                                   NO.    89-595
                  IN THE SUPREME COURT OF THE STATE OF MONTANA
                                         1990


       IN THE MATTER OF D.G.,
       A Youth in Need of Care.



       APPEAL FROM:    District Court of the First Judicial District,
                       In and for the County of Lewis & Clark,
                       The Honorable Thomas C. Honzel, Judge presiding.


       COUNSEL OF RECORD:
                 For Appellant:
                       Edmund F. Sheehy, Jr., Cannon   &   Sheehy, Helena,
                       Montana
                 For Respondent:
                       Marc Racicot, Attorney General, Helena, Montana,
                       Jennifer M. Anders, Assistant Attorney General,
                       Helena, Montana
                       Mike McGrath, County Attorney, Helena, Montana,
                       Carolyn Clemens, Deputy County Attorney, Helena,
                       Montana
                       Randi Hood, Public Defender's Office, Helena,
                       Montana


.-,+                                               Submitted:   May 16, 1990
                                                     Decided:   July 19, 1990

        JUL 1 9 1990

 CLEAKOFSUPREMECOUR
    STATE OF MONTANA
Justice William E. Hunt, Sr., delivered the Opinion of the Court.


     Appellant L.G.H. , the natural mother of D.G., appeals from the
order of the District Court of the First Judicial District, Lewis
and Clark County, terminating her parental rights. We affirm.
     The issues raised on appeal are:

     1)       Whether   the   ~istrict Court   erred   in   terminating
appellant's parental rights rather than awarding Department of
Family Services long-term custody of D.G.
     2)      Whether the ~istrict Court abused its discretion in
ordering the Department of Family Services to consider visitation
by the appellant following adoption.
     D.G.    was born   on June 24, 1982, to appellant and G.G.
Appellant also had two other children.    Beginning approximately at
the time of D.G.'s birth, a pattern of chronic neglect of all the
children, as documented by the Department of Family Services
(Department), began developing.
     The State's involvement with D.G.'s welfare was initiated in
1986 when D.G. was four years old.    The Department began receiving

numerous reports about D.G. alleging neglect, physically aggressive
behavior, and inappropriate sexual conduct for a boy his age.
After each report the Department discussed its concerns with
appellant.    Although appellant displayed a cooperative attitude,
she repeatedly failed to follow through with counseling for D.G.
or with the Department's recommendations that D.G. participate in
various services.
     In response to these numerous reports and appellant's failure
to act, the Park County Attorney filed a petition requesting that
the Department be given temporary investigative authority over
D.G. Appellant signed a stipulation and treatment plan in August,
1987, which was approved by the court.               Appellant and    D.G.
subsequently    moved   to     Helena,    Montana,    resulting      in   a

jurisdictional transfer of the petition to Lewis and Clark County.
     On July 3 1 , 1987, D.G. was placed in the child psychiatric
unit of Shodair Children's Specialty Hospital            (Shodair) with
appellant's permission.      The Shodair staff concluded that D.G. had
been subjected to physical, emotional, psychological, and sexual
abuse, and that his tantrums and manipulative behaviors were the
result of a dysfunctional, abusive, and unstable family life.
     Upon his release from Shodair in September, 1987, D.G. was
placed   in foster care.       While    in foster care, his behavior
deteriorated.   As a result, he was placed at the Intermountain
Deaconess Home (Deaconess) for children.
     In response to the petition of the Park County Attorney, a
hearing was held in Lewis and Clark County and the court granted
90-day investigative authority to the Department.             After the
investigation was completed, the Lewis and Clark County Attorney's

office filed a petition for temporary custody and protective
services.   A hearing was held at which the court found that D.G.
was a youth in need of care.     In June, 1988, the court granted the
Department temporary custody of D.G. for a period of one year and
directed the Department to prepare a treatment plan to be approved
by the court.    The treatment plan was prepared, signed by both

                                    3
parents, and subsequently approved by the court.         Appellant failed
to comply with this second treatment plan.
       In February, 1989, appellant was sentenced to twenty-five
years at the State Women's Correctional Facility for the offense
of criminal sale of dangerous drugs.        Her sentence was amended by
the Sentence Review Division of the Montana Supreme Court to
twenty-five years with ten years suspended.            With her amended
sentence, appellant could be eligible for parole in approximately
October, 1991.     D.G. has been able to visit appellant on three or
four occasions since her incarceration.
       After the completion of the one-year temporary custody period,
the County Attorney filed a petition to terminate appellant's
parental rights.     The petition also requested that the parental
rights of D.G. Is father be terminated.           A   hearing was held.
Testimony    by   D.G.'s   therapist   at   Deaconess,   Dodie   Heffner,
indicated that D.G. will need continued therapy and that such
therapy can only thrive in an atmosphere of consistency, security
and stability.      Heffner stated that she still sees aggressive
behavior and anxiety in D.G. and that he will need a lot of time
and attention. She stressed that D.G. needs a permanent placement
and recommended a permanent adoptive home.       However, Heffner also
recommended that it would be in D.G. Is best interests to retain
some   regular contact with     his mother.       The County     Attorney
supported such a recommendation.
       Following the hearing, the court terminated the parental
rights of appellant and D.G.'s father, concluding that neither
appellant nor D.G. 's father could presently provide the type of
care which D.G. needs and it is unlikely that they would be able
to do   SO   in the foreseeable future.        The court did recognize,
however, that it would be in D.G. ' s best interests to maintain

continuing contact with appellant.        Therefore, the court ordered
that, before the Department consents to an adoption of D.G.,
consideration should be given as to whether the adoptive parents
would voluntarily allow contact between appellant and D.G.
     The first issue to be raised on appeal is whether the District
Court erred in terminating appellant's parental rights rather than
awarding Department of Family Services long-term custody of D.G.
     The standard of review on appeal is:

     [w]e will not disturb the District Court's decision
     unless the findings of fact are not supported by
     substantial, credible evidence, or the conclusions of law
     amount to a clear abuse of discretion.
Matter of V.B., 229 Mont. 133, 744 P.2d 1248 (1987).           Section41-

3-609, MCA,     lists   the   criteria   the   court   must   consider   in
terminating the parental rights of an individual.         The court must
find the following:

     (c) the child is adjudicated a 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.

Section 41-3-609 (1)(c), MCA.
     The treatment plan was approved by the court on August 23,
1988, and had a six-month time frame. The evidence indicates that
appellant's compliance with the treatment plan had not even begun
by the time appellant was jailed in early December, 1988. Although

appellant's incarceration may have interfered with her ability to
complete the treatment plan, her failure to even begin the plan
within four months coupled with her consistent failure to complete

parenting tasks previously assigned by the Department foretells of
the potential failure of this treatment plan.
       Although not specifically considered by the court, it should
be noted that 5 41-3-609 (4) (b) , MCA, provides that a treatment plan
is not required if ''the parent is incarcerated for more than 1 year
and    such   treatment   plan   is    not   practical      considering   the
incarceration.     This section recognizes that a child may need help
while a parent is incarcerated and that such help cannot be delayed
pending the parent's release.          D.G. needs immediate help which
cannot wait for appellant's release.
       Additionally, the court found that appellant's conduct and
condition are unlikely to change within a reasonable time. Section
41-3-609(2), MCA, provides the court with various                 factors to
consider in making such a finding.            These factors include "any
reasonable efforts by protective service agencies that have been
unable to rehabilitate the parent."          Section 41-3-609(2)(g), MCA.
       The evidence indicates that, through repeated efforts, the
Department has been unable to rehabilitate appellant.              Appellant
is unable to care for D.G.            The Department was involved with
appellant for a period of seven years during which time little or
no progress was observed in appellant's ability to parent any of
her children.     In fact, a chronic pattern of neglect was reported
by    the   Department with   respect to      all   three    of   appellant's

                                      6
children.    The reports of the Department combined with appellant's
current state of incarceration support the court's finding that
appellant's condition and conduct are unlikely to change within a
reasonable time.
     Paramount to the court's decision to terminate parental rights
are the best interests of the child.          Section 41-3-609(3), MCA.
Although appellant argues that it would be in D.G. 's best interests
to award the Department long-term custody of D.G. rather than
terminating appellant's parental rights, the evidence indicates
otherwise.
     Long-term custody would allow appellant to retain visitation
rights and to petition the court to regain custody of D.G.            See
Matter of R.T.L.P., 777 P.2d 892, 46 St.Rep. 1354 (Mont. 1989).
Testimony by Dodie Heffner indicated that it was in D.G. Is best
interests to have appellant's parental rights terminated. D.G. is
an extremely emotionally disturbed child who needs consistency,
security,    and   stability.   He    needs    a   permanent   placement,
preferably in an adoptive home, and needs to know where he is
going. Long-term custody will not provide the permanency that D.G.
so desperately needs.       Although both      Heffner   and   the State
indicated that continuing contact between appellant and D.G. may
be in D.G.'s best interests, it is only a factor to be considered
in evaluating his overall condition.      The court's termination of
appellant's parental rights was proper.
     The second issue on appeal is whether the District Court
abused its discretion in ordering the Department to consider

visitation by the appellant following adoption.

                                  7
      This Court previously addressed this issue in Matter of V.B.
We held that, even if visitation by the natural parent is in the
child's best interest, such visitation cannot be ordered if a
parent's rights have been terminated.      Matter of V.B., 229 Mont.
at   137, 744 P.2d   at   1250.     Based upon       4-3-611(1) , MCA,
termination divests the     natural parent of all rights over the
child, including visitation. Matter of V.B., 229 Mont. at 137, 744
P.2d at 1250.
     However, we also held that, although the court cannot order
visitation, even with the Department's approval, the court may
order the Department to consider the availability of continuing
contact between parent and child in the event of an adoption.
Matter of V.B.,     229 Mont.     at 137, 744 P.2d    at 1250.    This
continuing contact will only be allowed in exceptional cases.
Matter of V.B., 229 Mont. at 137, 744 P.2d at 1250.
      In this case, the court specifically concluded that, based
upon the testimony of Heffner, this case is exceptional. The court
ordered that the Department consider continuing contact in the
event of an adoption.     Such ''restricted contact allowed by the
court falls short of a visitation right" and is, therefore, within
the District Court's discretion. Matter of V.B., 229 Mont. at 137,
744 P.2d at 1250.
     Affirmed.                            1
We Concur:
