                            NO.    91-107

          IN THE SUPREME COURT OF THE STATE OF MONTANA
                                  1992



IN THE MATTER OF J.H., S.H., and N.H.,
Youths in Need of Care



APPEAL FROM:   District Court Of the Eighth Judicial District,
               In and for the County of Cascade,
               The Honorable Thomas M. McKittrick, Judge presiding.


COUNSEL OF RECORD:
          For Appellant:
               Patrick F. Flaherty, Attorney at Law,
               Great Falls, Montana
          For Respondent:
               Hon. Marc Racicot, Attorney General, Elizabeth L.
               Griffing, Assistant Attorney General, Helena,
               Montana: Patrick L. Paul, Cascade County Attorney,
               Tammy Plubell, Deputy Cascade County Attorney,
               Great Falls, Montana




                            Submitted on Briefs:     October 17, 1991
                                            Decided: January 30, 1992
Justice William E. Hunt, Sr., delivered the opinion of the Court.
     Appellant Sheila Hill, the natural mother of J.H., S.H., and
N.H., appeals from an order of the Eighth Judicial District Court,
Cascade County, terminating her parental rights of her three
children. The District Court awarded legal custody to the Montana
Department of Family Services (hereinafter DFS) with the right to
consent to adoption.
     We affirm.
     Appellant raises two issues on appeal.
     1.   Whether there is substantial credible evidence to uphold
the District Court's determination to terminate the parental rights
of the appellant.
     2.   Whether the State should be estopped from terminating
appellant's parental rights.
     The events leading to the termination of parental rights
occurred on March   4,   1989.   On that day, appellant and her husband,
David Hill, the natural father, drove to the home of some friends.
Mr. Hill went inside the home, leaving appellant and their three
children, J.H., age five, S.K.,           age three, and A.H., age ten
months, in an unheated car.        At the time, the outside temperature
was approximately three degrees above zero fahrenheit. The eldest
child needed to go to the bathroom, so appellant covered the other
two children with a blanket and left the car in order to take the
oldest child into the house. Approximately an hour later appellant
and Mr. Hill returned to the car.         After a few minutes, appellant

                                      2
realized A.H.     was not breathing.      They drove to appellant's
mother's home and attempted CPR, but were unsuccessful.               An
ambulance was called and A.H. was pronounced dead at the hospital.
    According to the autopsy report, the cause of death was
undetermined, although the findings of the report were consistent
with Sudden Infant Death Syndrome (commonly known as SIDS).           The
emergency room physician and pediatrician was Dr. Nancy Maynard.
She testified that the cause of death was undetermined because the
baby was too old to be a true SIDS case.       She stated that other
circumstances, such as leaving the child in the extreme cold, could
have been a contributing factor.
     On April     20,   1989,   the District Court issued an order
authorizing protective services and to show cause. On May 8, 1989,
a show cause hearing was conducted. The parents did not object to
DFS being granted temporary investigative authority for 90 days.
On June 1, 1989, the parents agreed to a case plan.      During the    90

days the children were to remain in appellant's care as long as the
children were not in danger of abuse or neglect.       A social worker
monitored   the    placement.      In   addition,   appellant   was    to
successfully    complete parenting      classes, undergo   a    chemical
dependency evaluation, attend a domestic violence support group,
complete a psychological exam, and continue with therapy.             The
District Court also appointed a guardian ad litem for the children.
During this period the appellant was pregnant with her fourth
child.

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     On June 12, 1989, N.H. was born.   On July 12, 1989, the child
was hospitalized for failure to thrive because appellant was unable
to adequately care for her.    On July 14, 1989, DFS placed all of
the children in foster care. DFS petitioned the District Court for
temporary legal custody on July 17, 1989.
     On September 27, 1989, the District Court found the children
to be youths in need of care and granted DFS temporary legal
custody for six months.   A treatment plan was stipulated to by a l l
the parties and approved by the District Court. Appellant and Mr.
Hill were to complete the plan within six months.
     In summary, the treatment plan required appellant to complete
an aftercare program, continue parenting classes, enroll in a
treatment program to deal with her severe depression, attend a
domestic abuse program, and complete individual therapy.         The
purpose of the treatment plan was to reunite the parents with their
children and it set several goals for the parents to achieve. One
such goal was for appellant to achieve adequate parenting skills.
     Mr. Hill failed to complete the treatment plan and voluntarily
consented to the termination of his parental rights, provided that
DFS allow him some sort of contact with the children in the future.
The District Court granted this request.
     On June 8, 1990, DFS petitioned the District Court for
permanent legal custody and termination of appellant's parental
rights. The DFS mainly alleged that appellant failed the treatment
plan because she had not demonstrated any improvement in her

                                  4
ability to adequately parent the children and that she was unlikely
to improve within a reasonable time.           On November 1, 1990, a
termination hearing was held.
     On December 12, 1990, the District Court ruled that although
the appellant complied with the requirements of the treatment plan,
her parenting abilities had not improved and she was still making
decisions that would endanger her children if they were in her
care. The court granted DFS permanent legal custody with authority
to consent to the adoption of the children. Appellant appeals the
order.
                                      I

     Whether there is substantial credible evidence to uphold the
District Court's determination to terminate the parental rights of
the appellant.
      The State has the burden of proving by "clear and convincing"
evidence that the statutory criteria under 5 41-3-609, MCA (1989),
have been met.     Matter of F.M. (Mont. 1991), 48 St.Rep. 407, 409,
811 P.2d    1263, 1266.     Thus, it is up to the District Court to
determine whether the State has met this burden of proof, and
whether the parent's custodial and parental rights should be
terminated. Matter of J . L . S .   (1988), 234 Mont, 201, 205, 761 P.2d

838, 840.

      We afford the District Court "all reasonable presumptions as
to correctness of the determination        . . . .   It     Matter of R.A.D.
(1988), 231 Mont. 143, 148, 753 P.2d 862, 865.            We will not disturb

                                      5
such decision on appeal "regarding findings of fact if those
findings are supported by substantial credible evidence."     Matter
of F.M., 811 P.2d at 1266 (quoting Matter of R.B.   (1990), 242 Mont.
141, 143-44, 788 P.2d 1361, 1363.      Therefore, we presume that the
District Courtls determination is correct unless it is clearly
erroneous as to the facts.
     The relevant statute to this case is 5 41-3-609(1) (c), MCA
(1989), which states the following:

          The court may order a termination of the parent-
     child legal relationship upon a finding that     ...
                                                      :

          ....
          (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
          (ii) the conduct or condition of the parents
     rendering them unfit is unlikely to change within a
     reasonable time. [Emphasis added.]
     When deciding "whether the conduct or condition of the parents
is unlikely to change within a reasonable time," the District Court
must enter a finding that to continue the legal relationship
between the parent and child "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(2), MCA (1989).     The
court shall consider but is not restricted to the following factors
when making such determinations:

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          (a) [Elmotional 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;
               (b) a history of violent behavior by the parent;
          (c) a single incident of life-threatening or
     gravely disabling injury to or disfigurement of the child
     caused by the parent:
          (d) 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;
          (e) present     judicially           ordered    long-term
     confinement of the parent;

          (f) the injury or death of a sibling due to proven
     parental abuse or neglect; and
          (9) any reasonable efforts by protective service
     agencies that have been unable to rehabilitate the
     parent.
Section 41-3-609(2) (a)-(g) , MCA (1989). When examining the factors
listed above, the court shall give primary consideration to what is
in the best interests of the children.         Section 41-3-609(3), MCA
(1989)  .
     Appellant did not contend that the children are not youths in
need of care. Appellant did argue that the State failed to show by
clear    and    convincing   evidence   that   the   treatment plan   was
unsuccessful because she complied with all of the conditions of the
plan. In addition, appellant asserted that the State did not prove
that conditions rendering appellant unfit were so inherently poor
that they could not be improved within a reasonable time.             We
disagree.       The testimony of the State's witnesses, as well as

                                    7
appellant's witnesses, constituted substantial credible evidence to
support the court's findings of fact and conclusions of law.
     Dr. Craig Matelich, the family pediatrician, expressed serious
concerns about the level of appellant's parenting skills and how
that adversely affected the children's welfare.     For example, Dr.
Matelich's first examination of newborn N.H. following her release
fromthe hospital revealed a significant weight loss. Dr. Matelich
spent a considerable amount of tine explaining to appellant how to
increase milk production for breast feeding but she failed to
follow through with the recommendations.     During this period N.H.
also suffered from an eye infection which, if not treated properly,
could have resulted in permanent damage to her eye.       The doctor
prescribed some medication for the baby and explained to appellant
how it should be administered.     She failed to properly administer
the medication.    Upon notification by the doctor, DFS intervened
and sought temporary custody of the children.
     Dawn Gandolf, a psychiatric technician, provided appellant
with one-to-one parenting sessions.         When she first visited
appellant's home in November 1988, it was dirty and cluttered.
Appellant did     not have   any   food, money, transportation, or
resources for taking care of the children.     Ms. Gandolf attempted
to train appellant in parenting skills for approximately ten months
and spent considerably more time with appellant than she had
contracted for with DFS.     Unfortunately, appellant was unable to
improve her parenting skills.      Ms. Gandolf also expressed concern

                                    8
about appellant being the sole parent of the children, because
appellant was unable to satisfy the children's basic needs of
proper supervision, discipline, nutrition, and cleanliness.
    Rich Kuka, director of the parenting program, evaluated the
parenting    skills of   appellant.     He   also   had   doubts   about
appellant's ability to parent effectively.      She exhibited little
evidence that she had retained what she learned in attending two
ten week parenting classes.       He concluded that she would not
benefit from attending a third parenting class.
     The record not only reflected that appellant was not capable
of parenting her children effectively, but it also revealed that
the children improved their physical, emotional, and intellectual
health while under foster care.
     Hebe Chestnut was the court appointed guardian ad litem for
the children.     She also testified that she did not witness any
improvement in appellant's parenting skills. In contrast, she did
notice a remarkable improvement in the children's behavior once
taken out of the abusive environment and placed in a foster home.
     Ms. Pohold, the children's first foster parent, described the
changes in the children once they were brought to her home.
Initially, the children were not disciplined.       They did not know
what time to go to bed nor did they know what time to eat.           The
son, J.H.,    exhibited aggressive behavior as well as emotional
problems.     In addition, J.H. was diagnosed as having a learning
disability.       The daughter, S.H.,    also exhibited aggressive

                                  9
behavior and an inability to communicate effectively with others.
By the time these children left the care of Ms. Pohold a year
later, they were increasingly behaving like children of their age.
In addition, N . H . ,     the infant, began to thrive and develop at a
normal rate once placed in foster care.
      Andrea Deligdish was the children's therapist. She stated the
children suffered greatly from the alcohol abuse and domestic
violence they witnessed in appellant's home.                She added that the
children's educational, emotional, and social skills were seriously
impaired but quickly changed once moved                out of the abusive
environment.      She concluded that the children were in need of a
stable and permanent home.             It was not in their best interest to
prolong their placement.
      Lastly, the evidence indicates that the conduct or condition
of the appellant was unlikely to change within a reasonable time,
and that to continue it would likely result in continued abuse and
neglect of the children. Only three weeks prior to the termination
hearing, appellant placed herself in an abusive situation by living
with another man who had a history of domestic violence and alcohol
abuse.     Appellant indicated that she would like to continue a
friendship with this person.             She lived in an apartment complex
that consisted of a common bathroom which was shared by other
tenants.      There was no place for the children to play.                   In
addition, DFS spent a considerable amount of time with appellant
attempting      to       teach   her    basic   parenting    skills   but   was

                                          10
unsuccessful.    Although appellant demonstrated strong motivation
for learning parenting skills, she was unsuccessful in applyingthe
knowledge practically.     Moreover, appellant admitted during her
testimony that she was not ready to take care of her children. The
testimony of her own witnesses showed that she needed work on her
own problems before caring for her children.
     The District Court concluded that the treatment plan was
unsuccessful because appellant had not achieved one of the stated
goals of the plan which was for appellant to improve her parenting
abilities.   In a recent decision, we stated "mere compliance with
the treatment plan is not enough.     Section 41-3-609(1)(c)(i), MCA,
imposes the additional requirement that the treatment plan be
successful."    Matter of F.M., 811 P.2d at 1267.
     The District Court properly considered the criteria listed in
5 41-3-609(1) (c), MCA (1989), especially the efforts exerted by DFS
in trying to rehabilitate appellant, as well as the circumstances
surrounding the death of one infant and the factors surrounding the
abuse and neglect of the newborn and the other children.
     We hold that the District Court's findings that the treatment
plan was unsuccessful and that the appellant's conduct or condition
was unlikely to improve within a reasonable time were not clearly
erroneous and that it was in the best interests of the children to
terminate appellant's parental rights.       We affirm the District
Court on this issue.



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                                   I1

     Whether   the   State   should     be   estopped   from   terminating
appellant's parental rights.
     Appellant contends that the State should be estopped from
terminating    her   parental     rights     because    she    relied   on
representations made and known by the State to be inadequate in
helping her make changes necessary to improve her parenting skills.
Appellant's contention lacks merit.
     For the District Court to terminate the parental rights of a
parent, it must give primary consideration to what is in the best
interests of the children.      Section 41-3-609(3), MCA (1989).        The
evidence shows that while the children were in their mother's care
they were being neglected. One infant had died and another infant
had to be hospitalized.         The two elder children demonstrated
intellectual, social, and physical abilities well below the normal
range.   Only after being placed in foster care did the children
begin to improve.     We hold that the appellant's contention is
without merit and that the District Court properly considered what
was in the children's best interests.




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We concur:




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