In Re FM

No. 01-798

IN THE SUPREME COURT OF THE STATE OF MONTANA

2002 MT 180

IN THE MATTER OF F.M. and D.M.,

Youths in Need of Care.

APPEAL FROM: District Court of the Twenty-First Judicial District,
In and for the County of Ravalli,
Honorable Jeffrey H. Langton, Judge Presiding

COUNSEL OF RECORD:

For Appellants:

Charles E. Umhey III, Attorney at Law, Hamilton, Montana (For Father)

Dustin L. Gahagan, Waters & Gahagan, Hamilton, Montana (For Mother)

For Respondents:

Honorable Mike McGrath, Attorney General; Mark W. Mattioli, Assistant
Attorney General, Helena, Montana

Michael L. Hayes, Hays & Hayes, Hamilton, Montana

Submitted on Briefs: May 30, 2002

Decided: August 22, 2002

Filed:

__________________________________________
Clerk
Justice Jim Rice delivered the Opinion of the Court.
¶1 Tina and Vernon, mother and father of F.M. and D.M.

(collectively, the children), appeal from the Findings of Fact,

Conclusions of Law, and Judgment entered by the Twenty-First
Judicial District Court, Ravalli County, terminating their parental

rights to F.M. and D.M., and awarding permanent care, custody and

control with authority to assent to adoption or another permanent

custody arrangement to the Montana Department of Public Health and

Human Services (Department). We affirm.
¶2 We rephrase the issues on appeal as follows:

¶3 1. Did the District Court err in determining that F.M. and
D.M. were youths in need of care in regard to Vernon?

¶4 2. Did the District Court err in determining that the
criteria of § 41-3-609, MCA, were met by clear and convincing
evidence when terminating the parental rights of Tina?

BACKGROUND

¶5 Tina and Vernon are the natural parents of F.M. and D.M., born

on May 24, 1993, and February 12, 1998, respectively. The
Department first became involved with the family in October 1997,

after receiving referrals of physical and emotional abuse and

neglect of F.M. by both parents and of sexual abuse of F.M. by a
third party.

¶6 The Department petitioned for temporary investigative

authority (TIA) on October 12, 1999. Both Vernon and Tina were

present at the October 27, 1999, hearing. During the hearing, the
Department presented testimony from social worker Kim Davis that it

had received thirteen different referrals in the previous two years

2
in addition to evidence of physical and verbal abuse, neglect,

sexual molestation of F.M., poor school attendance, head lice and a

threat by Vernon to burn F.M.’s bedroom.
¶7 The District Court also received evidence from the children’s

case manager, Jennifer Boehmke, that F.M. was severely emotionally

disturbed and suffered from post-traumatic stress disorder related
to her sexual molestation. Tina testified at the hearing,

admitting that F.M. had missed school because of head lice, that

F.M. had been sexually abused while in her care, and that she and

Vernon allowed F.M. to be alone in a car with the abuser after F.M.

reported the abuse. Vernon was present but did not testify at the
hearing.

¶8 Based upon the foregoing evidence, the District Court

determined that probable cause existed that the children were
abused and neglected. It thus granted temporary investigative

authority and ordered the children removed from Tina’s home and
placed in foster care.
Comment [COMMENT1]: Trans.
¶9 On November 8, 1999, Rhonda Harris (Harris), a social worker 102

for the Department, conducted an introductory meeting with Tina and

Vernon. Harris informed Tina and Vernon what the Department would
Comment [COMMENT2]: Trans.
require in order for them to regain custody of their children, 104

suggested parenting classes and counseling for both parents and

anger management counseling for Vernon. According to Harris’

testimony, both understood what the Department expected of them.
¶10 Vernon and Tina subsequently participated in five scheduled

visitations with the children through December 15, 1999. Because

3
Tina and Vernon broke up shortly thereafter, Vernon moved out of

Tina’s home and requested individual visitation with the children,

apart from Tina. The Department granted Vernon’s request and
scheduled a separate visitation time for January 19, 2000.
Comment [COMMENT3]: Trans.
Although Vernon knew of the scheduled visitation, he did not show 102-103.

up or call to explain why he was not present, nor did he thereafter
Comment [COMMENT4]: Trans.
request further visitation with his children. Despite telling 160

Harris that he would keep in contact with his current address and

phone number, Vernon did not again contact the Department to inform

anyone of his current residence or general whereabouts for the
duration of the proceedings.

¶11 The Department petitioned to extend its TIA on January 25,

2000. Service of the summons on both Tina and Vernon was
successful, as Vernon was located at Tina’s residence on February

3, 2000. The District Court held a hearing on the Department’s
petition on March 6, 2000, and extended the Department’s

investigative authority an additional 90 days.

¶12 On June 5, 2000, the Department petitioned for temporary legal

custody and the District Court set a hearing date of July 5, 2000.
Tina was served with a notice of the petition and was present at

the hearing. The Department was unable to serve notice to Vernon,
however, as the Department had not been informed of his whereabouts

since his last visitation in December 1999, and Vernon had not

complied with the District Court’s order granting the extension of

temporary investigative authority, which required that Vernon

provide the Department with information regarding any changes of

4
address or phone numbers. According to the affidavit submitted by

Harris in support of the petition for temporary legal custody, Tina

told her and the Foster Care Review Committee on March 16, 2000,
that Tina had no knowledge of Vernon’s whereabouts and believed

that he had either moved to California or to Texas. The record

reflects that the Ravalli County Sheriff was unable to locate

Vernon and personally serve him with a notice of the hearing.

¶13 At the July 5, hearing, Tina stipulated to temporary legal
1
custody and the District Court entered its order on July 18,
granting the Department’s petition, finding F.M. and D.M. to be

youths in need of care with respect to Tina, and approving a
treatment plan for her. Tina’s treatment plan required, in part,
that she continue individual counseling with Dr. Carol Blum,

participate in group sessions for domestic violence counseling and

training, participate twice a month with the Child Development

Center (CDC) to learn how to better care for D.M., who was severely
developmentally delayed, and meet on a regular basis with F.M.’s
therapist to understand F.M.’s therapeutic needs and the
Comment [COMMENT5]: Trans.
recommended parenting techniques needed to parent F.M. Another p. 12

1
In Findings of Fact #10 and #11 in the District Court’s May 1, 2001, termination order,
the District Court erroneously refers to its July 5, 2000, hearing as the “July 18, 2000, hearing”--
July 18 being the filing date of the subsequent order. Vernon’s brief on appeal repeats this error.
Rather than refer to the erroneous dates as argued, we will correctly make reference to the “July
5 hearing” and “July 18 order” respectively.

5
restriction placed on Tina was that she was expected to refrain

from contact with Vernon during her treatment plan because of his

history of verbal and physical abuse toward her and the children.
¶14 The District Court continued the hearing with respect to

Vernon and ordered that he be served with the summons via

publication in the Ravalli Republic for the purpose of notifying
him of the hearing and presenting him with a treatment plan. The

Ravalli Republic is a newspaper published in Hamilton, Montana, and

designated by the District Court as the newspaper most likely to

give notice to Vernon.

¶15 Vernon’s summons was subsequently published in the Ravalli

Republic for three successive weeks from July 21, 2000, through
August 4, 2000. No response was received from Vernon by the August

16, 2000, hearing date. Harris testified at the hearing that the
Department had not had any contact with Vernon since the March 2000
Comment [COMMENT6]: Aug.
hearing and did not know of his whereabouts. The District Court 16, 2000, Trans. p. 5

appointed an attorney to represent Vernon’s interests as separate

from Tina’s, should Vernon be located by or have contact with the
Department. The District Court then entered an order granting the

petition for temporary legal custody as to Vernon, stating: “Based
upon the record herein and the testimony presented, the Court finds

no reason to disturb its previous adjudication of the youths as

Youths in Need of Care.” The District Court approved and ordered a

treatment plan, requiring in part, that Vernon enroll and
participate in anger management counseling, complete a

psychological evaluation, participate in bi-monthly visitation with

6
his children, remain in regular contact with the Department and

participate in paternity testing.

¶16 Because of Vernon’s absence during much of the proceedings and

the fact that he did not contact the Department or provide his

address or phone number, the Department never had the opportunity
to present Vernon with a copy of the treatment plan or to

personally work with him to complete the requirements of the plan.

¶17 Despite Tina’s March 16, 2000, statement that she did not know

of Vernon’s whereabouts and that he may be in either Texas or

California, Harris’ testimony reflected that Vernon remained in the
Hamilton and Missoula area through much or most of the proceedings.

Harris testified to the following:
rd
My records show that on February 23 of 2000, he appeared Comment [COMMENT7]: Trans.
here in court; on March 6th of 2000, he appeared here in p. 106
th
court; and March 17 of 2000, I observed him driving in
the same vehicle with Tina in Missoula; on March 28th of
2000, I found [Vernon] in the closet at Tina’s house; on
May 15th, 2000, the foster mom reported that . . . she had
seen Vern and Tina together at the grocery store; on May
29th of 2000, another member in our office had seen Tina
and Vern at a local hardware store together; on October
23rd of 2000, another social worker saw Vern at Tina’s
home; on 12/20 of 2000, I again found Vern in a box in
Tina’s closet; on January 9th of 2001, I observed Vern
coming out of Tina’s residence and then going back in;
and on April 2nd, 2001, Vern attended a family group
conference in Family Services’ office.
¶18 On cross-examination, Tina verified some of Harris’ accounts
and admitted to lying to the Department about not spending time
with Vernon. Tina further admitted lying to the Department in
March and December 2000, regarding Vernon’s whereabouts and the
presence of Vernon in her home.

¶19 The Department filed its Petition for Permanent Legal Custody

on January 18, 2001. The Sheriff’s return of service reflects that

7
Vernon was served with notice of the Department’s petition at
Comment [COMMENT8]: Trans.
Tina’s residence on February 2, 2001. p. 107

¶20 The District Court held hearings on the Petition from April 17

through 24, 2001, and entered its Order on May 3, 2001, terminating

Tina’s and Vernon’s parental rights, concluding that, pursuant to §
2
41-3-609(1)(f), MCA (1999), Tina and Vernon failed to successfully

complete their respective, court-approved treatment plans, and that

the conduct of Tina and Vernon rendering them unfit is unlikely to
change within a reasonable time. Tina and Vernon now appeal.

STANDARD OF REVIEW

¶21 “In reviewing a decision to terminate parental rights, this

Court determines whether the district court’s findings of fact
supporting termination are clearly erroneous and whether the

district court’s conclusions of law are correct.” In re A.C., 2001
MT 126, ¶ 20, 305 Mont. 404, ¶ 20, 27 P.3d 960, ¶ 20 (citation

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 A.M., 2001 MT 60, ¶

33, 304 Mont. 379, ¶ 33, 22 P.3d 185, ¶ 33 (citation omitted).

This Court will not disturb a district court’s findings on abuse

and neglect “unless a mistake of law exists or the factual findings

2
Unless otherwise indicated, all statutes referenced here
are those found under Montana’s 1999 codes, which were those in
force at the time this matter was adjudicated by the District
Court.

8
are not supported by substantial evidence.” In re B.H.M. (1990),

245 Mont. 179, 184, 799 P.2d 1090, 1093-94 (citation omitted).

¶22 It is well-established 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 at all stages of the
proceedings. In re A.F.-C., 2001 MT 283, ¶ 31, 307 Mont. 358, ¶

31, 37 P.3d 724, ¶ 31 (citation omitted). Additionally, when

considering the criteria for termination of parental rights, 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 M.W., 2001 MT 78, ¶ 4, 305 Mont. 80, ¶ 4, 23 P.3d
206, ¶ 4 (citation omitted).

DISCUSSION
¶23 Did the District Court err in determining that F.M. and D.M.
were youths in need of care in regard to Vernon?

¶24 Vernon argues that the District Court did not properly

adjudicate the children as youths in need of care in regard to him
and, therefore, that the District Court’s determination in its

termination order that it had done so is clearly erroneous,
requiring reversal of the termination order.

¶25 At the July 5, 2000, temporary legal custody hearing, the

District Court received Tina’s stipulation that the children were
youths in need of care in regard to her, but because of Vernon’s

absence, continued the hearing in regard to him until August 16,
2000, subsequent to providing him notice of the hearing via

publication in the Ravalli Republic.

9
¶26 After the August 16 hearing, the District Court entered its

order stating that “[b]ased on the record herein and the testimony

presented, the Court finds no reason to disturb its previous
adjudication of the youths as Youths in Need of Care.” Vernon does

not object to the service via publication, but objects to the

District Court’s August 16 adjudication for two reasons: first,

because of the District Court’s alleged reliance on Tina’s

stipulation at the July 5 hearing as evidence of abuse and neglect

in regard to Vernon; and second, because the District Court
allegedly relied upon and received improper and insufficient

evidence at the August 16 hearing, and thus could not make a

finding of abuse and neglect by a preponderance of the evidence as

required by § 41-3-404, MCA. In this regard, Vernon asserts that,
in adjudicating the children as youths in need of care in regard to

him, the District Court relied on testimony at the August 16
hearing regarding conditions from an agreed upon parenting plan in

Tina and Vernon’s dissolution of marriage. Vernon argues that it

would violate fundamental principles of fairness to use a condition
from the parenting plan in a dissolution of marriage action to

constitute proof of an element in an abuse and neglect proceeding.

¶27 Vernon explains that a finding of abuse and neglect by a

preponderance of the evidence is a jurisdictional prerequisite to
terminate the parent-child relationship pursuant to § 41-3-

609(1)(f), MCA. Vernon thus contends that the District Court did

not retain jurisdiction to terminate his parental rights, and that

10
its May 1, 2002, order terminating his parental rights is therefore

in error.

¶28 The Department responds that the District Court received

substantial evidence at the show cause hearings on the Department’s

TIA petitions and at the permanent legal custody hearing to
properly adjudicate the children as youths in need of care. The

Department emphasizes that, prior to disappearing for an extended

period, Vernon appeared at the initial show cause hearing and the

hearing on the extension of the TIA. The Department argues that

the District Court not only received sufficient evidence to

adjudicate the children as youths in need of care, but that it did,
in fact, state that the children were youths in need of care at

both TIA hearings and in its order terminating Vernon’s parental

rights. The Department argues, therefore, that the District

Court’s determination that the children were youths in need of care
at either the show cause or permanent legal custody hearings is

sufficient to support termination of Vernon’s parental rights.
¶29 As correctly noted by Vernon, a threshold requirement for

termination of parental rights under § 41-3-609(1)(f), MCA, is the
proper adjudication of the children as youths in need of care.

Thus, a district court cannot obtain jurisdictional authority to
award the Department permanent legal custody absent such proper

adjudication pursuant to the hearing mandated by § 41-3-404, MCA.

See In re M.W., ¶ 46 (citing In re J.B. (1996), 278 Mont. 160, 164,

923 P.2d 1096, 1099); In re M.J.W., 1998 MT 142, ¶ 11, 289 Mont

232, ¶ 11, 961 P.2d 105, ¶ 11.

11
¶30 We therefore disagree with the Department’s assertion that the

adjudication of the children as youths in need of care can be

properly established based upon evidence received at the hearing on
permanent legal custody. Rather, to retain jurisdiction to

terminate parental rights pursuant to § 41-3-609(1)(f), MCA, the

district court must, in the temporary legal custody stage, find by

a preponderance of the evidence that the child is abused or

neglected. Section 41-3-404, MCA; In re A.M., ¶ 44; In re M.J.W.,

¶ 12.
¶31 In its subsequent termination order, the district court must

conclude that it did not exceed its jurisdiction at any time during
the course of the proceedings. “[T]he 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 [the

children as youths] in need of care under the governing statutes?”

In re A.M., ¶ 46. Thus, if the district court does not make a
proper finding of abuse and neglect by a preponderance of the
evidence pursuant to § 41-3-404, MCA, it will have exceeded its

jurisdiction in waiting to make such determination until

terminating parental rights pursuant to § 41-3-609(1)(f), MCA.

¶32 We thus turn to Vernon’s initial argument that the District

Court erred in relying on evidence adduced from the July 5 hearing

wherein Tina stipulated that the children were youths in need of
care. Citing to this Court’s decision in In re M.W., 2001 MT 78,

305 Mont. 80, 23 P.3d 206, Vernon asserts that the District Court

12
improperly inferred that its earlier adjudication that the children

were youths in need of care in regard to Tina, was sufficient to

find abuse and neglect regarding him, and given the fact that he
received no notice of the hearing and did not have the opportunity

to be heard, he was denied due process.

¶33 In In re M.W., the district court adjudicated the children

youths in need of care only in regard to the father because the

State failed to notify the mother of the hearing. In re M.W., ¶ 7.
The State argued that the adjudication of the children as youths

in need of care in regard to the father would be sufficient for the

purpose of terminating the mother’s parental rights, but we

disagreed and reversed, holding that adjudication of the children

as youths in need of care in regard to the father did not
adjudicate the children as youths in need of care in regards to the
mother. In re M.W., ¶ 49.

¶34 However, In re M.W. is not dispositive of the instant case.

The Department has not argued that the District Court’s finding of
abuse and neglect regarding Tina applied to Vernon. Rather, it

argues that the District Court received sufficient evidence to

adjudicate the children as youths in need of care at the TIA
hearings and that the District Court did, in fact, adjudicate the

children youths in need of care at both TIA hearings in regard to
Vernon. Furthermore, the record does not reflect that the District

Court made a determination of abuse and neglect in regard to Vernon

on the basis of Tina’s stipulation nor based upon anything in

13
relation to the July 5 hearing. Thus, Vernon’s allegation of a due

process violation based thereon is without merit.

¶35 Likewise, the record does not reflect, as Vernon asserts in

his second argument, that the District Court at the August 16

hearing made a determination of abuse and neglect based upon the
parenting plan from Tina and Vernon’s dissolution or upon

“insufficient” evidence adduced at this hearing. Rather, the

District Court received testimony from Harris that the Department

had not had contact with Vernon since the second TIA hearing.

Harris testified that, in addition to having no contact with

Vernon, he had not obtained the intensive parenting training nor
the training for anger management as ordered by the District Court

in its order of March 7, 2000, an order of which Vernon was aware.

Harris testified that Vernon had not completed the recommended

family counseling nor the recommendations made by the CDC, as
Vernon was not aware of the recommendations made by the CDC.

Harris also testified to having a treatment plan prepared for
Vernon that was geared toward preserving his parental rights as

they existed before the Department became involved, and that, based

upon her limited contact with Vernon, she believed that he had the
ability to complete the treatment plan. Without any further

evidence or testimony, the District Court then entered its order
stating: “Based upon the record herein and the testimony presented,

the Court finds no reason to disturb its previous adjudication of

the youths as Youths in Need of Care.”

14
¶36 By then, the District Court had stated on three previous

occasions that the children were youths in need of care: first, at

the initial TIA hearing on October 27, 1999; second, at the TIA
extension hearing on March 6, 2000; and third, in approving Tina’s

stipulation from the July 5, 2000, temporary legal custody hearing.

At the initial TIA hearing, the District Court determined by a

probable cause standard that the children were youths in need of

care within the meaning of § 41-3-102, MCA. Following the TIA

extension hearing, the District Court stated that its order was
“[b]ased upon the evidence presented and the testimony given there

having been established by overwhelming evidence that it is not

possible to safely return the children to their home, and the Court

previously having found by probable cause to believe that the
above-named youths are Youths in Need of Care within the meaning of

Section 41-3-102, MCA . . . .” A review of these hearings is
helpful to the issue raised here.
¶37 At the initial TIA hearing, at which Tina and Vernon were

present, the District Court received testimony that F.M. had been
sexually molested by a person who also threatened to physically

hurt or kill her if she told, and further, that Tina, even after
knowing this and testifying to not trusting the alleged abuser,

still allowed F.M. to be in a car alone with him. Testimony also

demonstrated that F.M. repeatedly presented with head lice and was

given very irregular, uneven hair cuts, down to the scalp in some
places, and was at one time, shaved with a pair of scissors with

patches of hair left in places. Further, the District Court

15
received testimony that Vernon had slapped F.M. in the ears, called

her derogatory, profane negative names, and had threatened to burn

the house down, starting with F.M.’s room. Tina testified that she
obtained a temporary order of protection against Vernon for her own

safety. Additionally, testimony by the Department and Tina

demonstrated that F.M. was missing a significant amount of school,

including approximately nine of the first seventeen days, was often

late and was performing very poorly. Further, F.M. was exhibiting

symptoms of post-traumatic stress disorder and problems with bowel
control.

¶38 At the TIA extension hearing, again with Tina and Vernon

present, the District Court received eleven Department exhibits and
testimony from three Department witnesses as well as testimony from

Tina and from Dr. Jeff Schroeder on her behalf. Subsequent to the
hearing, the District Court entered its order finding that

“overwhelming evidence” established that it was “not possible to

safely return the children to their home” and that it was in the

children’s best interest to continue to be removed from the home
with continued placement in the care and authority of the
Department. The District Court reiterated that it had previously

found by probable cause that the children were youths in need of

care within the meaning of § 41-3-102, MCA.

¶39 Finally, at the July 5 temporary legal custody hearing, the

District Court received Tina’s stipulation that the children were
youths in need of care, and subsequently approved it. Of

significance, however, is that the District Court did not receive

16
evidence regarding Vernon at the July 5 hearing and, recognizing in

its order that its adjudication in regard to Tina did not apply to

Vernon, ordered Vernon served via publication. It was only after
completed service by publication upon Vernon and the August 16

hearing that the District Court stated that it found “no reason to

disturb its previous adjudication of the youths as Youths in Need

of Care.”

¶40 Prior to this ruling, the procedural history of the case

clearly demonstrates that the District Court had twice prior to

Tina’s stipulation stated that the children were youths in need of
care in regard to Vernon within the meaning of § 41-3-102, MCA;

that it recognized that Tina’s stipulation did not suffice as an

adjudication of abuse and neglect in regard to Vernon, and

following Vernon’s absence from the July 5 hearing, had Vernon

served with a notice of hearing by publication; that Vernon did not
appear at the August 16 hearing, and, after taking additional
evidence, the District Court referenced its earlier adjudications,

which included a finding that there was “overwhelming evidence”

that the children could not be returned home.
¶41 Section 41-3-102(23), MCA, defines “youth in need of care” as

a youth who has been adjudicated or determined, after hearing, to
be or to have been abused or neglected. The term “child abuse or

neglect” includes “actual harm or substantial risk of harm by the

acts or omission of a person responsible for the child’s welfare.”
Section 41-3-102(7)(a), MCA. In re A.M., ¶ 41. Harm to a child’s

health or welfare means, in part, “harm that occurs whenever the

17
parent or other person responsible for the child’s welfare: (a)

inflicts or allows to be inflicted upon the child physical or

psychological abuse or neglect; [or] (b) commits or allows to be
committed sexual abuse or exploitation of the child.” Section 41-

3-102(9), MCA.

¶42 While the District Court did not specifically state, pursuant

to § 41-3-404(1), MCA, that it determined by a preponderance of the

evidence that the children were youths in need of care, the
evidence clearly demonstrates that F.M. had suffered actual harm

and that the children were in danger of a substantial risk of harm

to their health and welfare as defined in § 41-3-102(9), MCA. See

In re A.M., ¶ 41. Further, it is apparent from the District

Court’s order granting temporary legal custody as to Vernon on
August 16, that it believed its previous adjudication that the
children were youths in need of care was sufficiently based on

“overwhelming evidence” of abuse and neglect.
¶43 We will not disturb a district court’s findings on abuse and

neglect “unless a mistake of law exists or the factual findings are
not supported by substantial evidence.” In re B.H.M. (1990), 245

Mont. 179, 184, 799 P.2d 1090, 1093-94 (citation omitted). Based
upon the evidence received by the District Court in the instant

case and its language in its order extending the Department’s

investigative authority, we cannot conclude that the District Court

made a mistake of law or that its factual findings are not
supported by substantial evidence. We hold, therefore, that the

18
District Court, based on substantial evidence, properly adjudicated

the children as youths in need of care in regards to Vernon.

¶44 Did the District Court err in determining that the criteria of
§ 41-3-609, MCA, were met by clear and convincing evidence when
terminating the parental rights of Tina?

¶45 Tina alleges that the District Court erred in finding by clear

and convincing evidence that she did not comply with the court-

approved treatment plan and that the treatment plan was not
successful. Tina asserts that the record reflects that until the

incident on December 20, 2000, when Vernon was discovered at Tina’s

residence, the professionals involved in the case believed that

Tina was successfully progressing towards reunification with her

children and was successfully completing the treatment plan.
¶46 The Department argues that, while the counselors and treating

professionals were under the impression that Tina was successfully
complying with the treatment plan, the discovery of Tina’s ongoing

deception throughout the proceedings undermined any success that
the professionals initially thought Tina was making. The

Department notes that, from early in the proceedings, Tina had told

her counselors and treating professionals that she needed to end

her destructive and abusive relationship with Vernon because he
posed a danger to her. Yet, Tina secretly continued the harmful
relationship, thereby deceiving treatment providers and failing to

fully comply with several treatment requirements, including failing

to learn to put the children’s needs before her own. The

Department thus argues that Tina’s treatment successes were
illusory because her treatment providers assumed that she was

19
coming to terms with her destructive relationship with Vernon when

she instead continued to see him.

¶47 The Department finally argues that Tina’s history and

cognitive limitations, combined with the failed efforts of at least

a dozen treatment professionals, supports the District Court’s
determination that Tina’s destructive behavior was unlikely to

change within a reasonable period of time.

¶48 Prior to terminating an individual’s parental rights, 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 re S.M., 2001 MT 11, ¶ 30, 304 Mont. 102, ¶

30, 19 P.3d 213, ¶ 30. In the context of termination of parental

rights cases, we have defined clear and convincing evidence as
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. In re S.M., ¶ 30 (citing In the Matter

of B.F., R.F., and M.S., Jr., 2000 MT 231, ¶ 7, 301 Mont. 281, ¶ 7, 8 P.3d 790, ¶ 7). This

Court’s standard of review for a district court’s findings is whether they are clearly

erroneous. In the Matter of B.F., ¶ 7.

¶49 Section 41-3-609, MCA, sets forth the relevant statutory
language for the termination of parental rights in this case:

20
 (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.

¶50 When considering the criteria for termination, primary consideration must be

given to the best interests of the child as demonstrated by the child’s physical, mental,

and emotional conditions and needs. In re S.M., ¶ 31 (citing In the Matter of J.N. and

A.N., 1999 MT 64, ¶ 13, 293 Mont. 524, ¶ 13, 977 P.2d 317, ¶ 13).

¶51 The District Court found that Tina failed to demonstrate an ability to put her

children’s needs before her own during counseling with Dr. Carol Blum or to show that she

understood relationships which placed her children at risk. The District Court also found that

Tina failed to demonstrate the ability to meet the emotional needs of her children and to

refrain from contact with Vernon, but rather, continued to have contact with Vernon

throughout the case, going so far as to hide the contact and thus be convicted of obstructing a

police officer.

¶52 Based upon the foregoing, the District Court found that Tina

engaged in a pattern of dishonesty with her social worker and other
professionals in the case, including Dr. Blum, all of which

severely undermined the progress she appeared to be making and thus
restricted the ability of the Department to safely reunite the

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children with Tina in a timely fashion, despite the Department’s

best efforts.

¶53 Upon a review of the record, we conclude there is ample

evidence to support the District Court’s determination that Tina

had not successfully complied with the treatment plan nor had it
been successful and that she was unlikely to successfully complete

it within a reasonable time. For example, the record indicates

that Tina recognized early in her counseling that Vernon’s verbal

and physically abusive behavior created an unhealthy and

unacceptable environment for the children, and that to be

successful in her counseling required that she follow Dr. Baxter’s
suggestion of sustaining a lengthy period of no contact with

Vernon. Tina, however, remained in contact with Vernon throughout

much of the proceedings.
¶54 Dr. Blum, Tina’s individual counselor and therapist, testified

that Tina’s pattern of dishonesty with her therapists and treatment
professionals demonstrated her inability to place her children’s

needs above her own and an inability to safely parent the children.
Comment [COMMENT9]: Trans.
Dr. Blum further testified, consistent with Dr. Baxter’s p. 14

psychological evaluation, that Tina’s limited cognitive ability,

difficulty with learning material through verbal means and
retaining it, difficulty with absorbing verbal information, and

long-standing personality difficulties, make it very hard for her

to change the kind of relationships and kind of lifestyle she
leads, and to maintain that change. Dr. Blum testified that she

did not think Tina could successfully complete a treatment plan in

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six to twelve months or make much better progress than she had done

in the previous ten months with intensive treatment.
Comment [COMMENT10]: Trans.
¶55 Cheryl Thurman, a family support specialist with Western 79.

Montana Comprehensive Developmental Center, testified that Tina did

not successfully complete the treatment objectives aimed at

improving her parenting of D.M. and helping him to develop his
speech, communication, play and social skills. Tina admitted to

not spending sufficient time working with D.M.

¶56 Harris, Tina’s case manager, testified that Tina’s association

with Vernon signified a failure of Tina to demonstrate an

understanding of relationships which placed her children at risk,
Comment [COMMENT11]: Trans.
and that Tina’s deceitfulness undermined all parts of the treatment 126

plan. Harris also testified, consistent with Thurman, that Tina

did not follow through with her treatment objectives and did not
show up for each of the scheduled visitations.
Comment [COMMENT12]: Trans.
¶57 Further complicating any possibility of Tina successfully 159

completing a treatment plan within a reasonable time is that,

according to Harris, most of Tina’s treating professionals were
unwilling to further work with her because of her dishonesty.

Harris testified that if the District Court were to grant Tina more
time to work on a treatment plan, a new treatment team would have

to be assembled, including a new counselor, new case manager and

new therapist for the children, thereby greatly increasing the time

it would take for Tina to successfully complete a treatment plan.
¶58 Although testimony supports that Tina was partly successful

with some goals of her treatment plan and that her treating

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professionals believe that she was making progress through December

2000, the evidence demonstrates that even with Tina’s limited

compliance, she did not successfully complete her treatment plan
and would not be able to do so within a reasonable time. This

Court has repeatedly held that partial compliance with a treatment

plan is insufficient to preclude termination of parental rights.

Not only must a parent comply with the treatment plan, but the

treatment plan must also be successful. In re S.M., ¶ 44

(citations omitted).
¶59 Based upon the foregoing testimony, we conclude that the

District Court did not err when it determined that clear and
convincing evidence supported the finding that Tina failed to

complete her treatment plan, would not be able to complete the plan
within a reasonable time, and that it was in the best interests of

F.M. and D.M. that Tina’s parental rights be terminated. The

District Court’s findings are, therefore, not clearly erroneous.

¶60 The decision of the District Court is affirmed.

/S/ JIM RICE

We concur:
/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ JIM REGNIER
/S/ PATRICIA COTTER

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