No. 91-303
IN THE SUPREME COURT OF THE STATE OF MONTANA
1992
IN THE MATTER OF
DECLARING J.R. AND S.D.,
Youths in Need of Care.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Roy Rodieghiero, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Jeannette Ellen Berry, Bozeman, Montana
For Respondent:
Hon. Marc Racicot, Attorney General; Paul Johnson,
Assistant Attorney General, Helena, Montana
A. Michael Salvagni, County Attorney; Marty Lambert,
Deputy County Attorney, Bozeman, Montana
Mark Bryan; Bryan & Atkins, Bozeman, Montana
Susan B. Swimley, Guardian Ad Litem, Belgrade,
Montana.
i
J U N 1 1 1992
B Submitted on Briefs:
ecided:
February 6 , 1992
June 11, 1992
.i
SEid
CLERK O F SUPREirlE COURT.
STATE OF IVIOI'ITW
cierk
Justice Terry N. Trieweiler delivered the opinion of the Court.
This is an appeal from the judgment of the District Court of
the ~ighteenthJudicial District in Gallatin County, terminating
the parental rights of the natural mother. We affirm
The issues on appeal are whether the mother's treatment plan
ordered by the District Court was appropriate, and whether the
termination of her parental rights violated her right to due
process.
Appellant is the natural mother of J.R. and S.D., as well as
two older children. The Montana Department of Family Services
first had contact with the mother in 1979 after reports of poor
hygiene, lack of supervision, and physical abuse of the two oldest
children were brought to the Department's attention. The mother
subsequently entered into an agreement with the Department to seek
day care for J.R. and therapy counseling for the two oldest
children.
In 1984 and 1985, the family was living in Idaho Falls, Idaho.
The Idaho Department of Family Services received reports similar to
those made in Montana. The Idaho DFS intervened, and the two
oldest children were placed in protective supervision with the
mother's sister in Bozeman, Montana. Following a divorce in 1986,
the mother returned with J.R. to the Bozeman area. School
authorities noted that J.R. evidenced the same lack of hygiene that
her older siblings had shown. J.R.'s kindergarten teacher
eventually contacted a social worker, Gloria Edwards, who met with
J.R. in September 1989, and confirmed her lack of good hygiene.
2
Edwards filed a Request for a Petition for Temporary Investigative
Authority that was not acted upon by the county attorney's office.
In April 1990, Ms. Edwards was again called to the school to
see J.R. Edwards gave the following description of J.R.'s
condition:
She was absolutely filthy. She had dirt on her arms, her
hands and her face. And her hair looked all sticky and
it had things stuck all over it. And I couldn't tell
what they were. I thought it looked maybe like leaves.
It was difficult to distinguish. When the other kids
left, then I had her roll up her long sleeves and her
arms had caked-on dirt just stuck to her. Her teeth also
looked really brown and rotting.
Edwards spoke with the child at length, and J.R. divulged
information that led Edwards to believe she was being sexually
molested by a male baby sitter. Edwards decided to invoke
emergency protective powers and remove J.R. and S.D. from their
home. A hearing was held, and the District Court ruled that
removal of the children from the home was appropriate. An
investigation that had been ongoing since September 1989 resulted
in the arrest of the suspect on charges of sexual assault of J.R.
on April 10, 1990. The individual was found guilty in a bench
trial of sexual assault of J.R. and sentenced to the Montana State
Prison. The sentence was affirmed by this Court in State v. Davis
(Mont. 1992) , - P.2d -I 49 St. Rep. 342.
A hearing on the State's petition for termination of parental
rights was held on December 17, 18, and 19, 1990. Several State's
witnesses testified to the lack of success of the court-ordered
treatment plan and treatment contract. Reasons given in support of
termination included: the refusal of the mother to admit any
parenting problems; the lack of concern over the sexual abuse of
J.R.; the cyclical nature of sexual abuse and physical neglect in
the family, as evidenced by the two oldest children; the inability
of the mother to protect the children, given that the grandmother
of the children was sexually involved with Davis and gave testimony
in his defense; the lack of normal interaction between the mother
and children during supervised visits; the continuing health and
safety problems at the mother's residence; and the great progress
that J.R. showed both academically and socially since being removed
from the mother's home.
The ~istrictCourt concluded that the treatment plan had not
been complied with, and that the situation rendering the mother an
unfit parent was unlikely to change in the future. The court
concluded that the mother's professionally diagnosed chronic
paranoia was of such a nature that it rendered her unlikely to care
for the ongoing physical, mental, and emotional needs of her
children. The court, therefore, terminated the parent-child
relationship between the mother and J.R. and S.D. Custody of J.R.
was given to the Montana Department of Family Services. Custody of
S .D. w a s given to her natural father. The mother appeals from this
judgment .
The mother contends that the court-ordered treatment plan was
inappropriate, resulting in the termination of her parental rights
without due process of law.
Section 41-3-609, MCA (1989), sets forth the criteria for
termination of the parent-child relationship. The statute states
in part:
(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.
(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;
(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 mother contends that the treatment plan implemented in her
case was not appropriate, as required by § 41-3-609(l) (c)(i), MCA.
She asserts that the court failed to consider her financial
situation when it ordered her to undergo a treatment plan. She
claims that the court's failure resulted in her inability to
receive proper treatment that would have facilitated the
preservation of the parent-child relationship as promoted by the
statute and case law.
The mother contends that the primary goal of her treatment
plan was psychological therapy. She states she was ordered by the
court to pay for her own therapy and was unable to do so because
she was indigent, dooming the treatment plan to failure. She
contends that because the treatment plan was a fundamental element
of the termination procedure, she was denied due process.
The termination of parental rights invokes fundamental liberty
interests. Sailtosky v. Krarner (1982), 455 U.S. 745, 102 S. Ct. 1388,
71 L. Ed. 2d 599. The State bears the burden of proving by clear
and convincing evidence that all statutory criteria needed to
terminate parental rights have been met, including the
appropriateness of the treatment plan. Suittosky, 455 U.S. at 769,
102 S. Ct. at 1403, 71 L. ~ d .2d at 616; Zit re L.W.K (1989), 236
Mont. 14, 18, 767 P.2d 1338, 1341. In this case, the treatment
plan was agreed upon by the mother with the advice of her counsel.
While that fact should be given consideration it does not by itself
prove the plan was appropriate. Matter o R.H. (Mont. 1991), 819 P. 2d
f
152, 155, 48 St. Rep. 692, 694.
The court-ordered treatment plan and contract entered into by
the mother states that the goal of the agreement is "to assist [the
mother] in improving her protection and parenting abilities with
her children . . . ." The return of the children to the mother was
contingent upon the successful completion of the tasks outlined in
the contract and the continued evaluation by the Department of
Family Services and other professionals described in the contract
regarding the mother's capacity to adequately protect and care for
her children. Among the specific tasks outlined for the mother
were:
1. I agree to contact a psychologist of my choice and
obtain a psychological evaluation as soon as
possible. I agree that this evaluation will
specifically address my ability to understand the
needs of children and my capacity to make necessary
changes to adequately protect and care for my
children. I agree to allow the psychologist access
to all available background information on my
parenting difficulties.
2. I agree to continue weekly mental health counseling
with a psychologist or licensed professional
counselor of my choice. I agree to allow
communication between the counselor and DFS
representative regarding my progress in making
necessary changes to understand the needs of my
children and to adequately protect and care for
them.
5. I agree to allow the Gallatin County Health
Department to make unannounced visits a minimum of
one time monthly to determine if my living
conditions are sanitary and suitable for young
children. Results of each visit will be made
available to myself and to the DFS representative.
An evaluation on the mother was performed by Dr. Richard
Traynham, a licensed clinical psychologist. Relying on standard
psychometrictests, clinical interviews, and background information
provided by the DFS, Dr. Traynham concluded that the mother
suffered from a chronic, entrenched paranoid personality disorder.
Dr. Traynham discussed the results of his evaluation with the
mother. His conclusions were that therapy would not be beneficial
at that time due to the entrenched nature of her paranoid
personality disorder. He noted that the mother consistently
refused to admit that she had any problems, making the prognosis
for change and a beneficial therapeutic relationship poor.
Consequently, Dr. Traynham supported the termination of the
motherls parental rights.
Visits to the mother's home by the Gallatin County Health
Department officials pursuant to the contract demonstrated an
environment which was unsuitable for children. An open irrigation
ditch ran adjacent to the mobile home, garbage and clutter
surrounded the property, and the home itself had no running water
and was filthy and cluttered. During one visit, the mother fled
from the home to avoid the officials and was found waist deep in
the water, hiding behind a tree. She returned to her home at the
request of the officials. The mother later moved to another mobile
home which was in an adult's only section of the park. When asked
by the manager if she intended to bring her children to live with
her, she responded that she intended to leave the state upon
reobtaining custody of the children.
There was substantial testimony regarding the failure of the
court-ordered treatment plan. The stated goal of the plan was to
assist the mother's parenting abilities. It addressed changing
behavior to accept responsibility for the children, and to make the
home environment healthy and safe. The testimony indicated that
the home environment continued to be grossly inadequate in terms of
health and safety, and that the mother continued in her denial of
any parenting difficulties, including that J.R. had ever been
abused. When the treatment plan was initiated by the court, the
condition of the mother's mental state was not known. Upon
psychiatric evaluation, it became apparent that the mother's mental
illness was of such a nature that further mental counseling would
be of little therapeutic benefit. Under these circumstances, the
treatment plan implemented in the mother's case was appropriate.
Substantial evidence was presented that the children were
abused and neglected; that the mother's mental state rendered her
an unfit parent; and that the situation was not likely to change
within a reasonable time. Evidence showed (1) that the mother's
residences were consistently unsuitable for children; (2) that J.R.
was dirty and evidenced social and scholastic impediments while in
the mother's care, and that marked improvement occurred upon
removal from her care; and (3) that the mother showed a serious
ambivalence in regard to her role as a mother, a lack of good
judgment and an incapacity to provide long-term care and protection
for her children. The decision of the district court to terminate
parental rights will not be disturbed on appeal unless there is a
mistake of law or a finding of fact not supported by substantial
evidence that would amount to a clear abuse of discretion. Matter
0fS.P. (1990), 241 Mont. 190, 786 P.2d 642. There is substantial,
credible evidence in this case to support the District Court's
conclusion that J.R. and S.D. are youths in need of care, that the
treatment plan was unsuccessful, and that the mother's condition is
unlikely to change within a reasonable time. Accordingly, we
affirm the judgment of the District Court.
We concur: