No. 90-480
IN THE SUPREME COURT OF THE STATE OF MONTANA
1991
IN THE MATTER OF A.W. and A.V.1
youths in Need of Care.
APPEAL FROM: District Court of the Sixteenth Judicial ~istrict,
In and for the County of Custer,
The Honorable Kenneth R. Wilson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
J. Dennis Corbin; Brown, Huss & Corbin; Miles city,
Montana
For Respondent:
Marc Racicot, Attorney General; Deanne L. Sandholm,
Asst. Atty. General; Helena, Montana
Keith Haker, County Attorney; Garry P. Bunke, Deputy
Co. Atty.; Miles City Montana
Submitted on Briefs: December 20, 1990
~ecided: February 14, 1991
Filed:
Clerk
Justice R. C. McDonough delivered the opinion of the Court.
This is an appeal from an order of the Montana Sixteenth
Judicial District Court, Custer County, terminating the parental
rights of Roxanne Weaver Vingoe, the natural mother of A.W. and
A.V. The mother appeals, alleging that the District Court erred
in concluding that her daughters A.W. and A.V. are youths in need
of care and terminating her parental rights. We affirm the order
of the District Court.
A.W. was born on September 22, 1982 and A.V. was born on June
14, 1987. At the time of the district court hearing the mother was
26 years old. The natural father of A.V., Edward Vingoe, is
currently incarcerated at Deer Lodge for sexual abuse and the
natural father of A.W. is unknown.
The record discloses that between January 1987 and July 1988,
the Custer County Department of Family Services (DFS) received six
formal referrals regarding A.W. and A.V. The referrals included:
1) a January 20, 1987 notice of domestic violence between the
mother and Edward Vingoe, the result of which extensively damaged
their rented trailer home; 2) a September 21, 1987 referral that
DFS make living arrangements for the children due to the mother's
arrest on charges of assault; 3) an October 15, 1987 referral that
DFS make living arrangements for the children due to the mother's
arrest on theft charges; 4) a December 24, 1987 report to DFS from
the mother that A.W. had been sexually abused by the mother's
cousin, Charlie Weaver; 5) a July 11, 1988 report by a police
officer that living conditions were such that A.V. had flies
crawling all over her and that Charlie Weaver was present in the
house and in the midst of sexual activity with an unknown girl
(A.W. was not on the premises at the time); and 6) an anonymous
July 6, 1988 report that A.W. had been seen out as late as 11 p.m.
approximately five to six times per month, sometimes with her
alleged abuser, Charlie Weaver, and that the children were cared
for out of the home for a period of two to three weeks because the
house was infested with crabs.
These referrals led to the court's first order of August 8,
1988 declaring the children as youths in need of care and granting
temporary legal custody to DFS for six months. From July 11, 1988
through September 28, 1989, and again from March 19, 1990 until the
present time, the children have been in the protective custody of
DFS. After a hearing on September 18, 1989, a stipulation was
entered between the Custer County Attorney's Office, DFS, the
mother, and the children's guardian ad litem. The stipulation
provided that a prior petition for permanent legal custody by DFS
filed in August of 1989 be dismissed, and that within two weeks of
the stipulation custody of the children would be returned to their
mother. The stipulation also provided that DFS would have
temporary investigative authority for a period not to exceed six
months and that DFS had a right to develop a treatment plan for the
family to be presented to the court within thirty days for
approval, and that such plan would not require the mother to
participate in any treatment or programs that had already been
completed by herself. The treatment plan approved by the court
was designed to assist the mother in improving her personal and
parental skills. It included alcohol and drug evaluation and
treatment, mental health counseling to help the mother deal with
her own victimization from sexual abuse as a child, career
counseling and work on self-esteem, and an effort to improve her
judgment in protecting her children from harm by other persons.
The stipulation further provided that neither Kenneth Yother nor
the mother's cousin, Charlie Weaver, have any contact with A.W. or
A. V. at the mother's home or elsewhere. The mother of A.W. and
A.V. became involved with Ken Yother around December 1988. Their
relationship was volatile. In January 1989, the mother filed a
petition for a temporary restraining order against Yother. In her
supporting affidavit she indicated that on December 31, 1988,
Yother physically abused her and her unborn child by throwing her
on the floor, stepping on her midsection and threatening to abort
the fetus.
Kenneth Yother is an admitted sex offender. He recently was
charged with deviate sexual conduct regarding his relationship with
a seventeen year-old boy over some ten years and pled guilty to
misdemeanor sexual assault on that charge. (Custer County Criminal
Cause No. 3313 . ) He received a two year deferred imposition of
sentence with certain terms and conditions, one of which provided
that he would obey the court order with respect to A.V. and A.W.
and have no contact with them.
In spite of the District Court's order the mother of A.W. and
A.V. left Miles City, Montana with Yother for Las Vegas, Nevada,
taking A.V. and A.W. in violation of the stipulation with DFS. A
few days prior to leaving, Yotherls 13-year-old daughter allegedly
told the mother that she had been raped by her father. During the
move, A.W. did not attend school from October 1989 to January 1990.
In March of 1990, the mother of A.W. and A.V. gave birth to a girl
whose natural father is Kenneth Yother.
In its order terminating the mother's parental rights, the
District Court took judicial notice of the earlier proceedings that
were dismissed when the stipulation was entered. The District
Court concluded that A.W. and A.V. are youths in need of care
within the meaning of 3 41-3-102(11), MCA, and that termination of
the parent-child relationship was appropriate because the mother
failed to comply with the court ordered treatment plans and that
the conduct or condition of the mother was not likely to change
within a reasonable time. The court further determined that the
best interests of the children would be served by termination of
the parent-child relationship and by awarding the permanent legal
custody to DFS with the lawful authority to consent to the
children's adoption.
The mother contends that the District Court erred in several
respects. She contends that there were inadequate grounds to
terminate her parental rights, that the evidence was insufficient
to support termination, and that the termination therefore
constitutes an abuse of discretion by the district court.
We disagree. The applicable criteria for termination are set
out at 3 41-3-609, MCA, which provides:
41-3-609. Criteria for termination. (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.
Section 41-3-609, MCA; See, e.g., In the Matter of A.H., T.H., and
J.A.H. (1989), 236 Mont. 323, 326, 769 P.2d 1245, 1247-48. The
statutes further provide that a "youth in need of care1' is a
dependent, neglected or abused youth. Section 41-3-102(11), MCA.
The definition of a dependent youth includes a person under 18
years of age (1) who is without parents or guardian or not under
the care and supervision of a suitable adult, or (2) who has no
proper guidance to provide for the youth's necessary physical,
moral, or emotional well-being. Section 41-3-102 (10), MCA. An
abused or neglected child or youth is defined as any person under
the age of 18 whose normal physical or mental health or welfare is
harmed or threatened with harm by the acts or omissions of the
child's parent other person responsible for the child's welfare.
Section 41-3-102 (1) through (2), MCA.
In this case, there is sufficient evidence meeting the
necessary criteria to support termination of the mother s parent
rights. In affirming the District Court's order, we are
nevertheless mindful of the State's high burden in demonstrating
that such termination is necessary. "Parental rights involve a
fundamental liberty interest, and a judicial decree terminating
\J\ such rights must be supported by clear and convincing evidence.
4
'
\
', \ In the Matter of the Adoption of D.J.V. (Mont. 1990) , 796 P.2d
1076, 1077-78, 47 St.Rep. 1522, 1524; In re the Adoption of C.R.D.
(1989), 240 Mont. 106, 109, 782 P.2d 1280, 1282; citing Santosky
v. Kramer (1982), 455 U.S. 745, 753-4, 102 S.Ct. 1388, 1394-95, 71
L.Ed.2d 599, 606. Parental rights do not exist without concomitant
obligations. D.J.V., 796 P.2d at 1078. Here, there is clear and
convincing evidence supporting the decree terminating the mother's
parental rights. The mother continually exposed her children to
a harmful living environment fraught with potential for sexual
abuse. She apparently has a propensity to associate herself with
physically and sexually abusive men and has shown no likely
prospect that she will change this course of conduct. She has
failed to comply with her treatment program in keeping herself and
her children away from Ken Yother and in refraining from using
alcohol. She reported a possible rape upon A.W. by her cousin
Charlie Weaver but despite the terms of the stipulated order has
failed to keep A.W. away from this man.
Thus, the District Court properly adjudicated A.W. and A.V.
''youths in need of care1'because they are not under the care and
supervision of a suitable adult, § 41-3-102(10) (b), MCA; they have
no proper guidance to provide for their necessary physical, moral,
or emotional well-being, 41-3-102(lO)(c), MCA; and they are
threatened with sexual and physical abuse due to the continued
harmful associations of their mother, 5 41-3-102 (2), MCA. The
mother has failed to comply with an appropriate court approved
treatment plan, furthermore such plan has not shown any indications
of success. The conduct and condition of the mother in associating
herself with sexually abusive men is unlikely to change--indeed it
has failed to change--within a reasonable time so as to make her
a fit parent. section 41-3-609, MCA.
The mother contends that the ~istrictCourt's dismissal of the
first petition for permanent legal custody and return of the
children to her absolves her of any past misconduct that might be
construed as abuse and neglect. his contention lacks merit. At
no time have the earlier orders of the court adjudicating the
children as youths in need of care ever been appealed. Once that
determination is made, the court may terminate parental rights if
the other two statutory criteria are met: (1) that an appropriate
court approved treatment plan has been unsuccessful or not complied
with, and (2) the conduct or condition of the parents rendering
them unfit is unlikely to change within a reasonable time. section
41-3-609, MCA; In the Matter of T.C. and R.C. (1989), 240 Mont.
308, 313-14, 784 P.2d 392, 395. The statute only requires that the
parents fail to comply with an appropriate court approved treatment
plan; it does not require that a treatment plan is in effect at the
time of termination. Matter of J.L.S. and A.D.S. (1988), 234 Mont.
201, 206, 761 P.2d 838, 841. The District Court's earlier decision
to dismiss the initial petition and not terminate the mother's
parental rights was based in part on the formulation of a treatment
program for the mother and was contingent upon future compliance
with such program. The mother's continued failure to comply with
treatment and to continually endanger her children preclude her
from claiming that the dismissal has cleared her of her past
conduct.
Finally, the court also met its obligation to consider the
factors set out in subsections (2) and (3) of 5 41-3-609, MCA,
which provide:
(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 orderedlong-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 the 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.
Section 41-3-609(2) through (3), MCA. In determining that the
mother is unfit and unlikely to change her conduct or condition in
this case, the court apparently gave considerable weight to
subsections (2)(d) and (2)(g) of § 41-3-609, MCA, listed above.
Also the mandate of subsection (3) 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. In the
Matter of H.R.B. & K.R.B. (1989), 239 Mont. 387, 390, 780 P.2d
1139, 1141. The District Court's findings of fact and conclusions
of law set forth the testimony and opinions of mental health and
child care professionals regarding the mental and emotional states
of the children and indicate the court's careful consideration of
the needs of the children in its decision. This Court will not
overturn a transfer of custody of abused, neglected, or dependent
youth to the State absent a clear showing of abuse of discretion.
I T C
. 784 P.2d at 394; A.H., 769 P.2d at 1249. We find no abuse
of discretion in this case. The order of the District Court is
AFFIRMED.
We Concur:
\
Justices
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