No. 84-220
IN THE SUPREME COURT OF THE STATE OF PIONTANA
1984
IN THE MATTER OF C.A. R. and P.J . R. ,
Youth in Need of Care.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Diane G. Barz, Judge presidinq.
COUNSEL OF RECORD:
For Appellant:
W. Corbin Howard, Billings, Montana
For Respondent :
Harold Hanser, County Attorney, Billings, Montana
Greg Mullowney, Deputy County Attorney, Billings
Damon L. Gannett for Children, Billings, Montana
Submitted on Briefs: Sept. 6, 1984
Decided: December 20, 1384
Filed: i t , 1t-j84
1Y
- --
Clerk
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court
This is an appeal from an order of the District Court
of the Thirteenth Judicial District, Yellowstone County,
Montana, the Honorable Diane G. Barz presiding, that awarded
to the Department of Social and Rehabilitation Services
custody of the youths C.A.R. and P.J.R. with the authority to
assent to adoption.
There is one issue on appeal: whether the trial court
abused its discretion in terminating M.R.'s rights as natural
mother to C.A.R. and P.J.R. M.R. contended before the
District Court that she had recovered from alcoholism and
that the recovery signalled her general rehabilitation. This
evidence of rehabilitation, she argued, reduced the
probativeness of her past omissions and neglect, and mandated
that the District Court award her custody. The District
Court heard testimony from M.R. and various other witnesses
and terminated the parental relationship. We affirm. There
was substantial credible evidence supporting the District
Court order.
The trail of events leading to this action began in
March of 1978. The Yellowstone County office of the Montana
Department of Social and Rehabilitation Services (SRS), has
been assisting M.R., a single mother, since that time. SRS
had received reports that her son C.A.R., less than one year
old, was being neglected. A social worker found that the
child was inadequately clothed and livinq in a dirty home
with M.R. and his maternal grandmother, B. J.R. C.A.R. was
not yet crawling, and the back of his head was flat,
indicating that he was spending a great deal of time on his
back and not being held or moved. He was listless and
non-responsive to stimulation. M.R. did not appear
intoxicated at that time. The social worker offered M.R. the
services of a SRS homemaker, and nursing and medical
services. M.R. did not show much motivation to follow up
with these services, or initiative in caring for her child.
On April 26, 1979, the social worker was notified that
M.R. had left C.A.R. with a baby-sitter the day before, and
had not returned for him. He was placed in an emergency
foster care home, and the next day with his grandmother,
B.J.R., after she contacted the social worker requesting
custody. At that time, SRS sought and received Temporary
Investigative Authority. C.A.R. was again placed in foster
care in May, 1979, and from December 1979 urti-1 February 1980
because neither M.R. nor B.J.R. were able to care for the
child. P.J.R. was born in 1980.
On May 19, 1981, another social worker placed C.A.R.,
then almost age four, and P.J.R., nine months, in emergency
foster care after discovering the children unattended in
M.R.'s home. P.J.R. was wet in a urine soaked crib and
C.A.R. was playing in dog feces that was scattered about the
floor of the apartment. The children were again placed with
B.J.R. the next day at her request.
From December 1980 until October 1981, SRS attempted to
provide M.R. with various community services, but she did not
utilize them. After the children were returned in September
1981 to M.R. from the voluntary foster care placement, C.A.R.
was enrolled in the Billings McKinley Preschool Early
Childhood Intervention program to help him develop skills
appropriate for a child his age. An examination by a team of
professj.onals at the Development Assessment Clinic of the
Montana Center for Handicapped Children had discovered
significant developmental delays in C.A.R.
The youth missed school thirty-two times that fall and
was terminated from the program for lack of attendance. The
coordinator of the program talked to M.R. several times about
this problem. M.R. explained that sometimes C.A.R. was ill
and other times she was unable to wake up in time to ready
C.A.R. to catch the noon bus across the street. The
coordinator did not observe M.R. to be intoxicated during
these conversations.
In November 1981, another social worker arranged
appointments and transportation to take P.J.R. to Shodair
Hospital in Helena for medical tests. Two appointments were
made and cancelled after M.R. failed to awaken in time to
prepare P.J.R. for the trip. When P.J.R. finally made it to
Shodair, Dr. Opitz observed that she was very dirty and
smelled of urine and that she was very passive and
non-responsive during the examination. The back of her head
also appeared flat.
In September of 1982, a teacher with the McKinley
]?reschool Program assisted M.R. with a simple stimulation
program for P.J.R. after her pediatrician, Dr. Pat Sauer, had
discovered significant developmental delays. M.R. showed
little enthusiasm for the program. The teacher noticed no
improvement in P.J. R. 's development while in M. R. 's custody,
but noticed great improvement after the child was placed in
foster care and the same program was implemented by the
foster parents. A clinical psychologist also noted that
P.J.R.'s mental functioning, developmental skills, and
behavioral problems all improved substantially after the
child had been under foster care for several months. Her IQ
increased dramatically after being placed in foster care; a
fact attributed to increased stimulation.
In October of 1982, the social worker placed both
children in foster care after Dr. Sauer diagnosed P. J.R. as
having suffered internal vaginal trauma, which apparently
occurred while she was left with M.R. Is brother. M.R.
explained that the trauma was accidental, due to P.J.R.'s
falling down on a toy dump truck. Dr. Sauerls opinion was
that the trauma was not accidental and that it was consistent
with sexual abuse. On further questioning by Dr. Sauer, M.R.
mentioned that a man named Donny, who had been staying with
her brother, might be responsible for P.J. R. ' s injuries
P.J.R. was, at the time two years and two months old.
Treatment plans for M.R. were implemented several
times. Prior to December, 1981, M.R. had agreed to a plan
which required her to get C.A.R. to school every day, to
bathe the children, to obtain toys and medical assistance for
them, to keep the house clean, and to attend pa-renting class.
M.R. failed to meet the conditions of the plan in any
sufficient way. Another plan was a.greed to by M.R. which
additionally required her to locate suitable housing, to
increase her employment skills, and to improve her parenting
abilities. Again, she failed to meet the conditions of this
plan. A third plan was adopted in November 1983, after the
SRS had filed for termination of parental rights. The
petition for termination was abated when M.R. agreed to this
third plan. It required her to attend the Galen State
Hospital Alcohol Rehabilitation program, and to attend
Alcoholics Anonymous as part of her after-care treatment. It
again required her to obtain housing, obtain a job or seek
job skills, visit her children, and improve her parenting
skills.
After completing the program at Galen State Hospital,
M.R. moved to Missoula despite the social worker's request
that she come to Billings to be near her children. M.R. said
she went to Missoula to be away from the social setting in
Billings. She found a job there but after a few months moved
back to Billings, losing her job in the process. At that
time, the SRS reinstated its request for termination of
M. R. ' s pa-rental rights.
At the date of the hearing, M.R. had successfully
abstained from alcohol since leaving Galen State Hospital.
She had found an apartment, but was unable to keep the
children there, and had gone to work helping her mother do
janitorial work at a bar in Billings. She presented evidence
that corroborated the fact that she had abstained from
alcohol since her release from Galen Hospital. She argued
that this fact was sufficient evidence of rehabilitation so
that she should be allowed another chance at caring for her
children, and that she was ready to make a serious and
sincere effort to do so.
Dr. Richard Agosto, a clinical psychologist in
Billings, Montana, had examined M.R., P.J.R. and C.A.R. He
and several social workers who had worked with M.R. concluded
that alcohol was not the primary cause of her neglect of her
children. They all felt that M.R. was using alcohol as an
excuse for more fundamental problems. Her basic problem was
a lack of motivation and maturity to appreciate and cope with
the needs of her children. These problems were not likely to
change in the foreseeable future, even with additional
therapy. Dr. Agosto stated. that if the children were
returned to M.R. it was probable that her previous parenting
patterns would be repeated. Dr. Agosto and the social
workers agreed that M.R. had been given an adequate
opportunity to parent her children, and failed to do so.
In regards to the children, Dr. Agosto, and the social
workers all testified that mental and emotional harm would
result if they were not provided with some stability,
consistency, stimulation, proper parenting, and attention to
their special needs. Dr. Agosto predicted that if the
children were returned to the non-stimulating environment,
that they could be expected to regress into their prior
conditions. He concluded that the best interests of the
children were that they not be returned to the custody of
M.R.
This Court has reviewed similar district court
determinations in the past. In In Re Gore (1977), 174 Mont.
321, 570 P.2d 1110, we discussed our role in this review:
". . . This Court is mindful that the
primary duty of deciding the proper
custody of children is the task of the
district court. As a result, all
reasonable presumptions as to the
correctness of the determination by the
district court will be made. Foss v.
Leifer , Mont . , 550 P.2d 1309,
33 St.Rep. 528 (1976). Due to this
presumption of correctness, the district
court's findings will not be disturbed
unless there is a mistake of law or a
find.ing of fact not supported by credible
evidence that would amount to a clear
abuse of discretion. Solie v. Solie,
Mont
142 (1977)
.."
, 561 P.2d 443, 34 St.Rep.
See also In the Matter of R.M.B. (Mont. 1984), 689 P.2d 281,
41 St.Rep. 1925; In the Matter of M.D.Y.R. (1978), 177 Mont.
Section 41-3-101, MCA sets forth Montana.'~
policy in
regards to its youth. It states, in pertinent part:
(1) It i s hereby declared to be the
I'
policy of the State of Montana to:
" (a) insure that all youth are afforded
an adequate physical and emotional
environment to promote normal
development; ...
" (2) It is the policy of this state to
provide for the protection of children
whose health and welfare are or may be
adversely affected and further threatened.
by the conduct of those responsible for
their care and protection. ..
"
That statute also emphasizes that the needs of youth are
presumably best met in a family environment, see also
Santosky v. Kramer (19821, 455 U.S. 745, 102 S.Ct. 1388, 71
L.Ed.2d 599. But when the rights of a youth to an adequate
physical and emotional environment encounter demonstrated
acts of commission or omission by the parents which deprive
the youth of this environment, the best interest of the youth
is paramount and takes precedence over parental rights or
familial bonds. In Re Bad Yellow Hair (1973), 162 Mont. 107,
Before a court can award permanent custody of any child
to SRS with a termination of parental rights, it must make
findings in zccordance with sections 41-3-406, 607 and 609,
MCA . 41-3-609, MCA sets out the criteria that must be
evaluated by the Court prior to ordering a termination, which
in relevant part states:
"41-3-609. Criteria for termination.
(1) The court may order a termination of
the parent-child legal relationship upon
a finding that the circumstances
contained in subsection (1) (a), (1)(b),
or (1)(c), as follows, exists:
" (1)(c) the child is an adjudicated youth
in need of care and both of the following
exist:
"(i) an appropriate treatment plan that
has been approved by the court has not
been complied with by the parents or has
not been successful and;
" (ii) the conduct or condition of the
parents rendering them unfit is unlikely
to change within a reasonable time.
" (2) In determining whether the conduct
or condition of the parents is unlikely
to change within a reasonable time, the
court must enter a finding that
continuation of the parent-child legal
relationship will likely result in
continued abuse or neglect or that the
conduct or condition of the parents
renders the parents unfit, unable, or
unwilling to give the child adequate
parental care. In making such
determinations, the court shall consider
hut is not limited to the following:
"(a) emotional illness, mental illness,
or mental deficiency of the parent of
such duration or nature as to render the
parent unlikely to care for the ongoing
physical, mental and emotional needs of
the child within a reasonable time;
"(g) any reasonable efforts by protective
service agencies that have been unable to
rehabilitate the parent.
" (3) In considering any of the factors in
subsection (2) in terminating the
parent-child relationship, the court
shall give primary consideration to the
physical, mental, and emotional
conditions and needs of the child. The
court shall review and, if necessary,
order an evaluation of the child's or the
parent's physical, mental and emotional
conditions."
Before parental rights may be terminated, the State
must demonstrate by clear and convincing evidence that the
statutory criteria has been met. Santosky v. Kramer, supra;
In the Ma.tter of T.J.D. (Mont. 1980), 615 P.2d 212, 37
St.Rep. 1385; In the Matter of J.L.B. (1979), 182 Mont. 100,
With the requirements of section 41-3-609 in mind, we
turn to the record. The first requirement is that the
children are youth in need of care. The District Court held
that C.A.R. and P.J.R. were, and this holding is supported by
substantial credible evidence. A youth in need of care is
one who is "dependent, abused, or neglected" 41-3-102(1O),
IJICA. An abused or neglected child is ". . . a child whose
normal physical or mental health or welfare is harmed or
threatened with harm by the acts or omissions of his parent
or other person responsible for his welfare" 41-3-102(2),
MCA. Harm to a child's health or welfare encompasses many
aspects of the chil.dtscare and environment, and can result
when a parent "inflicts or allows to be inflicted upon the
child physical or mental injury" 41-3-102 (3)(a), MCA. The
type of inquiry contemplated by this part of the statue
includes "the commission or omission of any act or acts which
materially affects the normal physical or emotional
development of a youth." In the Matter of M.R.L. (1980), 186
Mont. 468, 608 P.2d 134, and mental injury includes the
identifiable and substantial impa.irment of a child's
intellectual or psychological functioning," section
41-3-102 (8), MCA.
M. R . s failure to care and attend to C .A. R. and P.J. R.
caused the physical problems such as excessive illness,
flattened heads and uncharacteristic listlessness. The
greatest injury to the children, though, was to their
cognitive and emotional development. Dr. Agosto, Dr. Sauer
and other experts all testified that the poor care the
children were receiving had a detrimental effect on their
development. When they were put in foster homes, they made
remarkable progress, and appeared physical1.y and emotionally
happier. Dr. Agosto's opinion was that if the children were
placed back in the care of M.R., they could be expected to
regress.
The second statutorily defined area of harm to a child
is when a parent "commits or allows to be committed a sexual
assault against the child . . ." 41-3-102 (3) (b) . Dr.
Sauer's examination of P . J . R . indicated that she had been
sexually abused while in the care of M.R. ' s brother. M.R. 's
explanation of the incident was clearly unsatisfactory. It
was either an inexcusable attempt to protect someone who does
not deserve protection, or to deny the obvious. The District
Court was being charitable when it characterized M.R.'s
explanation as "lame." We have considered similar situations
before, and have no difficulty in considering this type of
incident as evidence of neglect. In In the Matter of A.J.S.
(Mont. 1981), 630 P.2d 217, 38 St.Rep. 947, we held:
". . . Regardless of any actual proof
that a parent intentionally inflicted
injuries upon his or her child, the
occurrence of serious and frequent, yet
unexplained, physical injuries to the
child is sufficient to properly bring the
child within the statutory definition."
630 P.2d at 221, 38 St.Rep. at 951.
We provided further guidance in this area of the law in
the case of In the Matter of T.Y.K. (1979), 183 Mont. 91, 598
P.2d 593, when we stated:
". . . Section 41-3-101, et seq., Montana
Code Annotated, grants to the District
Court the ability to make a determination
of neglect and abuse as to all children
in a family based upon the policy that
abuse of one child has a. detrimental
effect on the other children's
development." 183 Mont. at 36, 598 P.2d
at 596.
The third area of harm specifically listed in
41-3-102(3), MCA is in subsection (c), encompassing
situations where the parent "causes failure to thrive or
otherwise fails to supply the child with adequate food or
fails to supply clothing, shelter, education or health care,
though financially able to do so or offered financial or
other reasonable means to do so." We have held that this
provision "is broad enough to include emotional deprivation,
inadequate nutrition, and extreme and prolonged uncleanliness
of the child" In the Matter of A.J.S., 630 P.2d at 221, 38
St.Rep. at 950. The record is replete with instances of
inadequate hygiene, nutrition, inattention to offered
financial and social support, educational needs, and so on.
The District Court clearly had substantial evidence upon
which it based its decision that the children were abused and
neglected children.
The second requirement in 41-3-609, MCA is in
subsection (1) (c) (i); that the parent had agreed to an
approved treatment plan, but has failed to meet its
conditions. Here, M.R. was given three opportunities, one in
1981, and two in 1983. Her failure to meet the provisions of
the second plan brought about a prior termination proceeding
which was abated pending the third plan. Her failure in the
third plan brought about this action. This element was met.
The third requirement of 41-3-609, MCA, is in
subsection (1) (c) (ii) . The court must find that the conduct
or condition of M.R. that renders her unfit is unlikely to
change in a reasonable time. Stability is a very important
factor in a child's development, and a child should not be
subjected to constantly changing temporary foster care
situations while waiting for their mother to possibly improve
her parenting skills. In making this determination, the
court may consider the nature of the deficiency that renders
the parent unfit, 41-3-609 (2) (a), MCA, and any reasonable
efforts by protective agencies that have failed to bring
about rehabilitation, 41-3-609(2) ( g ) , MCA. Along with this
finding, the court must also determine that the continuation
of the parent-child relationship will result in continued
abuse or neglect. Again the record is replete with evidence
supporting the District Court's holding. Dr. Agosto, the
examining psychiatrist, testified that M.R.'s basic problem
was a lack of motivation towards her children, an inability
to comprehend their needs, and a lack of depth of maturity to
bring about the needed change. He did not feel that M.R. was
able to change significantly in the near future. Other
social workers and experts testified to the same effect.
None of them felt that alcohol was the particular problem
with M.R., but rather that it was being used as a convenient
excuse. A significant array of resources were enlisted to
help M.R., but she showed little interest. And finally, all
of those familiar with the children testified that they were
in dire need of stability and proper care soon. Further care
by M.R. was likely to negate any progress already made. The
best interest of the children was for the parental
relationship to be terminated.
M.R.'s sole argument on appeal is that the District
Court failed to consider the evidence of her rehabilitation.
M.R. contends that the District Court placed inordinate
emphasis on past events, and insufficient emphasis on the
fact that M.R. had abstained from drink for the year prior to
the hearing.
First, we agree with M.R. when she argues that the
purpose of termination actions is not merely to provide
children with a "better life." It is, instead, designed to
allow the State to step in only when it is apparent that the
natural parent is failing, and is likely to continue to fail
to provide the children with a minimally adequate life. If
the children are being provided with the care and resources
minimally adequate to their growth and development, the
family is primary, and the State has no business in the
matter. It is only when the child's care fa-11s below that
which is minimally adequate, that the State becomes
interested as a protector of the child's welfare. See
Santosky v. Kramer, supra.
Secondly, a termination proceeding must necessarily
include a judgment about the ability of the parent to care
for the child in the future. Regrettably, we do not have a
crystal ball to look into to make this determination, so it
must, to some extent, be based on a person's past conduct.
We agree with M.R.'s assertion that evidence of
rehabilitation is germane to this determination, but do not
take it so far as to establish a rule that any evidence of
rehabilitation renders the District Court powerless to find
future danger to the children. It is evidence to be
considered by the District Court, no more, no less, and is
subject to the same standard of review as any other evidence.
M.R. cites several cases that support her argument that
parental rights cannot be terminated in the face of credible
evidence of rehabilitation. In In Re Welfare of A.R.W.
(Minn. 1978), 268 N.W.2d 414, the Minnesota Supreme Court
upheld a district court order returning the children to their
natural mother from temporary foster care after it was shown
that, over the course of six years she had been
rehabilitated. In this case, M.R. had been under the
observation of the SRS from 1-978 until 1984, also a period of
six years. Here, though, she did not show any progress until
the very end of that time, and then under the threat of the
previous termination petition. The district court's opinion
that, "They've [the children] waited long enough." was
justified.
M.R. also cites In Re M. (Ohio 1979), 416 N.E.2d 669,
and State v. Pogue (Mo. 1955), 282 S.W.2d 582 for the
proposition that changed circumstances mandate the children's
return to the rehabilitated parent. In both these cases, the
children were still in temporary foster care. The children
were returned to their parents--just as C.A.R. and P.J.R.
were returned to M.R. on several occasions from 1978 to 1984.
Here, the question the judge faced. was the permanent
termination of parental rights. The District Court's
determination that M.R.'s conduct was unlikely to change
significantly in the future was supported by substantial
evidence, and was not an abuse of its discretion.
Affirmed.
We concur:
P Justice aQ o
Chief
~ d , h