                                    No. 00-407

           IN THE SUPREME COURT OF THE STATE OF MONTANA

                                    2001 MT 93


IN THE MATTER OF THE CUSTODY AND
PARENTAL RIGHTS OF F.M. and S.M.,

          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 Jeffrey M. Sherlock, Judge presiding.


COUNSEL OF RECORD:
                                                                          FILED
                                                                              MAY 2 4 2001
          F or Appellant:
                                                                       •. ERK
                                                                       ~L·
                                                                              U Sm;t~
                                                                              OF SUPREME COUR'
                 Peter Bovington, Attorney at Law, Helena, Montana         STATE OF Mt'I!lfttt"'~ I




          F or Respondent:

                 Hon. Joseph P. Mazurek, Attorney General; Ilka Becker,
                 Assistant Attorney General, Helena, Montana

                 Mike McGrath, Lewis and Clark County Attorney; Carolyn
                 Clemens, Deputy County Attorney, Helena, Montana

          For Youths:

                 Randi M. Hood, Attorney at Law, Office of Public Defender,
                 Helena, Montana



                                                 Submitted on Briefs: September 28, 2000

                                                            Decided: May 24, 2001
Filed:
Chief Justice Karla M. Gray delivered the Opinion of the Court.


~1     W.B. appeals from the judgment entered by the First Judicial District Court, Lewis

and Clark County, on its findings of fact, conclusions of law and order terminating her

parental rights to F.M. and S.M. We affirm.

~2     The issue on appeal is whether the District Court abused its discretion in terminating

W.B.'s parental rights.

                                      BACKGROUND

~3     The Montana Department of Public Health and Human Services (DPHHS) has been

involved with W.B. off and on since 1988 as a result of various allegations that she had

abused or neglected her children, C.M., F.M. and S.M. In February of 1996, DPHHS

petitioned for permanent legal custody of the three children. After a hearing on the petition,

the District Court found that the children were youths in need of care, that W.B. had failed

to successfully complete her court-approved treatment plan and that the existing conditions

which rendered her unfit to parent her children were unlikely to change within a reasonable

time. Based on these findings, the court entered its order granting DPHHS permanent legal

custody of the three children with the right to place them in foster care until they reached the

age of eighteen. W.B. appealed the District Court's order to this Court. We concluded that

the District Court's findings of fact were supported by substantial evidence in the record and

affirmed its order granting permanent legal custody of the children to DPHHS. See Matter

ofC.M. (1997), 281 Mont. 183, 188,932 P.2d 1063, 1066.


                                               2
~4     DPHHS subsequently petitioned the District Court to terminate W.B. 's parental rights

to F.M. and S.M. After a hearing, the District Court entered its findings offact, conclusions

of law and order in which it reiterated its findings from the 1996 order granting DPHHS

permanent custody of the children and determined that no evidence had been presented to

indicate that W.B. had made any significant changes in her ability to parent F.M. and S.M.

The court further concluded that it was in the two children's best interests to terminate

W.B. 's parental rights, as the children needed permanent placement to successfully progress

in their therapy. On this basis, the District Court terminated W.B.'s parental rights to F.M.

and S.M. and awarded those parental rights to DPHHS with the concomitant right to consent

to the children's adoption. The court further ordered that W.B. be allowed to visit the

children ifDPHHS determined that visitation would be in the children's best interests. W.B.

appeals from the order terminating her parental rights to F .M. and S.M.

                                STANDARD OF REVIEW

~5     A decision to terminate parental rights is within a district court's discretion and,

consequently, we review that decision to determine whether the court abused its discretion.

In re Custody ofC.F., 2001 MT 19, ~ 11,304 Mont. 134, ~ 11, 18 P.3d 1014, ~ 11 (citation

omitted). However, in reaching its decision to terminate parental rights, a district court must

make specific factual findings in accordance with the requirements set forth in § 41-3-609,

MCA. Custody ofC.F., ~~ 11-12. We review these underlying findings offactto determine

whether they are clearly erroneous. Custody of C.F .,     ~   11. A finding of fact is clearly



                                              3
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 firm

conviction that the district court made a mistake. Custody ofC.F ., ~ 11. Finally, "the district

court is bound to give primary consideration to the physical, mental, and emotional

conditions and needs of the children." Matter ofC.M., 281 Mont. at 187,932 P.2d at 1066.

Consequently, the best interests of the children are the paramount concern in a parental rights

termination proceeding and take precedence over the parental rights. Matter ofC.M., 281

Mont. at 187, 932 P .2d at 1066.

                                        DISCUSSION

~6     Did the District Court abuse its discretion in terminating W.B. 's parental rights?

~7     Section 41-3-609(1), MCA, sets forth the criteria which must be met before

terminating parental rights and provides, in pertinent part, that

       [t]he court may order a termination of the parent-child legal relationship upon
       a finding that any of the following circumstances exist:




       (f) the child is an adjudicated youth in need of care and both of the following
       exist:

       (i) an appropriate treatment plan that has been approved by the court has not
       been complied with by the parents or has not been successful; and

       (ii) the conduct or condition of the parents rendering them unfit is unlikely to
       change within a reasonable time.




                                               4
,-rS   In addressing the above statutory criteria, the District Court first reiterated its findings

from the 1996 permanent legal custody proceeding that F .M. and S.M. had been adjudicated

youths in need of care, that W.B. had failed to successfully complete her treatment plan and

that the conditions rendering her unfit to parent were unlikely to change within a reasonable

period of time. The court then determined that, based on the evidence presented at the

hearing on the petition to terminate, there was no indication W.B. had made any significant

changes which would prevent further abuse or neglect if the children were returned to her

custody and that it was in the best interests of the children to terminate W.B.' s parental

rights. W.B. asserts error.

,-r9    W.B. first argues that the District Court's finding that the conduct or condition which

renders her unfit to parent her children had not changed--and was not likely to change--is

erroneous. She asserts that the testimony of several therapists and personal friends presented

at the hearing on the petition to terminate established that she had made progress in dealing

with her emotions and could act appropriately around her children. However, the testimony

on which W.B. relies for her argument established only that she could act appropriately

around the children if allowed visitation with them. None of the witnesses testified that

W.B.'s circumstances had changed sufficiently to ensure that F.M. and S.M. would not be

subj ect to further abuse or neglect if returned to W.B. 's custody. Indeed, W.B. concedes that

she was not asking the court to return the children to her custody, but only to allow her to

visit with them. Consequently, we conclude that the District Court's finding that the conduct



                                                5
or condition rendering W.B. unfit to parent her children is not likely to change within a

reasonable time is not clearly erroneous.

~10    W.B. also argues that the District Court's finding that it is in the children's best

interests to terminate her parental rights is erroneous because the testimony of the children's

social workers and therapists was unanimous that the children should have contact with her

in the future. She asserts that, ifher parental rights are terminated, there is no guarantee that

such contact will occur and, therefore, termination is not in the children's best interests. It

is true the social workers and therapists believed that contact with W.B. would be beneficial

for F.M. and S.M. when they are psychologically ready for that to occur. However, these

witnesses also testified unanimously that termination ofW.B. 's parental rights is appropriate.

The testimony established that the children are in need of permanency and stability in their

lives in order to effectively progress in their therapy and the continued fantasy of being

returned to their mother's care someday was detrimental to the therapeutic process.

Consequently, according to these witnesses, it was in the children's best interests to terminate

W.B.'s parental rights in order to remove this barrier to their progress in therapy. We

conclude that this testimony constitutes substantial evidence supporting the District Court's

finding that it is in the bests interests ofF.M. and S.M. to terminate W.B.'s parental rights.

~11    We conclude that the District Court's findings of fact are supported by substantial

evidence and not otherwise clearly erroneous, and its conclusions of law are correct. As a




                                               6
result, we hold that the District Court did not abuse its discretion in tenninating W.B.'s

parental rights.

,-r 12   Affinned.




We concur:




         {~ stices




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