No. 02-104
IN THE SUPREME COURT OF THE STATE OF MONTANA
2002 MT 265
IN THE MATTER OF A.S.,
Youth in Need of Care.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Thomas M. McKittrick, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Vince Van Der Hagen, Cascade County Public Defender's Office, Great
Falls, Montana
For Respondent:
Hon. Mike McGrath, Attorney General; Tammy K. Plubell,
Assistant Attorney General, Helena, Montana
Brant Light, Cascade County Attorney; Daniel M. Guzynski, Deputy County
Attorney, Great Falls, Montana
Submitted on Briefs: May 23, 2002
Decided: November 26, 2002
Filed:
__________________________________________
Clerk
Justice Terry N. Trieweiler delivered the Opinion of the Court.
¶1 The Montana State Department of Public Health and Human
Services petitioned the District Court for the Eighth Judicial
District in Cascade County to terminate the parental rights of S.S
to his son, A.S. Following a hearing on December 19, 2001, the
District Court granted the petition. S. S. appeals from the
Findings of Fact, Conclusions of Law, and Order, issued by the
District Court. We affirm the Order of the District Court.
¶2 The sole issue on appeal is whether the District Court erred
when it terminated S.S.’s parental rights.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 A.S. was born on August 13, 2000. At the time of his birth his
mother, D.B., and S.S., were both sixteen years old and did not
live together. On August 28, 2000, D.B. brought two week old A.S.
to the hospital because he seemed “fussy” and D.B. heard a
“crackling sound” when she picked him up. A medical exam performed
by Dr. Nora Gerrity and Dr. Craig Matelich revealed that A.S. had
fractures to his left distal tibia, right distal femur and right
proximal tibia, bilateral fractures to his pubic bones and probable
fractured ribs. The exam also revealed that the right side of
A.S.’s mouth was scratched, he suffered from multiple bruises and
the roof of his mouth appeared to have several burns. Dr. Gerrity
reported the incident to the Department of Public Health and Human
Services (DPHHS) on August 29, 2000.
¶4 Detectives from the Great Falls Police Department interviewed
D.B. and S.S. concerning the suspicious nature of A.S.’s injuries.
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S.S. admitted that he may have injured A.S. when he squeezed him,
when he shook him, or when he bounced him on his knee while
watching him on August 25 and August 26 of 2000. Dr. Matelich
surmised that the injuries were caused by a strong force that
caused an impact injury and concluded that the fractures to A.S.’s
leg and pubic bones could not have occurred in the manner described
by S.S. S.S. was charged with Felony Criminal Endangerment and
placed in juvenile detention on August 30, 2000, for causing the
injuries sustained by A.S. Subsequently, S.S. was adjudicated a
serious juvenile offender and in November 2000 he was incarcerated
at Pine Hills Juvenile Detention Center until he turned 18 and
placed on probation and parole until age 19. S.S. remained at Pine
Hills until September of 2001 and was represented by counsel at all
hearings relevant to this case.
¶5 Preliminary Temporary Investigative Authority was given to
DPHHS on September 5, 2000, and A.S. was temporarily removed from
his parents’ care. On September 27, 2000, A.S. was adjudicated a
Youth in Need of Care; it was ordered that A.S. remain in foster
care and ninety-day Temporary Investigative Authority was given to
DPHHS. Nan Bryant, a DPHHS social worker, assumed responsibility
for A.S.’s case in September 2000. A review hearing was held on
December 20, 2000, at which time the Temporary Investigative
Authority and foster care placement were extended for an additional
ninety-day period. In April 2001, Temporary Legal Custody of A.S.
was awarded to DPHHS for six months.
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¶6 S.S. was ordered to comply with a treatment plan prepared by
DPHHS on June 13, 2001. The plan required that S.S.: 1)
participate in an assessment of his parenting skills by a licensed
therapist and complete parenting classes; 2) obtain a psychological
evaluation from a Ph.D. level therapist and follow through with all
recommendations made by the therapist; 3) obtain a chemical
dependancy evaluation and complete the recommended treatment plan;
4) sign a release allowing DPHHS and Youth Court to share
information concerning his probation and insure the requirements of
his probation were satisfied; and 5) sign all releases necessary to
facilitate his progress with the plan. The chemical dependency
treatment and psychological evaluation required by the treatment
plan were also conditions of S.S.’s probation and parole. Some of
the services necessary to complete the goals of the treatment plan
were available or could be made available at Pine Hills.
¶7 Although S.S. entered a chemical dependancy treatment program
in January 2001 as a condition of his juvenile court sentence, he
made little or no progress with treatment while at Pine Hills. Nor
did he complete the psychological testing required by both his
sentence and the treatment plan.
¶8 During his incarceration, S.S. was cited for numerous major
rule violations and behavior reports which included assaulting
another inmate and talking to his girlfriend in violation of his
sentence. He also made graphically violent drawings which
expressed hatred, contained satanic overtones, depicted death and
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mutilation, and recited Marilyn Manson lyrics all in violation of
the conditions of his sentence.
¶9 Following his release from Pine Hills in September 2001, S.S.
was transferred to Adult Probation and Parole because he did not
comply with the conditions of his sentence while incarcerated at
Pine Hills. His parole officer informed him that if he did not
comply with the terms of his probation and parole he would likely
end up in Montana State Prison. He began chemical dependancy
treatment at Gateway Recovery Center in October 2001. In November
2001, S.S. alleges that he attempted to contact Bryant a number of
times but that his calls were never returned.
¶10 A.S. has remained in foster care since his initial
hospitalization in August 2000. It is undisputed that A.S. has
special health care needs and that he will require long-term
medical care, physical therapy, special attention and permanency to
thrive. At trial, S.S. admitted that he was unaware that his son
had special needs and stunted development.
¶11 The DPHHS filed a petition to terminate S.S.’s parental rights
on October 3, 2001, and a termination hearing was held on December
19, 2001. The District Court issued its Findings of Fact,
Conclusions of Law, and Order, and terminated S.S.’s parental
rights on December 31, 2001. The court found that the treatment
plan was achievable; that S.S. failed to comply with the treatment
plan; that S.S. failed to make efforts to acquaint himself with
A.S.; that S.S. was unlikely to change his behavior within a
reasonable time; and that A.S. required special care, stability,
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consistency and permanency. The court concluded based on these
findings that S.S. was unfit, unwilling, or unable to provide
adequate parental care for A.S.; that DPHHS had made reasonable
efforts to eliminate the need for removal of A.S. from his natural
father’s care but that S.S. was not likely to change in a
reasonable time; and that termination of S.S.’s parental rights was
in A.S.’s best interest.
STANDARD OF REVIEW
¶12 A district court’s decision to terminate parental rights is
reviewed for an abuse of discretion. In re Custody of C.F., 2001
MT 19, ¶ 11, 304 Mont. 134, ¶ 11, 18 P.3d 1014, ¶ 11. We review a
district court’s findings of fact to determine whether they are
clearly erroneous. In re Custody of C.F., ¶ 11. A finding of fact
is clearly erroneous if substantial evidence does not support it;
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
Custody of C.F., ¶ 11. This Court reviews a district court’s
conclusions of law to determine if they are correct. In re Matter
of T.C. and W.C, 2001 MT 264, ¶ 13, 307 Mont. 244, ¶ 13, 37 P.3d
70, ¶ 13.
DISCUSSION
¶13 A district court may terminate parental rights when: 1) the
child has been adjudicated a youth in need of care; 2) it is found
that the appropriate treatment has not been complied with or has
not been successful; and 3) it is found that the unfit conduct or
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condition of the parent is unlikely to change within a reasonable
time. Section 41-3-609(f), MCA. S.S. contends that the District
Court abused its discretion when it terminated his parental rights
for several reasons.
¶14 First, S.S. contends that the District Court erred when it
found that Bryant made reasonable efforts to prevent the need for
removal of A.S. from S.S.’s parental care. He maintains that
Bryant did not contact him personally to determine his progress or
assist with the treatment plan during or after his incarceration
and that no evidence was presented at trial to support the District
Court’s finding that reasonable efforts were made.
¶15 The DPHHS is required to make reasonable efforts to reunite
children with their natural parents when they have been separated
by the State pursuant to § 41-3-423, MCA.
Reasonable efforts include but are not limited to
development of individual written case plans specifying
state efforts to reunify families, placement in the least
disruptive setting possible, provision of services
pursuant to a case plan, and periodic review of each case
to ensure timely progress toward reunification or
permanent placement. In determining preservation or
reunification services to be provided and in making
reasonable efforts at providing preservation or
reunification services, the child’s health and safety are
of paramount concern. The court shall review the
services provided by the agency.
Section 41-3-423, MCA. Furthermore, the treatment plan required
that Bryant provide resource referrals as needed or requested by
S.S. and help him obtain funding for assessments and classes.
¶16 It is undisputed that a treatment plan was developed by DPHHS
and that S.S. was ordered to comply with its requirements. During
S.S.’s incarceration Bryant contacted his Pine Hills case manager,
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Karen Skalko, who told Bryant that she reviewed the court orders
and the treatment plan with S.S. The record demonstrates that a
psychological evaluation could have been arranged at Pine Hills and
that Bryant had made financial assistance available in the event
that Pine Hills was unable to cover the cost of evaluation and
treatment. Pine Hills provided a chemical dependancy treatment
program and anger management classes that satisfied the
requirements of the treatment plan. S.S. did not take advantage of
the programs at Pine Hills; he did not contact Bryant about
difficulty he had achieving the goals of the plan while
incarcerated; he did not ask for assistance nor did he express an
interest in complying with the treatment plan; and he did not
inquire about A.S. at any time. S.S. allegedly attempted to
contact Bryant on a few occasions in November of 2001, but only
after the termination proceedings had already begun.
¶17 We conclude that Bryant made reasonable efforts to ensure that
some of the services necessary to complete the treatment plan were
available to S.S. while he was incarcerated. Since he availed
himself of none of these services there is no reason to suggest
that he would have taken advantage of those services which he now
contends were not available. The treatment plan requires active
involvement and effort by the parent to achieve reunification. No
such effort was demonstrated by S.S. until October 2001 despite the
fact that the plan was approved in June of 2001. We conclude that
the District Court did not err when it found that Bryant made
reasonable efforts to provide the services necessary to prevent the
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termination of S.S.’s parental rights pursuant to § 41-2-423, MCA,
and the treatment plan.
¶18 Next, S.S. contends that the District Court erred when it
found that he was unfit, unwilling, or unable to provide adequate
parental care, that reasonable efforts made by protective services
were not able to rehabilitate him, and that he was unlikely to
change within a reasonable time. He contends that the finding was
incorrect because he did not have a reasonable opportunity to
achieve the goals of the treatment plan. He argues that the plan
was not “achievable” because he was only given four months to
complete the treatment plan and the majority of that time he spent
at Pine Hills, where the tools for accomplishing the goals were not
available.
¶19 The treatment plan was approved and imposed in June 2001. The
record demonstrates that chemical dependancy treatment and anger
management classes were available during S.S.’s entire
incarceration and that he did not complete either. Bryant
testified that funding for a psychological evaluation at Pine Hills
was available but that S.S. made no effort to obtain an evaluation.
Rather than focusing on self-improvement, S.S. refused to take
advantage of the services that were available to him at Pine Hills.
Finally, while S.S. began chemical dependency treatment after his
release, he did not initiate the steps necessary to achieve the
other goals of the treatment plan. Bryant testified that the
entire program could have been completed in five to seven months.
Six months passed between the time the treatment plan was ordered
and the time the termination hearing was held in December of 2001.
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S.S. did not complete a single goal of the treatment plan in that
six month period.
¶20 If S.S. had utilized the resources available to him at Pine
Hills he could have substantially complied with the treatment plan
in the four months between the time the plan was ordered and the
time DPHHS moved the court to terminate S.S.’s parental rights. If
he had made an effort to comply in any way, he would be in a better
position to now complain that all necessary services were not
available. However, he did not. Therefore, we conclude that the
District Court did not err when it found that S.S.’s treatment plan
was reasonable and achievable.
¶21 Finally, S.S. contends that the District Court erred when it
found that the condition rendering him unfit was unlikely to change
within a reasonable time because the court did not correctly find
that he was unfit at the time of trial.
¶22 This argument is without merit. In the two weeks S.S. acted
as a father he demonstrated that he was unfit to provide competent
parental care by inflicting serious injuries upon A.S. The
evidence before the court indicated that S.S. had not done anything
to improve his parenting skills between the time A.S. was removed
from his care and the time of the termination hearing. Although
the threat of future imprisonment led to chemical dependancy
treatment, this fact alone did not require that the court find him
fit to be a parent.
¶23 This Court has recognized that:
[A] termination proceeding must necessarily include a
judgment about the ability of the parent to care for the
child in the future. Regrettably, we do not have a
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crystal ball to look into to make this determination, so
it must, to some extent, be based on a person’s past
conduct. We agree with [the natural mother’s] assertion
that evidence of rehabilitation is germane to this
determination, but do not take it so far as to establish
a rule that any evidence of rehabilitation renders the
District Court powerless to find future danger to the
children. It is evidence to be considered by the
District Court, no more, no less, and is subject to the
same standard of review as any other evidence.
Matter of C.A.R. (1984), 214 Mont. 174, 187, 693 P.2d 1214, 1221.
¶24 A.S.’s needs are immediate and the time for S.S. to prove he
is capable of being the child’s father has passed. Based on his
past actions, history of chemical dependancy, history of abuse and
failure to comply with the treatment plan, we conclude that the
District Court did not err when it concluded that the condition
which made S.S. unfit to be A.S.’s father was not likely to change
within a reasonable time.
¶25 The decision of the District Court is affirmed.
/S/ TERRY N. TRIEWEILER
We Concur:
/S/ PATRICIA COTTER
/S/ W. WILLIAM LEAPHART
/S/ JAMES C. NELSON
/S/ JIM RICE
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Matter of A.S.
Combined Opinion