the treatment plan. While the treatment plan was in

place, T.B. and L.B. agreed that M.C.B. should remain in DPHHS custody, and temporary

custody was extended beyond the initial six-month period.

¶4 On December 18, 2009, DPHHS filed a petition to terminate the parental rights of

T.B. and L.B. M.C.B.’s guardian ad litem filed a report supporting DPHHS’s petition. A
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hearing on the petition was held on March 1, 2010. Both T.B. and L.B. were present and

testified. DPHHS Child Protection Specialist Tiffany Sturdevant testified she had concerns

about both parents’ ability to adequately parent M.C.B.

¶5 Dr. Ned Tranel, a clinical psychologist, evaluated both parents at the request of

DPHHS. He testified at the hearing that L.B.’s deficit in executive functioningwould make

it difficult to perform routine parenting functions, and her low IQ score would complicate

most life functions. Dr. Tranel testified that because her handicaps were so severe, chronic,

and essentially untreatable, her prognosis was “very poor” and she would not be able to

safely parent a child.

¶6 Dr. Tranel found T.B. has limitations based upon his developmental history and his

“angry, explosive response to stressors.” Dr. Tranel testified T.B. could respond to therapy

and medication, but he could not make up for L.B.’s deficits. In sum, Dr. Tranel testified

that:

[T]he two of them would not be able to generate a minimum standard in time

to provide adequately for the child’s needs. The child doesn’t have unlimited

time to respond to those needs, and the prognosis for [L.B.] is poor. The

prognosis for [T.B.] is not as severe, but it’s still at a level that would enable –

make it very difficult for him to meet a minimal standard of parenting.

¶7 Social worker Pam Robertson supervised approximately eighty visits between

M.C.B., L.B., and T.B. She testified that while progress was made by L.B. and T.B., both

parents would have to be coached at each stage of M.C.B.’s development. Robertson felt

that L.B. and T.B. could do nothing without coaching. Patricia Kemp, a licensed clinical

professional counselor, conducted a parenting assessment of both T.B. and L.B. She opined
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that M.C.B.’s emotional and physical development would be in imminent danger if parented

solely by T.B. and L.B. She felt that both parents’ prognosis was “poor.”

¶8 DPHHS Child Protection Specialist Supervisor Dennis Molnar testified that although

L.B. and T.B. loved M.C.B., termination of L.B.’s and T.B.’s parental rights was in the best

interest of M.C.B. Court Appointed Special Advocate (CASA) John Weida also testified

that termination of L.B.’s and T.B.’s parental rights was in M.C.B.’s best interest. It was a

recommendation Weida did not make lightly.

¶9 On April 28, 2010, the District Court entered an order terminating the parental rights

of L.B. and T.B. It found that “the treatment plan has not been successful and that the

condition ofthe parentsrendering themunfit is unlikely to change within a reasonable time”

and that “the best interests of[M.C.B.] will be served by termination of[T.B.’s] and [L.B.’s]

legal relationship.” L.B. and T.B. appeal from that order.

1 We affirm.

¶10 We review a district court’s decision to terminate parental rightsto determinewhether

the court abused its discretion. The test for an abuse of discretion is “whether the trial court

acted arbitrarily, without employment of conscientiousjudgment, or exceeded the boundsof

reason resulting in substantial injustice.” In re Custody & the Parental Rights of C.J.K.,

2005 MT 67, ¶ 13, 326 Mont. 289, 109 P.3d 232 (internal citations omitted). However,

because a parent’sright to the care and custody of a child is a fundamental liberty interest, it

must be protected by fundamentally fair procedures. To satisfy the relevant statutory

requirements for terminating a parent-child relationship, a district court must make specific
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factual findings. We review those findings of fact to determine whether they are clearly

erroneous. Lastly, we review the court’s conclusions of law to determine whether the court

interpreted the law correctly. Id.

¶11 The district court must give primary consideration to the physical, mental and

emotional conditions and needs ofthe child. Consequently, the best interests ofthe child are

of paramount concern in a parental rights termination proceeding and take precedence over

the parental rights. Section 41-3-609(3), MCA; Parental Rights of C.J.K., ¶ 14.

¶12 L.B. and T.B. raise two issues on appeal:

¶13 Issue One: Did the District Court exceed its statutory authority under § 41-3-

609(4)(b), MCA, which requires the testimony of two medical doctors or clinical 

psychologists to establish that the parent cannot assume the role of parent within a 

reasonable time?

¶14 The District Court did not violate § 41-3-609(4)(b), MCA. Section 41-3-609(4)(b), 

MCA, does not apply to this case. It applies to cases in which a treatment plan is not

implemented. In this case, there was a treatment plan which was, sadly, unsuccessful.

¶15 Issue Two: Did the District Court err when it found the State had established by clear

and convincing evidence that the condition of the parentsrendering them unfit is unlikely to

change within a reasonable time and that the treatment plan was unsuccessful?

¶16 Based upon the record before the Court, the District Court did not err when it

terminated L.B.’s and T.B.’s parental rights.

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In the interest of justice, an out of time appeal was granted in this case.
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¶17 We decided this case pursuant to Section 1, Paragraph 3(d) of our 1996 Internal

OperatingRules, as amended in 2006, which provides for memorandumopinions. The legal

issues are clearly controlled by settled Montana law which the District Court correctly

interpreted, and the record supports the District Court’s conclusion to terminate L.B’s and

T.B.’s parental rights. The District Court did not abuse its discretion. Affirmed.

/S/ MICHAEL E WHEAT

We Concur:

/S/ PATRICIA COTTER

/S/ BRIAN MORRIS

/S/ JIM RICE

/S/ JAMES C. NELSON