In the Matter of AS & AM

In the Matter of AS & AM, 2016 MT 156 (June 28, 2016) (Rice, J.) (5-0, aff’d)

Issue: (1) Whether the district court abused its discretion and violated Mother’s constitutional rights by terminating her parental rights; and (2) whether the district court lacked jurisdiction and abused its discretion in terminating Father’s parental rights to AS. 

Short Answer: (1) No; and (2) no.

Affirmed

Facts: AS was born in 2011, and AM was born in 2008. DPHHS became involved with the family in 2014 upon receiving reports that Father, Mother, and Mother’s boyfriend were involved with methamphetamine. The department found AS but did not find father. AS was placed into protective custody, and the parents were served by publication.

A few months later, Mother called the department and told a child protective specialist she was in Great Falls and wanted to pick up her daughter.  The specialist told Mother she would have to attend a show cause hearing the next day, but neither Mother nor Father appeared. At the conclusion of the hearing the district court adjudicated AS a youth in need of case and granted the department temporary legal custody. The department then learned about AS’s half-brother, AM, based on continued reports of Mother’s meth use. It placed AM with his father and petitioned for emergency services and adjudication as a youth in need of care.

Neither Mother nor Father attended the dispositional hearing for AS in January 2015, although appointed counsel for each attended. Mother’s counsel agreed to the proposed treatment plan but Father’s counsel took no position because he had not had any contact with Father.

Mother attended the show cause haring for AM, and AM’s father stipulated to the relief sought. The court approved the same treatment plan for Mother as was approved for her in AS’s case.

Mother did not complete many of the tasks in her treatment plan, and in April 2015 was failing it. The district court told Mother that failure to engage her treatment plan could result in termination of her parental rights. Father was arrested and jailed multiple times, and in May 2015 Father admitted he was not a position to parent AS.

In July 2015 the department petitioned to terminate both parents’ parental rights to AS, and Mother’s parental rights to AM. Both had to be served by publication because their whereabouts were unknown.

Procedural Posture & Holding: At the September 2015 hearing, the children’s GAL supported termination of both parents’ parental rights. The district court ordered termination. Mother and Father appeal, and the Supreme Court affirms.

Reasoning: (1) “While parents dawdle, the clock ticks for children until it is unreasonable to wait any longer. Though warned, Mother avoided the tasks laid before her and instead, as found by the District Court, blamed others and shifted responsibility. The District Court did not err in terminating her parental rights.” ¶ 17.

(2) A court’s failure to follow statutory requirements in an abuse and neglect case does not deprive it of subject matter jurisdiction. 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(1)(f)(ii), MCA. However, the Court concludes 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 AS, and holds the district court did not abuse its discretion in terminating his parental rights.