by Lonnie Burton

On March 22, 2016, the Supreme Court of Montana approved a district court order terminating the parental rights of a father serving a ten year prison sentence, but held that the lower court's use of incarceration as a reason for revoking his rights was improper. However, the high court, citing other reasons to uphold the district court's ultimate finding, affirmed.

The mother and father in this case took their infant son, J.B., along with than to a Missoula, Montana JC Penney store while they shoplifted. When confronted by security, the mother fled in her car with J.B., and the father pulled a knife and declared "I'm not going back to prison!" He then fled on foot. The father had two outstanding warrants and was on probation from Ravalli County. Both parents were soon arrested and J.B. placed in foster care.

The father received a new ten year sentence for the outstanding warrants, plus two additional years, run concurrently, for the JC Penney robbery. The Montana Department of Public Health and Human Services (DPHHS) eventually filed a termination petition against the father, but not until after a treatment plan the father had agreed to while incarcerated purportedly failed. According to DPHHS officials, while the father completed a chemical dependency class and attended group therapy sessions in prison, he "was involved in numerous behavioral incidents" which demonstrated an "inability to conform his conduct to the law."

The district court found the father an unfit parent "unlikely to change within a reasonable time," but based its finding on the fact of the father's incarceration, a rationale expressly forbidden in Montana under In re A.T., 2003 MT 154, 316 Mont. 255, 70 P.3d 1247. The district court made additional findings on the father's unfitness to parent which referenced his prison misbehavior.

The father appealed, and while disapproving of the lower court's reliance on the fact of incarceration as a basis for terminating parental rights, the Montana Supreme Court affirmed.

“Had the district court relied on nothing more, its decision to terminate may well have conflicted with our decision in A.T.," the court said. "However, a review of additional findings established adequate grounds for termination."

Specifically, the high court noted the district court's finding that the father was unable to conform his conduct to law, remain free from illicit drugs, or change within a reasonable time. The court cited the father's misbehavior in prison -- which included flooding his cell, breaking a sprinkler head, and refusing to follow orders -- as sufficient factual support for the district court's findings.

"This evidence represents more than a 'mere scintilla' of evidence in support of the district court's conclusion," the court concluded, holding that the termination of the father's rights "was not an abuse of discretion." See: In re: J.B., Jr., a Youth in Need of Care, No. DA 15-0356 (S. Ct. MT), March 22, 2016.

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