NO. 95-380
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996
IN RE A.L.K., K.L.K., and M.S.C.,
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 Appellants:
Jeremy Gersovitz, Public Defender's Office,
Helena, Montana (for Brian Shane Casey)
James B. Obie, Attorney at Law,
Helena, Montana (for Tessa Krause)
For Respondent:
Hon. Joseph P. Mazurek, Attorney General,
Pamella Collins, Assistant Attorney General,
Helena, Montana
Mike McGrath, Lewis and Clark County Attorney,
Carolyn A. Clemens, Deputy County Attorney,
Helena, Montana
Submitted on Briefs: January 25, 1996
Decided: February 22, 1996
Filed:
Justice Terry N. Trieweiler 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 Company and West Publishing
Company.
On January 3, 1995, the Montana Department of Family Services
(DFS) filed a petition with the District Court for the First
Judicial District in Lewis and Clark County to terminate the
parental rights of Tessa Krause, Dennis Mackey, and Brian Shane
Casey. Following a three-day hearing, the District Court issued an
order which terminated the parental rights of the three parents and
transferred custody of the children and the right to consent to
adoption to DFS. Tessa Krause appeals the District Court's order
which terminated her parental rights to A.L.K., K.L.K., and M.S.C.
Brian Shane Casey (Shane) appeals the District Court's order which
terminated his parental rights to M.S.C. We affirm the order of
the District Court.
There are two issues on appeal:
1. Did the District Court err when it terminated Shane's
parental rights to M.S.C.?
2. Did the District Court err when it terminated Tessa's
parental rights to A.L.K., K.L.K., and M.S.C.?
FACTUAL BACKGROUND
Tessa Krause is the natural mother of three children: A.L.K.,
born July 16, 1989; K.L.K., born March 25, 1991; and M.S.C., born
May 2, 1992. Each of the children has a different father. Brian
Shane Casey is the natural father of M.S.C. A.L.K.'s father was
not a party to the original district court action, and K.L.K.'s
father has not appealed the order of the District Court terminating
his parental rights.
Tessa and Shane began living together in 1990 when Tessa was
five months pregnant with K.L.K. They remained together off and on
until February 26, 1995, at which time both were arrested for
domestic abuse. Shane was thereafter incarcerated. He had received
a ten-year suspended sentence for felony theft in Missoula County
and his sentence was reinstated for the domestic abuse charges and
for drug usage.
The Montana Department of Family Services became involved with
the family in 1992, when A.L.K. was admitted to Shodair Children's
Hospital for violent and self-abusive behavior. At the hospital,
A.L.K. was diagnosed with post-traumatic stress disorder, attention
deficit hyperactive disorder, and reactive attachment disorder of
early childhood. His case worker determined that his emotional
disturbance might be the product of a violent and chaotic home
life. She recommended that Tessa have an in-home provider of
parent training, further parenting classes, and individual therapy.
In addition, she referred A.L.K. to Mental Health Services for
continued therapy. Tessa, however, did not follow through with
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A.L.K.'s therapy and did not attend any of the appointments made
for her to assist her in dealing with A.L.K.'s problems. The
Mental Health Center terminated A.L.K.' s therapy on September 28,
1994, because of nonattendance.
K.L.K. was evaluated by a clinical therapist in September and
October 1994. At that time, K.L.K. was diagnosed with disruptive
behavior disorder and possibly reactive attachment disorder. She
manifested her emotional problems through biting, kicking, self-
destructive behavior, and inappropriate sexual behavior. In
addition, she was diagnosed with severe stress-related gastro-
intestinal problems which were unusual for a child of her age. The
therapist, who tried unsuccessfully to involve Tessa in the
evaluation, determined that K.L.K.'s home environment needed to be
consistent, structured, and safe. It was her opinion that if
K.L.K.'s home life did not improve, she would be in danger.
K.L.K. and M.S.C. attended the Children's Center from January
1995 through March 1995. The children, however, had difficulty
adjusting to the program. Their behavior included kicking,
hitting, spitting, biting, and a general failure to sit still. In
addition, K.L.K. was disruptive during nap time and displayed
sexually inappropriate behavior. Because of K.L.K.'s aggressive
behavior, the center hired an aide to work exclusively with her.
Even with the help of the aide, however, the center determined that
K.L.K.'s and M.S.C.'s needs were beyond the services it could
offer. In March 1995, the center terminated the children from its
program. A.L.K., who attended both the Children's Center and the
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pre-kindergarten at Rossiter Elementary School, continued to have
severe behavioral problems.
Between July 1993 and March 1995, the three children were in
foster care for a combined total of almost thirteen months. On
December 30, 1992, A.L.K. and K.L.K. were adjudged to be youths in
need of care. On May 10, 1993, M.S.C. was adjudged to be a youth
in need of care. On that date, the District Court granted DFS
temporary investigative authority, protective services, and
temporary custody of the children. Tessa entered into a court-
approved treatment plan on December 30, 1992; the District Court
approved a treatment plan for Shane on August 24, 1993.
In May 1994, DFS determined that both Tessa and Shane had
successfully completed Phase I of their court-approved treatment
plans and instituted Phase II. Phase II of Tessa's treatment plan
required that she: (1) continue therapy and make arrangements for
A.L.K. and K.L.K. to receive therapy through Mental Health
Services; (2) receive chemical dependency counseling and maintain
a drug-free lifestyle; (3) participate in parent training classes;
(4) demonstrate that she could continue to live a lifestyle
conducive to her health and welfare and her children's health and
welfare; (5) maintain suitable housing; and (6) demonstrate that
she was economically and personally capable of adequately
satisfying her own and her three children's basic needs. Phase II
of Shane's treatment plan listed six similar objectives, but was
limited to his parental responsibilities to M.S.C.
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As of December 1994, DFS determined that both Shane and Tessa
had failed to accomplish Phase II of their respective treatment
plans. Although DFS recognized that Tessa had partially completed
all six of her objectives, the agency determined that Tessa had
failed to complete various tasks set forth in her treatment plan.
In particular, Tessa did not follow through with counseling for
A.L.K. and K.L.K., did not participate in chemical dependency
treatment, did not maintain a drug-free lifestyle, did not complete
the parent training program, and was involved in domestic violence
with Shane such that the three children were removed from the home.
DFS determined that although Shane had partially completed three of
his objectives, he had completely failed to achieve the other
three. In particular, Shane did not attend therapy, did not attend
parent training classes, failed two urinalysis drug tests, was
found to be in possession of drug paraphernalia, and was involved
in domestic violence with Tessa.
Both Tessa's and Shane's treatment plans listed a contingency
that if either failed to accomplish the terms of the plans, DFS
could petition for termination of parental rights and request the
right to consent to the adoption of the youths. Based on its
conclusion that Tessa and Shane had failed to follow through with
their respective treatment plans, DFS petitioned the First Judicial
District Court for termination of parental rights on January 3,
1995.
On May 2, 1995, following a termination hearing, the District
Court entered an order in which it terminated the parental rights
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of Tessa and Shane. The court found that Tessa and Shane had
failed to successfully complete their court-ordered treatment
plans, and found that it was highly unlikely that the conduct or
condition of either Tessa or Shane--which rendered each unfit,
unable, or unwilling to give the children adequate parental care--
would change within the foreseeable future. The court awarded DFS
permanent legal custody of K.L.K. and M.S.C., and legal custody of
A.L.K. until the parental rights of his father had been terminated.
ISSUE 1
Did the District Court err when it terminated Shane's parental
rights to M.S.C.?
The standard of review for a district court's termination of
parental rights is whether the court's findings of fact are clearly
erroneous and whether its conclusions of law are correct. In Ye J.S.
andP.S (1994), 269 Mont. 170, 173, 887 P.2d 719, 720.
The criteria the district court must consider when it
terminates an individual's parental rights are set forth in
5 41-3-609, MCA. That statute provides, in part:
(I) The court may order a termination of the parent-child
legal relationship upon a finding that any of the
following circumstances 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; or
Cd) the parent has failed to successfully complete
a treatment plan approved by the court within the time
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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.
Section 41-3-410(l), MCA, provides that the court may terminate
parental rights where the child has been in an out-of-home
placement for a cumulative total of at least one year and the
parent has substantially neglected or willfully refused to remedy
the circumstances that cause the child to be in such placement.
In this case, the District Court adjudged M.S.C. to be a youth
in need of care on May 10, 1993. On May 2, 1995, the court found
that M.S.C. had been in out-of-home placement for a cumulative
period of more than one year, that Shane had failed to comply with
his court-approved treatment plan, and that it was highly unlikely
that the conduct or condition that rendered Shane an unfit parent
would change within a reasonable time. Therefore, pursuant to
§ 41-3-609, MCA, the District Court ordered that Shane's parental
rights to M.S.C. be terminated.
On appeal, Shane contends that the District Court's findings
of fact are clearly erroneous because they are not supported by
substantial evidence regarding the likelihood that the conduct or
condition that rendered Shane unfit to parent would change within
a reasonable time. Shane further contends that the District Court
did not adequately sort out the correlation between the behavioral
problems of the individual children and the responsibility of each
child's parents. In particular, Shane maintains that the District
Court did not examine the evidence with respect to Shane alone,
that there is no evidence that the two older children's severe
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emotional problems were caused by him, and that M.S.C. is a
"normal" child.
The record is clear, however, that the District court
adequately sorted out Shane's parental responsibilities and
liabilities with respect to M.S.C. before it entered its order. In
its findings of fact, the court noted that Shane had failed to
complete his mental health counseling, had failed to comply with
his chemical dependency treatment program, and had failed to follow
through with his parenting classes. In addition, the court found
that Shane had an ongoing drug problem and had admitted to being
involved in the sale of marijuana and methamphetamines. The court
noted that Shane's drug abuse and his domestic abuse of Tessa had
contributed to the revocation of his earlier suspended sentence
such that, as of the time of the district court hearing, he would
not have been eligible for parole for six or seven months.
In making its finding that Shane's conduct was unlikely to
change within a reasonable time, the District Court clearly
addressed the factors set forth in g 41-3-609(2), MCA. Those
factors include:
(b) a history of violent behavior by the parent;
. . . .
(d) excessive use of intoxicating liquor or of a
narcotic or dangerous drug that affects the parent's ability
to care and provide for the child;
(e) present judicially ordered long-term confinement of
the parent;
igi 'any reasonable efforts by protective service
agencies that have been unable to rehabilitate the parent.
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In addition, the court complied with its duty to give priority
to the best interests of the child over the parent's rights.
Section 41-3-609(3), MCA; Iflre T.M. (19941, 267 Mont. 75, 79, 881
P.2d 1333, 1336. Although Shane asserts that M.S.C. is "normal,"
we note that the child had spent almost half of his three years in
a foster home as of the time of the district court hearing. In
addition, testimony at the hearing revealed that M.S.C. had already
developed behavioral problems, such as biting and hitting, and that
M.S.C. was at risk of becoming seriously emotionally disturbed due
to his exposure to domestic violence and a chaotic environment.
Based on these facts and on the court's determination that M.S.C.
needed permanency and predictability in his life, the District
Court concluded that continuation of Shane's and M.S.C.'s legal
relationship was not in the best interests of M.S.C.
We hold that the District Court's order which terminated
Shane's parental rights to M.S.C. was supported by substantial
credible evidence and was not clearly erroneous. Based on the
evidence that Shane had failed to complete both counseling and
chemical dependency treatment, had failed to follow through with
his parenting classes, had continued to use and sell drugs, and had
continued to abuse Tessa and to expose M.S.C. to that abuse, we
hold that the District Court was correct in terminating Shane's
parental rights to M.S.C.
ISSUE 2
Did the District Court err when it terminated Tessa's parental
rights to A.L.K., K.L.K., and M.S.C.?
10
The District Court terminated Tessa's parental rights pursuant
to 5 41-3-609, MCA, on the basis of its findings that Tessa had
failed to successfully complete her court-ordered treatment plan,
that the conduct or condition which rendered Tessa an unfit parent
would not change in the foreseeable future, and that continuation
of the parent/child legal relationship would not be in the
children's best interests.
On appeal, Tessa maintains that the District Court erroneously
disregarded testimony at the hearing regarding the bond between
Tessa and her three children and the detrimental effect termination
of that bond would have on the children. In addition, Tessa
maintains that the court failed to consider the reasonable efforts
she had made at rehabilitation when it ordered termination of her
parental rights.
In its finding of fact, however, the court recognized Tessa's
counselor's testimony that "the children are bonded with Tessa and
that future contact with her is needed." The court further noted,
however, that although that counselor testified that it would not
be in the best interests of the children to terminate Tessa's
parental rights, she also testified that she would not recommend
returning the children to Tessa until Tessa was in a position to
parent, a process which would take two to three years. The
District Court was also faced with testimony that Tessa had failed
to obtain the necessary counseling for her children, had failed to
cooperate with teachers and other authorities who attempted to help
her children, had failed to follow through with parenting classes,
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had continued to sell and use drugs, and had continued to maintain
an abusive relationship. In light of this evidence, and in light
of the testimony of DFS social worker Joe Baumgardner, who
testified that the children had become progressively more disturbed
throughout the two years he had worked with them, the court was
clearly not in error when it concluded that:
Continuation of the parent/child legal relationship
is not in the best interests of any of the children.
They have been in limbo far too long and something must
be done now to establish some permanency and predict-
ability in their lives. They simply cannot wait any
longer.
Furthermore, although it is arguable that Tessa had had some
success at counseling, the record is clear that she had a long way
to go--perhaps as long as two or three years--before she could
adequately parent her three children. Although this Court
recognizes that evidence of rehabilitation is a factor which should
be considered, it is well-established that the best interests of
the children are paramount and take priority over parental rights
and familial bonds. InreC.A.R. andP.J.R. (1984), 214 Mont. 174, 182,
187, 693 P.2d 1214, 1219, 1221. In this case, over three years of
intervention by DFS had failed to spur adequate change in Tessa's
lifestyle or parenting skills. In addition, testimony was clear
that A.L.K. and K.L.K. were in need of immediate treatment, and
that M.S.C. was in danger of becoming severely emotionally
disturbed if he continued to live in a violent and chaotic
environment. The evidence therefore supports the District Court's
conclusion that the children's needs for stability and permanency
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warranted termination of Tessa's parental rights. As we stated in
Inref2.A.R. andP.J.R., 214 Mont. at 186, 693 P.2d at 1221:
Stability is a very important factor in a child's
development, and a child should not be subjected to
constantly changing temporary foster care situations
while waiting for their [sic] mother to possibly improve
her parenting skills.
We therefore hold that the District Court's findings of fact
regarding the termination of Tessa's parental rights were not
clearly erroneous, and that its conclusion that Tessa's parental
rights should be terminated was correct. Accordingly, we affirm
the District Court's order which terminated Tessa's parental rights
to A.L.K., K.L.K., and M.S.C.
We concur:
Justices
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