IN THE SUPREME COURT OF THE STATE OF MONTANA
N
O. 02-179
IN THE MATTER OF A.L., A.L. & C.L., YOUTHS IN NEED OF CARE
BRIEF OF APPELLANT
On Appeal from the District Court of the Eighth Judicial District
of the State of Montana, in and
for the County of Cascade
APPEARANCES
:
JOSEPH P. MAZUREK Attorney General State
of Montana Justice Building
215 North Sanders P.O. Box
201401
Helena, MT 59620-1401
BRANT LIGHT Cascade County Attorney Cascade County Courthouse Great Falls, MT
59401
ATTORNEYS FOR STATE AND RESPONDENT
CARL JENSEN Cascade County Courthouse
415 Second Avenue North Great Falls, MT
59401
ATTORNEY FOR FATHER AND APPELLANT
ERIC OLSON Cascade County Courthouse
415 Znd Avenue North Great Falls, MT
59401
ATTORNEY FOR CHILD
1
IN THE SUPREME COURT OF THE STATE OF MONTANA
N
O. 02-179
IN THE MATTER OF A.L., A.L.
& C.L., YOUTHS IN NEED OF CARE
BRIEF OF APPELLANT
On Appeal from the District Court of the Eighth Judicial District of the State of Montana, in and for the County of Cascade
APPEARANCES
:
JOSEPH P. MAZUREK Attorney General State of Montana Justice Building 215 North Sanders P.O. Box
201401
Helena, MT 59620-1401
BRANT LIGHT Cascade County Attorney Cascade County Courthouse Great Falls, MT 59401
ATTORNEYS FOR STATE AND RESPONDENT
1
CARL JENSEN Cascade County
Coul-thouse
415 Second Avenue North Great Falls, MT
59401
ATTORNEY FOR FATHER AND APPELLANT
ERIC OLSON Cascade County Courthouse 415
znd Avenue North Great Falls, MT 59401
ATTORNEY FOR CHILD
TABLE OF CONTENTS
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . iii
ISSUE PRESENTED
. . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF THE CASE AND FACTS . . . . . . . . . . . . 2
SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . 4
ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . 5
The District Court erred when it terminated the Father's parental rights before the father had time to complete a treatment plan when the State conceded that the father should have more time
. . 5
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . 7
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . 8
CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . 9
..
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TABLE OF AUTHORITIES
CASES
In re M.A.E., 1999 MT 341, 297 Mont 434, 991
P.2d 972 (1999) 5
In the Matter
of D.H. and F.H,
264 Mont. 521, 872 P.2d 803 (1994) . . . . . . 6
Interstate Prod. Credit Association v. DesSaye, 250 Mont. 320, 820
P.2d 1285 (1991) . . . . . 6
OTHER AUTHORITIES
Montana Code Annotated
Sec. 41-3-609 . . . . . . . . . . . . . . . . 5
iii
ISSUES PRESENTED
I. Did the District Court err when it terminated the Father’s parental rights before the father had time to complete a treatment plan when the State conceded that the father should have more time?
1
STATEMENT OF THE CASE AND FACTS
The Department of Health and Human Services
(Hereinafter referred to as “the Department”) took the
children into protective custody on November 3, 2000.
(Transcript page
38, lines 6-9).
T.L., the father, had his first contact with the social
worker on July
11, 2001. (Transcript page 53, lines 6-8).
Prior to that contact, the father was incarcerated.
(Transcript page 75, lines 7
-10). As part of his treatment
plan, he was to take parenting classes, which he began on
July 16, 2001 but was unable to complete due to an arrest
and incarceration. He made almost all his visits with the
children while in the community. According to the social
worker, the father did well with the children. (Transcript
page 75, lines 11
-17).
He did complete a chemical health evaluation and
attempted to do some inpatient treatment, and he had
adequate housing until he was arrested. (Transcript page 53,
lines 16
-25).
The social worker recommended terminating the father’s
rights because he
wasn‘t really putting in an effort to
complete the treatment plan. (Transcript page 54, lines
18-
22). The main concern with the father was his drug and
alcohol use. (Transcript page 76, lines 4
-12). There was
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no evidence the father was directly abusing or neglecting
the children. (Transcript page
76, lines 19-23).
The State informed the Court that it did not oppose
giving the father additional time. (Transcript page
120,
lines 16-19).
The Court found that the father had not complied with
the treatment plan and was unlikely to resolve his problem
within a reasonable time and that it was in the best
interests of the children to terminate the rights of the
parents. (Transcript pages
125-126). The father appeals
this decision.
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SUMMARY OF THE ARGUMENT
The termination of the father's rights because of a
failure to complete a treatment plan within a period of less
than a year while the father was incarcerated for most
of
that time was not in the best interests of the children.
The State agreed that the father should be given
additional time in order to comply with the requests of the
Department.
His sole issue was his use of alcohol and
drugs.
4
ARGUMENT
I.
one
THE DISTRICT COURT ERRED WHEN IT TERMINATED THE FATHER'S
PARENTAS., RIGHTS BEFORE THE FATHER HAD
TIME TO COMPLETE A TREATMENT PLAN WHEN THE STATE
CONCEDED THAT THE FATHER SHOULD HAVE
MORE TIME
The District Court may terminate a parent's rights if
of the criteria under M.C.A. 41
-3-609 is met. On of the
reasons for terminating is if the child is adjudicated a
youth in need
of care and an appropriate treatment plan has
been approved by the Court and the parents have not complied
and the condition making the parent unfit is unlikely to
change within a reasonable time. M.C.A.
41-3-609(f). This
was the sole reason the District Court terminated the
father's rights.
This Court reviews a District Court's conclusions
of
law to determine if the court interpreted the law correctly.
In re M.A.E., 1999 MT 341, paragraph 17, 297 Mont 434,
paragraph 17, 991
P.2d 972, paragraph 17. This Court adopted
a three
-part test to determine if a finding by a judge is
clearly erroneous. In the Matter of Declarinq
D.H. and F.H.,
Youths in Need of Care, 264 Mont. 521, 872 P.2d 803 (1994).
First, the findings must be supported by substantial
evidence. Second, the effect of the evidence must not be
misapprehended. Finally, even if these two requirements are
satisfied, this Court can still determine that the decision
was clearly erroneous if it has a firm and definite
5
conviction that a mistake has been committed. D.H. and
~
F.H. at 525, citing Interstate Prod. Credit Association v.
DesSaye, 250 Mont. 320, 820
P.2d 1285 (1991).
The decision to terminate the father's rights based on
his inability to change his conduct within a reasonable time
was clearly erroneous since the State did not oppose giving
the father additional time to comply with the treatment.
In this case, the father was by the States own
testimony good with the children and the sole issue to
terminate was his inability to overcome the chemical
dependency problems he had. The father should have been
given additional time to complete treatment. The evidence
did not substantiate the findings of the District Court that
the father would not change the condition within a
reasonable time, or that it was in the children's best
interests to terminate his rights.
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coNcLusIoN
For the foregoing reasons, the District Court's
termination of the father's rights was erroneous and must be
reversed.
This 6th day of May
2002.
RE.SR3S.T EULLy SUBMITTED,
Att
I
~
o ;n e y 6 r -App e 1 1 ant
415 Second Ave North RM 107
Great Falls, MT 59401
(406) 454-6866
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CERTIFICATE OF SERVICE
I hereby certify that I served a true and correct copy
of the foregoing Brief of Appellant to be mailed to the
Attorney General for the State of Montana, at
P.O. Box
201401, Helena, Montana 59620-1401, hand-delivered to the
Cascade County Attorney at their mailbox located in the
Clerk of the Court’s office in the Cascade County
Courthouse, Great Falls, Montana
59 o Ron Bissell at
his mail box at the Court house
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CERTIFICATE OF COMPLIANCE
Pursuant to Rule 27 of the Montana Rules of Appellate
Procedure,
I certify that this principal brief is printed
with a courier typeface have no more than ten characters per
inch; is double spaced; pages are
8.5 x 11 inches with
margins of no less than
1" from the top, bottom and right
side and
1.5" from the left margin. The brief does not
exceed twenty
-one pages, excluding the table of contents,
table of authorities, certificate of service and addendum.
DATED this 6th day of May
2002.
Attorney at Law
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