No. 90-600
IN THE SUPREME COURT OF THE STATE OF MONTANA
IN THE MATTER OF THE CUSTODY
AND PARENTAL RIGHTS OF
F. M., JR., a Youth in Need of Care.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis & Clark,
The Honorable Thomas C. Honzel, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
J. Mayo Ashley, Helena, Montana
For Respondent:
Hon. Marc Racicot, Attorney General, Helena, Montana
James Yellowtail, Assistant
Randi Hood, Public Defender's Office, Helena,
Montana
~ i k eMcGrath, County Attorney; Carolyn Clemens,
1 p ~ i e l e n, a Montana
APR 3 0 1991
submitted on briefs: March 22, 1991
CJ 9mitL
CLERK OF SUPREME COURT ~ecided: April 30, 1991
Filed : STATE OF MONTANA ia
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Justice Terry N. Trieweiler delivered the opinion of the
Court.
The natural parents of F.M. , Jr. , appeal from the order of the
First Judicial District Court terminating their parental rights and
awarding custody and care of F.M. to the Montana Department of
Family Services. We affirm.
The issue raised by the parents on appeal is as follows:
Did the District Court abuse its discretion when it terminated
the parental rights of the father, F.M.M., and the mother, K.N.M.?
F.M. was born August 21, 1989. However, the involvement of
the Montana Department of Family Services (Department) with F.M.'s
family began shortly after they arrived in Montana in 1987. In
1987, F.M.M. and K.N.M., along with their daughter, M.M., moved to
Lincoln, Montana, from New Hampshire. Shortly thereafter, the
Department began to receive reports that M.M. was being abused by
her parents.
On January 26, 1988, M.M. was admitted to St. Peter's
Community Hospital with extensive bruises covering her body. These
bruises were later determined to be the result of physical abuse.
On June 27, 1988, the District Court found M.M. to be a youth
in need of care, granted temporary custody to the Department for
six months, and ordered a treatment plan for K.N.M. and F.M.M.
On July 25, 1988, the District Court approved a treatment plan
requiring the parents to obtain psychological counseling, attend
parenting classes, and maintain visitation with M.M. As part of
the treatment plan, the parents began therapy with Dr. Richard J.
Emery, a clinical psychologist. In their therapy with Dr. Emery,
the parents denied any abuse of their daughter. They explained to
Dr. Emery that M.M. bruises were caused by the fact that M.M.
walked into furniture because of lack of sleep and that she had
fallen down some stairs.
Dr. Emery believed that M.M. was physically abused by one or
both of her parents, and recommended continued therapy and
parenting classes. On February 7, 1989, the District Court
approved a second treatment plan requiring continued therapy and
increased visitation for the parents.
F.M. was born August 21, 1989, and M.M. was reunited with the
family at approximately the same time. Once again, on November 6 ,
1989, the District Court granted the Department temporary
investigative authority of M.M. The resulting investigation
revealed abuse of both M.M. and F.M. Later, on November 15, 1989,
the District Court granted the Department emergency temporary
custody of both children pending a hearing.
The District Court held hearings on November 22 and
December 15, 1989. The Department warned that the same pattern of
abuse affecting M.M. was beginning to emerge with respect to F.M.
At the hearing, Mary Lou Nielson, a neighbor, testified that
on two or three occasions she observed the mother, K.N.M.,
pretending to drop a sleeping F.M., jolting him awake. Donna Hale,
a clinical social worker, testified that this act by K.N.M. is I1a
horrifying thing to do to a babyttand would create a ttprofound
emotional disturbance in an infant." Kathleen Jury, a pastor,
along with Nielson, testified that they had watched K.N.M. sticking
her tongue in F.M. ' s mouth. At a subsequent hearing, Dr. Emery
testified that this behavior constitutes sexual abuse. Both Jury
and Nielson also testified that K.N.M. made comments and jokes
about F.M.'s genitalia. Furthermore, Nielsen testified that K.N.M.
told her that ltsometimeswhen she changes him [F.M.], she plays
with him so to speak." Finally, Jury testified that the parents
gave F.M. Tylenol and codeine to induce sleep, even though there
was no indication, according to Jury, that F.M. was ill.
On January 4, 1990, the District Court entered an order
finding F.M. a youth in need of care I1because of apparent sexual
acts perpetrated against him by his mother, along with other acts
to be determined abusive or neglectful." The District Court also
found that M.M. llcontinues be a youth in need of care because
to
of continuing abuse of her by her parents.'' The District Court
removed the children from the home and granted custody of the
children to the Lewis and Clark County Department of Family
Services. Furthermore, the court approved a treatment plan which
required K.N.M. and F.M.M. to obtain psychological counseling,
including a sex offender evaluation, if recommended by their
therapist, and to maintain regular, supervised visitation with F.M.
On February 9, 1990, the District Court entered an order
terminating the couple's parental rights to M.M. The District
court found that the parents had made no significant progress upon
the objectives of their previous treatment plans and that they
needed long-term therapy to acquire appropriate parenting skills.
The parents did not contest the District Court's order terminating
their parental rights.
Later that spring, on April 12, 1990, the Department filed a
petition for termination of the couple's parental rights regarding
F.M. At the termination hearing, the couple's primary therapist,
Dr. Emery, testified that the parents had made no real progress in
therapy until April 17, at which time the couple admitted only to
abusing their daughter, M.M. Dr. Emery testified that the couple
still denied abusing F.M., and concluded his testimony by
maintaining that the couple's therapy had been unproductive in
regard to F.M. due to their persistent denials of abuse.
Dr. Dwight Leonard, a psychologist who is Director of
Psychology at Shodair Children's Hospital, also testified about his
therapy sessions with K.N.M. and F.M.M. Dr. Leonard believed that
the parents had made progress in their therapy and that if they
continued to make progress, there was a good possibility F . M . could
be returned to the couple. Dr. Leonard estimated that F . M . could
be returned to his parents in two to three months if they continued
to progress in therapy. Dr. Emery disagreed, and thought it would
take perhaps a year of successful therapy before F . M . could be
returned to his parents.
On June 21, 1990, the District Court continued the matter for
90 days to provide a further opportunity for the parents to
complete the goals of their treatment plan. In addition, the court
ordered Dr. Emery to provide the court with progress reports on the
parents' therapy.
The District Court held a final round of hearings on October 2
and 16, 1990. At that time, Dr. Emery testified that the couple
made no progress in therapy, a condition which he believed was
unlikely to change in the future. Dr. Emery concluded that the
parents remained a definite risk to F.M.
After terminating their therapy with Dr. Emery, the parents
began seeing Craig Simmons, a licensed clinical social worker. Mr.
Simmons, like Dr. Emery, testified that F.M. would not presently
be safe with his parents and there remained a Iflong roadf' of
therapy for F.M.Is parents.
In contrast, Dr. Leonard testified that in his opinion, F.M.
could be safely returned to his parents. However, he also
testified that he had met only three times with F.M. Is parents
since the earlier hearings in May, and that he had not had an
opportunity to observe the interaction between F.M. and his
parents. Dr. Leonard was also willing to accept F.M. Is parents1
explanation that they did not abuse F.M.
Sue Barton, F.M. Is guardian ad litem, also testified at the
termination hearing. Ms. Barton testified that K.N.M. was
exhibiting the same kind of enmeshment with F.M. that led to the
abuse of M.M. She recommended to the court the termination of the
couplets parental rights and the placement of F.M. in a permanent
home.
On October 18, 1990, the District Court terminated the
couplefs parental rights of F.M. The court reiterated its earlier
conclusion that F.M. Ifis a youth in need of care because his
health, care, and welfare have been harmed or threatened with harm
by the acts or omissions of his parents." The court also found
that the treatment plan had been unsuccessful.
The sole issue on appeal is whether the District Court abused
its discretion in terminating the parental rights of F.M.M. and
K.N.M.
The section of the statute relevant to this termination case
is § 41-3-609, MCA, which states in part:
Criteria for termination. (1) The court may order
a termination of the parent-child legal relationship upon
a finding that .. .
(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.
(2) In determining whether the conduct or condition
of the parents is unlikely to change within a reasonable
time, the court must enter a finding that continuation
of the parent-child legal relationship will likely result
in continued abuse or neglect or that the conduct or the
condition of the parents renders the parents unfit,
unable, or unwilling to give the child adequate parental
care. In making such determinations, the court shall
consider but is not limited to the following:
(a) emotional illness, mental illness, or mental
deficiency of the parent of such duration or nature as
to render the parent unlikely to care for the ongoing
physical, mental, and emotional needs of the child within
a reasonable time;
(b) a history of violent behavior by the parent;
(c) a single incident of life-threatening or
gravely disabling injury to or disfigurement of the child
caused by the parent;
(d) excessive use of intoxicating liquor or of a
narcotic or dangerous drug that affects the parent's
ability to care and provide for the child;
(e) present judicially ordered long-term
confinement of the parent;
(f) the injury or death of a sibling due to proven
parental abuse or neglect; and
(g) any reasonable efforts by protective service
agencies that have been unable to rehabilitate the
parent.
(3) In considering any of the factors in subsection
(2) in terminating the parent-child relationship, the
court shall give primary consideration to the physical,
mental, and emotional conditions and needs of the child.
The court shall review and, if necessary, order an
evaluation of the child's or the parent's physical,
mental, and emotional conditions.
The state must prove "by clear and convincing evidence'' that
the statutory criteria under 41-3-609, MCA, have been met.
Matter of R.B. (1990), - Mont . , 788 P.2d 1361, 1363.
Furthermore, [w]e will not reverse a District Court s decision
regarding findings of fact if those findings are supported by
substantial credible evidence." Matter of R.B., 788 P.2d at 1363.
The fact that F.M. is a youth in need of care is not in
dispute. The parents do contend, however, that the District Court
abused its discretion in terminating their parental rights because
there was insufficient evidence to support either the court's
finding that the treatment plan failed, or the finding that their
unfitness was not likely to change in a reasonable length of time.
The state disagrees, and contends the record overwhelmingly
supports termination of the parents' rights.
The parents' treatment plan required psychological counseling,
including a sex offender evaluation, if recommended by their
therapist, and regular, supervised visitation with F.M. The
parents contend they fully complied with the treatment plan.
However, as the state correctly notes, mere compliance with the
treatment plan is not enough. Section 41-3-609 (1)(c)(i), MCA,
imposes the additional requirement that the treatment plan be
successful. The District Court found, and we agree, that the
parents' treatment plan "has not been succe~sful.'~
The District Court properly weighed the conflicting evidence
in determining that the parents failed to successfully complete
their treatment plan. The District Court properly based its
finding on the testimony of Dr. Emery and Mr. Simmons, the primary
therapists of the parents. We conclude that substantial credible
evidence exists supporting the District Court's finding that the
parties failed to successfully complete their treatment plan.
Next, the parents contend that the District Court's conclusion
that their unfitness is unlikely to change within a reasonable time
was not supported by substantial credible evidence. We disagree.
Substantial credible evidence exists to support the District
Court's finding.
Dr. Emery and Mr. Simmons testified that little progress has
been made in therapy. Both Dr. Emery and Mr. Simmons saw little
chance of the parents changing their conduct within a reasonable
time. Ms. Barton, F.M.'s guardian ad litem, observed that the
parents' rate of progress in therapy had been "glacial," and
recommended that the court terminate the couple's parental rights.
In conclusion, the record contains substantial credible
evidence to support the District Court's conclusions that the
treatment plan failed and that the parents' lack of fitness is
unlikely to change within a reasonable time. Accordingly, we
affirm the District Court's order terminating the couple's parental
rights.
We concur:
Chief Justice