NO. 91-623
IN THE SUPREME COURT OF THE STATE OF MONTANA
IN THE MATTER OF INQUIRY
INTO B.T.B AND B.B.,
Youths in Need of Care.
APPEAL FROM: District Court of the Third Judicial District,
In and for the County of Granite,
The Honorable Ted L. Mizner, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Vincent J. Kozakiewicz, Attorney at Law, Dillon,
Montana
For Respondent:
Hon. Marc Racicot, Attorney General, Helena, Montana
Patricia J. Jordan, Assistant Attorney General,
Helena, Montana
J. Allen Bradshaw, Granite County Attorney,
Philipsburg, Montana
Conde F. Mackay, Attorney at Law, Anaconda, Montana
Submitted on Briefs: June 26, 1992
Decided: J u l y 7, 1 9 9 2
Filed:
Clerk
Justice Fred J. Weber delivered the Opinion of the Court.
The Third Judicial District Court, Granite County, terminated
the parental rights of Darin and Dana Blackburn, the natural
parents of B.T.B. and B.B. Darin Blackburn has not contested the
termination of his parental rights. Dana Blackburn appeals. We
affirm.
Ms. Blackburn raises the following issues for our review:
1. Did the District Court properly terminate Ms. Blackburn's
parental rights?
2. Did the guardian ad litem properly protect the rights of
the children?
A hearing on the termination of custody was held in August
1991. Vicki Weida and Sharon Sherd, social workers with the State
of Montana, Department of Family Services (DFS) testified on behalf
of the State. The record reveals that the DFS became involved with
the Blackburn family in March 1988. At that time, Dana Blackburn
was convicted of endangering the welfare of herthree-year-old son
B.T.B. when B.T.B. was found wandering alonein Drummond, Montana.
As a condition of her sentence, the court required Ms. Blackburn to
attend DFS parenting classes. She failed to attend these classes
and missed monthly appointments with the DFS case worker.
Ms. Weida testified that in May 1989, the DFS received
additional referrals relating to domestic violence, alcohol abuse
and continuing neglect of B.T.B. within the Blackburn home. Based
on this information, the District Court granted the DFS temporary
investigative authority (TIA), and ordered the Blackburns to
abstain from alcohol, undergo psychological and chemical dependency
evaluation, and complete marriage counseling. The Blackburns
failed to comply with the court order. In November 1989, the
Blackburns' second child B.B. was born.
On June 5, 1990, the District Court granted temporary custody
of B.T.B. and B.B. to the DFS who placed the children in foster
care. The court also approved a treatment plan requiring the
parents abstain from alcohol, undergo chemical dependency
treatment, and attend marital and family counseling. Initially,
the Blackburns complied with the plan. As a result of this
progress, the DFS returned the children to the Blackburn home in
December 1990.
Ms. Weida testified that in February 1991, the DFS was forced
to take the children into protective custody after the Blackburns
failed to pick up their children from the babysitter. Neither
parent contacted the DFS regarding the whereabouts of the children
for over twenty-four hours. The children were once again placed in
foster care. At that time, both Dana and Darin Blackburn had
resumed drinking alcohol, discontinued aftercare treatment for
chemical abuse and missed scheduled appointments for marital
counseling and family counseling with B.T.B. In addition the DFS
received reports of domestic violence, Darin Blackburn was
convicted of second offense DUI, and Dana was convicted of two
counts of disorderly conduct. All these incidents were alcohol
related.
In March 1991, the Blackburns appeared to be separated. As a
result, the court approved a treatment plan addressing the needs of
each parent. Ms. Weida reviewed the plan with the Blackburns and
obtained medicaid assistance for the necessary counseling. She
testified that the purpose of the agreement was to reunite the
family. However, subsequent to the adoption of the second
treatment plan, the Blackburns continued their pattern of
noncompliance. Individually, and collectively, they missed
counseling appointments as well as scheduled visitation with the
children.
In May 1991, after working with the Blackburns for three
years, the DFS filed to terminate Darin and Dana Blackburn's
parental rights in order to provide stability for the children. At
the termination hearing on August 6, 1991, Ms. Weida and Ms. Sherd
testified that it was in the best interest of the children to
terminate the parental rights of Dana and Darin Blackburn. They
further testified that B.T.B. was depressed and required counseling
and special education due to lack of emotional stability. B. B. had
bonded well with her foster mother, but needed permanence.
Finally, the prospects of placing the children in adoptive homes
offering permanence and stability was high. On October 10, 1991,
the District Court terminated the parental rights of Dana and Darin
Blackburn with regards to B.T.B. and B.B., their minor children.
I
Did the District Court properly terminate Ms. Blackburn's
parental rights?
In order for the court to terminate Ms. Blackburn's parental
rights the State must meet the statutory criteria of g 41-3-609,
MCA. Section 41-3-609, MCA, allows termination of parental rights
if the children are adjudicated youths in need of care, the parents
have either failed to comply with the court approved treatment plan
or the plan is unsuccessful, and the conduct or condition rendering
the parents unfit is unlikely to change within a reasonable time.
Further, the State must present clear and convincing evidence that
these statutory criteria have been met. In the Matter of A.W. and
A.V. (1991), 247 Mont. 268, 806 P.2d 520.
Ms. Blackburn contends that the State failed to present clear
and convincing evidence that Dana failed to comply with the second
treatment plan.
First, Ms. Blackburn contends the State did not give her
adequate time to comply with the second treatment plan. This Court
recently addressed a similar argument where the lower court
terminated parental rights of the natural mother just 40 days after
approving a treatment plan. In the Matter of M.J.D., C.K.D.,
A.R.D. (1987), 225 Mont. 200, 731 P.2d 937. In that case we
affirmed the lower court, concluding that the forty days prior to
the petition did not accurately reflect two years effort on the
part of the DFS to rehabilitate the family. In the Matter of
M.J.D., 225 Mont. at 205, 731 P.2d at 939-940.
Similarly, in this case the six weeks prior to filing the
petition do not accurately reflect the DFSts efforts to
rehabilitate the family. The DFS has worked with both parents
since 1988. During this time, Dana and Darin Blackburn both failed
to comply with the approved treatment plans. Neither displayed a
commitment to follow through on counseling and treatment necessary
to develop stability and skills to care for their children.
In this case, there were two successive plans approved. The
District Court found that it was the parents' failure to comply
with both treatment plans over a long period of time that indicated
they were unlikely to provide adequate parenting to their children
within a reasonable time. In In the Matter of M.J.D., we found no
abuse of discretion by the court when it considered the
department's efforts prior to approving the treatment plan in
ordering the termination of parental rights. In the Matter of
M.J.D., 225 Mont. at 205, 737 P.2d at 940. Here, as in In the
Matter of M.J.D., we conclude the District Court did not abuse its
discretion in considering Darin and Dana Blackburn's non-compliance
with the first treatment plan, in ordering the termination.
Next, Ms. Blackburn claims that in ordering termination, the
court failed to consider the significant progress she made since
her separation from Darin Blackburn. The record indicates that
Dana separated from Darin Blackburn in April 1991 and moved from
Drummond, Montana to Deer Lodge, Montana. It further indicates
that since the separation, Ms. Blackburn obtained full time
employment and became involved in another relationship.
Here, the District Court found: "Recent changes in Dana's
life are not significant enough to overcome the history of abuse
and neglect of these minor children over the last three years."
These findings of the lower court will not be disturbed on appeal
unless the findings are clearly erroneous. Rule 52(a) M.R.Civ.P.
In this case, the record supports the District Court's findings.
Here, Ms. Blackburn indicated in testimony that her change in
circumstances would allow her to properly care for her children.
However, both Ms. Sherd and Ms. Weida offered contradictory
testimony wherein they stated the Blackburns had a history of
separating then reuniting. Further, Ms. Weida testified that these
changed circumstances did not convince her that Ms. Blackburn could
adequately care for her children:
I have no confidence in Dana's ability to carry out
the necessary treatment. I have lost that confidence
completely. So I do not believe that separate, or
together with Darin, that she will be able to complete
the necessary items that would make it possible for us to
return the children to her, and it would take at least
six months for that to happen, and that's another six
months of these children's lives, and with her history
where she almost completed in December, and then didn't
do some of the significant pieces, I don't have
confidence that she's going to be able to maintain the
responsibility needed to adequately parent the children.
Parenting and loving are two different pieces.
The record shows that after the DFS filed the petition to terminate
the Blackburns' parental rights, Dana and Darin both made efforts
to attend scheduled visitation with the children. However, neither
parent had completed any portion of the second treatment plan by
the August 1991 hearing, a full six months after the court's
approval of the plan.
This Court will not substitute its judgment for that of the
lower court regarding the credibility of witnesses or the weight of
their testimony. Smith-Carter v. Amoco Oil Co. (1991), 248 Mont.
505, 510, 813 P.2d 405, 408. Here, despite the conflicting
evidence presented, we conclude the findings of the District Court
are supported by the record.
We conclude the District Court's findings are not clearly
erroneous. Further, the State has presented clear and convincing
evidence that Ms. Blackburn failed to comply with either treatment
plan, and that the conditions rendering her unfit as a parent were
unlikely to change within a reasonable time.
We hold the District Court properly terminated the parental
rights of Ms. Blackburn.
II
Did the guardian ad litem properly protect the rights of the
children?
Ms. Blackburn contends that the guardian ad litem compromised
the rights of the children by failing to conduct an independent
investigation regarding the alleged abuse and neglect.
However, Ms. Blackburn failed to raise the issue before the
trial court. This Court will not consider for the first time on
appeal an issue which was not raised in the district court. Keller
v. Dooling (1991), 248 Mont. 535, 540, 813 P.2d 437, 441. We
conclude the issue is not properly before this Court.
Affirmed.
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We Concur:
Justices