In the Matter of JB, Jr., 2016 MT 68 (March 22, 2016) (Rice, J.; McKinnon, J, concurring; Baker, J., dissenting) (5-1, aff’d)
Issue: (1) Whether the district court erred in holding that the treatment plan was appropriate, and (2) whether the district court abuse its discretion in terminating Father’s parental rights.
Short Answer: (1) No, and (2) no.
Facts: When JB was just a few weeks old, his parents took him shoplifting. Father was on probation and had two outstanding felony warrants for his arrest. The Department investigated and petitioned for protective services, adjudication of JB as a youth in need of care, and temporary legal custody. JB was placed in foster care with his sibling, EB, and Father was sentenced to 10 years suspended on each of the two outstanding felonies, to run concurrently with another unspecified sentence he was serving. In the robbery action, the district court sentenced Father to 20 years with 18 years suspended.
The Department provided Father with a treatment plan while he was incarcerated, and Father stipulated to the plan, with representation by counsel.
Father had numerous behavioral incidents in jail, which led the Department to petition to terminate Father’s parental rights to JB.
Procedural Posture & Holding: After a hearing, the district court held the treatment plan was not successful because Father was unable to conform his conduct to the law, which was unlikely to change in a reasonable time. JB had been living in foster care with his brother for more than 15 months at the time of termination. Father appeals, and the Supreme Court affirms.
Reasoning: (1) Father argues the treatment plan was not appropriate because there were no deadlines. The Department argues that Father did not preserve this issue for review. The Court agrees that Father waived this argument by failing to object to the treatment plan in district court.
(2) A district court may not conclude a treatment plan was unsuccessful simply because the parent was incarcerated when the parent’s incarceration status was known to and considered by the Department in formulating the plan. The record shows more than a mere scintilla of evidence supporting the district court’s conclusion that Father was unable to conform his conduct to the law, rendering the treatment plan unsuccessful. Therefore, the termination of Father’s parental rights was not an abuse of discretion.
Justice McKinnon’s Concurrence: Justice McKinnon concurs, but would affirm the district court on the alternative basis that Father’s parental rights to J.B.’s sibling, E.B., were terminated, and the circumstances of that termination were relevant to his ability to adequately care for J.B. Father’s parental rights to EB were terminated because Father was unwilling to put EB’s needs ahead of his own. “Father has failed to adequately provide for his children by remaining unemployed or incarcerated and demonstrates inadequate initiative to provide parental care for his children.” ¶ 30.
Justice Baker’s Dissent: Justice Baker would reverse because the Department failed to meet its burden of proof under § 41-3-609, MCA. She agrees that Father waived appellate review of the treatment plan, but states that the Department offered no evidence that Father had not complied with the treatment plan, or that his incarceration was expected to be long-term. The Department may have adequate grounds for termination, but it did not prove the elements of the statute under which it filed its petition.