                            No.       92-609

          IN THE SUPREME COURT OF THE STATE OF MONTANA




A Youth In Need Of Care.



APPEAL FROM:   District Court of the Eleventh Judicial District,
               In and for the County of Flathead,
               The Honorable Ted 0 Lympus, Judge presiding.
                                  .



COUNSEL OF RECORD:
          For Appellant:
               Chris P. Christensen, Attorney at Law,
               Kalispell, Montana
          For Respondent:
               Randy K. Schwickert, Deputy Flathead County
               Attorney, Kalispell, Montana


                              Submitted on Briefs:      August 5, 1993
                                               Decided: November 16, 1993
Filed:


                                  I
                                  Clerk
justice William E.        Hunt, Sr.,   delivered the opinion of the
Court.
        This is an appeal from an order of the Eleventh Judicial
District Court, Flathead County, declaring N.R.M. a youth in need
of care, terminating the parental rights of the natural mother, and
awarding      permanent   legal   custody   of   N.R.M.    to    the Montana
Department of Family Services (DFS).
        We affirm.
        The mother presents the following issues on appeal:
        1.    Was there substantial evidence to support the District
Court's order terminating the parental rights of the mother?
        2.     Did the District Court abuse its discretion when it
denied the mother's request to reopen the case to submit additional
evidence?
        N.R.M. was born on April 23, 1991.       He is the son of J.M.C.
(natural mother) and M.E.S.       (natural father)   .    I n June 1991, the
DFS began receiving referrals on the mother stating that she left
the baby with anyone she could find, she was drinking and partying,
and was not taking care of N.R.M.'s medical needs.              On October 3,
1991,    the    DFS   filed a petition      for temporary       investigative
authority with the District Court. The District Court found N.R.M.
to be a youth in need of care.
        The DFS and the mother developed a Treatment Plan on July 1,
1991.        However, the plan was not presented to the court for
approval. The plan, which listed several goals for the mother, was
developed by the DFS to remedy the mother's conduct. She agreed to
receive substance abuse treatment, to abstain from alcohol or
drugs, to obtain an evaluation at the Chemical Dependency Clinic,
to participate in parenting classes, to establish a stable home
environment, and to check into obtaining a GED when N.R.M. reached
six months of age.    The mother did not complete this plan.
     Soon after implementation of the plan, the UFS received
referrals that the mother sexually abused four children.        As a
result, the DFS placed N.R.M.    in foster care with the mother's
consent during the sexual abuse investigation.     While he was in
foster care, the foster parents discovered that N.R.M. suffered
from a condition known as tracheal malacia which makes him
susceptible to infections and requires careful attention.      N.R.M.
also had an ear infection and a serious diaper rash.    The mother
denied that the child suffered from any medical problems.         She
stated that the doctors could not diagnose the tracheal malacia
condition, when in fact they had properly diagnosed the child and
prescribed medication which the mother failed to administer. Since
placing N.R.M.   in foster care, his condition has improved.
     During the early period of N.R.M.'s     foster placement, the
mother exercised inconsistent visitation.      When visitation did
occur, the child screamed in response to the mother's contact.
This reaction was     limited to the mother.      The DFS stopped
visitation at the house of the foster parents because the mother
demonstrated a hostile and critical attitude and behavior toward
the foster parents,
     During the early stages of the mother's chemical dependency
evaluation, her participation in treatment programs was sporadic
and ineffective.     She failed to stay sober, and did not properly
attend all of her out-patient meetings.
     On February 18, 1992, the mother signed a new treatment pian.
Although the District Court approved the plan on February 19, 1992,
the DFS and the mother worked together with the plan for five
months before approval. This plan required the mother to complete
an in-patient drug/alcohol treatment program, attend Aftercare, AA
meetings, and abstain from alcohol and drugs.           The plan required
her to complete a sex offender evaluation, establish a stable home
environment for the child, complete parenting classes, and obtain
a valid driver's license.        Finally, the plan required the mother
not to let people move in and out of the home, to have weekly
contacts with a social worker, to maintain regular supervised
visits with N.R.M., and to remain law abiding.          The court required
the mother to complete the plan by June 1, 1992.
     During the two plans, the mother made five attempts for
treatment of her alcohol and drug abuse, but was unsuccessful.
Before leaving on her fifth attempt at treatment, the authorities
arrested   the    mother   for   possession   of    drug   paraphernalia,
possession   of    alcohol,   and   possession     of   dangerous   drugs.
Throughout the course of her treatment plan the mother continued to
drink   and   possess   illegal drugs.    Since the    DFS   initiated
proceedings to terminate the mother's parental rights, she has
completed a treatment course for her substance abuse.
     Because of the mother's failure to complete both treatment
plans, the DFS filed for termination of parental rights and
permanent custody on June 16, 1992,      The court appointed counsel
for the mother, and a hearing was held on September 29, 1992.     The
natural father did not appear at the hearing.    On October 9, 1992,
the District Court issued its order terminating the parental rights
of the natural parents and granting permanent legal custody to DFS.
The mother filed a motion to reconsider, which the court denied.
The mother appeals from the decision terminating her parental
rights.
                                  I.
     Was there substantial evidence to support the District Court's
order terminating the parental rights of the mother?
     The mother does not argue that she fully completed the
February 19, 1992, court-approved plan by the date of the hearing.
She contends that the District Court did not satisfy the statutory
requirement that her conduct or condition causing her problems
could not be rectified within a reasonable time.      She argues that
the court only gave her three months to complete the approved
treatment plan.
     Section 41-3-609, MCA, contains the criteria for terminating
parental rights.   The statute states in pertinent part:
          (1) The court may order a termination of the
     parent-child legal relationship upon a finding that any
     of the following circumstances 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
          (ii) the conduct or condition of the parents
     rendering them unfit is unlikely to change within a
     reasonable time; or

          (d) the parent has failed to successfully complete
     a treatment plan approved by the court within the time
     periods allowed for the child to be in foster care under
     41-3-410 unless it orders other permanent legal custody
     under 41-3-410.

           (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:


          (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;


          (g) any reasonable efforts by protective service
     agencies that have been unable to rehabilitate the
     parent.
     The State must show by clear and convincing evidence that the
statutory criteria for termination of parental rights has been met
before the court can order the termination. Matter of S.B. (1986),
223 Mont. 36, 39, 724 P.2d 168, 170.       We will not overturn a
district court's findinqs of fact supported by substantial evidence
contained in the record.   Matter of S.B., 724 P.2d at 170.
     Here, the mother had 13 months from the date she signed the
first treatment plan until the termination of her parental rights
to complete at least one of the treatment plans.    In his report,
the court-appointed counsel for N.R.M. stated that an additional
two months would not aid in determining whether the mother could
take adequate care of N.R.M.     on a long term basis.     Counsel
expressed concern relating to the mother's inconsistent statements
about attending AA meetings.   He stated that N.R.M. needs a stable
home environment and that it was not in the child's best interest
to wait to see if the mother completed the treatment plan.      He
recommended termination of parental rights.
     The court noted that the mother completed the in-patient
treatment portion of the treatment plan, but recognized that it had
come at such a late stage that there was insufficient time to
decide whether she would maintain sobriety.        The court also
stressed the repeated efforts made by DFS to help and encourage the
mother to comply with the treatment plan, and that despite those
efforts, the mother did not respond in a sincere or timely manner.
The court concluded that it was not a reasonable prospect that the
mother would maintain sobriety for the benefit of N.R.M.        or
herself.
        Finally, the mother did not comply with other elements of the
treatment plan.      At the time of the hearing, she lived with a
person who was physically abusive to her and she still maintained
relationships with chemical and alcohol abusers.      With her arrest
for possession of dangerous drugs, she failed to remain law
abiding. Although her visitations with N.R.M. improved with time,
they were interrupted occasionally when she spent time in jail. In
addition, she failed to obtain a valid driver's license, failed to
successfully complete parenting classes, and failed to make weekly
contacts with her social worker.        The District Court found that
given the abuse, neglect, and exposure to alcohol and drugs, as
testified to by the maternal grandmother, the mother has dim
prospects of providing a caring and stable home environment.       We
agree with the court that no evidence exists to show that the
mother will succeed in accomplishing a plan in the future. We hold
that the record contained substantial evidence for the District
Court to terminate the parental rights of the mother.
                                  11.
        Did the District Court abuse its discretion when it denied the
mother's request to reopen the case to submit additional evidence?
        The mother filed her motion for reconsideration on October 21,
1992.    She filed her notice of appeal on November 25, 1992, before
the District Court issued an order regarding the motion to
consider.     We have previously stated that "[o]nce the plaintiff
filed his notice of appeal all proceedings in the District Court
were stayed and its jurisdiction removed."   Groundwater v. Wright
(1979), 180 Mont. 27, 32, 588 P.2d 1003, 1005-06.       Here, the
District Court lost jurisdiction when the mother filed her appeal.
As a result, the District Court did not issue a decision regarding
the motion for reconsideration. Therefore, we will not discuss the
issue.
     We affirm the decision of the District Court.




We concur:
                                       November 16, 1993

                                  CERTIFICATE OF SERVICE

f hereby certify that the following order was sent by United States mail, prepaid, to the following
named:


CHRIS P. CARISTENSEN
Attorney at Law
P.O. Box 1954
Kalispell, MT 59903-1954

RANDY K. SCHWICKERT
Deputy County Attorney
P.O. Box 1516
Kalispell, MT 59903-1516

ROBERT B. ALLISON
Attorney at Law
130 Fifth Street East
Kalispell, MT 59901


                                                     ED SMITH
                                                     CLERK OF THE SUPREME COURT
