97-650
No. 97-650
IN THE SUPREME COURT OF THE STATE OF MONTANA
1998 MT 128
IN THE MATTER OF THE CUSTODY AND
THE PARENTAL RIGHTS OF
J.H., R.H., D.H., and R.H.,
Youths in Need of Care.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark,
Honorable Thomas C. Honzel, Judge Presiding.
COUNSEL OF RECORD:
For Appellant:
Jeremy Gersovitz, Assistant Public Defender, Helena, Montana
For Respondents:
Honorable Joseph P. Mazurek, Attorney General; Mark
Mattioli,
Assistant Attorney General, Helena, Montana
Mike McGrath, County Attorney; Carolyn Clemens, Deputy
County Attorney, Helena, Montana
Randi Hood, Helena, Montana (Guardian Ad Litem)
Submitted on Briefs: April 9, 1998
Decided:May 28, 1998
Filed:
__________________________________________
Clerk
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Chief Justice J. A. Turnage delivered the Opinion of the Court.
1 In proceedings before the First Judicial District Court, Lewis and Clark
County, Michelle Hamlin's custodial rights as the mother of J.H., R.H., D.H.,
and R.H. were awarded to the Montana Department of Public Health and
Human Services. Hamlin appeals. We affirm.
2 The issue is whether the District Court abused its discretion when it
awarded Hamlin's custodial rights to the Department.
3 J.H., R.H., D.H., and R.H. were declared youths in need of care in
November 1995. At that time, the children were living with their maternal
aunt and uncle because their father was in jail for domestic abuse and their
mother, Hamlin, was having trouble seeing to their needs, such as getting them
to school. Hamlin and the children's father were divorced. The aunt and
uncle's home became the children's foster care placement. At the time of the
June and July 1997 hearing on the Department's petition to terminate Hamlin's
parental rights, J.H., R.H., D.H., and R.H. ranged in age from three to eleven
years old and had been living with their aunt and uncle for two years.
4 When the children were declared youths in need of care, Hamlin and
the Department entered into a treatment plan agreement which, by its terms,
could be completed within six months. The plan required Hamlin to: submit
to therapy for co-dependency, self-esteem, and other issues relating to her
failure to adequately care for the children; successfully complete an anger
management program to address domestic violence issues; successfully
complete parenting classes; attend a survivor group to deal with victimization;
demonstrate her ability to parent through employment, stable housing, and
attending to her emotional needs; schedule and maintain visits with the
children without entertaining others during those visits; continue to work in the
Healthy Start program; and obtain a chemical dependency evaluation and
follow the recommendations of that evaluation.
5 The Department presented evidence that Hamlin initially had been
consistent about visiting her children under her treatment plan, but when she
was reminded that she was not to bring others with her to visit her children,
she began missing visits. In January 1996, she told her sister with whom the
children were living that she was leaving town permanently, but told her sister
not to tell the children. Hamlin then moved to Wyoming with her boyfriend.
6 After Hamlin moved to Wyoming, her Helena, Montana, caseworker
arranged for an interstate compact to allow her to complete her treatment plan
in Wyoming. However, Hamlin did not keep her Wyoming caseworker
informed of her changing whereabouts. The Wyoming caseworker notified the
Montana caseworker in September 1996 that he wanted to close the case
because he was unable to locate Hamlin.
7 The Department presented testimony that although Hamlin's chemical
dependency evaluation resulted in a recommendation that she obtain inpatient
chemical dependency treatment, she did not show up for such treatment when
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it was arranged for her. In Wyoming, she attended one mental health
counseling session and had not started parenting classes. She did not complete
other counseling as required under her treatment plan. She had not maintained
stable housing or employment. She claimed that she underwent a second
chemical dependency evaluation which concluded that she was not chemically
dependent, but she did not have the written results because she was unable to
pay for the evaluation.
8 After she moved to Wyoming, Hamlin initially maintained telephone
contact with the children but that ceased in October 1996. Although she sent
the children Christmas presents and birthday presents from Wyoming, the
birthday presents all arrived late. Hamlin visited her children on three days in
May 1996 when she had a court appearance in this matter. There were no
other visits between Hamlin and the four children between January 1996 and
the June and July 1997 hearing.
9 The three oldest children were all receiving mental health counseling.
All three suffered from psychological problems which the counselor identified
as resulting from living in their parents' violent and chaotic household and then
being confused about why they no longer lived with their parents. Their
counselor testified that they did not view living with their mother as a
possibility for them in the future. Hamlin's oldest son suffered from a chronic,
low-grade depression. The second-oldest child, R.H., suffered from an anxiety
disorder. D.H. had some depression and repression of emotions and had
"acted out" by starting fires. The youngest child, R.H., was less than one year
old when he moved in with his aunt and uncle and did not remember Hamlin.
10 All the professionals agreed that the children desperately need
permanency--to know where they will be living for the long term. By all
accounts, the children have improved in school attendance and performance
and emotionally while living with their aunt and uncle's family. The aunt
testified that the children love their mother and miss her, but that they do not
want to move to Wyoming. She further testified that she and her husband
were willing to commit to long-term foster care of all four children.
11 The court determined that Hamlin had failed to comply with the
provisions of her treatment plan and that she had abandoned the children by
failing to have any contact with them between May of 1996 and the hearing.
The court further determined that the children needed to be placed permanently, and
that this needed to happen immediately: "The children cannot wait
any longer to see if their mother might someday become an adequate parent
to them." The court determined that it was in the best interests of the children
to remain in the home of their aunt and uncle, and awarded their care and
custody to the Department until they are eighteen years of age, with the
recommendation that they be placed with the aunt and uncle. The court
further ordered that Hamlin shall have contact with the children only if the
Department determines contact to be in the children's best interests, and that
any visits shall be therapeutically supervised unless the children's therapist
determines that supervision is not necessary.
12 In a companion case, the District Court placed the custodial rights of
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the children's father with the Department. The father did not appeal, but
Hamlin does.
DISCUSSION
13 Did the District Court abuse its discretion when it awarded Hamlin's
custodial rights to the Department?
14 Although Hamlin, in her brief, characterizes the District Court's
decision as one terminating her parental rights to her children, the court did not
terminate her parental rights. The court concluded in part as follows:
The State has presented a compelling case to terminate
[Hamlin's] parental rights to the children and to place the
children with the Department with the right to consent to the
adoption of the children. Under the unique circumstances of
this case, however, the Court concludes that it would not be
appropriate to do so, at least at this time.
Instead, the court declared J.H., R.H., D.H., and R.H. youths in need of care
and awarded Hamlin's custodial rights to the children to the Department until
each child reaches the age of eighteen.
15 This Court reviews findings of fact to determine whether the findings
are clearly erroneous, and we review conclusions of law to determine whether
they are correct. The transfer of a child's custody from his or her parents to
the Department is dependent upon an initial determination that the child is
abused or neglected and is then a discretionary determination which this Court
reviews for abuse of discretion. Matter of C.M. (1997), 281 Mont. 183, 186,
932 P.2d 1063, 1065.
16 Section 41-3-404, MCA (1995), provides for adjudicatory hearings to
declare a child a youth in need of care. Then 41-3-406(1), MCA (1995),
goes on to provide:
If a youth is found to be a youth in need of care under
41-3-404, the court may enter its judgment, making any of the
following dispositions to protect the welfare of the youth:
(a) permit the youth to remain with the youth's parents
or guardian, subject to those conditions and limitations the court
may prescribe;
(b) grant an order of limited emancipation to a youth
who is 16 years of age or older as provided in 41-3-408;
(c) transfer legal custody to any of the following:
(i) the department;
(ii) a child-placing agency that is willing and able to
assume responsibility for the education, care, and maintenance
of the youth and that is licensed or otherwise authorized by law
to receive and provide care of the youth; or
(iii) a relative or other individual who, after study by the
department or a licensed child-placing agency designated by the
court, is found by the court to be qualified to receive and care
for the youth;
(d) order any party to the action to do what is necessary
to give effect to the final disposition, including undertaking
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medical and psychological evaluations, treatment, and counseling that does not
require an expenditure of money by the
department unless the department is notified and a court hearing
is set in a timely manner on the proposed expenditure. The
department is the payor of last resort after all family, insurance,
and other resources have been examined.
(e) order further care and treatment as the court considers in the best
interest of the youth that does not require an
expenditure of money by the department unless the department
is notified and a court hearing is set in a timely manner on the
proposed expenditure. The department is the payor of last resort
after all family, insurance, and other resources have been
examined. [Emphasis added.]
Under this statute, a stipulation that a child is a youth in need of care
empowers a district court, in its discretion, to transfer legal custody of the
child from the parent(s) to the Department. See Matter of C.M., 281 Mont. at
187, 932 P.2d at 1066.
17 In this case, as the Department points out, Hamlin stipulated that her
children were youths in need of care. Under Matter of C.M., it was then
within the discretion of the District Court to determine whether the welfare of
the children would be protected by transferring their legal custody to the
Department.
18 Hamlin disputes the court's conclusion that she "totally" failed to
comply with provisions of the treatment plan and that it was highly unlikely
that she could or would remedy her problems within a reasonable amount of
time. She submitted records of counseling she independently obtained in
Wyoming. However, those records indicate that the counseling Hamlin sought
in Wyoming related almost exclusively to issues between her and her
boyfriend. The record also contains a letter from Hamlin's Wyoming
caseworker stating that Hamlin had stopped attending parenting classes in
September 1996. Two letters from agencies in Wyoming state that Hamlin did
not complete anger management classes and that she attended a battered
women's support group only one or two times.
19 Hamlin also disputes the court's conclusion that she abandoned her
children by failing to have any contact with them from May 1996 to June
1997. This apparently relates to her allegation that her rights should not be
terminated because any evidence to that effect relates to domestic abuse she
suffered at the hands of her former husband, the children's father. However,
she does not elaborate upon that claim, and the evidence does not support the
statement that her problems parenting her children were due solely to abuse
she suffered at the hands of their father.
20 The only contact Hamlin initiated with her children from Wyoming--phone calls--
terminated when her sister stopped accepting collect calls from
her after she called irregularly and insisted on having her boyfriend participate
in the calls. The Montana caseworker testified that he wrote to Hamlin in
January 1997 concerning acceptable conditions and scheduling of phone calls
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from her to her children, but Hamlin did not respond to his letter. The
children's counselor testified that the children made a videotape and sent it to
their mother, but they never received any response.
21 Hamlin's plan for the future, as she related to the children's counselor,
was to return to Wyoming, to try to see the children every six months, and to
resume her telephone contact with them. Twenty months after the children
were declared youths in need of care, she did not have a residence large
enough to accommodate four children, and she had not arranged for the
children to visit her in Wyoming. Hamlin had not completed her treatment
plan and had in fact been out of contact with her children for the majority of
time since her treatment plan was initiated. Hamlin's position is that she needs
more time to get her life in order. However, the evidence clearly established
that, for their emotional health, these children need finality of placement now.
22 Hamlin cites the goal set forth at 41-3-101(1)(d), MCA, of preserving
the unity and welfare of the family whenever possible. After reviewing the
record, we conclude that goal has been forwarded by the recommendation of
the District Court that the children be placed with their aunt and uncle and the
provisions regarding visitation by the parents.
23 We hold that the District Court did not abuse its discretion in determining
that to protect the welfare of J.H., R.H., D.H., and R.H., their custody
should be transferred to the Department. We therefore affirm the decision of
the District Court.
/S/ J. A. TURNAGE
We concur:
/S/ KARLA M. GRAY
/S/ W. WILLIAM LEAPHART
/S/ JAMES C. NELSON
/S/ TERRY N. TRIEWEILER
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