No. 95-274
IN THE SUPREMECOURT OF THE STATE OF MONTANA
1996
IN THE MATTER OF K.F.L. and N.L.,
Youths in need of care. Jkp.13 0 'i995
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable Ed McLean, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Christopher Daly, Missoula, Montana
For Respondent:
Joseph P. Mazurek, Attorney General, Barbara Harris,
Assistant Attorney General, Helena, Montana; Robert
Deschamps, III, Missoula County Attorney, Leslie
Halligan, DeputyMissoula County Attorney, Missoula,
Montana; Kathleen Foley, Missoula, Montana
Submitted on Briefs: December 14, 1995
Decided: January 30, 1996
Filed:
/
_ Clerk
Justice James C. Nelson delivered the Opinion of the Court.
P.L., the mother of the children, appeals from the Findings of
Fact, Conclusions of Law and Order of the District Court for the
Fourth Judicial District, Missoula County, terminating her parental
rights. We affirm.
The sole issue raised on appeal is:
Did the District Court err in terminating the parental rights
of P.L. as to her two oldest children, K.F.L. and N.L.?
Background Facts
K.F.L., born May 26, 1988, was alleged to be a youth in need
of care because of reports that she was not being cared for by P.L.
These reports indicated that P.L. was drinking, that she would
forget to feed K.F.L., that on at least two occasions she gave
K.F.L. alcohol to drink, that she was engaging in sexual activities
with juveniles in her home, and that she had been evicted from her
home because she had too many disturbing visitors at night. For
these reasons, the State filed a Petition for Temporary
Investigative Authority and Protective Services in October 1989.
Prior to that time, P.L. had been charged with sexual
intercourse without consent involving a IQ-year-old boy, tampering
with a witness, endangering the welfare of a child, and criminal
trespass. The charges of witness tampering and endangering the
welfare of a child were dropped in exchange for P.L.'s guilty plea
and she was sentenced to ten years in prison. The sentence was
suspended.
On April 3, 1990, the State filed a Petition for Temporary
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Custody of K.F.L. The District Court declared K.F.L. to be a youth
in need of care and on August 8, 1990, the court granted temporary
custody to the Department of Family Services (DFS) for one year.
A second child, N.L., was born on November 16, 1990.
P.L. completed Phase I of a treatment plan and K.F.L. was
returned to her care on March 14, 1991. However, by July 29, 1991,
a social worker reported that Phase II of the treatment plan had
not been completed in that P.L. and S.W., P.L.'s husband at that
time, were not maintaining the home or protecting K.F.L. from abuse
from others. The social worker also reported that P.L. and S.W.
had not taken K.F.L. to a physician "in a timely way." The State's
petition for an extension of temporary custody was granted. In
March of 1992, a third child, A.W., was born.
In February 1993, S.W. was charged with incest and sexual
intercourse without consent involving K.F.L. He pleaded guilty to
the incest charge and received a twenty-year sentence with fifteen
years suspended. The charge of sexual intercourse without consent
was dismissed.
On May 29, 1993, P.L. allowed K.F.L. and N.L. to visit their
maternal grandparents in Wyoming. At the end of their visit, the
grandparents refused to return the children to P.L. In August
1993, P.L. moved the District Court to have K.F.L. and N.L.
returned from Wyoming. The court granted her motion, however, the
children's return was delayed until after P.L. delivered her fourth
child, D.W., in September 1993. Within two weeks, P.L. requested
that K.F.L. and N.L. be returned to her parents in Wyoming. She
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also placed the two youngest children with a private foster home
and admitted herself to the psychiatric unit at St. Patrick's
Hospital in Missoula for four days.
On December 9, 1993, P.L. again moved to have K.F.L. and N.L.
returned to her. Following a hearing on January 3, 1994, the
District Court ordered that K.F.L. and N.L. remain in Wyoming with
their maternal grandparents until further order of the court. A
new treatment plan was implemented in February 1994 involving P.L.
and P.L.'s boyfriend.
On May 12, 1994, P.L.'s suspended sentence was revoked and she
was ordered to serve the rest of her sentence in the Women's
Correctional Facility. Subsequently, the State filed a Petition
for Permanent Legal Custody with Right to Consent to Adoption and
Termination of Parental Rights alleging that P.L. had never
completed the 1990 treatment plan, nor had she completed the
current treatment plan.
After a hearing on November 1, 1994, the District Court issued
its Findings of Fact, Conclusions of Law and Order terminating
P.L.'s parental rights to all four children. P.L. appeals this
decision as to K.F.L. and N.L.
Standard of Review
The standard of review to be used in cases involving a youth
in need of care and the termination of parental rights is whether
the district court interpreted the law correctly and whether the
district court's findings of fact are clearly erroneous. Matter of
J.J.G. (1994), 266 Mont. 274, 281, 880 P.2d 808, 812 (citing Matter
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of D.H. and F.H. (1994), 264 Mont. 521, 524-25, 872 P.2d 803, 905).
Discussion
Did the District Court err in terminating the parental rights
of P.L. as to her two oldest children, K.F.L. and N.L.?
The District Court concluded that K.F.L. and N.L. were youths
in need of care pursuant to § 41-3-102, MCA, that P.L. had not
complied with the court-approved treatment plan, and that p.L.'s
conduct or condition rendering her unfit was unlikely to change
within a reasonable time. Based on these conclusions and pursuant
to 5 41-3-609(l) cc), MCA, the District Court ordered that P.L.'s
parental rights be terminated.
Section 41-3-609, MCA, lists the criteria the court must
consider in terminating the parental rights of an individual. This
statute 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:
ici '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 . . . . [Emphasis added.1
In its extensive findings and conclusions, the District Court
determined that P.L. had not complied with the February 1994
treatment plan because she failed to provide suitable housing for
the children, obtain either part-time or full-time employment, or
maintain consistent contact with the children. The District Court
concluded that the conduct or condition rendering P.L. unfit is
5
unlikely to change within a reasonable time and that continuation
of the parent-child relationship will likely result in continued
abuse or neglect of the children. In making this determination,
the District Court applied the factors set forth in § 41-S-609(2),
MCA, to the facts in this case and concluded:
a. [P.L.'sl emotional or mental illness renders
her unlikely to care for the ongoing physical, mental and
emotional needs of the children within a reasonable time;
b. [her1 excessive use of intoxicating liquor
affects her ability to care and provide for the children;
C. [her1 judiciallyorderedlong-termconfinement;
d. reasonable efforts by protective service
agencies over the last six or seven years have been
unable to rehabilitate her; and
e. [her1 failure to contact her children
regularly, her failure to complete the treatment plan
ordered in January.
P.L. contends that she was in substantial compliance with the
treatment plan because she had completed seven of the nine
requirements. She further contends that the State could have and
should have adopted a treatment plan for her while she was
incarcerated. P.L. has voluntarily taken advantage of several of
the programs available to her in prison and she maintains that this
negates the District Court's determination that the conduct or
condition rendering her unfit is unlikely to change within a
reasonable time.
The State contends that P.L. did not substantially comply with
the treatment plan. The two requirements of the plan that P.L.
failed to complete, providing suitable housing for the children and
obtaining employment, were basic requirements necessary to protect
and care for her children. Because P.L. is incarcerated, these two
requirements cannot be completed until she is released. Providing
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a treatment plan for P.L. while she is incarcerated would fail to
address these two basic requirements.
Furthermore, § 41-3-609(4) (b), MCA, provides that a treatment
plan is not required if "the parent is incarcerated for more than
1 year and a treatment plan is not practical considering the
incarceration." This section recognizes that a child may need help
while a parent is incarcerated and that such help cannot be delayed
pending the parent's release. Matter of D.G. (1990), 244 Mont. 17,
21, 795 P.2d 489, 491. P.L. has had ample opportunity in the five
years since the State first requested temporary investigative
authority of K.F.L. to prove whether she is capable of properly
caring for her children and she has failed to do so.
Contrary to P.L.'s assertions that her prior history should
not have been considered by the District Court and that only her
performance under the latest treatment plan is relevant, the State
maintains, and we agree, that a complete history is relevant to the
issue raised herein. The District Court did not err by basing its
decision on the long history of neglect and abuse of K.F.L. and
N.L.
The District Court was bound to give primary consideration to
the physical, mental and emotional conditions and needs of the
children. Section 41-3-609(3), MCA; In re Custody of T.M. (1994),
267 Mont. 75, 79, 881 P.2d 1333, 1336.
At the November 1, 1994 hearing, two social workers that had
previously worked with P.L. recommended that P.L.'s parental rights
be terminated as her ability to parent her children would not
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change within a reasonable time given her previous patterns of
behavior. The State also presented two reports from K.F.L.'s and
N.L.'s therapist recommending that K.F.L. and N.L. be adopted by or
permanently placed with their maternal grandparents.
We conclude that the District Court's findings are supported
by substantial evidence in the record and are, therefore, not
clearly erroneous. Moreover, the District Court correctly applied
5 41-3-609, MCA, in evaluating the evidence before it.
Accordingly, we hold that the District Court was correct in
terminating the parental rights of P.L.
Affirmed.
We Co_ncur: