96-316
No. 96-316
IN THE SUPREME COURT OF THE STATE OF MONTANA
1997
IN THE MATTER OF
C.M., F.M., and S.M.,
Youths 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 M. Sherlock, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
James B. Obie, Helena, Montana (Appellant); Randi M.
Hood, Public Defender's Office, Helena, Montana
(guardian ad litem)
For Respondent:
Joseph P. Mazurek, Attorney General, John Paulson,
Assistant Attorney General, Helena, Montana; Mike
McGrath, Lewis and Clark County Attorney, Carolyn
Clemens, Deputy County Attorney, Helena, Montana
Submitted on Briefs: January 16, 1997
Decided: February 20, 1997
Filed:
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__________________________________________
Clerk
Justice William E. Hunt, Sr. delivered the Opinion of the Court.
Appellant Wanda M. (Wanda) appeals the decision of the First
Judicial District Court, Lewis and Clark County, granting permanent
custody of C.M., F.M., and S.M. to the Montana Department of Public
Health and Human Services (the Department) until each child reaches
the age of eighteen. We affirm.
The sole issue presented on appeal is whether the District
Court abused its discretion by granting the Department permanent
custody of C.M., F.M., and S.M.
Wanda is the natural mother of three boys, C.M., F.M. and S.M.
The boysþ father is not a party to this action. At the time of
this appeal, C.M. was twelve, F.M. was eleven, and S.M. was seven.
The Department has been involved with Wanda and her family
since 1988. In 1993, the boys were determined to be youths in need
of care, and Wanda was ordered to complete a given treatment plan
to improve her care of her sons. In 1994, the Department ended its
involvement with the children because Wanda had substantially
complied with the treatment plan.
In 1995, the Department again became involved, removing the
boys from their motherþs home due to substantiated instances of
abuse. By stipulation, the boys were again determined to be youths
in need of care. The boys were placed and remain in separate
foster homes.
Wanda was diagnosed with borderline personality disorder which
manifests itself through intense, chronic anger and depression.
She is more likely to become "destabilized" and fly into a rage
when she is exposed to stressful situations. In addition, Wanda
experiences problems with establishing an identity separate from
her children; with forming and maintaining proper attachments to
others, including her children; and with cultivating healthy
relationships.
Wandaþs youngest son, S.M., is doing well in foster care. He
performs satisfactorily in school and has not manifested any
problems necessitating therapy. Wandaþs older boys, however, are
both profoundly emotionally disturbed. The oldest boy, C.M., acts
out in uncontrollable rage and frustration. He has threatened to
kill himself and to kill others. He failed to improve in foster
care and ultimately was placed in Shodair Hospital. After initial
improvement, C.M. attempted to return to a public school, but he
quickly regressed and was placed back in Shodair.
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The middle boy, F.M., also suffers from continuing emotional
problems. While he also experiences occasional bouts of
uncontrollable rage, he more generally manifests extreme anxiety.
Therapists attribute this, at least in part, to his having been the
family "scapegoat" prior to his removal from Wandaþs home. While
in the home, he experienced physical and verbal abuse from both
Wanda and his older brother. F.M. remains in a special classroom
for emotionally "high-risk" children and, while his progress has
been satisfactory, he has been unable to return to main-stream
schooling. F.M. also exhibited compulsive behavior, such as
obsessive cleaning, but these symptoms have abated since his
transfer to foster care.
During the Departmentþs involvement with Wanda, and with the
former goal of reuniting the family, it provided her with numerous
services, including parenting classes, anger-management classes,
individualized therapy, family therapy, family-based services and
day care. While those who have worked with Wanda reported that she
was improving in several areas, such as anger management, her
progress overall was uneven and unpredictable.
Her supervised interactions with her children were also
unpredictable; sometimes the time spent together seemed productive,
but at other times Wandaþs interaction with her sons was
inappropriate. At one therapy session with C.M., Wanda lost her
temper and tore off a necklace C.M. had made and given her,
informing him that she was giving up her parental rights to him.
On another occasion, Wanda became enraged while on an outing with
the boys and a Department social worker, declaring that the
children didnþt love her and that the social worker should just
return them to their foster homes. Following this incident, which
reduced the boys to tears, the social worker instituted stricter
ground-rules for Wandaþs visitation with the boys. Wanda angrily
broke off communications with the social worker, and several months
passed before communication was reestablished and she again visited
with the children. These and similar incidents, which would be
difficult for any child, were especially damaging to her
emotionally fragile older boys.
The Department began to believe that the boysþ problems were
being exacerbated by the uncertainty of whether or not they would
be returned to Wanda, and by its own inability to provide them with
long-term stable placement without a transfer of custody. This
problem was compounded by Wandaþs insistence on telling the boys
they soon would be "coming home" even though the Department
instructed her verbally and in writing to desist from making such
statements. Given these concerns, and in light of Wandaþs
continuing profound personal and parenting difficulties, the
Department petitioned the District Court for permanent custody of
all three boys. After a hearing on the matter, the District Court
granted the petition. Wanda appeals.
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This Court will review the findings of a trial court sitting
without a jury to determine whether the findings are clearly
erroneous. In the Matter of D.H. and F.H. (1994), 264 Mont. 521,
524, 872 P.2d 803, 805 (citing Interstate Production Credit Assn.
v. DeSaye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287). We
will review the district courtþs conclusions of law to ensure they
are correct. Matter of D.H., 872 P.2d at 805 (citing In re
Marriage of Burris (1993), 258 Mont. 265, 269, 852 P.2d 616, 618).
The transfer of a childþs custody from his or her parents to the
Department is dependent upon an initial determination that the
child in question is abused or neglected. Further, the
determination that a transfer of custody is appropriate is a
discretionary ruling. This Court will review the discretionary
ruling regarding custody for an abuse of discretion, just as we
review the determination that the child is abused or neglected for
an abuse of discretion. Matter of D.H., 872 P.2d at 806.
If a child is determined to be a youth in need of care, the
district court is authorized by statute to take appropriate
measures to safeguard the welfare of the child. Section 41-3-406,
MCA. Under this statute, the district court may transfer legal
custody of the child from the parent or parents to the Department.
Section 41-3-406(1)(c)(i), MCA. See also In the Matter of T.A.
(1991), 249 Mont. 186, 190, 814 P.2d 994, 998.
When determining custody, the district court is bound to give
primary consideration to the physical, mental, and emotional
conditions and needs of the children. In the Matter of J.J.C.H.
and C.M.H. (1992), 252 Mont. 158, 165, 827 P.2d 812, 816. The best
interests of the children are paramount and must take precedence
over parental rights. Matter of J.J.C.H., 827 P.2d at 816
(citations omitted).
In this case, the parties stipulated to the fact that the boys
were youths in need of care. Given this stipulation, it was within
the District Courtþs discretion to transfer permanent custody of
the children to the Department pursuant to 41-3-406, MCA. Wanda
does not argue that the District Court lacked the authority to act
as it did. Rather, she argues that the transfer of permanent
custody to the Department was an abuse of discretion because the
evidence presented did not demonstrate that such a transfer was
necessary.
Wanda emphasizes the testimony of several witnesses who
testified that she was making progress in her attempt to become a
better parent. She notes that she has completed anger-management
classes and continues to attend personal therapy sessions. In
addition, Wanda presented testimony from an acquaintance who had
observed Wanda with the children. This witness felt that Wanda
loved the boys very much and was parenting them appropriately. In
light of such testimony, Wanda argues that the District Court erred
in removing the boys from her custody.
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The Department does not argue that Wanda has not made any
progress in her attempts to deal with her personal and parenting
problems. Rather, the Department argues that her progress has been
sporadic and insufficient to justify the continuation of the
status-quo, which is a history of long-term, intensive, nearly
constant state assistance. The testimony presented by numerous
social workers indicated that Wandaþs parenting abilities are
unlikely to reach a satisfactory level in a reasonable time. In
addition, virtually every social worker who testified expressed
great concern for the welfare of the boys, who need long-term
therapeutic care of the sort which Wanda simply cannot provide and
apparently will not be able to provide in the foreseeable future.
After hearing extensive testimony from a number of individuals
who have attempted to assist Wanda with her parenting difficulties
over the years, the District Court found:
Wanda has been unable and unwilling to remedy the
circumstances which place her children at risk for abuse
and/or neglect. Based on Wandaþs lack of motivation to
do what is necessary to become an adequate parent and her
history of involvement with [the Department], which has
brought no appreciable improvement, the Court finds that
awarding custody rights of these children to [the
Department] until they reach the age of 18 is in the best
interests of the children. Her long history of
involvement with [the Department], the great number of
services that have been provided to her, and her lack of
progress indicate that change will not occur in the
foreseeable future.
This Court has thoroughly reviewed the record in this case, and we
determine that the District Court did not abuse its discretion in
transferring permanent custody of the boys to the Department. The
order of the District Court is, therefore, affirmed.
/S/ WILLIAM E. HUNT, SR.
We Concur:
/S/ J. A. TURNAGE
/S/ KARLA M. GRAY
/S/ W. WILLIAM LEAPHART
/S/ JIM REGNIER
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