NO. 34-234
IN THE SUPNME COURT OF THE STATE OF MONTANA
1984
IN THE MATTER OF
R.M.B., Youth in Need of Care.
APPEAL FROM: District Court of the Twelfth Judicial District,
In and for the County of Hill,
The Honorable Chan Ettien, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Morrison, Barron & Young; Dennis G. Loveless,
Havre, Montana
For Respondent:
David G. Rice, Deputy County Attorney, Havre,
Montana
Waldo Spangelo, Havre, Montana
Submitted on Briefs: July 27, 1984
Decided: October 16, 1984
Filed:
acr L 384
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Clerk
Mr. Justice TJ. C. Gulbrandson delivered the Opinion of the
Court.
L. R . appeals from an order of the District Court of
the Twelfth Judici a1 District, Hill County, terminating the
parent-child relationship between L . B. and R. M. R. and
awarding permanent custody of the youth to the Montana
Department of Social and Rehabilitation Services. We affirm
the order of the District Court.
L. B. the appellant, is the natural mother of R. M. B.
who was born on January 13, 1982. F. M. B.'s father has not
been identified. In January of 1982, Anna Mae Fischli, a
social caseworker for the Hill County Welfare Department,
began investigating the appellant ' s ability to properly care
for R. M. B. The investigation was prompted by a Health
Department report that R. M. R. was a high risk child due to
low birth weight, and the mother's difficulty with alcohol
and inability to care for R. M. B. From January to November
of 1982, the appellant's problem with alcohol and drug abuse
worsened, culminating in two attempted suicides and
hospitalization for treatment of delirium tremens in the fal-1
of 1982. On September 22, 1982, the Hill County Welfare
Department petitioned for a District Court order requiring
the appellant to undergo treatment for mental i1-lness and
alcoholism, and requiring that R. M. B. be temporarily pla.ced
in a foster home. The petition was granted on November 23,
1982, and R. M. B. was placed in a foster home. The foster
parents and social workers noted severe motor, social and
cognitive Zevelopmental problems in R. M. R . At the age of
eight months the child could not sit up or hold the head up
and the child's arms and legs were rigid. The back of R. M.
B. 's head was flat and bald. R. M. B. would not make eye
contact, would not respond to affection, and. would flinch
when anyone raised a hand in the vicinity of the child. R.
M. B. never cried, and had a poor appetite.
While R. M. B. was in the foster home, appellant was
being treated at Warm Springs State Hospital for serious
mental illness. She was released from Warm Springs on March
17, 1983, and returned to Havre, Montana. During April and
May, appellant was hospitalized. on numerous occasions as a
result of alcohol and drug abuse and severe depression.
On April 29, 1983, a petition was filed requesting that
temporary custody of R. M. B. he awarded to the Department of
Social and Rehabilitative Services for a period of six
months. Following a hearing on the petition, an order
awarding temporary custody was issued on May 19, 1983.
On May 3, 1983, appellant signed and agreed to the
terms of a ninety day treatment plan, the eventual goal of
which was to return custody of R. M. B. to the appellant.
The treatment plan contemplated therapy for appellant's
mental illness and alcoholism, as well as training to help
appellant deal with her child's developmental problems. The
treatment plan specifically stated that failure to comply
with the plan could result in termination of appellant's
parental rights. The District Court approved the treatment
plan on May 6, 1983. The evidence indicated that the
appellant failed to compl-y with the treatment plan.
In the period between September 7, 1982 to January 4,
1984, the appellant was hospitalized for a total of 220 days:
112 days at Northern Pontana Hospital and 108 6ays at Warm
Springs State Hospital, the Chemical Dependency Center in
Gl.asgow, Montana, and the Midwest Challenge Program in
Minneapolis, Minnesota. Appellant's hospitalizations were
mainly due to her problems with depression and suicidal
tendencies, alcohol abuse, and drug overdoses. The latest
hospitalization occurred on December 25, 1983, and was caused
by a drug overdose which was apparently another attempt by
appel-lant to commit suicide.
On September 21, 1983, Hill County filed a petition for
permanent legal custody of R. M. B. and for termination of L.
B.'s parental rights. A quardian ad litem was appointed for
R. M. B. and a hearing on the petition was held on January
27, 1984, and February 28, 1984. Expert medical testimony at
the hearing indicated that the appellant had a borderline
personality with suicidal tendencies and major depressive
illness. '
Other testimony indicated that appel-lant s mental
illness and alcoholism were not conducive to a stable
mother-child relationship, and that appellant's mental
illness was unlikely to change within a reasonable time.
On March 26, 1984, the District Court issued its
findings of fact and conclusions of law, along with an order
terminating L. Be's parent-child relationship with R. M. B.
Custody of the child was awarded to the Montava Department of
Social and Rehabilitation Services, which was authorized to
consent to the adoption of R. M. B. L. B. appeals from the
District Court's order of March 26, 1984.
The appellant's first contention is that the District
Court committed reversible error by admitting hearsay
evidence during the hearing on the petition for legal custody
and termination of parental rights.
In particular, appellant argues that in four instances
during the direct examination of the State's principal
witness, hearsay material was admitted over proper objection.
One of these instances involved the recollection by Anna Mae
Fischli of statements made by out-of-court declarants
regarding the paternity of the infant, R. M. B. The court
admitted this testimony over objection specificall-y to show
that Fischli, a social worker for the Hill County Welfare
.
Department, had made an effort to locate the father. This
effort was necessary in order to determine if the infant fell
within the definition of "Indian child" under the Indian
Child Welfare Act. Thus the out-of-court sta.tement was not
offered to prove the truth of the matter asserted, i.e.
paternity, and was admissible. Rule 801(c), M.R.Evid.
As to the three remaining hearsay objections, we agree
with the appellant that the admitted statements constituted
hearsay under Rule 801 (c), M.R. Evid. , and were therefore
inadmissible under Rule 802, N.R.Evid.
However, we will not reverse the District Court where,
as here, the error was harmless. Rule 61, M.R.Civ.P. The
objectionable statements were amply corroborated by competent
evidence entered into the record without objection. The gist
of the three hearsay statements was that: (1) appellant was
drunk while caring for her child; (2) appellant failed to
meet a requirement of the court-approved treatment plan; and
(3) the infant R. M. B. was rigid, unresponsive, and would
not cry. Anna Mae Fischli, who was the chief social worker
involved with L. B. and R. M. B., testified that in the
course of her casework she had observed L. B. intoxicated
while caring for R. M. B. Also, L. B. had reported to
Fischli that she had struck the child in order to quiet R. M.
B. while she was enduring hangovers. L. B. herself testified
that she did not want her child around during those times
when she was hungover. And the four medical doctors who
testified all recounted L. B.'s long history of alcoholism,
which extends back at least to her pregnancy.
Fischli and her supervisor from the Hill County Welfare
Office, Judith Rominger, both testified that L. B. had failed
to meet the requirements of the court approved treatment plan
despite their direct and continuing supervision. And
Fischli, Barbara LaBrie (home trainer, Child and Family
Services), and Jeanette Matter (foster parent) all testified
that R. M. B. was rigid, unresponsive and developmentally
retarded. Fischli and Matter testified that R. P'1. E. would
not cry in order to call attention to personal needs.
We find that admission of the three hearsay statements
did not affect the substantial. rights of the appellant
because the testimony was cumulative. Rule 61, M.R.Civ.P.;
Thompkins v. Fuller (Mont. 1983), 667 P.2d 944, 953, 40
St.Rep. 1192, 1203.
The appellant's remaining specifications of error
basically turn on the adequacy of the findings of fact and
conclusions of law of the trial court. Specifically,
appellant maintains that:
(1) The District Court abused its discretion in relying
on the medical testimony of Doctors Lawrence Stineford and
Lawrence Jarvis, while disregarding that of Dr. Brian Earle,
Jean Lawton, a psychiatric nurse, and Pat Barron, an
ex-employee of the Havre Mental Health Center.
(2) The District Court relied too heavily upon the
respondent's proposed findings of fact and conclusions of
law.
(3) The evidence is
. insufficient to support the
findings and conclusions of the District Court, particularly
the court's conclusion that the statutory criterja for the
termination of a parent-child relationship in this case had
been met.
Although there is conflicting expert testimony on the
record regarding L. B. 's fitness as a parent, "the
credibility of witnesses and the weight given their testimony
are matters exclusively within the province of the District
Court in a nonjury case. " Como v. Rhines ( ~ o n t .1.982), 645
P.2d 948, 951, 39 St.Rep. 932, 935. See also Speer v. Speer
(Mont. 1982), 654 P.2d 1001, 1003, 39 St.Rep. 2204, 2206;
Harris v. Harris (Mont. 1980), 616 P.2d 1099, 1102, 37
St.Rep. 1696, 1699. And while it is true that this Court has
discouraged trial courts from excessive reliance on the
proposed findings of fact and conclusions of law of the
prevailing party, in Kowis v. Kowis (Mont. 1983), 658 P.2d
1084, 1088, 40 St.Rep. 149, 154, we stated the rule that:
"where ...findings and conclusions are
sufficiently comprehensive and pertinent
to the issues to provide a basis for
decision, and are supported by the
evidence, they will not be overturned
simply because the court relied upon
proposed findings and conclusions
submitted by counsel."
A perusal of the trial court's findicgs and conclusions
in this case reveal them to be comprehensive and pertinent to
the issues presented to the court. They are in fact more
extensive than the proposed. findings and conclusions of the
respondent and the changes made by the court are clearly
substantive. Upon review, we conclude that the trial court
has carefully considered all. the relevant facts and issues
involved, and had a solid basis upon which to make its
decision.
The remaining question is whether the evidence is
sufficient to support the findings and conclusions of the
District Court. Specifically, appellant argues that the
evidence is insufficient to support the trial court's finding
that (a) the appellant failed to comply with a court approved
treatment plan, and (b) the appellant's condition which
rend-ered her unfit to be a parent is unlikely to change
within a reasonable time. Both findings are required in
order for a district court to terminate a pzrent-child
relationship, under section 41-3-609(1) (c), MCA.
This Court has long adhered to the standard of review
which provides that we will consider only whether substantial
credible evidence supports the findings and conclusions of
the trial court. Jensen v. Jensen (Mont. 1981), 629 P.2d
765, 768, 38 St.Rep. 927, 930. The findings of the court
will not be set aside unless clearly erroneous. M.R.Civ.P.
52(a), Nunnally v. Nunnally (Mont. 1981), 625 P.2d 1159,
1162, 38 St.Rep. 529, 532.
A survey of the hearing transcript indicates that Anna
Mae Fischli drew up a 90 day treatment plan which was
approved by the District Court on May 6, 1983. The plan was
discussed with and explained to the appellant, and appellant
was made aware that failure to comply with the plan could
result in a termination of parental rights. This term was
specifically included in the plan. The plan required
appellant to obtain regular therapy for her deteriorating
mental condition as well as regular treatment for her chronic
alcoholism. Appellant was required to meet regularly with a
Family and Children Services caseworker, Barbara LaBrie, in
order to develop her skills as a parent. She was also
required to meet regularly with her Hill County Welfare
Department caseworker, Anna Mae Fischli, in order to monitor
progress under the plan.
Fischli and her supervisor, Judy Rominger, testified
that appellant had substantially ignored the plan during its
first month of operation. Upon their urging, appellant
registered in the Midwest Challenge Program in Minneapolis
for treatment of alcoholism. Appellant dropped this program
after three days, but remained out of contact with Fischli
for most of the second month of the plan's operation.
Appellant began a local Alcoholics Anonymous program, but
quit because in appellant's words "I don't get into that."
The testimony of Fischli, Rominger and Barbara LaBrie
indicate that regular treatment under the plan was severely
hindered by appellant's inability or refusal to attend
scheduled appointments.
Medical testimony presented by Doctors Jzrvis and
Stineford established that appellant was mentally ill with
borderline personality, severe depression and strong suicidal
tendencies. Both doctors recalled appellant's history of
drug and alcohol abuse. Both doctors are qualified
psychologists, and both felt that appellant's condition was
Likely to persist over time. Dr. Jarvis felt it would be a
mistake to return the infant, R. K . B., to appellant's care
due to her inability to resolve her problems with mental
illness and drug and alcohol abuse. Jarvis also felt that
the infant, R. M. B., was at a developmental stage that
required a stable environment, which appellant could not
provide. In the opinion of Dr. Jarvis, appellant simply
lacked the necessary child-rearing skills to raise an infant
properly.
Reviewing the evidence in a light most favorable to the
respondent, we concl-ude that the findings and conclusions of
the District Court are supported by substantial credible
evidence. Burlingame v. Mar-jerrison (Mont. 1983) , 665 P. 2d
13.36, 40 St.Rep. 1005; Wallace v. Wallace (Mont. 19831, 661
P.2d 455, 40 St.Rep. 430. We therefore affirm the decision
of the District Court.
We concur:
d
Chief Justice