No. 88-237
I N THE SUPREME COURT O THE STATE O MONTANA
F F
1988
I N THE MATTER O DECLARING
F
T.M.M., a Youth i n Need o f C a r e .
APPEAL FROM: District Court of t h e Nineteenth 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 L i n c o l n ,
The H o n o r a b l e E. G a r d n e r B r o w n l e e , J u d g e p r e s i d i n g .
COUNSEL O RECORD:
F
For Appellant:
L. C h a r l e s E v a n s , L i b b y , Montana
For Respondent:
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
Betsy Brandborg, A s s t . A t t y . General, Helena
S u s a n Loehn, County A t t o r n e y , L i b b y , Montana
t- S u b m i t t e d on B r i e f s : Aug. 26, 1988
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Clerk
Mr. Justice L . C. Gulbrandson delivered the Opinion of the
Court.
The father of T.M.M. appeals from an order of the
Nineteenth Judicial District, Lincoln County, terminating his
parental rights to T.M.M. and granting the Lincoln County
Office of Human Services (LCOHS) the authority to assent to
adoption. We affirm.
Appellant raises the following issues on appeal:
1. Whether substantial credible evidence exists to
support the District Court's determination that:
a. the father failed to comply with the
court authorized treatment plan;
h. the conditions rendering the father
unfit were unlikely to change within a
reasonable period of time; and
c. the Lincoln County Offlce of Human
Services made reasonahle efforts to
rehabilitate the father.
2. Whether the court erred by failing to find that
continuation of the parent-child legal relationship would
likely result in continued abuse or neglect.
3. Whether the District Court erroneously denied the
father's February 1, 1988 motion for a continuance.
4. Whether any manifest bias by the District Court
judge deprived the father of his constitutional right to a
fair trial.
T.M.M. is the youngest of four children born to R.M.
(father) and N.M. (mother). T.M.M. was two and a half years
of age when her parents separated in December of 1984; her
parents divorced in June of 1985. She lived with her mother
until May of 1985, when her mother left her in the custody of
her father. IJntil December 6, 1985, she remained in the care
of her father and S.F., a moderately retarded woman unable to
provide any parental care, but with whom the father began
living in September of 1985. LCOHS placed all four children
in protective foster care on December 6 , 1985, after
complaints of physical abuse by the boys and concerns about
the neglect of T.M.M.; she did not have her own bed, she
frequently wore and slept in the same clothes for days at a
time, and she received care primarily from an older brother.
An initial treatment plan, agreed upon and signed by
the father, was in effect from December 20, 1985 until
February 20, 1986. This treatment plan, establishing minimum
goals for the father to meet prior to the return of any of
his children, was not successfully completed.
Additionally, an evaluation of T .M.M.. conducted b>7
pediatric psychologist Jacelyn Wedell-Monnig on April 17 and
18, 1986, revealed that T.M.M. suffered from Child
Maltreatment Syndrome as a result of sexual abuse received at
the hands of her father. T.M.M. stated that she often
received a sucker after performing sexual acts with her
father. Further, T.M.M. displayed inappropriate behavior in
a child her age. She displayed an excessive interest in
other children's bodies while fearing exposure of her own;
she would stiffen her legs when her foster parents attempted
to diaper her for the night. When playing with anatomically
correct dolls, she spent an inordinate amount of time
handling the male doll and placing the male doll on top of
the female doll. She was observed repeatedly placing the
male doll, which she called "Daddy doll," on the floor and
then sitting on its penis. Given these clear indications of
sexual abuse, Dr. Wedell-Monnig recommended that the father
have no further contact with his daughter.
LCOHS filed a petition for temporary legal custody of
all four children on May 12, 1986 because of lack of any
progress by the father and because of evidence of the sexual
abuse of T.M.M. The District Court granted temporary legal
custody of all four children to LCOHS on July 18, 1986,
following a hearing on June 2, 1986. The father subsequently
was denied any visitation rights with T.M.M. The court also
approved a new treatment plan for each parent. The treatment
plan for the father required him to seek and complete a
minimum of twelve counseling sessions with a therapist
approved by LCOHS, to make and keep regular appointments with
a social worker, to attend parenting classes, and to stop
degrading his children's interest in their learning
achievements.
Beverly Miller, a social worker assigned to the case,
reported that the father failed to successfully complete this
court approved treatment plan. He failed to obtain any
counseling after the Lincoln County Mental Health Center
(Center) refused him further counseling. Psychologist Dr.
Miller stated that the Center denied the father further
coun~eling because the previous nine years of family
counseling were unproductive. The father also demonstrated
no interest in working with LCOHS to effect any real changes,
and he failed to keep in touch with a social worker following
his move to Great Falls in the fall of 1987. Additionally,
he continued to deny any responsibilty for the problems
leading to the placement of his children in foster care,
instead telling the boys during visitations that their foster
care placement was their fault. This denial is consistent
with psychological evaluations conducted by Dr. Meyers. Dr.
Meyers diagnosed the father as suffering from an intermittent
explosive disorder, with other personality disorders, causing
the father to deal with problems by repression and denial.
The failure of this court approved treatment plan led
LCOHS, on February 23, 1987, to petition the court for
temporary legal custody of all the children until age
eighteen. A letter written by guardian ad litem Terrie Noser
on April 7, 1987, stated that an award of custody to LCOHS
would be in the best interests of the children. The father
opposed the enrollment of T.M.M. in a preschool program
despite an evaluation indicating that she had a speech and
language deficiency. Her foster parents, however, enrolled
her in a preschool program. Her preschool teacher, Sandra
Honeychurch, observed a significant growth in T.M.M.'s "motor
[skills], reasoning, visual perception and expressive
language" as a result of the preschool program and her
changed home environment. Consequently, on ~ p r i l30, 1987,
Judge Holter found that the best interests of the children,
all adjudicated youths in need of care, necessitated awarding
custody to LCOHS until age eighteen.
On December 2, 1987, LCOHS filed a petition for
permanent legal custody and termination of parental rights to
T.M.M., after having located a couple desiring to adopt her.
The court scheduled a hearing on the motion for January 4,
1988. On that date, the father appeared without counsel,
requesting the appointment of counsel. The court denied this
request, ordered the father to hire an attorney within seven
days, and then continued the hearing to January 18, 1988.
The father again appeared without counsel on January 18,
1988, so the court appointed a public defender and continued
the hearing to February 8, 1988, warning that no further
continuances would be qranted.
On January 21, 1988, the father moved for a continuance
of the hearing until after he could be evaluated by a
psychologist with the sexual offender program. Judge
Brownlee denied this motion after a hearing on February 1,
1988. The February 8, 1988 termination hearing proceeded as
scheduled. The District Court issued its findings on March
3, 1988, granting adoptive custody to LCOHS and terminating
the father's parental rights to T.M.M. The father thereafter
filed this appeal.
The first issue raised upon appeal questions the
sufficiency of the evidence to support the District Court's
termination decision. We have held on numerous occasions
that the State must prove by clear and convincing evidence
that all statutory termination criteria have been met before
a court may terminate parental rights. E.g., In re R.B., Jr.
(Mont. 1985), 703 P.2d 846, 42 St.Rep. 1055; In re J.L.R.
(1979), 182 Mont. 100, 594 P.2d 1127. The statutory
requirements relevant to this case which must be fulfilled
prior to termination are found in S 41-3-609 (1)(c) and ( 2 ) ,
MCA . These sections state that a court may terminate
parental rights after adjudicating the youth in need of care
and after finding that:
(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
... [ ; and]
(2) continuation of the parent-child.
legal relationship 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.
The district court is in the best position to judge
whether the State has met its burden of proof and satisfied
all statutory criteria. Consequently, we will presume that
the District Court correctly decided to terminate parental.
rights if substantial credible evidence exists in support of
its decision. In re V.B. (Mont. 1987), 744 P.2d 1248, 1249,
44 St.Rep. 1838, 1840; In re C.A.R. fMont. 19841, 693 P.2d
1214, 1218, 41 St.Rep. 2395, 2398-99.
Neither parent contested Judge Holter's April 30, 1987
adjudication that all the children, including T.M.M., were
youths in need of care. The father similarly does not
contest Judge Brownlee's determination that T.M.M. is a youth
in need of care. The father does, however, challenge the
court's finding that the treatment plan was unsuccessful.
The court approved treatment plan of July 18, 1986, required
the father to seek and complete a minimum of twelve
counseling sessions. The evidence clearly indicates that the
father did not complete such counseling, though apparently he
made a few attempts to obtain counseling. This fact alone
amounts to substantial evidence demonstrating that the
treatment plan was unsuccessful.
The father also challenges the court's determination
that the conduct or condition that rendered him unfit was
unlikely to change within a reasonable time. We find,
however, that substantial credible evidence supports this
finding as well. Betty Miller stated that the father
demonstrated no interest in working with LCOHS. He also
continued to deny all responsibility for any problems,
instead placing the blame upon his children. A change in
conduct or condition within a reasonable time is unlikely
given such a basic unwillingness to cooperate and accept
responsibility.
In addition, Dr. Meyer stated in a letter written May
7, 1986, that five different therapists in the Center had
provided intermittent family counseling over a period of
eight years without any noticeable improvements. For this
reason, the Center denied the father further counseling. As
emphasized by Dr. Meyer:
Neither parent has adequately cared for
their children in the past, and there
appears to be very little possibility
that this situation will change in the
future.
Lee Toner, a psychiatric social worker, stated that "it is
highly unlikely that additional counseling or teaching of
parenting skills or relationship skills will bring about any
change" in him. This long history of unproductive counseling
gives sufficient support to the District Court's
determination that reasonable efforts at rehabilitation were
attempted, but unsuccessfull~r.
The court's determination that reasonable efforts at
rehabilitation were unsuccessful indicates that the court
properly considered the factors mandated in S 41-3-609(2) (a)
through (g), MCA. The court considered other factors which
rendered the father unfit in addition to the failed
rehabilitation efforts. The court specifically found that
the father's sexual conduct toward his daughter and his
failure to obtain counseling prevented him from being fit to
provide T.M.M. with adequate parental care. Finding number 5
states:
The conditions which render . .. [the
father] unfit as a parent are unlikely to
change within a reasonable period of time
as he continues to denv responsihility
for the sexual abuse of his daughter
. .. and has not successfully entered
into counseling for his problems.
This finding satisfies the statutory requirement that a court
make a finding that the parent's conduct or condition renders
him unfit to give a child adequate parental care. We
therefore find the second issue raised upon appeal without
merit.
The third issue raised upon appeal is whether the
District Court erroneously denied the father's motion for a.
continuance of the hearing until he could obtain a
psychological evaluation under the sexual offender program.
A motion to postpone a trial or hearing because of an absence
of evidence can only be made "upon affidavit showing the
materiality of the evidence expected to be obtained and that
due diligence has been used to procure it." Section
25-4-501, MCA. The language of the statute is mandatory.
Consequently, this Court has held that no abuse of discretion
occurs when a court denies a motion for a continuance, for
purposes of obtaining additional evidence, if no such
affidavit is filed in support of the motion. In re the
Marriage of Concepcion (Mont. 1984), 687 P.2d 718, 719, 41
St.Rep. 1675, 1677; State v. Harvey (1979), 184 Mont. 423,
431-32, 603 P.2d 661, 666.
In the instant case, appellant failed to file an
affidavit showing the materiality of another evaluation and
showing that he used due diligence in procuring a sexual
offender psychological evaluation. The District Court thus
did not abuse its discretion when it denied appellant's
motion. Further, appellant failed to show good cause to
support a postponement pursuant to 5 25-4-503, MCA. The
record of numerous previous continuances merely indicates a
pattern of unexcused neglect.
Finding no abuse of discretion in the denial of the
appellant's motion for a continuance until further
psychological evaluation, we hold that any bias as to the
treatability of a sexual offender was harmless. Judge
Brownlee's opinions did not act to deny appellant his
constitutional right to a fair trial.
The judgment of the District Court is aff
\
We concur: /