 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-515%20Opinion.htm




                                                               No. 98-515

                     IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                             2000 MT 44N


                                                      IN THE MATTER OF

                                                            T.A. & T.R.A.,

                                                     Youths In Need Of Care


                  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 Father:

                                          Patrick E. Kenney, Billings, Montana

                                                        For Natural Mother:

                                              Kevin Gillen, Billings, Montana

                                                         Guardian ad Litem:

                                          Damon L. Gannett, Billings, Montana

                                                           For Respondent:

Joseph P. Mazurek, Montana Attorney General, C. Mark Fowler, Assistant Montana

 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-515%20Opinion.htm (1 of 5)4/5/2007 1:30:49 PM
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-515%20Opinion.htm


Attorney General; Dennis Paxinos, Yellowstone County Attorney, Melanie Logan, Deputy
Yellowstone County Attorney, Billings, Montana


                                         Submitted on Briefs: October 14, 1999

                                                  Decided: February 15, 2000

                                                                    Filed:

                              __________________________________________

                                                                    Clerk

Justice William E. Hunt, Sr. 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 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.Mother (J.B.) and father (D.A.) appeal from the Findings of Fact and Conclusions of
Law of the Thirteenth Judicial District Court, Yellowstone County, terminating the
parental rights of J.B. and D.A. to their children, (T.A.) and (T.R.A.). We affirm

¶3.J.B. presents three issues and D.A. presents two issues on appeal. We restate the issues
as follows:

¶4. Whether the District Court abused its discretion in terminating J.B.'s parental rights to
T.A. and T.R.A.

¶5. Whether the District Court abused its discretion in terminating D.A.'s parental rights to
T.A. and T.R.A.

                                   FACTUAL AND PROCEDURAL BACKGROUND

¶6.T.A. and T.R.A, two children of J.B. and D.A., are the subjects of this action. T.A. was

 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-515%20Opinion.htm (2 of 5)4/5/2007 1:30:49 PM
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-515%20Opinion.htm


born on July 14, 1995, T.R.A. was born May 30, 1997. The Department of Public Health
and Human Services of the State of Montana (the Department) first became involved with
the family in May of 1994 when the Department received a report that J.B. was pregnant
and tested positive for marijuana at a prenatal visit. In June, 1995, the Department
received another referral that J.B. was again pregnant and again tested positive for
marijuana. The baby, T.A. tested positive for marijuana at birth.

¶7.In November, 1996, a probation and parole search was conducted at the family's
residence. Due to the unsanitary condition of the residence, the probation and parole
officer contacted the Department. The Department filed a Petition for Temporary
Investigative Authority and Protective Services for T.A. (and siblings P.A. and E.A. which
were ultimately transferred to the jurisdiction of the Crow Tribal Court and are not
subjects of this appeal). The order remained in effect until May, 1997, when the
Department filed a Petition for Temporary Custody and moved to add T.R.A. to that
petition, which was granted in June of 1997. In November, 1997, the Department filed a
Petition for Permanent Custody, Termination of Parental Rights to Consent to Adoption.
The Court issued Findings of Fact and Conclusions of Law terminating the parental rights
of J.B. and D.A. to their children, T.A. and T.R.A. on July 7, 1998. Judgment was entered
on July 8, 1998. The children currently reside with their maternal grandmother who
wishes to adopt them.

¶8.During the trial before the District Court, a total of 12 witnesses testified for the
respective parties. Based upon that evidence, the District Court found that J.B. and D.A.
were frequent drug users. J.B. admitted to smoking marijuana and breast feeding T.A.
despite having been cautioned against doing so. She stated that she had no concerns about
using marijuana in the presence of her children and tested positive for marijuana
frequently, including during and after her pregnancy with T.R.A.. D.A. tested positive for
marijuana and cocaine on six occasions and refused to provide a sample upon request on
six other occasions.

¶9.Dr. Ned Tranel, a clinical psychologist evaluated J.B. in July, 1994, to obtain
information about her parenting capabilities. He formed the opinion that J.B. would have
little prospect of meeting the minimal standards of parenting a young child due in part to
her chronic substance abuse, borderline personality disorder and an IQ score at the 12th
percentile of the population.

¶10.Virginia Gross, a certified chemical dependancy counselor saw J.B. in 1997 and

 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-515%20Opinion.htm (3 of 5)4/5/2007 1:30:49 PM
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-515%20Opinion.htm


concluded that J.B. was still chemically dependant and in need of intensive outpatient
care. J.B. continued to use marijuana daily even during her treatment. In fact, her use
increased through-out the treatment period.

¶11.Treeva Lyng, a chemical dependancy counselor, met with D.A. who had previously
been through chemical treatment unsuccessfully. D.A. relapsed during his treatment with
Lyng on several occasions. He began treatment again in 1997 but did not complete the
program and remained chemically dependant.

¶12.Steven Hurd, a parole officer testified to D.A.'s significant criminal history including
misdemeanor theft, carrying a concealed weapon, criminal possession of dangerous drugs,
conspiracy to commit burglary, DUI, criminal sale of dangerous drugs, robbery, and
domestic abuse. D.A. was noncompliant with reporting, employment and substance abuse
while on parole from Montana State Prison for robbery.

¶13.Pam Weishedel, a social worker with the Department, was assigned to provide
supervision to J.B. and D.A.. She offered D.A. three court-approved treatment plans
throughout the length of this case. Those plans required that D.A. obtain chemical
dependancy evaluation and complete treatment, attend AA three times per week, obtain
and maintain employment, maintain an appropriate home, complete parenting classes, and
pay child support, among other requirements. While there is some evidence to suggest that
D.A. wanted to and tried to stop using drugs, ultimately he could not successfully
complete any of the treatment plans. Weishedel believed that D.A. would not likely
change in a reasonable time and was unable, unfit, or unwilling to provide his children
with adequate parental care. Weishedel gave J.B. similar treatment plans which she did not
successfully complete.

¶14.The record is replete with additional information indicating that J.B. and D.A. are
addicted to illegal drugs and are unwilling or unable to change their lifestyles in order to
appropriately care for their children. The parents have shown no long term improvement
in their parenting skills or drug dependancy and have consistently chosen the use of drugs
over their children. The record does not support either parent's contention that they have
successfully completed their treatment plans, or rehabilitated themselves as parents.

¶15.There is sufficient evidence in the record to support the District Court's decision to
place the permanent custody of T.A. and T.R.A. with the Department and to terminate the
parental rights of J.B. and D.A. We conclude that the District Court did not abuse its


 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-515%20Opinion.htm (4 of 5)4/5/2007 1:30:49 PM
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-515%20Opinion.htm


discretion.

¶16.Affirmed.

                                                /S/ WILLIAM E. HUNT, SR.

We Concur:

                                                      /S/ KARLA M. GRAY

                                               /S/ W. WILLIAM LEAPHART

                                                         /S/ JIM REGNIER

                                                /S/ TERRY N. TRIEWEILER




 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-515%20Opinion.htm (5 of 5)4/5/2007 1:30:49 PM
