                                NO. 8 8 - 4 1 3

               IN THE SIJPREME COURT OF THE STATE OF MONTANA
                                     1989




IN THE MATTER OF
L.W.K., D.E.K., A.J.K,
YoutU in Need of Care.




APPEAL FROM:     District Court of the Thirteenth Judicial District,
                 In and for the Countv of , -         -&
                                                      \ &L&~W-
                 The Honorable Russel 1- Fil.lner, Judge presidinq.

COUNSEL OF RECORD:
       For Appellant:
                 Jeffrey T. Renz, Rillings, Montana

       For Respondent :

                Hon. Marc Racicot, Attorney General, Helena, Montana
                John Paulson, Asst. Atty. General, Helena
                Harold Hanser, County Attorney; Greg S. Mullowney,
                Deputy County Atty., Billings, Montana
                Damon L. Gannett; Olsen, Christensen & Gannett,
               +Billings, Montana
               crl




                                     Submitted on Briefs: Dec. 9 , 1 9 8 8

                                        Decided: January 27, 1989

Filed: z
       c.,-
        7




                 -                        A       -          --
                                     Clerk
Mr. Justice William E. Hunt, Sr., delivered the Opinion of
the Court.


     The District Court of the Thirteenth Judicial District,
Yellowstone County found that the best interests of L.W.K.,
D.E.K., and A.J.K., minor children, were to terminate their
natural father's parental rights.     George K., the father,
appeals. We affirm.
     The issues raised on appeal are:
      (1) Whether the District Court erroneously placed the
burden of proof on the natural father when determining
whether the court-approved treatment plan was successfully
completed.
      (2) Whether the court-approved treatment plan devised
for the natural father, George K., was inappropriate as a
matter of law because of allegations that the State failed or
refused to perform its tasks under the plan.
     George K. and Norma H. were married May 6, 1969 and are
the natural parents of five children.        Two of the five
children were emancipated prior to this appeal. Throughout
the marriage, Georqe worked primarily as a musician and as a
laborer as the opportunities arose.        He was generally
unemployed during the winter months.      George managed the
finances for the family, which generally lived in varying
degrees of poverty and in homes that ranged from untidy to
filthy.
     In November, 197'8, George pled guilty to aggravated
assault of his two youngest children who were then three and
four years of age.      After this incident, Norma left the
familv residence with the five children and filed for
dissol-ution of her marriage. In October, 1979, George's and
Norma's marriage was dissolved, with Norma receiving custody
of the children and George receiving reasonable visitation.
Norma was not granted child support at that time because
George was disabled and unemployed.
      From the time of separation in May, 1978, Norma and the
children moved several times and finally settled in a house
without water or heat. Concern for the children emerged from
several sources, including the school, the Rig Brothers and
Sisters program, and juvenile authorities. Norma eventually
consented to place the children in foster care and to
commence an evaluation of herself and the children. After
the evaluations, Norma attempted to care for the children
with welfare assistance and supervision. She worked two jobs
in an effort to support herself and the children, but after a
trial period, she concluded that the situation was not in the
best interests of the children. The Montana Department of
Social and Rehabilatation Services (SRS) sought and was
granted, with Norma's consent, temporary custody of the
children.
      Throughout this time, George lived first with his
mother, then a girlfriend, and then finally with another
girlfriend, Jean Z., and her three children. George and Jean
were married in February, 1984.     During this time, George
visited his children at random and occasionally babysat for
them.    George was thus aware of the conditions under which
his children lived in the various locations.
      In May, 1984, Norma, on her own volition and after
discussing the possibility of adoptions through SRS, signed
relinquishments as to the three youngest children--L.W.K.,
D.E.K. and A.J.K. George did not agree to such an action and
therefore SRS considered granting custody of the three
youngest children to George, to live in a home with him and
his new wife, Jean. However, in March, 1984, one of Jean's
children, D.Z. , then twelve years of age, was dj scovered to
have a burn on his foot that SRS suspected was a result of
deliberate abuse by George. SRS investigated the matter and
found the home of George and Jean to be very unkempt and
unclean. In an effort to make improvements, George and Jean
entered a service/treatment agreement with SRS.      Neither
party found the results satisfactory and, pursuant to the
request of George's attorney, the effort was discontinued.
     In October and December, 1984, another social worker
from SRS attempted to establish service/treatment programs
with George and Jean to determine whether to recommend
placement of George's three youngest children in their home.
Failure again resulted and SRS then filed a petition to
secure permanent custody of the three youngest children.
George opposed the petition.
     The District Court found that the children were youths
in need of care.   In making this determination, the court
relied on many factors, including the 1984 injurv to Jean's
child, D.Z.; George's failure to provide for the children
even though he was aware of their dire needs and had an
ability to respond; George's lack of any real interest in
having custody of the children; his psychological abuse o f
the children; and his lack of taking voluntary steps to
improve himself or to serve the best interests of the
children.   The court then noted that the criteria for
termination of a parent-child legal relationship are set
forth in S 41-3-609(1), MCA.       The pertinent portion of this
statute for this case reads:
     (1) The court may order a termination of the
     parent-child legal relationship upon a finding that
     the circumstances contained in suhsecti-on (1.1 fa) ,
     (1) ! b ? , or (1)(c) . . . :
     (c) The child is an adjudicated youth in need of
     care and both of the following exist:
     (i) an appropriate treatment - - - -
                                     plan that has been
     approvz - - court has not been complied with bv
              hy the
     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 (emphasis added).
The court then found that neither of the two treatment plans
suggested by SRS were, as required by the statute, approved
by the court.   The court therefore held SRS's request for
permanent custody in abeyance, pending implementation of a
court-approved treatment plan and receipt of evidence
indicating whether George successfully complied with the
plan. A court-approved treatment plan was adopted on April
14, 1986 for a six month period beginning May 1, 1986.
     On March 3, 1988, after a hearing was held, the District
Court found that George did not successfully comply with the
treatment plan implemented by the court on April 14, 1986.
In making this determination, the court found that George did
not comply with several of the required tasks, including
meeting regularly with Dr. Dee Woolston, a therapist; meeting
with Sally Brewer, D.E.K.'s therapist, on a scheduled basis;
completing a series of parenting classes; visiting A.J.K. and
D.E.K.; establishing contact with L.W.K.; and providing a
home large enough to accommodate all the children.        The
District Court therefore found that terminating the parental
rights of George is in the best interests of the children and
granted permanent legal custody of the children to the
Montana Department of Family Services with authority to
assent to their adoption. The court also concluded that, if
possible, the best interests of D.E.K. and A.J.K. will he
served if George and Norma remain in contact with them.
     The first issue raised on appeal is whether the District
Court erroneously placed the hurden of proof on the natural
father when determining whether the court-approved treatment
plan was successful-ly completed.
     When determining that George failed to comply with the
court-approved treatment plan, the District Court stated.
throughout its Findings of Fact and Conclusions of Law that
"George failed to show that he complied .     .. ." George
argues that when terminating parental rights, the State has
the burden of proof and must show its case by clear and
convincing evidence.    George therefore argues that the
District Court erroneously placed the burden of proof on him,
the natural father, as evidenced by these statements.
     Procedures employed by a state, seeking to terminate the
relationship between a parent and a child, must meet the
requisites of the Due Process Clause of the Fourteenth
Amendment. Lassiter v. Dept. of Social Services (1981), 453
U.S. 18, 24-32, 101 S.Ct. 2153, 2158-62, 68 L.Ed.2d 640.
This Court also recognizes that depriving natural parents of
the custody of their children constitutes an extreme invasion
by the State into an individual's privacv. In the Matter ' o
Doney (1977), 174 Mont. 282, 285, 570 P.2d 575, 577.
     The criteria for terminating parental rights in this
state are set forth in $ 41-3-609, MCA.
                           5                   The specific
provision under which the court terminated George's parental.
rights states that the court must find that the children are
youths in need of care, the parents have not complied with an
appropriate court-approved treatment plan, and the parents'
conduct or condition rendering them unfit is unlikely to
change within a reasonable time.     Section 41-3-609 (1)(c),
MCA. In the case, In the Matter of J.L.B. (1979), 182 Mont.
100, 594 P.2d 1127, this Court held the standard of proof
required when terminating parental rights is "clear and
convinci ng. "   J.L.B., 182 Mont. at 116-17, 594 P.2d at
1136-37.    The IJnited States Supreme Court has subsequently
held that when terminating parental rights a "clear and
convincing evidence" standard of proof adequately satisfies
the Due Process Clause of the Fourteenth Amendment. Santosky
v. Kramer (1982), 455 U.S. 745, 769-70, 102 S.Ct. 1388, 1403,
71 L.Ed.2d 599.
     The parent always has the responsibility to comply with
the treatment plan.   When the State petitions to terminate
parental rights--a right deemed essential by the United
States Supreme Court, - Meyer v. Nebraska (1923), 262 U.S.
                      see
390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042--the burden falls
on the State to prove by clear and convincing evidence all.
the elements necessary to terminate a parent's right under
the appropriate statute.      Under S; 41-3-609 (1)(c), MCA, the
State must therefore prove by clear and convincing evidence
that the child is a youth in need of care, that the parent
did not comply with a court-approved treatment plan, and that
the condition will not change within a reasonable time.
     While the District Court suggested that the burden of
proof was on the natural father, George, to show by clear and
convincing evidence that he did not comply with the
court-approved treatment plan, the record clearly indicates
that the State carried this burden. The State submitted
reports and brought forth the witnesses which testified on
matters upon which the court based its finding that George
did not comply with the treatment plan.    We therefore hold
that the State met its burden of showing that George did not
comply with the treatment plan by clear and convincing
evidence.
        The second issue on appeal is whether the court-approved
treatment plan devised for the natural father, George K., was
inappropriate as a matter of law because of allegations that
the State failed or refused to perform its tasks under the
plan.
     Georqe notes that under the treatment plan, tasks were
established for SRS as well as George.   George then argues
that SRS refused to carry out its tasks, and therefore the
treatment plan was unrealistic.     In his argument, George
states that he understood that after his one meeting with Dr.
WooLston, he did not need to see Dr. Woolston again; that SRS
refused to assist in establishing a regular schedule of
appointments with Sally Brewer and in finding a parentinq
course with a "more realistic schedule;" that SRS failed to
keep appointments and inadequatelv informed George ahout his
progress.   Georqe therefore argues that if SRS fails or
refuses to perform its part of the treatment plan,
contributing to the parents' failure of the plan, then a
treatment plan should be inappropriate as a matter of law.
     We disagree with George's assertion that SRS failed or
refused to perform its tasks under the treatment plan. The
District Court had the advantage of observing the demeanor of
the witnesses and assessing their credibility and therefore
was in the best position to resolve conflicts in the
evidence. Weyler v. Kaufman (1981), 196 Mont. 132, 136, 638
P.2d 393, 396.   While conflicting evidence may exist, this
Court will not set aside the District Court's findings of
fact unless they are shown to be clearly erroneous.              Rule
52 (a), M.R.Civ.P.
     In   the   present   case,   the   District Court   noted   the
conflicting evidence between George and Dr. F7001ston~ and
found that George felt, after one meeting with Dr. bloolston,
that he did not need therapy with Dr. Woolston. Likewise,
the court found that George attended only twenty-three of the
thirty-five scheduled meetings with Sally Brewer, George's
son's therapist, but did not, as required by the plan, inform
Sally Brewer that he would be missing any meetings nor did he
provide a reasonable excuse.     The court also found that
George did not seek nor require any assistance in setting up
the appointments with the therapists, but rather showed a
general lack of interest in attending these meetings and in
providing his children with the necessities of life.     The
agency's counter task for this provision stated that the
agency is "to assist in establishing a regular schedule of
appointments . . . with the therapists    .    .
                                            . " (emphasis
added).  While the State was responsible to assist George,
the State was not required to force George to attend therapy
with Dr. Woolston or to attend meetings with his son's
therapist.
     In light of the above, we conclude that George's basic
premise, that the State failed or refused to perform its
tasks under the treatment plan, lacks merit.    We therefore
need not determine whether a court-approved treatment plan is
inappropriate as a matter of law when the State fails or
refuses to perform its tasks and affirm the District Court's
decision to terminate George's parental rights in regards to
L.W.K., D.E.K. and A.J.K.
     Affirmed.



We Concur:

   I
    Chief Justice
