In Re EK

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No. 01-485

IN THE SUPREME COURT OF THE STATE OF MONTANA

2001 MT 279

IN THE MATTER OF E.K., C.K., AND J.E.,

Youths in Need of Care.

APPEAL FROM: District Court of the Sixteenth Judicial District,

In and for the County of Fallon,

The Honorable Joe L. Hegel, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Richard L. Burns, Glendive, Montana (for A.K.); Lorraine A. Schneider, Schneider Law
Offices, Glendive, Montana (for P.E.)

For Respondent:

Mike McGrath, Montana Attorney General, Mark W. Mattioli, Assistant Montana
Attorney General, Helena, Montana; Albert R. Batterman,, Fallon County Attorney,
Baker, Montana; Gary Bunke, Child Protection Unit, Miles City, Montana (for DPHHS)

Submitted on Briefs: November 8, 2001
Decided: December 19, 2001

Filed:

__________________________________________

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Clerk

Justice Patricia O. Cotter delivered the Opinion of the Court.

¶1 The natural father of E.K. and C.K. (A.K.), and the natural father of J.E. (P.E.), appeal
the termination of their parental rights and grant of permanent custody of E.K., C.K., and J.
E. to the Department of Public Health and Human Services by the Sixteenth Judicial
District Court, Fallon County.

¶2 The sole issue on appeal is whether the District Court abused its discretion in
terminating the fathers' parental rights. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 This case involves three siblings with the same birth mother, but two different fathers.
The mother, (Jackie) is not appealing the District Court's termination of her rights. The
Department of Public Health and Human Services (Department) removed the children
from their home in May of 1999, when E.K. was ten, C.K. was nearly six, and J.E. was
three and a half. At the time, Jackie was married to P.E., the father of J.E. Before
addressing the Department's involvement, we review the parents' background.

¶4 Jackie's first marriage was to A.K. in 1978. They had four children, including E.K. and
C.K., the youngest. While married to Jackie, A.K. drove charter and school buses which
took him away from home on overnight trips. In the Spring of 1994, the Department
became involved with Jackie and A.K.'s children due to the poor conditions of the home.
A.K. testified that he was not living with Jackie at the time, as they were separated, but
that he was aware of the problems and why the Department became involved with his
children. A.K. testified he was subject to a treatment plan in 1994 when the Department
had temporary custody of his children. A.K. admitted that during E.K. and C.K.'s early
years, when A.K. lived with them, he "did not monitor the home environment close
enough for them." In addition, A.K. told the court he knew Jackie drank alcohol, and that
it was possible that he overlooked a lot of things that were going on in his home while he
was married to her. A.K. also admitted that while he was married to Jackie, he physically
abused her by grabbing her throat during an argument. A.K. and Jackie separated in 1994

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and divorced in 1996.

¶5 Jackie married P.E. in 1996 and they have one child together (J.E.). C.K. and E.K., and
later J.E., lived with Jackie and P.E. P.E. worked as a long-haul truck driver and was away
for three or four weeks at a time, returning home for a day or two before leaving again. P.
E. sent money home to Jackie to cover the bills; however, P.E. testified the bills were not
always paid, and in fact the power was shut off a couple of times. P.E. told the court that
his rifle and camcorder were missing and he assumed they had been sold or pawned. P.E.
testified that if he returned home and Jackie was not there, when he asked the children
where she was, they sometimes replied, "What do you think?," which P.E. understood to
mean Jackie was at the bar, drinking. P.E. told the court he was comfortable leaving the
children with Jackie, even though he admitted she would leave them alone or with their
older sister and go to a bar. P.E. testified that he remembers Jackie as having to be under
the influence to have any communication with him. P.E. and Jackie were still married in
May of 1999 when E.K., C.K. and J.E. were removed, but they divorced in November of
2000.

¶6 In the thirteen months prior to removing E.K., C.K., and J.E., the Department received
eleven separate referrals regarding the children. The referrals concerned extremely poor
hygiene, an unsanitary home environment, inadequate clothing for cold weather, tardiness
to school, exposure to pornography in the home, and abnormal sexual behavior in school.
There were also reports that Jackie was often inebriated and absent from the home and her
children. On May 13, 1999, the District Court found the children to be abused and
neglected.

¶7 On June 1, 1999, the District Court adjudicated the children as youths in need of care
within the meaning of § 41-3-102, MCA. One week later, A.K., P.E., and Jackie executed
a stipulation consenting to temporary investigative authority and temporary custody. At
that hearing on June 8, 1999, the District Court explained the process of temporary
custody as well as implementation of treatment plans to all three parents, and warned them
that failure to follow the treatment plans may result in the children being permanently
placed elsewhere. The District Court also addressed visitation between the fathers and
their children, advising A.K. and P.E. that they should contact the Department for
visitation arrangements. At that time, a social worker for the Department, Natalie Adorni
(Adorni) informed the court that she told the fathers the Department encouraged visitation,
but it would have to be initiated by P.E. and A.K.

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¶8 Adorni prepared treatment plans for all three parents, which the court approved on July
16, 1999. The long range goals included helping the parents to stabilize their environment
and assess their strengths and weaknesses as parents, as well as determining if the parents
had the ability and skills required to effectively parent their children. The treatment plans
required both fathers complete the following tasks: obtain psychological and chemical
dependency evaluations and follow all recommendations; not be involved in any illegal
activities; participate in home-based parenting classes; maintain contact (at least twice a
month) with the assigned social worker; maintain an adequate home with heat, electricity,
and running water, and consistently keep the home in an acceptable manner; maintain and
honor Department approved visitation contact with children; provide a safe and consistent
home environment for children; and fully cooperate with all services and agencies. The
time frame for accomplishing the specified treatment plan tasks was six months from the
date of removal, thus ending November 2, 1999.

¶9 The Department filed for an extension of the temporary investigative authority on
November 24, 1999. Following a series of motions to continue by the parties, the District
Court held a hearing on February 8, 2000. At that hearing, the court asked A.K. if he had
requested any visitations with his children and A.K. replied that he had not, but added he
did want to visit them. The court asked P.E. about his visitation, and P.E. responded that
he and Jackie had "[a] little bit at first," but contact was later suspended. Adorni explained
this was in response to the clinical psychologist's opinion in the Fall of 1999, that it was
becoming emotionally damaging for the children to maintain contact with Jackie.

¶10 At this February 2000 hearing, Adorni informed the court that neither father had
followed through with his treatment plan. The court determined P.E. signed his treatment
plan on June 24, 1999, and Adorni informed the court that on January 3, 2000, P.E. told
her that "he had no intention of working a court-ordered treatment plan because the
children were removed while he was not in the home."

¶11 A.K. informed the court he had not received a treatment plan. The court determined A.
K. had not signed the treatment plan, and provided him a copy at the end of the hearing.
However, in an affidavit, A.K. later admitted that P.E. had delivered a copy of the
treatment plan to A.K., and that A.K. put it under the counter. A.K. admitted he did not
open the envelope. Also in an affidavit, the County Clerk stated she sent A.K. a copy of
his treatment plan on July 6, 1999, and did not receive the envelope back as undeliverable.
A.K. claims the clerk mailed the envelope to the wrong address.

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¶12 The District Court continued the February 8, 2000 hearing to March 9, 2000, to allow
testimony from a clinical psychologist. Jackie and A.K. were present with counsel at the
continued hearing, but P.E. did not appear. Jackie's counsel and Adorni both relayed to the
court that P.E. did not object to continuing the temporary legal custody, and that P.E.'s
counsel indicated to them that P.E.'s presence at this hearing was not necessary.

¶13 The court heard testimony from Dr. Ned Tranel (Tranel), a clinical psychologist, who
evaluated Jackie and the three children. Tranel testified that all three children have a
developmental disorder called Reactive Attachment Disorder (RAD) which was generated
from pathogenic environmental parenting influences (i.e, gross neglect), rather than
neurological influences. According to Tranel, RAD is caused by a lack of attachment or
bonding between a parent and child. RAD disrupts developmental patterns of academic
readiness, intellectual ability, and social skills, and can be a lifelong handicapping
condition if not ameliorated during the children's formative years.

¶14 At the end of the hearing, A.K. told the court he had no objection to continuation of
temporary legal custody. Adorni told the court that prior to this hearing, A.K. had not
expressed an interest in working the treatment plan, nor had he requested any visitation
from the Department. A.K. told the court he would like to begin contacting his children
through cards and letters and progress to telephone visits. The court concluded A.K. could
have monitored telephone contact.

¶15 The court relayed to the parties that based on the testimony and Tranel's report, E.K.,
C.K., and J.E. "need more than the average child," explaining that due to "their
developmental disabilities . . . they need more stability and more safety and those types of
things." The court continued, "what might have been adequate for a child without those
[disabilities], might not be adequate for these children, as far as parenting skills are
required." On June 1, 2000, the court granted temporary legal custody of E.K., C.K., and J.
E. to the Department for a six month period.

¶16 At the end of July, 2000, A.K. moved the court to order the Department to arrange for
telephone contact between A.K. and his children, E.K. and C.K. The court granted A.K.'s
motion on July 31, 2000.

¶17 On September 15, 2000, the Department petitioned for permanent custody and
termination of parental rights. The District Court held a termination hearing on December
12 and 13, 2000, where it heard testimony from Tranel, Adorni, the three parents, a

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counselor for the children, and the children's foster mother.

¶18 At the hearing, Tranel again testified about the children's evaluation and the impact of
their disabilities on their development. Tranel explained that children with RAD have
difficulties getting along with peer group members, understanding and responding to
nonverbal cues, and solving problems independently. Tranel testified all three children had
both RAD and Attention Deficit/Hyperactivity Disorder (ADHD), which he attributed to
"grossly pathological parenting during the formative years." Tranel explained that the first
year to two years of a child's life are the most critical for the attachment process.

¶19 Tranel testified that Jackie suffered from chronic chemical dependency and
characterized her as having a borderline personality disorder. According to Tranel, Jackie
would be unable to meet a minimum standard of parenting for the three children because
of the children's developmental problems combined with her chemical dependency and
personality disorder. At the hearing, Jackie admitted her chemical dependency problem
affected her ability to parent E.K., C.K., and J.E. When asked if she was interested in
having her children returned to her, Jackie replied she was not mentally able to care for
her children. Jackie also informed the court she had plead guilty to a felony (issuing bad
checks, a common scheme) in January of 2000, and was on probation at the time of the
December hearing.

¶20 Based on his interview with A.K. on December 6, 2000, and A.K.'s own admissions,
Tranel testified that A.K. had been generally unavailable to E.K. and C.K. during their
early years. Tranel noted A.K. told him that during those years, "he was not on top of
everything." A.K. verified Tranel's statement when A.K. testified that he did not monitor
the home environment close enough, and that he, "like most parents, blowed [sic] them [E.
K. and C.K.] off for a little bit." Tranel testified that given the history of A.K.'s physical
and psychological absence during the formative years, the issues of re-entry and re-
bonding, the limitations of A.K.'s living conditions (four adults and a child living in a two
bedroom trailer) and the special needs of the children, it would be difficult for A.K. to
provide for the children's needs.

¶21 Although Tranel did not interview P.E. directly, he testified that based on the
information collected from the court files and his evaluation of Jackie, P.E. had been
physically and psychologically unavailable to J.E.

¶22 Tranel explained that the fathers' occupations, which required them to be gone for

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long periods of time, would not necessarily cause RAD. Instead, Tranel noted contact does
not have to be daily to prevent RAD, and that one way a father can contribute to the
process of attachment and bonding is to love the children's mother.

¶23 According to Tranel, treating children with RAD requires providing them with a
therapeutic environment that facilitates forming attachments with others, adding that such
an environment must include security, structure, stability, and support. Tranel testified that
in his opinion, it was in the best interests of the children that all three parents have their
parental rights terminated. He also told the court it would be better for the three children to
remain together.

¶24 Robyn Kuhr (Kuhr), a licensed counselor, provided therapy for the children and foster
family, and also supervised telephone calls between A.K. and his two children. Kuhr
testified that the conversations between A.K. and E.K. and C.K. were superficial, but in
her opinion, "went well." However, the children's foster parents told Kuhr that following
the phone conversations with A.K., E.K. would become more isolated and C.K. would
become quite aggressive and even violent. Kuhr noted that she did not sense much of an
attachment or relationship between E.K. and C.K. and their father, which in her opinion
was due to the length of time between contact. Kuhr advocated permanency and as few
moves as possible for the children, noting they were doing very well in their foster home.
She also testified that the children should not be separated, explaining the only bonding
they had experienced was with each other.

¶25 The children's foster mother, S.K., testified about the children's progress since they
came to live with her family in May of 1999. S.K. testified that in her opinion E.K. and C.
K. made great improvements in school and all three children have a very strong bond with
each other. S.K. testified that when E.K. learned telephone contact with A.K. had been
scheduled, E.K. went from being animated and happy to being emotionally flat. S.K. told
the court that after contact with their father, E.K. and C.K. became very intense and
aggressive. S.K. explained that following phone calls with A.K., C.K. became very
aggressive and violent (i.e., screaming, trying to choke J.E. and inflict injury on S.K., and
acting inappropriately with the family pet). Although J.E. did not participate in the phone
calls, J.E. reacted to the older siblings, by becoming hurtful and having nightmares.

¶26 Adorni testified about all three parents' progress with their treatment plans. A.K.
obtained a psychological evaluation on March 22, 2000. The evaluator found A.K. to be a
"personality capable of adequate parenting," and recommended A.K. attend parenting

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classes. A.K. completed a chemical dependency evaluation on April 20, 2000, which
concluded A.K. did not have dependency issues. According to Adorni, A.K. failed to
maintain contact with her twice a month as required under the treatment plan, noting that
from August of 2000, to the December 12, 2000 hearing, A.K. contacted her twice. A.K.
testified he did not have any contact with Adorni between February 2000 and August
2000. A.K. explained he left his name and number on an answering machine, but told the
court when he did not hear back from Adorni he stopped leaving a message. Adorni
testified that A.K. participated in six parenting classes, but not until September and
November of 2000. A.K. explained to the court there were only two parenting classes
offered in Helena; one in the spring and one in the fall. A.K. testified that following the
July 31, 2000 order regarding telephone contact with his children, his first conversation
with them was on August 17, 2000. A.K. told the court that since July, he had
approximately three or four phone contacts with his children, and had written them about
two or three times.

¶27 The court also heard testimony concerning P.E.'s compliance with his treatment plan.
Adorni testified that up until August 30, 2000, when P.E. contacted her, P.E. had not made
any effort to comply with the requirements of the treatment plan he signed June 24, 1999.
P.E. testified that he knew as of May of 1999 that he had to start working on his parenting,
but also told the court he felt he had done nothing wrong. P.E. eventually obtained a
psychological evaluation on August 24, 2000, and a chemical evaluation on September 1,
2000. P.E. testified that he did not seek individual therapy as recommended by the doctor
who evaluated him. P.E. attended a parenting class, but according to Adorni, this class did
not meet the requirements under the treatment plan, which required a home-based
parenting class involving a specialist who comes into the home to work with the parents. P.
E. also failed to maintain contact as required by the treatment plan. Adorni testified that P.
E. contacted her twice before August 30, 2000, and since August, he contacted her three
times. Adorni explained that P.E.'s unwillingness to work on the treatment plan tasks until
August of 2000, indicated a failure to embrace the opportunity to maintain contact with J.
E. while she was in foster care, and opined that this lack of contact was detrimental to the
relationship he could have formed with his child.

¶28 The District Court found A.K. failed to comply with his treatment plan since he did
not complete a parenting class until November, 2000; did not maintain contact with the
social worker; did not initiate contact with his children through letters; did not have
significant telephonic contact with his children; and was not cooperative with the services
and agencies involved in his treatment plan.

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¶29 The District Court found that P.E. failed to comply with his treatment plan since he
did not start working on his treatment plan until the petition for termination was filed,
noting that in August of 2000, P.E. told Adorni that he was going to start working on his
court-ordered treatment plan. The court also found P.E. failed to provide any
documentation showing he met any of the requirements of his treatment plan, and that the
parenting class he attended did not meet the requirements of the home-based parenting
class required by the treatment plan.

¶30 On May 9, 2001, the District Court terminated all three parents' parental rights, and
granted custody of E.K., C.K., and J.E. to the Department. A.K. and P.E. appeal the court's
findings and conclusions of this order.

STANDARD OF REVIEW

¶31 We review a district court's decision to terminate parental rights to determine whether
the court abused its discretion. In re J.W., 2001 MT 86, ¶ 7, 305 Mont.149, ¶ 7, 23 P.3d
916, ¶ 7 (citation omitted). We review a district court's specific findings to determine
whether they are clearly erroneous. In re J.W., ¶ 7. A finding of fact is clearly erroneous if
it is not supported by substantial evidence, if the court misapprehended the effect of the
evidence or if, upon reviewing the record, this Court is left with the definite and firm
conviction that the district court made a mistake. In re J.W., ¶ 7. In reviewing a district
court's conclusions of law, we determine if they are correct. In re S.M., 1999 MT 36, ¶ 15,
293 Mont. 294, ¶ 15, 975 P.2d 334, ¶ 15 (citation omitted).

¶32 We have repeatedly 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 E.W., 1998 MT 135, ¶ 12, 289 Mont. 190, ¶ 12, 959 P.2d 951, ¶ 12
(citation omitted). A district court must adequately address each applicable statutory
requirement before terminating an individual's parental rights. In re E.W., ¶ 12. The party
seeking to terminate parental rights "must present clear and convincing evidence to the
district court that the prerequisite statutory criteria for termination have been met." In re E.
W., ¶ 12 (citation omitted). In cases involving the termination of parental rights,

clear and convincing proof is 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
proof. This requirement does not call for unanswerable or conclusive evidence. The

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quality of proof, to be clear and convincing, is somewhere between the rule in
ordinary civil cases and the requirement of criminal procedure--that is, it must be
more than a mere preponderance but not beyond a reasonable doubt.

In re J.N., 1999 MT 64, ¶ 12, 293 Mont. 524, ¶ 12, 977 P.2d 317, ¶ 12 (citation omitted).

¶33 In determining whether to terminate parental rights, "the district court is bound to give
primary consideration to the physical, mental, and emotional conditions and needs of the
children," thus "the best interests of the children are of paramount concern in a parental
rights termination proceeding and take precedence over the parental rights." In re J.W., ¶ 8
(citation omitted). We will presume that a 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 E.W., ¶ 14
(citations omitted).

DISCUSSION

¶34 Did the District Court abuse its discretion when it terminated A.K.'s and P.E.'s
parental rights?

¶35 A district court may terminate a person's parental rights if it finds that the child has
been adjudicated a youth in need of care, an appropriate court-approved treatment plan has
not been complied with or has been unsuccessful, and the conduct or condition rendering
the parent unfit is unlikely to change within a reasonable period of time. Section 41-3-609
(1)(f), MCA.

¶36 Neither A.K. nor P.E. challenge the District Court's finding that E.K., C.K., and J.E.,
were adjudicated youths in need of care. Nor do they challenge the appropriateness of
their treatment plans. However, both fathers argue they satisfactorily completed their
treatment plans and conclude the District Court's findings, that each failed to comply with
his treatment plan, were clearly erroneous. In addition, they both claim there was no
conduct or condition rendering them unfit that required change within a reasonable time.

¶37 The District Court found that both A.K. and P.E. neglected their children inasmuch as
they had not been physically or psychologically available to their children both before and
after state intervention. The court found that both fathers left their children in Jackie's
"completely inadequate" care, even though they knew, or should have known, of the living

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environment and lack of care the children were receiving.

¶38 While noting that part of complying with a treatment plan is to do so in a timely
manner, the District Court concluded that none of the parents came close to compliance
within the six month period. Further, the court concluded none of the parents were capable
of providing security, stability, structure, or support for the children.

¶39 The court gave primary consideration to the physical, mental, and emotional
conditions of the children in determining whether the conduct or condition of the parents
rendering them unfit were likely to change in a reasonable time. The court asserted that
few steps had been taken by the parents to change the conditions that caused the
attachment disorder, noting that at the peak time for developing RAD (1 to 1 ½ years old),
each of the fathers had a presence in the family home with the children, although not there
frequently. The court further found that the extremely negative emotional disturbance
following brief telephone contact underscores the finding that the children need to move
on to a safe parental home.

Termination of A.K.'s Parental Rights

¶40 The District Court found that A.K. did not comply with his treatment plan by failing
to do the following: timely complete parenting classes; maintain contact with Adorni;
initiate contact through letters with his children; demonstrate a willingness to cooperate
with services offered. Relying on Tranel's testimony, the court noted that the special needs
of the children, including the necessity of reconnecting with them, combined with A.K.'s
own circumstances, made it very difficult for A.K. to parent his children. The court
specifically rejected the evaluation of A.K. that found him a "personality capable of
adequate parenting," noting that the evaluator was unaware of the special needs and
circumstances of the children at the time of A.K.'s evaluation.

¶41 A.K. maintains there was no clear and convincing showing that he failed to complete
every task of his treatment plan, and asserts he completely complied with his treatment
plan in as timely a fashion as possible. A.K. further argues that it is impossible for a parent
to abide to each and every detail of a treatment plan, noting for instance that parents
cannot control when parenting classes will be offered.

¶42 As we have repeatedly stated, "[p]artial compliance with a treatment plan . . . is
insufficient to preclude termination of parental rights." In re K.A.B., 1999 MT 71, ¶ 19,

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294 Mont. 29, ¶ 19, 977 P.2d 997, ¶ 19 (citation omitted). Well-intentioned efforts do not
necessarily demonstrate either the completion or success of a treatment plan. In re S.M., ¶
25 (citation omitted). "[I]t is well established that a treatment plan can be unsuccessful
even when the tasks were completed." In re S.M., ¶ 25. We find that the fact that A.K.
completed some tasks does not conflict with the District Court's finding that his
compliance was insufficient.

¶43 The record clearly shows that as of February, 2000, A.K. had failed to follow through
on any aspect of his treatment plan. Although there is conflicting testimony concerning
when A.K. received his treatment plan, the District Court implicitly found A.K. had
received his treatment plan when it found A.K. did not take the matter seriously enough to
open the treatment plan P.E. delivered to him. It is not the Court's 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 E.W., ¶ 22
(quoting Matter of J.L., (1996), 277 Mont. 284, 290, 922 P.2d 459, 462. 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 E.W., ¶ 22 (citation omitted).
Thus, we will not disturb the trial court's finding that A.K. received his treatment plan
prior to February 8, 2000. Moreover, the record indicates A.K. had prior experience with
treatment plans and at the June 1, 1999 hearing, the court explained to A.K. and P.E. that
failure to follow the treatment plans may result in termination of parental rights.

¶44 Even if we assume arguendo that A.K. received his treatment plan in February, 2000,
A.K. still failed to complete the tasks within the six month window. The record clearly
shows A.K. failed to maintain bi-weekly contact with Adorni, not talking to her until
August of 2000, and then only contacting her twice between August and December, 2000.
In addition, A.K. did not complete parenting classes until November, 2000, nearly ten
months after the February hearing.

¶45 Moreover, A.K. failed to show any interest in contacting his children from the time
they were removed in May, 1999, to March, 2000. When asked what action he took after
the children were removed, A.K. replied that he did not know he had to do anything to
help out with the children's problems after they were removed, since he "figured they were
in care," and that "[i]n six months [Jackie] would get her treatment done and everything
[and Jackie] would come back and she'd get the kids back."

¶46 A.K.'s failure to initiate contact with his children for nearly a year, and his subsequent

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minimal contact with E.K. and C.K. from August to December, 2000, aggravated the
absence of bonding between father and children. In light of A.K.'s experience with Jackie
(i.e., her alcohol use and previous removal of their children) and his admission that he
"blew off" his children, we conclude A.K.'s lack of interest and involvement in his
children's living environment and upbringing indicate an inability to adequately care for E.
K. and C.K., especially considering their special developmental needs.

¶47 We also agree with the District Court that the conduct and conditions rendering A.K.
unfit were unlikely to change. In determining whether the conditions are likely to change,
the court shall give primary consideration to the physical, mental, and emotional needs of
the child. Section 41-3-609(3), MCA. When addressing whether a parent's conduct is
unlikely to change in a reasonable time, the court must assess the past and present conduct
of the parent. In re M.A.E., 1999 MT 341, ¶ 37, 297 Mont. 434, ¶ 37, 991 P.2d 972, ¶ 37.
We have repeatedly stated that "we do not have a crystal ball to look into to make this
determination, so it must, to some extent, be based on a person's past conduct." In re M.A.
E., ¶ 37 (citation omitted).

¶48 The District Court gave primary consideration to the physical, mental and emotional
needs of the children as mandated by § 41-3-609(3), MCA. We agree with the trial court
and conclude that E.K., C.K., and J.E. need a therapeutic environment to overcome their
developmental challenges, which requires security, stability, structure, and support. The
children's developmental disorders stemmed from a lack of bonding and attachment to
their parents. Considering A.K.'s past behavior (blowing them off) and his failure to
demonstrate an ability or earnest interest in getting to know his children as evidenced by
delay in addressing the treatment plan and initiating contact with E.K. and C.K., we
conclude the conditions and conduct making A.K. unfit to parent are unlikely to change in
a reasonable time.

¶49 Although A.K. did complete some tasks of his treatment plan, he failed to maintain
contact with not only the social worker, but more importantly, his own children. There is
substantial evidence to support the District Court's finding that A.K. did not comply with
his treatment plan and that the conduct and conditions were unlikely to change in a
reasonable time. Therefore, we conclude that the District Court did not err in terminating
A.K.'s parental rights.

Termination of P.E.'s Parental Rights

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¶50 P.E. argues he made substantial progress and complied with the tasks required
of him under his treatment plan. P.E. also asserts the Department failed to make
reasonable efforts to reunify J.E. with P.E.

¶51 The District Court found that P.E. failed to comply with his treatment plan since he
did not start working on his treatment plan until August, 2000. The court also noted P.E.
provided no documentation that he had met any of the requirements of his treatment plan,
and that the parenting class he attended did not meet the requirements of the home-based
parenting class required by the treatment plan.

¶52 Although P.E. did eventually complete most of the tasks of his treatment plan, he did
not even begin working on his parenting for nearly a year and a half after the children
were removed. P.E. knew as of May, 1999 he had to start working on his treatment plan,
but told the court he felt he had done nothing wrong. P.E. did not follow the
recommendation of his psychological evaluation, which was to participate in individual
therapy to deal with his inability to remain successfully married and to examine the effects
his father's drinking had on him and his family. P.E. failed to maintain contact with
Adorni, which may have contributed to P.E. participating in the wrong type of parenting
class. Given the underlying basis for J.E.'s problems, lack of parental attachment and
bonding, this delay indicates an unwillingness to parent his child. Further, as in A.K.'s
situation, P.E.'s knowledge of Jackie's limitations as a parent (i.e., problems with alcohol,
consistent absence from the home, often leaving the children unattended) and inability to
manage finances (failing to pay bills and conviction for issuing bad checks), plus his
awareness of unsanitary conditions in the home, indicate P.E.'s inability to parent J.E.,
especially considering her developmental challenges.

¶53 P.E. argues that the Department failed to assist in reunification and did not arrange
visitation. However, this argument lacks merit since P.E. failed to not only keep contact
with Adorni, who was in the position to offer him assistance, but also failed to even begin
his treatment plan for nearly a year and a half from the time the children were removed. In
May of 1999, all three parents could have had unlimited telephone contact, yet according
to P.E., he participated in one telephone call to J.E. The record indicates contact between
the children and Jackie was suspended following Tranel's report in the Fall of 1999, and it
appears P.E.'s contact ended then as well. It is unclear from the record if P.E.'s contact was
suspended by the Department. Adorni explained that the Department was unable to
implement efforts to establish contact between P.E. and J.E. due to P.E.'s unwillingness to
work on his treatment plan. At the February 2000 hearing, Adorni told the court she had

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specifically explained to both A.K. and P.E. that the Department encouraged visitation,
but before specific arrangements could be made, the fathers would have to initiate the
interest to the Department. Thus it appears P.E. was not denied visitation or contact with J.
E.

¶54 We also agree with the District Court that the conduct and conditions rendering P.E.
unfit were unlikely to change. Just as with A.K., the District Court gave primary
consideration to the physical, mental, and emotional needs of the child as mandated by §
41-3-609(3), MCA, when determining if P.E.'s conduct or condition were likely to change.
The interests of the children are paramount, and as discussed above, their special needs
require a therapeutic environment of security, stability, structure, and support. Considering
P.E. was comfortable leaving the children with their mother, although he was aware of
Jackie's problems with alcohol, her inability to pay bills, and her frequent absence from
the home and children, and his failure to even begin working on a treatment plan for over
a year, we agree with the District Court and conclude the conditions and conduct making P.
E. unfit to parent are unlikely to change in a reasonable time.

¶55 There is substantial evidence to support the District Court's finding that P.E. did not
comply with his treatment plan and that the conduct and conditions were unlikely to
change in a reasonable time. Therefore, we conclude that the District Court did not err in
terminating P.E.'s parental rights.

¶56 The District Court was bound to give primary consideration to the physical, mental
and emotional needs of the children. Section 41-3-609(3), MCA. The children's best
interests take precedence over parental rights. In re J.W., ¶ 8. Both fathers were
emotionally, psychologically, and physically unavailable to their children during their
formative years. In addition, both fathers were aware of Jackie's limitations as a parent and
excessive use of alcohol, but by not addressing any parenting issues with the children's
mother, they in effect condoned the gross neglect the of children. Moreover, neither A.K.
nor P.E. attempted to repair the broken bonds between them and the children. It is clear
from the record that given their special developmental disabilities and needs, it was in all
three children's best interests to terminate both fathers' parental rights.

¶57 Further, we note that if a child has been in foster care for fifteen out of the most recent
twenty-two months, the best interests of the child are presumed to be served by
termination of parental rights. Section 41-3-604(1), MCA. These children began living
with their foster family on May 7, 1999, and had lived with them continuously for

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nineteen months as of the hearing to terminate parental rights.

¶58 We conclude the trial court did not misapprehend the evidence concerning the fathers'
compliance with the treatment plans, nor are we left with a definite and firm conviction
that a mistake has been committed, thus we conclude the District Court's findings are not
clearly erroneous. Therefore, we hold that the District Court did not abuse its discretion in
terminating the parental rights of A.K. and P.E. We affirm.

/S/ PATRICIA COTTER

We Concur:

/S/ KARLA M. GRAY

/S/ JIM REGNIER

/S/ W. WILLIAM LEAPHART

/S/ JIM RICE

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