No. 05-463
IN THE SUPREME COURT OF THE STATE OF MONTANA
2006 MT 41
IN THE MATTER OF A.J.E., III,
A Youth In Need Of Care.
APPEAL FROM: The District Court of the Third Judicial District,
In and For the County Deer Lodge, Cause No. DN 2003-016,
Honorable Ted L. Mizner, Presiding Judge
COUNSEL OF RECORD:
For Appellants:
Kenneth A. Connors, Connors Law Firm, Anaconda, Montana (Mother)
David L. Vicevich, Joseph, Vicevich & Whelan, Butte, Montana (Father)
For Respondent:
Honorable Mike McGrath, Attorney General; Jim Wheelis, Assistant
Attorney General, Helena, Montana
Joan Borneman, County Attorney, Anaconda, Montana
Michelle Sievers, Knight, Dahood, Everett & Sievers, Anaconda,
Montana (Guardian ad Litem)
Submitted on Briefs: January 11, 2006
Decided: February 28, 2006
Filed:
__________________________________________
Clerk
Justice W. William Leaphart delivered the Opinion of the Court.
¶1 On May 18, 2005, the Third Judicial District Court, Anaconda-Deer Lodge
County, terminated the parental rights of A.E. (Mother) and A.E., II (Father) with regard
to their son, A.J.E., III (A.J.E.). On different grounds, both parents appeal. We restate
the issues as follows:
¶2 1. Did the District Court abuse its discretion in terminating Mother’s parental
rights by concluding that conditions rendering Mother unfit to parent were unlikely to
change within a reasonable time pursuant to § 41-3-609(1)(f)(ii), MCA?
¶3 2. Did the District Court abuse its discretion in terminating Father’s parental
rights because Father could not assume the role of parent within a reasonable time?
BACKGROUND
¶4 A.J.E. was born on August 10, 2003, to Mother and Father. At nine days old,
Mother, who suffered from bipolar disorder, took A.J.E. to visit Father at Montana
Chemical Dependency Center (MCDC) where he was incarcerated for assault on a police
officer. Concerned by Mother’s disoriented appearance—she was wearing pajamas and
two different shoes—and by the fact that A.J.E. was covered in feces and urine, MCDC
called the Montana Department of Public Health and Human Services, Child and Family
Services Division (State). Stephanie Galle, a social worker with the State, responded to
the call and removed A.J.E. from Mother’s custody. Galle had Mother taken to St. James
Hospital for a crisis response evaluation; she was subsequently committed to the Montana
State Hospital.
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¶5 Galle transported A.J.E. to the office of Dr. Mark Rafferty, a family practitioner
who had provided prenatal care to Mother. Dr. Rafferty noted that A.J.E. had lost weight
and diagnosed him as suffering from failure to thrive syndrome. The District Court
granted temporary legal custody to the State, which placed A.J.E. in foster care—where
he has lived throughout the pendency of this case—and issued an order adjudicating
A.J.E. as a youth in need of care.
¶6 On November 15, 2004, the District Court conducted a hearing for termination of
Mother’s and Father’s parental rights. The court heard testimony from several
professionals who had evaluated and/or worked with Mother and Father.
¶7 Dr. Rafferty testified that he had concerns over Mother’s ability to parent. During
Mother’s postpartum visits, he observed Mother cause A.J.E. to become hypoxic by
smashing A.J.E.’s nose against her breast tissue while breast-feeding him. Family
members contacted Dr. Rafferty to complain that Mother failed to properly clothe and
feed A.J.E. Dr. Rafferty also noticed a bruise and black eye on Mother and suspected
that Father physically abused her. Although Mother denied that Father hurt her, family
members confirmed Dr. Rafferty’s suspicions.
¶8 Two clinical psychologists, Dr. Ned Tranel and Dr. William Cook, evaluated
Mother to determine whether she could safely and adequately parent A.J.E. Dr. Tranel
performed a psychological evaluation on September 24, 2003, concluding that Mother
had three severe and chronic handicapping conditions relative to her inability to parent.
First, she suffered from borderline level of intellectual functioning—a level slightly
3
below the cut-off point for mild mental retardation. Second, Dr. Tranel described Mother
as having a brief psychotic disorder, meaning that while under stress, Mother would float
into and out of reality. Finally, Dr. Tranel believed Mother had a grossly inadequate
concept of parenting behaviors—sometimes described as a deficit in emotional
intelligence, or a deficit in the ability to identify and utilize available resources for
performing one’s every day tasks. Such deficits, Dr. Tranel testified, could not be
controlled with medication. Based on these conclusions, Dr. Tranel opined that Mother
could not meet the minimal standards of parenting for a young child, even with
rehabilitation.
¶9 Dr. Cook evaluated Mother on November 14, 2003, and reached conclusions
similar to those of Dr. Tranel. Dr. Cook’s testing results indicated that Mother suffered
from a thought disorder or mood instability, exasperated by her failure to consistently
take her medication. Persons with such a thought disorder often lack insight into their
problems and tend to harbor anger and resentment towards others, while mood instability
can preclude attending to the needs of a child and choosing appropriate peers. Dr. Cook
noted that Mother had poor judgment and had difficulty protecting herself within a
relationship, specifically with regard to Father; he expressed concerns that Mother would
not be able to protect A.J.E. from Father. Dr. Cook further concluded that based on his
evaluation, Mother did not have the ability to meet the needs of a child within a
reasonable time.
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¶10 The Court approved a treatment plan for Mother, which despite the State’s
assistance, she failed to complete. Specifically, Mother did not obtain medical and
psychiatric diagnosis and treatment, nor did she consistently attend mental health
appointments. Mother also failed to attend family and individual counseling and did not
follow the guidelines of the visitation contract, as she failed to provide appropriate
attention to A.J.E. during their visits. On one occasion, A.J.E. crawled dangerously close
to a floor heater when Mother left him unattended. Moreover, Mother’s in-home
parenting coach had to perform many of the tasks Mother needed to do for herself,
including preparing meals, getting bottles ready and bathing A.J.E.
¶11 Cheryl D’Remy, Mother’s therapist at the Western Montana Health Center from
August 2001 to June 2004, testified that during Mother’s three years of treatment, she
observed no change in Mother’s ability to deal with life’s problems. D’Remy found it
difficult to work with Mother because Mother did not feel a need to make changes in her
life and turned away from resources. D’Remy explained that Mother needed to develop
many skills, including how to make healthy, appropriate companions, how to deal with
conflict and stress, and how to manage money. D’Remy noted that Mother did not see
the use in taking classes for stress and anger management or parenting, even though
throughout treatment, Mother became easily stressed and reacted with hostility. Mother
also excused Father’s temper, which caused D’Remy to worry that Mother would not be
able to shield A.J.E. from potential abuse.
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¶12 Paula Van Meel, a family support worker involved in the parenting classes Mother
attended, supervised some of Mother’s visits with A.J.E; she testified that Mother needed
cues in order to implement her parenting training. Although Van Meel believed that
Mother loved A.J.E. and would not intentionally cause him harm, she expressed concern
over leaving Mother to parent alone.
¶13 David Fenchak, the Executive Director of the Anaconda Family Resource Center,
also supervised visits between Mother and A.J.E. Fenchak similarly opined that he did
not feel comfortable leaving A.J.E. with Mother unsupervised.
¶14 With regard to Father, the State presented testimony from Dr. Tranel and Dr. Page,
both of whom noted that Father’s incarceration in the Great Falls Regional Prison created
an initial prohibitory factor. 1
¶15 Dr. Tranel testified first, providing the results of an evaluation he performed on
Father at Montana State Prison on January 21, 2004—approximately ten months prior to
the termination hearing. Because Father refused to complete the standard testing
procedures, Dr. Tranel explained that he instead spent several hours talking with Father
and reviewing voluminous records and data relating to Father’s history. Dr. Tranel’s
findings included a diagnosis of antisocial personality disorder and poly substance
dependence, as well as a suggestion of bipolar disorder. Dr. Tranel advised that Father
could not adequately parent A.J.E. and, further, that it was highly unlikely that he would
1
While Father resided in MCDC at the time of A.J.E.’s birth, by the termination
hearing, he had been kicked out of the program for noncompliance.
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be able to parent within a reasonable time because Father lacked awareness of his
shortcomings and resisted treatment.
¶16 Dr. Page, who administered a battery of tests to Father on March 11, 2004,
testified to having reached similar conclusions to those of Dr. Tranel, including a
diagnosis of antisocial behavior. In particular, Dr. Page noted that Father’s anger
issues—including a tendency to act outwardly towards objects or people when enraged—
could negatively affect his ability to parent. In addition, Father’s one-dimensional
awareness of parenting skills indicated that he would have trouble making spontaneous
decisions in the best interest of a child. Moreover, Dr. Page testified that separating
A.J.E. from his foster parents, with whom he had bonded, would likely cause A.J.E. to
suffer reactive attachment disorder, hindering his ability to form healthy patterns of
emotional growth. Based on these factors, Dr. Page concluded that Father could not
safely parent A.J.E.
¶17 At the termination hearing, Father testified, setting forth reasons for why the court
should provide him the opportunity to parent his son. Father testified that he had taken
steps to rehabilitate himself, including attending group mental health treatment sessions
and completing anger management, parenting, and cognitive principles and restructuring
classes. Father pointed out that he completed these classes after Dr. Tranel and Dr. Page
completed their evaluations.
¶18 To rebut Father’s testimony implying that he had overcome his behavioral
problems, the State elicited Dr. Page’s opinion as to whether Father’s rehabilitation
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efforts improved his chances of parenting adequately. Dr. Page testified that despite his
efforts, Father still lacked adequate skills to parent. In reaching this conclusion, Dr. Page
relied on his professional experience, as well as an evaluation performed by Dr. Timothy
J. Casey, another clinical psychologist, who met with Father in August 2004, a few
months after Dr. Tranel and Dr. Page performed their evaluations and after Father had
completed his rehabilitative programs. 2 Dr. Page noted that Dr. Casey presented an
opinion consistent with Dr. Page’s—that is, that Father did not have the appropriate level
of skill to parent A.J.E. Dr. Page further testified that dramatic changes in individuals
such as Father are rare.
¶19 Social worker Galle asked the court to terminate Father’s parental rights, given
Father’s prison status, violent history and lack of relationship with A.J.E. Galle also
asked the court to terminate Mother’s parental rights because Mother failed to
successfully complete her parenting plan and, in Galle’s opinion, A.J.E. would not be
safe in Mother’s care. Moreover, Galle advised that removing A.J.E. from his foster
home where he was thriving and bonded to potential adoptive parents would not be in his
best interest.
¶20 Based on the testimony and evidence presented at the termination hearing, the
District Court terminated Mother’s and Father’s parental rights and awarded legal
custody to the State, concluding that since Mother’s and Father’s “conduct or conditions
2
While Father requested Dr. Casey’s evaluation and filed it with the court, he did
not submit the report as evidence.
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. . . are unlikely to change within a reasonable time,” foster care and/or adoption served
A.J.E.’s best interest.
STANDARD OF REVIEW
¶21 We review a district court’s decision to terminate parental rights to determine
whether the court abused its discretion. The test for an abuse of discretion is whether the
trial court acted arbitrarily, without employment of conscientious judgment, or exceeded
the bounds of reason resulting in substantial injustice. However, because a parent’s right
to the care and custody of a child is a fundamental liberty interest, it must be protected by
fundamentally fair procedures. To satisfy the relevant statutory requirements for
terminating a parent-child relationship, a district court must make specific factual
findings. We review those findings of fact to determine whether they are clearly
erroneous. Lastly, we review the court’s conclusions of law to determine whether the
court interpreted the law correctly. Matter of A.F., 2003 MT 254, ¶ 12, 317 Mont. 367,
¶ 12, 77 P.3d 266, ¶ 12.
¶22 The district court is bound to give primary consideration to the physical, mental
and emotional conditions and needs of the child. Section 41-3-609(3), MCA.
Consequently, the best interests of the child are of paramount concern in a parental rights
termination proceeding and take precedence over the parental rights. Moreover, the party
seeking to terminate parental rights must demonstrate by clear and convincing evidence
that the statutory requirements for termination have been met. Matter of A.F., ¶ 13.
9
¶23 We presume that a district court’s decision in such a case is correct and will not
disturb it on appeal unless there is a mistake of law or a finding of fact not supported by
substantial evidence that would amount to clear abuse of discretion. Matter of A.F., ¶ 14.
DISCUSSION
¶24 1. Did the District Court abuse its discretion in terminating Mother’s
parental rights by concluding that conditions rendering Mother unfit to parent were
unlikely to change within a reasonable time pursuant to § 41-3-609(1)(f)(ii), MCA?
¶25 Section 41-3-609(1)(f), MCA, states that a district court may order the termination
of the parent-child relationship where “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.” Section 41-3-609(1)(f), MCA.
¶26 Mother concedes that the District Court adjudicated A.J.E. a youth in need of care
and that she failed to successfully complete a treatment plan approved by the court.
However, Mother maintains that the court erred in concluding that the conduct or
condition rendering her unfit to parent was unlikely to change within a reasonable time,
as required by subsection (ii) of § 41-3-609(1)(f), MCA. Specifically, Mother contends
that the District Court erroneously relied on “stale evidence and incomplete files”
because Dr. Tranel and Dr. Cook performed their evaluations approximately one year
prior to the termination hearing and lacked knowledge of her rehabilitation efforts.
10
Mother further points out that the District Court misstated in its conclusions of law “that
both clinical psychologists had the benefit of the current evaluation of Dr. Tim Casey in
reaching their conclusions” when the record shows that neither psychologist relied on Dr.
Casey’s report.
¶27 Mother cites to In Re the Matter of J.C., Jr. and R.B., 2003 MT 369, ¶ 11, 319
Mont. 112, ¶ 11, 82 P.3d 900, ¶ 11, in which we held that a district court is required to
assess “the past and present conduct of the parent” when determining whether the
conduct or condition rendering a parent unfit is likely to change within a reasonable time.
Mother emphasizes this Court’s statement in Matter of J.C. that a district court should, at
least in part, look to a parent’s “present conduct.” Importantly, however, we also
emphasized in Matter of J.C. the importance of looking to a parent’s past behavior in
determining his or her fitness to parent in the future—without a “crystal ball,” a decision
to terminate parental rights must “to some extent [find basis in] a person’s past conduct.”
Matter of J.C., ¶ 11. This Court affirmed the District Court’s decision to terminate J.C.’s
mother’s parental rights, even though she had made improvements, because his mother
had a “history” of not following through with her “strides” and “steps.” Matter of J.C., ¶
15. Moreover, we noted “that evidence of rehabilitation does not render a district court
powerless to find future danger to the child, it is simply evidence to be considered by the
district court.” Matter of J.C., ¶ 16. We therefore concluded that the court did not abuse
its discretion when it found that the mother’s history of noncompliance with her
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treatment plan outweighed her more recent efforts to comply with the plan. Matter of
J.C., ¶ 17.
¶28 In this case, the District Court assessed evidence from a variety of professionals
who had evaluated and/or observed Mother since A.J.E.’s birth. While the District Court
misstated in its conclusions of law that Dr. Tranel and Dr. Cook relied on a current
evaluation by Dr. Casey, when in fact, neither psychologist referenced a report by Dr.
Casey, this misstatement amounts to harmless error. See In the Matter of S.C. and L.Z.,
2005 MT 241, ¶ 29, 328 Mont. 476, ¶ 29, 121 P.3d 552, ¶ 29 (“[a] harmless error does
not mandate that we reverse a district court’s judgment; an error must cause substantial
prejudice to warrant reversal.”) (citation omitted). The fact that Dr. Tranel and Dr. Cook
evaluated Mother roughly one year before the termination hearing and did not rely on
more recent information does not lessen the import of their testimony, which centered on
Mother’s chronic disabilities which preclude her from parenting adequately. Moreover, a
therapist, a family support worker and the Executive Director of the Anaconda Family
Resource Center—all of whom worked with Mother in the months after Dr. Tranel and
Dr. Cook performed their psychological evaluations—testified that despite the State’s
efforts to help Mother learn necessary skills through parenting and anger management
classes, she exhibited an inability to implement the lessons taught. Not one of these
professionals felt comfortable with the idea of leaving A.J.E. alone with Mother.
¶29 Given the evidence presented at the termination hearing, we conclude that the
District Court employed conscientious judgment and did not abuse its discretion in
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concluding that “[t]he conduct or condition of [Mother] rendering [her] unfit is unlikely
to change within a reasonable time.” Section 41-3-609(1)(f)(ii), MCA.
¶30 2. Did the District Court abuse its discretion in terminating Father’s parental
rights because Father could not assume the role of parent within a reasonable time?
¶31 Section 41-3-609(4)(b), MCA, states that a district court may terminate parental
rights without requiring a treatment plan if “two medical doctors or clinical psychologists
submit testimony that the parent cannot assume the role of parent within a reasonable
time.” Section 41-3-609(4)(b), MCA. Pursuant to this section, the District Court
terminated Father’s rights based on the testimony of two clinical psychologists’ opinions
that it was unlikely Father would be able to parent within a reasonable time.
¶32 Father argues that the District Court erred in relying on Dr. Tranel’s and Dr.
Page’s testimony because both psychologists evaluated Father before he engaged in
various treatments through the prison system. Dr. Tranel evaluated Father roughly nine
months prior to the termination hearing, 3 while Dr. Page conducted his evaluation
approximately seven months before the hearing. 4 In the months after the psychological
3
Father argues that Dr. Tranel failed to provide substantial evidence because he did
not formally “test” Father due to Father’s refusal to cooperate. In essence, Father
challenges the admissibility of Dr. Tranel’s testimony. However, because he did not
object at the hearing, Father is barred from raising this issue on appeal. Rule 103(a)(1),
M.R.Evid.
4
Father also argues that the District Court violated his due process rights by
permitting Dr. Page to testify that he had reviewed Dr. Casey’s more recent evaluation of
August 19, 2004 (which Father filed with the court) when Dr. Casey did not testify and
his report was not admitted into evidence. Not only did Father fail to object to Dr. Page’s
testimony during the hearing, the District Court appropriately allowed Dr. Page’s
13
evaluations and prior to the hearing, Father completed the intensive treatment unit at the
Montana State Prison for chemical dependency, parenting, anger management, and
cognitive principles and restructuring; he also attended group mental health counseling at
the Great Falls Regional Prison. Father maintains that in light of these rehabilitative
steps, Dr. Tranel and Dr. Page provided outdated reports and therefore, the District Court
should not have relied on their testimony.
¶33 As we noted above, “evidence of rehabilitation does not render a district court
powerless to find future danger to the child, it is simply evidence to be considered by the
district court.” Matter of J.C., ¶ 16. While Father took steps to rehabilitate himself, the
court determined that Father’s extensive criminal history—including partner assault on
Mother and violent behavior—as well as his lack of responsibility for behavior that made
him unavailable to parent his child, contradicted his claims of rehabilitation. The court
appropriately looked to Dr. Tranel’s opinion that Father suffered from antisocial
personality disorder, poly substance dependence and likely bipolar disorder, and Dr.
Page’s conclusion that Father’s tendency to behave aggressively when angry would
inhibit his ability to parent appropriately, as well as both psychologists’ advice that it was
highly unlikely that Father would be able to rehabilitate within a reasonable time.
¶34 Given Father’s extensive history with mental instability, aggression and crime, as
presented by two clinical psychologists, we conclude that the District Court did not abuse
testimony on the grounds that the information in Dr. Casey’s report is of the type
normally relied on by these clinical experts in the formulation of their opinions. See Rule
703, M.R.Evid.
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its discretion in concluding that Father could not assume the role of parent within a
reasonable time. In the best interest of A.J.E., the court appropriately ordered termination
of Father’s parental rights.
¶35 Affirmed.
/S/ W. WILLIAM LEAPHART
We concur:
/S/ KARLA M. GRAY
/S/ PATRICIA COTTER
/S/ BRIAN MORRIS
/S/ JOHN WARNER
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