No. 02-115
IN THE SUPREME COURT OF THE STATE OF MONTANA
2002 MT 183
IN THE MATTER OF THE CUSTODY
AND PARENTAL RIGHTS OF
A.L.R., A.A.R., AND T.C.R.,
Youths in Need of Care.
APPEAL FROM: District Court of the First Judicial District,
In and For the County of Lewis and Clark,
Honorable Dorothy McCarter, Judge Presiding
COUNSEL OF RECORD:
For Appellant:
Jeremy Gersovitz, Public Defender, Helena, Montana
For Respondent:
Honorable Mike McGrath, Attorney General; Tammy Plubell,
Assistant Attorney General, Helena, Montana
Leo J. Gallagher, County Attorney; Carolyn A. Clemens, Deputy
County Attorney, Helena, Montana
Randi Hood, Helena, Montana (For Youths)
Submitted on Briefs: July 18, 2002
Decided: August 27, 2002
Filed:
__________________________________________
Clerk
Justice W. William Leaphart delivered the Opinion of the Court.
¶1 Ruby, the natural mother of A.L.R., A.A.R. and T.C.R.,
appeals from the Findings of Fact, Conclusions of Law, and Order
issued by the First Judicial District Court, Lewis and Clark
County, terminating her parental rights. We affirm.
¶2 The issue on appeal is whether the District Court erred in
terminating Ruby’s parental rights.
Facts and Procedural Background
¶3 The Montana Department of Health and Human Services (the
Department) first became involved with Ruby when she was charged
with endangering the welfare of a child when Ruby was found passed
out in her car with one-week-old A.L.R. At that time, A.L.R. was
adjudicated a youth in need of care, and the Department developed a
treatment plan for Ruby. A.L.R. was returned to Ruby’s care
approximately six months later. The Department continued to
monitor the case and added A.A.R. to the youth in need of care
petition when he was born in 1993. At a review hearing in April
1994, the Department reported that Ruby had successfully completed
her treatment plan and requested that its services to Ruby be
terminated since the children were successfully in her care.
T.C.R. was born in 1997.
¶4 The Department again became involved with Ruby in 1999 when
she failed to pick up A.L.R. and A.A.R. from school. Ruby did not
contact the Department for over twenty-four hours to inquire about
the whereabouts of the children, and she was subsequently charged
with criminal possession of dangerous drugs. The children were
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again adjudicated as youths in need of care, and temporary legal
custody was awarded to the Department. Because all three children
are eligible for enrollment in the Blackfeet Tribe, the Department
gave notice to the Tribe of its intervention with the family.
After approximately six months, Ruby had satisfactorily completed
her treatment plan, and the court dismissed the petition on June 6,
2000.
¶5 In November 2000, school officials in Whitehall, Montana,
contacted the Department to report that A.L.R. and A.A.R. had
hitchhiked twelve miles into town to get to school. Other members
of the community had observed the boys hitchhiking to school on at
least four other occasions, and the boys had already missed eight
days of school. The boys reported that their mom did not get them
up for school, did not feed them breakfast and did not make sure
they made it to the school bus on time. They told the social
worker that if they returned home after missing the bus, their mom
would yell at them and make them go back to bed until she was ready
to take them to school.
¶6 The Department placed A.L.R. and A.A.R. in foster care and
filed a petition for temporary legal custody of all three boys. A
treatment plan was developed and adopted by the District Court in
Jefferson County on December 18, 2000. The plan required Ruby and
her husband to participate in couple and family counseling, to
follow their probation guidelines, and to attend parenting class
and also provided for supervised visitation with A.L.R. and A.A.R.
T.C.R. remained in the home with Ruby, and the treatment plan
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called for intensive in-home services. In January, Ruby informed
the Department that she and her husband were moving to Helena. The
social worker instructed Ruby to establish a suitable home in
Helena and to continue working on the treatment objectives while
awaiting transfer of the case from Jefferson County to Lewis and
Clark County.
¶7 On March 9, 2001, the Department was called to Ruby’s
apartment in Helena to pick up T.C.R. when Ruby was arrested for
operating a methamphetamine lab in the apartment. T.C.R. was
brought to the Children’s Crisis Center in Helena, where A.L.R. and
A.A.R. were residing. All three boys exhibited severe behavioral
problems while at the Children’s Crisis Center.
¶8 On March 16, 2001, the Department filed a petition in Lewis
and Clark County requesting temporary legal custody of all three
boys. In April, the District Court adjudicated the boys as youths
in need of care. A hearing was held in October to terminate Ruby’s
parental rights to A.L.R., A.A.R. and T.C.R., and the court issued
an order on November 6, 2001, terminating Ruby’s parental rights.
She appeals.
Standard of Review
¶9 We review a district court’s decision to terminate parental
rights to determine whether the court’s findings of fact are
clearly erroneous and whether its conclusions of law are correct.
In re C.A., 2000 MT 227, ¶ 5, 301 Mont. 233, ¶ 5, 8 P.3d 116, ¶ 5.
Findings of fact are clearly erroneous if they are not supported
by substantial evidence, the court misapprehended the effect of the
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evidence, or this Court’s review of the record persuades it that a
mistake has been made. In re B.H., 2001 MT 288, ¶ 13, 307 Mont.
412, ¶ 13, 37 P.3d 736, ¶ 13. Additionally, courts must give
primary consideration to the best interests of the child as
demonstrated by the child’s physical, mental and emotional needs.
In re B.H., ¶ 13.
Discussion
¶10 Did the District Court err in terminating Ruby’s parental
rights?
¶11 The criteria for termination of parental rights is set forth
at § 41-3-609, MCA. Of the six possible scenarios which allow for
termination, § 41-3-609(1)(f), MCA, applies to this case and
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:
. . .
(f) the child is an adjudicated youth in need of
care and both of the following exist:
(i) an appropriate treatment plan that has been
approved by the court has not been complied with by the
parents or has not been successful; and
(ii) the conduct or condition of the parents
rendering them unfit is unlikely to change within a
reasonable time.
¶12 Because the children are eligible for enrollment in the
Blackfeet Tribe, the Indian Child Welfare Act (ICWA) applies to
this case. Under ICWA, the party seeking termination of an
individual’s parental rights to an Indian child under state law
“shall satisfy the court that active efforts have been made to
provide remedial services and rehabilitative programs designed to
prevent the breakup of the Indian family and that these efforts
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have proved unsuccessful.” 25 U.S.C. § 1912(d). Additionally, the
party seeking termination has the burden of proving beyond a
reasonable doubt that “the continued custody of the child by the
parent or Indian custodian is likely to result in serious emotional
or physical damage to the child.” 25 U.S.C. § 1912(f).
¶13 The District Court found that the children were adjudicated as
youths in need of care; that a treatment plan was prepared in
Jefferson County and approved by the court; that the ICWA worker
for the Blackfeet Tribe testified that the Department made active
and reasonable efforts to prevent the break-up of the family and
that continued custody of the children with Ruby is likely to
result in serious emotional and physical damage to the children;
that Ruby lacks the parenting skills as well as the mental and
emotional maturity to parent normal children; that these children
are seriously emotionally disturbed; that Ruby failed to complete
the approved treatment plan; and that Ruby is unlikely to make
significant progress within a reasonable time to meet the
children’s needs. From these findings, the court concluded that
the approved treatment plan was not complied with and was not
successful because of Ruby’s drug problems; that the children are
severely disturbed and have special needs as a result of Ruby’s
severe neglect; that the best interests of the children would be
served by termination of the mother-child relationship and by
awarding permanent legal custody to the Department; and that the
Department had proven beyond a reasonable doubt that continued
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custody of the children by Ruby would result in serious emotional
and physical damage to the children.
¶14 The only argument Ruby makes is that she never actually had a
treatment plan during the six months preceding her termination
hearing and that the State should have designed an appropriate
treatment plan that she could have completed during her county jail
and prison incarceration.
¶15 The Department responds that although “Ruby’s treatment plan
in the instant case was only in place from December 2000 through
March 2001, it was Ruby who determined the shortness of her last
treatment plan by participating in dangerous criminal conduct.”
¶16 A treatment plan was prepared in Jefferson County and adopted
by the court on December 18, 2000, to be in effect for 180 days.
The treatment plan required Ruby to follow her probation
guidelines, to obtain couple and family counseling and to attend
supervised visitation with the boys. The record is replete with
factual evidence which indicates that Ruby failed to comply with or
complete these requirements. In fact, it is undisputed that less
than three months after the plan’s implementation, Ruby was
arrested for manufacturing methamphetamine in her apartment with
T.C.R. present. Ruby is presently incarcerated on convictions of
Criminal Production of Dangerous Drugs (Accountability), Negligent
Endangerment and a probation violation involving Criminal
Possession of Dangerous Drugs (clorazepate).
¶17 Although a new treatment plan was not prepared in Lewis and
Clark County, the social worker in Jefferson County had advised
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Ruby to continue working on the approved treatment plan. Ruby
claims on appeal that the Jefferson County treatment plan was
“suspended,” but there is no evidence in the record to indicate
that it was not still in effect. Several Department workers from
Lewis and Clark County met with Ruby before her arrest, and Ruby
continually denied having an alcohol or drug abuse problem and did
not see a need for treatment. The social worker in Lewis and Clark
County set minimal goals for Ruby, such as getting better locks on
the doors to her apartment. Even this simple goal proved too
difficult for Ruby to accomplish. Several days before Ruby’s
arrest, T.C.R. was found wandering around on Prospect Avenue in
Helena by himself, and Ruby was cited for endangering a child.
¶18 Several witnesses testified to the fact that Ruby missed many
of her scheduled visitations with the children and that when she
failed to show up for the visits, it caused the children great
anxiety. This occurred often enough that staff at the Children’s
Crisis Center did not inform the children of proposed visits until
Ruby actually showed up. When Ruby did show up for visits, the
children afterward became violent and began sexually acting out.
According to staff at the Crisis Center, the children’s emotional
upheaval lasted several weeks after one visit.
¶19 Further, the Department has been involved with Ruby and her
children off and on since June 1992. Throughout that time, Ruby
has completed several other treatment plans, but as soon as the
Department ceases its services to her, Ruby drifts back to a
chaotic, chemically dependent lifestyle. Additionally, family
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services agencies in Idaho, Colorado and Oregon have been involved
with this family. Ruby’s parental rights to three of her older
children were terminated by the Idaho Department of Health and
Welfare in 1994. The record clearly shows a longstanding history
of Ruby’s abuse and neglect of the children.
¶20 The District Court correctly concluded that Ruby did not
comply with or successfully complete a court approved treatment
plan, that Ruby is unlikely to make significant progress within a
reasonable time to meet the children’s needs, and that the
Department proved beyond a reasonable doubt that the continued
custody of the children by Ruby would result in serious emotional
and physical damage to the children.
¶21 We affirm the District Court’s order terminating Ruby’s
parental rights to A.L.R., A.A.R. and T.C.R.
/S/ W. WILLIAM LEAPHART
We concur:
/S/ JAMES C. NELSON
/S/ JIM REGNIER
/S/ TERRY N. TRIEWEILER
/S/ JIM RICE
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