No. 88-052
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988
IN RE THE MATTER OF:
J.W. AND J.C., Youths
in Need of Care,
APPEAL FROM: District Court of the First Judicial District
In and for the County of Lewis and Clark
The Honorable Henry Loble, Judge presiding
COUNSEL OF RECORD:
For Appellant:
Edmund F. Sheehy, Jr.; Cannon and Sheehy, Helena, MT
For Respondent:
Honorable Mike Greely, Attorney General, Helena, MT
Paul D. Johnson, Assistant Attorney General
Nicholas Jacques, Helena, MT
Mike McGrath, County Attorney, Helena, MT
Carolyn Clemens, Deputy County Attorney
Submitted on Briefs: April 21, 1988
Decided: M ~ Y 1 1988
9
Filed: YAY 9 - 1988'
- .-
Clerk
Mr. Justice John C. Harrison delivered the Opinion of the
Court.
This is an appeal from the First Judicial District,
Lewis and Clark County, State of Montana, the Honorable Henry
Loble presiding. The appeal is from an action which arose
when the Lewis and Clerk County Office of Human Services
(Office of Human Services) received referrals in December
1 9 8 4 and February 1 9 8 5 concerning J.C. and J.W., the natural
children of B.W. (hereinafter referred to as mother). After
mother was hospitalized for psychiatric care in May of 1985,
a petition was filed on behalf of the Office of Human
Services requesting temporary investigative authority and
protective services for the children. That petition was
granted on May 10, 1985. After receiving further referrals
in the fall of 1985, the Office of Human Services petitioned
for further temporary investigative authority and the right
to place the children in foster care. That petition was
granted on June 20, 1986, the District Court thereafter
entered an order declaring J.C. and J . W . to be youths in need
of care.
Following a dispositional hearing the District Court
issued its order granting the continued temporary care of the
children with the Department of Social and Rehabilitation
Services (SRS) and in particular recommending that J. C.
remain with his natural father in Arizona and J.W. remain in
foster care. In the disposition order the court endorsed the
treatment plan submitted by the Office of Human Services. On
August 26, 1986, the mother appealed, challenging the
District Court's order adjudicating J.C. and J . W . to be
youths in need of care. This Court affirmed the District
Court in May, 1987, see In the Matter of J . W . & J.C. (Mont.
1987), 736 P.2d 960, 44 St.Rep. 843.
In January 1987 the mother was involuntarily committed
to Warm Springs State Hospital after attempting to commit
suicide by shooting herself in the chest. During that
commitment period her third child, R.W., was born. On May
27, 1987 R.W. was placed with the same foster family that is
caring for J.W., her half-brother. A petition for temporary
custody and temporary investigative authority regarding R.W.
was filed on May 28, 1987. That petition is not a subject of
this appeal. On June 18, 1987, the State filed a petition to
terminate the mother's parental rights with respect to J.W.
and J.C. The mother was released from Warm Springs State
Hospital in early July 1987. On July 23, 1987, the District
Court heard the petition for termination of the mother's
parental rights and on October 13, 1987 terminated her rights
with respect to J.W. That order awarded permanent custody of
J.C. to his natural father. The mother now appeals. We
affirm.
The issues before the Court are:
1. Did the District Court err when it concluded that
the mother's condition rendered her unfit and was unlikely to
change within a reasonable time?
2. Did the District Court err when it granted custody,
care and control of J.C. to his natural father pursuant to
the February 11, 1987, custody order issued by an Arizona
Superior Court?
After the mother's release from Warm Springs State
Hospital, various mental health authorities testified that
her mental condition required termination of her parental
rights with J.C. and J.W. Dr. Virginia Hill, a psychiatrist
at Warm Springs State Hospital, said the mother suffers from
chronic undifferentiated schizophrenia, an illness in which
the subject does not realize how ill she is. Because the
patients do not appreciate the extent of their illness they
tend not to comply with treatment plans. Staff at Warm
Springs State Hospital were not able to administer medication
to mother until after R.W. was born, Dr. Hill said, but once
medication began the mother began to improve immediately.
Dr. Hill testified that unless the mother abides by terms of
the psychiatric plan prescribed for her, she would not be a
proper parent.
When the mother was released from Warm Springs State
Hospital, her psychiatric plan included her return to Helena
under the guidance of the Offices of Human Services. This
plan also would have allowed her weekly supervised visits
with J.W. The mother has not adhered to this treatment plan;
instead she went to Butte. She has filed for welfare and has
been unable to make most of her visits with J.W. because she
lacked transportation. On the occasions that the mother
appeared for the visit, J.W. displayed no interest in the
mother.
J.W. has been placed in a foster home now for about two
years. This family considers him a part of the family and
would adopt him if allowed to. Margaret Stuart, director of
the Social Work Program at Carroll College, testified at the
termination hearing that primary considerations include the
child's age, his development level, and his home environment.
She said that changing the home environment of a pre-school
child such as J.W. is particularly touchy since this is a
crucial stage of the child's development. The longer such a
child is in one setting, the more traumatic it is to remove
him from it. If the child is moved often enough he loses the
ability to bond with parent figures and Ms. Stuart said a
third placement is a "watershed" mark; any placement after
that increases markedly the risk that the child will not be
able to bond with parent figures. J.W. is currently in his
third placement.
J.C., the older boy, has lived continuously with his
father since November 1985, even though custody of J.C. was
granted to the mother when the parents divorced in 1978. The
father testified at the termination hearing that he has
accepted the custody of J.C. on several occasions when the
mother was disabled by her mental condition. J.C.'s father
has remarried, and has purchased a home and the father and
his new wife have space in their home for J.C. and have
integrated him into their home. J.C. does well in school and
participates in extra-curricular activities. He wrote a
letter to the District Court in which he expressed a desire
to remain with his father and stepmother.
On February 11, 1987, the father obtained an order from
an Arizona Superior Court modifying the decree of dissolution
so as to place permanent custody of J.C. with the father,
subject to any order arising from the Montana proceedings.
The mother did not appear for the Arizona proceedings and did
not object to awarding custody of J.C. to the father since
the father had assured her that she would always be able to
see J.C. and enjoy visitation privileges.
Mother contends that the District Court abused its
discretion when it terminated her parental rights since the
court's findings do not comply with 55 41-3-607 and 41-3-609,
MCA. Under 5 41-3-609, MCA, which establishes the criteria
for terminating parental rights, mother says only one
criterion applies. That is subsection (1) (c), which allows
the court to terminate parental rights - the child has been
if
adjudicated a youth in need of care - the parent has
and
disregarded an appropriate treatment plan or such plan has
failed, - the parent's condition rendering her unfit is
and
unlikely to change in a reasonable amount of time. She then
cites findings by the court that her schizophrenic condition
"will likely endure throughout [her] life, but can be
controlled by the use of medication" and that "without such
medication she will be incapable of parenting her children."
The court ultimately concluded:
[The mother's] mental illness is a chronic
condition and because of her inability to follow
through, the conduct that renders her unfit as a
mother is not likely to change within a reasonable
amount of time.
On review of a District Court's decision terminating a
person's parental rights, the District Court is presumed to
be correct. In Re the Matter of M.L.H. (Mont. 1986), 715
P.2d 32, 35, 43 St.Rep. 375, 379; In the Matter of J.L.F.
(Mont. 1981), 626 P.2d 253, 255, 38 St.Rep. 533, 535. The
findings of the District Court are not to be overturned
"unless there is a mistake of law or a finding of fact not
supported by credible evidence that would amount to a clear
abuse of discretion." In Re the Matter of C.A.R. (~ont.
1984), 693 P.2d 1214, 1218, 41 St.Rep. 2395, 2399, citing In
Re Gore (1977), 174 Mont. 321, 570 P.2d 1110. Because a
termination of parental rights case is a non-jury matter, the
District Court is held responsible for determining the
credibility of witnesses and weighing the witnesses'
testimony. In Re the Matter of R.M.B. (Mont. 1984), 689 P.2d
281, 284, 41 St.Rep. 1925, 1928.
The findings quoted from above plus the conclusion
quoted above represent substantial credible evidence
supporting the District Court. We find there is ample
evidence in the record to support the court's findings and
its conclusion. The mother argues that the conclusion of the
District Court is inconsistent with the court's findings
since the prospect of further treatment should entitle her to
an opportunity to regain custody of J.W. She notes previous
cases where this Court has stated that "family unity should
be preserved whenever possible." See, Matter of C.A.R, 693
P.2d 1214, 1221, In Re the Matter of M.R.L. (1980), 186 Mont.
468, 472, 608 P.2d 134, 137. This Court, though, has never
placed family unity over the welfare of an abused or
neglected child:
[Wlhen the rights of the youth to an adequate
physical and emotional environment encounter
demonstrated acts of commission or omission by the
parents which deprive the youth of this
environment, the best interest of the youth is
paramount and takes precedence over parental rights
or familiar bonds.
Matter of C.A.R., 693 P.2d at 1219. See also In the Matter
of M.N. (1982), 199 Mont. 407, 410, 649 P.2d 749, 751. The
viability of the "best interest" rule is underscored by
§ 41-3-609 (3), MCA, which orders the District Court to give
"primary consideration" to the needs of the child in
determining whether the conduct or condition of the parents
is unlikely to change within a reasonable time.
This Court has repeatedly directed District Courts to
consider the "totality of the circumstances" when assessing
In re Gore, 570 P.2d at 1114.
the best interests of a child. - - -
After reviewing the facts of this case, it is readily
apparent that the District Court order terminating the
mother's parental rights to J.W. is in the infant's best
interests.
We have difficulty following the mother's arguments
that the District Court erred by terminating her parental
rights to J.C. since the Arizona court already had amended
its original divorce decree so as to give custody to the
father. Neither did the District Court terminate all
parental rights, holding merely that custody of J.C. "is
placed with his natural father .. . subject to visitation as
agreed to by [the father]." The wording of these two orders,
one by the Montana District Court and the other by the
Arizona court, both made allowance for the decision of the
other. They represent a delicate balancing of all the
factors relevant to child custody proceedings. We will not
disturb this balance.
The findings, conclusions, and judgment of the District
Court are affirmed.
Justlces