NO. 88-372
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988
IN THE MATTER OF INQUIRY INTO:
BABY BOY SCOTT,
Youth in Need of Care.
APPEAL FROM: District Court of the Second Judicial District,
In and for the County of Silver BOW,
The Honorable Mark P. Sullivan, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
W. M. Hennessey, Rutte, Montana
For Respondent:
Ross Richardson, But-te, Montana
Patrick McGee, Butte, Montana
Submitted on Briefs: Nov. 17, 1988
Decided: December 29, 1988
Filed:
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Mr. Justice b7illiam E. Hunt, Sr., delivered the Opinion of
the Court.
The natural mother of Baby Boy Scott appeals an ord.er
of the Second Judicial District Court, Silver Bow County,
terminating her parental rights. We affirm.
The issues raised are as follows:
1. Did the District Court err in terminating the
mother ' s parental rights without establishing a
court-approved treatment plan?
2. Did the District Court err in refusing to grant the
mother visitation rights with the child after her parental.
rights were terminated?
Baby Boy Scott was horn on October 28, 1986. At the
time of his birth, the mother was a patient at Warm Springs
State Hospital. Her admission to Warm Springs in August,
1986 was her third. She had also been a frequent patient at
Billings Deaconess Hospital Psychiatric Unit.
Shortly after the child's birth, the Butte-Silver Bow
County Office of Human Services, a division of the Montana
Department of Social and Rehabilitative Services (SRS),
obtained an order for temporary investigative authority and
protective services. The child was placed with a foster home
in Butte.
On January 14, 1987, the District Court terminated the
rights of the putative father and extended the October
protective order. The child was moved to a pre-adoptive home
where he resided at the time of the hearing that Fs the
subject of this appeal.
The mother was released from Warm Springs in February,
1987. She was readmitted in August, 1987 and was released
again in late December, 1987. She has never seen the child.
On March 30, 1988, the mother filed a motion to dismiss
the temporary order of January, 1987, on the grounds that she
was no longer incapacitated and was residing at home in
Billings where she had family support. She additionally
based her motion on the fact that the case had been inactive
for over one year. In response, SRS filed a petition for
permanent legal custody and termination of parental rights.
After a hearing on April 27, 1988, the District Court issued
an order denying the mother's motion to dismiss and granting
SRS's petition. The mother filed this appeal.
The mother first argues that the District Court
improperly terminated her parental rights. She maintains
that, when a treatment plan has never been established by a
district court, the court may not terminate parental rights
unless SRS makes a showing that clearly proves the
impossibility of a workable plan.
This Court established the "clear impossibility"
standard referred to by the mother in In Re C.L.R. (1984),
211 Mont. 381, 386, 685 P.2d 926, 928. At the time of our
decision in that case, the pertinent statute provided that a
parent's rights could not be extinguished without a finding
that the parent had not complied with a court-approved
treatment plan or that such a plan has been unsuccessful.
Section 41-3-609 (1)(c)(i), MCA (1981).
After C.L.R., the legislature amended the statute,
adding exceptions to the treatment plan requirement. The
exceptions abrogate the need for the court-made clear
impossibility standard with regard to parents who suffer from
mental disease. The statute now makes it possible to
extinguish the parental rights of a mentally ill individual
without establishing a court-approved treatment plan as long
as two medical doctors testify that the individual is so
severely mentally ill that he or she cannot assume the role
of parent. Section 41-3-609 (4)(a), MCA. The doctors must
also testify that the mental condition of the parent is
unlikely to change within a reasonable time. Section
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41-3-609 (1)(c)(ii)
In the instant case, three psychiatrists testified that
the mother suffered from chronic schizophrenia. All agreed
that, considering her history of mental illness, there was
little hope that she would be able to assume her parental
role. They concurred that her condition was unlikely to
change within a reasonable time.
We note that one of the doctors had not had contact
with the mother for over one year. The other two
psychiatrists had evaluated her within four months of the
hearing. The testimony of these latter two doctors sufficed
to establish the statutory basis for terminating the mother's
rights.
In addition to the testimony of the medical doctors,
the residential clinical coordinator at the Mental Health
Center in Billings testified that he had counselled the
mother during the past five years. He agreed with the
doctors that her prognosis was not good.
We will not overturn a district court order terminating
parental rights as long as the findings of fact are supported
by substantial credible evidence and the conclusions of law
do not amount to a clear abuse of discretion. In Re V.R.
(Mont. 1987), 744 P.2d 1248, 1249, 44 St.Rep. 1838, 1840. In
light of the above facts, substantial credible evidence
exists to support the District Court findings that the mother
was so severely mentally ill that she could not assume the
role of parent and that her condition was unlikely to change
within a reasonable time. The District Court did not abuse
its discretion by terminating the mother's parental rights.
The mother next argues that the District Court erred by
failing to grant her request for visitation rights with the
child. She maintains that visitation should have been
allowed because there is nothing in the record that
demonstrates that such an arrangement would be harmful to the
child.
Although we have expressly disapproved the practice of
allowing visitation "rights" once parental rights have been
extinguished, In Re C.P. (Mont. 1986), 717 P.2d 1093, 1095,
43 St.Rep. 728, 731, we have allowed a natural mother to
maintain "contact" with her child at the discretion of the
SRS. V.B., 744 P.2d at 1250, 44 St.Rep. at 1841-42. Contact
is permissible only upon a showing that such an arrangement
is in the child's best interest. ---
V.B., 744 P.2d at 1250, 44
St. Rep. at 1841.
In the present case, even though the mother requested
visitation rights, the District Court could properly have
considered her request as one for discretionary contact had
there been evidence showing that such a plan would be
beneficial to the child. However, no such showing was made.
The mother failed to elicit testimony from any of the
witnesses regarding the effect contact would have on the
child. Furthermore, the record as it stands clearly
demonstrates that it would not be in the child's best
interest to allow the mother to maintain contact with him.
The District Court did not abuse its discretion by failing to
allow such an arrangement.
The mother also argues that the District Court erred in
denying her motion to dismiss for failure to prosecute. The
decision to grant such a motion is within the discretion of a
district court. Cremer v. Rraaten (1968), 151 Mont. 18,
19-20, 438 P.2d 553, 554. The mother has made no showing
that the District Court abused its discretion by denying her
motion t o dismiss.
We affirm the District Court.
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