No. 88-36?
IN THE SUPREME COURT OF THE STATE OF MONTANA
1989
IN THE MATTER OF
A.H., A.H., J.A.H.,
Youths in Need of Care.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis & Clark,
The Honorab1.e Henry Lnhle, Judqe presidinq.
COUNSEL OF RECORD:
For Appellant:
2. Mayo Ashley, Helena, Montana
For Respondent:
Hon. Marc Racicot, Attorney General, Helena, Montana
Dorothy McCarter, Asst. Atty. General, Helena
Mike ~ c ~ r a t h ,
County ~ t t o r n e ~ ,
Helena, Montana
Carolyn Clemens, Deputy County Atty., Helena
Randi Hood, Guardian Ad Litem, Helena, Montana
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Clerk
Mr. Justice R. C. McDonough delivered the Opinion of the
Court.
This is an appeal from a ruling of the District Court of
the First Judicial District, 1,ewi.s and Clark County,
terminating the mother's parental rights to J.H., a minor,
and committing T.H. and A.H., minors, to the long-term
custody of the State. We affirm.
The mother frames a single issue on appeal: Whether the
District Court erred in terminating the mother's parental
rights to J.H. and in granting long-term custody of T.H. and
A.H. to the State Department of Family Services.
This action is the latest in a series of dealings
between the State and the mother, who suffers from emotional
and psychological disturbances. The mother initially
relinquished custodv of her four minor children on a
voluntary basis, and they were placed in foster homes. In
March of 1986, the State petitioned the District Court for
temporary custody and protective services. After several
hearings on the petition, the court issued an order in June
of 1986, in which it found the children to be "youths in need
of care" and directed the Lewis and Clark County Department
of Family Services (Department) to develop a treatment plan.
The plan developed by the Department was designed to
reunite the children with the mother, and was divided into
three phases. The goal of the first phase was:
To restore [the motherl's mental/emotional health
and capability to a level sufficient to enable her
to conduct herself behaviorally in a manner which
would make it reasonable for mental health and
child protective service professionals to believe
her likely to function responsibly in the future as
an adult, parent and homemaker.
The goal of the second phase was for the mother to maintain
the mental and emotional stability established during the
first phase. The third phase would then attempt to restore
full custody of the children to the mother. The plan would
take approximately one year. During that time, the children
would remain in the custody of the Department.
The mother was making apparent progress under the first
two phases, and in the spring of 1987, the process of
reintegrating the children into the mother's home began.
However, the children soon exhibited behavioral problems. On
November 10, 1987, the State filed a petition seeking to to
terminate the mother's parental rights, or in the
alternative, for long-term custody of A.H., T.H. and J.H.
!the fourth child had since reached majority). On November
20, the State petitioned for temporary investigative
authority and protective services. The court granted the
latter petition, provided that the children remained in
foster care and had no contact with the mother until she had
completed a psychiatric evaluation.
A hearing on the State's petition to terminate parental
rights was held in January of 1988. The court heard evidence
concerning the state of the mother's mental health, as we1.l
as the health of the children. In March of 1988, the court
issued its order terminating the mother's parental rights as
to J.H., and granting long-term custody of A.H. and T.H. to
the State. This appeal followed.
I. Termination of Parental Rights
In our recent decision, Matter of J.L.S. (Mont. 1988),
761 P.2d 838, 45 St.Rep. 1842, we outlined the legal
standards to be applied to this type of case. We noted that
a parent's right to custody is a fundamental liberty
interest. The State may petition for termination of parental
rights, but it must show by clear and convincinq evidence
that the statutory criteria for such termination have been
met. J.L.S., 761 P.2d at 840.
The District Court views the evidence and decides
whether the State has met that burden. We will not disturb
the District Court's decision "unless a mistake of law exists
or the factual findings are not supported by substantial
credible evidence." J.L.S., 761 P.2d at 840-41 (citing In re
V.R. (Mont. 1987), 744 P.2d 1248, 44 St.Rep. 1838).
The termination of parental rights is governed by 5
41-3-609, MCA. Under this statute, parental rights can be
terminated only after three requirements are satisfied: (1)
the children have been adjudicated youths in need of care,
(2) a court-approved treatment plan has not been complied
with or has been unsuccessful, and (3) the conduct or
condition causing the problem cannot be rectified within a
reasonable time.
J.H., A.H., and T.H. were adjudicated youths in need of
care by the District Court's order of June, 1986. That order
was not appealed, and both sides agree that the first
requirement under the above statute was therefore met.
The District Court made a specific finding on the second
requirement; the court-approved treatment plan had not been
complied with due to disruption caused by the mother, and it
was therefore not successful. Counsel for the mother
disputes this finding on appeal. Counsel argues that
witnesses who testified about lack of compliance with the
plan gave inconsistent testimony on some points, and were in
conflict with testimony given by other witnesses.
In addition to the mother, nine witnesses testified
before the District Court. Joe Baumgardner, the Department
social worker who submitted the treatment plan approved by
the court, testified about his concerns regarding behavioral
problems (e.g. , defiance and aggressiveness) that resurfaced
in the children after each visit with the mother during the
second phase of the plan. Baumgardner had become worried
that even if the mother were able to gain some control of her
own problems, she might not be able to deal with the
children. He also testified about actions by the mother in
violation of the plan: her association with known and
suspected felons (one of whom had been convicted of sexually
deviant conduct with children) that brought the children into
contact with these people; her interference with the
children's schooling; her arrest for assaulting one of the
children; and other conduct Baumgardner characterized as
"bizarre," causing him to fear for the safety of the children
in the mother's home.
Sandi Ashley, a private therapist who has treated the
mother and two of the children at various times since 1982,
testified about the mother's consistent refusal to take
prescribed medication and her threatening behavior toward
Ashley and personnel in Ashley's office. Ashley also
testified about the mother's unpredictable behavior toward
the children, which had caused them to distrust her, and
about the children's complaints that the mother was not
complying with the treatment plan.
There was also testimony by Dr. George Cloutier, who has
diagnosed the mother as being a manic depressive in a
hypomanic stage. Dr. Cloutier also testified about having
difficulty in getting the mother to take prescribed
medication and about the mother's difficulty in benefitting
from therapy.
The State also presented documentary evidence concerning
the behavioral problems that Raumgardner had noticed in the
children, which stemmed from their association with their
mother. This evidence described behaviors such as
uncontrolled urination, aggression and threats to burn down a
foster home. The children continue to exhibit anxiety,
identity disorders, depression and possible suicidal
tendencies. Two of the children have been recommended for
extensive therapy in order to address emotional and
personality disorders.
The District Court's finding as to the second statutory
requirement was supported by substantial credible evidence.
The record shows that the mother failed to comply with the
treatment program. The continuing problems exhibited by the
mother and the children are clear evidence that the plan has
not been successful.
The court also found that the third requirement was
satisfied; it was apparent that the conduct or condition
rendering the mother unfit was unlikely to change within a
reasonable time. The court made a specific finding that
continuation of the parent-child Legal relationship would
result in continued abuse or neglect of the children.
Counsel for the mother also disputes this finding, and
first points out that Dr. Cloutier testified it would take
three or four months to correct the mother's condition with
proper therapy. This, it is argued, is a reasonable time.
However, Dr. Cloutier testified that the three- or four-month
period would be a minimum time frame for stabilizing the
mother. It would then be necessary to assess her situation
and begin a course of treatment. Dr. Cloutier also
reiterated the problems encountered in getting the mother to
take medication. This could lengthen the stabilization
period significantly.
The mother's counsel also argues that the District Court
ignored the statutory considerations to be used in making
this finding. Section 4 1 - 3 - 6 0 9 ( 2 ) , MCA, lists factors to be
considered before finding that continuation of the
parent-child relationship would be detrimental. These
factors include an emotional or mental illness of the parent,
a history of violent behavior by the parent, and any
reasonable efforts by protective service agencies that have
been unable to rehabilitate the parent.
The evidence discussed above shows these factors to be
present in this case. The court also noted the mother's
persistent and perhaps worsening condition, which was evident
from her behavior at the hearing. The mother showed a lack of
coherence and control to the point of screaming, pounding her
fists and defecating in her pants. The District Court's
finding on the third statutory requirement is supported by
substantial credible evidence.
11. Long-Term Custody
The District Court granted custody of T.H. and A.H. to
the State until such time as they reach the age of 18, or
until further order of the court. The court's authority to
do so was derived from S 41-3-406, MCA. Under this statute,
once a youth is found to be abused, neglected or dependent,
custody of that youth can be transferred to the State. F7e
will not overturn such a ruling absent a clear showing of
abuse of discretion. In re Moyer ( 1 9 7 7 ) , 173 Mont. 208, 567
P.2d 47. Given the unfortunate circumstances resulting from
the mother's emotional and psychological difficulties, it is
clear that granting custody of these two youths to the
Department was not an abuse of discretion.
The District Court applied the correct law to the facts
before it, and its findings of fact are supported by
substantial credible evidence. We therefore affirm the
court's order.
Justice
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We Concur: D