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No. 01-027
IN THE SUPREME COURT OF THE STATE OF MONTANA
2001 MT 187
IN THE MATTER OF C.P.,
A Youth in Need of Care.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
Honorable Russell Fagg, Judge Presiding
COUNSEL OF RECORD:
For Appellant:
Roy W. Johnson, Attorney at Law, Billings, Montana
For Respondent:
Honorable Mike McGrath, Attorney General, Helena, Montana
Nancy Schwartz, Child Protection Unit, Billings, Montana
Patrick Kenney, Attorney at Law, Billings, Montana (Guardian Ad Litem)
Submitted on Briefs: August 2, 2001
Decided: September 19, 2001
Filed:
__________________________________________
Clerk
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Justice W. William Leaphart delivered the Opinion of the Court.
¶1 Shannon appeals from the September 26, 2000, judgment of the District Court of the
Thirteenth Judicial District, Yellowstone County, terminating her parental rights to her
son, C.P. We affirm the judgment.
¶2 The issue presented is whether the District Court abused its discretion in terminating
Shannon's parental rights to C.P.
¶3 C.P. was born April 7, 1999, in Yellowstone County and at the time of the termination
hearing was seventeen months old. Shannon is the natural mother of C.P. C.P. has been
under the protective custody of the Department of Public Health and Human Services
("the Department") since April 13, 1999. He was adjudicated a youth in need of care on
August 17, 1999.
¶4 Shannon's parental rights to a sibling of C.P. were involuntarily terminated shortly
before C.P.'s birth. That child, S.P., had been severely injured by Shannon's boyfriend,
Josh. S.P. was placed in foster care in March 1998. The Department provided services and
worked with Shannon for approximately one year to improve her parenting skills. Efforts
to reunite Shannon with S.P. were unsuccessful, however. Shannon's parental rights to S.
P. were terminated in March of 1999. Shannon did not appeal that decision.
¶5 Prior to termination of Shannon's parental rights to S.P., she became pregnant with a
second child. This second child was fathered by Josh, the same man who had severely
injured her first child. The second child, C.P., is the subject of this appeal.
¶6 Judge Fagg presided over both the proceeding involving S.P. and the proceeding
involving C.P. Judge Fagg took judicial notice of the prior proceedings with regard to S.P.
In particular, he noted that there had been testimony from Dr. Chessen, a clinical
psychologist, who had performed a psychological evaluation of Shannon in April 1998.
The testimony revealed that Shannon had a low frustration tolerance, insufficient capacity
for delaying gratification, an indirect expression of hostility, a tendency toward passive-
dependent relationships with men, and that she presented a moderately high risk of child
abuse. Dr. Chessen concluded that although there was no evidence that Shannon had
abused her baby (S.P.), "she certainly was not able to recognize a dangerous situation and
did not act to protect her baby. Information from Shannon and DPHHS show that she was
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not adequately meeting [her child's] needs." Dr. Chessen recommended that Shannon
complete parenting classes and complete other programs and individual counseling to
address issues of substance abuse, family abuse and low self-esteem, as well as her role in
the cycle of alcoholism in her family and her choices of dysfunctional men.
¶7 In the context of the present matter, the District Court ordered that Shannon undergo an
updated psychological evaluation by clinical psychologist Dr. Ned Tranel. Dr. Tranel was
called as a witness by Shannon. He testified at the hearing, and the written results of his
tests were admitted into evidence. Dr. Tranel testified that the results of his evaluation
were consistent with the previous psychological data described by Dr. Chessen. Dr.
Tranel's recommendations tracked Dr. Chessen's recommendations from two years earlier
and included a recommendation that she participate in counseling designed to help her
develop the concept of "empathetic attunement," i.e. the ability to recognize and respond
to the emotional state of another person without verbal cues. Dr. Tranel testified that he
had no information to indicate that Shannon's life circumstances had changed during the
time period since her parental rights to S.P. had been terminated. It was his opinion that
the best interests of C.P. would be served by terminating Shannon's parental rights.
¶8 In the instant matter, Shannon had three different treatment plans. Although she
completed a few designated tasks in the various plans, her performance did not constitute
compliance or successful completion. The guardian ad litem recommended termination of
the parental rights of both Shannon and Josh.
Standard of Review
¶9 The decision to terminate parental rights is a discretionary ruling reviewed for an abuse
of discretion. See, e.g., In the Matter of J.M.J., 1999 MT 277, ¶ 16, 296 Mont. 510, ¶ 16,
989 P.2d 840, ¶16. The test for an abuse of discretion is "whether the trial court acted
arbitrarily, without employment of conscientious judgment, or exceeded the bounds of
reason resulting in substantial injustice." J.M.J., ¶ 16. We will affirm findings of fact in
termination of parental rights cases unless the findings are clearly erroneous; that is,
whether they are supported by substantial evidence, whether the district court
misapprehended the effect of the evidence, or whether this Court is left with a definite and
firm conviction that the district court made a mistake. In the Matter of A.C., 2001 MT 126,
¶ 36, 305 Mont. 404, ¶ 36, 27 P.3d 960, ¶ 36. We affirm a district court's conclusions of
law if they are correct. A.C., ¶ 36.
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¶10 The termination of parental rights involves a fundamental liberty interest.
Accordingly, a district court must adequately address each applicable statutory
requirement to determine if it has been established, and the burden is on the party seeking
termination to demonstrate by clear and convincing evidence that every requirement set
forth in the statute has been satisfied. In the Matter of S.M. and P.L.M., 2001 MT 11, ¶ 30,
304 Mont. 102, ¶ 30, 19 P.3d 213, ¶ 30.
Discussion
¶11 The District Court concluded that Shannon previously had parental rights terminated
to her child S.P., a sibling of C.P., and that the circumstances related to the termination in
the previous case are still relevant to Shannon's ability to care for C.P. The court thus
terminated Shannon's parental rights to C.P. pursuant to §§ 41-3-609(1)(d) and 41-3-403(2)
(e), MCA. As an alternative basis for termination, the court concluded that, although
Shannon had made improvements in her life as required by her treatment plans, partial and
last minute compliance with a treatment plan is insufficient to constitute compliance or
successful completion of the plans. Further, the court found that the circumstances were
unlikely to change within a reasonable time.
¶12 Shannon's primary contention on appeal is that the Department did not meet its burden
of proving that Shannon did not successfully complete the treatment plans and that the
conduct or condition rendering Shannon unfit is unlikely to change within a reasonable
time.
¶13 We do not, however, need to address the question of whether the District Court erred
in concluding that the treatment plans were not successfully completed because that was
an alternative rationale for the court's judgment. The primary basis for the termination of
parental rights was the court's reliance on the fact that Shannon's parental rights to C.P.'s
sibling, S.P., had been involuntarily terminated and the circumstances related to that
termination remained relevant to her ability to adequately care for C.P. Sections 41-3-609
(1)(d) and 41-3-403(2)(e), MCA.
¶14 Shannon contends that the prior situation wherein Josh inflicted severe injury upon S.
P. was an isolated instance of Shannon's making a poor choice of a baby sitter. She
paraphrases Dr. Tranel as having testified that if there had been no prior indication that a
baby sitter might harm a child, the parent would have to bet on the sitter; that if a parent
makes a poor choice of a baby sitter, she is not necessarily a terrible parent; that if it were
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an isolated instance of choosing a poor baby sitter, he would consider it a "mistake."
¶15 Contrary to Shannon's characterization, Dr. Tranel, after reviewing the record,
testified that Josh's abuse of S.P. was not an isolated incident. The District Court was of
the same mind when it concluded that Shannon continued to deny the seriousness of the
abuse to S.P. by Josh and refused to accept responsibility for placing S.P. at risk. This led
the District Court to conclude, with regard to C.P., that termination under §§ 41-3-609(1)
(d) and 41-3-403(2)(e), MCA, was appropriate.
¶16 Section 41-3-609(1)(d), MCA, provides, in pertinent part:
(1) The court may order a termination of the parent-child legal relationship upon a
finding that any of the following circumstances exist:
...
(d) the parent has subjected the child to any of the circumstances listed in 41-3-403
(2)(a) through (2)(e).
¶17 The circumstances listed in § 41-3-403(2)(e), MCA, include those where a parent has:
had parental rights to the child's sibling or other child of the parent involuntarily
terminated and the circumstances related to the termination of parental rights are
relevant to the parent's ability to adequately care for the child at issue.
¶18 There is no question but that Shannon had her parental rights to C.P.'s sibling, S.P.,
involuntarily terminated. The only issue is whether the court abused its discretion in
concluding that the circumstances related to the termination of Shannon's parental rights to
S.P. are relevant to Shannon's present ability to adequately care for C.P.
¶19 Here the District Court recognized that it must give primary consideration to the best
interests of the child as demonstrated by the child's physical, mental and emotional
conditions and needs. Section 41-3-609(3), MCA. Furthermore, C.P. has been in foster
care since his birth, and, if a child has been in foster care under the custody of the
Department for fifteen of the most recent twenty-two months, his best interest must be
presumed to be served by termination of parental rights. Section 41-3-604(1), MCA.
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¶20 The District Court relied on the testing of Dr. Tranel whose findings were consistent
with those of Dr. Chessen. Dr. Tranel's testimony establishes that the circumstances
related to the termination of S.P. are relevant to Shannon's ability to adequately care for C.
P. Dr. Tranel concluded, since there is no indication that Shannon's life circumstances
have changed from the time of the previous termination, it is in the best interests of C.P.
that Shannon's parental rights be terminated. We hold that there is substantial evidence in
the record that the circumstances related to the termination of Shannon's parental rights to
S.P. are relevant to Shannon's ability to adequately care for C.P. and that the continuation
of the parent-child relationship between Shannon and C.P. will likely result in substantial
risk of harm to C.P.'s health or welfare. The District Court did not abuse its discretion in
concluding that it is in the best interests of C.P. that Shannon's parental rights be
terminated.
¶21 Since § 41-3-609(1)(d), MCA, provides a separate and sufficient basis for termination
of parental rights, we need not address the issue of whether Shannon successfully
completed any of the various treatment plans.
¶22 Affirmed.
/S/ W. WILLIAM LEAPHART
We concur:
/S/ KARLA M. GRAY
/S/ TERRY N. TRIEWEILER
/S/ JAMES C. NELSON
/S/ JIM RICE
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