No. 89-464
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990
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IN THE MATTER O F R.B. a/k/a R-K.
AND R.J.K., youths in Need of Care-
CLERK OF SUPHEM. C O U ~ r
i; rAY'i F~,J,
APPEAL PROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Thomas M. McKj-ttrick,Judge presiclincj.
COUNSE!., OF RECORD:
For Appellant:
John Keith, Great Falls, Montana
For Respondent:
:Ion. Marc Racicot , Attorney General, Hzlena , P o t i : :
lncl.
Jennifer M. Anders, Asst. Atty. General, Helen
Patrick L. Paul, Cocnty Attorney, Great Falls,
Fontana; Tammy Plubeli , Deputy, Greet Falls
Submitted on Briefs: Feb. 15, 1990
Decided: March 2 2 , :199i
Justice John Conway Harrison delivered the Opinion of the Court.
Appellant appeals an order of the Eighth Judicial District,
Cascade County, Montana, terminating her parental rights regarding
R.B.K. and R.J.K. We affirm.
Appellant raises a single issue for review: Did the District
Court err in its findings that the treatment plan was unsuccessful?
On December 16, 1987, the District Court adjudged R . B.K. , then
age four, a youth in need of care and it adjudged R.J.K. , born
January 8, 1988, a youth in need of care on January 26, 1988. In
the order declaring R.J.K. a youth in need of care, the District
Court found that appellant had failed to address the abuse or
neglect of R.B.K. and had not taken any steps to learn adequate
parenting skills. Further, the District Court found that appellant
had refused to seek prenatal care, or to adequately provide for her
new baby in terms of food, clothing, or shelter.
The two cases were consolidated. On February 29, 1988, the
~istrictCourt approved a treatment plan upon which all parties
had agreed. The treatment plan set a three-month completion date.
The Department of Family Services filed a petition for permanent
legal custody of R.B.K. and R.J.K. on September 20, 1988 alleging
the following:
The proposed treatment plan has not been
complied with by [the mother] and has not been
successful, in that:
1. The psychological evaluation by Ken
Collenborne stated ltcharacterlogical [sic]
defects are deeply ingrained and chronic in
nature and it is unlikely that
psychotherapeutic intervention will be of much
benefit in bringing about significant change. 'I
Ken Collenborne recommended that [the mother]
not regain custody of her children, if ever,
until she completed a rigorous treatment
program which included intensive psychotherapy
sessions. [The mother] has not initiated any
type of psychotherapy services.
2. [The mother] did attend 8 Parents
Anonymous sessions as required pursuant to the
treatment plan, but did not benefit from the
sessions because she has maintained a strange
sense of denial.
3. [The mother] did attend 8 parenting
classes at St. Thomas child and ~amily
Services, but again did not actively
participate in the classes and did not
demonstrate a desire to improve her parenting
skills.
4. [The mother] moved to Monarch, Montana,
which made her involvement in the Supportive
Friends Program logistically unfeasible.
5. [The mother] has been unwilling to develop
a cooperative relationship with her social
worker and has been extremely negative from
the time the Department of Family services
intervened in the case.
Further, [the mother] has failed to maintain
communication with her social worker even
after the social worker requested her to do
so.
The District Court held hearings on three occasions, December
7, 1988, January 25, 1989, and April 13, 1989. In addition to
appellant's testimony, the District Court heard testimony from
Kenneth Collenborne, a clinical psychologist, the children's foster
mother, the children's pediatrician, the various social workers
involved in the case, the leaders of the support group and
parenting class appellant attended, and several other persons who
had observed appellant with her children. On June 8, 1989, the
District Court terminated appellant's parental rights finding that
appellant had not initiated the long-term psychotherapy she needed
to treat her emotional and personality disorder. Further, although
appellant had complied with the treatment plants requirement that
she attend parenting classes and support groups, appellant's
behavior and ability to parent did not improve as a result,
rendering the treatment plan unsuccessful. The District Court also
found that the emotional or mental condition causing her parental
unfitness was unlikely to change within a reasonable time.
In relation to youths in need of care, 5 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.
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. We will not reverse a
district court's decision regarding findings of fact if those
findings are supported by substantial credible evidence. Matter
of A.H. (Mont. 1989), 769 P.2d 1245, 1247, 45 St.Rep. 395, 397.
Appellant challenges the District Court's finding that she
refused to participate in a long-term therapy program as
recommended by Ken Collenborne. At the hearing, appellant
testified that she had contacted the mental health center on
several occasions and that she was told that she had been put on
a waiting list. However, appellant ignores the substantial
credible evidence in the record that appellant had never initiated
contact with the mental health center and that she was not on a
waiting list. We reject appellant's contention.
Also disputed is the District Court's conclusion that
appellant's existing mental or emotional condition was unlikely to
change within a reasonable time. Appellant contends that the
District Court relied upon the testimony of Ken Collenborne to
reach its conclusion. But, Ken Collenborne's testimony cannot
support that finding, appellant asserts, because he spent only 35
minutes with appellant and did not observe her interacting with her
children. However, the record discloses that Mr. Collenborne based
his testimony not only on the actual time he spent with appellant,
but also on the results of psychological tests he administered.
He testified that appellant's personality disorder was deeply
ingrained and that appellant would have to make a genuine
commitment to change in order to modify her behavior. Contrary to
appellant's contention, the evidence of appellant's unwillingness
or inability to modify her behavior comes not from Mr. Collenborne,
but from the social workers supervising appellant's case and the
leaders of the parenting class and support group she attended.
Substantial credible evidence exists in the record to support a
finding that appellant is unwillingly or unable to make the
necessary effort to change her behavior so that she can adequately
parent R.B.K. and R . J . K .
In summary, the District Court found that the State met its
burden of proof under 5 41-3-609 (1)(c), MCA. Substantial credible
evidence in the record supports that decision. We affirm the
District Court.
We concur:
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Justices