IN RE: K.C. (2018)

¶ 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 Father is the biological father of four-year-old K.C. In 2016, Father and K.C. were living in Butte, Montana. On November 6, 2016, Father was arrested for Partner Family Member Assault after he had smashed a car windshield with K.C. inside. Father subsequently spent seven days incarcerated.¹ The Department of Health and Human Services (Department) received a report regarding Father’s arrest and unsuccessfully attempted to contact Father.

¶ 3 On December 9, 2016, the Department received a report that Father was arrested for criminal mischief. The Department located K.C. with K.C.’s paternal aunt. Child protection specialist Cassandra Olson (CPS Olson) visited Father in the Butte Detention Center to notify him that the Department would be taking legal action regarding K.C. Father became irate and started pacing and yelling; detention center personnel had to remove him. Father appeared at Department offices on December 9, 2016, admitted to needing help to care for K.C., submitted to a urine analysis test (UA), and agreed to sign up for anger management classes. The Department made referrals for a mental health evaluation and a chemical dependency evaluation on December 12, 2016.

¶ 4 On December 14, 2016, the Department filed a petition for Emergency Protective Services, Adjudication as Youth in Need of Care (YINC) and Temporary Legal Custody (TLC), and supporting affidavits. In the affidavit, the Department reported that Father was willing to work with the Department towards reunification with his son, recounted Father’s arrest, and the Department’s four-year involvement with Father and K.C. A Guardian Ad Litem (GAL) was appointed to represent K.C.’s best interests.

¶ 5 The District Court held a show cause hearing on January 25, 2017, at which Father appeared with counsel. The District Court heard testimony from Olson, Father, and K.C.’s Mother. CPS Olson testified to the Department’s concerns that Father placed K.C. at unreasonable risk of physical and psychological harm based on the unsafe living conditions, domestic violence, Father’s arrests, and drug use. Father visited K.C. twice, once in January and once in February 2017. The District Court found that K.C. was a YINC and granted TLC to the Department for six months. It ordered the Department to develop appropriate treatment plans for both parents and continue to provide services to Father.

¶ 6 The District Court held a hearing on the proposed treatment plans on February 22, 2017. Father was not present, but was represented by counsel. The parties stipulated to needing more time to complete the treatment plans and Mother filed a motion to continue. On March 15, 2017, the District Court held a second hearing on the proposed treatment plans. Father was not present, but was represented by counsel, who informed the District Court that she did not currently know where to find Father; he had not signed the treatment plan, or contacted his attorney. Father had not visited his son since February 1.

¶ 7 CPS Olson testified to the proposed treatment plan, which required Father to obtain safe and stable housing, maintain communication with the Department, complete a parenting class, visit K.C. on a regular basis, obtain a chemical dependency evaluation, submit to UA testing, and obtain a psychological evaluation and follow through with any recommendations. CPS Olson testified that Father had enrolled in anger management, but had since stopped attending. The GAL supported the Department’s proposed treatment plan while expressing concern that based on Father’s history with the Department, he would be unable to ensure the emotional and physical welfare of K.C. The District Court approved the treatment plan. The treatment plan for Father was served on his attorney.

¶ 8 Father contacted the Department on June 12, 2017, and attended the foster care review meeting on June 13. The Department set up a visit for June 14. Father refused to attend. Father sent a letter to the District Court on June 23, 2017, requesting substitution of counsel with a “male Christian” attorney. In the letter, Father included an address in Spokane, Washington. The District Court denied the request, and a copy of the order was sent to Father’s attorney.

¶ 9 The Department filed a motion to continue TLC on July 7, 2017, which the District Court granted. On August 2, 2017, the Department filed a petition to extend temporary legal custody and a petition for permanent legal custody, termination of Father’s parental rights with right to consent to adoption, and request for a hearing, each with a supporting affidavit. The affidavit, written by CPS Olson, asserted Father’s parental rights should be terminated because Father had not been successful in his treatment plan, had not completed a mental health evaluation, failed to take or complete the parenting class, failed to obtain safe and stable housing, failed to visit K.C. regularly, and failed to stay in contact with the Department between January and June 2016. While Father attended the Foster Care Review meeting on June 13, he did not contact the Department again. The Department asserted Father had not provided emotional, financial, housing or any other support for K.C. in over six months. The affidavit listed the efforts the Department took to reunify Father and K.C. including: investigation, review of prior reports, interviews, collaboration with law enforcement, engagement letters, offer of a family engagement meeting, treatment plan, kinship placement, and supervised visitation with the paternal grandparents.

¶ 10 The District Court set a hearing for August 30. While the record is not clear, at some point in August Father updated his address with the Department and Father was served with the petitions in Spokane, Washington, on August 14, 2017. Father appeared with counsel who informed the District Court that Father was not ready to proceed, due to lack of communication between Father and counsel. The District Court granted Father’s request and granted the Department’s motion to extend TLC.

¶ 11 On October 4, 2017, the District Court held a hearing on the termination. Father was present with counsel. CPS Olson testified that Father was noncompliant with every portion of the treatment plan. Five visits had been scheduled with K.C. Father did not attend or declined three of the visits; the last visit occurred on February 1, 2017. Father had not completed a chemical dependency evaluation nor complied with the requested UA tests. During the foster care review meeting on June 13, Father was out of control, screaming obscenities, and pacing back and forth. Father had not obtained safe and stable housing. Father had not been in contact with the Department and failed to update the Department that he had moved to Spokane until August 2017. CPS Olson testified that despite the Department’s reasonable efforts, Father’s unwillingness to work on the treatment plan or visit K.C. meant that Father had abandoned K.C. Further, it was her opinion that Father’s conduct was unlikely to change within a reasonable amount of time. The GAL testified that she believed termination of Father’s parental rights was in the best interest of K.C., because although Father loved K.C., he had been unable to refrain from criminal activity, unable or unwilling to communicate with the Department or participate in the treatment plan, including mental health support, and that he had been uncooperative and aggressive.

¶ 12 Father testified that he started but did not complete anger management, had attempted to communicate with the Department between twenty and thirty times, that the visits with K.C. were poorly planned and executed, and that he had difficulty scheduling visits. He stated that the Department did not return his calls, that he had provided his new address to the Department in March and June, that he was in AA, and attending church, and he was working with the Washington State Department of Social and Health Services.

¶ 13 The District Court found that Father’s testimony regarding the attempts he made to contact the Department were not credible. The District Court concluded Father had wholly failed to complete any portion of the treatment plan and that his conduct is unlikely to change in the reasonable future. It noted Father had “done literally nothing during the entire pendency of this case to protect the child’s welfare or the child’s interests.” It found the Department had made reasonable efforts to reunite the family. The District Court concluded that a continued legal relationship between Father and K.C. would be contrary to the child’s best interest and would subject the child to continued abuse or neglect. It was in K.C.’s best interest to terminate Father’s parental rights. The District Court granted the Department’s motion to terminate Father’s parental rights.

¶ 14 This Court reviews a district court’s decision to terminate parental rights for an abuse of discretion. In re T.S., 2013 MT 274, ¶ 21, 372 Mont. 79, 310 P.3d 538. We review a district court’s findings of fact to determine whether they are clearly erroneous and its conclusions of law to determine whether they are correct. In re T.S., ¶ 21.

¶ 15 In Montana, the Department must make reasonable efforts to prevent removal of a child and reunite a family. Section 41-3-423(1), MCA. The removal and protection of a child must be provided in a manner that preserves family unity, if possible. Section 41-3-101(1)(a), (b), MCA; In re C.J., 2010 MT 179, ¶ 23, 357 Mont. 219, 237 P.3d 1282. When terminating parental rights, the district court’s chief concern is the best interests of the child. In re T.S., ¶ 30 (citing In re Custody & Parental Rights of D.A., 2008 MT 247, ¶ 21, 344 Mont. 513, 189 P.3d 631 (quoting In re E.K., 2001 MT 279, ¶ 33, 307 Mont. 328, 37 P.3d 690) ). “Children need not be left to twist in the wind when their parents fail to give priority to their stability and permanency.” In re T.S., ¶ 30.

¶ 16 Father argues that the Department did not engage in reasonable efforts to reunite him with K.C. The record demonstrates that the Department made reasonable efforts to reunite the family including creating a personalized treatment plan, referrals to mental health and chemical dependency services, and arranged visits with K.C. The requirements of § 41-3-423(1), MCA, are satisfied when the district court record shows reasonable efforts were made to reunite the family. In re M.V.R., 2016 MT 309, ¶ 31, 385 Mont. 448, 384 P.3d 1058. Here, the record clearly shows reasonable efforts were made to reunite the family. The District Court did not abuse its discretion.

¶ 17 Father argues that the District Court abused its discretion when it found he abandoned K.C. by clear and convincing evidence. The District Court found that Father had left K.C. in circumstances that make reasonable the belief that he did not intend to resume care of the child. Father had not provided emotional, financial, housing, or any other support to the child in over six months.

¶ 18 In Montana, a court may terminate the parent-child relationship when the “child has been abandoned by the parents.” Section 41-3-609(1)(b), MCA; In re M.J.C., 2014 MT 122, ¶ 11, 375 Mont. 106, 324 P.3d 1198. A parent abandons a child when he or she leaves “a child under circumstances that make reasonable the belief that the parent does not intend to resume care of the child in the future.” Section 41-3-102(1)(a)(i), MCA; In re M.J.C., ¶ 11. The Department must prove by clear and convincing evidence each statutory criterion for termination of parental rights. Section 41-3-422(5)(a)(iv), MCA; In re K.L., 2014 MT 28, ¶ 14, 373 Mont. 421, 318 P.3d 691.

¶ 19 The record contains clear and convincing evidence that Father left K.C. in circumstances that make it reasonable to conclude that he did not intend to resume care of K.C. Between December 2016 and August 2017, Father had only two visits with K.C. and had not visited him in six months. He failed to complete any component of his court-ordered treatment plan, tested positive for illegal drugs, failed to obtain safe and stable housing, moved to Spokane, Washington, and failed to update or stay in contact with the Department. CPS Olson testified that based on Father’s unwillingness to work on the treatment plan or participate in visitation, she believed he had abandoned K.C. The GAL testified that Father was uncooperative and aggressive and had failed to address his mental health issues or refrain from criminal activity during the Department’s involvement.

¶ 20 We conclude the District Court’s finding that Father abandoned his son, as defined by § 41-3-102(1)(a), MCA, is supported by substantial evidence. It is not apparent the District Court misapprehended the effect of the evidence, nor are we left with the firm conviction that the court made a mistake. The District Court’s finding that Father abandoned K.C. is not clearly erroneous.

¶ 21 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 the Court, the case presents a question controlled by settled law or by the clear application of applicable standards of review. The District Court’s ruling was not an abuse of discretion.

¶ 22 Affirmed.

FOOTNOTES

1.   Father pled guilty to Partner Family Member Assault.

Chief Justice Mike McGrath delivered the Opinion of the Court.

We Concur: JIM RICE, J. JAMES JEREMIAH SHEA, J. BETH BAKER, J. DIRK M. SANDEFUR, J.