No. 95-298
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996
IN THE MATTER OF THE CUSTODY AND
PARENTAL RIGHTS OF C.S.,
Youth in Need of Care.
APPEAL FROM: District Court of the First Judicial District,
1n and for the County of Lewis and Clark,
The Honorable Jeffrey Sherlock, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Thomas S. Winsor; Winsor Law Firm,
Helena, Montana
For Respondent:
Hon. Joseph Mazurek, Attorney General,
Micheal S. Wellenstein, Ass't Attorney General,
Helena, Montana
Mike McGrath, County Attorney; Carolyn A. Clemens,
Deputy County Attorney, Helena, Montana
Randi M. Hood, Helena, Montana
z
1 Submitted on Briefs: January 25, 1996
Chief Justice J. A. Turnage delivered the Opinion of the Court
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1995 Internal Operating Rules, the following decision shall not be
cited as precedent and shall be published by its filing as a public
document with the Clerk of the Supreme Court and by a report of its
result to State Reporter Publishing and West Publishing Companies.
The First Judicial District Court, Lewis and Clark County,
terminated the parental rights of C.S.'s mother and father. The
mother appeals. We affirm.
The issues are:
1. Did the court err in granting the State's petition for
temporary investigative authority and protective services?
2. Was the mother prejudiced because a joint hearing was held
concerning termination of both parents' rights?
3. Was the testimony of the foster parent prejudicial?
4. Did the District Court err in terminating the mother's
parental rights?
C.S. was born in April 1993. Her mother, who was not married
to or living with C.S.'s father, voluntarily placed C.S. in foster
care for five days shortly thereafter while the mother was
hospitalized. C.S. then returned to her mother's care.
Several weeks later, the Department of Family Services (DFS)
filed for temporary investigative authority. The mother's parental
rights to her first child, a daughter, had been terminated in 1985
as a result of sexual abuse, and DFS was concerned about possible
recurrence of similar abuse. DFS had also been involved in the
2
mother's relinquishment for adoption of her second daughter, in
1989.
In June 1993, DFS and the mother entered a court-approved
stipulation allowing DFS to develop a treatment plan and to place
C.S. in foster care if DFS deemed it necessary. The mother then
went to Tennessee with C.S. and C.S.'s father, without notifying
DFS. Two months later, when the mother applied for food stamps in
Great Falls, Montana, DFS became aware that she and C.S. had
returned to the state. DFS removed C.S. from her mother's care,
placed her in foster care, and asked the District Court for
temporary custody and a declaration that C.S. was a youth in need
of care. On August 30, 1993, DFS and the mother stipulated to
those terms and that DFS should prepare a treatment plan.
In Novemiier and December :t994, the court held a hearing on
termination of bo.th parents' rights. DFS ;sreser;ted evidence that
C.S. 's father had failed to coi:rpiy with the terms of his treatment
plan. DFS conceded that by the time of the hearing, the mother had
complied with all terms of her treatment plan except one: a
requirement that she arrange for suitable housing for herself and
C.S. The court terminated both the mother's and the father's
parental rights to C.S. The mother appeals.
i
Did the cvJrt err in granting the State's petition for
temporary investigative authority and protective services?
In support of this claim, the mother argues that allegations
that she sexually abused her oldest daughter were never proven.
3
She also complains that a consent form she signed while hospital-
ized shortly after C.S.'s birth, allowing C.S. to be put up for
adoption if the mother died, represented an overstepping of bounds
by DFS.
We will not put a district court in error for a ruling or
procedure in which the appellant acquiesced or participated. In re
Pedersen (1993), 261 Mont. 284, 287, 862 P.2d 411, 413. The mother
stipulated to temporary investigative authority in June 1993, with
advice of counsel. She cannot therefore now complain about the
grounds on which that authority was granted. Further, neither the
granting of temporary investigative authority nor the termination
of the mother's parental rights was based upon an adoption consent
form. We hold that the mother has not shown error in the granting
of the petition for temporary investigative authority or violation
of her rights during that process.
Was the mother prejudiced because a joint hearing was held
concerning termination of both parents' rights?
The mother contends she was prejudiced by the joint hearing
because her interests and those of C.S.'s father were hostile. She
argues that the hostile positions of the parents served to enhance
the case for termination of parental rights.
The mother first objected to the joint hearing on the day of
the hearing. In denying her request for separate hearings, the
court stated that it would sever the hearings if, during the
hearing, problems arose. Several witnesses testified concerning
4
both parents. The mother does not refer to specific portions of
the record in support of her allegations of prejudice. After
reviewing the record, we conclude that the mother has not demon-
strated grounds for reversal on this basis.
III
Was the testimony of the foster parent prejudicial?
This argument is based on the foster father's testimony that
his wife expressed a desire to adopt C.S. after C.S.'s first stay
with the family for approximately five days shortly after her
birth. The mother maintains that the only justification for
introducing testimony regarding the potential adoption is that it
would be in the best interests of the child, which she says is not
the proper standard.
Again, we will not find error in a procedure in which the
appellant acquiesced or participated. Peterson, 862 P.2d at 413.
The mother's counsel elicited testimony from both the foster father
and the DFS caseworker to the same effect as the testimony about
which she now complains. We conclude that the objection made under
this issue has been waived.
IV
Did the District Court err in terminating the mother's
parental rights?
Section 41-3-609(l) (c), MCA (19931, provides:
(1) The court may order a termination of the parent-
child legal relationship upon a finding that any of the
following circumstances exist:
(cl 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
timeL.1
The State has the burden of proving by clear and convincing
evidence that the statutory criteria under § 41-3-609(l) (c), MCA,
have been met. Matter of S.C. (1994), 264 Mont. 24, 28, 869 P.2d
266, 268.
In the present case, a DFS caseworker testified that C.S.'s
mother had not fully complied with the treatment plan objective
that "[The mother] has suitable housing for she [sic] and [C.S.].
The Department will determine if housing is suitable." The
caseworker testified that when the treatment plan was initiated,
the mother, who has limited mental capability, was living with her
own mother and brother. This was not viewed as suitable housing
for the mother and C.S. because the mother's brother has sexually
molested the mother in the past.
The caseworker testified that the mother rented a one-bedroom
apartment several months prior to the hearing. Her fiance, whom
she planned to marry in February 1994, had no residence of his own
and often stayed with her there. The DFS caseworker and the
fiance's mental health caseworker both testified that both the
fiance and the mother had repeatedly been told that if he was to be
a member of the mother's household, he must complete a parenting
training class before she could regain custody of C.S. The fiance
6
had not undertaken parenting training, yet the mother allowed him
to stay in her apartment.
The mother's caseworker testified that the mother's fifteen-
month failure to obtain suitable housing for herself and c.s.,
combined with her long-term history of involvement with abusive
male partners, made it unlikely that her failure to obtain suitable
housing would change within a reasonable time.
As we have noted, in August of 1993, the mother stipulated to
the court's declaration that C.S. was a youth in need of care. The
record clearly supports termination of the mother's parental rights
under § 41-3-609(l) (c), MCA. The District Court concluded that the
mother had failed to complete her treatment plan by failing to
obtain suitable housing for herself and C.S., and that her long
history of involvement with DFS indicates that change will not
occur in the near future.
The decision of the District Court is affirmed.
/I ‘ /f- /,
Chief Justice
We concur:
Y
1
Justices
Justice Terry N. Trieweiler dissenting.
I dissent from the majority opinion. I conclude that as a
matter of law there was insufficient evidence for state action as
harsh as the termination of this mother's parental rights.
There was no evidence that C.S. had ever been abused. There
was no evidence that she had ever been neglected.
C.S. was born on April 20, 1993. Shortly thereafter her
mother had to return to the hospital for treatment of bleeding
ulcers and agreed to the temporary placement of her daughter in
foster care. On May 21, 1993, when C.S. was approximately one
month old, the Department of Family Services petitioned for
temporary investigative authority based solely on the fact that
parental rights to a different child had been terminated in 1986
and that a second child had been relinquished for adoption in 1989.
Significantly, there was no allegation that the daughter, who was
the subject of these proceedings, had ever been neglected or
mistreated in any way. The Department alleged that she was in
danger of being abused based on unproven allegations that the
mother had abused another daughter over eight years earlier.
The mother, whom the court ultimately found suffers from
anxiety and has borderline intelligence, agreed to temporary
investigative authority and later agreed to the treatment plan
proposed by the Department of Family Services. The treatment plan
required that she (1) undergo a sex offender appraisal,
(2) complete a parent training course, (3) acquire suitable
housing, (4) make weekly visits to her daughter while the daughter
8
remained in foster care, (5) avail herself of child health
services, and (6) keep the Department of Family Services advised of
any address changes.
When it was later learned that the mother kept frequent
company with a male companion, an additional provision was added to
the treatment program by the court that he also attend and complete
the parent training course.
There was no description in the treatment plan of what
constituted "suitable housing" for an unemployed single mother who
was living on welfare. The plan simply provided that ‘I [tl he
Department will determine if housing is suitable."
In spite of the fact that she lived in poverty, C.S.'s mother
found housing in which she and her daughter could live. However,
the Department determined it was unsuitable because it had only one
bedroom. Although the mother adequately complied with the
treatment program in every other respect, the District Court
terminated her parental rights based on its finding that she had
not provided adequate housing and that her male companion had not
completed parent training classes.
Based on the record, I conclude that C.S.'s mother did comply
with her court-ordered treatment program in every possible respect,
that the court had no authority to require that a nonparent enter
into a treatment program, and that because of her compliance with
her treatment program, the District Court was without authority to
terminate her parental rights.
9
We have repeatedly held that parental rights involve a
fundamental liberty interest and that a decree terminating such
rights must be supported by clear and convincing evidence. In re
S.P.M. (1994), 266 Mont. 269, 271, 880 P.2d 297, 298. In this case,
before parental rights could be terminated the State had the burden
of proving that: (1) C.S. had been adjudicated a youth in need of
care; (2) an appropriate treatment plan had been approved by the
court and not complied with by the parent; and (3) the conduct or
condition that rendered this parent unfit was unlikely to change
within a reasonable time. Section 41-3-609(l) (cl, MCA.
Although C.S. 's mother stipulated to temporary investigative
authority pursuant to 5 41-3-402, MCA, the basis for the Department
of Family Services' petition was questionable. However, assuming
that the stipulation satisfied the first requirement of § 41-3-
609 (1) Cc), MCA, the State still had the burden of proving by clear
and convincing evidence that C.S.'s mother had not complied with
her treatment plan. It was irrelevant whether her male companion
complied with the treatment program. Section 41-3-609(l) (c) (i),
MCA, refers only to a "parent's" failure to comply with the
treatment program. It is doubtful that the District Court had any
authority to even require that a nonparent enter into a treatment
program based simply on his association with a parent, or that the
parent could subsequently be penalized for the nonparent's failure
to satisfactorily comply with that program.
10
C.S.'s mother did satisfactorily comply with the court-ordered
treatment program. The only manner in which she arguably failed
was the quality of her housing. However, it was only considered
inadequate based on the absence of more than one bedroom, and even
without more than one bedroom, the Department of Family Services
conceded it was an adequate apartment had C.S.'s mother not had a
male companion.
The frightening implication of the majority's decision is that
something as fundamental as a parent's rights can be terminated
based on that person's economic status or inability to provide a
home that meets some middle class notion of suitability. Based on
the standards applied in this case, most parents in the third world
would be found unfit. The precedent set by this is case shocking.
For these reasons I dissent from the majority opinion.
11
April 12, 1996
CERTIFICATE OF SERVICE
I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:
THOMAS S. WINSOR
Wiisor Law Firm
P.O. Box 767
Helena, MT 59624
Mike McGrath, County Attorney
CAROLYN A. CLEMENS, Deputy
Lewis & Clark County
County Courthouse
Helena, MT 59601
J. MAYO ASHLEY
Attorney at Law
222 East Broadway
Helena, MT 59601
RAND1 M. HOOD
Lewis & Clark County
Courthouse
22.5 East Broadway
Helena, MT 59601
HON. JOSEPH MAZUREK, ATTORNEY GENBRAL
Michael S. Wellenstein, Assistant
Justice Building
Helena, MT 59620
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA