No. 86-99
I N THE SUPREME COURT O F THE STATE O M N A A
F O T N
1986
I N THE MATTER O D.S.N.,
F
a Youth i n N e e d of C a r e .
APPEAL FROM: D i s t r i c t Court of t h e F i r s t J u d i c i a l D i s t r i c t ,
I n and f o r t h e County o f Lewis & C l a r k ,
The H o n o r a b l e Gordon B e n n e t t , J u d g e p r e s i d i n g .
COUNSEL O RECORD:
F
For Appellant:
Cannon & Sheehy; Edmund F. S h e e h y , H e l e n a , Montana
For Respondent:
Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana
Dorothy McCarter, A s s t . A t t o r n e y G e n e r a l , Helena
Mike McGrath, County A t t o r n e y , P e t e r Funk, D e p u t y ,
H e l e n a , Montana
Anne S h e e h y , H e l e n a , Montana
S u b m i t t e d on B r i e f s : A p r i l 3 0 , 1986
Decided: J u l y 1 8 , 1986
Filed:
JUL I P 1986
Clerk
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of
the Court.
K.N. appeals the order of the First Judicial District
Court, County of Lewis and Clark, terminating his parental
rights to his natural child, D.S.N. We affirm the decision
of the trial judge.
A petition for temporary investigative authority
and protective services for D.S.N. was filed December 19,
1984. On January 3, 1985, the natural parents of D.S.N.
stipulated to the investigation, the continued placement of
the child in foster care and the development of a treatment
plan for all parties concerned. K.N. further agreed to
attend the in-patient alcohol treatment program at Galen
State Hospital.
Following completion of the alcohol treatment program,
mental evaluations were completed on K.N., D.S.N. and
D.S.N.'s natural mother. Based on these evaluations, a
treatment plan was established by the mental health evalua-
tor, Sue Barton, and the family's social worker, Joe
Baumgardner.
The treatment plan contained four goals:
1) Both parents must be mentally/emotionally able
to provide for and respond to [D.S.N. 's]
mental/emotional needs.
2) Both parents must be economically able and
capable to adequately satisfy their own an6
[D.S.N.'s] basic needs for food, clothing and
shelter.
3) Both parents must demonstrate they can live a
life style conducive to the health and welfare of
CD.S.N.1 and be sufficiently able to parent, in-
cluding being skilled in behavioral management.
4) [D.S.N.] must be sufficiently mentally/emotion-
ally adjusted and able to return to the care,
custody and control of her father or, in the alter-
native, her mother.
A hearing was held April 12, 1985. D.S.N. was found, by
stipulation, to be a youth in need of care. The treatment
plan was approved by the court and a hearing to review the
parties' progress was ordered in six months.
The natural mother made no effort to comply with the
treatment plan, nor did she express interest in either legal
or physical custody of her child. On the other hand, K.N.
attempted to comply with his treatment plan and expressed an
intense desire to have custody of his child.
K.N.'s treatment plan included mental health counseling
by his clinical social worker, Sue Barton. At the end of the
six-month period, Ms. Barton submitted a report to the Dis-
trict Court recommending that K.N.'s custodial rights be
terminated. A petition pursuant to S 41-3-607, MCA, was
thereafter filed seeking to terminate K.N.'s parental rights.
A two-day hearing was held and the petition was granted. The
sole issue on appeal is whether the trial judge abused his
discretion in terminating K.N.'s parental rights.
The relevant criteria for terminating parental rights
are found in § 41-3-609, MCA.
41-3-609. Criteria for termination. (1) The
court may order a termination of the parent-child
legal relationship upon a finding that the circum-
stances contained in subsection (1) (a), (1)(b), or
(1) (c), as follows, exist:
(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 condi-
tion of the parents is unlikely to change within a
reasonable time, the court must enter a finding
that continuation of the parent-child legal rela-
tionship will likely result in continued abuse or
neglect or that the conduct or the 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 but 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;
(b) a history of violent behavior by the parent;
(c) a single incident of life-threatening or
gravely disabling injury to or disfigurement of the
child caused by the parent;
(dl excessive use of intoxicating liquor or of a
narcotic or dangerous drug that affects the par-
ent's ability to care and provide for the child;
(el present judicially ordered long-term confine-
ment of the parent;
(f) the injury or death of a sibling due to proven
parental abuse or neglect;
and
(g) any reasonable efforts by protective service
agencies that have been unable to rehabilitate the
parent.
(3) In considering any of the factors in subsec-
tion (2) in terminating the parent-child relation-
ship, 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.
Each specific requirement found in the statute must be
addressed by the court. In the Matter of R.B. , Jr. (Mont.
1985), 703 P.2d 846, 848, 42 St.Rep. 1055, 1058. We disagree
with K.N.'s contention that the trial judge failed to address
all of the requirements.
Finding of fact VII states that "[K.N.] has not made
sufficient progress with therapy to be able to be considered
a fit parent." Finding of fact X states that " [K.N.] has
continued to deny that problems exist with his previous care
of [D.S.N.], making it virtually impossible to change his
behavior." Both findings demonstrate that despite his good
intentions to do so, K.N. has been unable to obtain the first
goal of his treatment plan, to become mentally and emotion-
ally able to provide for his child's mental and emotional
needs. Other findings illustrate K.N.'s inability to achieve
the third goal, that of living a lifestyle conducive to the
health and welfare of the child and being sufficiently able
to parent. For instance, finding of fact XIV refers to the
continually unstable relationship between K.N. and his
present wife. And, finding of fact XV reflects the experts'
opinions that K.N. may never be capable of caring for his
child. Clearly, the general term "care for" includes being
sufficiently able to parent.
Findings of fact VII, VIII and XVI combine to support a
determination that K.N.'s condition rendering him an unfit
parent is unlikely to change within a reasonable time. A
reasonable time for D.S.N. is now. Section 41-3-609(3), MCA,
mandates that in determining whether the parents' condition
will change within a reasonable time, primary consideration
should be given to the needs of the child. Two experts
testified that D.S.N.'s age (9) makes it imperative that she
be provided with a loving, stable home as soon as possible.
D.S.N.'s well-being will not withstand further delay.
Other findings reflect some of the factors recommended
by the statute for use in determining whether the parent's
condition will change. Finding of fact XI11 notes K.N.'s
history of violent behavior toward his wife; finding of fact
IX summarizes D.S.N.'s continual exposure to violence and
alcohol while living with K.N.; and the findings as a whole
reflect K.N.'s failure to benefit from the services provided.
There is no question but that the findings of the trial
judge address each specific requirement found in § 41-3-609,
MCA . Furthermore, those findings are supported by
substantial credible evidence.
Sue Barton testified in response to the question whether
D.S.N. has time to wait for her father to become a fit parent
as follows:
No , I think [K.N.] could be coming to therapy
weekly for two years hence and we could be in the
same spot. I think that if [D.S.N.] is going to be
a productive member of society and be anywhere near
being emotionally healthy, she has to be in a place
where she feels safe and - protected and can go
forward with talking about the kinds of things
she's experienced already under the care of her
parents.
Tr. p. 52.
Margaret Stewart, an expert in the child welfare area,
supported Ms. Barton's stance. She stated that although
D.S.N.'s problems now lie under the surface, once she reaches
adolescence, they will explode. D.S.N. needs to become
stabilized now, before she reaches adolescence. (Tr. p. 90.)
Other testimony supports the conclusion that K.N. will
be unable to change in the near future. Sue Barton testified
that after six months of counseling, K.N. has been unable to
achieve the first essential step toward improvement, the
ability to trust another human being. (Tr. pp. 43-45.) This
inability to trust results in an inability to relate to
others in a normal manner. An individual with this problem
will be unlikely to raise a child to be emotionally and
mentally healthy. (Tr. p. 63.)
Other testimony related to K.N.'s inability to properly
respond to D.S.N. as a parent. In his relationship with his
daughter, K.N. is the child. He relies on D.S.N. for protec-
tion and satisfaction of his own needs. (Tr. pp. 43, 60.)
Further, when K.N. drinks, he physically neglects D.S.N. and
becomes prone to violence. (Tr. p. 46.) And, substantial
evidence casts doubt on K.N.'s ability to refrain from
drinking for an extended period of time. (Tr. pp. 39, 45,
150.)
The evidence unequivocally supports the conclusion that
K.N. is unable to provide D.S.N. with the minimum care and
resources needed to assure adequate growth and development.
In the Matter of C.A.R. and P.J.R. (Mont. 1984), 693 P.2d
1214, 1221, 41 St.Rep. 2395, 2402. The decision of the
District Court is affirmed.
We Concur: