No. 91-423
IN THE SUPREME COURT OF THE STATE OF MONTANA
1992
IN THE MATTER OF
J.J.C.H. and C.M.H.,
Youths in Need of Care.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Hon. Maurice R. Colberg, Jr., Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Paul E. Toennis, Toennis Law Office; Billings,
Montana
For Respondent:
Bard Middleton, Attorney at Law, Billings, Montana
Guardian Ad Litem:
Damon Gannett and Marvin R. Ventrell, Attorneys at
Law, Billings, Montana
Justice John Conway Harrison delivered the Opinion of the Court.
C.H., the natural mother of J.J.C.H. and C.M.H., appeals from
the order of the Thirteenth Judicial District Court, Yellowstone
County, terminating her parental rights and awarding custody and
care of J.J.C.H. and C.M.H. to the Montana Department of Family
Services. We affirm.
The mother presents one issue on appeal which we rephrase as
follows: Did the District Court abuse its discretion when it
terminated the mother's parental rights to J.J.C.H. and C.M.H.?
C.H. is a twenty-three-year-old mildly mentally retarded
woman. She is the natural mother of three children, two of whom
are the subjects ofthis proceeding, J.J.C.H. and C.M.H. J.J.C.H.
was born November 30, 1987; C.M.H. was born October 26, 1989. The
location of the fathers is unknown.
The Yellowstone County Health Department became involved with
this family on October 30, 1989, after receiving a referral from
Saint Vincent Hospital that a new mother needed assistance with her
newborn baby. The county health nurse instructed C.H. on feeding
techniques. After repeated instruction, C.H. demonstrated little
progress in improving her feeding techniques.
The Department of Family Services (Family Services) became
involved with this family on November 3, 1989, after receiving a
referral that C.H. 's home was a health and safety hazard. Upon
arriving at C.H.'s residence, the social worker found the residence
unsanitary. The social worker testified that she found dirty
dishes, dirty diapers, animal feces, food, garbage, and cigarette
butts strewn about the house. It appeared that dishes were being
reused rather than washed. The newborn apparently had not been
bathed for several days. J.J.C.H., approximately two years old at
the time, was observed picking up food from the floor and eating
it.
At the time of the initial j.nvolvement, C.H. and her two
children lived with C.H. Is sister, her three children, and her
boyfriend. Some of the uncleanliness was ascribed to C.H.'s
sister, however, cleanliness of the home continued to be a concern
throughout these proceedings.
Additionally, many household hazards that could be potentially
dangerous to young children existed in C.H.'s home. C.H.
experienced difficulty in protecting her children from such hazards
because she did not recognize them as hazards or she lacked the
attention needed by a parent to keep such items away from children.
Both the social worker and the county health nurse observed
J.J.C.H. with hazardous items in the child's hands; they also
observed C.H.'s failure to take the items from J.J.C.H. until
instructed to do so.
Both children suffered developmental delays, yet when they
were removed from C.H.'s care their development improved
substantially. For example, C.H:. experienced difficulty in
providing stimuli for the children's intellectual development.
J.J.C.H. was nonverbal at age two, while average children his age
have a vocabulary of approximately t.wentywords. To confront this
problem, C.H. was unsuccessfully instructed to speak properly to
the children and not to use "baby talk."
Shortly after the County Health Department and Family Services
became involved with C.H., C.H. moved to Lewistown. Referrals were
made to Lewistown Family Services shortly upon C.H.'s arrival.
Family Services filed a petition in the Tenth Judicial District
Court for temporary investigative authority on January 19, 1990,
after it learned that C.M.H. was admitted to the hospital with
double ear infections and diarrhea that began approximately three
to four days prior. The attending physician's diagnosis was
moderately severe failure to thrive, probably secondary to
inadequate parenting. On that basis, the court issued an order for
protective services on January 22, 1990; both children were placed
in a foster home.
J.J.C.H. and C.M.H. were transferred to a foster home in
Billings when C.H. moved back to Billings. C.H. met with social
workers and the county health nurse on various occasions regarding
parenting her children. C.H. had supervised visits with her
children in which the social workers and nurses observed C.H.'s
conduct around the children.
C.H. entered into three service treatment agreements with
Family Services which were approved by the court. The first
agreement was effective March 21, 1990, through April 19, 1990; the
second was effective June 1, 1990, through October 19, 1990; and
the third was effective December 10, 1990, through March 1, 1991.
The three agreements had varying terms, but all terms were intended
to help C.H. become a fit parent to regain custody of her children.
Pursuant to these agreements, C.H. met with the social workers and
C.H.'s children weekly, she attended some parenting classes, and
she met with the county health nurse. The agreements also
instructed C.H. on home cleaning techniques and safety standards.
In violation of the agreements, C.H. failed to adequately clean her
home, she failed to recognize potential hazardous conditions for
the children, and she did not demonstrate an increased knowledge in
parenting. C.H. also missed several appointments with the county
health nurse.
Lewistown Family Services petitionted the court for temporary
custody. On May 25, 1990, Judge Rapkoch adjudicated J.J.C.H. and
C.M.H. as youths in need of care and granted legal custody of the
children to Family Services for six months. Jurisdiction was then
transferred from Lewistown to Billings where the Yellowstone County
Attorney, on behalf of Family Services, filed a petition for
..
permanent legal custody of J J C .H. and C.M.H. , and for the
termination of C.H.'s parental rights.
C.H. gave birth to her third child in December of 1990. In
mid-January, C.H. and her new infant,,N.T., relocated to the
Crittenton Home in Helena where C.H. received in-house, supervised
parenting instruction.
After hearing arguments on March 1 and 4, 1991, the District
Court terminated C.H.'s parental rights to J.J.C.H. and C.M.H. and
awarded Family Services permanent custody of the children. The
court concluded that J. J . C . H . and C.M.H. were adjudicated youths in
need of care pursuant to § 41-3-102, MCA, that C.H. had not been in
complete compliance with the service treatment agreements, and that
her unfitness was unlikely to change. The court further found that
a continuation of the parent/child relationships between C.H. and
J.J.C.H. and C.M.H. would likely result in continued endangerment
and neglect and that it was in the best interest of the children
that C.H.'s parental rights be terminated. C.H. appeals.
The sole issue on appeal is whether the District Court abused
its discretion in terminating C.H.'s parental rights to J.J.C.H.
and C.M.H. A judicial determination terminating parental rights
must be supported by clear and convincing evidence. In re A.W.
(1991), 247 Mont. 268, 272, 806 P.2d 520, 523. This Court will not
disturb the district court's decision on appeal unless a mistake of
law exists or a finding of fact is not supported by substantial
credible evidence. In re S.P. (1990), 241 Mont. 190, 194, 786 P.2d
642, 644. We presume that the district court's decision is correct
and will uphold its findings unless a clear abuse of discretion
exists. In re S.P., 241 Mont. at 194, 786 P.2d at 644.
Termination of parental rights is governed by 5 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;
(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 tothe physical, mental,
and emotional conditions and needs of the child. ...
C.H., the natural mother, contends that the State failed to prove
by clear and convincing evidence that the above statutory
requirements for terminating parental rights have been satisfied.
In re F.M. (1991), 248 Mont. 358, 363, 811 P.2d 1263, 1266.
C.H. does not contest that J.J.C.H. and C.M.H. are youths in
need of care. C.H. does argue that the District Court abused its
discretion in terminating her parental rights because insufficient
evidence existed to support the court's findings that she failed to
comply with the treatment plans and that her fitness was unlikely
to change within a reasonable time. We disagree. Substantial
credible evidence existed supporting the District Court's
determination.
Testimony elicited from Merry Richmond, a social worker from
Family Services: Janie Hackert, a nurse fromthe Yellowstone County
Health Department; and Dr. Richard Agosto, the clinical
psychologist who evaluated C.H.; supports the District Court's
decision. The record reveals that these professionals participated
in a program to help reunite C.H. with her two children and were
qualified to testify regarding C.H.'s parenting abilities.
Merry Richmond testified that C.H. did not fully comply with
the terms of the service treatment agreements which C.H. entered
into with Family Services. Richmond commented on C.H.'s non-
compliance as follows:
Q. So you are testifying that this natural mother has
not complied with the terms of this agreement [approved
by the court December 17, 19901: correct?
A. Yes.
Q. What has she failed to do?
A. She failed to keep items that were potentially
dangerous to the children out of reach. Her carpets
weren't vacuumed at visits all the time. She did not
attend parenting classes. She did not demonstrate
increased knowledge of parenting skills in order to
protect and adequately care for her children, recognizing
dangerous situations and hazards. And attending to both
children's needs without being distracted. Recognizing
hunger cues. Not using baby talk around the children.
Not being able to demonstrate successfully what she has
learned.
Janie Hackert testified that she met with C.H. approximately
thirty times during her involvement with C.H. The purpose of these
meetings was to teach C.H. parenting skills. The following
testimony was elicited concerning C.H.'s success.
Q. Were there things you feel [C.H. ] was not successful
in implementing?
A. Yes.
Q. What are those things?
A. I feel that she was unsuccessful in being consistent
in safety measures in her home. And I feel she was also
inconsistent in providing activities for the children
during visits, games, activities.
Q. What about cleanliness of her house?
A. That, again, was inconsistent to date.
Dr. Agosto testified as to his evaluation of C.H. He
performed a series of tests on C.H. to assess her ability and
knowledge of parenting; he concluded that C.H. could not
effectively parent three children at one time. Dr. Agosto
testified that he did not anticipate that C.H. would grow in the
area of basic parenting skills. Based on the services C.H. has
already received, Dr. Agosto surmised that it may be possible for
C.H. to parent less than three children, but concluded the
probability as low.
C.H. argues that she substantially complied with the first two
service treatment agreements and that due to the birth of her third
child, she did not have the opportunity to comply with the third
service treatment agreement. C.H. also contends that any non-
compliance with the first two agreements was minimal. However,
partial compliance with a treatment plan is insufficient. In re
H.R.B. (1989), 239 Mont. 387, 389, 780 P.2d 1139, 1140. The
District Court properly weighed the evidence concerning C.H.'s
failure to fully comply with the treatment plans. Substantial
credible evidence existed to support the District Court's findings.
Next, C.H. contends that the District Court's finding that her
unfitness as a parent is unlikely to change within a reasonable
time is unsupported by substantial credible evidence. We disagree.
The professionals involved in this case all testified that C.H.'s
chances of becoming a capable parent were low. Additionally, the
court considered a report from the Crittenton Home based on C.H.'s
stay at the Home after the birth of her third child. The staff at
the Crittenton Home found C.H. to be an incompetent parent even
after participating in this structured residential parental
training program. From this information, and after apparently
giving considerable weight to subsections (2)(a) and (2)(g) of
5 41-3-609, MCA, the court properly concluded that C.H. was
incapable of becoming fit in a reasonable time.
Furthermore, the District Court was bound to give primary
consideration to the physical, mental, and emotional conditions and
needs of the children when determining that the mother is unfit and
unlikely to change her conduct. Section 41-3-609(3), MCA. Best
interests of the children is paramount and takes precedence over
parental rights. In re J.W. (1988), 232 Mont. 46, 50, 757 P.2d
769, 771; quoting In re C.A.R. (1984), 214 Mont. 174, 182, 693 P.2d
1214, 1219.
In conclusion, we hold that the District Court did not err
when it terminated C.H.'s parental rights. The record contains
substantial credible evidence supporting the District Court's
conclusion that C.H. failed to fully comply with the treatment
plans and that her lack of fitness as a parent is unlikely to
change within a reasonable time.
Affirmed.
We concur:
u
March 3, 1992
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
Paul E. Toennis
TOENNIS LAW OFFICE
316 N. 25th Street
Billings, MT 59103
BARD G. MIDDLETON
Attorney at Law
P.O. Box 1084
Billings, MT 59103-1084
DAMON GANNETT
Attorney at Law
P.O. Box 1375
Billings, MT 59101
Susan P. Dunn
Deputy Yellowstone County Attorney
P.O. Box 35025
Billings, MT 59107
MARC RACICOT, Attorney General
, Assistant
Justice Bldg.
Helena, MT 59620
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA