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No. 0 . 5 028 Tk{E SUPREME COURT OF THE STATE CIi: ?vlO"uTA?<A 2002 MT 195 IU THE MATTER OF T.E., M E., and M.E.. Youths in Weed of Care APPEAL I:ROhil: District Court of the Eighth Judicial District, In and for the County of Cascade, Honorable Kenneth R. Neill, Judge Presiding COUYSEI OF RECORD: For Appellant: Marge Johnson. .Attonley at Lau, Great Falls, Montana For Respondents: Honorable Mrke McCirath, Attorney General: Crcgg Coughltn. Ass~stitnt Attorney General, Helena, Monta~ia Brant irght, County Attorney, Great Fails, Montana For Youths: Debra Optoil, Attorney ai [,a&, Great Falls. Llonta11a Sublniiied 011Briefs: June 27, 2002 SEP 0 5 i?O@ Dectded: Scptcmber 5 , 2002 Justice Jim Rice deii-vered the Opinion ofthe Court. fl F.E., the tjll~erof T.E., M.E., and M.E., appeals from the Findings ol" Fact, Gonclusioi~s Law and Order issued by the District Court for the Eighth Judicial District of in Cascade County terminating his parental rights to the children. We affirn-rthe order of the District Court. 2 'I'he sole issue on appeal is whether F.E. was denied fundamentally fair procedures in the proceedings by which the District Court terminated his parental nghts. FACTUAL AND PROCEDUFUL BACKGROUXD 73 On April 1,1998, after six months of informal intervention with F.E., the Department of Public Health and Human Services (DPHI-ISor Department) removed the three children, T.E. (age 13), M.E.(age 4, referred to herein as Mi.E.), and M.E. (age 3, refened to herein as Ma.E.1, from the home and from the care of their father, F.E. On April 3, 1998, DPHHS petitioned the District Court for temporary legal custody of the three children. The petition alleged a history of the parents' neglect, domestic violence, and drug and alcohol abuse, dat~ng back to 1985. 74 hilore recently, the children were in the primary care of the mother of the two younger in children unt~lshe was ineal-cerated in October 1997. Department visits to the l~ome October, November, and December 1997, determined a dirty home environment. not enough food in the home, and numerous people living in and moving in and out of the home. During tl~esc visits the home met inin~mal standards only oiie time, and the caseworker discovered tire younger children were either not dressed or dressed only in summa clothing. in one visit, a young woman, i;oin nu one seemed to know, was living in tkc home and sharing a bedroom xvith T.E. 115 DPHHS received a referral on February 9, 1998, indicating that F.E. had bee11 evicted and had moved to a new residence. Concern was expressed that F.E. was unable to properly parent his small children, that he was keeping T.E. home from school to help him watch the younger children and that he was sleeping and bathing with the younger children. Upon visiting the new residence, the caseworker found the home situation to be very disconcerting. The basement was knee deep in dirty clothes, and the upstairs living quarters were filthy. 'The living room was cluttered with garbage, dirty dishes, old food on the floor, and overflowing ashtrays. 111the kitchen, dirty dishes were stacked on the counters, in the sink, and on the stove. The bathroom was dirty, and there were piles of dirty clothing and sour towels on the floor. The caseworker was advised that F.E. was sharing the home with a woman and her four or fi\e children. $6 In March 1998, F.E. posted bail for release of the children's mother from jail, and the caseworker received a report that she may be living in the house with F.E. and the children. Also during March, it was reported that the children's matcrnal grandnlother was having to buy food for the children and cleaning supplies to maintain the home because F.E. had used all of his money to bail the mother out ofjail or to buy drugs. Furthermore, F.E. and the mother werc fighting in konr ofrhe childrcn and using drugs in the nome. An if/ syringe was found on the living room floor, ' 1 7 On March 23,1996, the case~vorker intervieviedT.E., and during their discussion T.E. revcalcd that her brother J.E.*a juvenile sex offender whom DPHHS investigated in 1990 for molesting his younger siblings, was being permitted by F.E. to stay in the home. T.L. also described herself as the primary care-giver to her younger sisters. 78 On March 27, 1998, the caseworker received another referral. The caller expressed concern about the younger girls and described them as very sexualized in their behaviors. One of the children was acting out sexually and masturbating, and there were concerns the cllildren may have been scxually abused. T l ~ e children werc removed from the home ort .4pril 1, 1998. 9 At the show cause hearing on June 9, 1998, the District Court inquired whether F.E. had any objection to an order granting DPI-IIiS temporary legal custody of the children. F.E.'s counsel stated that F.E. "understands the treatmelit plan has been prepared and he's willing to work the treatment plan and work to get his cliildren back." On June 16, 1998, the District Court entered an order finding the children were youths in need of care and continuing temporary legal custody of the childre11 for a period of six months. The order further directed the parents to "maintail1 regular contact with the social worker assigned to this case and promptly infonn DPHHS as to any changes in address or phone number." The District Court set the disposition hearing, within thirty days, for July 14, 1998, but due to a conflict ~nthe court's calendar, the hearing was reset for August I 1, 1998. At that time, F.E. requested a thirty-day continuancel because he intended to retain private counsel. The hearing was reset for September 1,1998, but due to another conflict in the court's calendar, the hearing was reset for October 20, 1998. 7110 At that time, F.E. testified that he had no objection to the treatment plan. F.E. signed rhe plan, and the District Court approved and adopted it. 1111 A review hearing was held on December 8, 1998. F.E. was I-epresented by counsel, but was not present due to his arrest and incarceration a few weeks earlier. The caseworker testified that F.E. had not completed any of the terms of the treatment plan and had not mainiained contact with her, as was rcquircd by the order. Additionally, the cascivorker requested that the temporary custody order be continued for six months. The District Court granted the request to continue the temporary custody order. 1/12 On March 9, 1999, DPHHS filed a petition to terminate F.E.'s parental rights because of his failure to comply with any of the tenns of the treatment plan, which required F.E. to successfully complete parenting classes, obtain a chemical dependency evaluation and follow its recommendations, maintain sobriety, submit to random urinalyses, maintain adequate housing, and take a sex offender evaluation. F.E. had not completed any portion of the treatment plan at the time the petition to teinlinate parental rights was filed. At the June I , 1999, heating, F.E.'s counsel asked that the hearing be continued to allow F.E. to make a good faith effort to complete the treatment plan, which the District Cour? granted*continuing the hearing until November 30, 1999. 713 During that hearing, a licensed clinical therapist testified that Mi.E. (age 4) had been f the victim of some type o sexual abuse, but made no detemination as to who had perpetrated the sexual assault on the child. As a result of the sexual assault, Mi.E. was sexually reactive which required a greater level of parental care. For this reason, Mi.E. was removed from standard foster care and placed in therapeutic foster care that was designed to address her needs and prevent her from hurting herself, pets, and other children. The termination hearing continued on December 14,1999, and again on February 15,2000. At the conclusion ofthe termination hearing the District Court found that the children had been previously adjudicated youths in need of care; an appropriate treatment plan had been in place for almost a year and a half; the treatment plan had not been complied with; and the conditions were not likely to change within a reasonable time. Based on those findings and conclusion, the District Court ordered that F.E.'s parental rights be terminated. F.E. now appeals that order. STANDARD OF REVIEW '14 We review a district court's decision to terminate parental rights to determine whether the district court abused its discretion. In re E.K., 2001 MT 279,T 3 1.307 Mont. 328,'; 31, 37 P.3d 690; 7 3 1. On review of a decision to terminate parental rights, we determine whether the district caul-t's findings of fact supporting termination are clearly erroneous. In re B,ii., 2001 MT 288;7 13, 3117 Monr. 412.7 13, 37 P.311 736, 13. A finding of hct is 7 clearly erroneous if it is not supported by substantial evidence, if the eou!~ rnisapprehcndcd the effect of the evidence, or if upon oil reviewing the rccord, this Court is left with the definite and firm conviction that the district court made a mistake. lrz re F.K., 7 31. in reviewing a district cou~?'sconclusions of law, we determine if they are correct. In re E.K., I! 31. 1; 15 11determining whether to terniinaie parental rights, "the district court is bound to give 1 primary consideration to the physical. mental, and emotional conditions and needs of the children," thus "the best interests of the children are of paramount co11cen1 in a parental rights termination proceeding and take precedence over the parenlai rights." 112re E.K., 47 33, quoting 112 re J.W., 2001 MT 86, 1' 8,305 Mont. 149,q 8,23 P.3d 916: li 8. We will presume that a district court's decision is correct and will not disturb it 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. In re E.K., 1 3 3 . DISCUSSEON 716 Was F.E. denied filndamentally fair procedures in the proceedings by wllich the District Court terminated his parental rights'! 217 F.E. alleges that he was denied fundamentally Fair procedures by the failure of the Departnlent and the District Coui? to: (1) hold a show cause hearing within 20 days after the initial order removing the children froni the home as required in 5 41-3-303(1)(c)> MCA ( I 9 O f ) ;(2)hold thc dispositional hcaring witirirr 30 days ofadjudicating the cllildren youths iii need of care pursuant to 9 41-3-404(4)(b), MCIP (1997); (3) show that rcliirning the children to P.E. would crcirte a substantial risk of harm to the children or dctrimcnt to the children's physical or emotional well-beings in granting ternporary legal custody to UPHEIS as required in $ 41-3-406(2), MCA (1997); (4) provide reasonable services to F.E. to rehabilitate him and avoid removal of the children in accordance with $41-3-403(2). MCA (1997); ( 5 ) state the reasons why the cliildren were not returned home when extending required in 5 41 -3-406(6), MCA ( 1997); (6) hold the pentlancncy ternporary legal c~~stodyas plan hearing no later than twelve months after the initial order was issued purswant to $41-341 2, MCA (1997); and (7) investigate the homes of extended family rnembers and place the children with exte~ided Fdmily as required in (11 8 5 41-3-101(4), MCA (1997). Additionally, F.E. argues that the proceeding was made fundamentally unfair by the admission of "unsubstantiated sexual abuse allegations" against him. F.E. contends that the Department improperly introduced the testimony of Kaloni Taylor, Mi.E.'s therapist, urho testified that Mi.E. told her that "daddy" taught her about touching private body parts, that "my daddy touched Iny pee pee" and that "my mom had sex with me." According to F.E., this testimony polluted the entire proceedings and influenced the District Court's decision to terminate his parental rights. !/I- . ,his appeal is the first time F.E. has rztised any of these issues. The lkpanmcnt argues that F.E.'s failure to raisc ti~ese issues i n the Disrici Court is a ivaiver w-hich bars hi111 fron~ raising the claims on appeal. ";0 This Court has consistelitly held that it will not col~sider issues raised for the first timc on appeal. In re D.H., 2001 b1T 200.7 41, 306 Mont. 278, 41, 33 P.3d 616, "lit; 111vc A.rV.. 2000 :MT 35,298 Mont. 237,995 P.2d427; It1 re J.hf.J., 1999 MT 277,296 Mont. 510. 989 P.2d 840; I2 reK.H., 1999 MT 128,294 Mont. 466,981 P.2d 1190; In re S.M., 1999 M'P 1 36,293 Mont. 294, 975 P.2d 334; In re K.B.O. (1996), 277 Mont. 272,921 P.2d 268. "As a general rule, we do not consider an issue presented for the first time on appeal because it is fundamentally unfair to fault the trial court for failing to rule correctly on an issue it was never given the opportunity to consider." I r e . . 4 In order to preserve a claim or objection for appeal, an appellant must first raise that specific claim or objection in the district court. Srnfe 11, Beltson. 1099 MT 324,j ' 19,297 Mont. 321: 1 l9?902 P.2d 83 1 , (j 10. 1 1 1 the 1 ease of If1 re M. 2002 MT 126,310 Mont. 103,49 P.3d 31, this Court determined IK1 Fdir that when an appellant argues he was deprived of a fundanles~tally pt-oeedurc. "it [is] PV., necessary that he make the same argument to the District Court." In r.e M. 7 22. In that case, the appellant argued on appeal that the district court failed to hold a pemlaneney plan hearing within the statutory deadline, but failed to properly raise that issue in the district court. Thus, we declined to address the issue on appeal. I,ikcwise, in the case of ln re Il.N,, the appellants argued for the first time on appeal that the district court abused its discretion by failing to order a less restrictive aiternativc to tenninarion ofparenVal rights. Because this argumcnt was never presented to the districr court, \\-c declined to address thzr n?aitcr 0x1 appcal. In i-e D.N. 41 . :q T 721 By failing to raisc his objections in the District Court, F.E. has failed to properly preserve these issues for appeal and has waived his right to have these issues considercd by this Court. '722 F.E. does not contest the Department's assertion that he failcd to preserve his issues by raising them in the District Court. Rather, he contends that this Court should overlook that failure and hold that the Department must strictly comply with statutory procedures; whether or not a parent makes objection to assertcdproccdural violations in the district court. and should declare void any proceeding which does not satisfy every statutory requirement. Such a ruling, argues F.E., would "[ensure] that the process is in fact fair and that the State does not abuse its very substantial power in removing children and terniinating families." 723 The requirement that litigants object to asserted statutory violations in the district court serves purposes greater than simply preserving issues for appeal. A district court cannot correct statutory deficiencies if those concerns are not brought to its attention during the course of the proceeding, and for that reason, we have held that a district court will not be faulted for failing to address such issues. Iiz re D.N., 71 41, and In re J.lbi'.J., i' 31. To impleme~rta contrary policy in child cases, as F.E. urges, would encourage litigants to withhold objections in the district court, instead of appropriately raising issues during ihc course ofthe proceedings, Numerous cases would be reversed on issues never considered b the district court, and the integrity oftbc disirict court proceedings would bc undemi:~ed. y The Department would be required to re-initiate protcciive proceedings for the inxolveci children, and the prolonged litigation resulting therefrom tvould directly conflict with the primary consideration which the law gives to the child's best interest, and the requirement that child cases be expedited, so that cases can be resolved, and children can be provided permanent, caiing home environments as soon as possible. We decline such an invitation. 7124 Based on the forgoing, this Court declines to consider F.E.'s ciainis, and concludes that the District Court did not abuse its discretion in terminating F.E.'s parental rights. Its decision is affirmed. 1Ve concur:
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