MATTER OF K F L AND N L
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No. 95-274 IN THE SUPREMECOURT OF THE STATE OF MONTANA 1996 IN THE MATTER OF K.F.L. Youths and N.L., Jkp.13 0 'i995 in need of care. APPEAL FROM: District Court of the Fourth Judicial District, In and for the County of Missoula, The Honorable Ed McLean, Judge presiding. COUNSEL OF RECORD: For Appellant: Christopher Daly, Missoula, Montana For Respondent: Joseph P. Mazurek, Attorney General, Barbara Harris, Assistant Attorney General, Helena, Montana; Robert Deschamps, III, Missoula County Attorney, Leslie Halligan, DeputyMissoula County Attorney, Missoula, Montana; Kathleen Foley, Missoula, Montana Submitted on Briefs: Decided: Filed: / _ Clerk December 14, 1995 January 30, 1996 Justice James C. Nelson P.L., Fact, Judicial rights. the Opinion the mother of the children, Conclusions Fourth delivered appeals of Law and Order District, Missoula issue raised Did the District of P.L. of the District County, on appeal Court err Court terminating of for the her parental as to her two oldest K.F.L., children, born May 26, 1988, of care because of reports These reports forget to K.F.L. feed home because to intercourse that she was engaging the State that least without consent endangering The charges of a child filed P.L. a were dropped and she was sentenced that activities For Temporary in October 1989. a IQ-year-old in from her for charged with boy, of a child, in exchange for to ten years she gave at night. Petition tampering by P.L. she would in sexual visitors been the welfare of witness for two occasions Services had involving in need she had been evicted and Protective time, cared was drinking, on at a witness, welfare P.L. that Authority Prior to be a youth K.F.L., reasons, trespass. was alleged she had too many disturbing Investigative and N.L.? she was not being that rights Facts in her home, and that juveniles the parental K.F.L. to drink, alcohol these that indicated is: in terminating Background with from the Findings We affirm. The sole with of the Court. sexual tampering and criminal and endangering P.L.'s prison. guilty The sentence the plea was suspended. On April 3, 1990, the State filed 2 a Petition for Temporary Custody of K.F.L. The District Court in need of care and on August custody to the Department A second child, P.L. N.L., declared K.F.L. 8, 1990, the court of Family temporary (DFS) for Services granted one year. was born on November 16, 1990. completed Phase I of a treatment plan returned to her care on March 14, 1991. However, a social worker of the not reported been completed time, from that in that worker had not taken K.F.L. petition an extension March of 1992, In intercourse the incest years charge suspended. of P.L.'s "in A.W., The charge at that from abuse P.L. way." custody had and S.W. The State's was granted. In was born. involving and received K.F.L. a timely S.W. was charged consent plan husband that was 29, 1991, treatment reported temporary child, 1993, without also to a physician a third February and S.W., and K.F.L. by July the home or protecting The social for Phase II P.L. were not maintaining others. to be a youth with K.F.L. and sexual He pleaded a twenty-year of sexual incest sentence intercourse guilty with to fifteen without consent was dismissed. On May 29, 1993, maternal grandparents grandparents 1993, from Wyoming. children's that moved the P.L. returned child, refused return D.W., K.F.L. P.L. allowed to return the children District Court The court granted in September until 1993. and N.L. to visit At the end of their in Wyoming. was delayed and N.L. K.F.L. after Within be returned to to have the P.L. In August K.F.L. and N.L. her motion, however, P.L. delivered two weeks, to her parents 3 visit, their P.L. the her fourth requested in Wyoming. She also placed the two youngest and admitted Hospital herself to in Missoula the for to District Court their her. new treatment and P.L.'s P.L. a hearing that K.F.L. until to Correctional Facility. Permanent Termination current Legal the rest Custody parental with as to K.F.L. district J.J.G. 3, and N.L. 1994, the in Wyoming with of the court. A 1994 involving P.L. (1994), in State alleging nor that had the filed to Consent Conclusions of to children. all and she Women's a Petition to Adoption P.L. she had and never completed the four Court Law and Order P.L. issued terminating appeals this and N.L. of review of Review to be used in cases and the termination court court's sentence the plan, was revoked on November 1, 1994, the District rights in need of care her Right Rights treatment Fact, The standard district Patrick's plan. a hearing of of Standard the order in February Subsequently, 1990 treatment decision further remain suspended sentence Parental the Findings P.L.'s serve of After its St. home boyfriend. was ordered completed at on January and N.L. plan was implemented On May 12, 1994, P.L.'s for unit foster again moved to have K.F.L. grandparents maternal a private days. Following ordered with psychiatric four On December 9, 1993, returned children interpreted findings 266 Mont. of parental the of fact law correctly are clearly involving rights a youth is whether and whether erroneous. 274, 281, 880 P.2d 808, 812 (citing 4 Matter the of Matter of D.H. and F.H. (1994), 264 Mont. 521, 524-25, 872 P.2d 803, 905). Discussion Did the District of P.L. need of complied to Court care with conduct within err as to her two oldest The District in Court or 5 41-3-609(l) statute time. her unfit plan, were youths P.L. conclusions Court had not and that was unlikely Based on these MCA, the District and N.L. MCA, that treatment rights and N.L.? K.F.L. § 41-3-102, rendering cc), rights consider to the parental K.F.L. that the court-approved condition Section children, concluded pursuant a reasonable parental in terminating p.L.'s to change and pursuant ordered that P.L.'s be terminated. 41-3-609, MCA, lists in terminating provides, the the parental criteria rights the court must of an individual. This in part: (1) The court may order a termination legal relationship upon a finding following circumstances exist: of the parent-child that any of the ici 'the child is an adjudicated youth in need of 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 [Emphasis added.1 reasonable time . . . . care In its extensive determined treatment that plan maintain concluded P.L. consistent that the and conclusions, had not because obtain the children, findings complied she failed either with to provide part-time contact with conduct or condition the suitable Court February 1994 housing for employment, or full-time the children. 5 the District or The District rendering P.L. Court unfit is unlikely of to change within the parent-child relationship abuse or neglect the District facts applied in this time and that likely will of the children. Court MCA, to the a reasonable result In making the factors this set forth continuation in continued determination, in § 41-S-609(2), case and concluded: a. [P.L.'sl emotional or mental illness renders her unlikely to care for the ongoing physical, mental and emotional needs of the children within a reasonable time; b. [her1 excessive use of intoxicating liquor affects her ability to care and provide for the children; C. [her1 judiciallyorderedlong-termconfinement; d. reasonable efforts by protective service agencies over the last six or seven years have been unable to rehabilitate her; and e. failure to contact her children [her1 regularly, her failure to complete the treatment plan ordered in January. P.L. contends treatment plan she was in substantial because requirements. should that she She further have adopted had completed contends a treatment that P.L. the programs available to her in prison negates District Court's condition rendering reasonable has voluntarily nine have and for while she was of several of taken is the could her advantage and she maintains determination the treatment failed contends plan. to complete, obtaining employment, unfit of the that that to unlikely the change this conduct or within a time. The State her seven with the State plan incarcerated. the compliance that P.L. did not substantially The two requirements providing suitable were basic and care for her children. requirements cannot be completed housing requirements Because P.L. until 6 of the for comply with plan that the children necessary is incarcerated, she is released. P.L. and to protect these two Providing a treatment address plan these for two basic Furthermore, plan is not 1 year while required pending if since authority caring of for K.F.L. Contrary to issue to prove P.L.'s decision herein. on the for to assertions considering a child of D.G. (1990), she is that treatment 244 Mont. history of plan investigative prior of properly history should and that is relevant, history neglect 17, in the five capable Court Court be delayed to do so. her a complete the may need help temporary by the District that more than such help cannot whether The District long that and she has failed and we agree, raised practical requested under the latest maintains, fail a treatment has had ample opportunity first not have been considered performance Matter P.L. her children not and that release. State is that is incarcerated recognizes is incarcerated the MCA, provides parent plan 21, 795 P.2d 489, 491. years (b), "the This section the parent's would requirements. and a treatment a parent she is incarcerated § 41-3-609(4) incarceration." while P.L. only the State is relevant did not err to the by basing and abuse of her K.F.L. its and N.L. The District the physical, children. 267 Mont. Court was bound to give mental Section and emotional 41-3-609(3), conditions 75, 79, 881 P.2d 1333, worked with be terminated as her P.L. ability consideration and MCA; In re Custody needs of T.M. to of the (1994), 1336. At the November 1, 1994 hearing, previously primary two social recommended that to 7 parent P.L.'s her workers that parental children had rights would not change within The State behavior. N.L.'s a reasonable therapist permanently by substantial clearly Affirmed. We Co_ncur: the District in we hold the parental K.F.L. that rights previous of and be adopted by or grandparents. record findings and are, the District Court are supported therefore, correctly the evidence before the District Court of P.L. patterns from K.F.L.'s and N.L. Court's the Moreover, her two reports maternal MCA, in evaluating Accordingly, terminating that that their evidence erroneous. 5 41-3-609, with given presented recommending placed We conclude also time not applied it. was correct in
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