Matter of CAR

                                    No. 84-220
                   IN THE SUPREME COURT OF THE STATE OF PIONTANA

                                        1984




IN THE MATTER OF C.A. R. and P.J . R. ,
Youth in Need of Care.




APPEAL FROM:        District Court of the Thirteenth Judicial District,
                    In and for the County of Yellowstone,
                    The Honorable Diane G. Barz, Judge presidinq.


COUNSEL OF RECORD:
      For Appellant:
               W. Corbin Howard, Billings, Montana
      For Respondent :
               Harold Hanser, County Attorney, Billings, Montana
               Greg Mullowney, Deputy County Attorney, Billings
               Damon L. Gannett for Children, Billings, Montana



                                    Submitted on Briefs:   Sept. 6, 1984
                                                 Decided: December 20, 1384



Filed: i   t   ,    1t-j84
                    1Y




    -                                               --
                                   Clerk
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court

         This is an appeal from an order of the District Court
of    the Thirteenth Judicial District, Yellowstone County,
Montana, the Honorable Diane G. Barz presiding, that awarded
to    the   Department of    Social and        Rehabilitation Services
custody of the youths C.A.R.         and P.J.R. with the authority to
assent to adoption.
       There is one issue on appeal: whether the trial court
abused its discretion in terminating M.R.'s rights as natural
mother      to C.A.R.    and P.J.R.      M.R.       contended before         the
District Court that she had recovered from alcoholism and
that the recovery signalled her general rehabilitation.                     This
evidence      of   rehabilitation,       she        argued,      reduced     the
probativeness of her past omissions and neglect, and mandated
that the District Court award her custody.                       The District
Court heard testimony from M.R. and various other witnesses
and terminated the parental relationship.                  We affirm.      There
was substantial credible evidence supporting the District
Court order.
       The trail of events leading to this action began in
March of 1978.      The Yellowstone County office of the Montana
Department of Social and Rehabilitation Services (SRS), has
been assisting M.R., a single mother, since that time.                       SRS
had received reports that her son C.A.R., less than one year
old, was being neglected.            A social worker found that the
child was inadequately clothed and livinq in a dirty home
with M.R.     and his maternal grandmother, B. J.R.                 C.A.R. was
not   yet    crawling, and     the    back     of    his    head    was    flat,
indicating that he was spending a great deal of time on his
back and not being held or moved.                    He was listless and
non-responsive      to    stimulation.          M.R.       did     not    appear
intoxicated at that time.             The social worker offered M.R. the
services      of    a     SRS     homemaker,   and   nursing     and   medical
services.      M.R.      did not show much motivation to follow up
with these services, or initiative in caring for her child.
         On April 26, 1979, the social worker was notified that
M.R. had left C.A.R.             with a baby-sitter the day before, and
had not returned for him.                He was placed in an emergency
foster care home, and the next day with his grandmother,
B.J.R.,     after she contacted the social worker requesting
custody.      At that time, SRS sought and received Temporary
Investigative Authority.             C.A.R.    was again placed in foster
care in May, 1979, and from December 1979 urti-1 February 1980
because neither M.R.             nor B.J.R.    were able to care for the
child.     P.J.R. was born in 1980.
         On May 19, 1981, another social worker placed C.A.R.,
then almost age four, and P.J.R., nine months, in emergency
foster care after discovering the children unattended                      in
M.R.'s     home.        P.J.R.    was wet in a urine soaked crib and
C.A.R.    was playing in dog feces that was scattered about the
floor of the apartment.             The children were again placed with
B.J.R.    the next day at her request.
         From December 1980 until October 1981, SRS attempted to
provide M.R. with various community services, but she did not
utilize them.        After the children were returned in September
1981 to M.R. from the voluntary foster care placement, C.A.R.
was      enrolled    in     the    Billings    McKinley    Preschool    Early
Childhood Intervention program to help him develop skills
appropriate for a child his age.               An examination by a team of
professj.onals at the Development Assessment Clinic of the
Montana     Center        for    Handicapped    Children   had    discovered
significant developmental delays in C.A.R.
         The youth missed school thirty-two times that fall and
was terminated from the program for lack of attendance.                           The
coordinator of the program talked to M.R. several times about
this problem.         M.R.      explained that sometimes C.A.R.              was ill
and other times she was unable to wake up in time to ready
C.A.R.     to      catch    the    noon    bus    across      the    street.      The
coordinator did not observe M.R.                      to be intoxicated during
these conversations.
         In     November        1981,    another       social    worker      arranged
appointments and transportation to take P.J.R.                          to Shodair
Hospital in Helena for medical tests.                    Two appointments were
made and cancelled after M.R.                   failed to awaken in time to
prepare P.J.R.        for the trip.            When P.J.R. finally made it to
Shodair, Dr. Opitz observed that she was very dirty and
smelled       of    urine       and     that    she    was    very    passive     and
non-responsive during the examination.                       The back of her head
also appeared flat.
         In September of              1982, a teacher with           the McKinley
]?reschool Program assisted M.R.                  with a simple stimulation
program for P.J.R. after her pediatrician, Dr. Pat Sauer, had
discovered significant developmental delays.                          M.R.     showed
little enthusiasm for the program.                      The teacher noticed no
improvement in P.J. R. 's development while in M. R. 's custody,
but noticed great improvement after the child was placed in
foster care and the same program was implemented by                               the
foster parents.             A    clinical psychologist also noted that
P.J.R.'s        mental      functioning,         developmental        skills,     and
behavioral problems              all improved         substantially after the
child had been under foster care for several months.                           Her IQ
increased dramatically after being placed in foster care; a
fact attributed to increased stimulation.
          In October of       1982, the social worker placed both
children in foster care after Dr. Sauer diagnosed P. J.R. as
having suffered internal vaginal trauma, which apparently
occurred while        she was    left with M.R. Is brother.           M.R.

explained that the trauma was accidental, due to P.J.R.'s
falling down on a toy dump truck.             Dr. Sauerls opinion was
that the trauma was not accidental and that it was consistent
with sexual abuse.       On further questioning by Dr. Sauer, M.R.
mentioned that a man named Donny, who had been staying with
her      brother, might be      responsible for P.J. R. ' s        injuries
P.J.R.    was, at the time two years and two months old.
         Treatment    plans    for   M.R.   were    implemented     several
times.      Prior to December, 1981, M.R.          had agreed to a plan
which required her to get C.A.R.             to school every day, to
bathe the children, to obtain toys and medical assistance for
them, to keep the house clean, and to attend pa-renting class.
M.R.     failed    to meet    the    conditions of the plan         in any
sufficient way.        Another plan was a.greed to by M.R.           which
additionally required her to locate suitable housing, to
increase her employment skills, and to improve her parenting
abilities.        Again, she failed to meet the conditions of this
plan.      A third plan was adopted in November 1983, after the
SRS had      filed    for termination of parental rights.              The
petition for termination was abated when M.R. agreed to this
third plan.          It required her to attend the Galen State
Hospital     Alcohol    Rehabilitation      program,    and   to    attend
Alcoholics Anonymous as part of her after-care treatment.               It
again required her to obtain housing, obtain a job or seek
job skills, visit her children, and improve her parenting
skills.
         After completing the program at Galen State Hospital,
M.R.     moved to Missoula despite the social worker's request
that she come to Billings to be near her children.                      M.R. said
she went to Missoula to be away from the social setting in
Billings.       She found a job there but after a few months moved
back to Billings, losing her job in the process.                          At that
time, the SRS reinstated its request for termination of
M. R. ' s pa-rental rights.
       At the date of the hearing, M.R.                    had        successfully
abstained from alcohol since leaving Galen State Hospital.
She had      found an apartment, but was unable to keep the
children there, and had gone to work helping her mother do
janitorial work at a bar in Billings.             She presented evidence
that   corroborated the         fact    that    she had         abstained     from
alcohol since her release from Galen Hospital. She argued
that this fact was sufficient evidence of rehabilitation so
that she should be allowed another chance at caring for her
children, and that she was ready to make a serious and
sincere effort to do so.
       Dr.      Richard    Agosto,      a    clinical      psychologist        in
Billings, Montana, had examined M.R.,                 P.J.R.    and C.A.R.     He
and several social workers who had worked with M.R. concluded
that alcohol was not the primary cause of her neglect of her
children.       They all felt that M.R. was using alcohol as an
excuse for more fundamental problems.                 Her basic problem was
a lack of motivation and maturity to appreciate and cope with
the needs of her children.            These problems were not likely to
change     in   the   foreseeable       future, even           with    additional
therapy.        Dr.   Agosto    stated. that      if     the     children were
returned to M.R.      it was probable that her previous parenting
patterns would        be   repeated.         Dr. Agosto        and the social
workers      agreed   that     M.R.    had     been     given     an     adequate
opportunity to parent her children, and failed to do so.
       In regards to the children, Dr. Agosto, and the social
workers all testified that mental and emotional harm would
result   if   they     were    not   provided   with   some   stability,
consistency, stimulation, proper parenting, and attention to
their special needs.            Dr. Agosto predicted       that if the
children were returned to the non-stimulating environment,
that they could be expected to regress into their prior
conditions.         He concluded that the best interests of the
children were that they not be returned to the custody of
M.R.
       This   Court      has    reviewed     similar    district   court
determinations in the past.           In In Re Gore (1977), 174 Mont.
321, 570 P.2d 1110, we discussed our role in this review:
               ". . . This Court is mindful that the
              primary duty of deciding the proper
              custody of children is the task of the
              district court.        As a result, all
              reasonable    presumptions     as   to  the
              correctness of the determination by the
              district court will be made. Foss v.
              Leifer ,       Mont      . , 550 P.2d 1309,
              33 St.Rep. 528 (1976).         Due to this
              presumption of correctness, the district
              court's findings will not be disturbed
              unless there is a mistake of law or a
              find.ing of fact not supported by credible
              evidence that would amount to a clear
              abuse of discretion.       Solie v. Solie,
                   Mont
              142 (1977)
                              .."
                               , 561 P.2d 443, 34 St.Rep.

See also In the Matter of R.M.B.           (Mont. 1984), 689 P.2d 281,
41 St.Rep. 1925; In the Matter of M.D.Y.R.             (1978), 177 Mont.


       Section 41-3-101, MCA sets forth Montana.'~
                                                 policy in
regards to its youth.         It states, in pertinent part:
               (1) It i s hereby declared to be the
               I'

              policy of the State of Montana to:
               " (a) insure that all youth are afforded
              an   adequate          physical  and     emotional
              environment             to    promote       normal
              development;          ...
                   " (2) It is the policy of this state to
                   provide for the protection of children
                   whose health and welfare are or may be
                   adversely affected and further threatened.
                   by the conduct of those responsible for
                   their care and protection.     ..
                                                  "
That statute also emphasizes that the needs of youth are
presumably     best     met   in   a   family   environment,   see   also
Santosky v. Kramer (19821, 455 U.S. 745, 102 S.Ct. 1388, 71
L.Ed.2d 599.        But when the rights of a youth to an adequate
physical     and    emotional environment encounter demonstrated
acts of commission or omission by the parents which deprive
the youth of this environment, the best interest of the youth
is paramount and takes precedence over parental rights or
familial bonds.        In Re Bad Yellow Hair (1973), 162 Mont. 107,


          Before a court can award permanent custody of any child
to SRS with a termination of parental rights, it must make
findings in zccordance with sections 41-3-406, 607 and 609,
MCA   .    41-3-609, MCA      sets out the criteria that must be
evaluated by the Court prior to ordering a termination, which
in relevant part states:
                   "41-3-609.    Criteria for termination.
                   (1) The court may order a termination of
                   the parent-child legal relationship upon
                   a   finding    that   the   circumstances
                   contained in subsection (1) (a), (1)(b),
                   or (1)(c), as follows, exists:


                   " (1)(c) 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.
                   " (2) In determining whether the conduct
                   or condition of the parents is unlikely
               to change within a reasonable time, the
               court   must   enter  a    finding   that
               continuation of the parent-child legal
               relationship will    likely    result in
               continued abuse or neglect or that the
               conduct or condition of the parents
               renders the parents unfit, unable, or
               unwilling to give the child adequate
               parental   care.      In    making   such
               determinations, the court shall consider
               hut is not limited to the following:


               "(a) emotional illness, mental illness,
               or mental deficiency of the parent of
               such 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;


               "(g) any reasonable efforts by protective
               service agencies that have been unable to
               rehabilitate the parent.
               " (3) In considering any of the factors in
               subsection    (2)   in   terminating   the
               parent-child    relationship, the court
               shall give primary consideration to the
               physical,     mental,     and    emotional
               conditions and needs of the child. The
               court shall review and, if necessary,
               order an evaluation of the child's or the
               parent's physical, mental and emotional
               conditions."
         Before parental rights may be terminated, the State
must demonstrate by clear and convincing evidence that the
statutory criteria has been met.     Santosky v. Kramer, supra;
In the Ma.tter of T.J.D.      (Mont. 1980), 615 P.2d     212, 37
St.Rep. 1385; In the Matter of J.L.B.      (1979), 182 Mont. 100,


         With the requirements of section 41-3-609 in mind, we
turn to the record.        The first requirement is that the
children are youth in need of care.     The District Court held
that C.A.R.   and P.J.R. were, and this holding is supported by
substantial credible evidence.     A youth in need of care is
one who is "dependent, abused, or neglected" 41-3-102(1O),
IJICA.   An abused or neglected child is   ". . .   a child whose
normal physical or mental health or welfare is harmed or
threatened with harm by the acts or omissions of his parent
or other person responsible for his welfare" 41-3-102(2),
MCA.     Harm to a child's health or welfare encompasses many
aspects of the chil.dtscare and environment, and can result
when a parent "inflicts or allows to be inflicted upon the
child physical or mental injury" 41-3-102 (3)(a), MCA.                      The
type of inquiry contemplated by this part of the statue
includes "the commission or omission of any act or acts which
materially       affects      the    normal     physical   or       emotional
development of a youth."            In the Matter of M.R.L.     (1980), 186
Mont.    468, 608 P.2d        134, and mental injury includes the
identifiable      and      substantial     impa.irment of       a    child's
intellectual       or        psychological      functioning,"         section
41-3-102 (8), MCA.
        M. R . s failure to care and attend to C .A. R. and P.J. R.
caused     the   physical     problems    such as excessive          illness,
flattened    heads      and   uncharacteristic      listlessness.           The
greatest     injury     to    the   children, though, was           to    their
cognitive and emotional development.              Dr. Agosto, Dr. Sauer
and    other experts all testified that the poor care the
children were receiving had a detrimental effect on their
development.      When they were put in foster homes, they made
remarkable progress, and appeared physical1.y and emotionally
happier.     Dr. Agosto's opinion was that if the children were
placed back in the care of M.R.,              they could be expected to
regress.
        The second statutorily defined area of harm to a child
is when a parent "commits or allows to be committed a sexual
assault against the child              . . ."     41-3-102 (3) (b)   .      Dr.
Sauer's examination of P . J . R .        indicated that she had been
sexually abused while in the care of M.R. ' s brother.                   M.R. 's
explanation of the incident was clearly unsatisfactory.             It
was either an inexcusable attempt to protect someone who does
not deserve protection, or to deny the obvious.           The District
Court was   being     charitable when      it characterized M.R.'s
explanation as "lame."       We have considered similar situations
before, and have no difficulty in considering this type of
incident as evidence of neglect.          In In the Matter of A.J.S.
(Mont. 1981), 630 P.2d 217, 38 St.Rep. 947, we held:
               ". . .   Regardless of any actual proof
               that a parent intentionally inflicted
               injuries upon his or her child, the
               occurrence of serious and frequent, yet
               unexplained, physical injuries to the
               child is sufficient to properly bring the
               child within the statutory definition."
               630 P.2d at 221, 38 St.Rep. at 951.
      We provided further guidance in this area of the law in
the case of In the Matter of T.Y.K.        (1979), 183 Mont. 91, 598
P.2d 593, when we stated:
               ". . .  Section 41-3-101, et seq., Montana
               Code Annotated, grants to the District
               Court the ability to make a determination
               of neglect and abuse as to all children
               in a family based upon the policy that
               abuse of one child has a. detrimental
               effect     on   the    other    children's
               development." 183 Mont. at 36, 598 P.2d
               at 596.
      The   third     area    of   harm    specifically    listed   in
41-3-102(3),    MCA     is    in   subsection     (c),    encompassing
situations where the parent "causes failure to thrive or
otherwise fails to supply the child with adequate food or
fails to supply clothing, shelter, education or health care,
though financially able to do so or offered financial or
other reasonable means to do so."           We have held that this
provision "is broad enough to include emotional deprivation,
inadequate nutrition, and extreme and prolonged uncleanliness
of the child" In the Matter of A.J.S.,          630 P.2d at 221, 38
St.Rep. at 950.       The record is replete with instances of
inadequate     hygiene,       nutrition,       inattention     to     offered
financial and social support,         educational needs, and so on.
The District Court clearly had substantial evidence upon
which it based its decision that the children were abused and
neglected children.
      The     second    requirement       in     41-3-609,    MCA     is     in
subsection     (1) (c) (i); that    the       parent had     agreed    to an
approved    treatment     plan,    but     has    failed     to     meet    its
conditions.    Here, M.R. was given three opportunities, one in
1981, and two in 1983.        Her failure to meet the provisions of
the second plan brought about a prior termination proceeding
which was abated pending the third plan.             Her failure in the
third plan brought about this action.             This element was met.
      The     third    requirement       of    41-3-609,     MCA,     is     in
subsection (1) (c) (ii)   .    The court must find that the conduct
or condition of M.R.      that renders her unfit is unlikely to
change in a reasonable time.          Stability is a very important
factor in a child's development, and a child should not be
subjected     to   constantly     changing       temporary    foster       care
situations while waiting for their mother to possibly improve
her parenting skills.           In making this determination, the
court may consider the nature of the deficiency that renders
the parent unfit, 41-3-609 (2) (a), MCA, and any reasonable
efforts by protective agencies that have failed to bring
about rehabilitation, 41-3-609(2) ( g ) , MCA.          Along with this
finding, the court must also determine that the continuation
of the parent-child relationship will result in continued
abuse or neglect.      Again the record is replete with evidence
supporting the District Court's holding.                Dr. Agosto, the
examining psychiatrist, testified that M.R.'s                basic problem
was a lack of motivation towards her children, an inability
to comprehend their needs, and a lack of depth of maturity to
bring about the needed change.           He did not feel that M.R. was
able to change significantly in the near future.                           Other
social workers and experts testified to the same effect.
None of them felt that alcohol was the particular problem
with M.R., but rather that it was being used as a convenient
excuse.     A significant array of resources were enlisted to
help M.R., but she showed little interest.                  And finally, all
of those familiar with the children testified that they were
in dire need of stability and proper care soon.                   Further care
by M.R. was likely to negate any progress already made.                      The
best    interest     of      the    children   was        for    the    parental
relationship to be terminated.
        M.R.'s    sole argument on appeal is that the District
Court failed to consider the evidence of her rehabilitation.
M.R.    contends     that the District Court placed                    inordinate
emphasis on past events, and insufficient emphasis on the
fact that M.R. had abstained from drink for the year prior to
the hearing.
        First, we agree with M.R.            when she argues that the
purpose of termination actions is not merely                       to provide
children with a "better life."              It is, instead, designed to
allow the State to step in only when it is apparent that the
natural parent is failing, and is likely to continue to fail
to provide the children with a minimally adequate life.                       If
the children are being provided with the care and resources
minimally       adequate   to      their growth     and    development, the
family is primary, and the State has no business in the
matter.        It is only when the child's care fa-11s below that
which     is     minimally      adequate,    that    the        State    becomes
interested as a protector of the child's welfare.                            See
Santosky v. Kramer, supra.
        Secondly, 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
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      M.R.'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.
        M.R. cites several cases that support her argument that
parental rights cannot be terminated in the face of credible
evidence of rehabilitation.                In In Re Welfare of A.R.W.
(Minn. 1978), 268 N.W.2d             414, the Minnesota Supreme Court
upheld a district court order returning the children to their
natural mother from temporary foster care after it was shown
that,    over     the     course      of    six    years      she    had     been
rehabilitated.           In   this   case, M.R.        had    been   under    the
observation of the SRS from 1-978 until 1984, also a period of
six years.      Here, though, she did not show any progress until
the very end of that time, and then under the threat of the
previous termination petition.              The district court's opinion
that,    "They've       [the children] waited           long    enough."     was
justified.
        M.R. also cites In Re M. (Ohio 1979), 416 N.E.2d                     669,
and   State v.      Pogue     (Mo.    1955), 282 S.W.2d          582 for the
proposition that changed circumstances mandate the children's
return to the rehabilitated parent.               In both these cases, the
children were still in temporary foster care.                    The children
were returned to their parents--just as C.A.R.                       and P.J.R.
were returned to M.R. on several occasions from 1978 to 1984.
Here,    the   question   the   judge     faced. was   the    permanent
termination    of   parental    rights.      The   District     Court's
determination that M.R.'s       conduct was unlikely to change
significantly in the      future was supported by            substantial
evidence, and was not an abuse of its discretion.
        Affirmed.




We concur:

  P Justice aQ o
Chief
      ~ d    , h