                            Ho.    9i-098
          IN THE SUPREME COURT OF THE STATE OF MOKTANA
                                  1991


IN THE MATTER OF THE CUSTODY
AND PARENTAL RIGHTS OF
N.J. AND A.J.,
           Youths in Need of Care.



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:
               Leo J. Gallagher, Attorney at Law, Helena, Montana
         For Respondent:
               Hon. Marc Racicot, Attorney General, Helena, Montana
               Micheal S. Wellenstein, Assistant Attorney General,
               Helena, Montana
               Mike McGrath, Lewis and Clark County Attorney,
               Helena, Montana; Carolyn Clemens, Deputy County
               Attorney, Helena, Montana
               Randi Hood, Public Defender's Office, Helena,
               Montana
               Nick Jacques, Attorney at Law, Helena, Kontana


                               Submitted on Briefs:    Jgly 2 , 1991

                                            Decided:   A u ~ u s t 12. 1991
Filed:
 Chief Justice J . A. Turnage delivered the Opinion of the Court.
      G.J. (Mother) appeals an order of the District Court of the
First Judicial District, Lewis and Clark County, which terminated
her parental rights to her two children, N.J. and A.J.         We affirm.
      Mother presents one issue on appeal; we rephrase this issue
as follows:
       Did the District Court abuse its discretion when it ter-
minated Mother's parental rights to N.J. and A.J.?
      Mother married S.J. (Father) at an early age.        The couple had
two children, N . J . ,   born September 2 7 , 1986, and A.J., born August
16, 1988. The couple separated in January 1989. Mother testified
that the couple separated because she "[clouldn't handle [Father's]
drugs and his booze and he wasn't coming home at nights."          Mother
further testified that in May 1989, she left her children with
B.J., her mother and the children's grandmother, and departed to
Nevada because she "decided to screw off my life too.         . . .II



      The record indicates that Mother and Father share a history
of chronic drug and alcohol abuse.            Additionally, the record
indicates that Mother has a history of emotional problems stemming
from her childhood. B . J .    testified that Mother has a problem with
being truthful.
     When Father discovered that Mother had left for Nevada leaving
the children with B.J., he retrieved the children from B . J .          and
took them to his residence in Wickes, Montana.          Mother testified
that she was unaware that Father had taken the children from B . J .
                                      2
until shortly before she returned to Montana on July 7, 1989.
Apparently, however, the children remained living with Father
following Mother's return to Montana.
        On July 31, 1989, Father left the children with a babysitter
but failed to return to pick them up.       On August 4, 1989, the
babysitter attempted but failed to contact Mother to pick up the
children.    The babysitter then took the children to the Jefferson
County Sheriff's Office to report their abandonment. The Jefferson
County Sheriff's Office notified Lewis and Clark County Department
of Family Services (Department) of the children's situation. The
Department had knowledge of these children as it had investigated
past reports of alleged neglect of the children starting in
September 1988.     Following a conversation between the Department
and the babysitter, the children remained at the home of the
babysitter over the next few days with B.J. providing the babysit-
ter her assistance with the children.
     Department records indicate that Father returned on August 7,
1989.     Additionally, Department records dated August 7, 1989,
indicate that Mother contacted the Department about the children,
but stated that she could not provide adequate care for them as she
was then living in a friend's *'filthynhouse.
     On August 8, 1989, the Department petitioned the District
Court for temporary investigative authority and protective services
regarding the children.     On August 8, 1989, the District Court,
granted the Department temporary investigative authority for six
                                  3
for depression.    During this time, Mother was also physicaliy
abused by her boyfriend, S.W.
     Mother returned to Helena in January 1990, and indicated to
Harris her desire to begin implementation of a treatment plan.    On
February 28, 1990, Mother agreed to a treatment plan previously
prepared by Harris on December 29, 1989.
     Father's whereabouts were unknown at this time.        He was
notified by publication of a March 2, 1990 hearing concerning the
Department's December 5, 1989 petition for protective services and
adjudication of the children as youths in need of care. According-

ly, the Department was unable to discuss with Father and Father was
unavailable to agree to the implementation of the treatment plan.
However, later when Father's whereabouts were determined, Father
expressed no interest in regaining custody of his children.      The
last time Father expressed interest in regaining custody of the
children was August 1989
     The District Court approved the treatment plan at the March
2, 1990 hearing. The treatment plan set forth the following goals:
          Goal I: To obtain chemical dependency evalua-
          tions and follow the recommendations of the
          evaluation.
         Goal 11:    [Mother] and [Father] will have
         psychological evaluations and follow the
         recommendations of the evaluation.
         Goal 111: [Mother] or [Father] will provide
         a stable environment for the children that
         will meet their emotional, psychological, and
         physical needs.
Additionally, the District Court determined the children to be
youths in need of care in an order dated March 6,   1990.

     In an effort to meet the first goal of the treatment plan,
Mother successfully completed an out-patient treatment program at
Boyd Andrew Chemical Dependency Care Center (Center) on April 19,
1990, after the Center evaluated and diagnosed her as chemically
dependent.    Mother then began the program's required after-care
program, but she quit attending the after-care program in June 1990
because she did not want to discuss at group therapy sessions the
trauma she suffered as a child.   She testified on direct examina-
tion at the termination hearing that she would have continued
attending the after-care program if she could have attended one-
to-one sessions instead of group sessions. The after-care program,
however, offered the one-to-one sessions, which Mother for a time
attended. On cross-examination, Mother testified that she did not
know why she quit attending the one-to-one sessions.
     The second goal of the treatment plan required Mother to
submit to and obtain a psychological evaluation and abide by the
evaluation's recommendations.     Mother failed to submit to a
psychological evaluation despite repeated reminders from her social
workers to schedule a time with a psychologist for an evaluation.
Mother admitted that she lied to one of her social workers when,
at one point, she told him that she was undergoing a psychological
evaluation.
     The third goal of the treatment plan was that Mother would
provide a stable environment for her children.    Mother failed to
provide adequate housing for the children and fziled to maintain
steady employment. Mother failed to qualify for general assistance
through Aid to Families with Dependent Children because she refused
to participate in a project work program.
     Mother testified that, in May 1990, while she was attempting
to comply with the treatment plan, she was hospitalized because
she intentionally "OD'ed on Tylenol."     Mother further testified
that some time later, she was hospitalized for depression.      The
record indicates that regarding the last hospitalization for
depression, Mother was admitted to an emergency room for taking
pills.
     On September 14, 1990, six months after the court approved the
treatment plan, the Department petitioned the District Court to
terminate the parental rights of Mother and Father to the children
because the goals of the treatment plan were unmet.   The District
Court conducted a hearing on the Department's petition on November
5, 1990.   Although Father was notified of this hearing, he did not
attend. Father's court-appointed counsel appeared at this hearing
but the District Court excused him from participating in the
proceeding after counsel explained that he had no contact with
Father and had no evidence to rebut any of the evidence to be
presented.    Mother and her court-appointed counsel attended this
hearing.   On November 20, 1990, the District Court terminated the
                                 7
parental. rights of Mother and Father to A.J. and N.3.   Cn Decewer
18, 1990, the District Court amended its November 20, 1990 ruling

in an order nunc pro tunc dated December 18, 1990, which amenament
does not relate to any issue in this appeal.       From this order,
Mother appeals


     Did the District Court abuse its discretion when it terminated
mother's parental rights to N.J and A.J.?
     Mother argues that the District Court erred when it found that
her "conduct or condition rendering her unfit as a parent was
unlikely to change within a reasonable time." She further argues
that although she technically failed to meet the goals of the
treatment plan by not getting a psychological evaluation, she did,
on a number of occasions, attempt to get an evaluation completed.
She argues that she has been drug-free since February 1990.    And,
she argues that she has secured a place to live for her and the
children.
    Section 41-3-609(2), MCA, provides in pertinent part:
            In determining whether the conduct or condi-
            tion of the parents is unlikely to change
            within a reasonable time, the court must 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. In making
            such determinations, the court shall consider
            but is not limited to the following:
          (a) emotional illness, mental illness, or
          mental deficiency of the parent of such dura-
          tion or nature as to render the parent unlike-
          ly to care for the ongoing physical, mental,
          and emotional needs of the child within a
          reasonable time;


          (d) excessive use of intoxicating liquor or
          of a narcotic or dangerous drug that affects
          the parent's ability to care and provide for
          the child;


          (g)   any reasonable efforts by protective
          service agencies that have been unable to
          rehabilitate the parent.
     Here, the record indicates that Mother is not emotionally
stable enough to care for the children.       Since December 1989,
Mother has been hospitalized and treated for depression and has
been hospitalized twice for pill overdoses.        A psychological
evaluation and treatment, as recommended in her treatment plan,
could have assisted Mother, but she chose not to pursue this
avenue.   The record also indicates that Mother has a history of
chronic alcohol and drug abuse. Although the record indicates that
she has made efforts to remedy her chemical dependency through a
treatment program, the record also indicates that she failed to
complete the required after-care program.   Furthermore, the record
indicates that the Department's efforts to rehabilitate Mother
failed because she was unwilling to comply with the three goals of
the court-approved treatment plan over a six-month time span.
     Flurrhermore,   42-3-509(3),     MCA, provides that "the court
shall give primary consideration to the physical, mental, and
emotional conditions and needs of the child[ren]."        Here, the
record indicates that in May 1969, Mother left her children with
B.J. and departed to Nevada because she "decided to screw off" her
life. The record indicates that in August 1989, the children were
subjected to abandonment by both of her parents when a babysitter
turned the children over to the Jefferson County Sheriff's Office.
N.J.'s therapist testified that N.J. displayed the behavior of a
child who has been abandoned.       Because of Mother's and Father's
actions, the physical, mental, and emotional condition of N.J. has
been harmed, and his needs have been left unfulfilled.     Regarding
A.J., although she does not exhibit outward signs of abandonment,
her abandonment by her parents threatened her physical, mental, and
emotional condition and left her needs unfulfilled.
     In conclusion, we hold that the District Court did not err
when it found that Mother's conduct or condition rendering her
unfit as a parent was unlikely to change within a reasonable time.
Additionally, we hold that Mother failed to comply with the three
goals under the treatment plan.     We therefore affirm the District
Court's order.
We concur:




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