In Matter of Ml

DA 07-0295 and DA 07-0296

IN THE SUPREME COURT OF THE STATE OF MONTANA

2008 MT 21N

IN THE MATTER OF

M.L and A.T.,

Youths In Need of Care.

APPEAL FROM: District Court of the Second Judicial District,
In and For the County of Silver Bow, Cause Nos. DN 2006-013
and DN 2006-012 BN
Honorable Brad Newman, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Jim Wheelis, Chief Appellate Defender, David Avery, Assistant Appellate
Defender, Helena, Montana

For Appellee:

Hon. Mike McGrath, Montana Attorney General, J. Stuart Segrest,
Assistant Attorney General, Helena, Montana

Robert M. McCarthy, Silver Bow County Attorney, Butte, Montana

Submitted on Briefs: January 9, 2008

Decided: January 29, 2008

Filed:

__________________________________________
Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.

¶1 Pursuant to Section 1, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal

Operating Rules, as amended in 2003, the following memorandum decision shall not be

cited as precedent. Its case title, Supreme Court cause number and disposition shall be

included in this Court’s quarterly list of noncitable cases published in the Pacific

Reporter and Montana Reports.

¶2 Appellant P.L., the birth mother of M.L. and A.T., appeals two orders of the

Second Judicial District, Silver Bow County. One of these orders terminated her parental

rights in M.L., the other terminated her parental rights in A.T. A consolidated appeal was

first filed with this Court on August 30, 2007. By order dated October 31, 2007, we

remanded this cause to the District Court to enter more specific and detailed findings of

fact in support of its decisions to terminate P.L.’s parental rights. The District Court has

now issued findings which contain the requisite specificity. Because the District Court

did not abuse its discretion in terminating P.L.’s parental rights, we affirm.

¶3 M.L., an eleven year-old boy, and A.T., a ten year-old girl, were originally

removed from P.L.’s care by the Department of Public Health and Human Services

(DPHHS) of the State of Montana in 2003 after it was learned that their older sibling,

V.A., had sexually abused them. V.A. was subsequently adjudicated a delinquent youth,

convicted of two counts of felony incest and sent to Pine Hills Youth Correctional

Facility. M.L. and A.T. were eventually placed in the care of their biological father (J.T.)

instead of being returned to P.L.’s care, in part because P.L. was unable to make progress

on a treatment plan, was not accessing counseling services, and refused to accept V.A.’s

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guilt. In April 2005 J.T. renounced his intention of caring for M.L. and A.T., and returned

them to the care of P.L. 1 Of her own accord, P.L. contacted DPHHS during this time to

avail herself of social services. By this time, P.L. had accepted V.A.’s guilt and was

willing to work with DPHHS social workers to keep the children in her care.

¶4 In October 2005 DPHHS received a report that M.L. and A.T. had suffered

physical abuse, and that M.L. and A.T. had been sleeping on a couch together. DPHHS

was particularly concerned about M.L. and A.T. sleeping on the same couch, because a

DPHHS social worker was aware that there was sexual acting out between the children as

a result of their former sexual abuse. These reports were investigated and it was

determined that no abuse had occurred. However, DPHHS advised P.L. that M.L. and

A.T. were not to sleep in the same room unless an adult was present. DPHHS continued

to monitor this situation through meetings, therapy, and other support from DPHHS

social workers and staff.

¶5 In January of 2006, P.L. began dating S.L., a registered sex-offender who had

been convicted of a sexual offense in Minnesota in 1988. Soon thereafter, S.L. moved in

with P.L. at her residence at Silver Bow Homes in Butte. On January 18, 2006, DPHHS

received a report that P.L. had a new boyfriend who had recently been released from the

Pre-Release Center in Butte. This new boyfriend was, in fact, S.L. DPHHS also learned

that on January 17, 2006, P.L. had left A.T. in S.L.’s care when A.T. was sick and could

not go to school. Because DPHHS had been involved with P.L. concerning parenting

issues as far back as 1997, and because DPHHS knew that P.L. had a history of repeated

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J.T.’s parental rights were later terminated by order of the District Court.

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poor judgment in her choice of significant others—some of which had been abusive to

her— DPHHS asked P.L. to come to their offices in Butte and provide information

concerning S.L.’s current status and criminal record. P.L. arrived at the DPHHS’ offices

in Butte with S.L. DPHHS officials attempted to question P.L. about the incident, S.L.’s

sex offender status, and the relationship between P.L. and S.L. During this interview,

S.L. became belligerent, refused to answer questions, and was asked to leave the

DPHHS’ offices. In fact, S.L. denied he was P.L.’s boyfriend or that he had recently

been released from the Pre-Release Center, and refused to allow P.L. to answer questions.

When asked to leave, S.L. demanded that P.L. leave with him, which she did. As a

result, P.L. left with S.L. and never provided the information requested by DPHHS. 2

¶6 After this incident and after it had been confirmed that A.T. was left alone with

S.L., DPHHS removed A.T. and M.L. and placed them in foster care. On February 14,

2006, M.L. and A.T. were both adjudicated as youths in need of care within the meaning

of § 41-3-102(34), MCA. On February 17 and June 15, 2006, appropriate treatments

plans were approved and ordered by the District Court. These plans were identical and

contained a number of tasks which P.L was ordered to successfully complete. Task One

required P.L. to maintain a clean and safe place of residence and ensure it was drug and

alcohol-free. Task Two stated that if P.L. maintains a relationship with S.L., S.L. will:

(1) provide his birth date and social security number; (2) provide charging and sentencing

documents; (3) provide proof that he has successfully completed sex offender treatment;

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As it turns out, S.L. had a prior criminal history. The record in this case reflects that in addition
to the criminal sexual conduct conviction, S.L. had previously been found guilty of burglary and
DWI.

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and (4) obtain a sex offender evaluation and either enter treatment or provide written

verification from a qualified sexual offender counselor that he is not at risk to re-offend.

Task Three required anyone living with P.L. to complete a treatment plan. Task Four

was a corollary of Task One and required P.L. to allow a DPHHS social worker to enter

her home for scheduled and unscheduled visits in order to assess the appropriateness of

the home and discuss changes which need to be made. The remaining tasks required P.L.

to undergo psychological evaluations, meet with DPHHS social workers, and have

weekly supervised contact with her children.

¶7 P.L. continued to maintain a relationship with S.L. S.L. was subsequently arrested

and incarcerated on drug charges. P.L. later married S.L. in July 2006, while he was

incarcerated.

¶8 After DPHHS determined that P.L. had not completed three of the six tasks, it

petitioned the District Court for a termination of P.L.’s parental rights. DPHHS asserted

that P.L. failed to complete Task One because she had been evicted from her apartment at

Silver Bow Homes in Butte and was living at a homeless shelter called Homeward

Bound. Similarly, because P.L. lived at a homeless shelter, DPHHS claimed it was not

able to conduct home visits, and thus P.L. had not completed Task Four. Finally,

DPHHS maintained that P.L. failed to comply with Task Two because she did not

provide documentation regarding S.L.’s sex offender charge, nor proof of his enrollment

in or completion of a sexual offender program. DPHHS maintained that Task Three was

inapplicable because S.L. had been incarcerated on drug charges and was not living with

P.L. so no treatment plan could be developed. P.L. did, however, complete the remaining

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tasks including having weekly supervised visits with her children, undergoing

psychological evaluations, and meeting with DPHHS social workers.

¶9 The District Court held a hearing on this matter on April 11, 2007. The District

Court heard testimony from social workers, clinical psychologists, various service

providers, and P.L. herself, and ultimately granted DPHHS’ petition to terminate P.L.’s

parental rights. The District Court found that Task One had not been completed because

P.L. had been evicted from her apartment after it was discovered she was living with a

registered sex offender (S.L), and was living at Homeward Bound. Thus, P.L. failed to

maintain a clean, safe and drug-free residence because “Homeward Bound cannot be

considered a long term residential placement for herself or her children.” Similarly, the

District Court concluded that she did not complete Task Four because she was living at

Homeward Bound, and had lost her housing when she began living with S.L. With

respect to Task Two, the District Court found that P.L. had failed to provide either the

appropriate charging and sentencing documents from S.L.’s Minnesota conviction for a

sexual offense, or documentation that S.L. had received sex offender treatment.

¶10 Additionally, the District Court determined that the condition rendering P.L. unfit

to be a parent was unlikely to change within a reasonable time. In particular, the District

Court observed that two psychologists evaluated P.L. and determined that she would be

unable to meet the needs of her children and assume the role of a parent within a

reasonable time. As a result, the District Court determined that P.L.’s parental rights

should be terminated.

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¶11 On appeal, P.L. argues that the District Court abused its discretion in terminating

her parental rights. With respect to Task One, P.L. maintains that the District Court’s

finding was clearly erroneous because P.L. did not lose her apartment due to S.L. residing

with her, but simply for failure to pay rent after her children were removed from her care

by DPHHS. Further, P.L. notes that her treatment plan did not require her to maintain a

long-term residential placement, but only one that is safe, clean and drug-free. P.L.

points out officials from DPHHS conceded at the hearing that Homeward Bound was

safe, clean, and drug-free. Thus, P.L. argues it was clear error by the District Court to

conclude that P.L. did not satisfy this requirement. Additionally, P.L. asserts that the

District Court’s finding respecting Task Four is the “most clearly erroneous” because the

DPHHS social worker testified that she herself declined to visit P.L. despite the fact that

Homeward Bound was clean, safe and drug-free, and despite the fact that DPHHS works

with other parents who reside there.

¶12 Lastly, P.L. maintains the District Court erred in finding that she failed to

complete Task Two, arguing this task was simply inapplicable, and thus she could not

have failed it. On the one hand, P.L. argues that if DPHHS concedes S.L. was not

required to complete a treatment plan under Task Three because he was incarcerated and

not living with P.L., it was clear error to find that she failed Task Two since “both tasks

were premised on S.L.’s presence in P.L.’s residence, which was not the case.” On the

other hand, P.L. maintains that she provided DPHHS with as much information as

DPHHS itself was able to document, even with its greater resources. Thus, P.L. argues

the District Court’s finding that she failed to complete three of the six tasks was clearly

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erroneous, thereby leading it to incorrectly conclude her parental rights should be

terminated.

¶13 A court may order the termination of parental rights if a child as been adjudicated

a youth in need of care, an appropriate court-approved treatment plan has been

established, the parent has not complied with the treatment plan, and the conduct or

condition rendering the parent unfit is not likely to change within a reasonable time.

Sections 41-3-609(1)(f)(i) and (ii), MCA. The court considers a non-exclusive list of

factors in making the determination to terminate parental rights, focusing primarily on the

physical, mental and emotional conditions and needs of the child. Sections 41-3-609(2)

and (3), MCA. In Montana, the law presumes the bests interests of the child are served

by termination of parental rights when a child has been in foster care for fifteen of the

most recent twenty-two months. Section 41-3-604(1), MCA.

¶14 We review a decision to terminate parental rights for an abuse of discretion. In the

Matter of J.V., 2003 MT 68, ¶ 7, 314 Mont. 487, ¶ 7, 67 P.3d 242, ¶ 7. “The test for

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.” In the Matter of C.J.K., 2005 MT 67, ¶ 13, 326 Mont. 289, ¶ 13, 109 P.3d

232, ¶ 13 (quotation omitted). Findings of fact are reviewed under the clearly erroneous

standard, while conclusions of law are reviewed to determine if they are correct. In the

Matter of C.J.K., ¶ 13. “A court’s findings of fact are clearly erroneous if they are not

supported by substantial credible evidence, the court has misapprehended the effect of the

evidence, or our review of the record convinces us that a mistake has been committed.”

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State v. Vaughn, 2007 MT 164, ¶ 15, 338 Mont. 97, ¶ 15, 164 P.3d 873, ¶ 15 (quotation

omitted).

¶15 After careful review of the record in this case, we conclude the District Court did

not abuse its discretion in terminating P.L.’s parental rights. As we have stated

previously “it is a long-standing principle that complete compliance with a treatment plan

is required, as opposed to partial compliance or even substantial compliance.” In the

Matter of D.V., 2003 MT 160, ¶ 27, 316 Mont. 282, ¶ 27, 70 P.3d 1253, ¶ 27. Although

we agree with P.L. that Task One did not require her to maintain a “long-term” residence,

it did require her, and not a third-party or an agency, to maintain a clean and safe place of

residence and ensure it was drug and alcohol-free. Although it appears from the record

that she may have been able to have her children with her at Homeward Bound, the fact

remains that she herself was not maintaining such a residence, because the rent and other

conditions of Homeward Bound were provided by the agency administering the shelter.

As DPHHS points out, the purpose of this task was to demonstrate that P.L. herself could

provide for her children. At the time of the hearing P.L. had been living at Homeward

Bound for over one year and indicated that she had just started to save money to get her

own place. Because Homeward Bound only allows individuals to reside there for a two-

year period, P.L. had less than one year to remain there. In light of these facts, we

conclude the District Court did not err in finding that P.L. did not complete Task One.

¶16 Similarly, Task Two, as contained in the District Court docket, states that if P.L.

maintains a relationship with S.L., S.L. will: (1) provide his birth date and social security

number; (2) provide charging and sentencing documents; (3) provide proof that he has

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successfully completed sex offender treatment; and (4) obtain a sex offender evaluation

and either enter treatment or provide written verification from a qualified sexual offender

counselor that he is not at risk to re-offend. The date for completing this task was July 1,

2006. At the time of the termination hearing P.L. and S.L. were still married. The fact

that S.L. was not living in the home with P.L. does not change the clear requirements of

the treatment plan. Moreover, in the affidavit in support of termination of parental rights

filed by the DPHHS social worker, it was explained that although S.L. was not currently

residing with P.L. “it is likely that he will in the future as they are married.” In order to

protect A.T. and M.L. from undergoing any further sexual abuse, DPHHS simply wanted

to know the exact nature of S.L.’s offense and be sure that he would not re-offend. Given

the fact that P.L. continued to remain married to S.L., the assumption that he would be

living with P.L. is reasonable, if not a certainty. There is no reason why P.L. should be

excused from this requirement so long as she remained married to S.L. In fact, at the

termination hearing, P.L. admitted that she married S.L. in spite of the fact that his

presence was the primary factor in her losing custody of her children in the first place. In

any event, the treatment plan itself states that the required documentation concerning S.L.

will be provided so long as they are in a relationship, and under these circumstances it is

P.L.’s responsibility to ensure this task is fully completed. Thus, the District Court did

not err in finding P.L. did not complete Task Two.

¶17 With respect to Task Four, we agree with DPHHS that a prerequisite to conducting

home visits required P.L., and not a third-party or agency, to maintain a clean, safe, drug-

free home. However, if it is true that DPHHS works with other families at Homeward

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Bound, then it might be possible for P.L. to complete this task. Moreover, as P.L. points

out, it was DPHHS who declined to conduct the visits. If the completion of this task was

dispositive in reaching our conclusion to affirm the District Court’s decision, we might be

inclined to give this matter further consideration. But since we hold the District Court’s

findings with respect to Tasks One and Two were not clearly erroneous, its conclusion to

terminate P.L.’s parental rights was not an abuse of discretion.

¶18 In this regard, we note that the psychological evaluations of P.L. before the

District Court characterized her as “a person who is severely and chronically handicapped

in parenting performance[,]” and further noted that P.L. had made little progress on

critical areas related to parenting over a number of years. These reports also indicated

that P.L. had a borderline level of intellectual functioning, 7th grade reading skills, poor

coping and parenting abilities, and had demonstrated she was not able to meet the clear

requirements of her treatment plans. P.L. has not challenged the validity of these

evaluations.

¶19 Accordingly, we conclude the District Court did not abuse its discretion in

terminating P.L.’s parental rights, especially in light of the presumption that it is in A.T.

and M.L.’s best interests to terminate P.L.’s parental rights under § 41-3-604(1), MCA,

given the fact that they have been in foster care for more than fifteen of the last twenty-

two months.

¶20 Affirmed.

/S/ PATRICIA COTTER

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We Concur:

/S/ JAMES C. NELSON
/S/ JOHN WARNER
/S/ JIM RICE
/S/ W. WILLIAM LEAPHART

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