Matter of D.B.

No. 04-288

IN THE SUPREME COURT OF THE STATE OF MONTANA

2004 MT 371

IN THE MATTER OF
D.B., J.D., S.B., J.B., and L.B.,

Youths In Need Of Care.

APPEAL FROM: The District Court of the Sixteenth Judicial District,
In and For the County of Custer, Cause No. DN 2001-9,
Honorable Gary L. Day, Presiding Judge

COUNSEL OF RECORD:

For Appellants:

J. Dennis Corbin, Attorney at Law, Miles City, Montana (Father)

Ali Moulton, Attorney at Law, Glendive, Montana (Mother)

For Respondent:

Honorable Mike McGrath, Attorney General; Tammy K. Plubell,
Assistant Attorney General, Helena, Montana

Garry P. Bunke, County Attorney; Paul Emerson, Deputy County
Attorney, Miles City, Montana

Judy A. Williams, Assistant Attorney General, Child Protection Unit,
Billings, Montana

Janette Krutzfeldt Jones, Krutzfeldt & Jones, Miles City, Montana
(Guardian Ad Litem)

Submitted on Briefs: November 18, 2004

Decided: December 22, 2004

Filed:

__________________________________________
Clerk
Justice W. William Leaphart delivered the Opinion of the Court.

¶1 Father S.B. (Father) and mother L.D. (Mother) appeal from the District Court’s

termination of the parenting rights of their five children, D.B. (Oldest Daughter), J.D. (Oldest

Son), S.B.1 (Youngest Son), J.B. (Middle Daughter), and L.B. (Youngest Daughter). We

affirm the District Court.

BACKGROUND

¶2 Father and Mother had five children together. Oldest Daughter was born in March

1997, and is 13 months older than Oldest Son, who is 14 months older than Youngest Son,

who is 18 months older than Middle Daughter, who is 16 months older than Youngest

Daughter.

¶3 In July 2001, Oldest Daughter complained to her mother about pain in her perineal

area. Mother took her to the clinic the next day. Dr. James Young saw red sores and

reported the situation to the Department of Public Health and Human Services (the

Department) and referred Oldest Daughter to an obstetrician gynecologist, Dr. J. Randall

Rauh. Dr. Rauh determined that accidental straddling, assault, or self-inflicted blunt trauma

could have caused the injuries, but that it was most likely caused by assault.

¶4 Beyond the perineal sores, Dr. Rauh discovered an older anal scar and found he could

very easily put his thumb into Oldest Daughter’s rectum, which implies that things at least

as large as his thumb had already been inserted. Father and Mother argued that was the

1
For reference’s sake, please note that Father happens to have the same initials as
Youngest Son.

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result of severe constipation, but Dr. Rauh believed that an external force must have caused

the trauma. Finally, Dr. Young also found finger-shaped bruises on Oldest Daughter’s back.

By the end of July 2001, the District Court had issued an order granting temporary

investigative authority (TIA) and protective services for all the children.

¶5 Almost two years passed during which everyone involved–except the

parents–believed parental sexual misconduct caused the sores on Oldest Daughter. In May

2002, both Father and Mother were criminally charged with abuse and neglect of their

children. Father stayed in jail for a year. By May 16, 2003, after subsequent observations

of the same sores and consultation with Dr. Stephen Guertin from Lansing, Michigan, Dr.

Rauh diagnosed Oldest Daughter with a rare skin disease called lichens sclerosis et

atrophicus (LSA).

¶6 The LSA made Oldest Daughter’s perineal area itch, and she scratched it. The results

of LSA resemble the evidence of sexual abuse, but the origin of the disease is unknown.

With a new, clear, alternate explanation, the State dropped the charges against Father and

released him in May 2003. The District Court, in this case, specifically ruled that it would

disregard prior testimony and exhibits related to physical findings previously believed to be

evidence of sexual abuse of Oldest Daughter.

¶7 Dr. Young testified that, as early as January 2001, he had ongoing concerns about the

development of the other children because Oldest Son and Youngest Son appeared seriously

delayed in their speech. In January 2001, he had suggested the parents take the children to

the Developmental Educational Assistance Program (DEAP) for speech evaluations;

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however, the Father opposed the evaluations. Only after the Department placed the children

in foster care did DEAP have an opportunity to evaluate the children.

¶8 Those evaluations revealed that Oldest Daughter was sixteen months, or 30 percent,

behind in development; Oldest Son was eleven months, or 27 percent, behind; and Youngest

Son was six months, or 22 percent, behind. The children began progressing quickly in their

development after living in foster care. Oldest Son progressed from having nearly no

understandable speech to carrying on conversations. Dr. Young testified that the

improvement was attributable to therapy and not just the passage of time.

¶9 In October 2001, Dr. F. Tom Peterson completed psychological evaluations on both

parents with special attention to parental competence. The court ordered Dr. Peterson to

consider historical documents including Father’s unsubstantiated child neglect history from

California involving a 1997 allegation of neglect of Oldest Daughter and a 1990 conviction

for exhibiting a firearm. Dr. Peterson found the Mother was “pollyannish” and avoided

problems including those that resulted in the Department taking her children away. Later,

Alicia Brewer, a licensed clinical professional counselor, diagnosed Mother with most

characteristics of Schizoid Personality Disorder and many characteristics of Dependent

Personality Disorder. Dr. Peterson concluded Father was suffering from Paranoid

Personality Disorder with features of narcissism and antisocial orientation. Father does not

know his children’s birth dates.

¶10 The District Court approved two treatment plans for each parent. Mother’s treatment

plan ran from March 2002 to August 2002, and January 2003 through the remainder of the

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case. Father’s treatment plans ran from May 2002 to August 2002 and January 2003 through

the remainder of the case. Both parents’ second plans specifically provided, “This agreement

will remain in effect until approval of a subsequent plan . . . .” The District Court found that

neither parent completed either treatment plan.

¶11 The Mother’s first treatment plan required twelve tasks of her. Inter alia, she had to

undergo a psycho-sexual evaluation by Michael Sullivan and follow through with his

recommendations, engage in therapy exploring parent-child and marital dynamics, and

participate in a program with a professional to develop an understanding of her children’s

developmental needs. Her second treatment plan required her, in addition to the first twelve

tasks, to address her previous involvement with Child Protective Services in Montana and

California and receive treatment for her past sexual abuse victimization.

¶12 The District Court found that Mother failed to follow the recommendations Michael

Sullivan made in his psycho-sexual evaluation, to address successfully the risk factors

identified by Michael Sullivan in the psycho-sexual evaluation, to complete therapy, to

complete a program with a professional to help her understand her children’s developmental

and safety needs, to discuss her children’s developmental and safety needs as they relate to

the professional’s material, to attend marital counseling, to address previous involvement

with California and Montana child protection services, and to address her personality

disorder.

¶13 Ms. Brewer, Mother’s therapist, testified that Mother was open to working on the

treatment plan, invested in therapy, seemed cooperative, made progress in her assertiveness

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and interpersonal skills, and did even more than Brewer asked. Mother kept her appointments

every week or every other week from February 2002 to May 2003. Mother worked with Earl

Brewer at DEAP twenty to twenty-five times from September 2002 to April 2003, and he

testified she was interested, engaged, and understanding the information.

¶14 The District Court found that therapy was not a priority for Mother. Ms. Brewer

believed that Father’s return home in May 2003, after his incarceration, caused Mother to

fall back into her former patterns of doing what he wanted because it was easy and

comfortable for her. After assessing Mr. Brewer’s testimony, the District Court found that,

while Mother completed some book work and intellectually understood the developmental

and safety needs of the children, she was unwilling or unable to personalize the material to

her own situation.

¶15 Both of Father’s treatment plans required twelve tasks of him, but the District Court

was unsure whether Father was advised of the last eight tasks of the second plan. Three of

the first four tasks–present in both treatment plans–required Father to obtain a chemical

dependency evaluation and follow through with all the recommendations of the chemical

dependency counselor, obtain a psychiatric evaluation and follow through with all the

recommendations of the psychiatrist, and obtain a complete psycho-sexual evaluation with

Michael Sullivan and follow through with his recommendations.

¶16 Father failed to obtain any evaluations. The District Court found that Father had not

completed any of these three tasks despite having the opportunity. Since he did not complete

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any evaluation before he was jailed or in the six months after his incarceration, he, of course,

could not have completed any of the respective recommendations.

¶17 Mother raises the following issues:

¶18 1. Whether the District Court erred by denying the motion to dismiss the petition to

terminate parental rights based on the discovery of newly-acquired evidence that signifi-

cantly undermined the validity of the prerequisite adjudication of the children as youths in

need of care.

¶19 2. Whether the Department had probable cause to grant a TIA on the allegation of

failure to educate the children for failing to address developmental needs though provided

the opportunity.

¶20 3. Whether the District Court erred in allowing the Department to provide Dr.

Peterson with historical documents and information.

¶21 4. Whether Mother’s treatment plans were inappropriate because the Department

drafted them for a sexual offender based upon the allegations of sexual abuse when it should

have focused on correcting the children’s alleged developmental delays.

¶22 5. Whether the District Court erred in determining that Mother was unsuccessful or

noncompliant with her treatment plan.

¶23 6. Whether the District Court erred in determining that the conduct or condition

rendering Mother unfit was unlikely to change within a reasonable amount of time.

¶24 Father raises the following issues:

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¶25 1. Whether the District Court erred by denying the motion to dismiss the petition to

terminate parental rights based on the discovery of newly-acquired evidence that signifi-

cantly undermined the validity of the prerequisite adjudication of the children as youths in

need of care.

¶26 2. Whether Father’s treatment plans were inappropriate because he was incarcerated

during much of the two treatment plans and the District Court did not tailor those plans to

fit a father in incarceration.

¶27 3. Whether the District Court abused its discretion in finding Father failed to complete

his treatment plan successfully.

¶28 4. Whether the District Court erred in determining that the conduct or condition

rendering Father unfit was unlikely to change within a reasonable amount of time.

STANDARD OF REVIEW

¶29 This Court reviews a District Court’s decision to terminate parental rights to

determine whether the District Court abused its discretion. In re N.A., 2002 MT 303, ¶ 22,

313 Mont. 27, ¶ 22, 59 P.3d 1135, ¶ 22. A district court abuses its discretion when it acts

arbitrarily, without employment of conscientious judgment, or exceeding the bounds of

reason resulting in substantial injustice. In re D.V., 2003 MT 160, ¶ 14, 316 Mont. 282,

¶ 14, 70 P.3d 1253, ¶ 14.

¶30 This Court reviews the District Court’s findings of fact supporting termination to

determine whether they are clearly erroneous. In re B.H., 2001 MT 288, ¶ 13, 307 Mont.

412, ¶ 13, 37 P.3d 736, ¶ 13. Those facts will be clearly erroneous (1) when substantial

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evidence fails to support the district court’s finding; (2) when the district court misappre-

hended the effect of the evidence; or (3) when, after reviewing the record, this Court has a

definite and firm conviction that the district court made a mistake. In the Matter of A.C.,

2001 MT 126, ¶ 20, 305 Mont. 404, ¶ 20, 27 P.3d 960, ¶ 20. In reviewing a district court’s

conclusions of law, we determine whether they are correct. N.A., ¶ 22.

MOTHER’S ISSUE 1 AND FATHER’S ISSUE 1

¶31 Father and Mother each argue that the District Court erred by denying their motions

to dismiss the petition to terminate parental rights based on the discovery of newly acquired

evidence that significantly undermined the validity of the prerequisite adjudication of the

children as youths in need of care. They argue that, absent the sexual molestation allegations

from the LSA mis-diagnosis, the District Court could not have designated the children youths

in need of care. The District Court terminated the parent-child relationships pursuant to

§ 41-3-609, MCA (2001), that provides, in relevant part, as follows:

(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.

If the District Court erred in adjudicating the children as youths in need of care, the

subsequent termination is legally invalid. The parents further argue that the allegations of

sexual molestation due to the LSA mis-diagnosis tainted the entire proceedings to such a

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tremendous degree that they deprived Mother of her rights to due process and fundamental

fairness.

¶32 We conclude the District Court had adequate grounds independent of the LSA mis-

diagnosis for adjudicating these children youths in need of care. Pursuant to § 41-3-

422(5)(a)(ii), MCA (2001), the District Court used the preponderance of the evidence

standard for the adjudication as youths in need of care. The children suffered from severe

language delays that required significant intervention, and the parents had psychological

conditions affecting their parenting abilities. Three of the children were as much as 30

percent delayed. Father had Paranoid Personality Disorder with features of narcissism and

antisocial orientation, and Mother poses an indirect threat to her children because she avoids

issues surrounding the children’s removal and exhibits denial of any problems with child-

rearing.

¶33 Even if the physical evidence attributable to LSA had not been introduced at the time

of the adjudicatory hearing, there was substantial evidence supporting the District Court’s

designation. Any taint attributable to the LSA has not pervaded this case to violate

fundamental fairness. The developmental delays and psychological disorders–independent

of the sexual molestation allegations–support the District Court’s finding by a preponderance

of evidence that these children were youths in need of care.

MOTHER’S ISSUE 2

¶34 Mother argues that the District Court would not have had probable cause to order the

TIA based on the allegation that she failed to address developmental needs. Without that

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probable cause, the argument goes, the Department could never have taken the children

away, and Mother would have had the opportunity to correct the developmental deficiencies.

¶35 The circumstances need only rise to the level of probable cause for a district court to

issue an order for a TIA. Section 41-3-422(5)(a)(i), MCA (2001). Subsequent discovery that

the initial probable cause determination was based on faulty information does not change the

fact that the district court initially had probable cause based upon information available at

the time of the determination. With such a difficult disease to detect as LSA, neither Dr.

Young nor Dr. Rauh acted unreasonably in making referrals to the Department. At the time

of the TIA hearing, the District Court had evidence of sores, anal scarring, and bruises in

Oldest Daughter’s perineal area. Dr. Rauh testified that constipation and straddling were

unlikely to have caused those injuries. Substantial, credible evidence supported the District

Court’s finding of probable cause for issuing the TIA.

MOTHER’S ISSUE 3

¶36 The District Court ordered Dr. Peterson to take into account the alleged child abuse

that took place in California when he made his psychological evaluations. Mother contends

that the Department should not have sought and acquired the unsubstantiated California

reports from 1990 to 1997. Montana statutes require the Department to destroy non-medical,

unsubstantiated records after three years. Section 41-3-202(5)(c)(i)(A) to (B), MCA (2003).

By seeking out those California reports and transferring them to Dr. Peterson, Mother asserts

the Department violated the spirit of that Montana statute and prejudiced Dr. Peterson’s

evaluation of Mother.

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¶37 Section 41-3-202(5)(c), MCA (2003), was enacted in 2003–after the commencement

of this action and after the District Court’s decision that Dr. Peterson should consider the

California history. Act approved Apr. 17, 2003, ch. 406, 2003 Mont. Laws 1489. Without

legislative intent, statutes do not apply retroactively, so this 2003 statute did not apply to the

District Court’s 2001 decision. Section 1-2-109, MCA (2001) (“No law contained in any of

the statutes of Montana is retroactive unless expressly so declared.”); Porter v. Galarneau

(1996), 275 Mont. 174, 185, 911 P.2d 1143, 1150. Thus, the District Court did not err by

requiring Dr. Peterson to consider unsubstantiated allegations from California.

¶38 Second, Mother argues that, included in the “Documents Accompanying the Referral”

that Dr. Peterson received, was a reference to Father’s alleged history of violence in

California. Mother cites three cases that she contends, together, stand for the proposition

that a district court can consider only violence of the parent who is subject to the inquiry or

violence of a spouse or intimate partner committed during the course of the relationship with

the parent who is the subject of the inquiry: In re M.T., 2002 MT 174, 310 Mont. 506, 51

P.3d 1141 (admitting evidence of violence between the mother and her husband); In Re

M.F.B., 2001 MT 136, 305 Mont. 481, 29 P.3d 480 (admitting evidence of violence among

the mother, father, and children); and In re A.W. (1991), 247 Mont. 268, 806 P.2d 520

(admitting evidence of violence by the mother’s boyfriend and the father of one of her

children). Mother argues that, because she was neither dating nor married to Father at the

time of the alleged violence, Dr. Peterson should not have considered Father’s alleged violent

history in evaluating Mother.

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¶39 Mother has committed the Converse Fallacy of Accident or Hasty Generalization.

Ruggero J. Aldisert, Logic for Lawyers: A Guide to Clear Legal Thinking 191-92 (1989).

Contrary to Mother’s characterization, the three cases she cites stand for the proposition that

the district court can include evidence of violence of the parent or the parent’s spouse or

intimate partner. Father was, at the time of the events, neither Mother’s spouse nor her

intimate partner. Thus, she reasons, the District Court cannot include that evidence.

Choosing to admit some evidence does not imply a choice to exclude other, related evidence.

Just because Tom is a man and Joe is a man, that does not imply that, because Dave is

neither Tom nor Joe, Dave is not a man. These cases do not require a district court to

exclude any evidence if that evidence is relevant. If the evidence is admissible in court, a

fortiori, the psychologist can admit it into his own evaluation.

MOTHER’S ISSUES 4 & 5

¶40 First, Mother contests the District Court’s findings of fact that she failed to complete

her treatment plan. Mother argues that keeping her appointments every week or every other

week from February 2002 to May 2003, investing herself in therapy, cooperating with Ms.

Brewer, making progress in her assertiveness and interpersonal skills, and doing even more

than Brewer asked, together, constitute successful completion of therapy. Concerning her

failure to complete a program to understand the children’s developmental and safety needs,

Mother argues that working with Mr. Brewer twenty to twenty-five times from September

2002 to April 2003 and maintaining interest, engagement, and understanding the information

constitutes completion of that task.

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¶41 A parent must completely comply with a treatment plan; partial compliance or even

substantial compliance is insufficient. In re D.V., 2003 MT 160, ¶ 27, 316 Mont. 282, ¶ 27,

70 P.3d 1253, ¶ 27. After assessing Ms. Brewer’s testimony, the District Court found that

Mother had been making progress until May 2003. After that, her attendance at and

scheduling of counseling appointments deteriorated.

¶42 Therapy was not a priority for Mother. Father’s return to the home after his

incarceration caused Mother to fall back into her former dependent patterns despite many

months’ work. Mother was going through the motions by completing the book work and

intellectually understanding Mr. Brewer’s lessons, but she refused to internalize the lessons

and apply them to her own situation.

¶43 The Legislature did not intend, and the Department does not include, therapy tasks

in treatment plans as exercises in futility. If the Department wanted Mother to learn self-

discipline by requiring her to show up at certain times and read certain books, it could use

other treatment plan tasks. Mother needs to do more than just go through the motions. The

Department wanted Mother to better parent her children by learning new techniques and by

applying those techniques to her situation. New techniques will not change the situation

unless they are put into practice.

¶44 Second, Mother argues that the treatment plans were inappropriate under § 41-3-

609(1)(f)(i), MCA (2001), because the Department drafted them for a sexual offender based

upon the allegations of sexual abuse when it should have focused on correcting the children’s

alleged developmental delays. Because every situation is unique, this Court has never

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established a test to determine what is “appropriate” with respect to treatment plans in

general. Instead, we have articulated a number of factors by which to determine whether a

treatment plan is appropriate under the circumstances, including (1) whether counsel

represented the client, (2) whether the parent stipulated to the plan, and (3) whether the plan

addresses the particular circumstances facing both the parent and the child. In re the Custody

and Parental Rights of M.M. (1995), 271 Mont. 52, 56-57, 894 P.2d 298, 301.

¶45 Counsel represented Mother, and she stipulated to the plan, so the only remaining

question is whether the sexual abuse was a particular circumstance facing both the parent and

the child. For Mother, the LSA mis-diagnosis changed the assumptions on which the

Department based her treatment plans. If a treatment plan contains both appropriate and

inappropriate tasks, the parent need not complete the inappropriate tasks and the district court

cannot consider that failure in its determination whether to terminate parental rights. In re

A.N., 2000 MT 35, ¶¶ 36-41, 298 Mont. 237, ¶¶ 36-41, 995 P.2d 427, ¶¶ 36-41.

¶46 Assuming, arguendo, that the treatment plan tasks related to sexual abuse were

inappropriate, and excluding those tasks, the District Court, nevertheless, had substantial,

credible evidence supporting its finding by clear and convincing evidence that Mother did

not complete her treatment plan. Since the inclusion of the inappropriate sexual abuse

treatment plan elements constitutes harmless error, the District Court did not clearly err in

determining that Mother had failed to complete her treatment plan.

MOTHER’S ISSUE 6

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¶47 Mother argues that the District Court erred in determining that the conduct or

condition rendering Mother unfit was unlikely to change within a reasonable amount of time.

Mr. Brewer worked weekly with Mother, who was interested in the material, engaged in it,

and appeared to understand what was being discussed. She argues that, if she did not

successfully complete her treatment plans, she completed most of her treatment plan tasks

and successfully completed working with the counselor regarding her own sexual abuse

victimization. Thus, no evidence supports a finding that Mother will continue abusing or

neglecting her children.

¶48 The District Court terminated parental custody under § 41-3-609(1)(a)(f), MCA

(2001). Subsection (ii) requires the District Court to find that “the conduct or condition of

the parents rendering them unfit is unlikely to change within a reasonable time.” Section

41-3-609(2), MCA (2001), clarifies the meaning of “unlikely to change within a reasonable

time”:

(2) In determining whether the conduct or condition of the parents is
unlikely to change within a reasonable time, the court shall enter a finding that
continuation of the parent-child legal relationship will likely result in
continued abuse or neglect or that the conduct or the condition of the parents
renders the parents unfit, unable, or unwilling to give the child adequate
parental care. In making the determinations, the court shall consider but is not
limited to the following:
(a) emotional illness, mental illness, or mental deficiency of the parent
of a duration or nature as to render the parent unlikely to care for the ongoing
physical, mental, and emotional needs of the child within a reasonable time;
....

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“[W]e do not have a crystal ball to look into to make this determination, so it must, to some

extent, be based on a person’s past conduct.” In re C.A.R. (1984), 214 Mont. 174, 187, 693

P.2d 1214, 1221.

¶49 Dr. Peterson found that Mother had a “pollyannish” personality disorder that caused

her to avoid problems, and Ms. Brewer diagnosed her with many elements of both Schizoid

Personality Disorder and Dependent Personality Disorder. Mother’s avoidance of problems

combined with her refusal to apply the lessons to her children suggest that she has never

acknowledged doing anything wrong. Without accepting responsibility, she will not change

her behavior. Under the same conditions, the children’s recent developmental advances will

arrest.

¶50 The gains that Mother made during the periods she participated in the treatment

objectives were insufficient to enable her to parent her children adequately. Her mental

illnesses are sufficient in number, degree of severity, and effect on the children’s welfare to

support the District Court’s conclusion that she was unlikely to change within a reasonable

amount of time.

FATHER’S ISSUE 2

¶51 Father argues that his treatment plans were inappropriate because Father entered

incarceration twelve days after the District Court approved the first treatment plan, Father

was incarcerated during the whole second treatment plan, and the District Court did not tailor

that plan to fit a father in incarceration. Parents must complete programs that the prison

17
offers them or allows them to complete. See In re J.N., 1999 MT 64, ¶ 19, 293 Mont. 524,

¶ 19, 977 P.2d 317, ¶ 19.

¶52 Any portions of the tasks Father could have completed while incarcerated or during

his periods not incarcerated are appropriate. Contrary to Father’s assertion, the second

treatment plan continued from January 2003 until the hearing in November 2003. He had

twelve days before the State incarcerated him and five months after the State released him

to complete the evaluations. Grant Larson, a social worker, testified that Father could have

obtained the chemical dependency and psycho-sexual evaluation and maybe the psychiatric

evaluation while in prison. Thus, the evaluation tasks were appropriate.

FATHER’S ISSUE 3

¶53 Father argues the District Court abused its discretion in finding Father failed to

complete his treatment plan. A parent must completely comply with a treatment plan; partial

compliance or even substantial compliance is insufficient. D.V., ¶ 27. Father had great

opportunities–if not before, then after his incarceration–to obtain the evaluations, but he

failed to do so. Father utterly failed to obtain a chemical dependency evaluation and a

psychiatric evaluation. Assuming the psycho-sexual evaluations were inappropriate, the

District Court committed harmless error by including them. A.N., ¶ 41. Even discarding that

psycho-sexual evaluation task, since Father failed two necessary and integral treatment plan

tasks, the District Court did not abuse its discretion in finding that Father failed to complete

his treatment plan.

FATHER’S ISSUE 4

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¶54 Father also argues that the District Court erred in determining that the conduct or

condition rendering Father unfit was unlikely to change within a reasonable amount of time.

To determine this, in addition to the emotional and mental illness element of § 41-3-

609(2)(a), MCA (2001), a district court may take into account “a history of violent behavior

by the parent; . . . .” Section 41-3-609(2)(b), MCA (2001). In the only psychological

evaluation Father underwent, Dr. Peterson diagnosed him with Paranoid Personality Disorder

with elements of narcissism and antisocial orientation. He refused all further evaluations.

Father does not know his children’s birth dates and that ignorance shows that he is too

narcissistic to work to correct their developmental deficiencies if the children return to his

care.

¶55 In 1991, California courts convicted Father of exhibiting a firearm during a threatened

suicide. Taken together, these mental illnesses and violent tendencies pose a danger to the

children’s future welfare. The District Court did not commit clear error in determining he

was unlikely to change within a reasonable amount of time.

¶56 Affirmed.

/S/ W. WILLIAM LEAPHART

We concur:

/S/ PATRICIA O. COTTER
/S/ JAMES C. NELSON
/S/ JOHN WARNER

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/S/ JIM RICE

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