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                                                                 No. 98-115



                               IN THE SUPREME COURT OF THE STATE OF MONTANA



                                                               1999 MT 32N




In the Matter of Declaring H.G.,

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 O. Lympus, Judge presiding.




COUNSEL OF RECORD:



For Appellant:




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Patrick D. Sherlock, Sherlock & Nardi, Kalispell, Montana; Robert B. Allison, Kalispell, Montana (guardian ad
litem)



For Respondent:



Joseph P. Mazurek, Attorney General, Mark W. Mattioli, Assistant Attorney General, Helena, Montana; Thomas
J. Esch, Flathead County Attorney, Randy K. Schwickert, Deputy Flathead County Attorney, Kalispell, Montana




                                                                                                     Submitted on Briefs: July 16, 1998



Decided: February 24, 1999



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

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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. Kathy G. (Kathy), the natural mother of H.G., appeals from the decision of the
District Court for the Eleventh Judicial District, Flathead County, terminating her
parental rights to H.G. We affirm.

¶3. Kathy raises two issues on appeal, which we have consolidated into one issue and
restate as follows:

¶4. Did the District Court err in terminating Kathy's parental rights to H.G.?


                                         Factual and Procedural Background

¶5. Kathy gave birth to H.G. on December 28, 1992. On July 24, 1995, the Flathead
County Family Services Program (FCFSP) and the Montana Department of Public
Health and Human Services (DPHHS) filed a petition for temporary investigative
authority and protective services of H.G. Later that day, the District Court issued an
order wherein it granted FCFSP and DPHHS the authority to take H.G. and place
him in a foster home, to require Kathy and H.G. to undergo medical and
psychological evaluations, and to authorize reasonable and necessary medical
treatment for H.G. The court also appointed a guardian ad litem for H.G., and
ordered Kathy to appear at a hearing. H.G. was placed in a foster home on July 25,
1995. After the court's hearing on August 3, 1995, it issued an order which granted
the FCFSP and the DPHHSs' petition for temporary investigative authority and
protective services.

¶6. On November 3, 1995, the FCFSP filed a motion to continue its temporary
investigative authority and protective services. In support of its motion, the FCFSP
attached a report from Myra Barron (Barron), a social worker, which recommended
that the temporary investigative authority and protective services remain in effect
and requested that the court approve two treatment plans to which the FCFSP and
Kathy agreed. On November 22, 1995, the court held a hearing on the FCPSP's

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motion. Six days later, on November 28, 1995, the court issued an order which
granted the FCFSP's motion and approved the treatment plans. Under the terms of
the treatment plans, Kathy was required to: (1) complete inpatient chemical
dependency treatment; (2) refrain from the use of alcohol and drugs; (3) obtain a
psychological evaluation and follow-up treatment; (4) attend scheduled visits with H.
G.; (5) attend parenting classes; and (6) participate in the "Coping with Life"
support group.

¶7. On August 28, 1996, the State filed a motion wherein it requested the court to
approve a supplemental treatment plan which Kathy and Barron signed on May 3,
1996. Under the terms of the supplemental treatment agreement, Kathy was required
to: (1) comply with the provisions of her previous treatment plans; (2) continue to
attend an outpatient chemical dependency program until graduation; (3) attend
alcoholics anonymous and narcotics anonymous meetings; (4) complete and graduate
from the "Coping with Life" support group; (5) incorporate the skills that she
learned in the "Coping with Life" support group into her daily interactions with
others; (6) attend counseling sessions with Bob Piersall (Piersall); and (7) continue to
take medications prescribed to her by Dr. Herbert Gray (Dr. Gray). On September
4, 1996, the court issued an order which approved the supplemental treatment plan.

¶8. On October 31, 1996, the FCFSP moved the court to continue the temporary
investigative authority and protective services. In support of its motion, the FCFSP
filed Barron's Report to the Court dated October 30, 1996, which documented that
Kathy had failed to comply with the terms of her treatment plans and stated that the
Division of Child and Family Services was planning to request that Kathy's parental
rights to H.G. be terminated. After a hearing, the court granted the FCFSP's motion.

¶9. On March 18, 1997, the DPHHS filed a Petition for Permanent Custody and
Authority to Assent to Adoption. On that day, William Poston, who Kathy had
named as H.G.'s natural father, filed an affidavit wherein he denied paternity and
waived his parental rights to H.G. The District Court held a hearing on the DPHHS's
petition on September 29, 1997, wherein it heard testimony regarding Kathy's ability
to parent H.G. On October 10, 1997, the court issued its Findings of Fact,
Conclusions of Law and Order which terminated Kathy's parental rights to H.G. and
awarded the DPHHS care, custody and control of H.G.

¶10. On October 29, 1997, Kathy filed motions wherein she moved the court to either


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grant her a new trial or to amend its judgment on the basis that the evidence did not
support the court's decision to terminate her parental rights. After receiving the
DPHHS's brief in opposition to Kathy's motions and conducting a hearing, the court
denied Kathy's motions.

¶11. Kathy appeals from the court's Findings of Fact, Conclusions of Law and Order
terminating her parental rights and from the court's rulings on her post-trial
motions.

                                                       Standard of Review

¶12. This Court reviews a district court's conclusions of law to determine whether
the court interpreted the law correctly. In re A. W-M., 1998 MT 157, ¶ 8-9, 960 P.2d
779, ¶ 8-9, 55 St.Rep. 628, ¶ 8-9.

¶13. We review a district court's findings of fact to determine whether the court's
findings are clearly erroneous. A. W-M., ¶ 8-9 (citing Interstate Production Credit
Association v. DeSaye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287). This Court
adopted a three-part test in DeSaye to determine whether a district court's finding of
fact is clearly erroneous. A finding of fact is clearly erroneous under the DeSaye test
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 a mistake has been made. In re E.W., 1998 MT 135,
¶ 10, 959 P.2d 951, ¶ 10, 55 St.Rep. 536, ¶ 10 (citing DeSaye, 250 Mont at 323, 820
P.2d at 1287).

¶14. This Court has 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 E.W., ¶ 12 (quoting In re R.B., Jr. (1985), 217 Mont. 99, 103,
703 P.2d 846, 848). Thus, a district court must adequately address each applicable
statutory requirement before terminating an individual's parental rights. In re E.W.,
¶ 12 (citing In re R.B., Jr., 217 Mont. at 103, 703 P.2d at 848). 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 has been met. In re E.
W., ¶ 12 (citing In re J.L., D.L., and A.G. (1996), 277 Mont. 284, 288, 922 P.2d 459,
461). In cases involving the termination of parental rights, this Court has stated that



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clear and convincing proof is simply a requirement that a preponderance of the evidence
be definite, clear, and convincing, or that a particular issue must be clearly established by
a preponderance of the evidence or by a clear preponderance of proof. This requirement
does not call for unanswerable or conclusive evidence. The quality of proof, to be clear
and convincing, is somewhere between the rule in ordinary civil cases and the requirement
of criminal procedure--that is, it must be more than a mere preponderance but not beyond
a reasonable doubt.


In re J.L., D.L., and A.G., 277 Mont. at 289, 922 P.2d at 462 (quoting In re Interest of S.M.
Q. (1990), 247 Kan. 231, 796 P.2d 543, 545).

¶15. When considering the criteria for termination, courts must give primary
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 Matter of B.C. (1997), 283 Mont. 423, 430, 942 P.2d 106, 110 (citation omitted).

Discussion¶16. Did the District Court err in terminating Kathy's parental rights to H.G.?

¶17. The District Court adjudicated H.G. as a youth in need of care pursuant to § 41-
3-102, MCA, and terminated Kathy's parental rights pursuant to § 41-3-609, MCA,
which provides 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: . . .

(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; . . . .

Kathy does not dispute that H.G. is a youth in need of care. Instead, she argues that the
District Court erred in terminating her parental rights pursuant to § 41-3-609(1)(e), MCA,
because there was insufficient evidence to support the court's findings that she failed her

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court-approved treatment plans and that her condition was unlikely to change within a
reasonable time. We will address each of these issues in turn.

                                                                      A.

¶18. Did the District Court err in finding that Kathy failed to comply with her treatment
plan?


¶19. The District Court found that Kathy failed to comply with her court-approved
treatment plans. Kathy does not dispute that she failed to comply with her treatment
plans. Rather, she argues that her noncompliance was insubstantial. Notwithstanding
Kathy's argument, partial compliance with a treatment plan is insufficient to
preclude termination of parental rights. Matter of B.C., 283 Mont. at 430, 942 P.2d at
111 (citing Matter of J.J.C.H. (1992), 252 Mont. 158, 164, 827 P.2d 812, 816).

¶20. Moreover, even if substantial compliance was sufficient to preclude termination
of parental rights, we disagree with Kathy's argument that her noncompliance was
insubstantial. Kathy's treatment plan required her to refrain from drinking alcohol.
In spite of this requirement, the record shows that Kathy drank on one occasion to
the point of not being able to recall how she traveled from a bar to her apartment.
The record also shows that Kathy was required, but failed, to complete inpatient
chemical dependancy treatment, complete outpatient chemical dependancy
treatment, complete psychological treatment and counseling, and to take medications
which Dr. Gray prescribed to her. Thus, it cannot be said that Kathy's
noncompliance was insubstantial.

¶21. Kathy also contends that the District Court erred in finding that she failed to
comply with her treatment plans because she was not given sufficient time to
complete her treatment plans. However, Kathy had more than twenty-one months
from the date the court approved her first treatment plan to the date of the court's
hearing on the petition to terminate her parental rights to H.G. Kathy also had
eleven months from the date that the court approved her second treatment plan to
the date of the court's hearing on the petition. As a result, we conclude that Kathy
had adequate time to comply with and complete her treatment plans.

¶22. Accordingly, having thoroughly reviewed the record in this case, we conclude

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that there is clear and convincing evidence supporting the District Court's finding
that Kathy failed her court-approved treatment plans.

                                                                       B.

¶23. Did the District Court err in finding that Kathy's conduct or condition is unlikely to
change within a reasonable time?


¶24. The District Court found that "[t]he conduct and condition that renders Kathy
unfit as a parent is not likely to change within a reasonable time measuring
reasonable from the point of view of [H.G.'s] needs and interests." Kathy urges this
Court to reverse the District Court's finding based on testimony that she had
matured and become more responsible.

¶25. Section 41-3-609(2), MCA, provides in pertinent part:

(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. In making the determinations, the court shall consider but is
not limited to the following:

(a) 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; . . .

(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; . . .

and

(g) any reasonable efforts by protective service agencies that have been unable to
rehabilitate the parent.

¶26. In support of her argument, Kathy points to testimony from several witnesses

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who stated that Kathy had matured and was "pulling her life together in a positive
manner." Even so, most of the witnesses who testified agreed that Kathy was not
likely to change her conduct and conditions so as to become a capable parent in a
reasonable amount of time. Piersall, for example, testified that Kathy had
"progressed," had the potential to progress further, and that her outlook on life had
improved. Piersall, however, went on to state that he "couldn't make a strong
argument" against the statement that Kathy's chances of becoming a successful
parent were "very poor" because "the truth is [that] Kathy is a very fragile person
with many problems." Dr. Gray testified that Kathy suffers from bipolar disorder
but could possibly change her behavior so as to become a capable parent by taking
the medication which he prescribed to her. Dr. Gray explained, however, that the
problems concerning whether she would stay on the medications was "massive."
Joanne Graves-Gill (Graves-Gill), a chemical dependancy counselor who had treated
Kathy, testified that Kathy did not appear to relate her chemical use as a factor in
the continued problems that she experienced. Graves-Gill also testified that Kathy's
relapse potential was "very high." Ruth Watkins, a clinical psychologist who treated
Kathy, testified that working with Kathy "is like pulling teeth" and opined that
Kathy's behavior was unlikely to change in a reasonable amount of time. As a final
example, Theresa Luhman, a treatment supervisor for therapeutic foster care who
had worked with Kathy and H.G., testified that, although she had observed Kathy
"making gains," it was "very unlikely" that Kathy could make the necessary changes
in her behavior to "do what is right for [H.G.]."

¶27. Thus, it is clear from the record that, based on Kathy's mental illness, use of
alcohol and drugs, and the unsuccessful efforts of protective services agencies to
rehabilitate her, Kathy's conduct and behavior was unlikely to change in a
reasonable time. Section 41-3-609(2), MCA. Accordingly, we hold that there is clear
and convincing evidence supporting the District Court's finding that the conduct and
conditions that render Kathy unfit as a parent was unlikely to change within a
reasonable time even though many witnesses testified that Kathy had made progress.

¶28. Based on the foregoing, we hold that clear and convincing evidence supports the
District Court's findings that Kathy failed to comply with her treatment plans and
that the conditions and conduct that made her unfit as a mother were unlikely to
change within a reasonable time. Accordingly, we hold that the District Court
correctly terminated Kathy's parental rights to H.G.



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¶29. Affirmed.


/S/ JAMES C. NELSON




We Concur:


/S/ J. A. TURNAGE

/S/ KARLA M. GRAY

/S/ WILLIAM E. HUNT, SR.

/S/ TERRY N. TRIEWEILER




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