In Re NA

No, 02-354

iK T H E SUPREME COURT OF THE STATE OF MQXTANA

IN THE MATTER OF N.A.. B.A., and A.A.,

Youths in Need of Care.
a*
. .? cpartment re~novcdthe children from Shelly's borne and placed the

cl~ildreis thster care. Sllortly thereafter, the children were returned to Shelly's carc with
its

family based serb-ices for ninety days. In December 1996, Shelly stipulated and agrced ro

consent to the Departrilent's Petition for Temporary Investigative i'\utl~oriiy Protective
and

Serviccs (TIA).

17
1 The t)epartment again became invo1.r cd with Shelly in Mach 1997: and again placed

N.A. and B.A. in licensed fostcr care because ofanother incident of scvere intoxication. The

District Court continued the Department's TIA through June 1997. It granted temporary

legal custody (TLC) to the llepartment in that same month. The children were again returricd

to Shelly's hornc with family based services in hfay 1998. 7'1ie District Court subscqucntiy

distnisscd the T1.C in September 1998.

78
1 The Department did not become involved with Shelly and her childrcn again until

February 1000 when both the Dcpartrnent and the bliles Ciiy Police Dcparrmenr responded

to a call of possible dot~~cstic
abuse bet~veerrShe!!)- and her ti-iend Sain. Because of hcr

condition. Shelly w a s acln~ittcitto ilcaconcss Psychiatric ('enter fi>rthe third tinlc in March

1999. Alsct in March, because ofconcern that Shellj's coriditiorr clid not make it possible f i ~ r

3
her to properly take care ofthe children: Shcliy's inothcr and stepfather took tho children to

rireir Jmoriie ii: blobridge, So~rrhilakota.

9 In July 1099, the Miles City Pelice Ikpartrnen? charged Shcliy with a Dljl and

careless driving afier she bccame severely intosicatcd anc! drove her car over 21 dike.

Because of her condition, the Police Department transported Slrelly to i>eaconcssPsychiatric

Center. By August 1999, the Department ltad begun working in conjunction with Shelly's

therapist in an attempt to stabilize Shelly's living situation.

1 By Octobcr. Shelly was seeing her therapist and taking her rnedieatio~ison a regular

basis. She obtained appropriate housing and felt she was stable enough to begin parenting

hcr ciiildren again. Slie thus went to Mobridgc to pick up the child re^^ from her mother and

stepfather and returned with them to Miles City.

.'II! I The Department thereafter attempted to provide the developmental assessment,

educational, and suppol? services necessary to keep the children safely in Shelly's hame,

itleluding arranging and paying for daycare and ei~rollingB..4. in the i-leadstart prosram.

However, on October 2 1, 1999, the Miles City Police 1)epartment arrested Kurt Kiltie, a

friend of Shelly, and charged him with a 13C:l. B.,4. was found in his vehic!e. After an

investigation, the Department determined that Shelly had known that Kiltie had been

drinking all day when she allowcd four-year-old B.A. to ride in thc car fi-ith hirn

'12 In January 2000, Shelly did not allow the Depart~ltcntto transport 4.4. to an

ei,alrtalictn that ixrcl bcen planned weeks in advance. I h c Dcpartnxnt also receiveti another

report of physical abuse of B.A. by Shelly and two additional reports of i\._i.'s

4
dcvciopr?~ental
delays and lack iii'routir;~nredicai carc. AFier i-iiriirer i~:restigatii:r? oithcsc

rcports. 'ihc ilcpart~mciii
removed tlie ckildi.cn friirn Sl~ciiy's
horrle ai~il
piaccd illem ir? f i ~ e r

care.

lit3 The Department filcd its petition for Tt.,C' on .lanuary 18- 2000. Both Sl~cily
and

Steven were present at the scheduled hearing. The minutes of the hearing reflect that !lie

parties reached an agreement wherein Sl~ellyand Steven stipulatect to temporary legal

custody ofthe children. The record reflects, ho~vvc:cr., that Stever: did ~:otsign the written

stipulation. 'The llcparlrnent requested a continuance of TI,C on Octobcr 6>2000. Shelly-

attended the November 9 hearing ~ i t her attorney. Steven, a!thouyh legally served, did not
h

attend the I~eztrirtg did not sign his tour?-ordered trcatrncnt plan. Shelly again stipulated
and

to temporary legal custody.

7; 14 The Dcpartincnt again petitioned for co~itinuance TL.C on Fehnrary 0,20(i I . In an
of

affidavit atlachcd to the petition. Terc Gabel (Gabel), a social worker with the Ilepartment,

sratcd that she had sent three letters to Stev~cn, December 4 and 13; 2000, and on January
on

8,200 !,requesting that Steven cotne to Gabcl's office to discuss his court-orilered ircatn~cnt

plan. Steven eventually met with (ialxl on January 9, 2001, and January 12, 2001.

According to Gabel's affidavit, Steven stated that he did not feel he coriid parcnt the children.

eyen with the help of Shelly, but that he does want to visit the childreri on occasion, 7he

affidavit also noted that Steven was comfortable tvith the children bcing in foster care and

that he dicl not feel he could complete the cow?-ordered !reatmenr plan. Steven h i d not to

that paint requested any visitation with the children.

5
4115 On March 12, 2001- wo tiays prior to the hearing on tire i3cpart1;rcnt's motion ti.

exacnd Ti.(., Steven fiieii a moriorr with the sour1 k)r-iisitaiioin of'B.A. and r'i.A., asking to

see them elerq. weekend, every other holiday, and one-half of the summer.. Aker thc March

14 hearing; a t \vhich Shclly and Steven were both prcsent wirh counsc!, the Disrrict Court

ordcreil, in part that Steven should exercise supervised visitation. Srcven signed the

treatment plan.

7116 The District C'oun also adjudicated the children as youths in need of case. finding by

a preponderance of the evidence that dismissal of the petition ~ o u l create a substantial risk
d

of harn-i to the chiidrcn or he a detriment to 'rile children's physical oi. psyclrological wcll-

being. it also ordered that Steven complete a treatment plan in an attempt to address his

mental and eniotional stability issues and parenting deficiencies and to provide him ~vith
the

necessary skills to provide for the children's physical, emotional and medical needs. l'he

treatment plan rcquircd Steven to participate in medical anii psychological evaluations;

maintain an adequate home environment, maintain income from cmplc>m~cnt.
attend

counseling, maintain regular visitation with his children pursuant to a visitation agreement,

and maintain weekly co~itact
with his counselor.

oil7 The i>cpac?ment filed a petition for permanent legal custody anci termination of

parental rights with right to consent to adopt on Jtinc 1.1; 2001. The petition citcd Stcvcn's

Fdilure to obtain a medica! and!or psychological diagnosis and trtatment through a physician

or psychologist, fiiilure to attend fa~nil?r,indivi:dual to
counselt:ng scssions, fi~ilure fblioxv his

co~~~iselor'sxccornn~endations,
and failure to maintain \vcckly contact with his social worker.

6
 I8 Steven filed a second motioi~ visitirtio~i B.A. and A.A. on August 3,2001. i!;e
for of

be
brief statts thatt '"altllougii Stevcri hirnseif- &cis he n ~ i i y ir?iidcqu;irz t bc the iastiidi;ii
o

parent of these clhildren, hc docs want significant visitatioii o f thc children." Srevcil argiicd

in the brief that Shelly had interfered with his attempted visitation and that he had not been

allowed any nieaningful visitation by the Department.

1 9 The Department objected to Steven's motion, noting that it was seeking termination

of Steven's parental rights, that Steven had open visitation but failed to avail himself of the

opportunity. that Steven failed to appear at his last scheduled visitation and that Steven had

requested no f ~ ~ r i h e r
visitatiotl with the children after rrtissing his pret-ious scheduled

visitatio~~.
The court-appoinied special advocate, Toni Gaglia, 1-cporrcd to the court on

December 13,200 1, that Steven l~act
made no req~rest visitation to the i>epartrncnt sii~cc
for

June 10, 2001.

770 The District Court held its temiination hearing on December 13 and 14,2001. By that

time, R.A. and A.A. had been in foster care for a period of 24 months. Steven was nor

prcscnt at tlie December 13 hearing because he had begun a new medicaiion and was "real

anxious." The District Court entered its findings of fact, conclusions of law and order on

February 5,2001. termrnat~ngShellq'i. Ste\,en's, and Ross's parental rlghts to the chiidlen

and granting pernianent legal custody of R.A. and A.A. to the Department ivitlz authority to

appointed U.A.'s maternal grandmother, Linda, as
conselit to adoption. l h c District epa~?ment seek icrminatinri upon
guti~.dian cctnser~i~tor rci

proper petition to the court. The District Court denied Steven's request for post-xennination

7
supervised visiti~tion R.A. and A.rl,. concluding that it wouid he ~lriiair no?in thi: bcsi
of and

interests c?f B.1:. or ,A,:\. to continue supervised visitation after rerminatioi~of Stcven'r

parcnia! rights.

*21 Stevcn now appeals the termiliation of his parcnttrl rights and the deniai o f post-

termination visitation.

STAiYIIA RI) OF RE J/IE M"

7/22 \Ve review a district court's decision to terminate parental rights to detcrininc whether

the district court abused its disct-etion. Ifr re E.K., 2001 MT 279: 71 31, 307 %font. T 3 1..
32Y1 .,

37 P.3d 690, 7 31. On review of a decision to terminate parental rights, determine

whether the district cou~.t'sfindings of fact supporting ternrination are clcarly el-roncous. i i t

re H.I%, 2001 M7' 288, 1' 13, 307 Mont. 412,T 13, 37 P,3d 736,q 13. h finding of fact is

clearly erroneous i f it is not supported by substantial evidence, if the c o u ~misapprehended
t

the effect of the evidence, or if upon on reviewing the record, this Court is left with the

definite and firm conviction that the district court made a mistake. ia r e E.K.
r 71 31. In
reviewing a district court's conclusions of lam-,we determine if tlley are correct. In re E.K,

l j 31.

T23 in determining whether to terminate parental rights; the district court is bound io give

primary consideration to tile physical, tnenral, and cr~iotional
conditions and nerds of the

tli~is best interests of the childrtcn arc cf paramount conccn-i in a parental rights
chiliirei~. the

tertninaxion proccediilg and take precedence ovcr ihc parcntal rights. li?re E.K., ' 3 3 (citing

Ifr re ,/.Ct:, 2001 MT 86, 71 8, 305 Mont. Idc),f[ 8, 2-3 P.3d N 6 ; 7 X j . IVe will pl-esumc that

8
a district court's decision is correct and will not disturb it on appeal uiilcss tlierc is a nisrakc

of iav: or a finding of fact not suppodcd by substaatiai cvidcncc that tvouid a~noiini a clear
to

ah~isc ifiseretion. Ln rc E.K., [! 33.
of

l')I.~C~C~~~~iOlV

Ti24 1 . Did the District Court err in terminating the parental rights of Steven?

'25 The District Court concluded that Steven did not comply with cithcr treatment plan

in that he did not attend counseling, Failed to maintain consistent contact xvith his children

and vc)luntarilydiscontinued visitation altogether. The District Court relied on the testimony

of psychologist Dawn Birk, Ph.D, finding that Ste\en suffered front bipolar disorder wit11

psychotic features and that Steven woi~ldunlikely be able to independently carc fbr the

children because of his severe mental illness.

*26 The District Court further relied on Dr. Birk's tcstimony tl~at
Stevcn presented as

confused and angry, and that Steven's mental stability could deteriorate rapidly if confronted

\vith thc stress of parenting. finally concluding that the children should not be placed in

Ste\:cn's care absent supervision.

7127 The District Court also relied oti Steven's o\vn testimony about his recent problems,

including problenis with his psycho tropic medication which caused hirn to bc very sick and

suicidal. Further, Steven was committed to the Montana State 'ilentai Hospital and was

living in a group home at the time oftfre termination hearing. 'l'hc District Cour-t rclied on

Steven's tcstimony that be was unablc to provide care for his cl;ildr.cn bccaiise of rhc
limit'atioils of his incntai health, his iivins irrriingzn?enis,and his Iazk ofrcccnl conlaci s i t h

the children.

(128 The District Court thus ccincludcd that Steicn ljilcd to complctc his treatment p1a1-1

and that the condiiiiin making l l i ~ r iurialtlc to parent his childrcn was ul~likely change
to

within a relrsonable time.

2 On appeal, Steven does not argue that the District Court erred in adjudicating the

cliildren as youths in need of care, nor does he challenge the appropriateness of his two

treatment plans. Rather, Steven argues that the cvidence presented by the Department was

insufficient to prove by clear and convincing evidence that lie did not complete his treatment

plan or that the cotlditiorl rinaking him unfit to parent is tirrlikely to cl~angewirhin a

reasonable time. Stc!l.cn contencis that the e\:idence from the i>epartmetri's maill tvitncss, Dr.

f31rk, is inconsistent aud co~tldbe construecl a? favoring cont~nuedcontact rather than

termination of parental rights.

730 The party seeking to terminate parentai rights "mmust present clear and convincing

evidence! to the district C~LII-t the prerequisite statutory criteria for tcrminatiocl have been
that

met." 111re T , 2002 M'F 1 7 1 , l 26, 3 10 Mont. 506, ri 26, 5 1 P.3d 1 141. ..j 26 (citation

omitted). In cases involving the terniination of parcntal rights: clear and coiivincing pniof

is simply a rcyuiremcnt that a preponderance of thc evidence be definite, clear, and

convincing, or that a pai-tic:~lar issue must be clear!>-established by a pl-epor?dcranccofthe

cviclence or by a cles~rprcpcxncierancc of pi-<>of. This rcqiiircmen; docs noi cal! for

unansivcrablc or conclusive evidence. The yuality of prooi; to be clear and conviricing, is

10
somcwbcrc Iset\i,ccn thc rule in ordinar? civil iascs and the rci~uircri~ei;t ? ci-irni;:al
o

c t h a i is, it iiiusr bc morc than a mcrc prepondcranrt; LIE i l O t iicyonii a rcasonirhic

doubt. iii 7 20 (citation omitted).
t-e hf. T.?

63! Steven contcnds that the evidence did not clearly and convincingly establish

r~oncomplianec
wit11 the treatment plans, and, notlvithstanding actmission of his inability to

independently parent his children, the evidence submitted docs not indicate that ire is rrnable

to parent when he is "nicciically-compliant," Steven argues that the counseling he receiwd

from Dr. Birk satisfied the requirement in his treatnicrlt plan that he obtain a medical and/or

psychological diagnosis anci rreatrnent through a physician or psychologist. Steven also

subniirteci, in May 2001. a certificate of eolnpletiorr for the "its aii about Parcnting" series

which, he contends, fulfilled the requirement that he cornplcte parenting classes. Sti'vcti also

notes that lie participated in visitation with his childrcn until a relapse of his lnental illness

in June 2001, at a time \\,hen his doctors bverc ~ I the process of changing his medications and
I

whcn he ztlso yuit taking his nlcdication for a short time, caiising him to become sick and

suicidal.

?-;32 Steven characterizes the t c s t i ~ ~ ~ o n y Birk as testimony that "may be based on
of Dr.

conjecture" because no evidence existed that Steven ahnsrid or neglected the children and

becausc thc testimony of other \vitnesses st~pporretl tjnding that Steven anci the children
a
.,
care for eaclt other and wanted to be together, ''. - not always then at least sort~etirnes.
it

"33
. .
1 hc Departrner~t
responds that, by S t e ~ e n ' s i w n
~ iidntission. he i s unah1r to parent

either ofhis children, he did not comply with the treatment plan's requirctnrnts to rnaintain

11
 .. .
\veekly contact with h i s social :viirkcr and failed to request fun?:cr s-isiiailon with B.?. and

Strvcn restiiied at the tcnxinaiion hcarir~gthat lic kimv lie cculil set up visits ~ r i t hihc

children i f hc merely reyucsted !i~ize ulicther tlie grantrng
c

of visitation to a parcnt whose parental rights have been terminated conflicts with any portion

of subsection (6). Subsection (Sf allows a drstrict court discret~on enter any other ordei
to

that rt deternxnes "to be in the best interests" oftlie cli~ldren.
Accordrngly. the Drstr~ct
Court
 ? i'[Stci.cnj caiirror provide stabiliiy. cirntiriuiiyrtnd ihc basic psi211:ing skiil than
his children need, it is uni'a~r the children to ccintinue hi:: parental rigl~ts
to with
s~~pcr\,~iscci kind 1
\-isitarion, [B~tl, A..4~ c~cscrve nie;iningfid rclat~o~~ship
a \%:it17
. .
a pnrcilr who call pnxide pl?ysical, clnotional and psychn!crgic:il cart grving
1 OO?;, of the time,

The best interests ofthe minor children 1B.A. and A.A.]. would he best served
by the termination ofthe parent-child legal relationship . . . oC[Stcvcn].

1 1
'5 The District Court considered Stevcn's visitation request and, i n light ofthe evideiice

of Steven's ~ncnta!illness; in its discretion denied Steven's reclucst tbr post-termination

visitation, concluding that st~ch
visitation would not be in the best interests of the children.

We hold that the District C'ourt did not abuse its discrction in so concluding.

'i52 'flte decision o f the District C'ourt is affirmed accordingly