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                                                              No. 01-138

                   IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                           2001 MT 217N



                                              IN THE MATTER OF P.M.B.,

                                                  A Youth in Need of Care.

                 APPEAL FROM: District Court of the Fourteenth Judicial District,

                                         In and for the County of Musselshell,

                             The Honorable Roy C. Rodeghiero, Judge presiding.

                                                  COUNSEL OF RECORD:

                                                           For Appellants:

                        Bradley B. Parrish, Lewistown, Montana (Natural Mother)

                                Kevin Gillen, Billings, Montana (Natural Father)

                                                    For Guardian Ad Litem:

                                        Robert W. Snively, Roundup, Montana

                                                          For Respondent:

 Mike McGrath, Montana Attorney General, Jim Wheelis, Assistant Montana Attorney
General; Catherine L. Truman, Musselshell County Attorney, Roundup, Montana, Linda
    Hickman, Special Deputy Musselshell County Attorney, Harlowton, Montana

                                           Submitted on Briefs: June 29, 2001

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                                                 Decided: November 6, 2001

                                                                   Filed:

                              __________________________________________

                                                                    Clerk



Justice Patricia O. Cotter delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal Operating
Rules, the following decision shall not be cited as precedent but shall be filed as a public
document with the Clerk of the Supreme Court and shall be reported by case title,
Supreme Court cause number and result to the State Reporter Publishing Company and to
West Group in the quarterly table of noncitable cases issued by this Court.

¶2 The natural mother and father of P.M.B. both appeal the termination of their parental
rights and grant of permanent custody to the Department of Public Health and Human
Services of the youth, P.M.B., by the Fourteenth Judicial District Court, Musselshell
County.

¶3 The sole issue before us is whether the District Court abused its discretion in
terminating both the parents' parental rights. We affirm.

                                               FACTUAL BACKGROUND

¶4 P.M.B. is approximately 4 years old, and has been in the protective custody of the
Department of Public Health and Human Services (Department) since being
adjudicated a youth in need of care on May 26, 1998. After two years of working on
several treatment plans, P.M.B.'s natural mother (J.B.) and father (P.B.) jointly
moved the District Court to reinstate a visitation schedule. The District Court
scheduled a hearing for June 22, 2000.

¶5 At the hearing, the State presented witness testimony of P.B.,'s female relatives,
including his daughter, sister, and two nieces. Each of these witnesses, now all adults,
testified that P.B. sexually molested them when they were between the ages of four and

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seven. The District Court found the witnesses to be credible and the evidence compelling,
and concluded it was more likely than not that P.B. was a sexual offender. The court held
there was probable cause to believe P.M.B., who was approaching the age of four, may be
in danger of being abused or neglected, and ordered the Department to prepare an
amended treatment plan that addressed P.B.'s sexual offender evaluation.

¶6 Following a psychosexual evaluation of P.B., the Department proceeded with
termination, and did not amend P.B.'s treatment plan. The State asserted termination of
parental rights was appropriate because: neither P.B. nor J.B. successfully completed their
respective treatment plans; P.B.'s total denial of any sexual abuse meant he could not be
treated and thus there was a moderate chance P.B. would re-offend; and J.B.'s refusal to
believe or address any of P.B.'s history of sexual abuse indicated she could not properly
protect P.M.B.

¶7 On November 16 and 17, 2000, the District Court held a hearing on the State's petition
to terminate parental rights and for permanent custody. During the hearing, community
social worker, Peggy Gillispie (Gillispie) testified as to her involvement with P.M.B.'s
parents, and the progress with their respective treatment plans. Between the time P.M.B.
was first adjudicated a youth in need of care and the date of the termination hearing, J.B.
went through five treatment plans and addenda, while P.B. had four treatment plans and
addenda.

¶8 We first address J.B.'s situation. Some of the re-occurring issues and goals J.B. was to
work on throughout her treatment plans, included: addressing drug and alcohol
dependency issues; establishing a stable, safe, and health-promoting home environment;
demonstrating an ability to identify and meet the emotional needs of her child; and
demonstrating an ability to provide an emotionally nurturing environment for her child.

¶9 In regards to her first treatment plan, J.B. failed to complete the following tasks: follow
through with the recommendations from her psychological evaluation; complete an
inpatient treatment program for chemical dependency; demonstrate any understanding of
how her behavior and choices put her child at risk; develop an understanding of the
concept of neglect and how it affects her child; establish and maintain a stable living
environment (the couple lived in a vehicle until the last ten days of the treatment period);
and maintain employment (J.B. was unemployed for all but five days of treatment period).
Gillispie concluded J.B. was unsuccessful in her first treatment plan.



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¶10 J.B. was given two addendums to the first plan. The first addendum allowed J.B. to
address her chemical dependency through an outpatient program, but Gillispie testified
there was not enough time to assess J.B.'s success. J.B. was also asked to address the
aggressive and loud behaviors she exhibited towards professionals working on her case.
The second addendum concerned visitation guidelines and Gillispie testified J.B. seemed
to understand and follow through with the guidelines and rules regarding behaviors, noting
that J.B. acted more appropriately during visits.

¶11 Under her second treatment plan, J.B. completed intensive outpatient therapy,
maintained a home for a very short time, appeared to remain sober, obtained a requested
psychological evaluation, and worked on parenting issues. However, at the end of the
period, J.B. and P.B. moved into a shelter and then left the shelter without notifying
Gillispie. J.B. was employed for one of the three months during this treatment plan period.
Gillispie testified that although J.B. made significant progress, Gillispie did not believe J.
B. had substantially complied with this treatment plan. She noted J.B.'s inability to
understand how her decisions impacted her and her child, or the importance of the housing
requirements. Overall, Gillispie testified J.B. had not made sufficient progress to consider
the plan substantially complied with, but there was enough progress to continue working
with her, concluding this plan "was partially complied with, but not substantially done."

¶12 When temporary legal custody was extended for six months, J.B. entered into her
third treatment plan. This plan's main purpose was to continue J.B.'s psychological
treatment. Although J.B. completed part of the recommendations from her psychological
evaluation, she failed to complete the requested documentation of her treatment for
depression. J.B. remained sober, attended AA meetings and most of the therapy
appointments for P.M.B. However, J.B. did not develop insight into problems concerning
neglect and risk issues with her child, such as providing appropriate housing, adequate
food, or maintaining employment. According to Gillispie, both P.B. and J.B. did not
understand how to plan for a child's needs, such as providing housing or necessary food. J.
B. also did not understand that living in a camper, even for a short time, was not
appropriate for a child. Gillispie testified as to continued concerns with employment,
housing, meeting the child's needs, and making and keeping regular appointments.
Gillispie continued, "[t]here was substantial progress made, but . . . it did not meet the
requirements in order to say the child was no longer at risk." J.B. and P.B. "did not
substantially comply enough that we would dismiss [the need for continued help]. There
was [sic] too many concerns still out there."



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¶13 Gillispie also reviewed P.B.'s progress in his treatment plans. Some of the goals of P.
B.'s first treatment plan included: developing an understanding of parental responsibilities,
including the need to provide for the emotional and physical needs of his child (i.e., shelter
and employment); understanding the relationship between neglect and its effect on his
child; providing a stable, safe, and health-promoting home environment; demonstrating an
ability to protect P.M.B. from unsafe behavior of others, including J.B.; and demonstrating
an ability to work cooperatively with the professionals involved in the case.

¶14 Gillispie noted the following in regards to P.B.'s progress in his first treatment plan: P.
B. had not demonstrated any understanding of the issues and concerns as to his child's
safety, or how his choices put P.M.B. at risk, nor did he demonstrate an understanding of
what effect neglect has on his child; P.B. failed to comply with requests to complete anger
assessment, or provide documentation that he completed a court order for counseling
arising from a partnership assault conviction; he and J.B. lived in a pickup shell camper
most of the treatment period; P.B. did not maintain employment, working only three days
total in a temporary labor position; and P.B. failed to maintain regular contact with his
social worker. Gillispie believed P.B. complied with such goals as staying drug and
alcohol free and attending a parenting course.

¶15 P.B. was also given an addendum to his first treatment plan, which addressed specific
visitation issues, such as controlling angry outbursts and appropriately interacting with his
child and the professionals involved in this case. Gillispie testified that once P.B.
understood why he should act more appropriately, he was able to comply with the
addendum.

¶16 P.B.'s next treatment plan addressed the same issues as previous plans. Gillispie
testified that P.B. did obtain a psychological evaluation as requested and signed the
necessary releases. According to Gillispie, P.B. was not consistent in his ability to
understand the situation, such as how to resolve problems regarding housing or putting his
child at risk. P.B. did not complete outpatient treatment for chemical dependency, but did
make some efforts at attending AA. Gillispie testified that P.B. made progress, but that he
did not substantially maintain the progress to comply with the treatment plan.

¶17 In his final treatment plan, P.B. was to continue and complete the recommendations in
the psychological evaluation. P.B. failed to complete outpatient treatment for chemical
dependency, but did work on co-dependency issues in counseling and appeared to increase
his knowledge in parenting classes. However, P.B. continued in his inability to understand


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how his choices place the child at risk of harm and the importance of providing a healthy
environment. According to Gillispie, P.B. was not able to communicate what neglect is or
how it might impact his child. During this time, P.B. and J.B. changed residences several
times (e.g., living at a dairy, a shelter, and a trailer) and were later homeless for a short
period of time. Although P.B. worked at developing some skills through vocational
rehabilitation and Gillispie was told P.B. had some work associated with that training,
Gillispie did not receive any documentation that P.B. was employed. Gillispie testified
that, "P.B. made some definite efforts . . . even more than he had in the past, but it did not
meet the goals of the agreement which was to significantly reduce the risk of the child
being at harm if she was returned."

¶18 At the hearing to terminate parental rights, the District Court also heard testimony
from a clinical psychologist who evaluated both P.B. and J.B. She noted that P.B.'s IQ
range of 60-70 made it difficult for him to be able to parent a child independently and
affected his behavior, anger control, problem solving, ability to learn new information and
ability to make parental decisions. As to J.B., the psychologist questioned J.B.'s ability to
parent on her own as well, and noted that J.B. would not be able to protect P.M.B. from P.
B. if the allegations as to P.B.'s sexual abuse were true. The psychologist recommended
permanency for P.M.B.

¶19 A clinical social worker, who performed the psychosexual evaluation of P.B., testified
that in his opinion, the allegations of sexual abuse were: fairly consistent in terms of what
was described as the sexual offending behavior; supported by credible witness testimony;
corroborated by other victims; and also consistent in regards to common cases of sexual
abuse. The social worker testified that P.B. was most likely a sexual abuser and was at a
moderate level of probability to re-offend. When asked about treating P.B., the social
worker testified that P.B.'s absolute denial makes treatment extremely difficult, and that if
P.B. did enter treatment, it could last from three to five years.

¶20 During the hearing, the court took judicial notice of the evidence and testimony from
earlier hearings, including the June 22, 2000 hearing concerning allegations of P.B.'s
sexual abuse. At the conclusion of the hearing, the District Court terminated the parental
rights of P.B. and J.B. and awarded custody of P.M.B. to the Department. Each parent
appeals the District Court's ruling.

                                                 STANDARD OF REVIEW



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¶21 We review a district court's decision to terminate parental rights to determine whether
the court abused its discretion. In re J.W., 2001 MT 86, ¶ 7, 305 Mont.149, ¶ 7, 23 P.3d
916, ¶ 7 (citation omitted). We review a district court's specific findings to determine
whether they are clearly erroneous. In re J.W., ¶ 7. A finding of fact is clearly erroneous if
it is not supported by substantial evidence, if the court misapprehended the effect of the
evidence or if, upon reviewing the record, this Court is left with the definite and firm
conviction that the district court made a mistake. In re J.W., ¶ 7. In reviewing a district
court's conclusions of law, we determine if they are correct. In re S.M., 1999 MT 36, ¶ 15,
293 Mont. 294, ¶ 15, 975 P.2d 334, ¶ 15 (citation omitted).

¶22 In determining whether to terminate parental rights, "the district court is bound to give
primary consideration to the physical, mental, and emotional conditions and needs of the
children," thus "the best interests of the children are of paramount concern in parental
rights termination proceeding and take precedence over the parental rights." In re J.W., ¶ 8
(citation omitted).

¶23 We have repeatedly recognized that "a natural parent's right to care and custody of a
child is a fundamental liberty interest, which must be protected by fundamentally fair
procedures." In re E.W., 1998 MT 135, ¶ 12, 289 Mont. 190, ¶ 12, 959 P.2d 951, ¶ 12
(citation omitted). A district court must adequately address each applicable statutory
requirement before terminating an individual's parental rights. In re E.W., ¶ 12. The party
seeking to terminate parental rights "must present clear and convincing evidence to the
district court that the prerequisite statutory criteria for termination have been met." In re E.
W., ¶ 12. Further, we will presume that a district court's decision is correct and will not
disturb it on appeal unless there is a mistake of law or a finding of fact not supported by
substantial evidence that would amount to a clear abuse of discretion. In re E.W., ¶ 14.

                                                            DISCUSSION

¶24 Did the District Court abuse its discretion in terminating both the parents'
parental rights?

¶25 A district court may terminate a person's parental rights to a child if it finds that the
child has been adjudicated a youth in need of care, an appropriate court-approved
treatment plan has not been complied with or has been unsuccessful, and the conduct or
condition rendering the parent unfit is unlikely to change within a reasonable period of
time. Section 41-3-609(1)(f), MCA.


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¶26 Neither P.B. nor J.B. contest that P.M.B. was adjudicated a youth in need of care. Nor
do the parents challenge the appropriateness or reasonableness of their treatment plans.
Rather, P.B. and J.B. appeal the District Court's conclusion that treatment plans for both of
them were unsuccessful, each contending they substantially complied with the treatment
requirements. In addition, P.B. asserts that the District Court abused its discretion by
terminating his parental rights without giving P.B. an opportunity to address treatment for
allegations of sexual abuse.

¶27 In its findings of fact, the District Court found that the treatment plans were
appropriate, but concluded they were not completed and thus could not be deemed
successful. The court further found the evidence as to P.B.'s sexual abuse was compelling
and that it is more likely than not P.B. is a sexual offender. The court found there is a
moderate chance P.B. will re-offend and that P.B. cannot be treated due to P.B.'s denial of
any sexual offenses. The court also found J.B. unable to protect P.M.B. from P.B. due to
her complete denial of the allegations. The court found protection and permanency for the
child to be paramount. In its conclusions of law, the District Court expressly gave primary
consideration to the physical, mental, and emotional condition and needs of the child.

¶28 The record before us contains substantial evidence supporting the District Court's
finding that both parents failed to successfully complete their treatment plans. The fact
that P.B. and J.B. were able to complete some of their treatment goals does not conflict
with the District Court's ruling that the treatment plans were unsuccessful. We have
established that a treatment plan can be unsuccessful even when the tasks are completed.
In re S.M., ¶ 25 (citation omitted). Improvements and well-intentioned efforts do not
establish either the completion or success of a treatment plan. In re S.M., ¶ 31 (citation
omitted).

¶29 Gillispie testified that although J.B. and P.B. made some progress in their treatment
plans, overall there was not enough progress to demonstrate P.M.B. would not be at risk if
returned to her parents. At the end of J.B.'s last treatment period, Gillispie continued to
have concerns about J.B.'s ability to plan for and meet the child's needs, such as providing
housing and food and maintaining employment. In addition, the clinical psychologist
questioned J.B.'s ability to parent on her own, and noted that since J.B. denied P.B.'s
sexual abuse history, J.B. would be unable to protect P.M.B. from P.B. Gillispie had
similar concerns with P.B.'s ability to parent, noting his continued inability to understand
how his choices place the child at risk and the importance of providing a safe and stable
home environment. P.B. was unable to understand the concept of neglect, did not maintain

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employment, and in the opinion of the clinical psychologist, was not capable of parenting
on his own. In addition, his complete denial of all sexual abuse history made treatment
extremely difficult.

¶30 We conclude there was more than sufficient substantial evidence to support the
District Court's findings. The court did not misapprehend the effect of the evidence, nor
are we left with a definite and firm conviction that a mistake has been committed. As a
result, we conclude the District Court's findings that J.B. and P.B. failed to successfully
complete their respective court-approved treatment plans and that P.M.B. continued to be
at risk due to P.B.'s sexual abuse history are not clearly erroneous.

¶31 We further conclude the District Court adequately addressed the applicable statutory
requirements pursuant to § 41-3-609, MCA, when it correctly concluded P.M.B. was
adjudicated a youth in need of care; appropriate service treatments, approved by the court,
were not complied with, or successfully completed by either of the parents; and that the
parents' conduct rendering them unfit was unlikely to change in a reasonable time.

¶32 The District Court was presented with clear and convincing evidence that the statutory
criteria of § 41-3-609, MCA, were met. We conclude the District Court did not abuse its
discretion in terminating the parents' rights on the merits.

¶33 We therefore affirm.

                                                    /S/ PATRICIA COTTER

                                                              We Concur:

                                                     /S/ KARLA M. GRAY

                                                    /S/ JAMES C. NELSON

                                                         /S/ JIM REGNIER

                                                             /S/ JIM RICE




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