NO. 88-94
I N THE SUPREME COURT O THE STATE O M N A A
F F O T N
1988
I N THE MATTER OF
J . L . S a n d A.D.S,
Y o u t h s i n Need o f Care.
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 District,
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 R e n n e t t , J u d g e p r e s i d i n g .
COUNSEL OF RECORD:
F o r Appel l a n t :
Edmund S h e e h y , J r . , H e l e n a , Montana
J. Mayo A s h l e 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
George Schunk, A s s t . A t t y . G e n e r a l , Helena
Mike McGrath, C o u n t y A t t o r n e y , H e l e n a , Montana
S u b m i t t e d on B r i e f s : Aug. 11, 1 9 8 8
Decided: September 2 8 , 1988
4%
Clerk
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.
The parents of J.L.S. and A.D.S. appeal from a judgment
of the First Judicial District, Lewis and Clark County,
terminating parental rights to the two children. The
District Court awarded the Montana Department of Social and
Rehabilitative Services custody of the two children, with
authority to assent to adoption. We affirm.
The sole issue raised on appeal is whether the District
Court failed to follow the dictates of S 41-3-609, MCA, prior
to terminating parental rights to J.L.S. and A.D.S. More
specifically:
1. Did the District Court err in holding that the
parents failed to comply with a court authorized treatment
plan?
2. Did the District Court err in holding that the
parents conduct was unlikely to change within a reasonable
time?
J.L.S. and A.D.S. are the oldest two of four children
born to A.S. (the father) and B.G. (the mother), a couple who
have lived together since 1980. At the time of termination
of parental rights, J.L.S. was five years of age and A.D.S.
four.
The events culminating in the District Court's
termination of parental rights to J.L.S. and A.D.S. began on
February 25, 1986. On that day, A.S. was arrested for
domestic violence and B.G. was hospitalized as a result of
this abuse. Both parents had been drinking at the time of
this incident.
The children were left in the care of neighbors w h ro
later called the Lewis and Clark County Office of Human
Services (LCCOHS). Prior to placing the children under
temporary foscer care, a social worker wich LCCOHS observed
numerous bruises on A.D. S. A pecicion for remporary
invesrigacive auchoriry and proreceive services subsequenrly
was filed and granred on February 28, 1986.
Psychological evaluations of rhe parencs and che
children were conducced in March of 1986. Clinical
psychologisr Dean Gregg, Ph.D., diagnosed boch parencs as
having a mixed personalicy disorder. Psychologist Revel
Miller, Ph.D., noced char borh parencs admicced eo che
rourine consumprion of a case of beer or more each nighr, yec
chey denied any problems wich alcohol or with child abuse.
Clinical psychologist Mary Chronisrer, Ph.D., diagnosed
J.L.S. as suffering from major depression, recurrenr, wirh
melancholia. Furrher, she nored char J.L.S. appeared sad and
fearful and char rhe child's cognicive, psychomoror and
social skills were all below normal. A.D.S. was diagnosed as
having an acrencion deficic disorder wich hyperacriviry.
These psychological evaluarions were introduced inro
evidence during hearings conduceed on April 15, 17, and 28,
1986. Following che hearings, the Disrricr Courc granred
continuing remporary invesrigarive aurhoriry EO che Scare and
denied rhe parencs' peririon for rerurn of cuscody of rhe cwo
children. The Disrricr Court adjudicared J.L.S. and A.D.S.
youchs in need of care and ordered che Departmenr of Social
and Rehabilitarive Services (SRS) rhrough J;CCOEIS co rerain
temporary cusrody of the cwo children. The courc rhen
ordered respondenr ro develop a rrearmenr plan, which was
approved and adopred by rhe courc ac a dispositional hearing
on May 15, 1986.
This inirial rrearmenr plan required rhe parenrs ro
abscain from che use of all alcohol and ocher chemicals, and
ro parcicipare in various rypes of counseling wirh Dr.
Molineux, che super~rising rherapisc. Borh Twila Coscigan,
che primary social worker assigned co the case, and Dr.
Molineux cescified chat chis firsc creacmene plan was noc
successful because of che parencs' general unwillingness -co
follow che creacmenc plan. Alchough inceraceion wich che
children improved some, che faeher remained particularly
hoscile and uncooperacive coward counseling efforcs.
Addieionally, boch parencs concinued to deny che existence of
any problems. Two neighbors also cescified char chey had
witnessed che father drinking beer in lace August and again
in Occober of 1986. Jim Hagen, a caxi cab driver, cescified
chac he occasionally delivered beer co che home during che
fall of 1986. Neicher parry concescs che failure of chis
firsc creacmenc plan.
On November 13, 1986, upon pecicion of che Scare, che
courc ordered a concinuacion of che creacmenc plan and
excended LCCOHS' temporary cuscody of the cwo children uncil
hearing of che maccer on December 18, 1986. Ac che December
hearing, respondenc introduced cescimony derailing che greac
improvemencs nociced in che children's cognitive, emocional,
social and psychological welfare during che pasc eighc monchs
of foscer care. Based upon chis face and evidence of che
parencs' failure co abide by che creacmenc plan as initially
formulated, che courc concinued che placement of the cwo
children in foscer homes and designaced Dr. Revel Miller,
Ph.D., che new supervising cherapisc wich auchoricy co modify
che firsc creacmenc plan as he determined appropriate.
In January and February of 1987, Dr. Miller scheduled
several meecings wich che parenes and cheir accorneys ro
explain che cerms of che ereacmenc plan as modified. A.S.
failed co show up for che scheduled meecing on chree
different occasions. B.G. failed co aceend che firsc
scheduled meecing. She did, however, keep che second
scheduled meecing, hue she refused co sign the new creacmenc
plan wichouc A. S. A.S. finally mec wich Dr. Miller on
February 10, 1987, but A.S. became very angry and hoscile
afcer an explanacion of only cwo poincs of che plan.
Consequenely, he lefc wichouc signing che plan, scaring as he
lefc char he was noc going co cooperate wich che plan.
Upon requesc by che parencs, a hearing was held on
March 12, 1987 co discuss che new creacmenc plan as modified
by Dr. Miller. Ac chis hearing, che courc requesced char che
Lewis and Clark Councy Accorney eicher dismiss che case or
file a pecicion for cerminacion. The Councy subsequenely
filed a pecicion for cerminacion on March 25, 1987 and a
hearing on che maccer was held on May 21 and 22, 1987.
New evidence relacing co che maccer came co light
following che May, 1987 hearing. Consequently, two
additional hearings were held on Augusc 14 and Occober 29,
1987, ac which rime che Councy introduced chis new evidence.
Marylis Filipovich, a social worker wich LCCOHS, cescified
char A.S. had knocked on her door looking for che previous
cenanc ac 6 : 3 0 a.m. on July 25, 1987. He had a beer in hand
and his breach smelled of alcohol. Furcher, a barmaid
cescified chac A.S. and B.G. were regular cuscomers ac che
Ichabod bar in Augusc and Sepcernber of 1987. She cescified
char A.S. was permanently chrown our of che bar because of
his loud and obnoxious behavior when drinking. In Sepeember
of 1987, B.C. remained drinking in che bar all evening and
chen laxer became involved in a fighc oucside in che parking
lor. Lascly, on Occober 24, 1987, A.S. was arresced for
Criminal Trespass and che processing jailor cescified char he
was very incoxicaced ac che rime of chis arresE.
The Disericc Courc subsequencly held char che parencs
had failed co comply wich any cerminacion plan, char che
conduce or condieion of che parenes rendered chem unfit: co
give J.L.S. and A.D.S. adequace care, and char rhe parencs
conduce was unlikely co change wirhin a reasonable rime.
Having determined char rhe besc ineeresrs of che cwo children
would be best served by permanene placement in a foscer home,
the courc cerminared che parenral righrs on November 12,
1987. This appeal followed.
The issue on appeal is whecher che Discricr Courr
failed ro follow che dicrares of S 41-3-609, MCA, prior ro
cerminacing rhe parencal rights co J.L.S. and A.D.S.
The Stare may incercede on behalf of a child and file a
pecicion for cerminacion of parenral rights "when ir is
apparenc char rhe nacural parenc is failing, and is likely co
conrinue to fail ro provide che children wich a minimally
adequare life." In re C.A.R. (Monc. 1984), 693 P.2d 1214,
1221, 41 Sc.Rep. 2395, 2402; see also S 41-3-602, MCA. The
righc of rhe nacural parencs co care and cuscody of rheir
children, however, is a fundamenral liberry inceresc. In re
R.B., Jr. (Monc. 1985), 703 P.2d 846, 848, 42 Sr.Rep. 1055,
1058 (cicing Sancosky v. Kramer (1982), 455 U.S. 745, 102
S.Cc. 1388, 71 L.Ed.2d 599). Consequenely, che Scare has che
burden of proving by clear and convincing evidence rhac all
scacucory cerminacion criceria have been rnec. In re J.L.R.
(1979), 182 Monc. 100, 117, 594 P.2d 1127, 1136.
The primary duty of deciding wherher the Scace has mec
chis burden of proof, and whether cuscody and parenral righrs
should be cerminaced, lies wich che Discricr Courc. On
appeal, "all reasonable presumptions as co rhe correccness of
che dererminarion by rhe disrricr courc will be made."
In re C.A.R., 693 P.2d ac 1218 (cicing Foss v. Leifer (1976),
170 Monc. 97, 550 P.2d 1309). Therefore, we will nor discurb
a decision of rhe Discricc Courr unless a mistake of law
exisrs or the facrual findings are nor supporced by
subscaneial credible evidence. In re V.R. (Monr. 1987), 744
P.2d 1248, 1249, 44 Sr.Rep. 1838, 1840; In re M.D.Y.R.
(1978), 177 Monc. 521, 534, 582 P.2d 758, 766 (cicing Solie
v. Solie (1977), 172 Monc. 132, 561 P.2d 443).
The seccion of che scarure relevanr co chis rerminarion
case is S 41-3-609(1) (c), MCA, which sraces:
(1) The courc may order a cerminacion of
che parenc-child legal relarionship upon
a finding char . . .
(c) che child is an adjudicared yourh in
need of care and boch of the following
exisc:
(i) an appropriare rrearmenc plan char
has been approved by rhe courc has nor
been complied wirh by che parenrs or has
nor been successful; and
(ii) che conducr or condieion of che
parencs rendering rhem unfic is unlikely
co change wichin a reasonable rime.
EJeirher parry conresrs rhe Discrice Courc's decerminacion
rhac J.L.S. and A.D.S. are yourhs in need of care.
Appellancs do concend, however, char a creacmenc plan was nor
in effecc ac che rime of rerminarion and rhac che courc's
cerminacion was an abuse of discrerion.
Appellancs' firsc concencion is wichouc merir. The
sraruce requires only rhac rhe parencs fail co comply wirh
- appropriate rrearmenr plan. Borh Dr. Molineux and Twila
an
Cosrigan indicated chac che firsr creacmenr plan approved by
che Discricc Courc on May 15, 1986, failed due ro rhe
parenrs' lack of cooperacion wirh counseling efforcs.
Addieionally, rescimony was inrroduced which recounred
various cimes when che parencs were observed purchasing
and/or drinking alcohol in che fall of 1986 in violarion of
che approved rrearmenr plan. Subscanrial credible evidence
exisrs supporting a decerminacion thac che parenrs failed to
comply wirh the inirial courr-approved rrearmenr plan, and ir
is chus irrelevant whether or nor che new creacmenc plan, as
modified by Dr. Miller, was in face auehorized and in effecc
prior ro cerminacion proceedings.
Appellants also concend char che Discricc Courc's
conclusion char che parenes conduce was unlikely co change
wichin a reasonable eime was noc supporced by subscancial
credible evidence. Seccion 41-3-609(2), MCA, scaces chae in
determining wheeher che conduce or condicion of che parenes
is unlikely co change wichin a reasonable eime, che courc
musc find:
[Tlhac concinuacion of che parenc-child
legal relationship will likely resulc in
continued abuse or neglecc or chae che
conduce or che condicion of che parencs
renders che parenes unfic, unable, or
unwilling co give the child adequace
parencal care.
The courc musc consider che seven crieeria ourlined in
S 41-3-609(2) (a) chrough (g), MCA, when making such a
decerminacion. The Discrice Courc's conclusions of law
clearly indicace char the courc carefully considered each of
these seven faccors.
The courc found chae ac lease four of che lisced
criceria applied co A.S. and cwo applied co B.G. Subscancial
credible evidence exiscs in supporc of chese findings.
Firsc, che evidence shows chae A.S. had a hisrory of violent
behavior; he was previously arresced for physically abusing
his wife, and numerous bruises found on A.D. S. indicace she
was abused as well. Second, cescimony by numerous people
indicated char boch parencs routinely drank alcoholic
beverages to excess, char chey became aggressive and violent
under che influence of alcohol, and chac chey were generally
unable co properly care for rheir children during rimes of
such excess. Third, a physical examinacion of A.D.S.
revealed numerous bruises on her neck, arm, back, buccocks
and legs which poinc co physical abuse. Fourch, che
cescimony of Twila Coscigan and Dr. Molineux indicates chac
counseling efforcs under che inicial plan were unsuccessful
because of a general hoscile and uncooperarive acticude, mose
nocably by che farher, during counseling sessions. Dr.
Miller also cescified of his repeaced efforcs in January and
February of 1987 co meec with che parenrs to explain the
modified creacmenc plan. The last such accempc ended wich a
scacemenc by A.S. char he would noc cooperace wirh ehe plan.
Given all che above evidence, we hold chac che Discrice Courr
did noc err in holding chac the conduce and condieion of che
parencs rendered chem unfic co provide adequare parencal care
and chac such conduce was unlikely to change in a reasonable
rime.
Prior to ordering cerminacion of parencal righrs LO
J.L.S. and A.D.S., che courc also considered rhe bese
incerescs of che rwo children. This consideraeion is in
accord wich rhe scacucory mandace of 5 41-3-609 ( 3 ) , MCA,
which scares:
In considering any of che faccors in
subsection (2) in cerminacing che
parenc-child relarionship, che courc
shall give primary consideracion to the
physical, men~al, and emorional
condicions and needs of che child. The
court shall review and, if necessary,
order an evaluation of the child's or che
parenc's physical, mencal, and emorional
condicions.
Furcher, chis Courc has previously scared char when parencs
cornrnir aces which deprive a child of an adequace physical and
emocional environment, che bese inceresc of che child becomes
paramount over parenral righrs. In re C.A.R., 693 P.2d ac
1219 (citing In Re Bad Yellow Hair (1973), 162 Mont. 107, 509
Testimony was given that the children had made a lot of
progress cognitively, emotionally, and mentally while in
foster care. Further, Dr. Miller stated that, in a1.l
likelihood, both children would regress to their previous
behavioral patterns if returned home. Dr. Guggenheim
similarly stated in regards to J . L . S that:
continued placement in a consistent and
supportive home environment would seem
extremely important . . . in a child who
already has a tendency for passive/
aggressive and manipulative adaptations
to stress ...
Given all the above evidence, we hold that substantial
credible evidence exists supporting the District Court's
decision to terminate parental rights to J.L.S. and A.D.S.
Finding no abuse of discretion, we affirm the District
Court's decision.
ief Justice