                             NO.    91-168

          IN THE SUPREME COURT OF THE STATE OF MONTANA
                                   1992




APPEAL FROM:   District Court of the Thirteenth Judicial District,
               In and for the County of Yellowstone,
               The Honorable Maurice R. Colberg, Jr., Judge
               presiding.


COUNSEL OF RECORD:
          For Appellant:
               James A. Patten, Patten Law Firm, Billings, Montana.
          For Respondents:
               Hon. Marc Racicot, Attorney General, Helena,
               Montana:   Cregg W. Coughlin, Assistant Attorney
               General, Helena, Montana: Dennis Paxinos, County
               Attorney, Billings, Montana:   Susan Dunn, Deputy
               County Attorney, Billings, Montana;      Damon L.
               Gannett, Attorney at Law, Billings, Montana; D.
               Michael Eakin, Attorney at Law, Billings, Montana.



                             Submitted on Briefs:       February 13, 1992
                                             Decided:   March 24, 1992
Filed:
Chief Justice J. A. Turnage delivered the Opinion of the Court.
     M.M. (Mother) appeals the findings of fact, conclusions of law
and judgment of the Thirteenth Judicial District, Yellowstone
County, terminating her parental rights to her children, A.N.S. and
L.M.R.    We affirm.
     We rephrase the issues presented on appeal as follows:
     1.    Did the District Court lack jurisdiction to terminate
Mother's parental rights?
     2.    Did the District Court abuse its discretion in denying
Mother's motion to dismiss?
     3.   Were the District Court's findings of fact, conclusions of
law, and the judgment supported by substantial credible evidence?
     Mother is the natural mother of three children:       L.M., born
October 29, 1983; A.N.S., born November 19, 1987; and L.M.R., born
March 16, 1989.    The natural father of L.M. is unknown.     L.S.   is
the natural father of A.N.S. and is incarcerated at Montana State
Prison.    M.R. is the natural father of L.M.R.
     Mother suffers from a chronic schizophrenia, undifferentiated
type, and a borderline personality disorder.       Her mental illness
causes her to suffer paranoia and active hallucinations. On August
19, 1985, the District Court terminated Mother's parental rights to

L.M. after finding 1)       L.M. to be a youth in need of care under
g 41-3-102, MCA,   2)     Mother incapable of adhering to any proposed
treatment plan, and 3 )    Mother unfit and unable to provide adequate
parental care to L.M. with her conduct and condition unlikely to
                                    2
change in a reasonable amount of time.          In the Matter of L.M.,
Thirteenth Judicial District Court, Yellowstone County, Cause No.
DJ-85-007 (1985)   .
       A.N.S.   and L.M.R.   have been under protective custody of
Montana Department of Family Services since their births.       A.N.S.

was placed in foster care and L.M.R.        was placed with his father,
M.R.    Besides periodic visits,   A.N.S.   has never been in Mother's
custody.    L.M.R has never lived with Mother.
       From 1984 to 1989, Department of Family Services and other
agencies attempted to assist Mother in developing parenting skills
with minimal success. Mother's conduct and condition continued to
render her unable to provide adequate parenting skills.
       On May 24, 1989, a deputy county attorney, on behalf of
Montana Department of Family Services, petitioned the District
Court for permanent legal custody and termination of Mother's
parental rights to A.N.S.    and temporary legal custody and termina-
tion of mother's parental rights to L.M.R.        On July 10, 1990, the
District Court terminated Mother's rights to A.N.S.         and L.M.R.
From this order, Mother appeals.


       1.   Did the District Court lack jurisdiction to terminate
Mother's parental rights?
       Mother argues that 5 41-3-607(1), MCA, which provides that a
dispositional hearing on termination of parental rights be held
within 180 days of the filing of the petition, mandates that a
                                   3
petition be dismissed if a hearing is not held within the pre-
scribed time. Here, the petition was filed May 24, 1989. The case
was assigned to District Court Judge Barz.    Thereafter, Judge Barz
was appointed to the Montana Supreme Court.       Judge Colberg was
appointed as a judge to the Thirteenth Judicial District on
November 13, 1989.   On November 30, 1989, Judge Colberg scheduled
a dispositional hearing in this matter for February 14, 1990.
Thereafter, Mother moved for a continuance but reserved her rights
to assert all defects arising due to the lapse of time period.
This matter was then heard on March 20 and 21, 1990.
     The 1985 Montana Legislature amended 5 41-3-607(1),    MCA, as
shown by the underlined portion which follows:
     The termination of a parent-child legal relationship
     shall be considered only after the filing of a petition
     pursuant to 41-3-401 alleging the factual grounds for
     termination.     Termination of a parent-child legal
     relationship shall be considered at a dispositional
     hearing held pursuant to 41-3-406, following or together
     with an adjudicatory hearing held pursuant to 41-3-404,
     within 180 d a w after the filina of the petition.
See, 1985 Mont. Laws, Ch. 388.       The Legislature's intent was to
give added protection to children who are the subjects of abuse,
neglect, and dependency by encouraging those cases to be handled in
a reasonably prompt manner.   Nothing in the legislative history of
this amendment suggests that the Legislature intended that an
action be dismissed when a dispositional hearing is not held within
the 180-day time frame or that the amendment was intended to



                                 4
provide a statute of limitation protection for the parents of
children who are alleged to be abused, neglected, or dependent.
        Mother further argues that the word tvshalll' this statute
                                                    in
mandates dismissal of this action if the 180-day time limitation is
not met.      While the word "shall" in a statute is oftentimes
mandatory, other      factors must       be   considered to   determine a
statute's mandatory or directive effect when a time limitation is
involved.
        In State v. Nelson (Kan. 1968), 436 P.2d 885, cert. denied,
392 U.S. 915, the court considered a similar challenge to a court's

jurisdiction, wherein a criminal defendant sought discharge from
incarceration when the court did not impose sentence within five
days of the court's denial of his motion for a new trial.             The
court held:
        Provisions intended to secure order, system and dispatch
        in the mode of proceeding by public officials, and by a
        disregard of which parties cannot be injuriously affect-
        ed, are not regarded as mandatory unless accompanied by
        negative words importing the acts required shall not be
        done in any other manner or time than that designated.
        [Citations omitted.]
Nelson, 436 P.2d at 887.
        The same reasoning was enunciated in Wyoming State Treasurer
v. City of Casper (Wyo.      1976), 551 P.2d      687, wherein the court

held:
        It is a universal holding that a statute specifying a
        time within which a public officer is to perform an
        official act regarding the rights and duties of others is
        directory, unless the nature of the act to be performed,
        or the phraseology of the statute is such that the
                                     5
     designation of time must be considered as a limitation of
     the power of the officer. [Citations omitted.]
     ....
     Another aid to construction is in the rule that an
     affirmative statutory provision relating to the time of
     performing official acts, unlimited or unqualified by
     negative words, is generally considered as directory
     rather than mandatory. [Citations omitted.]
City of Casper, 551 P.2d at 698-99.
     In Wilson v. Brodie (1966), 148 Mont. 235, 419 P.2d 306, this
Court considered whether a justice court lost jurisdiction to enter
sentence when the sentencing did not meet the statutory requirement
that it occur "not more than two days nor less than six hours after
the verdict is rendered.''    Although deciding the case on other
grounds, this Court stated:
     Even if the sentencing, arguendo, was imposed irregularly
     it is still valid for the purpose of determining whether
     the justice was acting within his jurisdiction. It is
     merely a procedural irregularity which cannot be raised
     for the purpose of attacking the jurisdiction of the
     justice court.    [Citations omitted.]    The statute is
     directory rather than mandatory or jurisdictional.
Wilson v. Brodie, 148 Mont. at 239, 419 P.2d at 309. Accordingly,
we hold that 5 41-3-607(1), MCA, is directory and therefore, the
District Court did not lack jurisdiction to terminate Mother's
parental rights based on the 180-day time limitation.


     2.   Did the District Court abuse its discretion in denying
Mother's motion to dismiss?



                                 6
     Mother argues that because the dispositional hearing was not
held within 180 days of the filing of the petition, the evidence
presented at the dispositional hearing was stale and not based upon
Mother's current situation.    Following a review of the record, we
hold that nothing about the delay in the hearing caused prejudice
to Mother.    The record indicates that 1) Mother has been seriously
mentally ill for years, 2) five years of treatment plans and other
agency involvement to help Mother with parenting skills have proven
unsuccessful, and 3 )   Mother's condition and conduct are unlikely
to change in the future. We therefore hold that the District Court
did not abuse its discretion when it denied Mother's motion to
dismiss.


     3.    Were the District Court's findings of fact, conclusions of
law, and the judgment supported by substantial credible evidence?
     Section 41-3-609, MCA (1989), sets forth the criteria the
District Court was to follow for terminating Mother's parental
rights:
     (1) The court may order a termination of the parent-
     child legal relationship upon a finding that the circum-
     stances contained in subsection (1)(a), (1)(b), or
     (1) (c), as follows, exist:

     . . .
     (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 approved
     by the court has not been complied with by the parents or
     has not been successful: and
                                   7
    (ii) the conduct or condition of the parents rendering
    them unfit is unlikely to change within a reasonable
    time .
     (2) In determining whether the conduct or condition 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 duration or nature as to
     render the parent unlikely to care for the ongoing
     physical, mental, and emotional needs of the child within
     a reasonable time;
     ...
     (9)    any reasonable efforts by protective service
     agencies that have been unable to rehabilitate the
     parent.
     Mother argues that the record does not support by substantial
credible evidence the statutory criteria of 5 41-3-609, MCA (1989).
She argues that the record merely proves that Mother is uncoopera-
tive and argumentative.   We disagree.
     The record indicates that the children were adjudicated to be
youths in need of care.     Ten witnesses, including health care
professionals, social workers, a home attendant, a child care
volunteer, a friend of Mother's, and a neighbor gave testimony
relating to 1) several unsuccessful attempts to assist Mother with
developing parenting skills through treatment plans and agency
involvement and 2) Mother's ongoing inability to provide adequate
parenting skills for her children.       In particular, Dr. David
                                 8
Carlson, a psychiatrist, testified that Mother suffers from chronic
schizophrenia, undifferentiated type, and a borderline personality
disorder, mental illnesses of such duration or nature as to render
her unlikely to be able to care for the ongoing physical, mental,
and emotional needs of her children within a reasonable time.
Based on this clear and convincing testimony, we hold that the
District Court's findings of fact, conclusions of law, and judgment
are supported by    clear and convincing evidence.
     In conclusion, we affirm the District Court's findings of
fact, conclusions of law and judgment terminating Mother's parental
rights to A.N.S.   and L.M.R.




We concur:




                                  9
          IN THE SUPREME COURT OF THE STATE OF MONTANA
                                NO. 91-168

IN THE MATTER OF A.N.S.,
and L.M.R., Youths
in Need of Care.

     The Opinion of this Court in the above-entitled matter,
decided March 24, 1992, is hereby amended as follows:
     On page 2, paragraph 5, the statement of the third issue is
amended to read:
          3.   Were the District Court's findings of fact,
     conclusions of law, and the judgment supported by clear
     and convincing evidence?

     On page 7, paragraph 2, the statement of the third issue is
amended to read:
          3.   Were the District Court's findings of fact,
     conclusions of law, and the judgment supported by clear
     and convincing evidence?

     On page   8,   paragraph 6, the first sentence is amended to read:
          Mother argues that the record does not support by
     clear and convicing evidence the statutory criteria of
     5 41-3-609, MCA (1989).

     DATED this     zL - day of March,
                        $
                        2
                                          1992.     /
