delivered the Opinion of the Court.
¶1 The mother of A.S. and A.M., M.L. (Mother), appeals from the
1. Did the District Court abuse its discretion and violate Mother’s constitutional rights by terminating her parental rights to the children upon a finding that the conduct or condition rendering her unfit to parent was unlikely to change within a reasonable time?
2. Did the District Court lack jurisdiction and abuse its discretion in terminating Father’s parental rights toA.S.?
FACTUAL AND PROCEDURAL BACKGROUND
¶2 A.S. is a girl born in 2011, and A.M. is a boy born in 2008. The Department of Public Health and Human Services, Child and Family Services Division, initially became involved with this family in October 2014 upon receiving separate reports from law enforcement that Father, Mother, and Mother’s boyfriend were involved with illegal drugs, specifically, methamphetamine. Upon a raid of Father’s residence in Great Falls, police found drug residue, drug paraphernalia, and indicators that a small child lived there. However, neither Father nor A.S. was found, and the Department commenced an effort to locate A.S. Two weeks later, on October 23, 2014, the Department located A.S. with Father’s parents, who reported that they had been contacted two days earlier by a woman whose last name they did not know, asking them to pick up A.S., which they did. They had heard nothing from either Father or Mother. The Department placed A.S. into protective custody, and received a report from law enforcement that active cases were pending against Mother and her boyfriend. Because the whereabouts of both parents remained unknown, they were served by publication with the Department’s petition for emergency services and for adjudication of A.S. as a youth in need of care.
¶3 On December 18,2014, Child Protective Specialist Sarah Peterson received a call from Mother, who stated she was now in Great Falls
¶4 During these proceedings, the Department received a report concerning A.S.’s half-brother, A.M. Peterson learned that A.M. had been living with his father, W.M., on weekends and living with Mother’s mother, K.P., during the week, but that Mother and her boyfriend had begun living with K.P. as well. Mother’s boyfriend had been arrested and, based on concerns about Mother’s avoidance of the Department with regard to A.S., as well as reported concerns over her use of methamphetamine and association with other methamphetamine users, the Department placed A.M. in the care of his father
¶5 Neither Mother nor Father attended the dispositional hearing for A.S. on January 13, 2015. The court received testimony and approved the proposed treatment plans for Mother and Father, subject to either parent entering an objection and requesting a hearing within 15 days. Appointed counsel for both parents were in attendance. Mother’s counsel agreed to the treatment plan but Father’s counsel took no position because he had not had contact with Father. No objections were filed thereafter by either Mother or Father.
¶6 At the January 20, 2015, show cause hearing for A.M., Mother attended and A.M.’s father, W.M., stipulated to the relief sought. The court adjudicated A.M. as a youth in need of care and approved the same treatment plan for Mother as had been approved for her in A.S.’s case.
¶7 Mother had difficulty completing tasks under her treatment plans. She missed numerous appointments scheduled during the period of February-May 2015 for a chemical dependency evaluation, and one was never conducted. Therefore, recommendations from the chemical dependency counselor were not obtained or followed by Mother. She attended one parenting class after missing several appointments, only
¶8 Father was arrested and placed in jail multiple times during the time his treatment plan was in effect, which complicated his ability to work on his plan, including obtaining a chemical dependency evaluation. The District Court found he did not provide a safe and stable home environment for A.S., had not attended parenting classes, provided any samples for urinalysis, provided evidence of employment, or been in regular contact with the Department. Father wrote a letter to the Department from the jail, and attended several supervised visits with A.S. that went well. A.S. was glad to see him. He was not able to articulate to the Department a plan to care for A.S., and the District Court found that, in May 2015, Father “admitted to Ms. Peterson that he was not in a position to parent [A.S.].”
¶9 In July 2015, the Department filed a petition for termination of parental rights as to Mother for both A.S. and A.M., and as to Father for A.S. Both parents had to again be served by publication because neither of them had maintained contact with the Department and their whereabouts were unknown. The District Court conducted a hearing on the petition on September 1-2, 2015. The children’s guardian ad litem supported termination of both Mother and Father’s parental rights, arguing that neither parent had made a “sincere attempt” to
¶10 The District Court entered orders terminating Mother and Father’s parental rights on October 2,2015. Mother and Father appeal.
STANDARD OF REVIEW
¶11 “This Court reviews a district court’s decision to terminate parental rights for an abuse of discretion.” In re K.A., 2016 MT 27, ¶ 19, 382 Mont. 165, 365 P.3d 478 (citing In re E.Z.C., 2013 MT 123, ¶ 19, 370 Mont. 116, 300 P.3d 1174) (citation omitted).
A district court abuses its discretion when it acts arbitrarily, without employment of conscientious judgment, or in excess of the bounds of reason, resulting in substantial injustice. This Court will not disturb a district court’s decision on appeal unless “there is a mistake of law or a finding of fact not supported by substantial evidence that would amount to a clear abuse of discretion.” 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 K.A., ¶ 19 (citing In re T.S., 2013 MT 274, ¶ 21, 372 Mont. 79, 310 P.3d 538) (citation omitted).
DISCUSSION
¶12 1. Did the District Court abuse its discretion and violate Mother’s constitutional rights by terminating her parental rights to the children upon a finding that the conduct or condition rendering her unfit to parent was unlikely to change within a reasonable time1?
¶13 Mother argues the District Court’s determination that her unfitness to parent was unlikely to change within a reasonable time was not supported by sufficient evidence, thus violating the statutory requirements for termination of parental rights and her due process entitlement to “fundamentally fair procedures at all stages of the proceedings,” citing In re C.J., 2010 MT 179, ¶ 26, 357 Mont. 219, 237 P.3d 1282. Conceding that she failed to complete most of her treatment plan tasks, Mother argues this failure is explained by her “mistaken understanding that because an alternative plan was in the works that
¶14 The District Court concluded that “[c]lear and convincing evidence establishes that [Mother’s] Treatment Plan ‘has not been successful’ in changing the conduct and conditions that render her unfit as a parent.... [Mother’s] ongoing emotional instability and self-absorption manifests itself in conduct that renders her unfit, unable, or unwilling to give [A.S.] and [A.M.] adequate parental care.” (Emphasis added.) The court further concluded that “[c]ontinuation of the parent-child relationship between these children and [Mother] will result in an ongoing risk of abuse or neglect to them.”
¶15 Mother’s assertion that a “misunderstanding” about a possible guardianship of A.S. led her to believe she did not need to complete her treatment plan is unpersuasive. That idea was considered and abandoned early in the process. There is no evidence that Mother was advised it was no longer necessary to complete her treatment plan; just the opposite, she was urged by the Department and admonished by the Court to complete it. Her attempts to complete some of the treatment plan tasks along the way, albeit feeble, belie her argument about a “misunderstanding.”
¶16 Mother argues that the eight-month period “between the treatment plan’s approval and the filing of the termination petition was too short to accurately determine [her] ability to become a more successful parent,” and this time was “insufficient” to assess her “likelihood of change.” The District Court determined in its October 2015 order that “[t]he best interests of [A.S.] and [A.M.] circumscribe the amount of time within which it is ‘reasonable’ to hope and wait for this conduct and these conditions to change.... [A.S.] has been in state custody since October of 2014. [A.M.] has been in custody since January 2015 and has been moved and replaced four times since then. These children cannot wait any longer.”
¶18 2. Did the District Court lack jurisdiction and abuse its discretion in terminating Father’s parental rights toA.S.?
¶19 Father argues that the District Court “lacked the jurisdiction to order the termination of Father’s parental rights as it did not make the statutory finding required by Mont. Code Ann. § 41-3-609(l)(f)(ii) that the conduct [or] condition rendering Father unfit was unlikely to change within a reasonable amount of time.” Father argues that this failure also violated his constitutional right to fundamentally fair procedures, including that each statutory element be supported by sufficient evidence, citing In re B.N.Y., 2003 MT 241, 317 Mont. 291, 77 P.3d 189, and In re Custody of M.W., 2001 MT 78, 305 Mont. 80, 23 P.3d 206.
¶20 To the extent that Father frames his argument as a jurisdictional issue, we have recently clarified that a court’s failure to follow statutory requirements in an abuse and neglect matter does not affect its subject matter jurisdiction. See In re K.B., 2016 MT 73, ¶ 12, 383 Mont. 85, 368 P.3d 722; In re B.W.S., 2014 MT 198, ¶ 13, 376 Mont. 43, 330 P.3d 467. Further, the case authority cited by Father concerned whether the subject children had been properly adjudicated as youths in need of care before custody could be awarded to the State, a threshold issue that is not present here. However, Father correctly notes that the District Court did not enter a finding stating that Father’s conduct or condition rendering him unfit was unlikely to change within a reasonable time, as required by § 41-3-609(l)(f)(ii), MCA.
¶21 The District Court determined that “[cjlear and convincing evidence establishes that [Father’s] Treatment Plan ‘has not been successful’ in changing the conduct and conditions that render him unfit as a parent.... [H]is ongoing entanglement with the criminal law renders him unfit and unable to give [A.S.] adequate parental care.” (Emphasis added.) The court also determined that continuation of the
¶22 Father anticipates our use of an implied finding and argues preemptively that the termination of his parental rights “cannot stand even if the Court applies the doctrine of implied findings .... [T]he evidence presented by the Department does not support a finding that the conduct or condition rendering Father unfit was unlikely to change within a reasonable time.” However, we disagree. Throughout this matter, the most notable fact about Father has been his perpetual absence. In the beginning, he was absent when the Department was looking for A.S., despite the fact she was supposed to be residing with Father. He was absent when A.S. was located at the home of his parents, who had heard nothing from Father, and who had regained A.S. when a woman contacted them. He was absent at the initial hearings in A.S.’s case, and his attorney had no contact with him. His incarceration rendered him absent during periods when his treatment plan was in effect. He was absent during the termination hearing, when A.S.’s guardian ad litem noted, “no one is exactly clear where he is right now[.]” Father had to be served twice by publication. Our previous holding regarding likelihood of change is just as applicable here: “Father cannot benefit from his lack of involvement in this matter. The court may consider Father’s past conduct to determine that Father’s conduct likely would not change.” In re R.M.T., 2011 MT 164, ¶ 38, 361 Mont. 159, 256 P.3d 935 (citingIn re D.A., 2008 MT 247, ¶ 23, 344 Mont. 513, 189 P.3d 631). Here, we can conclude from Father’s past conduct, including his failure to complete his treatment plan, that it is likely that Father will continue to be absent, will be unable to change within the reasonable future, and will be unable to parent A.S. Based on this record, and the substantial evidence before
¶23 Affirmed.
Two cases, one for each child, were handled in parallel proceedings in the District Court, including a simultaneously-conducted termination hearing, and identical original orders were entered in each proceeding. Separate appeals were filed and, upon an unopposed motion by counsel for Mother, the appeals were consolidated by order of this Court on January 15, 2016.
Father W.M.’s parental rights to A.M. were not terminated by the District Court in this proceeding, and his case was scheduled for further hearings. W.M. is not before us as a party in this appeal.
These determinations are made pursuant to § 41-3-609(2), MCA.