In Re AM

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No. 99-678

IN THE SUPREME COURT OF THE STATE OF MONTANA

2001 MT 60

IN RE THE MATTER OF A.M.,

A Youth in Need of Care.

APPEAL FROM: District Court of the Third Judicial District,

In and for the County of Anaconda-Deer Lodge,

The Honorable Ted L. Mizner, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Kevin E. Vainio, Butte, Montana

For Respondent:

Joseph P. Mazurek, Montana Attorney General, Jennifer Anders, Assistant Montana Attorney General,
Helena, Montana; Michael B. Grayson, Deer Lodge County Attorney, Joan Borneman, Deputy Deer
Lodge County Attorney, Anaconda, Montana

Guardian Ad Litem:

Sherry Petrovich-Staedler, Anaconda, Montana

Submitted on Briefs: April 12, 2001
Decided: April 17, 2001

Filed:

_________________________________________

Clerk

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Justice James C. Nelson delivered the Opinion of the Court.

¶1 The natural mother of A.M. (hereinafter B.V.) appeals from the Findings of Fact,
Conclusions of Law and Decree entered by the Third Judicial District Court, Anaconda-
Deer Lodge County, which terminated her parental rights to A.M., and awarded permanent
legal custody with the right to consent to adoption to the Department of Public Health and
Human Services.

¶2 We affirm.

¶3 B.V. raises five claims of error that have been framed by the following issues:

1. Did the Department prove with clear and convincing evidence that A.M. was
abused and neglected and was, thus, a youth in need of care so as to allow the
termination of parental rights?

2. Did the District Court violate B.V.'s due process rights by basing the termination
of parental rights on the supposed adjudication of the child as a youth in need of
care at an earlier hearing on a petition for temporary investigative authority where at
the time of that hearing the parent was an indigent mental patient civilly committed
to an institution and was then unrepresented by counsel?

3. Was sufficient evidence presented to terminate parental rights without a prior
treatment plan under § 41-3-609(4)(a), MCA (1997)?

4. Did the District Court err in applying § 41-3-609(4)(b) (1997), which excuses the
requirement of a treatment plan if the parent is incarcerated for more than one year?

5. Did the termination of B.V.'s parental rights violate the Americans with
Disabilities Act by imposing different standards for a parent with mental illness
compared with standards imposed on other parents?

FACTUAL AND PROCEDURAL BACKGROUND

¶4 On January 30, 1998, the Department of Public Health and Human Services

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(hereinafter the Department), received a referral that there was a two-year-old girl at a
residence in Anaconda, Montana, that had been bitten by a dog. Terri Waldorf, a
community social worker supervisor with the Department's Children and Family Services
Division, went to the home accompanied by law enforcement officers and an animal
control warden. They found at least 12 dogs inside the house, approximately the same
number outside the house, and discovered canine urine and feces on the floors, on the two
beds, and on the girl's toys.

¶5 The girl, A.M., who was born October 12, 1995, was in the care of her grandmother at
the time. When asked about the condition of the bedroom and the house in general, the
grandmother explained that she and A.M. had been sleeping on the couch in the living
room, rather than in the bedroom, and that she cleaned up after the dogs every day when
she returned home from work at a local fast-food restaurant. It was not clear who cared for
the child while the grandmother was at work. A.M. was removed from the house and
placed in foster care.

¶6 A.M.'s guardian ad litem would later report that the girl smelled so bad "it was hard to
get near her" and she was not potty trained and "still on the bottle." Her teeth were
decayed and several would later be removed while in foster care. The child, however, had
not received a bite from a dog sufficient to leave a physical mark. At all times in this
matter if and to what extent A.M. has suffered any type of developmental delay due to her
care and living environment has been in dispute.

¶7 Waldorf filed a report to the District Court along with the deputy county attorney's
petition for temporary investigative authority and protective services on February 3, 1998.
Waldorf attested that A.M.'s mother, B.V., was at Warm Springs State Hospital at the time
A.M. was removed from the home, and was subject to numerous criminal charges. The
report stated that B.V. was "seriously mentally ill and a danger to herself or others."
Waldorf stated that the home A.M. was found in was unsuitable to live in. Waldorf also
acknowledged that B.V.'s criminal status--uncertain at the time--needed to be addressed
"in order to effectively plan to parent and ensure the safety of her child." A show cause
hearing on the petition was scheduled for February 18, 1998, and a guardian ad litem was
appointed for A.M.

¶8 In a February 4, 1998 court order, the court found that A.M. was abused or neglected or
in danger of being abused or neglected pursuant to § 41-3-102, MCA (1997), and that the
removal of A.M. from B.V.'s home was necessary in light of the need to protect A.M.'s

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welfare. Thus, the court declared that A.M. was a youth in need of care, the Department
was granted a 90-day temporary investigative authority over the matter, and the
Department could place A.M. in foster care during that period.

¶9 The minute entry from the February 18th hearing indicates that B.V. agreed to the
temporary placement of A.M. in foster care. She indicated to the court, however, that she
disagreed with the Department's indication that perhaps she had personally neglected A.M.
B.V. has, in fact, repeatedly insisted throughout this matter that she, herself, did not
"place" the child with her mother subsequent to her arrest and committal to Warm Springs
on December 23, 1997. Records kept by the Department as well as testimony indicate that
B.V. initially left the child in the care of either her mother or father.

¶10 A March 11, 1998 order reiterated that A.M. was a youth in need of care, and that if A.
M. remained in B.V.'s home it would be "contrary to the welfare of the youth."

¶11 On May 12, 1998, the deputy county attorney petitioned the court for a six-month
temporary legal custody of A.M. The petition identified two alleged fathers (a third would
later be added although paternity was never established in this matter), and requested that
the Department be given the right to require the "parents of the above named youth to
complete a treatment plan." A hearing, pursuant to this petition, took place on June 3,
1998. B.V. appeared and was represented by counsel at this hearing.

¶12 A report to the court filed by A.M.'s guardian ad litem provided a brief indication of B.
V.'s history. Apparently, B.V. was subjected to sexual and physical abuse by her parents
growing up, and had been in and out of foster homes. She first attempted suicide when she
was 12 or 13 years old. Apparently, she was first admitted into Warm Springs when she
was 14 years old, in 1982. Soon after her release, she moved to Oregon to live with
relatives. The record indicates that she had a criminal record in Oregon as well as episodes
of substance abuse. Soon after marrying, B.V. served three years in prison on a kidnaping
charge. There was also evidence that she physically abused her husband's son during that
period--although B.V. claims she took the blame for the abuse to keep her husband (now
former husband) from being extradited to Mexico. Upon release in 1993, she returned to
Anaconda where her parents live.

¶13 The record indicates that B.V. was committed to Warm Springs in December of 1997,
following an incident where she took her impounded car from police custody, eluded
officers, and drove the wrong way down a one-way street onto a playground. She

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attempted suicide in jail, which led to her commitment to Warm Springs. At the time, she
was not taking her medication for her bipolar disorder. B.V. was scheduled for release
from Warm Springs in March of 1999, after receiving a five-year sentence, with four years
suspended, for criminal endangerment.

¶14 Waldorf testified at the hearing that there was no substantiated evidence that B.V.
herself had ever abused or neglected A.M. Waldorf corroborated B.V.'s claim that she had,
while in Warm Springs, requested that the Department remove A.M. from her mother's
care on December 24, 1997. The record indicates, however, B.V. wished to have her
boyfriend and his family care for the child, rather than a family member. Waldorf also
testified that B.V. had then changed her mind before an investigation was made, and that
although foster placement with a family member was desirable, no family member other
than B.V.'s mother was immediately available. The boyfriend, Leonard Palin, testified (at
a December 16, 1998 hearing) that B.V. contacted him from Warm Springs and instructed
him to take A.M. to his parents' house, but B.V.'s mother refused to let him take the child.

¶15 B.V. testified that she had never neglected or abused A.M. She disputed evidence that
she had attempted to plot the kidnaping of A.M. from the girl's foster home with the
assistance of another boyfriend--with whom she had developed a relationship as "pen
pals" while he was incarcerated in the state prison at Deer Lodge. Although she testified
that she was more stable, diligently taking her medication, and taking parenting classes,
she agreed that she still had episodes of explosive behavior, and that it was not in A.M.'s
best interest to visit her if she was explosive or otherwise having problems with her mental
health.

¶16 The court ordered that A.M. would remain in the Department's custody for the
requested six months, and that B.V. could not contact the foster family, but could have
supervised visits.

¶17 In November, the State petitioned the court for an additional six months temporary
legal custody. A hearing was conducted on December 16, 1998, and in part focussed on
the discontinuation of B.V.'s weekly visits with A.M. due to a reported "catastrophic
(1)
response" exhibited by A.M. which was attributed to the visits with B.V. In early
December, a clinical psychologist specializing in childhood psychology, Dr. Ned Tranel,
determined that upon examining A.M., B.V.'s records, and speaking with A.M.'s foster
mother, the visits should stop at once and that it was the contact with B.V., and not the
"institutional setting" at Warm Springs, that was the "triggering event" for A.M.'s stress

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response.

¶18 Evidence and testimony at the December 16th hearing indicated that, according to the
psychological evaluation conducted by Dr. Tranel in June of 1998, B.V. could "function
effectively in a long-term, structured environment" and showed a "positive response to an
inpatient treatment program." Nevertheless, she would have "little or no realistic
expectation of providing minimal standards of parenting if left to her own resources." Dr.
Tranel not only conducted an evaluation pursuant to this matter, but had also evaluated B.
V. in 1997 prior to her arrest. That evaluation, according to Dr. Tranel, was directed at
vocational training potential.

¶19 Dr. Tranel's testimony indicated that B.V. did not have "the capacity to meet a
threshold level of parenting behavior for a young child" in the three critical areas of safety,
nurturing and interpersonal relationships. The evidence revealed that B.V. had been
hospitalized or institutionalized for psychiatric care approximately 20 times, had
attempted suicide 23 times in the past--all prior to the birth of A.M. Dr. Tranel's report and
testimony indicated that B.V. was not only bipolar--which feasibly could be maintained or
kept in remission with medication--but also exhibited an array of symptoms associated
(2)
with borderline personality disorder, which is an "enduring trait" far less treatable
through medication. He recommended that A.M.'s long-term care and needs be explored
through "alternative placement." Under the circumstances, he would not recommend that
B.V. be reunited with A.M. as a parent.

¶20 There was also ample evidence introduced that B.V. provided adequate care for A.M.
until the fall of 1997 when she, admittedly, became "unstable" after discontinuing her
medication. Written reports from regular health checkups indicate that A.M. was healthy,
well-fed, and clean from shortly after birth in October of 1995 until October of 1997. Dr.
Tranel's evaluation of A.M.'s medical records, in fact, indicated that "she has an age-
appropriate developmental level in communication, in motor functions, and self-help
skills, and in language functions."

¶21 Evidence and testimony also indicated that A.M.'s response to the visits as well as the
mother-child interaction during the visits at Warm Springs were normal for a three-year-
old child under the circumstances. The testimony of one expert for B.V., for example,
directly contradicted the findings and recommendations made by Dr. Tranel. Dr. Debra
Rainey, B.V.'s treating physician at Warm Springs, testified that she would recommend
continued visitation between A.M. and B.V. and that the behavior she observed during A.

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M.'s visits was "within the normal range of behavior of a child that age who's in foster care
and separated from her mother." The testimony of A.M.'s foster mother, however,
indicated that A.M.'s behavior changed dramatically after visits with B.V., and generally
corroborated the expert testimony of Dr. Tranel.

¶22 B.V. testified that she understood going off of her medication prior to her arrest was a
bad decision. She stated, however, that "taking away my daughter just because I am
mentally ill--when people know that I can take care of her--that's not right."

¶23 On January 13, 1999, the District Court entered an order for the continuation of
temporary legal custody and a second evaluation. The court once again made the
determination that A.M. was a youth in need of care and that it would be in her best
interest if temporary legal custody was granted to the Department for an additional six
months.

¶24 The court also indicated that the question had been raised as to whether or not it was
possible to formulate and implement an appropriate treatment plan. Thus, the court
ordered that a second, neutral psychological evaluation of B.V. would be conducted,
pursuant to § 41-3-609(4)(a), MCA (1997), to determine if B.V. "is capable of providing a
safe and nurturing home for the youth within a reasonable time and if so recommend terms
of an appropriate treatment plan including appropriate reunification and visitation
conditions." The court suspended visitation between B.V. and A.M. "indefinitely."

¶25 Following the second evaluation ordered by the court, the State filed its petition for
termination of parental rights on February 4, 1999. A hearing was set for April 28, 1999.
Prior to the hearing, B.V. was released from Warm Springs, and relocated to Butte,
Montana, and, as of August 11, 1999, was employed there.

¶26 The second court-ordered psychological evaluation, conducted by Dr. William Cook,
corroborated much of B.V.'s history, and indicated that she had had "many incarcerations."
He gave further detail of her three-year prison term in Oregon. Apparently, B.V. spent the
first 18 months of her sentence in prison and was then transferred to a psychiatric facility
to serve the remainder of her sentence. According to Dr. Cook's evaluation, B.V. was
finally diagnosed as bipolar in 1992 while serving her sentence at the state hospital in
Oregon.

¶27 The results of Dr. Cook's evaluation indicated that "[i]n addition to not considering all

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of the aspects of a situation, and often misinterpreting what she does consider, she has
difficulty stopping and thinking before making decisions, i.e., she tends to act impulsively
on misinformation." The report indicated that B.V. was indeed afflicted with bipolar
disorder and borderline personality disorder. Among the various characterizations, Dr.
Cook indicated B.V. harbored an "extreme amount of anger," had few skills in "routine
interactions with others," and tended toward "social isolation."

¶28 Dr. Cook concluded that "[n]o amount of outpatient supervision has been sufficient
for [her] to manage her mental health thus far." Thus, "[g]iven the long history and chronic
nature of her mental illness, with the accompanying suicide attempts, impulsive acting out,
incarcerations and hospitalizations, it is unlikely that she could meet her child's needs in a
reasonable amount of time."

¶29 Following the hearing, the District Court issued its Findings of Fact, Conclusions of
Law and Decree on June 11, 1999. The court recounted testimony given at the hearing
including that of Dr. Tranel, who testified that B.V.'s problems "are serious and chronic
and that her odds of meeting minimal standards of care for [A.M.] are near zero." The
court also found that although B.V. obviously "loves her daughter [A.M.] very much," in
light of B.V.'s condition and the fact that A.M. was in her formative years and required
stability and adequate parenting, "[c]ontinuation of the parent-child legal relationship will
likely result in continued abuse or neglect." The court also observed that the testimony
offered on B.V.'s behalf to rebut the testimony of doctors Tranel and Cook indicated that
the evaluation conducted by a Dr. Bernard Peters was offered for the limited purpose of
determining if B.V. qualified for social security income, and was inappropriate for custody
evaluation.

¶30 The court concluded again that A.M. was a youth in need of care within the meaning
of § 41-3-102, MCA (1997). The court also concluded that a treatment plan was waived
pursuant to § 41-3-609(4)(a) and (b), MCA (1997), and that the conduct or condition of B.
V. rendered her unfit, unable or unwilling to provide adequate parental care of A.M. and
was unlikely to change within a reasonable amount of time. Further, the court concluded
that B.V.'s "emotional illness, mental illness, or mental deficiency" was of such a duration
and nature as to render her unlikely to care for the ongoing physical, mental, and
emotional needs of A.M. within a reasonable time, under § 41-3-609(2)(a), MCA (1997).

¶31 The court ordered that the parent-child legal relationship between B.V. and A.M. was
terminated in the best interest of A.M.

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¶32 B.V. appealed.

STANDARD OF REVIEW

¶33 We review a district court's findings of fact to determine whether the findings are
clearly erroneous. See In re J.N., 1999 MT 64, ¶ 11, 293 Mont. 524, ¶ 11, 977 P.2d 317, ¶
11 (citations omitted). A finding of fact is clearly erroneous if it is not supported by
substantial evidence; if the district court misapprehended the effect of the evidence; or, if
after reviewing the record, this Court is left with a definite and firm conviction that the
district court made a mistake. In re J.N., ¶ 11 (citations omitted). This Court reviews a
district court's conclusions of law to determine whether the court interpreted the law
correctly. See In re J.N., ¶ 11 (citations omitted).

¶34 This Court has further stated 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 J.N., ¶ 12 (citations omitted). Thus, a district court must adequately
address each applicable statutory requirement before terminating an individual's parental
rights. In re J.N., ¶ 12 (citations omitted). Additionally, the party seeking to terminate an
individual's parental rights has the burden of proving by clear and convincing evidence
that the statutory criteria for termination have been met. In re J.N., ¶ 12 (citations omitted).

DISCUSSION

Issue 1.

Did the Department prove with clear and convincing evidence that A.M. was abused and
neglected and was, thus, a youth in need of care so as to allow the termination of parental
rights?

¶35 B.V. argues that the District Court's initial determination that A.M. was a "youth in
need of care" was made in error because there is insufficient evidence to demonstrate that
at any time B.V. neglected or abused A.M. herself. B.V. also contends that being "in
danger" of being abused and neglected does not satisfy the statutory criteria for the
determination of a "youth in need of care." Underlying these contentions is her assertion
that due to a statutory anomaly, the District Court applied a preponderance of the evidence
standard where a "clear and convincing" standard is mandated by governing law.

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¶36 The State contends that the Department was not required to show actual physical or
emotional abuse in order to terminate parental rights, nor was it required to wait until A.
M. was, in fact, harmed while in B.V.'s care, before instituting these proceedings. As for
its evidentiary burden, the State contends that "there is no reason to suspect that Judge
Mizner was unaware of that [clear and convincing] standard or did not correctly apply it in
this case."

¶37 As a starting point, this Court is ever mindful of the declaration of policy that serves
as a foundation for this State's child abuse and neglect statues; and that inherent in this
policy is an often times dynamic tension between the need to "protect, whenever possible,
family unity" and yet still "provide for the protection of children whose health and welfare
are or may be adversely affected and further threatened by the conduct of those
responsible for their care and protection." See § 41-3-101(1) through (4), MCA (1997)
(3)
(emphasis added). See also In re J. L. B. (1979), 182 Mont. 100, 109, 594 P.2d 1127,
1132 (recognizing that "family integrity" is a constitutionally protected interest and citing
U.S. Supreme Court outline of constitutional interests under Stanley v. Illinois (1972), 405
U.S. 645, 651, 92 S.Ct. 1208, 1212-13, 31 L.Ed.2d 551); In re B.P., 2000 MT 39, ¶ 37,
298 Mont. 287, ¶ 37, 995 P.2d 982, ¶ 37 (recognizing that the best interests of the children
are paramount and take precedence over parental rights in child abuse and neglect
proceedings) (citation omitted).

¶38 In furtherance of the foregoing policy, the "youth in need of care" statutes do not
necessarily invoke the natural parent-child relationship, pursuant to § 41-3-102(22), MCA
(defining "youth in need of care" as a youth who is abused or neglected). Rather, the
determination here that A.M. was a youth in need of care in 1998, and at all times
subsequent to that initial determination, turned on whether A.M. was or may be "abused
and neglected" as defined under our child abuse and neglect statutes by any person
responsible for her welfare, as defined under § 41-3-102(1), MCA (identifying parent,
guardian, foster parent, adult residing in same home, day-care provider, and generally
"any other person responsible for the child's welfare in a residential setting").

¶39 Under the foregoing criteria, the exigent protection of the health and welfare of the
child is paramount where the State's initial intervention into otherwise private matters
reveals an actual or potentially dangerous or unhealthy environment requiring the removal
of the child from a custodial care giver. See, e.g., In re B.P., ¶ 37. Thus, the legal
determination that a child is a youth in need of care is first and foremost a jurisdictional
prerequisite for any court-ordered temporary transfer of custody. See In re J.B. (1996),

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278 Mont. 160, 164, 923 P.2d 1096, 1099 (concluding that the district court failed to
address any evidence of appellant's abuse or neglect of the child and therefore erred in
granting temporary custody to the State).

¶40 The cases cited by B.V. for the proposition that she, herself, must have committed the
abuse or neglect--meaning any abuse or neglect resulting from her mother's care of A.M.
cannot be used against her for the purpose of terminating her parental rights--are
distinguishable. In those cases the district courts made no findings at all of abuse or
neglect--and instead relied wholly on a "best interest" standard for terminating the parent's
rights. This Court determined that a reversal and remand was necessary. See In re M.G.M.
(1982), 201 Mont. 400, 408, 654 P.2d 994, 998; In re Guardianship of Doney (1977), 174
Mont. 282, 286-87, 570 P.2d 575, 578 (reversing judgment of the district court, and
returning custody of children to petitioner, where there was no showing that the children
were abused or neglected).

¶41 Next, B.V.'s interpretation of what constitutes "abused and neglected" is misguided.
As defined under § 41-3-102(2), MCA, the terms "abused and neglected" mean the state or
condition of a child who has suffered child abuse or neglect. The terms "child abuse or
neglect," however, include not only actual harm to a child's health or welfare, but also
mean "threatened harm to a child's health or welfare." See § 41-3-102(6)(a)(i-ii), MCA.
Under subpart (b), the terms "child abuse or neglect" expressly include "harm or
threatened harm to a child's health or welfare by the acts or omissions of a person
responsible for the child's welfare." (Emphasis added). Under § 41-3-102(9), MCA, "harm
to a child's health or welfare" includes the harm that occurs whenever the parent or other
person responsible for the child's welfare: "inflicts or allows to be inflicted upon the child
physical or emotional abuse," or "exposes or allows the child to be exposed to an
unreasonable risk to the child's health or welfare by failing to intervene or eliminate the
risk," or otherwise fails to supply the child with "adequate food or fails to supply clothing,
shelter, education, or adequate health care." (Emphasis added). Finally, "threatened harm"
as used in the foregoing means a substantial risk of harm to the child's health or welfare.
See § 41-3-102(19), MCA.

¶42 Contrary to B.V.'s argument, therefore, the statutes at issue here clearly provide that a
child such as A.M. who, in the words of the District Court, is "in danger of being abused
and neglected" may be deemed a youth in need of care irrespective of B.V.'s care for the
child prior to her incarceration and placement in Warm Springs, or whether actual abuse
or neglect occurred. See In re M.M. (1995), 274 Mont. 166, 170-71, 906 P.2d 675, 678

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(children adjudicated youths in need of care due to mother leaving children with
"inappropriate supervision"); In re A.W. (1991), 247 Mont. 268, 272-73, 806 P.2d 520,
523 (children adjudicated youths in need of care where mother continually exposed her
children to a harmful living environment, although not committing abuse herself).

¶43 Here, we conclude that the evidence is more than clear and convincing that on January
30, 1998, the Department removed A.M. from an unhealthy, unsafe--not to mention
abhorrent--living environment in B.V.'s own home, and that the court did not err each time
it determined that, in the best interest of A.M., she should remain in foster care due to the
fact that no alternative custody arrangement was immediately available within B.V.'s
family. The substantial evidence relied on by the court clearly and convincingly indicates
that throughout this ordeal, B.V. did not provide the Department with a viable alternative
for the placement of A.M. other than with the foster home arranged by the Department.
See, e.g., § 41-3-406(1)(c)(iii), MCA (permitting transfer of temporary custody to a
relative found by the court to be qualified to receive and care for the youth). It was from
the hands of B.V.'s immediate family in Anaconda, in fact, that A.M. was initially
removed. In turn, B.V. has offered little evidence to mitigate the causal relationship drawn
by the State between her incarceration on December 23, 1997, and A.M.'s living condition
discovered by the Department one month later. Although there is evidence that B.V.
initiated consideration of other custody arrangements--e.g., a boyfriend's family, her
grandmother (A.M.'s great-grandmother) and a sister in Oregon--none proved sufficient to
overcome the best interest of A.M. in remaining in the stable and safe foster home in
which she was placed.

¶44 We agree with B.V. that in determining whether a child, such as A.M., is a youth in
need of care, a court is required to apply only the "preponderance of the evidence
standard." See § 41-3-404(1), MCA. Thus, B.V. is correct that the foregoing standard
differs from the ultimate standard applied in parental termination cases as expressed in In
re J.N., 1999 MT 64, ¶ 12, 293 Mont. 524, ¶ 12, 977 P.2d 317, ¶ 12 (party seeking to
terminate an individual's parental rights has the burden of proving by clear and convincing
evidence that the statutory criteria for termination have been met).

¶45 We further agree with B.V. that the State must prove by clear and convincing
evidence the statutory criteria for terminating parental rights as set forth under § 41-3-609,
MCA. Here, the termination was adjudicated pursuant to § 41-3-609(1)(e), MCA. The
State must offer clear and convincing evidence that: (1) the child was adjudicated a youth
in need of care; (2) an appropriate treatment plan approved by the court was complied

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with by the parent or was not successful or that it was waived pursuant to § 41-3-609(4),
MCA; and (3) the conduct or condition of the parents rendering them unfit was unlikely to
change within a reasonable time.

¶46 We disagree, however, that the preponderance of evidence standard applied by a court
pursuant to § 41-3-404(1), MCA, creates an "anomaly" in subsequent termination
proceedings. Rather, the decisive first question is: does the record show that during the
course of the parental rights termination proceedings the State offered clear and
convincing evidence that the District Court correctly adjudicated A.M. a youth in need of
care under the governing statutes? All that was required of the State, therefore, under § 41-
3-609(1)(e), MCA, was an offer of clear and convincing evidence that the District Court
had properly adjudicated A.M. as a youth in need of care as provided under the governing
statutes--i.e., that the court had not exceeded its jurisdiction at any time in ordering the
temporary transfer of A.M.'s custody until this matter could be further reviewed. With that
question affirmatively satisfied, the District Court could then inquire into the actual fitness
of the parent whose rights were at stake under § 41-3-609(1)(e), MCA.

¶47 Accordingly, we conclude that the State met its burden, and that the District Court did
not err in its adjudication of A.M. as a youth in need of care for the ultimate purpose of
terminating B.V.'s parental rights.

Issue 2.

Did the District Court violate B.V.'s due process rights by basing the termination of
parental rights on the supposed adjudication of the child as a youth in need of care at an
earlier hearing on a petition for temporary investigative authority where at the time of
that hearing the parent was an indigent mental patient civilly committed to an institution
and was then unrepresented by counsel?

¶48 B.V. contends that the critical determination that A.M. was a youth in need of care
pursuant to § 41-3-609(1)(e), MCA, was made by the District Court at a time when B.V.
was not represented by counsel, which violated her due process rights. We find little merit
in this argument.

¶49 The record indicates that at a February 18, 1998 show cause hearing pursuant to the
State's petition for temporary investigative authority, B.V. appeared without representation
of counsel. At a June 3, 1998 hearing, when the court considered the State's petition for

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temporary legal custody, B.V. was represented by counsel--and would be for the
remainder of these proceedings.

¶50 In In re A.S.A. (1993), 258 Mont. 194, 198, 852 P.2d 127, 130, this Court held that the
due process clause in our State Constitution guarantees an indigent parent the right to
court-appointed counsel in proceedings brought to terminate parental rights. To date, this
Court has not extended this right to a pre-termination proceeding where the focal issue
before the court is a determination of whether a child is a youth in need of care. See In re
D.S. (1992), 253 Mont. 484, 488, 833 P.2d 1090, 1093 (State not required to provide
counsel at temporary investigative authority proceeding, or at temporary custody hearing).
Rather, appointment of counsel at any time prior to the initiation of parental rights
termination proceedings is within the discretion of the district court. See § 41-3-401(12),
MCA (court may at any time on its own motion or the motion of any party appoint a
guardian ad litem for the youth or counsel for any indigent party). See also In re M.F.
(1982), 201 Mont. 277, 283-86, 653 P.2d 1205, 1208-10 (citing three-part test for
determining due process right to counsel from Lassiter v. Department of Soc. Serv. (1981),
452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640, and determining that State's interest in
protecting the welfare of the children outweighed the parent's right to custody during
initial investigatory proceedings where parent's rights could not be "erroneously
stripped").

¶51 Further, B.V.'s argument that a court violates due process when it takes judicial notice
of earlier proceedings wherein a parent is not represented by counsel has no application
here. That rule, discussed in In re M.F., refers to instances where a court takes judicial
notice during the final custody proceedings of a report or other evidence submitted in an
earlier custody proceeding--wherein a parent was unrepresented--without permitting the
parent to then cross-examine the person supplying the report or evidence during the course
of the termination proceedings. See In re M.F., 201 Mont. at 286-87, 653 P.2d at 1210.

¶52 Here, the initial determination that A.M. was a youth in need of care, as discussed
under Issue 1., was one focussed entirely on the health and safety of the child under
exigent circumstances, allowing the State to temporarily assume jurisdiction and transfer
custody. See In re J.B., 278 Mont. at 164, 923 P.2d at 1099. See also § 41-3-403(1)(c),
MCA (providing that at the show cause hearing, the court shall provide an opportunity for
a parent or guardian, if present, and any other person having relevant knowledge to
provide relevant testimony, and may "limit testimony and evidence to only that which is
relevant to the issues of removal from the home and the child's need for continued

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protection").

¶53 The record indicates, in fact, that this initial determination was made even before B.
V.'s first appearance at the February 18, 1998 hearing. A February 4, 1998 order found
probable cause existed that A.M. was abused or neglected or in danger of being abused or
neglected pursuant to § 41-3-102, MCA, and that the removal of A.M. from B.V.'s home
was necessary in light of the need to protect A.M.'s welfare.

¶54 The initial determination by the District Court that A.M. was a youth in need of care
relied on a report submitted by a social worker, Terri Waldorf. In turn, Terri Waldorf was
subject to cross-examination by B.V.'s counsel at the June 3, 1998 hearing, and then at the
December 16, 1998 hearing. Subsequent to the initial determination that A.M. was a youth
in need of care, the court reached this same determination on at least three separate
occasions--each at a time when B.V. was represented by counsel.

¶55 Accordingly, under our holdings in In re D.S. and In re M.F., we hold that B.V.'s due
process rights were not violated when the District Court initially determined that A.M.
was a youth in need of care at a time when B.V. was not represented by counsel.

Issue 3.

Was sufficient evidence presented to terminate parental rights without a prior treatment
plan under § 41-3-609(4)(a), MCA (1997)?

¶56 B.V. argues that § 41-3-609(4)(a), MCA, does not apply to these proceedings because
the required testimony of the two doctors was directly contradicted by two other doctors.

¶57 As indicated under Issue 1., the requirement of a treatment plan under § 41-3-609(1)
(e), MCA, may be waived pursuant to subsection (4)(a) upon a finding that "two medical
doctors or clinical psychologists submit testimony that the parent cannot assume the role
of parent."

¶58 The only rebuttal testimony to the evaluations conducted by doctors Tranel and Cook,
(4)
was Dr. Debra Rainey, B.V.'s treating physician at Warm Springs. Dr. Rainey testified
at the December 1998 hearing that she reviewed Dr. Tranel's report and that she was
familiar with B.V.'s psychiatric history. She did not, however, testify as to B.V.'s potential
to assume the role of A.M.'s parent; rather, her testimony exclusively addressed the issue

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of whether B.V. should be permitted to continue her weekly visits with A.M.

¶59 Thus, we disagree with B.V. that the testimony of doctors Tranel and Cook was
"canceled" by the testimony of two other doctors concerning B.V.'s ability to assume the
role of A.M.'s parent.

¶60 B.V. also contends that the testimony of doctors Tranel and Cook did not rule out the
possibility that B.V. could parent. We disagree. Dr. Tranel's testimony indicated that B.V.
did not have "the capacity to meet a threshold level of parenting behavior for a young
child" in the three areas of safety, nurturing and interpersonal relationships. He
recommended that A.M.'s long-term care and needs be explored through "alternative
placement." Under the circumstances, he would not recommend that B.V. be reunited with
A.M. as a parent. Dr. Cook reported that "[g]iven the long history and chronic nature of
her mental illness, with the accompanying suicide attempts, impulsive acting out,
incarcerations and hospitalizations, it is unlikely that she could meet her child's needs in a
reasonable amount of time." He agreed that termination of B.V.'s parental rights was in A.
M.'s best interest.

¶61 We conclude that the District Court did not abuse its discretion in finding that the
testimony of Dr. Tranel and Dr. Cook clearly and convincingly established that B.V. could
not, in their medical opinion, assume the role of parent pursuant to § 41-3-609(4)(a),
MCA. Thus, we hold that the District Court did not err when it terminated B.V.'s parental
rights under § 41-3-609(1)(e), MCA, without first requiring that an appropriate treatment
plan be implemented.

Issue 4.

Did the District Court err in applying § 41-3-609(4)(b) (1997), which excuses the
requirement of a treatment plan if the parent is incarcerated for more than one year?

¶62 Having determined that the District Court did not err when in applied § 41-3-609(4)
(a), MCA, and thereby waived the treatment plan requirement under § 41-3-609(1)(e),
MCA, we need not address the issue of whether B.V. was incarcerated for more than one
year and a treatment plan was not practical considering the incarceration, pursuant to § 41-
3-609(4)(b).

Issue 5.

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Did the termination of B.V.'s parental rights violate the Americans with Disabilities Act by
imposing different standards for a parent with mental illness compared with standards
imposed on other parents?

¶63 B.V. argues that the application of §§ 41-3-609(1)(e) and 41-3-609(4)(a), MCA, to the
factual circumstances set forth here violates the Americans With Disabilities Act (ADA)
of 1990, under title 42 U.S.C. § 12101, et seq. (2000). B.V. contends that under the Act, a
state government, including any department or agency, cannot subject a "qualified
individual" to discrimination based on that individual's disability. See 42 U.S.C. § 12132
(2000).

¶64 The ADA is intended to "assure equality of opportunity, full participation,
independent living, and economic self-sufficiency" to persons with disabilities. See 42 U.S.
C. § 12101(a)(8) (2000). To achieve that goal, Title II of the ADA in 42 U.S.C. § 12132
(2000) provides, as pertinent here, that:

[N]o qualified individual with a disability shall, by reason of such disability, be
excluded from participation in or be denied the benefits of the services, programs, or
activities of a public entity, or be subjected to discrimination by any such entity.

¶65 According to B.V., the foregoing Montana statutes, as applied to her, singled her out
for termination of her parental rights under a different and substantially lower standard
than those used for a non-disabled parent, in that actual "wrongful conduct" is required for
all other parents.

¶66 While indicating that a majority of appellate courts have ruled that the ADA does not
provide a defense to a parental termination proceeding--although this Court has not
addressed the issue--the State contends that this Court should decline to undertake a first-
impression review here because it was never presented to the District Court and has not
been properly preserved for appeal.

¶67 B.V. counters the State's argument by asserting that the ADA issue was presented to
the District Court in her proposed findings of fact, conclusions of law, and order which
was submitted to the court following the April 28, 1999 hearing.

¶68 In Nason v. `Leistiko, 1998 MT 217, 290 Mont. 460, 963 P.2d 1279, we set forth the
rule that where a party fails to (1) raise an issue in the pleadings, (2) does not present

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argument on the issue during the hearing on the merits of the case, (3) does not move to
amend the pleadings to conform to any evidence presented, and (4) raises the issue for the
first time in a post-hearing memorandum which the district court does not address in its
order, the issue has not been timely raised and may not be raised on appeal. See Nason, ¶
18.

¶69 Applied to the case at bar, we observe that although no "pleadings," per se, are
involved, B.V. nevertheless failed to interject the issue of her ADA defense at any time
during the proceedings. Critically, she did not offer any testimony or evidence or
argument at the various hearings that would support the legal conclusion regarding her
ADA defense found in her proposed findings and conclusions.

¶70 We also observe that following the April 28, 1999 hearing, the court ordered the
submission of proposed findings and conclusions, which B.V. submitted on May 25, 1999.
The court did not address the post-hearing ADA defense in its final decree. Further,
although B.V. moved for a new trial following the entry of the final decree on June 11,
1999, she did not then raise or address the ADA defense at that time.

¶71 Accordingly, we conclude that B.V.'s belated allusion to a possible ADA defense in
her post-hearing proposed conclusions of law was untimely and did not preserve the issue
for our review. See Nason, ¶ 18 (recognizing that when party "raises the issue for the first
time in a post-hearing memorandum which the district court does not address in its order,
the issue has not been timely raised and may not be raised on appeal"). We hold that B.V.
failed to timely raise the ADA defense as an issue in the District Court and, therefore,
cannot raise the issue on appeal.

¶72 Finding no abuse of discretion in the findings, and no incorrect conclusions of law, we
affirm the Decree entered by the District Court terminating B.V.'s parental rights to A.M.

/S/ JAMES C. NELSON

We Concur:

/S/ KARLA M. GRAY

/S/ PATRICIA COTTER

/S/ JIM RICE
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/S/ W. WILLIAM LEAPHART

1. Dr. Ned Tranel defined this term as a child who is "overwhelmed, flooded by, and unable to deal with
or process the threatening events going on in the environment--the extreme precarious, fearful,
frightening, overwhelming, catastrophic circumstances in the surrounding." As a result of such
circumstances, according to Dr. Tranel, the child's behavior reflects a mixture of anger, fear, tearful
resentment, crying, incontinence and sleep loss.

2. Dr. Tranel defined the term "borderline personality disorder" as an instability in "a variety of life
functions," and is primarily characterized by "erratic, unpredictable . . . personal relationships--abrupt
shifts from over idealizing to frantic or to hostile rejection" and "latching onto almost any reasonable
prospect of a relationship because of intense fear of abandonment."

3. Unless otherwise indicated, all statutes referenced herein are those found under Montana's 1997
codes, which were in force at the time this matter was adjudicated by the District Court.

4. B.V. called Dr. Bernard Peters at the April 28, 1999 hearing to counter the opinions of Dr. Tranel and
Dr. Cook. Dr. Peters testified, however, that "my evaluation was not done for the purpose of child
custody" and clearly indicated that his evaluation was strictly for the purpose of determining the extent
of B.V.'s disability for Social Security benefit eligibility.

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