81-292
IN THE SUPREME COURT OF THE STATE OF MONTANA
1982
IN THE MATTER OF
R.J.W., Youth in need of care.
Appeal from: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone
Honorable William J. Speare, Judge presiding.
Counsel of Record:
For Appellant:
Stacey and Jarussi, Billings, Montana
For Respondent:
Harold F. Hanser, County Attorney, Billings, Montana
Olsen, Christensen and Gannett, Billings, Montana
Submitted on briefs: October 22, 1981
Decided: March 25, 1982
Filed: MAR 2 5 1 8
92 '
Mr. Justice Daniel J. Shea delivered the Opinion of the
Court.
The natural parents of R.J.W. bring this appeal from a
judgment of the Yellowstone County District Court which
declared R.J.W. a youth in need of care, and granted permanent
custody of R.J.W. to the Department of Social and Rehabilitation
Services with authority to consent to his adoption. The
natural parents contend that the evidence failed to meet the
clear and convincing standard required to establish that
R.J.W. is a youth in need of care as defined by section 41-
3-102 (lo), MCA.
The male child was born prematurely September 7, 1979,
weighing only four pounds fourteen ounces. The mother had
received no prenatal care and the child suffered from jaundice
and mild respiratory problems. Physical findings compatible
with a mild fetal alcohol syndrome were also noted. The
child was kept in the hospital for 18 days, placed on a
soybean formula, and had been gaining weight quite well
before he was discharged to the care of his natural parents.
Upon his release, hospital personnel requested the
Department of Social and Rehabilitation Services to extend
services to the family since maintenance of the child's good
health was considered a high risk because he had been born
prematurely and because the mother had received no prenatal
care. On October 29, 1979, the parents effectively refused
the services offered by the social worker and gave her the
impression that the child was doing well, but two days
later, the child was taken to the hospital emergency room by
a babysitter and was found to be suffering from dehydration
and malnourishment. He was diagnosed as "failing to thrive"
due to a lack of nutrition.
The child remained in the hospital for almost five days
and all his health problems disappeared with the correction
of his nutritional deficiencies. The child was released to
the Department of Social and Rehabilitation Services and
placed in foster care. His weight gain after discharge
continued at a normal rate.
On November 2, 1979, the Department of Social and
Rehabilitation Services obtained an order for temporary
investigative authority on the ground that the parents had a
history of neglecting their children (three children had
been previously removed from the home) and because both
parents had a history of alcohol and drug abuse. When two
Billings police officers and A1 Nease, a child protective
service worker, served the parents with a copy of the temporary
investigative authority, they found three adults in the
family's apartment engaged in "shooting up" and observed the
natural father in a "high" state.
The court received further evidence that although the
mother was receiving aid from a home attendant, she was
devoid of all parenting skills, did not know how to hold or
feed the child, had discontinued all efforts to meet with
the home attendant, and had stopped attending parenting
classes. A clinical psychologist testified that the mother
was suffering from severe personality disorders, that he
would expect her to neglect her children, and that with 2 to
3 years of proper counseling, she might develop into an
adequate parent. There was also evidence that although both
parents had been previously directed to seek help for their
drug and alcohol dependencies, neither was sincere in seeking
treatment.
Both parents were found to have criminal records. The
mother had pled guilty to a charge of prostitution in 1978
when she was pregnant with her third child, and at the time of the
hearing for the temporary investigative authority, the
father had been designated a dangerous offender and sentenced
to 10 years in the Montana State Prison for felony theft,
felony sale and felony possession of dangerous drugs. The
mother was unemployed and was found to possess no marketable
skills. There were no other relatives or individuals interested
in caring for the child.
A court may order a termination of a parent-child legal
relationship upon finding that the child has been adjudicated
a youth in need of care, and (1) an appropriate treatment
plan approved by the court has not been complied with, and
(2) the conduct or condition of the parents rendering them
unfit is unlikely to change within a reasonable time.
Section 41-3-609(1), MCA.
We find no merit in the parents' arguments that the
evidence in this case must be weighed in light of the cir-
cumstances that the child was born premature and suffered
complications, and that the parents are sincerely eager to
care for their child.
Clear and convincing evidence supports the trial court's
determination that R.J.W. is a youth in need of care because
he has been abused or neglected by his parents. His normal
physical and mental health was endangered by the acts of his
parents in failing to supply the child with adequate food
and health care. The evidence convincingly establishes that
the child failed to thrive in the family home, that both
parents refused to comply with recommended drug and alcohol
abuse treatment programs, and that the mother was unsuccessful
in learning how to properly care for her child. In addition,
these conditions are unlikely to change within a reasonable
time. The father is presently serving a 10 year prison
sentence with three years suspended. There was testimony
that the mother was not interested in learning how to
parent and probably could not do so unless she received 2 to
3 years of counseling.
We affirm the judgment of the District Court.