310 P.3d 538
Mont.2013Background
- Four children (T.S.1–T.S.4) were removed from Father K.S. in 2011 and adjudicated youths-in-need-of-care, with the State granted temporary custody.
- A treatment plan requiring sobriety and chemical dependency treatment with random UA testing was approved in 2011; Father stipulated to it but did not complete outpatient treatment.
- Father repeatedly missed UAs (115 overall since 2011) and some UAs were positive for alcohol; he ceased treatment before the termination hearing in January 2013.
- Counseling disclosed trauma from alleged physical abuse by Father; children were not safely returned due to ongoing safety concerns and Father’s sobriety issues.
- Mother and two older children (T.S.1 and T.S.2) were reunified with the Mother in 2012, while T.S.3 and T.S.4 remained in foster care; the court terminated Father’s rights based on the plan’s failure and unfitness.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Preservation of challenge to treatment plan adequacy | Father did not timely object to the plan. | Waiver applies; plan adequacy not reviewable on appeal. | Waived; trial court not error on plan adequacy. |
| Whether termination was proper without terminating the Mother’s rights | Better to delay termination awaiting Mother’s situation. | Best interests and statutory criteria allow termination without delaying for Mother. | No abuse; termination proper under best interests. |
| Whether statutory criteria for termination were met (41-3-609(1)(f)) | Father failed to complete plan and continue sobriety; unfitness unlikely to change. | Father made some efforts but insufficient; plan not completed. | Termination supported by clear and convincing evidence. |
Key Cases Cited
- In re E.Z.C., 370 Mont. 116, 300 P.3d 1174 ((Mont. 2013)) (standard for abuse of discretion in termination appeals; clear and convincing evidence required)
- In re C.J.M., 365 Mont. 298, 280 P.3d 899 ((Mont. 2012)) (assessing plan propriety; timely objection waived allows review limits)
- In re A.A., 327 Mont. 127, 112 P.3d 993 ((Mont. 2005)) (waiver of treatment-plan propriety if not objected timely)
- In re D.B. and D.B., 339 Mont. 240, 168 P.3d 691 ((Mont. 2007)) (discusses considerations when a parent objects to treatment plans)