No. 89-277
IN THE SUPREME COURT OF THE STATE OF MONTANA
1989
IN THE MATTER OF
H.R.B. And K.R.B.,
Youths in Need of Care.
4
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis & Clark,
The Honorable Jeffrey Sherlock, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
J. Mayo Ashley, Helena, Montana
For Respondent:
Hon. Marc Racicot, Attorney General, Helena, Montana
Dorothy McCarter, Asst. Atty. General, Helena
Mike McGrath, County Attorney; Leo Gallagher and
Carolyn Clemens, Deputy Co. Attys., Helena, Montana
Submitted on Briefs: Sept. 27, 1989
Decided: October 17, 1989
d
Filed:
"Clerk
Justice John Conway Harrison delivered the opinion of the
Court.
This is an appeal from a ruling of the First Judicial
District, Lewis and Clark County, terminating the mother's
legal custodial rights to H.R. and K.R.B. and transferring
legal custody of the children to the State. The mother
retained the right to supervised visitation with her
children. We affirm.
Appellant presents a single issue for review: Did the
District Court err in terminating the mother's legal
custodial rights to H.R. and K.R.R. and in transferring legal
custody to the State?
On October 13, 1987, Lewis and Clark County Family
Services personnel removed H.R. and K.R.B. from their
mother's care and placed them at Shodair Hospital for
evaluation. Both children had exhibited symptoms of
emotional disturbance at school. The District Court
subsequently issued an order for temporary investigative
authority and protective services. During the investigative
portion of these proceedings, Family Services discovered at
least 32 referrals of the mother for abuse or neglect to
Human Service agencies in Washington and Oregon. These
agencies had intervened in the family and in 1981 the State
of Washington removed the children from their mother for an
extended time.
The mother has been evaluated by a number of mental
health professionals since 1981 and all concur that the
mother suffers from long-standing emotional problems that
adversely affect her ability to parent. The children were
evaluated at Shodair and both were found to be severely
emotionally disturbed as a result of their mother's extensive
abuse and neglect. Prominent in the children's history are
incidents of sexual and physical abuse by the mother's male
friends and also their uncle. As a result of Shodair's
recommendations, H.R. was placed in a foster home and K.R.B.
was placed at the Deaconess Home where she will remain for at
least two years. Both children will require extensive
therapy.
The District Court adjudicated these children as youths
in need of care on February 23, 1988. A treatment plan was
formulated and approved by the District Court on April 13,
1988. The treatment plan outlined a two phase program, Phase
I of which carried a 180-day timetable. On November 17,
1988, the Lewis and Clark County Attorney petitioned for
permanent custody of the children to be awarded to the State
(Montana Department of Family Services).
The December 28, 1988 permanent custody hearing
transcript reveals that the State held itself to the standard
of proof required to terminate parental rights pursuant to
S 41-3-609, MCA, even though it did not seek termination of
all parental rights. The District Court utilized S 41-3-609
criteria in reaching its decision. In relation to children
adjudged youths in need of care, S 41-3-609, MCA, sets forth
the following criteria for termination of parental rights:
41-3-609 (1)(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.
Because the parents' right to custody is a fundamental
interest, the State must show by clear and convincing
evidence that the statutory criteria have been met. Matter
of J.L.S. (Mont. 1988), 761 P.2d 838, 840, 44 St.Rep. 1842,
1845. Our decisions hold that we will not reverse a district
court's decision regarding findings of fact unless the
findings of fact are not supported by substantial credible
evidence. Matter of A.H. (Mont. 1989), 769 P.2d 1245, 1247,
45 St.Rep. 395, 397.
The District Court found that the mother had not
complied with the treatment plan and that the treatment plan
had not been successful. Further, the District Court found
that the mother's conduct was unlikely to change within a
reasonable time.
Appellant contends that the District Court erred
because the State did not present evidence that she failed to
comply with the treatment plan. As well, appellant argues
that the evidence does not support the conclusion that her
behavior would not change within a reasonable time. We
disagree.
At the hearing, the District Court heard evidence from
the social worker supervising the treatment plan, one of
H.R.B.'s foster parents, the four mental health professionals
involved in the case, and the mother. At best, the testimony
reveals that the mother had partially complied with the
treatment plan. The District Court's findings acknowledge
that some progress had been made toward achieving the
objectives of Phase I of the treatment plan. However,
contrary to appellant's apparent contention, partial
compliance is not the same as the statutory criteria of
compliance set forth in S 41-3-609 (1)(c)(i), MCA. Also,
appellant does not appear to challenge the District Court's
finding that the treatment plan was not successful which is
an alternative choice under $ 41-3-609(1) (c)(i), MCA.
Instances of the mother's noncompliance with the treatment
plan appear in the record as well as instances of compliance.
The record contains no evidence that the mother complied with
the treatment plan in its entirety. Thus, the record
supports the District Court's finding that the mother had not
complied with the treatment plan and that the treatment plan
was unsuccessful.
Appellant next attacks the finding that the mother's
conduct is unlikely to change within a reasonable time, the
second prong of the termination criteria in § 41-3-609(1) (c),
MCA. In support of her argument, appellant cites her
treating therapist's testimony that she could "turn her(se1f)
around" in eight months to a year, a reasonable time she
contends. However, appellant mischaracterizes the
therapist's testimony. Although the therapist did testify
that appellant might be able to change her conduct in eight
to twelve months, the therapist's prognosis was extremely
guarded. He testified that the chances of the mother being
able to take the children back sometime in the future were
"not wonderful."
Also appellant's assertion that eight to twelve months
is a reasonable time ignores the mandate of S 41-3-609 ( 3 ) ,
MCA. That mandate instructs the court to give primary
consideration to the needs of the children when evaluating
whether a parent's conduct is likely to change within a
reasonable time. Thus the inquiry really focuses on the
mental and physical health of the children and the urgency of
their needs. Similar to the child in Matter of D.S.N.
(1986), 222 Mont. 312, 722 P.2d 614, experts in this case
testified that H.R. and K.R.B. need stability and
predictability in their lives now if they are ever to become
emotionally healthy. As with D.S.N., experts testified that
further delay in providing H.R. and K.R.B. with that
stability and predictability would be highly detrimental to
them. The testimony regarding the immediacy of the
children's needs and the extremely guarded prognosis
regarding the likelihood that the mother's conduct will
change provided substantial credible evidence for the
District Court's decision.
In summary, the District Court found that the State met
its burden of proof under § 41-3-609(1)(c), MCA. Substantial
credible evidence in the record supports that decision.
Thus, the District Court's decision to transfer legal custody
to the State was not an abuse of discretion.
We affirm the District Court.
We concur: ./