No. 95-536

IN THE SUPREME COURT OF THE STATE OF MONTANA

1996

IN THE MATTER OF

J.L., D.L. and A.G.

YOUTHS IN NEED OF CARE,

APPEAL FROM: District Court of the Eighteenth Judicial District,

In and for the County of Gallatin,

The Honorable Thomas A. Olson, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Derik Pomeroy, Bozeman, Montana

For Respondent:

Jospeh P. Mazurek, Attorney General, John Paulson,

Assistant Attorney General; A. Michael Salvagni,

Gallatin County Attorney, Gary Balaz, Deputy

Gallatin CountyAttorney, Bozeman, Montana; Jeannine

Newville, Bozeman, Montana, guardian ad litem; Todd

Hillier, Bozeman, Montana, guardian ad litem;

Marcelle Quist, Bozeman, Montana

Filed:

Submitted on Briefs: June 13, 1996

Decided: July 22, 1996
Justice William E. Hunt, Sr. delivered the Opinion of the Court.

Stephanie G. (Stephanie), the natural mother of J.L., D.L.,

and A.G., appeals the decision of the Eighteenth Judicial District

Court, Gallatin County, terminating her parental rights to her son

J.L. We affirm.

ISSUE

The sole issue raised on appeal is whether the District Court

abused its discretion by terminating Stephanie's parental rights to

J.L.

FACTS

Stephanie is the single parent of three sons, who are

currently ten, eight, and four years old. The middle child, D.L.,

is deaf. In 1993, all three boys were adjudged youths in need of

care and removed from the home due to Stephanie's inability to

provide a clean, safe, and structured home environment for them.

Stephanie suffered from major depression and post-traumatic stress

disorder and demonstrated a passive and avoidant personality.

Following the children's removal from the home, Stephanie began

working with the Department of Family Services (DFS) to attempt to

complete a prescribed treatment plan in order to regain custody of

the children.

In early 1994, the District Court held a hearing evaluating

Stephanie's progress. The District Court found that Stephanie had

successfully completed seven of the objectives listed in her

treatment plan, but that she had failed to complete five other

objectives. The rest had been partially completed or were moot.

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The District Court recognized that Stephanie loved the boys but

concluded that her parenting skills and mental health needed

further improvement. The District Court also determined that J.L.

was experiencing emotional problems which necessitated his

placement in a therapeutic foster home. Accordingly, the District

Court extended DFS's temporary investigative authority for another

year and left the boys in various placements outside Stephanie's

home. Stephanie subsequently agreed to a second treatment plan to

pursue during the following year.

In late 1994, DFS petitioned the District Court to terminate

Stephanie's parental rights, asserting that Stephanie had not

complied with the latest treatment plan and was not visiting any of

the boys on a regular basis. In December, 1994, the District Court

held a three-day hearing in this case, during which it received

evidence and heard extensive testimony from all interested parties.

At the hearing, the rights of the boys' respective fathers were

terminated, a decision which none of the fathers appeals. Also at

the hearing, Stephanie voluntarily relinquished her rights to A.G.,

the youngest boy, provided that he be adopted by his aunt,

Stephanie's former sister-in-law.

In 1995, the District Court issued its findings of fact,

conclusions of law, and order regarding termination of Stephanie's

parental rights to J.L. and D.L. The District Court noted that

Stephanie again had failed to comply with the treatment plan in its

entirety. Nevertheless, it declined to terminate Stephanie's

rights regarding D.L., finding that he was benefitting from the

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structured environment of the Great Falls School for the Deaf. The

District Court found that Stephanie had made progress in learning

sign language and in educating herself regarding D.L.'s handicap.

It further found that, with the assistance of her family, she

should be able to handle the demands of a single child.

By the same order, the District Court terminated Stephanie's

parental rights to J.L. The District Court recognized that

Stephanie had made significant strides in coping with her personal

and parenting problems, as evinced by accomplishments such as

obtaining a driver's license and full-time employment. However,

the District Court found that Stephanie had maintained only minimal

contact with the children. It further found that she continued to

experience emotional problems including a tendency to become easily

overwhelmed by multiple demands and an animosity towards "the

system," both of which contributed to her inability to complete the

treatment plan. The District Court further noted that J.L.'s

emotional state had greatly improved following his placement in the

therapeutic foster home and that it was in his best interests to

remain in a highly structured environment. For these reasons, the

District Court terminated Stephanie's parental rights to J.L.

Stephanie appeals.

STANDARD OF REVIEW

In cases involving the termination of parental rights, this

Court will affirm a district court's findings of fact unless the

findings are clearly erroneous. In the Matter of J.S. and P.S.

(1994), 269 Mont. 170, 173, 887 P.2d 719, 720. We will affirm a

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district court's conclusions of law if they are correct. Matter of

- I J.S. 887 P.2d at 720. See also In the Matter of D.H. and F.H.

(1994), 264 Mont. 521, 872 P.2d 803; In the Matter of K.F.L. and

N.L. (Mont. 1996), 910 P.2d 241, 53 St.Rep. 57.

Because the termination of parental rights involves

fundamental liberty interests, the party seeking termination must

present clear and convincing evidence to the District Court that

the prerequisite statutory criteria for termination have been met.

In the Matter of M.M. (1995), 271 Mont. 52, 56, 894 P.2d 298, 301

(citing In the Matter of J.R. (1992), 253 Mont. 434, 438, 833 P.2d

1063, 1066). The criteria for termination are set forth in § 41-3-

609, MCA, which provides in pertinent part:

(1) The court may order a termination of the parent-child

legal relationship UPOIl a finding that any of the

following circumstances exist: .

(cl the child is an adjudicated youth in need of care

and both of the following exist:

ii) 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.

Section 41-3-609(l) (c), MCA. Section 41-3-609, MCA, further

provides that

[i]n 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 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 such duration or nature as to

render the parent unlikely to care for the ongoing

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physical, mental, and emotional needs of the child within

a reasonable time. .

Section 41-3-609(2)(a), MCA. When making such a determination, the

district court 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; In the Matter of T.M. (19941, 267 Mont. 75, 79, 881 P.2d

1333, 1336; In the Matter of J.J.G. (19941, 266 Mont. 274, 282,

880 P.2d 808, 813.

DISCUSSION

In arguing that the District Court erred by terminating her

parental rights to J.L., Stephanie alleges two specifications of

error. First, she argues that the District Court's decision was

not supported by clear and convincing evidence and, therefore, must

be reversed. Second, she argues that the District Court's decision

is "logically inconsistent, 'I because it determined that she was fit

to parent one of the boys but unfit to parent the other.

Stephanie asserts that the District Court could not have found

clear and convincing evidence to justify termination of her

parental rights because the evidence presented at the hearing

conflicted in part. While the children's guardian ad litem

recommended that Stephanie's parental rights be terminated, two

psychologists testified that she should be allowed to retain her

parental rights and resume custody of the children. While the

District Court highlighted Stephanie's on-going difficulties in

working with the system and taking responsibility, it also

acknowledged that Stephanie's personal and parenting problems were

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improving, as illustrated by her obtaining both a steady job and a

driver's license. Stephanie contends that the existence of such

conflicting testimony and findings precluded the District Court

from discovering clear ahd convincing evidence in favor of

termination of her parental rights.

This Court has not defined "clear and convincing evidence" in

the area of termination of parental rights. However, in a similar

case, the Kansas Supreme Court held that

[cllear 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 the Interest of S.M.Q. .(Kan. 1990), 796 P.Zd 543, 545. This

definition also comports with the meaning of "clear and convincing

evidence" as articulated in Montana case law and Montana statutory

law in other legal areas. See In the Matter of Shennum (1984), 210

Mont. 442, 684 P.2d 1073 (commitment of an adult for serious mental

illness); § 27-l-221(5), MCA (entitlement to punitive damages).

Accordingly, the fact that the evidence presented in a case

conflicts does not automatically preclude a finding that clear and

convincing evidence to support a given position exists.

Moreover, while the District Court was charged with

discovering clear and convincing evidence to justify termination of

Stephanie's parental rights, it is not the function of this
appellate court to "reweigh the evidence, substitute its evaluation

of the evidence for that of the trial court, or pass upon the

credibility of witnesses." Interest of S.M.O., 796 P.2d at 545.

Rather, we must ask whether the District Court's findings are

clearly erroneous. Matter of J.S., 887 P.2d at 720. If they are

not, they must be upheld.

In this case, the District Court recognized the strides

Stephanie made in improving herself, both as an individual and as

a parent. Yet the District Court also found that Stephanie still

experienced very significant problems in taking responsibility and

in dealing with the pressures of parenting, as evinced by her

continued inability to substantively comply with a treatment plan

and by her sporadic contact with the children. Moreover, the

District Court further found that J.L.'s continuing emotional

problems necessitated permanent placement in a highly structured

environment. These findings are supported by substantial evidence

and are not otherwise clearly erroneous.

Stephanie also argues that the decision of the District Court

is "logically inconsistent" because the District Court found that

Stephanie could properly parent D.L., while simultaneously

terminating her parental rights to J.L. Stephanie contends that

she is either an adequate parent or she is not, and that if she can

successfully parent one of her children she can successfully parent

both of them.

We disagree. The District Court specifically found that

Stephanie functioned better when dealing with D.L. alone, rather

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than when faced with the responsibility for caring for more than

one child at a time. Further, it found that J.L. needed a highlystructured therapeutic environment which Stephanie could not give

him. D.L., on the other hand, would not present such a difficult

parenting challenge because of his continued enrollment in the

Great Falls School for the Deaf and because of the assistance of

Stephanie's family. Again, these findings are supported by

substantial evidence and are not clearly erroneous.

The judgment of the District Court is affirmed.

We Concur: ,

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