No. 94-290
IN THE SUPREME COURT OF THE STATE OF MONTANA
IN THE MATTER OF THE CUSTODY
AND PARENTAL RIGHTS OF M.M.,
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 Jeffrey Sherlock, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
James B. Obie, Attorney at Law, Helena, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General; John
Paulson, Ass't Attorney General, Helena, Montana
Mike McGrath, County Attorney; Carolyn A. Clemens,
Deputy County Attorney
Randi Hood, Public Defender, Helena, Montana
Submitted on Briefs: January 12, 1995
Decided: April 25, 1995
Filed:
Justice Karla M. Gray delivered the Opinion of the Court
Richard M. (Richard), the natural father of M.M., appeals from
the findings of fact, conclusions of law and order entered by the
First Judicial District Court, Lewis and Clark County, which
terminated his parental rights to M.M. We affirm, holding that the
District Court did not err in concluding that the treatment plans
provided for Richard were appropriate.
M.M. was born on July 11, 1989, to Richard M. and Elizabeth L.
In September 1992, the Lewis and Clark County Department of Family
Services (DFS) placed M.M. in emergency protective custody
following a report that Richard had taken him to a bar and spent
the day drinking, leaving M.M. unattended. On September 9, 1992,
Richard signed a stipulation agreeing to DFS' temporary
investigative authority over M.M. and preparation of a treatment
plan for Richard. The District Court approved the stipulation on
the same day.
Richard signed the treatment plan on October 29, 1992, and the
District Court subsequently approved it. The two goals of the
treatment plan were for Richard to exhibit stability in his
everyday lifestyle and end his dependence on alcohol. Richard was
required to maintain stable and safe housing, obtain a
psychological evaluation, complete approved parenting classes and
ensure that any adult residing in his household abided by the
provisions of the treatment plan. He also was required to obtain
a chemical dependency evaluation and follow the evaluator's
recommendations.
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On March 23, 1993, the District Court extended the treatment
plan for an additional six months. Two months later, Chris Valdez
(Valdez), the Lewis and Clark County (County) social worker
assigned to the case, reported that Richard was dishonest with
alcohol counselors and refused to participate in parenting classes.
Valdez recommended that Richard receive a psychological evaluation,
as required by the treatment plan, and continue to work towards
completing the plan. On May 25, 1993, the County, acting on behalf
of DFS, petitioned for adjudication of M.M. as a youth in need of
care.
On June 9, 1993, pursuant to a revised treatment plan signed
by both Richard and his attorney and in accordance with a
stipulation, the District Court ordered DFS to retain temporary
custody and investigative authority over M.M. The revised
treatment plan, approved by the court, required Richard to complete
parenting training with Greg Daly (Daly), take classes on fetal
alcohol syndrome, participate in Alcoholics Anonymous (AA) and
submit to 30 days of alcohol testing. The revised treatment plan
was to remain in effect for 90 days and stated specifically that
Richard's failure to abide by its terms would result in DFS
petitioning to terminate his parental rights to M.M.
Richard showed little, if any, progress on the goals and
tasks of the treatment plan during the following months, according
to Valdez's October 21, 1993, report. Richard had moved eleven or
twelve times during the course of Valdez's management of the case
and was involved with three different women, each of whom he
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required M.M. to address as "mother." At the time of the October
1993 report, Richard recently had married Toni M. They lived in a
two-bedroom apartment with seven other people, including Richard's
brother Thomas, a convicted child molester, and his brother's wife,
a convicted felon. Toni's parental rights to two of her children
had been terminated, she was caring for her 18-month-old child and
she and Richard were expecting a child.
Valdez also reported that Richard had failed to attend AA and
failed to report for alcohol testing. Following Valdez's report,
the County petitioned for the termination of Richard's parental
rights and for permanent legal custody of M.M. with the right to
consent to adoption.
On January 4 and 11, 1994, the District Court held a hearing
on the termination petition. Many of the professionals who had
worked with M.M. and Richard over the course of the preceding two
years testified, discussing the specific problems facing M.M. and
Richard, and Richard's failure to comply with the requirements of
the treatment plan.
Following the hearing, the District Court entered extensive
findings of fact, conclusions of law and an order terminating
Richard's parental rights. Richard appeals.
Did the District Court err in concluding that the
treatment plans approved for Richard were appropriate?
Section 41-3-609, MCA, sets forth the criteria for termination
of the parent-child relationship. Termination is authorized if the
court determines that the child is a youth in need of care and both
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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(l) cc), MCA.
The termination of parental rights involves fundamental
liberty interests. Matter of J.R. (1992), 253 Mont. 434, 438, 833
P.2d 1063, 1066 (citation omitted) As a result, the party
petitioning for termination has the burden of proving by clear and
convincing evidence that the statutory criteria needed to terminate
parental rights have been met. Matter of J.R., 833 P.2d at 1066.
A district court's conclusions of law in a termination proceeding
are reviewed to determine if they are correct. Matter of J.J.G.
(1994), 266 Mont. 274, 281, 880 P.2d 808, 812 (citation omitted).
In this case, we focus on the 5 41-3-609(l) (c) (i), MCA,
criterion for termination involving whether the parent complied
with an appropriate treatment plan. It is essentially undisputed
that Richard did not comply with either the original, or the
revised, plan and, indeed, he does not challenge any of the court's
extensive findings relating to his lack of compliance.
Richard argues that the District Court erred in concluding
that he was provided with an appropriate treatment plan prior to
termination of his parental rights. While he makes a passing
reference to a separate statutory factor regarding whether DFS made
reasonable efforts to rehabilitate him (see § 41-3-609(2) (g), MCA),
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the thrust of his argument is that a psychological evaluation of
him should have been obtained earlier than August 1993. According
to Richard, an earlier evaluation would have highlighted both his
borderline intellectual functioning and the need for a treatment
plan taking his limitations into account.
This Court has not specifically defined what constitutes an
"appropriate" treatment plan as a matter of law and, indeed, no
such bright line definition is possible given the unique
circumstances existing in each case. We have, however, recognized
several factors applicable to determining whether a treatment plan
is appropriate. One such factor is whether the parent was
represented by counsel and stipulated to the treatment plan. See
Matter of R.H. (1991), 250 Mont. 164, 169, 819 P.Zd 152, 155.
Here, both Richard and his counsel stipulated to the June 1993
treatment plan. While this fact does not establish that the plan
was appropriate, it is entitled to consideration. Matter of J.R.,
833 P.2d at 1066.
Other factors which must be taken into consideration in
determining whether or not the individual treatment plan is
appropriate are the particular problems facing both the parent and
the child. See Matter of S.C. (1994), 264 Mont. 24, 29, 869 P.2d
266, 269; Matter of J.R., 833 P.2d at 1065-66. In this case, it is
clear that DFS considered the particular physical and mental
problems facing both M.M. and Richard when devising and
implementing the treatment plans.
Dr. William Fulton (Fulton), a child psychiatrist and the
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medical director of child psychiatrist services at Shodair
Hospital, testified regarding M.M. 's problems at the termination
hearing. Fulton evaluated M.M. in December 1992, after M.M. was
admitted to address problems exhibited while in foster care,
including developmental and speech delay, self-injurious behavior
and aggression. According to Fulton, M.M. was functioning at the
level of an 18-month-old infant at age 41 months. Fulton's
evaluation also disclosed that M.M. was plagued by a number of
physical and mental problems, including reactive attachment
disorder, often the result of grossly neglectful caretaking;
possible post-traumatic stress disorder; mental retardation; fetal
alcohol syndrome; and a cleft palate.
Fulton opined that M.M. needed a parent who could
intellectually understand his condition and provide a stable,
consistent and loving environment. This opinion was echoed by Dr.
Susan Lewin, another Shodair physician trained in pediatrics and
medical genetics who had evaluated M.M.
The two broad goals of the treatment plan were for Richard to
maintain a stable lifestyle and to break his dependency on alcohol.
To meet these goals, Richard was responsible for obtaining safe and
stable housing, attending parenting and fetal alcohol syndrome
classes, obtaining a psychological evaluation and refraining from
the use of alcohol. Given Richard's documented alcohol problem and
transient lifestyle, these goals not only dovetailed into Fulton's
opinion of M.M.'s needs, but also were pertinent to Richard's
individual problems.
Besides the terms of the treatment plans, the professionals
who worked with M.M. and Richard also attempted to deal with their
unique problems. These social workers testified that they
understood both M.M.'s and Richard's particular needs and tried to
assist Richard in confronting and resolving these issues.
Ultimately, they concluded that Richard's inability to admit and
confront both his own and M.M.' s problems caused his failure with
the treatment plans.
Richard points out that the psychological evaluation performed
in August 1993 revealed he had borderline intellectual functioning.
On this basis, he argues that an appropriate treatment plan should
have provided him with such an evaluation earlier and then taken
the limited mental capabilities it disclosed into account in
designing the remainder of the plan. His argument is not
persuasive.
The October 1992 treatment plan prepared for Richard included
the requirement that he "contact a Department of Family Services
approved therapist to obtain a psychological evaluation and . . .
follow any recommendations." He did not do so. The June 1993
treatment plan included a nearly identical requirement. Richard
did not obtain the evaluation until August 1993 at which time his
borderline intellectual functioning was officially discovered
during a neuropsychological examination at St. Peter's Hospital.
While it is true that the State may assist a parent in completing
the treatment program, the parent retains the responsibility for
complying with the plan. Matter of R.H., 819 P.Zd at 156 (citation
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omitted). Richard was responsible for obtaining the evaluation at
an earlier time and simply failed to do so.
More importantly, however, Richard has not established how
earlier knowledge of his condition would have affected either the
particular requirements of the plan or the professionals' work with
Richard and the plan. Indeed, Richard has not argued with any
specificity what modifications to the treatment plans would, or
even might, have resulted from an earlier evaluation. A plain
review of the plans reveals that there is nothing complicated about
the tasks Richard was required to complete.
In addition, the professionals who worked with Richard seemed
to understand his limited intellectual abilities and tailored their
interaction with him accordingly. For example, psychotherapist
Bill Evans (Evans) met with Richard on numerous occasions in the
autumn of 1992 to work on his alcohol addiction, anger and
impulsiveness. When asked if Richard's limited intelligence had
affected their work together, Evans stated that, while he would
often have to repeat himself, Richard appeared to comprehend what
he was saying. In Evans' opinion, Richard's failure to respond to
the counseling sessions was due to his lack of motivation to make
the internal changes necessary to overcome his problems, not his
limited intelligence.
Daly, the instructor for Richard's parenting training, also
testified about the affect of Richard's limited intelligence on his
progress under the treatment plan. After working with M.M. and
Richard together, Daly developed parenting goals for Richard which
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included learning how to positively interact with--and discipline--
M.M., and how to act as an appropriate role model. Daly testified
that Richard resisted the education and would not accept or admit
that his son had disabilities that required special attention. As
a result, Daly saw no change in Richard's method of parenting. He
ultimately opined that Richard would continue to refuse to learn
the skills necessary to be an effective parent for M.M.
Daly was cross-examined about his knowledge of Richard's
limited intelligence and its impact on their work together. Daly
testified that he knew of Richard's limited intelligence from the
beginning and tailored his instruction accordingly.
The District Court also heard testimony from Valdez about the
affect Richard's intelligence had on his progress with the
treatment plan. On cross-examination, Richard's attorney asked
Valdez whether, if knowledge of Richard's limited intellectual
abilities had been known earlier, his performance under the
treatment plan would have been different. Valdez responded: "I
guess what I see is that it is not as much [Richard's] functioning
ability as his inability to . . . change how he functions and how
he parents his child."
Kelly Moorse (Moorse), M.M.'s guardian ad litem, was the only
witness who testified that advance knowledge of Richard's limited
abilities would have benefited his progress under the treatment
plans. She opined that earlier knowledge of Richard's condition
would have assisted both Richard and the professionals working with
him in dealing with his problems. Ultimately, however, Moorse
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testified that, while such knowledge would have "helped in terms of
approaches[,l I am not sure the outcome would have been any
different." Moorse's report recommended termination of Richard's
parental rights.
The inability of some parents to face deeply rooted personal
problems, often identified in the treatment plan, is not uncommon.
In Matter of J.R., the parent argued that a treatment plan
requiring her to obtain psychological counseling was not
appropriate because of her limited financial means. However, the
professionals who worked with the parent testified that the failure
of the plan resulted from her refusal to admit she had a problem,
not from her financial situation. We affirmed the termination
order, concluding that the District Court did not err in
terminating the parent's rights. Matter of J.R., 833 P.2d at 1067.
As was the case in Matter of J.R., the failure of the
treatment plan in this case is not the result of an inappropriate
plan; it is the result of Richard's failure to admit and address
the problems the treatment plan was designed to overcome. Nor was
the plan inappropriate because it did not specifically recognize
Richard's limited intellectual functioning. Earlier compliance by
Richard with the requirement that an evaluation be obtained would
have disclosed the information. Moreover, ample evidence exists
that the professionals who worked with Richard on the treatment
plans understood his level of intelligence and tailored their work
accordingly. We hold, therefore, that the District Court did not
err in concluding that Richard's treatment plans were appropriate
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within the meaning of 5 41-3-609(l) (c) (i), MCA.
Affirmed.
We concur:
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