                                   No. 86-20
               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                      1986




IN THE MATTER OF S.B., Youth in
Need of Care.




APPEAL FROM:    District Court of the Thirteenth Judicial District,
                In and for the County of Yellowstone,
                The Honorable Diane Barz, Judge presiding.

COUNSEL OF RECORD:

       For Appellant:
                Morin   &   Collins; Colleen Collins, Billings, Montana

       For Respondent:
                Harold Hanser, County Attorney, Billings, Montana
                Greg Mullowney, Deputy County Attorney, Billings
                Olsen, Christensen & Gannett; Damon Gannett,
                Billings, Montana




                                      Submitted on Briefs:   March 28, 1986
                                       Decided: August 211 1986
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.

       B.R.   (the mother) appeals a Yellowstone County District
Court order which terminates her parental rights to her
daughter S.B. and awards custody to the Montana Department of
Social and Rehabilitative Services (SRS)           .     The sole issue on
appeal is the sufficiency of the evidence to support the
court's order.       We affirm.
       In February 1984 appellant gave birth to a daughter,
S.B.   Appellant and the putative natural father of S.B. were
divorced prior to the birth.                The child had some health
problems from birth.        She was underweight and a poor eater,
initially had some kidney problems, had club feet, and had
problems with gastroesophageal reflux (food regurgitation).
The child was hospitalized for about three weeks after birth
and was released.        Approximately three to four weeks later,
S.B. was re-hospitalized and Doctor Sauer, a pediatrician,
diagnosed S.B. for a "failure to thrive," i.e., a failure to
maintain      either    normal      height,     normal    weight,      or     a
combination of both, in comparison to standardized charts.
Doctor Sauer also termed S.B. hypotonic (low muscle tone),
which he described as a child who was extremely "floppy" with
almost no strength.        After being re-hospitalized S.B. gained
a suitable amount of weight in the hospital.
       Appellant has a history of mental problems and has at
least twice attempted suicide.             Dr. Donna Veraldi, a licensed
clinical      psychologist,        twice     evaluated     appellant        and
testified     that     appellant    has     a   schizotypal    personality
disorder which would be present throughout her lifetime.                    The
doctor added that such a disorder is acquired over a long
period of time and is difficult to treat in therapy.
         In March    1984 when    S.B.       was    discharged   from   the
hospital, Lori Freck, a registered nurse with the Yellowstone
City-County Health Department, began working with S . B .               and
appellant.       Freck instructed appellant in parenting skills,
basic infant care and health care.              She felt the child was
not consuming enough formula and that the mother was not
feeding the child as instructed.
         The   Montana   Center   for    Handicapped       Children     (the
Center) evaluated S . B .   in June 1984, November 1984, and March
1985.     In June 1984 when S . B .   was approximately four months
old, the Center diagnosed S . B .        as having a high risk for
developmental delay.        The Center found that S . B .         was 20%
underweight for her height.       The Center also found an overall
developmental gross motor delay and a one to two month delay
in her functional abilities.
         In August   1984 S R S   filed a petition for temporary
investigative authority and protective services in regards to
S.B.      The Youth Court granted S R S temporary investigative
authority over S . B .   for a period of 90 days.         Also in August
1984 S . B .   was placed in foster care part of each week and
with her mother part of each week.
         In November     1984 when    S.B.      was   approximately nine
months old, the Center diagnosed S . B .           as having a failure to
thrive and developmental delays.             The Center found that S . B .
was four to six months behind in her communication skills,
that S . B .   was below the fifth percentile in weight for age
and in weight for height, that S . B .          was 18% underweight for
height, and that S . B .    performed tests at a mental age of 5%
months     which   indicated a    significant delay         in cognitive
skills.
        In November 1984 SRS filed a motion to extend the order
for    temporary       investigative      authority        and     protective
services.     The Youth Court granted the motion for extension.
In February 1985 SRS filed a petition for permanent custody
and authority to assent to adoption.
        In March 1985 when S.B. was thirteen months old, the
Center again diagnosed S.B. as having a failure to thrive and
developmental delays.       The Center found that S.B. functioned
at a 6% month level in a motor development test, that S.B.
had made a four month improvement in gross motor skills in
the last nine months, that S.B. Is language skills were from
three to five months behind, that S.B. was 16% underweight
for    her   height,    that     her   weight      was    below    the   fifth
percentile, and that S.B.         had an approximate mental age of
thirteen months.
       Also in March 1985, appellant entered into a service
treatment    agreement with        the    county     children's      services
agency.      The Youth Court approved the service treatment
agreement which was signed by appellant and by a social
worker.      In April 1985 the named putative natural father
filed an affidavit denying paternity and consenting to the
termination of     his    parental       rights.         In July    1985 the
Yellowstone County District Court held a hearing on the SRS
petition for permanent custody.
       Dr.   Sauer, two social workers who had worked with
appellant, and an early intervention specialist from a local
school district testified at the hearing.                 They stated that
appellant did not progress adequately in parenting classes,
or    follow recommendations of professionals involved with
S.B., that appellant could not adequately care for S.B. at
the    present   time,     and    that    appellant's       condition     and
parenting ability, which rendered her an unfit parent, were
unlikely to change in the near future.
         In August 1985 the District Court filed its findings of
fact, conclusions of law, order and judgment which granted
permanent custody, and the right to assent to adoption, to
SRS and terminated the parental rights of the natural parents

of S.B.    The mother appeals.
         In discussing the standard of review applicable to
cases of this nature, we have stated:
              ...  This Court is mindful that the
             primary duty of deciding the proper
             custody of children is the task of the
             district court.      As a result, all
             reasonable   presumptions   as   to   the
             correctness of the determination by the
             district court will be made   ...  Due to
             this presumption of correctness, the
             district court's findings will not be
             disturbed unless there is a mistake of
             law or a finding of fact not supported by
             credible evidence that would amount to a
             clear abuse of discretion.     [Citations
             omitted. 1
Matter    of C.A.R.    (Mont. 1984), 693 P.2d    1214, 1218, 41
St.Rep. 2395, 2398-2399.      However, the State must demonstrate
by clear and convincing evidence that the statutory criteria
for termination of parental rights have been met before such
termination may be ordered.       Matter of C.A.R.,   693 P.2d at


      The    statutory criteria for termination of parental
rights under   §   41-3-609(1), MCA, are that:
             A court may order a termination of a
             parent-child   legal relationship upon
             finding   that   the   child   has  been
             adjudicated a youth in need of care, and
             (1)   an   appropriate   treatment  plan
             approved by the court has not been
             complied with, and (2) the conduct or
             condition of the parents rendering them
             unfit is unlikely to change within a
             reasonable time.
Matter of R.J.W.      (1982), 197 Mont. 286, 288-289, 642 ~ . 2 d


       Section 41-3-102(11), MCA, defines a youth in need of
care as a "youth who is dependent, abused, or neglected as
defined in this section."        Section 41-3-102(2) states that:
               An "abused or neglected child" means a
               child whose normal physical or mental
               health or welfare is harmed or threatened
               with harm by the acts or omissions of his
               parent or other person responsible for
               his welfare.
A    further    definition   relevant      to   the   instant   case    is
S 41-3-102(3), MCA, which defines "harm to a child's health
or welfare" as:
               ...   the harm that occurs whenever the
               parent or other person responsible for
               the child's welfare:
               (a) inflicts or allows to be inflicted
               upon the child physical or mental injury,
               including injuries sustained as a result
               of excessive corporal punishment;


               (c)     causes failure to thrive or
               otherwise fails to supply the child with
               adequate   food   or  fails to     supply
               clothing, shelter, education, or health
               care, though financially able to do so or
               offered financial or other reasonable
               means to do so;
The type of inquiry contemplated by S 41-3-102 (3)(a), MCA,
includes "'the commission or omission of any act or acts
which materially affects the normal physical or emotional
development of a youth.'"            Matter of C.A.R.,       693 P.2d   at
1220; quoting In the Matter of M.R.L.             (1980)~186 Mont. 468,


       In the instant case, credible evidence establishes the
three prerequisites required to terminate the parental rights
of   appellant.       Dr.    Sauer   and    the    Montana   Center     for
Handicapped Children both diagnosed S.B.              as a "failure to
thrive"      baby.       That   diagnosis     reflected    a    continuing
condition which was present shortly after birth, at nine
months of age and at thirteen months of age.              There was also
testimony that        (1) appellant was careless in feeding the
baby, (2) appellant did not follow the recommendations of
health     care      professionals,     (3)   appellant    missed    many
appointments and        classes with     professionals teaching her
parenting skills, and (4) appellant could not adequately care
for her child.       Thus, there is substantial, credible evidence
to support a finding that S.B. is a youth in need of care
under the statutory definitions.
       The     second     requirement    to    terminate       appellant's
parental rights is that a court-approved treatment plan must
have been unsuccessful or not complied with.                   One of the
social workers        testified that the court-approved service
treatment agreement was not a success.           The agreement itself,
with   appellant's      signature     thereon, was    introduced     into
evidence.      Substantial, credible evidence also supports the
court's finding that this requirement was met.
       Finally, we also uphold the lower court's finding that
appellant's       conduct or    condition rendering her unfit to
provide adequate parental care is unlikely to change within a
reasonable time.        After many months of parenting classes and
instruction, appellant was still unable to adequately care
for S.B.     A social worker familiar with appellant's parenting
skills opined that appellant's conduct would not change in
the foreseeable future.         Moreover, the clinical psychologist
stated that appellant's personality disorder would be present
throughout appellant's lifetime and was difficult to treat in
therapy.     In sum, there is substantial, credible evidence to
support the finding of the third and   last requirement to
terminate parental rights.
      Affirmed.




We concur:
