<97-439
No. 97-439
IN THE SUPREME COURT OF THE STATE OF MONTANA
1998 MT 135
IN RE DECLARING E.W., C.W., AND A.W.
Youths in Need of Care.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Thomas A. Olson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Daniel P. Buckley; Berg, Lilly, Androlio & Tollefson, P.C.;
Bozeman, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General;
Stephen C. Bullock, Assistant Attorney General;
Helena, Montana
Marty Lambert, Gallatin County Attorney;
Gary Balaz, Deputy County Attorney; Bozeman, Montana
For Guardian Ad Litem:
Todd Hillier, Attorney at Law, Bozeman, Montana
Submitted on Briefs: April 16, 1998
Decided: June 2,
1998
Filed:
__________________________________________
Clerk
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-439%20Opinion.htm (1 of 10)4/18/2007 1:59:52 PM
<97-439
Justice Jim Regnier delivered the opinion of the Court.
¶1 J.A. appeals from an order of the Eighteenth Judicial District Court,
Gallatin County, terminating her parental rights over E.W., C.W., and A.W.
For the reasons stated below, we affirm. The sole issue on appeal is whether
the District Court erred in terminating J.A.'s parental rights.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 J.A. and L.W. married in 1986, and are the natural parents of E.W.,
C.W., and A.W., the three minor children involved in the present matter.
Their first child, E.W., was born on November 22, 1988. The Department of
Public Health and Human Services, formerly the Department of Family
Services, first began providing services to J.A. in June 1989 when E.W. was
seven months old. On September 1, 1989, J.A. and the Department entered
into a service treatment agreement designed to help J.A. provide proper care
for her son. On October 15, 1990, the Department filed a petition for
temporary investigative authority and emergency protective services. The
court issued an order for emergency protective services, and appointed a
guardian ad litem for E.W. At the October 30, 1990, show cause hearing, the
parties informed the court they had reached an agreement, and the Department
entered into a service treatment plan with J.A. and L.W. The District Court
issued an order granting the Department temporary investigative authority over
E.W. for the six-month period due to expire on January 30, 1991. The parties
subsequently agreed to terminate supervision, and on January 14, 1991, the
District Court terminated the matter.
¶3 J.A. and L.W. had their second child, C.W., on August 4, 1991. Their
third child, A.W., was born nearly a year later, on July 1, 1992. J.A. and L.W.
divorced in 1993, and J.A. married T.A. on July 17, 1994. The record
indicates there were numerous referrals during this period of time, and the
Department thus continued its involvement with J.A.
¶4 On July 14, 1994, the Department filed a second petition in response
to a referral of physical, emotional, and medical neglect, this time seeking
temporary investigative authority and protective services for E.W., C.W., and
A.W. T.A. subsequently left the state, thereby violating the conditions of his
probation, and J.A. was evicted from her apartment in August 1994. The
children were placed in foster care on August 19, 1994, where they have since
remained. On August 30, 1994, the District Court entered an order granting
the Department's petition for temporary investigative authority and protective
services for a six-month period.
¶5 On September 28, 1994, J.A. entered into a court ordered contract and
treatment plan designed to "reunite the family by helping [J.A.] learn
appropriate parenting skills and how to provide a safe environment for the
children." On February 22, 1995, the Department filed a petition seeking
temporary custody for an additional six-month period, on the grounds that J.A.
had failed to fulfill her obligations under the September 1994 treatment plan.
The court granted the Department's petition on March 14, 1995, providing the
Department with another six-month period of temporary custody, and ordering
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-439%20Opinion.htm (2 of 10)4/18/2007 1:59:52 PM
<97-439
that J.A. "successfully complete her treatment plan."
¶6 Six months later, the Department again petitioned the court to extend
its temporary custody over E.W., C.W., and A.W. for an additional six months
and asked for a revised treatment plan. In support of its September 11, 1995,
petition, the Department cited to J.A.'s continuing failure to complete the
requirements of her existing treatment plan. The parties agreed to another
six-month period of temporary custody, and on September 20, 1995, the District
Court entered an order continuing the Department's temporary custody until
March 1996. The District Court appointed counsel for J.A., and the parties
negotiated a revised contract and treatment plan, approved by the court on
January 10, 1996.
¶7 On April 19, 1996, the Department filed a petition to terminate J.A.'s
parental rights. Arguing J.A. had failed to comply with the requirements of
her January 1996 treatment plan, the Department sought to terminate J.A.'s
parental rights on the stated grounds "that the treatment plan has not been
successful and the mother's conduct or condition rendering her unfit is unlikely
to change within a reasonable time."
¶8 In May 1996, the District Court conducted a five-day hearing on the
petition to terminate parental rights. On June 3, 1997, the court issued its
findings of fact, conclusions of law, and order, terminating J.A.'s parental
rights to E.W., C.W., and A.W. It is from the District Court's order
terminating her parental rights that J.A. presently appeals.
STANDARD OF REVIEW
¶9 We review a district court's decision to terminate parental rights to
determine whether the court interpreted the law correctly and whether its
findings of fact are clearly erroneous. In re K.F.L. and N.L. (1996), 275 Mont.
102, 104, 910 P.2d 241, 243.
¶10 In In re D.H. and F.H. (1994), 264 Mont. 521, 524, 872 P.2d 803, 805,
we clarified the standard of review for cases involving a youth in need of care
and termination of parental rights. The appropriate standard of review to be
applied to purely factual findings in a termination of parental rights proceeding
is the clearly erroneous standard as set forth in Interstate Production Credit
Association v. DeSaye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287. In
DeSaye, we explained that, pursuant to the clearly erroneous standard of
review,
[f]irst, the Court will review the record to see if the findings are
supported by substantial evidence. Second, if the findings are
supported by substantial evidence we will determine if the trial
court has misapprehended the effect of the evidence. Third, if
substantial evidence exists and the effect of the evidence has not
been misapprehended the Court may still find that "[A] finding
is 'clearly erroneous' when, although there is evidence to support
it, a review of the record leaves the Court with the definite and
firm conviction that a mistake has been committed." U[nited]
S[tates] v. U.S. Gypsum Co. (1948), 333 U.S. 364, 68 S.Ct. 525,
92 L.Ed. 746.
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-439%20Opinion.htm (3 of 10)4/18/2007 1:59:52 PM
<97-439
DeSaye, 250 Mont. at 323, 820 P.2d at 1287 (citations omitted).
¶11 We review conclusions of law in a termination proceeding to determine
if those conclusions are correct. In re D.H. and F.H., 264 Mont. at 525, 872
P.2d at 805.
¶12 This court has recognized that "a natural parent's right to care and
custody of a child is a fundamental liberty interest, which must be protected
by fundamentally fair procedures." In re R.B., Jr. (1985), 217 Mont. 99, 103,
703 P.2d 846, 848. Accordingly, prior to terminating an individual's parental
rights, the district court must adequately address each applicable statutory
requirement. In re R.B., Jr., 217 Mont. at 103, 703 P.2d at 848. Moreover,
"the party seeking termination must present clear and convincing evidence to
the district court that the prerequisite statutory criteria for termination have
been met." In re J.L., D.L., and A.G. (1996), 277 Mont. 284, 288, 922 P.2d
459, 461.
¶13 In the context of parental rights termination cases, we have defined
clear and convincing evidence as
simply a requirement that a preponderance of the evidence be
definite, clear, and convincing, or that a particular issue must be
clearly established by a preponderance of the evidence or by a
clear preponderance of the proof. This requirement does not
call for unanswerable or conclusive evidence.
In re J.L., D.L., and A.G., 277 Mont. at 289, 922 P.2d at 462 (quoting In re
Interest of S.M.Q. (Kan. 1990), 796 P.2d 543, 545).
¶14 We presume that the district court's decision is correct and will not
disturb it on appeal unless there is a mistake of law or a finding of fact not
supported by substantial evidence that would amount to a clear abuse of
discretion. In re J.R. and S.D. (1992), 253 Mont. 434, 440-41, 833 P.2d 1063,
1067; In re J.J.C.H. and C.M.H. (1992), 252 Mont. 158, 162, 827 P.2d 812,
815.
DISCUSSION
¶15 Did the District Court err in terminating J.A.'s parental rights?
¶16 The Department petitioned to terminate J.A. parental rights pursuant to
§ 41-3-609(1)(c), MCA (1995) (since renumbered § 41-3-609(1)(e), MCA),
which provided as follows:
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.
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-439%20Opinion.htm (4 of 10)4/18/2007 1:59:52 PM
<97-439
¶17 Relying on § 41-3-609(1)(c), MCA (1995), the Department sought to terminate J.
A.'s
parental rights due to her alleged failure to comply with the January 1996 treatment
plan, and
on the grounds "that the treatment plan has not been successful and the mother's
conduct or
condition rendering her unfit is unlikely to change within a reasonable time."
¶18 In its June 3, 1997, order terminating J.A.'s parental rights, the District
Court
concluded that "[a]ll of her treatment plans have met with mixed results, but [J.A.]
cannot
parent these children in the near or distant future." The court also concluded the
termination
of J.A.'s parental rights was warranted because it was "not in the interests of
these children's
physical, mental and emotional needs to place them on hold any longer."
¶19 On appeal, J.A. argues the court erred in so concluding, and generally asserts
that,
because the Department failed to meet its burden of presenting clear and convincing
evidence
in support of its petition for termination, the court's findings of fact are thus
clearly
erroneous, and its conclusions of law incorrect. More specifically, J.A. argues the
court
improperly disregarded testimony by a number of professionals who opposed the
termination
of her parental rights and instead "supported the return of the children." J.A.
asserts the
evidence of record, including testimony by all three professionals integrally
involved in the
case, demonstrates that she complied with the January 1996 treatment plan, and that
the
treatment plan was successful. Based on the foregoing, J.A. argues the evidence of
record
demonstrates "by clear and convincing proof that [J.A.] is a competent mother," and
asserts
the court erred in concluding J.A. is unfit to parent her children and in
terminating her
parental rights.
¶20 In support of her argument that the 1996 treatment plan was successful, J.A.
relies in
part upon the testimony of counselor Barbara Boik, who explained that, were J.A. to
"have
a good support system in line and get the help that she needed," Boik "would really
like to
see the children with her." J.A. also points generally to testimony by Eleanor
Truitt, a
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-439%20Opinion.htm (5 of 10)4/18/2007 1:59:52 PM
<97-439
licensed clinical social worker, who explained that she believed J.A. could, with
proper help,
parent her children, and that the children should thus "be able to return to their
mother." J.A.
also relies upon the opinion of case aid Joyce VanderVoort who testified that
because J.A.
had made a concerted effort to improve her parenting skills, she was deserving of a
chance
to "use the skills." Moreover, J.A. notes that clinical psychologist Dr.
McElhinny, although
called as a witness by the Department, conceded that the opinions expressed by Boik,
Truitt,
and VanderVoort regarding the placement of the children would be important.
Finally, J.A.
points to similar testimony by clinical social worker Suzy Saltiel who stated that
she "would
like to see these children with their mother." Pointing to testimony by the
foregoing
individuals, J.A. argues that all of the professionals who "were integral to the
treatment plan"
believed she had successfully completed the plan and supported the return of her
children.
¶21 The Department, in response, points to contrasting testimony by a number of
witnesses who expressed their ongoing concerns about J.A.'s ability to parent her
children,
and who concluded that the treatment plan had been unsuccessful. For example, the
Department notes that Meg Babits, the children's guardian ad litem, expressly
testified that,
in her opinion, "[t]he treatment plan has not been successful." The Department also
relies
upon testimony by social worker Elizabeth Hoyt-Leonard, who explained that she did
not
think the January 1996 treatment plan had been effective. The Department
additionally points
to testimony by Steven Ware, a member of J.A.'s treatment team, who explained that he
continued to have concerns about J.A. neglecting her children and not being able to
look out
for their emotional well-being. The Department also relies upon the opinion of Ellen
Berglund, the children's trained therapeutic foster mother, who testified that she
thought J.A.
was unable to change and had neglected to remedy the circumstances that led to the
removal
of her children. Finally, the Department notes that Dr. James Feist, the children's
pediatrician for nearly six years, testified that the children were "high needs"
children, and
that J.A. did not have the ability to "respond to their needs."
¶22 As demonstrated by the parties' respective arguments, the record contains
conflicting
evidence and testimony with regard to the success or failure of J.A.'s 1996
treatment plan.
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-439%20Opinion.htm (6 of 10)4/18/2007 1:59:52 PM
<97-439
Under these circumstances, it is not our function on appeal to reweigh the
conflicting
evidence of record, substitute our "evaluation of the evidence for that of the trial
court, or
pass upon the credibility of the witnesses." In re J.L., 277 Mont. at 290, 922 P.2d
at 462
(quoting In re Interest of S.M.O. (Kan. 1990), 796 P.2d at 545.) That there exists
conflicting
evidence of record "does not automatically preclude a finding that clear and
convincing
evidence to support a given position exists." In re J.L., 277 Mont. at 290, 922
P.2d at 462.
¶23 In its order terminating J.A.'s parental rights, the District Court recognized
that the
record contained conflicting evidence regarding J.A.'s ability to parent her
children, as well
as the success or failure of her January 1996 treatment plan. The court made 284
findings
of fact, many of which chronicled conflicting testimony by various witnesses
regarding the
implementation and success of the treatment plan at issue. For example, the court
recounted
testimony by Babits and Hoyt-Leonard, each of whom believed that the 1996 treatment
plan
had not been effective or successful. The court did acknowledge, however, that
there existed
conflicting testimony by a number of individuals. For example, the court recognized
in its
findings of fact that Boik believed "the children would be better off with their
mother, so
long as she had a support system around her." The court also acknowledged that
Truitt "was
of the opinion that [J.A.] could parent her children with help" and that "[s]he
favored a return
of the children to [J.A.], so long as [J.A.] received parenting aid, and respite day
care."
Finally, the court noted that VanderVoort thought J.A. deserved a chance to use her
newly
acquired skills and parent her children with support from the Department.
¶24 Thus, although J.A. argues the District Court failed to give proper
consideration to
testimony by Boik, Truitt, and VanderVoort, review of the District Court's lengthy
findings
of fact indicates otherwise. The court clearly considered the testimony of each
witness
before concluding that all of J.A.'s treatment plans, including the 1996 treatment
plan, had
"met with mixed results, but [J.A.] cannot parent these children in the near or
distant future."
After considering all of the evidence before it, the court concluded that J.A.,
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-439%20Opinion.htm (7 of 10)4/18/2007 1:59:52 PM
<97-439
the mother of these three children, by proof beyond all doubt, will never be a
competent mother. She has been given every service available by the
department. Although it is true, the department should have stepped in much
sooner, given her services and then terminated her rights if she could not
improve, the fact still remains that she will never be able to parent these
three
children adequately, given the intensive parenting they require and her level
of parenting skills.
¶25 Review of the District Court's findings of fact and conclusions of law
indicates it did
not, as J.A. suggests, "ignore[] the recommendation of the three primary
professionals who
were integral to and a part of the treatment plan." Instead, the court evaluated
all pertinent
evidence and testimony before effectively concluding J.A.'s treatment plan had been
unsuccessful, and ordering the termination of J.A.'s parental rights. Having
reviewed the
record and the District Court's order, we conclude the court's findings of fact are
supported
by substantial evidence, and are not clearly erroneous. We hold the court did not
err in
concluding that J.A.'s treatment plan had met with only "mixed results" and was thus
unsuccessful.
¶26 As noted above, J.A. also argues that the evidence of record demonstrates she
complied with the January 1996 treatment plan, and suggests the court thus erred in
concluding she was unfit to parent her three children. Pursuant to § 41-3-609(1)
(c), MCA
(1995), a court may order the termination of parental rights upon a finding that a
court-approved treatment plan has been unsuccessful or has not been complied with,
and a
finding that "the conduct or condition of the parents rendering them unfit is
unlikely to
change within a reasonable time." In other words, "a parent must not only comply
with the
treatment plan, but the treatment plan must also be successful." In re S.C. (1994),
264 Mont.
24, 29, 869 P.2d 266, 269.
¶27 In the present case, the Department expressly petitioned to terminate J.A.'s
parental
rights on the grounds "that the treatment plan has not been successful and the
mother's
conduct or condition rendering her unfit is unlikely to change within a reasonable
time." In
light of our determination that the District Court correctly concluded that J.A.'s
treatment
plan had met with only mixed results, and was thus unsuccessful, whether J.A.
complied
with the 1996 treatment plan is immaterial. Accordingly, we decline to address J.
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-439%20Opinion.htm (8 of 10)4/18/2007 1:59:52 PM
<97-439
A.'s
argument that she in fact complied with the requirements of the January 1996
treatment plan
and that the District Court thus erred in terminating her parental rights.
¶28 Section 41-3-609(1)(c), MCA (1995), also required that to order the termination
of
parental rights a district court must find "the conduct or condition of the parents
rendering
them unfit is unlikely to change within a reasonable time." That the District Court
in this
case evaluated this statutory requirement is evidenced by its conclusion that, "by
proof
beyond all doubt," J.A. "will never be a competent mother" and "will never be able
to parent
these three children adequately, given the intensive parenting they require and her
level of
parenting skills."
¶29 On appeal, J.A. generally argues it was error for the court to conclude she
was, and
would continue to be, an unfit mother. Having reviewed the record, however, we hold
otherwise. As it did with respect to the implementation of J.A.'s treatment plan,
the court
made numerous findings of fact regarding her ability to parent her children. For
example,
the court pointed to testimony from various witnesses which indicated J.A. had
failed to
maintain regular visitation, did not properly medicate her children, missed medical
appointments, dressed her children inappropriately, did not wake up in the morning
to care
for her children, and failed to pick them up after school. Moreover, the court
noted the
Department's six-year involvement with J.A. and her children, concluding she had
"been
given every service available by the department" but was still unable to properly
parent her
children. Having reviewed the record, we conclude the court's findings of fact are
supported
by substantial evidence, and are not clearly erroneous. We hold the court did not
err in
effectively concluding the conduct or condition which rendered J.A. unfit to parent
her
children was unlikely to change within a reasonable time, and on that basis ordering
the
termination of her parental rights.
¶30 Based on the foregoing, we affirm the order the District Court, and hold the
court did
not err in terminating J.A.'s parental rights on the grounds that her treatment plan
had been
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-439%20Opinion.htm (9 of 10)4/18/2007 1:59:52 PM
<97-439
unsuccessful and the conduct rendering her unfit was unlikely to change within a
reasonable
time.
/S/ JIM REGNIER
We Concur:
/S/ KARLA M. GRAY
/S/ W. WILLIAM LEAPHART
/S/ JAMES C. NELSON
/S/ TERRY N. TRIEWEILER
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-439%20Opinion.htm (10 of 10)4/18/2007 1:59:52 PM