No. 89-531
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990
IN RE THE MATTER OF DECLARING
B.H.M., C.M.M. and J.T.H.,
Youths in Need of Care.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Leif Erickson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Chris P. Christensen, Kalispell, Montana
Paulette C. Ferguson, Missoula, Montana, (Attorney
for Maternal Grandmother)
t-
m c
z
3 For Respondent:
c'd .
.. 0
-
4
PI
.:.
I
<-'
I ~ i l Ted 0 Lympus, County Attorney, Randy K. Schwickert,
.
€ L - . ; 1 Deputy County Attorney, Kalispell, Montana; Marc
a CZ Racicot, Attorney General, Elizabeth L. Griffing,
-
W
-
L
1
rn
cU -.-: , )
I
.
Assistant Attorney General, Helena, Montana
Robert B. Allison, Kalispell, Montana (Attorney for
C-
-
LlI :
Youths)
0 7<:
"I-
Submitted: July 13, 1990
Decided : October 25, 1990
Filed: 1
~usticeWilliam E. Hunt, Sr., delivered the opinion of the Court.
Appellant Doreen Karen Howard appeals from the order of the
~istrictCourt, Eleventh ~udicial District, County of Flathead,
which terminated her parental rights to BHM, CMM, and JTH, who had
previously been designated youths in need of care. We affirm.
The issues presented on appeal are:
1. Whether the District Court followed proper procedural
steps in terminating the parental rights of the appellant.
2. Whether the ~istrictCourt erred in considering the Itbest
interests of the childn test in terminating the parental rights of
appellant.
3. Whether there was sufficient evidence presented to support
the ~istrictCourt's order.
BHM, born on August 26, 1982, and CMM, born on September 17,
1983, are children of appellant and Dan Moe, deceased. JTH, born
on July 1, 1985, is the child of appellant and Mark Rickman.
Dan Moe was murdered on July 31, 1985. Mark Rickman pled
guilty to this murder on March 21, 1986. Rickman was sentenced to
35 years in prison.
At the March 21 hearing, Rickman testified that appellant and
appellant's mother, Opal Howard, had assisted in the homicide. As
a result, appellant was arrested on March 19, 1986, and
subsequently pled guilty to obstructing justice by helping Rickman
dispose of Dan Moels body. Appellant was sentenced to ten years
in prison.
2
After appellant was arrested for her participation in the
murder and incarcerated in Flathead County, a petition for
Temporary Investigative Authority (TIA) was filed with the District
Court seeking protective services for her three children. The
supporting affidavit stated that both appellant and the natural
father of JTH were currently incarcerated and the natural father
of BHM and CMM was deceased. The "court granted the TIA on March
21, 1986. As a result, the children were removed from their home
and placed in foster care with non-relatives.
On April 4, 1986, Opal Howard moved to dismiss and vacate the
order granting the TIA. An adjudicatory hearing was held on April
9, 1986. At this hearing, Shawn Trontel, a psychiatric social
worker, testified that BHM, who was three and one-half years old,
showed behavior more appropriate to a two-year-old. His speech was
basically unintelligible. He was withdrawn and fearful. He was
not toilet-trained and showed fears of toilet training. He was
unable to form attachments to other persons and was unable to
follow simple directions. CMM was not toilet-trained and lacked
skills associated with a child of her age. The children were
unable to feed themselves with utensils and drank from I1tippyl1
cups.
Mark Rickman testified at this hearing concerning the
involvement appellant and her mother, Opal, had in the murder of
Dan Moe. He testified that the murder was planned to prevent the
children from having contact with their father and his family.
Further, he testified that his participation in the murder was
compelled by threats from Opal and appellant that he would lose
contact with his son, JTH. Neither appellant nor Opal refuted this
testimony. The court denied the motion to dismiss and the children
were initially adjudicated youths in need of care. The involvement
of their mother in the murder of Dan Moe had a detrimental impact
on the children's mental and physical health.
As part of the court's order, all of the potential caregivers
underwent psychological evaluations and submitted to home studies.
After reviewing these evaluations and home studies, the Flathead
County Department of Public Welfare (Department) attempted to
transfer the placement of BHM and CMM to Pat and Karen Moe, the
children's paternal aunt and uncle, and the placement of JTH to
Duane and Karen Wock, the maternal aunt and uncle. The Department
justified this request based upon the positive feelings that the
children, BHM and CMM, had for Pat and Karen, and the idea that the
longer the children stayed in foster care, the more difficult it
would be if an eventual break occurred.
Appellant obtained a temporary restraining order to prevent
the transfers because the Department had failed to first contact
appellant. Opal Howard filed a formal notice withdrawing herself
from consideration as an alternate caretaker for the children.
This notice was based upon her objection to the general release of
her psychological evaluation.
A hearing was held in November, 1986, to determine whether a
permanent injunction should issue preventing the transfer of the
children. At this hearing, the court heard substantial evidence
regarding BHM and CMM1s improvement after a two-week visit with
their aunt and uncle, Pat and Karen Moe. Their preschool teacher
testified that after the visit they seemed like new children. Two
social workers who had had contact with the children recommended
that they be placed with family members.
On November 21, 1986, the court found that it was in the best
interests of BHM and CMM to be placed with Pat and Karen Moe, and
for JTH to be placed with Duane and Theresa Wock. The court
recognized the animosity between the Howards and the Moes, and
ordered that Pat Moe obtain counseling and admonished the Moes not
to make any deprecatory statements about the children's mother.
The court also ordered that the placements be regularly monitored.
In a report dated February 10, 1987, social worker Donna
Taylor noted that BHM and CMM were doing well in the Moes care but
that JTH should be removed from his placement at the request of the
Wocks. Upon motion by the State, the court ordered that JTH be
placed in the home of his maternal aunt and uncle, Dan and Eileen
Howard.
In November, 1988, the Department filed a petition for
permanent custody and authority to consent to adoption with the
court. On February 1, 1989, Opal Howard moved to intervene and
filed a petition for custody of the children. On February 17,
1989, Mark Rickman filed notice that he would not contest the
termination of his parental rights.
A hearing was conducted on February 21-24 and May 16-17, 1989.
At the hearing, at least six professionals testified as to the
fragile emotional condition of the oldest child, BHM; the
children's improvement after being placed in foster care; and
appellant's incapacity to care for dependent children on a long
term basis.
Based upon the evidence presented at the hearing, the District
Court concluded that the children had been abused and neglected,
and were youths in need of care. The court further concluded that
the parental rights of appellant should be terminated because her
conduct and condition were unlikely to change within a reasonable
time. Finally , the court concluded that the best interests of the
children would be served by termination of the parental rights; and
by an award of permanent legal custody to the Department with
authority to consent to adoption of the children.
The first issue is whether the District Court followed proper
procedure in terminating the parental rights of the appellant
Two procedures culminated in the District Court's finding that
appellant's parental rights should be terminated. The first one
was the District Court's grant of temporary investigative authority
(TIA) and protective services pursuant to a Department petition,
governed by 5 5 41-3-401 through 409, MCA. The second was the final
termination of rights, governed by 5 8 41-3-601 through 612, MCA.
The primary issue before this Court is whether the District
Court acted arbitrarily in terminating the mother's parental rights
permanently, not whether the District Court acted improperly in
accepting the recommendation of the Department for temporary
authority. ~ssuming, nevertheless, that Doreen Howard may
challenge the Department's grounds for the TIA and the temporary
transfer of the children from foster care to the Moe home, a review
of the record shows that the District Court adhered to the proper
statutory procedures.
The Department was well within its bounds when it filed a
petition for temporary custody. Section 41-3-402(1), MCA, states:
In cases where it appears that a youth is abused or
neglected or is in danger of being abused or neglected,
the county attorney, attorney general, or an attorney
hired by the county welfare department or office of human
services may file a petition for temporary investigative
authority and protective services.
The District Court received a petition for temporary investigative
authority and protective services filed pursuant to 5 5 41-3-401
(10) and 41-3-402, MCA. The court issued an order pursuant to 5
41-3-403, MCA, which expressly allows the court to grant such
relief as may be required for the immediate protection of the
youth. The mother and grandmother then moved to vacate the order
and dismiss the petition. A hearing was held on April 19, 1986,
to decide on the motion. From the evidence as set forth in the
record, the District Court found probable cause to support the TIA
petition.
Appellant contends that the grant of the TIA and the
subsequent transfer of the children from neutral foster care to the
Moe home was based only on the absence of the parents; she
maintains that abuse or neglect within the mandate of the statute
was never alleged. However, the statute provides that danser of
abuse or neglect is adequate grounds for issuing a TIA. It is
certainly within the contemplation of an agency or judicial body
that the violent death of one parent and the incarceration of
another could place children in danger of psychological and
emotional trauma. That the children's mother was alleged to have
participated in perpetrating this trauma rises to the level of at
least neglect, if not abuse. The District Court found, after
subsequent psychological testing, that at least one of the children
exhibited distress and fear at the thought of going back to live
with his grandmother.
The findings of a district court on abuse and neglect
generally will not be disturbed 'lunlessa mistake of law exists or
the factual findings are not supported by substantial evidence."
In the Matter of J.L.S. and A.D.S., Youths in Need of Care, 234
Mont. 201, 206, 761 P.2d 838, 841 (1988). The term "neglectI1
includes emotional deprivation. Matter of JLB, 182 Mont. 100, 114,
594 P.2d 1127, 1135 (1979). The mother's complicity in the
homicide, coupled with the results of the psychological testing,
could prompt a condition of emotional deprivation. Clearly the
~istrictCourt was within its discretion in granting the state
temporary investigative authority. ~avingdetermined that the TIA
was properly granted, we now turn to the issue of permanent
termination.
The proper procedure for permanent termination is outlined in
3 41-3-609, MCA, which states in part:
(1) The court may order a termination of the parent-child
legal relationship upon a finding that the circumstances
contained in subsection (1)(a), (1)(b), or (1)(c), as follows,
exist :
... (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.
The ~istrictCourt properly found, first, that the children were
"youth in need of carew as defined in 5 41-3-603(2), MCA. IvYouth
in need of carew means a youth who is dependent, abused, or
neglected as defined in 5 41-3-102( 2 ) . Section 41-3-102 ( 2 ) , MCA
states:
"Abused or neglected child1'means a child whose normal
physical or mental health or welfare is harmed or
threatened with harm by the acts or omissions of his
parent or other person responsible for his welfare.
Substantial evidence was presented regarding the children's abuse
or neglect at both the TIA proceeding and the 1989 permanent
custody hearings. They were thus adjudicated ''youth in need of
carevvas the first criterion of f, 41-3-609, MCA, requires. The
final two criteria that must be met under 9 41-3-609, MCA, are:
1) that a treatment plan has not been successful and 2) that the
condition of the parent(s) is not likely to change within a
reasonable amount
of time.
Appellant argues that under f, 41-3-609 (1)(c)(i), MCA, an
"appropriate treatment plan" was never authorized by the court; the
only plan attempted was one by which to evaluate appellant's
probable success with a treatment plan, and to then propose an
appropriate plan. She states that her due process rights were
violated because a complete treatment plan was never attempted.
Although the District Court did approve a preliminary
"treatment planN for appellant in order to determine her chances
of success in thorough treatment, it was not required to do so.
Subsection (4) of 41-3-609, MCA, reads:
A treatment plan is not required under this part upon a
finding by the court following hearing if: (b) the
parent is incarcerated for more than 1 year and such
treatment plan is not practical considering the
incarceration ...
While it is unclear from the District Court's findings whether it
was proceeding under 5 41-3-609 (1)(c)(9), MCA requiring proof of
an unsuccessful treatment plan, or under 5 41-3-609(4), MCA, not
requiring any plan at all, we conclude that there is sufficient
evidence in the record to justify the District Court's decision to
terminate. A lengthy hearing was held in February of 1989, and
continued in May of 1989, in which the practicality of a treatment
plan was discussed, as well as the benefit to the children of
permanent alternate placement. Appellant was given an opportunity
to testify at this hearing. In spite of her testimony, the
District Court found that a treatment plan would not be practical
because of the mother's deficiencies and the length of her prison
sentence. Appellant's argument that the court did not comply with
the requirements of 5 41-3-609 (1), MCA (requiring the treatment
plan) is without merit. In meeting the requirements of 5 41-3-
609(4) (the exception to the treatment plan rule), the court
provided due process by fulfilling all of the requirements for
permanent termination of parental care. Further, adequate evidence
was presented to indicate that appellant's condition was unlikely
to change within a reasonable amount of time as required by 41-
3-609 (1)(c)(ii), MCA.
The second issue is whether the District Court abused its
discretion by considering the best interests of the children in
terminating parental rights.
Appellant contends that the District Court's finding of fact
no. 51 and conclusion of law no. 5, erroneously use the "best
interest of the childrenttstandard in terminating her parental
rights. She further argues that the State is using parental
deficiencies alone to justify the termination of parental rights.
We disagree.
The case law that appellant cites clearly states that the
"best interestsn test is properly used after an initial finding of
dependency, abuse, or neglect. Matter of Guardianship of Doney,
174 Mont. 282, 286, 570 P.2d 575, 578 (1977); Matter of Fish, 174
Mont. 201, 206, 569 P.2d 924, 927 (1977); In Re Gore, 174 Mont.
321, 327, 570 P.2d 1110, 1113 (1977); Matter of Guardianship of
Aschenbrenner, 182 Mont. 540, 549, 597 P.2d 1156, 1162 (1979).
Here the court has met the threshold requirement by finding the
children "youth in need of care"; their status as such satisfies
the prerequisites for the ''best intereststttest. Further, this
Court has previously stated that "when parents commit acts which
deprive a child of an adequate physical and emotional environment,
the best interest of the child becomes paramount over parental
rights.'' In the Matter of J.L.S. and A.D.S., Youths in Need of
Care, 234 Mont. 201, 208, 761 P.2d 838, 842 (1988). While the
"best interests1'test is specifically applied after termination in
order to determine proper placement for the children, it is also
used as a guideline throughout proceedings once an unacceptable
home environment has been ascertained.
Appellant's argument that it is her parental deficiencies
alone that are justifying termination is equally without merit.
Finding of fact no. 51 cites a variety of factors to justify the
court's decision, including the needs of the children, the history
of violent behavior by the parents, and the long term confinement
of the parents. These are all factors that the court 'Ishall''
consider pursuant to 5 41-3-609 (2), MCA. The District Court has
considered the children's whole situation, as the statute mandates,
and was well within its discretion in its final decision.
The third issue is whether sufficient evidence was presented
to support the District Court's order.
Appellant presents testimony from members of various
communities where the family lived that the children seemed to be
physically well cared for and not unusually ill-behaved. The
District Court, however, found the respondent's evidence persuasive
that at least some of the children were abused, neglected and/or
deprived. At least one of the children had speech and
developmental problems, and showed indications of being subject to
physical abuse. They were not toilet trained. They exhibited
substantial emotional improvement after removal from the home and
placement in foster care. The record does not reflect any abuse
of discretion on the part of the District Court.
The judgment is affirmed.
I
I -
Justice
We Concur: