 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-043%20Opinion.htm




                                                                No. 99-043



                           IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                              2000 MT 121N




IN THE MATTER OF T.F., B.F., and B.F.,

Youths in Need of Care




APPEAL FROM: District Court of the Thirteenth Judicial District,

In and for the County of Yellowstone,

The Honorable Diane G. Barz, Judge presiding.




COUNSEL OF RECORD:



For Appellant:



Bruce J. Allison, Allison Law Office, Billings, Montana (Diane Black); Bard Middleton, Middleton &
Stewart, Billings, Montana (Jerry Fitch); Damon Gannett, Gannett Law Firm, Billings, Montana
(Guardian ad litem)


 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-043%20Opinion.htm (1 of 10)3/28/2007 1:22:10 PM
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-043%20Opinion.htm




For Respondent:



Joseph P. Mazurek, Montana Attorney General, Mark W. Mattioli, Assistant Montana Attorney General;
Dennis Paxinos, Yellowstone County Attorney, Melanie Logan, Deputy Yellowstone County Attorney;
Suzanne Braun, Department of Public Health & Human Services, Billings, Montana (Community Social
Worker II)




Submitted on Briefs: April 20, 2000

Decided: May 4, 2000

Filed:




__________________________________________

Clerk




Justice James C. Nelson 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. The decision
         shall be filed as a public document with the Clerk of the Supreme Court and shall be

 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-043%20Opinion.htm (2 of 10)3/28/2007 1:22:10 PM
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-043%20Opinion.htm


       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 non-citable cases
       issued by this Court.
    2. ¶Diane B., the biological mother of T.F., B.F., and B.F., appeals from a judgment of
       the Thirteenth Judicial District Court, Yellowstone County, terminating her parental
       rights over the three minor children, and awarding permanent legal custody with the
       right to consent to adoption to the Montana Department of Public Health and
       Human Services (hereinafter, Department). We affirm.
    3. ¶Diane raises one issue on appeal:

Was there sufficient evidence to support termination of the natural mother's parental
rights?



                                         Factual and Procedural Background

    1. ¶Diane's parental rights were terminated by the District Court on October 20, 1998,
       following a September 1998 hearing. Diane and Jerry F. are the biological parents of
       T.F., B.F., and B.F., whose ages are now eight, six, and three, respectively. Jerry F.'s
       parental rights were also terminated in this proceeding. He is not a party to this
       appeal.
    2. ¶At the time of the hearing, T.F. had spent approximately half her life in foster care;
       the youngest, B.F., had spent all three years of her life in foster care. It is undisputed
       that the three children, all in the custody and care of Diane's older sister, are doing
       well, in a stable home. It is likewise undisputed that Diane's relationship with Jerry
       is a long, bleak story of alcohol and substance abuse mixed with episodes of
       gambling binges, physical violence, arrests and incarcerations.
    3. ¶The hearing culminated the Department's intervention into the affairs of Diane and
       her family that began in 1991. In that year, after receiving numerous reports of
       alcohol abuse and physical neglect of her minor children (Diane has five other
       children in addition to the three here, none of which remain in her custody), the
       Department substantiated physical neglect in June 1991, and July 1992, but the
       children were not removed. Diane, in fact, was arrested in 1991 for child
       endangerment after being found intoxicated and wandering between bars with her
       one-and-a-half year old son. Similar reports continued throughout 1993 and 1994.
    4. ¶In June of 1995, however, her children were removed following an incident where
       Diane, while intoxicated, fell and injured her oldest daughter, T.F. The Department

 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-043%20Opinion.htm (3 of 10)3/28/2007 1:22:10 PM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-043%20Opinion.htm


        was granted temporary investigative authority, and Diane was provided a treatment
        plan. The children were placed in the custody of Diane's sister during this time and
        were briefly returned to Diane's care in December of 1995.
   5.   ¶On January 25, 1996, the Department was notified that Jerry F. had assaulted
        Diane. Alcohol was again a prime suspect in the incident. It was determined that
        Diane, who was pregnant with the youngest B.F. at the time, was unable to care for
        her children, due to her alcohol abuse. The Department again filed for temporary
        investigative authority, which was granted. The children were returned to the care of
        Diane's sister.
   6.   ¶During that year, Diane made minimal compliance with four treatment plans, and
        B.F. was removed from Diane immediately after giving birth in May, and placed
        with Diane's sister.
   7.   ¶On January 6, 1997, Diane informed her caseworker that Jerry F. had been arrested
        for causing damage to their home, assaulting her, and threatening her life.
        Apparently, he had hung a noose from the rafters in their garage, and had threatened
        to hang her and make it look like a suicide. Although she provided this information
        to the police, she would later recant this version of the events.
   8.   ¶Shortly after his release from jail, Jerry F. was re-incarcerated for disobeying an
        order to have no contact with Diane. Jerry F. ultimately pled guilty to misdemeanor
        assault in November of 1997. During this time Diane testified in a deposition,
        recounting past altercations with Jerry in which her nose had been broken, in which
        her ribs had been broken, and in which she had been choked and punched. She also
        testified that she would be unwilling to testify against him.
   9.   ¶Following Diane's fifth treatment plan, which commenced in March 1997, the
        Department petitioned for permanent custody and termination of parental rights in
        July, 1997. A permanent custody hearing took place in November. The hearing was
        suspended after the District Court determined that more information was needed.
        The court required that Diane and Jerry submit to psychological evaluations, weekly
        urinalysis and breathalyser tests, and to attend weekly visits with the children for 90
        days. The District Court also ordered the Department to issue new treatment plans
        during this time. Finally, the court informed Diane and Jerry that any domestic
        reports would result in an immediate resumption of the hearing.
 10.    ¶During the period between November 24, 1997, to February 17, 1998, Diane was
        scheduled to submit to several urinalysis tests. One tested positive for
        amphetamines, she failed to provided samples on four other occasions, and she
        tested negative six times. Under the terms of her substance testing agreement, a
        failure to provide a sample is deemed a positive test.

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-043%20Opinion.htm (4 of 10)3/28/2007 1:22:10 PM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-043%20Opinion.htm


 11. ¶In February of 1998, the Department again petitioned for termination of parental
       rights. Diane subsequently entered into voluntary treatment plans in February, June,
       and July of 1998. Diane did not submit to any substance testing from February 23 to
       September 14, 1998, as required by her treatment plans, although she did attempt to
       finally sign up for tests in August, which led to a verbal altercation with staff at the
       testing facility. Between November of 1997 and September of 1998, Diane also
       missed numerous scheduled visitations with her minor children, which were also
       required by her treatment plans.
 12.   ¶A hearing on the Department's petition took place in September. Although Diane
       conceded that she did not complete all random urinalysis tests and missed visits with
       the children as required by her treatment plans, she contended that based on a report
       by Dr. Honeyman, she had the ability to adequately parent in the future if she
       continued in counseling and did not continue any substance abuse.
 13.   ¶Bruce Chessen, a licensed psychologist, testified that based on his tests and
       evaluations of both parents--which he conducted in 1997--it was unlikely Diane
       would be able to adequately parent in the future. He acknowledged that Diane could
       benefit from counseling, but he noted that her problems were deeply ingrained. With
       an extensive history of alcoholism and abusive relationships, "no progress" was
       evident in attempts to make her change her behavior. He reported that "Diane has
       not, in the past, and does not presently show any desire or willingness to address her
       problems."
 14.   ¶Diane's sister testified that she frequently has observed Diane and Jerry's unstable
       relationship. She stated that she has observed bruises and other signs of Jerry's
       physical abuse, and provided corroboration for Diane's own accounts of physical
       abuse and altercations. She further stated that she has also observed Diane's neglect
       for her children, lack of parenting skills, and alcohol abuse.
 15.   ¶A Yellowstone County deputy attorney also testified to Diane's reports made to
       her, during the summer of 1998, of Jerry's abuse, and her desire to have him
       prosecuted. Diane's Department case worker testified, corroborating Diane's failure
       to comply with the treatment plan. Both Diane and Jerry testified at the hearing as
       well. Although she admitted she had not complied with the drug and alcohol testing,
       as well as the visitation schedule, she maintained that her relationship with Jerry
       was 100 percent better, she had been sober for two-and-a-half years, and was ready
       to resume parenting her daughters along with Jerry, who she characterized as a good
       father.
 16.   ¶The report of Dr. Honeyman, who did not testify, questioned the validity of any
       testing given to Diane, however, due to her "educational deficits, her intelligence

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-043%20Opinion.htm (5 of 10)3/28/2007 1:22:10 PM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-043%20Opinion.htm


     level, or some neurological damage based on her prior history of alcoholism."
     Honeyman reported that Diane had difficulty understanding the meaning of words
     as well as seventh-grade level concepts involved with the tests he conducted.
     Consequently, "[b]ecause the results of her current MMPI (a personality test) were
     so radically different from those in Dr. Chessen's report, there is some question
     about her ability to comprehend the concepts necessary to be adequately evaluated."
 17. ¶The court nevertheless concluded that testimony and evidence established beyond
     any reasonable doubt in a clear and convincing fashion that the continued custody
     by either parent of the children in this case would "result in serious emotional and/or
     physical damage to these children." Specifically, the court concluded that Diane's
     condition and conduct "render her unfit and unable to provide these children with
     adequate parental care" and have not "sufficiently improved over the past three
     years and are unlikely to change within a reasonable time." Therefore, the court
     concluded it was in the children's best interests to "terminate the parent-child
     relationship between them and their natural parents . . ."
 18. ¶Diane appeals the findings and conclusions of the District Court.

                                                      Standard of Review

   1. ¶This Court reviews a district court's conclusions of law to determine whether the
      court interpreted the law correctly. See In re J.N., 1999 MT 64, ¶ 11, 293 Mont. 524,
      ¶ 11, 977 P.2d 317, ¶ 11 (citations omitted). We review the court's findings of fact to
      determine whether the court's findings are clearly erroneous. In re J.N., ¶ 11
      (citations omitted). A finding of fact is clearly erroneous if it is not supported by
      substantial evidence; if the district court misapprehended the effect of the evidence;
      or if, after reviewing the record, this Court is left with a definite and firm conviction
      that the district court made a mistake. In re J.N., ¶ 11 (citations omitted).
   2. ¶This Court has further stated that "a natural parent's right to care and custody of a
      child is a fundamental liberty interest, which must be protected by fundamentally
      fair procedures." In re J.N., ¶ 12 (quoting In re R.B., Jr. (1985), 217 Mont. 99, 103,
      703 P.2d 846, 848) (citations omitted). Thus, a district court must adequately
      address each applicable statutory requirement before terminating an individual's
      parental rights. In re J.N., ¶ 12 (citations omitted). Additionally, the party seeking to
      terminate an individual's parental rights has the burden of proving by clear and
      convincing evidence that the statutory criteria for termination have been met. In re J.
      N., ¶ 12 (citations omitted).
   3. ¶Finally, when considering the criteria for termination, courts must give primary


file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-043%20Opinion.htm (6 of 10)3/28/2007 1:22:10 PM
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-043%20Opinion.htm


        consideration to the best interests of the child as demonstrated by the child's
        physical, mental, and emotional conditions and needs. Section 41-3-609(3), MCA.
        See also In re B.C. (1997), 283 Mont. 423, 430, 942 P.2d 106, 110 (citation omitted).

                                                               Discussion

Was there sufficient evidence to support termination of the natural mother's parental
rights?



      1. ¶Although conceding that an appropriate, court-approved treatment plan was not
         successful, Diane argues that the evidence establishing that her conduct and
         condition were unlikely to change within a reasonable time, was not "clear and
         convincing." Her position rests primarily on the written report of Dr. Honeyman,
         which she contends sufficiently rebuts other testimony upon which the court relied
         in terminating her parental rights. The last two sentences of Dr. Honeyman's two-
         page report submitted into evidence state: "Can they adequately parent? My
         professional opinion is that [the] possibility exists if they continue to work in
         counseling and stay substance free."
      2. ¶The District Court adjudicated T.F., B.F., and B.F., youths in need of care pursuant
         to § 41-3-102, MCA (1997), and terminated Diane's parental rights pursuant to § 41-
         3-609, MCA (1997). The court reached its conclusions pursuant to the following
         provisions under § 41-3-609, MCA:

(1) The court may order a termination of the parent-child legal relationship upon a finding
that any of the following circumstances exist:

...

(e) 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;(1) or


 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-043%20Opinion.htm (7 of 10)3/28/2007 1:22:10 PM
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-043%20Opinion.htm


(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)



    1. ¶In reaching a conclusion that the conduct or condition of a parent that renders her
       unfit is unlikely to change in a reasonable time, a district court is guided by § 41-3-
       609(2), MCA (1997). The District Court in this instance followed subsection (a)
       which allows the court to consider "emotional illness, mental illness, or mental
       deficiency of the parent of a 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;" subsection (b) which allows consideration of "a history of violent
       behavior by the parent;" subsection (d), which suggests that the court may consider
       "excessive use of intoxicating liquor or of a narcotic or dangerous drug that affects
       the parent's ability to care and provide for the child"(3) and (g) which provides that a
       court may consider "any reasonable efforts by protective service agencies that have
       been unable to rehabilitate the parent."(4)
    2. ¶In accordance with our standard of review, we first conclude that the District
       Court, in reaching its determination, thoroughly addressed each and every facet of
       all applicable provisions afforded to Diane under Montana's child abuse and neglect
       law. Our review here does not require such thoroughness.
    3. ¶Under § 41-3-609(f), MCA (1997), parental rights may be terminated if "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." In this instance, the three children have
       been in custody for at least three years. Under this provision, which was in full
       effect during these proceedings, speculation as to the parent's likely course of
       conduct in the future is not required. Thus, we need only review whether the
       evidence clearly and convincingly demonstrates that Diane substantially failed to
       successfully complete or meet the goals of a treatment plan. Even disregarding
       Diane's own concession, we conclude she has not.
    4. ¶The three most recent court-approved treatment plans in 1998 required compliance
       with clear fundamental tasks associated with parenting. Diane needed to secure a
       stable financial status sufficient to meet her children's needs, undergo psychological
       evaluation in order to assess her mental health and parenting abilities, maintain
       regular contact with her children, submit to urinalysis testing, and establish a
       healthy and safe living environment for her children, which of course included the

 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-043%20Opinion.htm (8 of 10)3/28/2007 1:22:10 PM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-043%20Opinion.htm


        absence of domestic violence of any kind. The testimonial evidence clearly and
        convincingly demonstrates that Diane has substantially failed in each and every one
        of these areas.
   5.   ¶Throughout 1998, Diane remained unemployed, relying on social security
        disability benefits. She did not provide evidence of the amount or duration of this
        income. She testified that she owes the motel where she is living $700 in rent at the
        time of the hearing.
   6.   ¶The evidence showed that she did not seek evaluation under the three plans until
        one month prior to the hearing, which led to four or five sessions with Dr.
        Honeyman. As for demonstrating her commitment to parenting, she routinely
        avoided scheduled visits with her children, only to offer disingenuous excuses later.
   7.   ¶Diane claimed, at the time of the hearing, that she had been sober for two-and-a-
        half years, but provided no substantial evidence to validate this assertion. She failed
        to establish any sort of credible record of urinalysis testing in 1998. Namely, she
        would not submit to any. One of her last recorded urinalysis tests, in December of
        1997, tested positive for amphetamines, which contradicts her sworn testimony that
        she has never used illegal drugs in her life. She testified that she uses Valium,
        sleeping pills and Dravocet (a pain medication) on a daily basis.
   8.   ¶And, finally, she obtained a healthy and safe living environment by establishing
        residency at a motel with the very person who has physically and emotionally
        tormented her for the better part of a decade. Police were called to Diane and Jerry's
        residence as recently as May of 1998 for a domestic disturbance that they told police
        never became "physical." Diane testified that she did not consider herself a victim of
        domestic abuse.
   9.   ¶We conclude that the District Court relied on substantial evidence in determining
        that the goals, which the foregoing tasks were designed to achieve, were not
        completed or met as required under § 41-3-609(f), MCA. Finally, as this Court has
        stated time and time again, the needs of the child are always paramount to rights of
        the parent. See, e.g., In re W.Z. (1997), 285 Mont. 16, 25, 946 P.2d 125, 131
        (citations omitted). While there is some evidence that both Diane and Jerry are
        attempting to make a better life for each other, they have simply failed to show that
        they were willing, when required, to take whatever steps were necessary to retain
        custody of their children under the court-ordered treatment plans. We agree with and
        affirm the District Court's decision that, after three to five years of foster care, it is
        clearly in the best interests of the three children that this matter not be delayed any
        further, and that Diane B's parental rights be terminated.
 10.    ¶Affirmed.

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-043%20Opinion.htm (9 of 10)3/28/2007 1:22:10 PM
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-043%20Opinion.htm


/S/ JAMES C. NELSON




We Concur:



/S/ J. A. TURNAGE

/S/ KARLA M. GRAY

/S/ WILLIAM E. HUNT, SR.

/S/ TERRY N. TRIEWEILER

1. Subsection (e) was designated (f) under the current, 1999 Montana Code Annotated, but is otherwise
the same.

2. This subsection was deleted from § 41-3-609, MCA, in 1999.

3. This subsection was designated (c) under the 1999 Montana Code Annotated, but is otherwise
unchanged.

4. This subsection was deleted from § 41-3-609, MCA, in 1999.




 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-043%20Opinion.htm (10 of 10)3/28/2007 1:22:10 PM
