No. 93-622
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994
IN RE THE CUSTODY OF T.M.,
A Youth in Need of Care.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark,
The Honorable Thomas C. Honzel, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
J. Mayo Ashley, Attorney at Law,
Helena, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General,
Patricia J. Jordan, Assistant Attorney
General, Helena, Montana
Mike McGrath, Lewis and Clark County
Attorney, Carolyn Clemens, Deputy County
Attorney, Helena, Montana
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Decided: October 4, 1994
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Justice William E. Hunt, Sr., delivered the opinion of the Court.
Appellant Robert Dare11 Martz appeals from an order of the
First Judicial ~istrictCourt, Lewis and Clark County, terminating
appellantlsparental rights over T.M.
Af finned.
The sole issue on appeal is whether the ~istrictCourt abused
its discretion in terminating the parental rights of appellant.
T.M. was born May 5, 1989. Appellant is T.M.Is natural
father. T.M. s mother, Cindy Bruno Martz , died in an automobile
accident when T.M. was 14 months old.
T.M. has been diagnosed as having fetal alcohol syndrome. As
a result, he requires a structured environment and constant
parental supervision.
Appellant was incarcerated in Washington State when T.M. was
born, and from October 1991 through November 1992, as well as on
several other occasions while T.M. was in his care.
In February 1993, appellant was convicted of driving under the
influence and served five days in jail. In April 1993, he was
convicted of domestic abuse and served three days in jail.
Appellant was convicted of driving under the influence for the
third time in April 1993. He was sentenced to one year in the
county jail, with all but 30 days suspended, on the condition that
he receive treatment at Galen State Hospital. Appellant attended
the program but did not graduate because of rule infractions.
On or about April 7, 1993, appellant was arrested for abusing
his live-in girlfriend. The Department of Family Services (DFS)
was informed that appellant had been driving intoxicated with T.M.
in the car. Thereafter, the DFS removed T.M. from appellant and
placed him in foster care.
The DFS requested family-based services to assist appellant.
Appellant was assessed as needing chemical dependency treatment,
parenting assistance, and family therapy.
On April 16, 1993, the DFS filed a petition for temporary
investigative authority, protective services, temporary custody,
and for adjudication of T.M. as a youth in need of care. At the
time the petition was filed, T.M. was in foster care because
appellant was incarcerated for domestic abuse.
By stipulation dated May 6, 1993, appellant agreed that T.M.
was a youth in need of care and that the DFS would have temporary
investigatory authority, protective services, and temporary custody
of T.M. for six months. The stipulation was entered as an order of
the court on March 14, 1993, and it authorized the DFS to develop
a treatment plan. The plan required appellant to obtain treatment
for his chemical dependency; to complete an anger management or
domestic abuse program; to successfully complete a parenting class;
to attain and maintain safe housing; and to remain a law abiding
citizen.
On June 13, 1993, appellant was arrested for obstructing a
police officer. Appellant was intoxicated at the time. He was
referred to the Boyd Andrew Chemical Dependency Care Center which
placed him in its intensive outpatient program. Appellant was
discharged from the program for failing to complete an assignment
and for failing to keep an appointment with his counselor.
The DFS agreed to pay the costs for appellant's July 1993
alcohol treatment, parenting classes, and anger management classes.
Appellant was dropped from each of these programs because he was
arrested three times in July 1993 for alcohol related incidents.
As a result of the above facts, the State filed a petition to
terminate parental rights on August 25, 1993. A hearing was held
on September 23 and 27, 1993. On October 25, 1993, the District
Court entered its order which provides:
1. [T.M. ] is a youth in need of care. All parental
rights of Robert Martz, the father of the youth, are
hereby terminated and he shall have no further legal
claims to [T.M.] or to his property.
2. [T.M.] is hereby placed in the permanent legal
custody of the Montana Department of Family services.
3. The Montana Department of Family Services is
authorized to place the youth for adoption and to consent
to his adoption.
The court concluded that appellant failed to comply with his
treatment plan, and that the conditions that made appellant unfit
as a parent were not likely to change with the passage of time.
Did the ~istrictCourt abuse its discretion in terminating the
parental rights of appellant?
Appellant argues that the court failed to consider a11 of the
available information regarding appellant's efforts to become a
good parent, and abused its discretion by terminating his parental
rights pursuant to 5 41-3-609, MCA.
The appropriate standard of review to be applied to purely
factual findings in a proceeding to terminate parental rights is
whether the findings are clearly erroneous. .
Matter of J J.G.
(Mont. l994), 51 St. Rep. 793, 796; Matter of D.H. and F.H.
(Mont. 1994), 51 St. Rep. 386; Interstate Production Credit Assln
v. DeSaye (1991), 250 Mont. 320, 820 P.2d 1285. We review
conclusions of law in atermination proceeding to determine whether
they are correct. Matter of J.J.G. 51 St, Rep. at 796; Matter of
D.N. and F.H., 51 St. Rep. at 387; In re Marriage of Burris (l993),
258 Mont. 265, 269, 852 P.2d 616, 619.
The criteria for termination of parental rights are set forth
in 3 41-3-609, MCA, which provides in part:
(1) The court may order a termination of the
parent-child legal relationship upon a finding that any
of the following circumstances exist:
. . * a
(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; or
(d) the parent has failed to successfully complete
a treatment plan approved by the court within the time
periods allowed for the child to be in foster care under
41-3-410 unless it orders other permanent legal custody
under 41-3-410.
T.M. was adjudicated a youth in need of care on May 6, 1993.
On May 10, 1993, appellant signed his court approved treatment
plan. However, appellant did not complete his chemical dependency
programs at either Galen State ~ospitalor Boyd Andrew chemical
Dependency Care Center. Appellant did not complete his parenting
and anger management classes after being arrested on three separate
alcohol related incidents. At the time of the District Court
hearing, appellant did not have a stable home. Appellant did not
remain law-abiding. He was arrested and incarcerated five times in
June and July, 1993. The record clearly demonstrates that
appellant did not comply with or succeed at his treatment plan.
The District Court concluded that the conduct or conditions
that rendered appellant unfit as a parent were unlikely to change
within a reasonable time pursuant to 5 41-3-609 (2) and (3), MCA,
which provides in part:
(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:
....
(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 record supports the District Court ' s conclusion.
effort to rehabilitate appellant, the DFS agreed to pay the cost of
appellant's July 1993 treatment programs. Appellant did not
complete these programs, due to his incarcerations. Pam Ponick, a
licensed family services counselor, worked closely with appellant.
She expressed serious concerns about appellant's ability to parent
and his refusal to address his chemical dependency. She determined
that before he could parent T.M., appellant would need at least one
year of sobriety, parent training, and therapy.
Dr. Susan Lewin, a geneticist at Shodair Hospital, diagnosed
T.M. as having suffered a prenatal event that was probably fetal
alcohol effect. She found that T.M. needed a stable, highly
structured environment with a consistent, full-time parent. Having
a parent drop out of his life for periods of time would be very
damaging to T.M. Prior to being placed in foster care, T.M. had
seven care takers, appellant not included. T.M. was enrolled in a
preschool program for children with disabilities. His teacher,
Peggy Hollow-Phelps, testified that when T.M. first arrived he had
difficulties with fine motor coordination, communication, problem
solving, and social interaction. By contrast, Ms. Hollow-Phelps
found that T.M. made a 21-month gain in development after being
placed in foster care.
Finally, the District Court was bound to give primary
consideration to the physical, mental, and emotional conditions and
needs of the child. Section 41-3-609(3), MCA. The best interest
of the child is paramount and takes precedence over parental
rights. Matter of J.J.C.H. (1992), 252 Mont. 158, 165, 827 P.2d
812, 816; In re J.W. (1988), 232 Mont. 46, 50, 757 P.2d 769, 771.
It is clear from the record that T.M. Is best interest was served by
terminating appellant's parental rights.
We conclude the District Courtls findings are not clearly
erroneous. The District Court properly applied the criteria set
forth in 5 41-3-609, MCA, to the facts in the present case. The
court concluded, and we agree, that T.M. was a youth in need of
care; that appellant failed to comply with his treatment plan; and
that the conditions that made appellant unfit as a parent were
unlikely to change within a reasonable time.
We hold that the District Court did not abuse its discretion
in terminating appellant's parental rights.
W e affirm.
We concur:
Chief Justice
October 4, 1994
CERTf FICATE OF SERVICE
I hereby certify that the following certified order w s sent by U i e States mail, prepaid, to the
a ntd
following named:
I J. Mayo Ashley
Attorney at Law
222 Broadway
Helena, MT 59601
Carolyn A. Clemens, Deputy Co. Amy.
Lewis & C a k County Courthouse
lr
228 Broadway
Helena, MT 59601
Hon. Joseph P. Mazurek, Attorney General
Patricia J. Jordan, Assistant
Justice Building
Helena, MT 59620
ED SMITH
CLERK OF THE SUPREME COURT
STAm OF MONTANA