No. 86-258
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987
IN THE MATTER OF M.J.D., C.K.D.,
A.R.D., 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 presiding.
COUNSEL OF RECORD:
For Appellant:
Morin & Collins; Colleen Collins, Billings, Montana
Sally Johnson, Billings, Montana
For Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana
Harold Hanser, County Attorney, Billings, Montana
Greg S. Mullowney, Deputy County Attorney, Billings
Olsen, Christensen & Gannett; Damon Gannett, Billings,
Montana
Submitted on Briefs: Nov. 25, 1986
Decided: January 29, 1987
Filed: JAN Z 3 1987
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of
the Court.
The natural parents of M. J.D., C.K.D., and A.R.D.,
appeal the order of the Thirteenth Judicial District Court
terminating parental rights and awarding custody and care of
the minor children to the Montana Department of Social and
Rehabilitation Services. We affirm.
The natural father, S.D. , is an enrolled member of the
Sturgeon Lake Band of Cree Indians, Saskatchewan, Canada.
The natural mother, J.D., is an enrolled member of the
Northern Cheyenne Indian Tribe, Lame Deer, Montana. S.D. and
J.D. are the natural parents of four daughters, C.D., age 4,
A.D., age 7, M.D., age 15, P.D., age 19, and two sons, O.D.,
age 14, and L.D., age 17. Each of the children are members
of the Cree Indian Tribe. The three youngest daughters,
C.D., A.D., and M.D., are the subject of this appeal.
Father and mother are now divorced. During the marriage
the family lived in Canada and also on the Northern Cheyenne
Indian Reservation in Montana. The father was alcoholic and
physically abusive of his family. In 1980, the father was
convicted in U.S. District Court in Billings, Montana, of
assaulting his oldest daughter with a broom handle. He was
placed on probation and ordered to stay away from his
children.
Following the father's probationary period the family
returned to Canada. The mother left the family in the
father's care and moved to Great Falls, Montana, where she
stayed from July, 1981, to Janaury, 1982. The mother
returned to the family and remained for 6 months, then left
in July, 1982, with 4 of the 6 children and returned to Great
Falls. The youngest boy remained with the father. The
oldest daughter was removed from the family and made a ward
of the Province of Saskatchewan.
The mother and father were divorced and the mother
awarded custody of C.D., A.D, M.D., and L.D. In Great Falls,
the mother and her children were placed in Mercy Home, a
shelter for battered spouses. L.D. was removed and placed in
the Receiving Home because he was stealing and destroying
property in Mercy Home. The social worker assigned to the
family found an apartment and attempted to help the mother
with her parenting and housekeeping skills. The social
worker also assisted the mother in buying household supplies
and food. The mother frequently spent or gave away her money
before her next check arrived.
The assistance provided to the mother in 1982 did not
improve her home management skills. The children did not
obey their mother. She constantly yelled at them. A.D.,
about 4 at the time, wandered away and was rescued by the
police three times. On one occasion, the mother left her
two youngest daughters at home alone. A.D. wandered off;
C.D., after crying for a long while, crawled out the door and
was taken in by neighbors. M.D. and L.D. had extremely poor
school attendance, and L.D. was removed to special education
classes due to his disruptive behavior.
From October, 1982, through May, 1983, the family was
provided with home assistance, day-care, financial services,
clothing, food and mental health counseling. The mother
tried to cooperate with those assigned to help her, but was
unable to improve her money management skills or control her
children. During this period of time there were 3 or 4
different men who resided in the home. The mother was unable
to perform the most basic of parenting skills.
In May of 1983, the family moved to Billings. Family
Services in Billings was contacted, and a worker visited the
family at their tent sight on the bank of the Yellowstone
River. The living conditions were improper for young
children so living arrangements were made at the Gateway
House. This placement was terminated quickly because the
mother broke the confidentiality rule by having a male friend
drop her off at the house.
Social worker Ken Boyd assumed the family's case in late
May, 1983, and placed them in the Rescue Mission. This
placement lasted a short time before the family was asked to
leave because the mother had left the children unattended for
four hours. September 9, 1983, A.D. was found unaccompanied
riding the elevators in the Sheraton Hotel and returned home.
Boyd discovered November 29, 1983, that L.D. had been forcing
his younger sister M.D., to have sex with him for several
years. M.D. also informed Boyd that her mother was
continuing to bring male visitors home. The following day
M.D. was placed in foster care and L.D. was removed to the
Billings Youth Home.
Betty Penn was assigned as a home attendant to assist
the mother. Ms. Penn worked with the mother for about 6
months and assisted her with shopping, transportation,
keeping appointments and attending parenting classes. The
mother missed many of her appointments with Penn and was
often still in bed when Penn arrived to take her to parenting
classes. Penn noticed different men staying in the home each
time she visited. On December 10, 1983, Penn arrived in the
morning to find A.D. with only her underpants on and C.D.
running around naked. L .D. , who had been removed from the
home, was lying on the couch and two others were lying on the
floor. A.D. informed Penn that her mother had gone to a
movie the night before and not returned. Penn returned with
Boyd and an officer and removed the children from the home.
It was discovered that both L.D. and M.D., the older
sister, had had inappropriate sexual contact with C.D. and
A. D. When placed in foster care, A.D. displayed
inappropriate sexual behavior.
Dr. Donna Veraldi, a clinical psychologist, evaluated
the mother, A.D. and M.D. in December, 1983. She found that
the children suffered from environmental deprivation and the
mother had a dependent personality disorder. Dr. Veraldi
recommended mental health counseling and in-home training for
the mother.
On January 12, 1984, the Yellowstone County Attorney was
granted temporary investigative authority to investigate the
welfare of C.D., A.D., M.D., and L.D. Counsel was provided
for the mother, a guardian ad litem appointed for the
children, and notice given to the father of the proceedings.
On January 24, 1984, L.D. was adjudicated a delinquent youth
for the offense of incest against his sister, and committed
to Pine Hills School for Boys.
On February 28, 1984, the District Court approved a
treatment plan for the mother. The mother fared very poorly
in the treatment plan, so the Department of Social and
Rehabilitation Services (SRS) filed a petition on May 10,
1984, for permanent custody and authority to assent to
adoption of C.D. and A.D. In June, the father contacted SRS
indicating he wished to obtain custody of the children. The
District Court approved a service treatment agreement for the
father to be implemented by Canadian agencies.
Hearings concerning the petition for permanent custody
filed by SRS were conducted December 18, 1984, and July 3 1 ,
1985. Testimony was heard from the psychologists and social
workers involved with the case, and from both parents. The
District Court issued its order December 13, 1985, awarding
temporary custody of C.D., A.D., and M.D., to SRS. A further
hearing was held January 10, 1986, updating the status of the
children. Following hearing, the District Court issued its
amended findings, conclusions of law and order awarding
temporary custody of M.D. to SRS until the age 18, the
permanent custody of C.D. and A.D. to SRS, and terminating
the parents' rights to C.D. and A.D. Motion to amend or
alter judgment was denied and both parents appeal.
The mother raises the following issue:
1) Whether there is clear and convincing evidence to
support the District Court conclusion that M.D., C.D., and
A.D., were youths in need of care and that the mother's
parental rights should be terminated?
The father raises the following issues:
1) Whether the District Court erred in finding that the
father abandoned his children?
2) Whether the District Court abused its discretion in
terminating the parental rights of the father?
3) Whether the District Court abused its discretion in
refusing to relinquish jurisdiction to the Sturgeon Lake Band
of Cree Indians?
The mother contends there is not substantial evidence
supporting termination of her parental rights. The mother
takes issue with the court's findings nos. 4 and 5 which
found the mother unfit, unable, and unwilling to care for her
children, that she permitted them to be sexually assaulted,
and that she has received several years of rehabilitative
training which has failed. The mother also contends the
court approved Service Treatment Agreement between SRS and
the mother was of inadequate duration to allow her to improve
her skills of parenting and home management.
Section 41-3-609, MCA, provides that a court may
terminate a parent-child legal relationship upon finding the
child is a youth in need of care, and both of the following
exist: 1) a court approved treatment plan has not been
complied with by the parents; and 2) the conduct or condition
of the parents rendering them unfit is unlikely to change
within a reasonable time.
We find substantial, credible evidence in the record
supporting termination of the mother's parental rights. The
mother received assistance and training from July, 1982,
through May, 1983, while living in Great Falls. Her home
management and parenting skills did not improve. The family
moved to Billings, and family services were provided by
Yellowstone County. Due to the mother's inappropriate
conduct the family was removed from two home placements. A
social worker assigned to help the mother reported no
improvement by the mother, different men residing in the home
from week to week, and indications of sexual abuse among
family members.
The service treatment agreement covered the period March
1, 1984, through April 10, 1984. The report filed April 11,
1984, found the mother failed to complete the agreement and
was unable to provide a stable home environment. Contrary to
the mother's assertions that she had only 40 days to improve
her skills, we note that she received nearly two years of
training and assistance with no sign of improvement. We find
no abuse of discretion by the District Court in terminating
the mother's parental rights.
The father contends the District Court erred in finding
he had virtually abandoned his children. Abandonment is
defined in S 41-3-102 (2)(d), MCA, as occurring when the
parent,
abandons the child by leaving him under
circumstances that make reasonable the belief that
the parent or other person does not intend to
resume care of the child in the future or by
willfully surrendering physical custody for a
period of 6 months and during that period does not
manifest to the child and the person having
physical custody of the child a firm intention to
resume physical custody or to make permanent legal
arrangements for the care of the child;
We do not agree with the father's contention that the
District Court's finding of "virtual abandonment" differs
from the statutory standard. There is substantial evidence
of abandonment as defined in the above statute.
The mother moved to Great Falls with 4 of the 6 children
in July, 1982. During the next two years the father made
minimal effort to contact his family. He wrote one letter to
the mother while the family was staying in Great Falls. He
made a phone call in March, 1984, to Ken Boyd wanting to know
what was happening to his children.
The father did not make known his intention to acquire
custody and provide care for the children until approximately
June, 1984, three months after he was informed of the custody
proceedings filed by SRS. The period for establishing
abandonment pursuant to 5 41-3-102(2)(d), MCA, is six months.
In this instance, the father had no contact with the children
and did not state any intention of resuming care of the
children for a period of two years.
The father testified that on one occasion a social
worker would not inform him of his children's whereabouts.
The record is unclear on this matter. However, it is clear
that the father did not inform his wife or the social workers
in Montana of an intention to resume custody of the children
until termination proceedings had begun. There is
substantial credible evidence in the record supporting the
District Court finding that the father abandoned his
children.
The next issue is whether the District Court erred in
terminating the father's parental rights. Criteria for
termination are listed in S 41-3-609, MCA, which provides in
part :
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, exist:
(a) the parents have relinquished the child
pursuant to 40-6-135;
(b) the child has been abandoned by his parents as
set forth in 41-3-102 (3) (d); or
(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.
The father contends there is not substantial evidence to
support the District Court's finding that he did not
successfully complete the treatment plan. We need not
address this issue because the court found the father
abandoned his children. Only one of the three circumstances
listed in $ 41-3-609(1), MCA, need be found in order to
terminate a parent's rights. There is substantial credible
evidence of abandonment by the father, which meets the
criteria for termination of parental rights under $ 41-3-609,
MCA.
The final issue is whether the District Court abused its
discretion in refusing to relinquish jurisdiction to the
Sturgeon Lake Band of Cree Indians. The Sturgeon Lake Band
participated in the dispositional hearings and presented a
formal resolution asking the District Court for custody of
the children. The District Court denied the request, and
concluded that it was in the best interests of the children
to remain in the custody of SRS with authority to assent to
adoption.
One of the District Court's concerns was that if C.D.
and A.D. were placed on the Cree Reservation in Canada, their
older brother would have access to them. The father
contends newly discovered evidence indicating the brother
will be at a boys ranch hundreds of miles away compels
reversal of the placement with SRS. The father further
contends the Sturgeon Lake Cree Band has appropriate services
to treat the abused children, and the children rightfully
belonq within their Indian tribe.
The District Court is required to consider the best
interest of the children in determining placement pursuant to
§ 41-3-406(5), MCA. Both C.D. and A.D. were placed in foster
homes during the pendency of the proceedings. At the final
dispositional hearing, a report concerning A.D. was
introduced in which the reviewing psychologist strongly
recommended that there be no change in A.D.'s placement and
her prognosis for treatment appeared very good. Ken Boyd
testified that C.D. should remain in her current placement
with the ultimate goal of reuniting her with A.D. and placing
both children in a Native American home. This evidence
supports the District Court conclusion it is in the best
interests of A.D. and C.D. that custody be awarded to SRS.
We find no abuse of discretion.
The District Court is affirme
We concur: