No. 90-354
IN THE SUPREME COURT OF THE STATE OF MONTANA
IN THE MATTER OF R.H.,
A YOUTH IN NEED OF CARE.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Joel G. Roth, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Patrick R. Watt, Jardine, Stephenson,
Blewett & Weaver, Great Falls, Montana
For Respondent:
Honorable Marc Racicot, Attorney General, Helena,
Montana; Kathy Seeley, Assistant Attorney General,
Helena, Montana; Patrick L. Paul, Cascade County
Attorney, Great Falls, Montana; Tammy Plubell,
Deputy County Attorney, Great Falls, Montana
(Montana Department of Family Services);
John Keith, Attorney at Law, Great Falls,
Montana (R.H .)
Submitted on ~riefs: May 10, 1991
Decided: July 30, 1991
Filed:
Justice William E. Hunt, Sr., delivered the opinion of the Court.
The natural parents of R.H., a youth in need of care, appeal
from an order of the Eighth Judicial District Court, Cascade
County, terminating their parental rights. We affirm.
The following issues are raised on appeal:
1. Did the District Court err in finding that the court-
ordered treatment plan was appropriate?
2. Was the court-ordered treatment plan ambiguous so as to
deny the parents due process?
The natural parents had four children: L.H., J.H., R.H., and
V.H. The oldest child, L.H., began to live with her paternal
grandmother in the mid-1970s. In 1975, the second child, J.H., was
placed in foster care. Five years later, the parents voluntarily
relinquished custody of J.H. to the State.
On April 28, 1986, the State first became directly involved
with R.H. At that time, it petitioned for temporary investigative
authority and custody of R.H. and his brother, V.H. The affidavit
in support of the petition outlined severe developmental delays of
V.H. caused by lack of stimulation by the parents, R.H. Is withdrawn
behavior, and apparent physical neglect of both children.
Following a hearing, the District Court ordered the parents
to undergo psychological evaluations. The evaluations, prepared
by Dr. Monty Kuka, Ph.D., a clinical psychologist, were admitted
at the show cause hearing on the petition.
In the evaluations, Dr. Kuka found that both parents had
borderline intellectual abilities. Dr. Kukals assessment of the
mother's parenting skills resulted in a fairly bleak picture. The
doctor found that she had limited insight into herself and her
relationships and that she did not recognize even the most obvious
characteristics of being a good mother. He was pessimistic about
her ability to benefit from supportive services, as well as her
ability to make any long-term changes.
Dr. Kuka found that the father's overall adjustment was fairly
good; he appeared kind and sensitive to his wife and children. Dr.
Kuka concluded, however, that it was doubtful that the father could
offset the significant negative factors exhibited by the mother
because the father was not assertive and put the mother's needs
before those of the children.
The show cause hearing was held on July 25, 1986. Following
the hearing, the District Court ordered that the State maintain
temporary legal custody of V.H. and R.H., with V.H. residing with
an aunt and uncle, and R.H. residing with his parents. The court
further ordered the mother to attend New Directions classes and the
father to attend counseling with R.H. as needed.
Shortly after the hearing, the parents and R.H. moved to
Washington. This move was prompted by the mother's desire to avoid
the pressures she felt from her family, who resided in Montana, and
by the father's desire to live closer to his father, who resided
in Washington. In November 1986, after her grandmother's death,
L.H. joined her parents in Washington.
While the family lived in Washington, a social worker and a
teacher reported suspected abuse of the children to Montana
authorities. In March 1987, when the family returned to Great
Falls to pick up some stored items, L.H. called the Crisis Line and
asked to be removed from the parentsf home. R.H. and L.H. told
social workers that the mother used a leather belt to spank R.H.
on the face, legs, and buttocks. She threatened L.H. with a knife
and held a knife against R.H.Is throat. Frequently, there was not
enough to eat in the house, and L.H. often had to babysit R.H. in
the evening while the mother worked.
The State petitioned for temporary custody of L.H. and
permanent custody of V.H. and R.H. At the custody hearing, the
parties stipulated and the court ordered the termination of the
parental rights to L.H. and V.H. The State was granted permanent
custody of L.H. and the aunt and uncle were granted permanent
custody of V.H. The court also ordered that the State maintain
temporary custody of R.H., who would be placed in the foster home
where J.H. had been living for several years. In addition, the
court directed the parents to attend and successfully complete
parenting classes. They were also ordered to undergo psychological
evaluations and to follow through with all recommendations made in
those evaluations. The order provided for future review to
determine whether the parents were able to resume custody of R.H.
In March 1988, counsel for the State, counsel for the parents,
and counsel for R.H. entered into another stipulation, which was
adopted by the District Court. The stipulation left temporary
custody of R.H. with the State and established a new treatment plan
for the parents. The treatment plan required the parents to
provide the State with written reports about their progress in
parenting classes. It also required the parents to begin
psychological counseling immediately, to disclose the name of the
therapist to the State, and to provide the State with progress
reports from the therapist.
For one and one-half years, the mother attended parenting
classes in Washington. The father attended the classes for one
year. The parents also sought family counseling but learned that
such counseling was of little use without R.H.'s participation.
They did not obtain individual therapy. However, they underwent
psychological evaluations.
From June 1987 to September 1988, the parents did not contact
R.H. In September 1988, the social worker in charge of the case
initiated a visit between R.H. and the parents. All appeared happy
to see each other during the meeting, which lasted about 2 hours
and 15 minutes. R.H. seemed to have a warm relationship with the
father, but interacted only slightly with the mother. After the
visit, R.H. was anxious and more disruptive at home and school.
A second visit took place later that month, during which R.H.
spent the night with the parents. After the visit, R.H. Is behavior
deteriorated dramatically. He became very hostile and confused.
He began wetting and messing his bed. He cut hunks out of his
hair. He refused to shower or wear clean clothes. His grades
dropped from As and Bs to Ds and Fs. His behavior gradually
stabilized until January, when he received a Christmas card and
gift from his parents. He began acting out again.
R.H. was evaluated by Dr. Edward Trontel, Ph.D., a clinical
psychologist, on February 7, 1989. Dr. Trontel found that R.H.
was very depressed. The doctor also found that R.H. had great
difficulty with mother figures. The doctor concluded that R.H. had
difficulty paying attention in school because he was so worried
about the possibility he would be returned to his parents. R.H.
told him that, although he wished to be with his parents, he was
terribly frightened of his mother and was afraid she might kill
him if he said the wrong thing. He believed his father could not
protect him from her. In Dr. Trontel Is opinion, even under the
circumstances of this case, the mother's threats and lack of
empathy for R.H. were unusual.
On July 13, 1989, the State petitioned for permanent legal
custody of R.H. and termination of parental rights. Three hearings
were held on the matter. Dr. Trontel testified regarding his
evaluation of R.H. Dr. Kuka testified concerning his 1986
evaluations of the parents. He compared his evaluations with those
completed by Dr. Panek in Washington in 1988. Dr. Kuka stated that
Dr. Panekts findings were even more negative and extreme than his
own two years earlier. The doctor concluded that there was not any
realistic hope that the parents would develop the kind of dramatic
changes needed at this point to be able to parent effectively.
R.H. did not testify at any of the hearings, but was
interviewed in chambers by the District Court. R.H., then 12 years
old, told the judge he enjoyed living with his foster family, he
was afraid of his mother because quite often she would strike him
with a leather belt, and, although he did not mind visiting his
parents, he did not wish to live with them.
The parents testified at the hearing that they were adequate
parents and, while they had attempted to comply with the treatment
plan, they did not believe they truly needed to do the things the
State told them to do.
Following the hearing, the District Court issued findings of
fact, conclusions of law, and an order terminating the parental
rights of the parents and awarding permanent custody, with right
to consent to adoption, to the State. The parents appeal.
The statute for terminating parental rights provides in
pertinent part:
(1) The court may order a termination of the parent-
child legal relationship upon a finding that the
circumstances contained in subsection ...
l(c), as
follows, exist:
(c) the child is an adjudicated youth in need of care
and both of the following exist:
(i) an a ~ ~ r o ~ r i a t e
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. (Emphasis added.)
section 41-3-609, MCA.
The parents argue that the State failed to meet its burden of
proof because it neglected to show that the court-ordered treatment
plan was appropriate. The State counters that it was not required
to prove that the plan was appropriate because the parents, through
counsel, stipulated to the plan.
The termination of parental rights implicates fundamental
liberty interests. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct.
.
1388, 71 L.Ed. 2d 599 (1982) Therefore, the State bears the burden
of proving by clear and convincing evidence all of the statutory
criteria needed to terminate parental rights, including the
appropriateness of the treatment plan. Santosky, 455 U.S. at 769,
102 S.Ct. at 1403, 71 L.Ed.2d at 616; In re L.W.K., 236 Mont. 14,
18, 767 P.2d 1338, 1341 (1989). The fact that the parents, while
represented by counsel, stipulated to the plan adds some weight to
the inquiry. However, that fact does not in and of itself prove
that the plan was appropriate.
The parents claim that the plan was deficient because the
State's witness, Dr. Kuka, testified that the parents needed to
attend parenting classes, psychotherapy sessions, and group therapy
meetings in order to develop insights into themselves and improve
their parenting skills. The parents point out that the treatment
plan contained only two of the three components cited by Dr. Kuka
as necessary for successful treatment: parenting classes and
individual psychotherapy sessions.
Although the plan did not possess every element that Dr. Kuka
believed was important for treatment, we hold that, under the facts
of this case, it was not inappropriate. Dr. Kuka stressed that the
most significant component was psychotherapy, while parenting
classes and group therapy were secondary considerations. Because
the treatment plan contained the most important element, as well
as one of the others, the plan was appropriate.
Furthermore, the parents do not argue that the parenting and
psychotherapy elements that comprised the treatment plan were
inappropriate, only that the plan was deficient. We note, however,
that the parents neglected to comply with the parts of the program
that were admittedly appropriate. We fail to see how adding a
third requirement, group therapy, would have spurred them on to
comply with the most important element of the program, individual
therapy.
Substantial credible evidence supports the District Court
finding that the treatment plan was appropriate. The District
Court did not err in making the finding.
The parents next contend that they were denied due process
because the treatment plan was ambiguous. We do not agree.
The final treatment plan was the third version attempted with
the parents. The stipulation adopting the plan states in pertinent
part as follows:
1. On May 5, 1987, the above parties [the State and the
parents] stipulated to the following arrangement for
[R.H. ]:
d) [The parents] would attend and successfully complete
parenting classes.
e) [The parents] wouldundergo psychologicalcounseling.
4. At the time set for hearing [the State] had not
received any written reports concerning parenting classes
or counseling.
The above-referenced parties now stipulate to the
following disposition of the case:
2. [The parents] must take the necessary steps to see
that [the State] receivers] written reports about their
progress in parenting classes. [The State] must receive
the reports by June 15, 1988.
3. [The parents] must take the necessary steps to see
that [the State] receivers] a progress report from their
therapist in Washington. [The State] must receive the
report by June 15, 1988. [The parents] must also
disclose the name of their therapist to [the State] by
May 15, 1988.
4. If r the parents1 have not been undersoinq
psvcholoqical counselins they must do so immediately and
must disclose the name of their therapist to [the State]
by May 15, 1988.
5. [The State] will petition the Court for the
appropriate relief after it receives the above
information from [the parents]. In the event [the State]
do[es] not receive the requested information by June 15,
1988, [the State] will request the Court to set a final
dispositional hearing and will proceed without the
requested information. (Emphasis added.)
The treatment plan was not ambiguous. A plain reading of the
plan establishes that the parents were required to attend parenting
classes and receive psychological counseling. In fact, paragraph 4
of the plan emphasizes the importance of the psychotherapy
requirement by directing the parents to obtain counseling
immediately.
The problems concerning ambiguity arose when the parents began
to hedge the plan. Rather than follow the clear terms of the plan,
the parents' attorney contacted the social worker in charge of the
case to see if the parenting classes fulfilled the counseling
component. The social worker indicated that the parenting classes
essentially fulfilled this condition.
Although the State may assist the parents in completing the
treatment program, the parents retain the ultimate responsibility
for complying with the plan. L.W.K., 236 Mont. at 19, 767 P.2d at
1342. In this case, even though the final program mandated
individual psychotherapy, the parents attempted to find ways to
bypass the requirement. Indeed, the conversation with the social
worker may well have muddied the terms of the plan. However, the
parents themselves invited the ambiguity by refusing to follow the
plain requirements of the program. They cannot now claim that they
were denied due process.
Affirmed.
We concur: