                                          No. 02-104

                 IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2002 MT 265


IN THE MATTER OF A.S.,

         Youth in Need of Care.



APPEAL FROM:           District Court of the Eighth Judicial District,
                       In and for the County of Cascade,
                       The Honorable Thomas M. McKittrick, Judge presiding.


COUNSEL OF RECORD:

                For Appellant:

                       Vince Van Der Hagen, Cascade County Public Defender's Office, Great
                       Falls, Montana

                For Respondent:

                       Hon. Mike McGrath, Attorney General; Tammy K. Plubell,
                       Assistant Attorney General, Helena, Montana

                       Brant Light, Cascade County Attorney; Daniel M. Guzynski, Deputy County
                       Attorney, Great Falls, Montana


                                                           Submitted on Briefs: May 23, 2002

                                                                 Decided: November 26, 2002
Filed:


                       __________________________________________
                                         Clerk
Justice Terry N. Trieweiler delivered the Opinion of the Court.

¶1    The Montana State Department of Public Health and Human

Services petitioned the District Court for the Eighth Judicial

District in Cascade County to terminate the parental rights of S.S

to his son, A.S.          Following a hearing on December 19, 2001, the

District Court granted the petition.                     S. S. appeals from the

Findings of Fact, Conclusions of Law, and Order, issued by the

District Court.        We affirm the Order of the District Court.

¶2    The sole issue on appeal is whether the District Court erred

when it terminated S.S.’s parental rights.

                      FACTUAL AND PROCEDURAL BACKGROUND

¶3    A.S. was born on August 13, 2000. At the time of his birth his

mother, D.B., and S.S., were both sixteen years old and did not

live together.        On August 28, 2000, D.B. brought two week old A.S.

to   the   hospital      because     he   seemed     “fussy”      and   D.B.   heard   a

“crackling sound” when she picked him up.                 A medical exam performed

by Dr. Nora Gerrity and Dr. Craig Matelich revealed that A.S. had

fractures to his left distal tibia, right distal femur and right
proximal tibia, bilateral fractures to his pubic bones and probable

fractured ribs.         The exam also revealed that the right side of

A.S.’s mouth was scratched, he suffered from multiple bruises and

the roof of his mouth appeared to have several burns.                     Dr. Gerrity

reported the incident to the Department of Public Health and Human

Services (DPHHS) on August 29, 2000.

¶4    Detectives from the Great Falls Police Department interviewed

D.B. and S.S. concerning the suspicious nature of A.S.’s injuries.


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 S.S. admitted that he may have injured A.S. when he squeezed him,

when he shook him, or when he bounced him on his knee while

watching him on August 25 and August 26 of 2000.       Dr. Matelich

surmised that the injuries were caused by a strong force that

caused an impact injury and concluded that the fractures to A.S.’s

leg and pubic bones could not have occurred in the manner described

by S.S.    S.S. was charged with Felony Criminal Endangerment and

placed in juvenile detention on August 30, 2000, for causing the

injuries sustained by A.S.    Subsequently, S.S. was adjudicated a

serious juvenile offender and in November 2000 he was incarcerated

at Pine Hills Juvenile Detention Center until he turned 18 and

placed on probation and parole until age 19.   S.S. remained at Pine

Hills until September of 2001 and was represented by counsel at all

hearings relevant to this case.
¶5   Preliminary Temporary Investigative Authority was given to

DPHHS on September 5, 2000, and A.S. was temporarily removed from

his parents’ care.   On September 27, 2000, A.S. was adjudicated a

Youth in Need of Care; it was ordered that A.S. remain in foster

care and ninety-day Temporary Investigative Authority was given to

DPHHS.    Nan Bryant, a DPHHS social worker, assumed responsibility

for A.S.’s case in September 2000.     A review hearing was held on

December 20, 2000, at which time the Temporary Investigative

Authority and foster care placement were extended for an additional

ninety-day period.   In April 2001, Temporary Legal Custody of A.S.

was awarded to DPHHS for six months.




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¶6    S.S. was ordered to comply with a treatment plan prepared by

DPHHS   on       June   13,    2001.       The   plan   required    that     S.S.:   1)

participate in an assessment of his parenting skills by a licensed

therapist and complete parenting classes; 2) obtain a psychological

evaluation from a Ph.D. level therapist and follow through with all

recommendations         made    by   the    therapist;     3)   obtain   a   chemical

dependancy evaluation and complete the recommended treatment plan;

4)   sign    a    release      allowing     DPHHS   and    Youth    Court    to   share

information concerning his probation and insure the requirements of

his probation were satisfied; and 5) sign all releases necessary to

facilitate his progress with the plan.                    The chemical dependency

treatment and psychological evaluation required by the treatment

plan were also conditions of S.S.’s probation and parole.                     Some of

the services necessary to complete the goals of the treatment plan

were available or could be made available at Pine Hills.
¶7    Although S.S. entered a chemical dependancy treatment program

in January 2001 as a condition of his juvenile court sentence, he

made little or no progress with treatment while at Pine Hills.                       Nor

did he complete the psychological testing required by both his

sentence and the treatment plan.

¶8    During his incarceration, S.S. was cited for numerous major

rule violations and behavior reports which included assaulting

another inmate and talking to his girlfriend in violation of his

sentence.          He   also    made   graphically        violent   drawings      which

expressed hatred, contained satanic overtones, depicted death and




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mutilation, and recited Marilyn Manson lyrics all in violation of

the conditions of his sentence.

¶9    Following his release from Pine Hills in September 2001, S.S.

was transferred to Adult Probation and Parole because he did not

comply with the conditions of his sentence while incarcerated at

Pine Hills.      His parole officer informed him that if he did not

comply with the terms of his probation and parole he would likely

end up in Montana State Prison.               He began chemical dependancy

treatment at Gateway Recovery Center in October 2001.                In November

2001, S.S. alleges that he attempted to contact Bryant a number of

times but that his calls were never returned.
¶10   A.S.     has     remained    in   foster    care      since   his    initial

hospitalization in August 2000.              It is undisputed that A.S. has

special health care needs and that he will require long-term

medical care, physical therapy, special attention and permanency to

thrive.      At trial, S.S. admitted that he was unaware that his son

had special needs and stunted development.

¶11   The DPHHS filed a petition to terminate S.S.’s parental rights

on October 3, 2001, and a termination hearing was held on December

19,   2001.      The    District   Court     issued   its    Findings     of   Fact,

Conclusions of Law, and Order, and terminated S.S.’s parental

rights on December 31, 2001.            The court found that the treatment

plan was achievable; that S.S. failed to comply with the treatment

plan; that S.S. failed to make efforts to acquaint himself with

A.S.; that S.S. was unlikely to change his behavior within a

reasonable time; and that A.S. required special care, stability,



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consistency and permanency.        The court concluded based on these

findings that S.S. was unfit, unwilling, or unable to provide

adequate parental care for A.S.; that DPHHS had made reasonable

efforts to eliminate the need for removal of A.S. from his natural

father’s    care   but   that   S.S.   was   not   likely   to   change   in   a

reasonable time; and that termination of S.S.’s parental rights was

in A.S.’s best interest.

                             STANDARD OF REVIEW

¶12   A district court’s decision to terminate parental rights is

reviewed for an abuse of discretion.          In re Custody of C.F., 2001

MT 19, ¶ 11, 304 Mont. 134, ¶ 11, 18 P.3d 1014, ¶ 11.             We review a

district court’s findings of fact to determine whether they are

clearly erroneous.       In re Custody of C.F., ¶ 11.       A finding of fact

is clearly erroneous if substantial evidence does not support it;

if the district court misapprehended the effect of the evidence; or

if, after reviewing the record, this Court is left with a definite

and firm conviction that the district court made a mistake.               In re

Custody of C.F., ¶ 11.          This Court reviews a district court’s

conclusions of law to determine if they are correct.             In re Matter

of T.C. and W.C, 2001 MT 264, ¶ 13, 307 Mont. 244, ¶ 13, 37 P.3d

70, ¶ 13.
                                 DISCUSSION

¶13   A district court may terminate parental rights when: 1) the

child has been adjudicated a youth in need of care; 2) it is found

that the appropriate treatment has not been complied with or has

not been successful; and 3) it is found that the unfit conduct or



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condition of the parent is unlikely to change within a reasonable

time.     Section 41-3-609(f), MCA.       S.S. contends that the District

Court abused its discretion when it terminated his parental rights

for several reasons.

¶14     First, S.S. contends that the District Court erred when it

found that Bryant made reasonable efforts to prevent the need for

removal of A.S. from S.S.’s parental care.            He maintains that

Bryant did not contact him personally to determine his progress or

assist with the treatment plan during or after his incarceration

and that no evidence was presented at trial to support the District

Court’s finding that reasonable efforts were made.
¶15     The DPHHS is required to make reasonable efforts to reunite

children with their natural parents when they have been separated

by the State pursuant to § 41-3-423, MCA.

        Reasonable efforts include but are not limited to
        development of individual written case plans specifying
        state efforts to reunify families, placement in the least
        disruptive setting possible, provision of services
        pursuant to a case plan, and periodic review of each case
        to ensure timely progress toward reunification or
        permanent placement. In determining preservation or
        reunification services to be provided and in making
        reasonable   efforts   at   providing   preservation   or
        reunification services, the child’s health and safety are
        of paramount concern.      The court shall review the
        services provided by the agency.

Section 41-3-423, MCA.      Furthermore, the treatment plan required

that Bryant provide resource referrals as needed or requested by

S.S. and help him obtain funding for assessments and classes.

¶16     It is undisputed that a treatment plan was developed by DPHHS

and that S.S. was ordered to comply with its requirements.        During

S.S.’s incarceration Bryant contacted his Pine Hills case manager,


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Karen Skalko, who told Bryant that she reviewed the court orders

and the treatment plan with S.S.           The record demonstrates that a

psychological evaluation could have been arranged at Pine Hills and

that Bryant had made financial assistance available in the event

that Pine Hills was unable to cover the cost of evaluation and

treatment.      Pine Hills provided a chemical dependancy treatment

program   and     anger   management       classes   that     satisfied     the

requirements of the treatment plan. S.S. did not take advantage of

the programs at Pine Hills; he did not contact Bryant about

difficulty   he    had    achieving    the   goals   of     the   plan    while

incarcerated; he did not ask for assistance nor did he express an

interest in complying with the treatment plan; and he did not

inquire about A.S. at any time.              S.S. allegedly attempted to

contact Bryant on a few occasions in November of 2001, but only

after the termination proceedings had already begun.
¶17   We conclude that Bryant made reasonable efforts to ensure that

some of the services necessary to complete the treatment plan were

available to S.S. while he was incarcerated.                Since he availed

himself of none of these services there is no reason to suggest

that he would have taken advantage of those services which he now

contends were not available.          The treatment plan requires active

involvement and effort by the parent to achieve reunification. No

such effort was demonstrated by S.S. until October 2001 despite the

fact that the plan was approved in June of 2001.            We conclude that

the District Court did not err when it found that Bryant made

reasonable efforts to provide the services necessary to prevent the



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termination of S.S.’s parental rights pursuant to § 41-2-423, MCA,

and the treatment plan.

¶18   Next, S.S. contends that the District Court erred when it

found that he was unfit, unwilling, or unable to provide adequate

parental care, that reasonable efforts made by protective services

were not able to rehabilitate him, and that he was unlikely to

change within a reasonable time.        He contends that the finding was

incorrect because he did not have a reasonable opportunity to

achieve the goals of    the treatment plan.      He argues that the plan

was not “achievable” because he was only given four months to

complete the treatment plan and the majority of that time he spent

at Pine Hills, where the tools for accomplishing the goals were not

available.
¶19   The treatment plan was approved and imposed in June 2001.       The

record demonstrates that chemical dependancy treatment and anger

management    classes    were     available     during    S.S.’s   entire

incarceration   and   that   he   did   not   complete   either.   Bryant

testified that funding for a psychological evaluation at Pine Hills

was available but that S.S. made no effort to obtain an evaluation.

 Rather than focusing on self-improvement, S.S. refused to take

advantage of the services that were available to him at Pine Hills.

 Finally, while S.S. began chemical dependency treatment after his

release, he did not initiate the steps necessary to achieve the

other goals of the treatment plan.            Bryant testified that the

entire program could have been completed in five to seven months.

Six months passed between the time the treatment plan was ordered

and the time the termination hearing was held in December of 2001.

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 S.S. did not complete a single goal of the treatment plan in that

six month period.

¶20   If S.S. had utilized the resources available to him at Pine

Hills he could have substantially complied with the treatment plan

in the four months between the time the plan was ordered and the

time DPHHS moved the court to terminate S.S.’s parental rights.          If

he had made an effort to comply in any way, he would be in a better

position to now complain that all necessary services were not

available.   However, he did not.         Therefore, we conclude that the

District Court did not err when it found that S.S.’s treatment plan

was reasonable and achievable.
¶21   Finally, S.S. contends that the District Court erred when it

found that the condition rendering him unfit was unlikely to change

within a reasonable time because the court did not correctly find

that he was unfit at the time of trial.

¶22   This argument is without merit.         In the two weeks S.S. acted

as a father he demonstrated that he was unfit to provide competent

parental   care   by   inflicting   serious    injuries   upon   A.S.   The

evidence before the court indicated that S.S. had not done anything

to improve his parenting skills between the time A.S. was removed

from his care and the time of the termination hearing.             Although

the threat of future imprisonment led to chemical dependancy

treatment, this fact alone did not require that the court find him

fit to be a parent.

¶23   This Court has recognized that:

      [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

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      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 [the natural mother’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.

Matter of C.A.R. (1984), 214 Mont. 174, 187, 693 P.2d 1214, 1221.

¶24   A.S.’s needs are immediate and the time for S.S. to prove he

is capable of being the child’s father has passed.      Based on his

past actions, history of chemical dependancy, history of abuse and

failure to comply with the treatment plan, we conclude that the

District Court did not err when it concluded that the condition

which made S.S. unfit to be A.S.’s father was not likely to change

within a reasonable time.
¶25   The decision of the District Court is affirmed.


                               /S/ TERRY N. TRIEWEILER

We Concur:

/S/   PATRICIA COTTER
/S/   W. WILLIAM LEAPHART
/S/   JAMES C. NELSON
/S/   JIM RICE




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