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                                                                 No. 98-454



                               IN THE SUPREME COURT OF THE STATE OF MONTANA



                                                              1999 MT 112N




IN THE MATTER OF THE CUSTODY AND

THE PARENTAL RIGHTS OF M.R.W.,



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 Jeffrey M. Sherlock, Judge presiding.




COUNSEL OF RECORD:



For Appellant:


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Jeremy Gersovitz, Assistant Public Defender, Helena, Montana



For Respondent:



Hon. Joseph P. Mazurek, Attorney General; Mark W. Mattioli, Assistant

Attorney General, Helena, Montana



Mike McGrath, Lewis & Clark County Attorney; Carolyn A. Clemens,

Deputy Lewis & Clark County Attorney, Helena, Montana



Attorney for Youth:



Randi M. Hood, Chief Public Defender, Helena, Montana




                                                                                                     Submitted on Briefs: April 1, 1999



                                                                                                                  Decided: May 25, 1999

Filed:




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__________________________________________

Clerk



Justice W. William Leaphart delivered the Opinion of the Court.




¶1. Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal
Operating Rules, the following decision shall not be cited as precedent but shall be
filed as a public document with the Clerk of the Supreme Court and shall be
reported by case title, Supreme Court cause number and result to the State Reporter
Publishing Company and to West Group in the quarterly table of noncitable cases
issued by this Court.

¶2. Michael Donovan Wilson (Michael) and Raylene Jarvis (Raylene), the father and
mother of M.R.W., appeal from the order of the First Judicial District Court, Lewis
and Clark County, terminating their parental rights. We affirm the decision of the
District Court.

¶3. Michael and Raylene contend that the treatment plan was "incredibly short" and
that the Department of Public Health and Human Services, Division of Child and
Family Services (the Department) did not prove by clear and convincing evidence
that their parental rights should be terminated.

¶4. The standard of review for a termination of parental rights case is set forth in In
the Matter of D.H. and F.H. (1994), 264 Mont. 521, 872 P.2d 803:

"This Court will affirm the findings of a trial court sitting without a jury unless the
findings are clearly erroneous. Rule 52(a), M.R.Civ.P. . . . "


....


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"We adopt the following three-part test to determine if a finding is clearly erroneous. First,
the Court will review the record to see if the findings are supported by substantial
evidence. Second, if the findings are supported by substantial evidence we will determine
if the trial court has misapprehended the effect of evidence. Third, if substantial evidence
exists and the effect of the evidence has not been misapprehended the Court may still find
that '[a] finding is "clearly erroneous" when, although there is evidence to support it, a
review of the record leaves the court with the definite and firm conviction that a mistake
has been committed.' " This is the appropriate standard to be applied to purely factual
findings in a proceeding to terminate parental rights. The second reason the previously
articulated standard of review for termination of parental rights is inadequate is that, as a
general rule, we review conclusions of law to determine whether they are correct. This is
also the appropriate basis for reviewing most conclusions of law in a termination
proceeding.


However, we find that the conclusion that a child is abused and neglected involves a
decision that is neither purely factual nor purely legal, and is analogous to a district court's
determination of conscionability when reviewing marital and property settlement
agreements.


"When it determines the conscionability of a marital and property settlement agreement, a
district court 'engage[s] in discretionary action which cannot be accurately characterized
as a finding of fact or a conclusion of law.' "


Matter of D.H. and F.H., 264 Mont. at 524-25, 872 P.2d at 805-06 (citations omitted).


¶5. Section 41-3-609(1)(e), MCA, requires that the District Court find that the child
is a "youth in need of care" and that both of the following facts 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


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

(f) the parent has substantially failed to successfully complete or meet the goals of a
treatment plan approved by the court and the child has been in an out-of-home placement
for a cumulative total period of 1 year or longer.

(2) In determining whether the conduct or condition of the parents is unlikely to change
within a reasonable time, the court shall 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. . . .

Section 41-3-609, MCA.


¶6. By stipulation and order of the District Court, the youth was declared a "youth in
need of care" and the Department was ordered to develop a treatment plan directed
at reuniting the youth with his parents. Treatment plans were signed by the parents,
approved by the court, and filed on November 12, 1997 and December 11, 1997. On
February 12, 1998, the Department filed a petition for termination of the parental
rights of Raylene and Michael. Raylene did not appear at the hearing to terminate
her parental rights despite being served with notice.

¶7. Raylene had lost parental rights to four other children and the District Court
found that she had "no understanding as to why she had lost her other children."
Michael had lost parental rights to one other child. Neither parent had completed a
treatment plan with regard to any of the other children. An in-home evaluator was
hired by the Department to perform a "parenting assessment." The child was
brought to the parents' home for extended visits while the assessment was taking
place. Raylene and Michael did not have their own home during October and
November; part of the time they resided with a convicted sex offender, and part of
the time they lived in a motel. Raylene missed two of the scheduled visits and Michael
missed more than half of the visits. Although Raylene attempted to clean house prior
to visits, the living arrangements were very unsanitary.

¶8. The District Court found that the parents did not meet the treatment plan

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requirement for a "stable and consistent lifestyle." Both Raylene and Michael are
presently on supervision with the Adult Probation Officer--Raylene for elder abuse
and Michael for theft. Although the plan required that they be law abiding, Michael
was in the Cascade County Jail at the time of the termination hearing for failure to
pay fines, and there was testimony that both parents were in violation of their
probation for having beer in their apartment. In addition, Michael had been in jail in
October and Raylene had been in jail in December. Furthermore, neither parent
completed chemical dependency treatment or mental health counseling as required
by the plan.

¶9. The District Court found that the approved treatment plan was not successful as
the parents had done nothing to complete the plan following the assessment. The
court further found that the conditions making the parents unfit were unlikely to
change within a reasonable time

in that they have both had previous treatment plans which they have not completed, and
they have also not completed the Court-approved plan in this case. Both parents have lost
children previously and have had considerable involvement with the Department, which
has not resulted in any improvement in their ability to parent.


¶10. The parties stipulated that M.R.W. was a youth in need of care. We hold that
the District Court's findings that the court-approved treatment plan was not
successful and that the conditions making the parents unfit were unlikely to change
within a reasonable time are supported by substantial evidence and, thus, are not
clearly erroneous. The judgment of the District Court is therefore affirmed.

/S/ W. WILLIAM LEAPHART




We concur:


/S/ J. A. TURNAGE


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/S/ JAMES C. NELSON

/S/ KARLA M. GRAY

/S/ TERRY N. TRIEWEILER




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