97-650

 No. 97-650

 IN THE SUPREME COURT OF THE STATE OF MONTANA

 

 1998 MT 128

 IN THE MATTER OF THE CUSTODY AND 

 THE PARENTAL RIGHTS OF 

 J.H., R.H., D.H., and R.H., 

 Youths in Need of Care. 

 APPEAL FROM: District Court of the First Judicial District, 

 In and for the County of Lewis and Clark,

 Honorable Thomas C. Honzel, Judge Presiding.

 COUNSEL OF RECORD:

 For Appellant:

 Jeremy Gersovitz, Assistant Public Defender, Helena, Montana

 For Respondents:

 Honorable Joseph P. Mazurek, Attorney General; Mark

 Mattioli, 

 Assistant Attorney General, Helena, Montana

 Mike McGrath, County Attorney; Carolyn Clemens, Deputy

 County Attorney, Helena, Montana

 Randi Hood, Helena, Montana (Guardian Ad Litem) 

 Submitted on Briefs: April 9, 1998 

 Decided:May 28, 1998

 Filed:

 __________________________________________

 Clerk

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-650%20Opinion.htm (1 of 6)4/18/2007 2:01:17 PM
97-650

Chief Justice J. A. Turnage delivered the Opinion of the Court. 

 

 1 In proceedings before the First Judicial District Court, Lewis and Clark

County, Michelle Hamlin's custodial rights as the mother of J.H., R.H., D.H.,

and R.H. were awarded to the Montana Department of Public Health and

Human Services. Hamlin appeals. We affirm.

 2 The issue is whether the District Court abused its discretion when it

awarded Hamlin's custodial rights to the Department.

 3 J.H., R.H., D.H., and R.H. were declared youths in need of care in

November 1995. At that time, the children were living with their maternal

aunt and uncle because their father was in jail for domestic abuse and their

mother, Hamlin, was having trouble seeing to their needs, such as getting them

to school. Hamlin and the children's father were divorced. The aunt and

uncle's home became the children's foster care placement. At the time of the

June and July 1997 hearing on the Department's petition to terminate Hamlin's

parental rights, J.H., R.H., D.H., and R.H. ranged in age from three to eleven

years old and had been living with their aunt and uncle for two years. 

 4 When the children were declared youths in need of care, Hamlin and

the Department entered into a treatment plan agreement which, by its terms,

could be completed within six months. The plan required Hamlin to: submit

to therapy for co-dependency, self-esteem, and other issues relating to her

failure to adequately care for the children; successfully complete an anger

management program to address domestic violence issues; successfully

complete parenting classes; attend a survivor group to deal with victimization;

demonstrate her ability to parent through employment, stable housing, and

attending to her emotional needs; schedule and maintain visits with the

children without entertaining others during those visits; continue to work in the

Healthy Start program; and obtain a chemical dependency evaluation and

follow the recommendations of that evaluation.

 5 The Department presented evidence that Hamlin initially had been

consistent about visiting her children under her treatment plan, but when she

was reminded that she was not to bring others with her to visit her children,

she began missing visits. In January 1996, she told her sister with whom the

children were living that she was leaving town permanently, but told her sister

not to tell the children. Hamlin then moved to Wyoming with her boyfriend. 

 6 After Hamlin moved to Wyoming, her Helena, Montana, caseworker

arranged for an interstate compact to allow her to complete her treatment plan

in Wyoming. However, Hamlin did not keep her Wyoming caseworker

informed of her changing whereabouts. The Wyoming caseworker notified the

Montana caseworker in September 1996 that he wanted to close the case

because he was unable to locate Hamlin. 

 7 The Department presented testimony that although Hamlin's chemical

dependency evaluation resulted in a recommendation that she obtain inpatient

chemical dependency treatment, she did not show up for such treatment when

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-650%20Opinion.htm (2 of 6)4/18/2007 2:01:17 PM
97-650

it was arranged for her. In Wyoming, she attended one mental health

counseling session and had not started parenting classes. She did not complete

other counseling as required under her treatment plan. She had not maintained

stable housing or employment. She claimed that she underwent a second

chemical dependency evaluation which concluded that she was not chemically

dependent, but she did not have the written results because she was unable to

pay for the evaluation. 

 8 After she moved to Wyoming, Hamlin initially maintained telephone

contact with the children but that ceased in October 1996. Although she sent

the children Christmas presents and birthday presents from Wyoming, the

birthday presents all arrived late. Hamlin visited her children on three days in

May 1996 when she had a court appearance in this matter. There were no

other visits between Hamlin and the four children between January 1996 and

the June and July 1997 hearing. 

 9 The three oldest children were all receiving mental health counseling. 

 All three suffered from psychological problems which the counselor identified

as resulting from living in their parents' violent and chaotic household and then

being confused about why they no longer lived with their parents. Their

counselor testified that they did not view living with their mother as a

possibility for them in the future. Hamlin's oldest son suffered from a chronic,

low-grade depression. The second-oldest child, R.H., suffered from an anxiety

disorder. D.H. had some depression and repression of emotions and had

"acted out" by starting fires. The youngest child, R.H., was less than one year

old when he moved in with his aunt and uncle and did not remember Hamlin. 

 10 All the professionals agreed that the children desperately need

permanency--to know where they will be living for the long term. By all

accounts, the children have improved in school attendance and performance

and emotionally while living with their aunt and uncle's family. The aunt

testified that the children love their mother and miss her, but that they do not

want to move to Wyoming. She further testified that she and her husband

were willing to commit to long-term foster care of all four children.

 11 The court determined that Hamlin had failed to comply with the

provisions of her treatment plan and that she had abandoned the children by

failing to have any contact with them between May of 1996 and the hearing. 

The court further determined that the children needed to be placed permanently, and 

that this needed to happen immediately: "The children cannot wait

any longer to see if their mother might someday become an adequate parent

to them." The court determined that it was in the best interests of the children

to remain in the home of their aunt and uncle, and awarded their care and

custody to the Department until they are eighteen years of age, with the

recommendation that they be placed with the aunt and uncle. The court

further ordered that Hamlin shall have contact with the children only if the

Department determines contact to be in the children's best interests, and that

any visits shall be therapeutically supervised unless the children's therapist

determines that supervision is not necessary. 

 12 In a companion case, the District Court placed the custodial rights of

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-650%20Opinion.htm (3 of 6)4/18/2007 2:01:17 PM
97-650

the children's father with the Department. The father did not appeal, but

Hamlin does. 

 DISCUSSION

 13 Did the District Court abuse its discretion when it awarded Hamlin's

custodial rights to the Department?

 14 Although Hamlin, in her brief, characterizes the District Court's

decision as one terminating her parental rights to her children, the court did not

terminate her parental rights. The court concluded in part as follows:

 The State has presented a compelling case to terminate

 [Hamlin's] parental rights to the children and to place the

 children with the Department with the right to consent to the

 adoption of the children. Under the unique circumstances of

 this case, however, the Court concludes that it would not be

 appropriate to do so, at least at this time.

Instead, the court declared J.H., R.H., D.H., and R.H. youths in need of care

and awarded Hamlin's custodial rights to the children to the Department until

each child reaches the age of eighteen. 

 15 This Court reviews findings of fact to determine whether the findings

are clearly erroneous, and we review conclusions of law to determine whether

they are correct. The transfer of a child's custody from his or her parents to

the Department is dependent upon an initial determination that the child is

abused or neglected and is then a discretionary determination which this Court

reviews for abuse of discretion. Matter of C.M. (1997), 281 Mont. 183, 186,

932 P.2d 1063, 1065. 

 16 Section 41-3-404, MCA (1995), provides for adjudicatory hearings to

declare a child a youth in need of care. Then 41-3-406(1), MCA (1995),

goes on to provide:

 If a youth is found to be a youth in need of care under

 41-3-404, the court may enter its judgment, making any of the

 following dispositions to protect the welfare of the youth:

 (a) permit the youth to remain with the youth's parents

 or guardian, subject to those conditions and limitations the court

 may prescribe;

 (b) grant an order of limited emancipation to a youth

 who is 16 years of age or older as provided in 41-3-408;

 (c) transfer legal custody to any of the following:

 (i) the department;

 (ii) a child-placing agency that is willing and able to

 assume responsibility for the education, care, and maintenance

 of the youth and that is licensed or otherwise authorized by law

 to receive and provide care of the youth; or

 (iii) a relative or other individual who, after study by the

 department or a licensed child-placing agency designated by the

 court, is found by the court to be qualified to receive and care

 for the youth;

 (d) order any party to the action to do what is necessary

 to give effect to the final disposition, including undertaking

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-650%20Opinion.htm (4 of 6)4/18/2007 2:01:17 PM
97-650

 medical and psychological evaluations, treatment, and counseling that does not 

require an expenditure of money by the

 department unless the department is notified and a court hearing

 is set in a timely manner on the proposed expenditure. The

 department is the payor of last resort after all family, insurance,

 and other resources have been examined. 

 (e) order further care and treatment as the court considers in the best 

interest of the youth that does not require an

 expenditure of money by the department unless the department

 is notified and a court hearing is set in a timely manner on the

 proposed expenditure. The department is the payor of last resort

 after all family, insurance, and other resources have been

 examined. [Emphasis added.]

Under this statute, a stipulation that a child is a youth in need of care

empowers a district court, in its discretion, to transfer legal custody of the

child from the parent(s) to the Department. See Matter of C.M., 281 Mont. at

187, 932 P.2d at 1066.

 17 In this case, as the Department points out, Hamlin stipulated that her

children were youths in need of care. Under Matter of C.M., it was then

within the discretion of the District Court to determine whether the welfare of

the children would be protected by transferring their legal custody to the

Department. 

 18 Hamlin disputes the court's conclusion that she "totally" failed to

comply with provisions of the treatment plan and that it was highly unlikely

that she could or would remedy her problems within a reasonable amount of

time. She submitted records of counseling she independently obtained in

Wyoming. However, those records indicate that the counseling Hamlin sought

in Wyoming related almost exclusively to issues between her and her

boyfriend. The record also contains a letter from Hamlin's Wyoming

caseworker stating that Hamlin had stopped attending parenting classes in

September 1996. Two letters from agencies in Wyoming state that Hamlin did

not complete anger management classes and that she attended a battered

women's support group only one or two times. 

 19 Hamlin also disputes the court's conclusion that she abandoned her

children by failing to have any contact with them from May 1996 to June

1997. This apparently relates to her allegation that her rights should not be

terminated because any evidence to that effect relates to domestic abuse she

suffered at the hands of her former husband, the children's father. However,

she does not elaborate upon that claim, and the evidence does not support the

statement that her problems parenting her children were due solely to abuse

she suffered at the hands of their father. 

 20 The only contact Hamlin initiated with her children from Wyoming--phone calls-- 

terminated when her sister stopped accepting collect calls from

her after she called irregularly and insisted on having her boyfriend participate

in the calls. The Montana caseworker testified that he wrote to Hamlin in

January 1997 concerning acceptable conditions and scheduling of phone calls

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-650%20Opinion.htm (5 of 6)4/18/2007 2:01:17 PM
97-650

from her to her children, but Hamlin did not respond to his letter. The

children's counselor testified that the children made a videotape and sent it to

their mother, but they never received any response. 

 21 Hamlin's plan for the future, as she related to the children's counselor,

was to return to Wyoming, to try to see the children every six months, and to

resume her telephone contact with them. Twenty months after the children

were declared youths in need of care, she did not have a residence large

enough to accommodate four children, and she had not arranged for the

children to visit her in Wyoming. Hamlin had not completed her treatment

plan and had in fact been out of contact with her children for the majority of

time since her treatment plan was initiated. Hamlin's position is that she needs

more time to get her life in order. However, the evidence clearly established

that, for their emotional health, these children need finality of placement now.

 22 Hamlin cites the goal set forth at 41-3-101(1)(d), MCA, of preserving

the unity and welfare of the family whenever possible. After reviewing the

record, we conclude that goal has been forwarded by the recommendation of

the District Court that the children be placed with their aunt and uncle and the

provisions regarding visitation by the parents. 

 23 We hold that the District Court did not abuse its discretion in determining 

that to protect the welfare of J.H., R.H., D.H., and R.H., their custody

should be transferred to the Department. We therefore affirm the decision of

the District Court. 

 /S/ J. A. TURNAGE

We concur:

/S/ KARLA M. GRAY

/S/ W. WILLIAM LEAPHART

/S/ JAMES C. NELSON

/S/ TERRY N. TRIEWEILER

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-650%20Opinion.htm (6 of 6)4/18/2007 2:01:17 PM