No


                                                               No. 00-659


                       IN THE SUPREME COURT OF THE STATE OF MONTANA
                                        2001 MT 104N



                                    IN THE MATTER OF THE CUSTODY AND

                                     PARENTAL RIGHTS OF R.S.P. and N.J.S.P.




                          APPEAL FROM: District Court of the First Judicial District,

                                        In and for the County of Lewis and Clark,

                                The Honorable Dorothy McCarter, Judge presiding.




                                                   COUNSEL OF RECORD:



                                                            For Appellant:



                        Jeremy Gersovitz, Assistant Public Defender, Helena, Montana



                                                           For Respondent:



                            Hon. Joseph P. Mazurek, Attorney General; John Paulson,


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                                     Assistant Attorney General, Helena, Montana



                 Mike McGrath, Lewis and Clark County Attorney, Carolyn A. Clemens,

                                       Deputy County Attorney, Helena, Montana



                                                               For Youth:



                            Randi M. Hood, Chief Public Defender, Helena, Montana




                                          Submitted on Briefs: February 1, 2001

                                                      Decided: June 19, 2001

                                                                   Filed:




                                __________________________________________

                                                                   Clerk



                  Justice Terry N. Trieweiler 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

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  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 Montana Department of Health and Human Services (DPHHS) filed a
  petition for temporary investigative authority, protective services, and temporary
  custody of R.S.P. and N.J.S.P. in the District Court for the First Judicial District in
  Lewis and Clark County. The District Court found that R.S.P. and N.J.S.P. were
  youths in need of care and granted temporary investigative authority and temporary
  custody to DPHHS. DPHHS subsequently filed a petition for a permanent plan
  hearing and termination of parental rights. Following a hearing, the District Court
  terminated parental rights to R.S.P. and N.J.S.P. The natural mother, Amy, appeals
  from the order of the District Court. We affirm in part and remand for further
  findings.

  ¶3 There are two issues on appeal:

  ¶4 Did the District Court err when it found that Amy did not comply with her
  treatment plan and that the conduct that rendered her an unfit parent was unlikely to
  change within a reasonable time?

  ¶5 Did the District Court make the findings required by § 41-3-609(2), MCA?


                                              FACTUAL BACKGROUND



  ¶6 Amy and Richard are the natural parents of two boys, R.S.P., born December
  23, 1993, and N.J.S.P., born March 2, 1995. Amy was fourteen years old when she
  gave birth to R.S.P. At the time of the termination hearing, Amy was twenty years
  old and incarcerated at the Lewis and Clark County Detention Facility, serving
  sentences of six months and ninety-seven days. Richard has relinquished his
  parental rights to DPHHS and consented to the placement of the boys for adoption.

  ¶7 R.S.P. and N.J.S.P. are emotionally disturbed children with a history of setting
  fires, destroying property, and inappropriate sexual behavior. Their behavior

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  brought the boys to the attention of child welfare workers, first in Kalispell and later
  in Helena. On September 17, 1998, DPHHS, through the Lewis and Clark County
  Attorney's Office, filed a petition for temporary investigative authority, protective
  services, and temporary custody. Amy and Richard stipulated, and the District
  Court declared, that R.S.P. and N.J.S.P. were youths in need of care and granted
  temporary investigative authority and temporary custody to DPHHS. A series of
  treatment plans were prepared for Amy and filed with the District Court. Amy's
  fifth and final treatment plan, filed with the District Court on January 31, 2000,
  established eleven general goals and twenty-two specific tasks.

  ¶8 On March 22, 2000, DPHHS filed a petition for a permanent plan hearing and
  termination of parental rights. The District Court held a hearing to consider the
  petition on April 12 and 13, 2000. The District Court focused on Amy's efforts to
  comply with her treatment plan. On June 5, 2000, the District Court issued its
  Findings of Fact, Conclusions of Law, and Order. The District Court found that
  Amy had failed to successfully complete her treatment program, that no other
  services were available to assist her in attaining the level of parenting skills she
  needed, and that it was not reasonably foreseeable that Amy would be able to
  successfully complete the treatment plan in the future. As a result, the District Court
  ordered the termination of Amy's parental rights to R.S.P. and N.J.S.P. Amy now
  appeals from the District Court's termination order.


                                                STANDARD OF REVIEW



  ¶9 We review cases involving the termination of parental rights to determine
  whether the district court's findings of fact are clearly erroneous and whether its
  conclusions of law are correct. Matter of K.F.L. (1996), 275 Mont. 102, 104, 910
  P.2d 241, 243. We presume that the 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.
  Matter of E.W., 1998 MT 135, ¶ 14, 289 Mont. 190, ¶ 14, 959 P.2d 951, ¶ 14.




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                                                           DISCUSSION



                                                                ISSUE 1



  ¶10 Did the District Court err when it found that Amy did not comply with her
  treatment plan and that the conduct that rendered her an unfit parent was unlikely to
  change within a reasonable time?

  ¶11 A district court may order the termination of the parent-child relationship if the
  child is adjudicated a youth in need of care, the parent has failed to comply with an
  appropriate court-approved treatment plan, and the conduct or condition of the
  parent rendering that parent unfit is unlikely to change within a reasonable time. See
  § 41-3-609(1), MCA. Amy acknowledges that she failed to comply with several
  requirements of her treatment plan. However, Amy contends that she substantially
  complied with the treatment plan and that her substantial compliance should
  preclude termination of her parental rights.

  ¶12 Amy's final treatment plan required that she continue therapy; that she meet
  with the boys' therapists as requested; that she have bi-weekly contact with her
  social worker; that she consult with a representative from the Health Department;
  that she arrange speech therapy for N.J.S.P.; that the children receive psychological
  evaluations; that she maintain full time employment; that she arrange for day care
  for the children; that she finalize her divorce; that she not permit her mother and
  stepfather to have contact with the children; that she not associate with child
  abusers or drug and alcohol abusers; that she advise her social worker of address or
  employment changes; that she agree to drop-in visits by her social worker; that she
  submit to drug and alcohol testing; that she cooperate with the AWARE case
  manager; that the boys utilize AWARE services; that she cooperate with the
  therapeutic program at R.S.P.'s school; that she enroll R.S.P. in the Intermountain
  Children's Home residential program; that she work with N.J.S.P.'s educational
  program advisers; that she develop and follow a budget; that she provide medical
  care for the boys; and that she check the children for matches and lighters.

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  ¶13 There is substantial credible evidence in the record that Amy did not comply
  with her treatment program. She missed many scheduled appointments with social
  workers. Her own efforts at therapy were sporadic and she failed to take the boys to
  therapy regularly. The social workers testified that the last omission was very
  harmful to the boys.

  ¶14 Amy often lost interest in her children and DPHHS's services, keeping
  appointments only when it became clear that she might lose her children. N.J.S.P.
  did not receive adequate speech therapy. Amy neglected to attend training classes at
  the Career Training Institute, which resulted in the termination of her welfare
  benefits. During her treatment plan, Amy had six or seven different jobs and was
  fired from at least one of them for stealing from the employer. She often failed to
  pay her rent and left bills and court fines unpaid. Amy admitted that the boys had
  contact with her mother. The social worker testified that Amy had entered into a
  sexual relationship with a known felon, who lived with Amy and the boys for
  several months. The social worker lost contact with Amy when she moved. A case
  worker from DPHHS testified that Amy's case had been closed for lack of
  cooperation and progress. Finally, Amy was unable to maintain her budget and was
  evicted from rentals so often that she had been permanently terminated from
  Section 8 public housing.

  ¶15 Amy's claim that partial compliance is sufficient to avoid the termination of
  her parental rights "ignores the long-standing principle that partial compliance with
  a treatment plan is insufficient." Matter of A.N. and C.N., 2000 MT 35, ¶ 45, 298
  Mont. 237, ¶ 45, 995 P.2d 427, ¶ 45. The district court must give primary
  consideration to the best interests of the children in determining whether to
  terminate parental rights. Matter of K.A.B., 1999 MT 71, ¶ 16, 294 Mont. 29, ¶ 16,
  977 P.2d 997, ¶ 16. We conclude that the District Court did not err when it found
  and concluded that Amy had not substantially complied with her treatment plan.


                                                                ISSUE 2




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   ¶16 Did the District Court make the findings required by § 41-3-609(2), MCA?

   ¶17 Section 41-3-609(2), MCA provides as follows:


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....



   ¶18 Here, the District Court found that Amy had failed to complete her treatment
   plan and was unlikely to do so in the near future. However, it made no finding that
   continuation of the parent-child legal relationship would result in continued abuse
   or neglect or that the conduct or condition at issue rendered Amy unfit, unable, or
   unwilling to give her children adequate parental care. Therefore, we remand this
   matter to the District Court for determination of whether the finding required by §
   41-3-609(2), MCA can be made and, if so, for amendment of the findings to so
   state.

   ¶19 The judgment of the District Court is affirmed in part and remanded for further
   findings consistent with this opinion.



/S/ TERRY N. TRIEWEILER



We Concur:



/S/ JIM REGNIER




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No


/S/ JAMES C. NELSON



/S/ W. WILLIAM LEAPHART



/S/ PATRICIA COTTER




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