NO. 89-595 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1990 

IN THE MATTER OF D.G., 

A Youth in Need of Care. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis & Clark, 

The Honorable Thomas C. Honzel, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Edmund F. Sheehy, Jr., Cannon & Sheehy, Helena, 

Montana 

For Respondent: 

Marc Racicot, Attorney General, Helena, Montana, 

Jennifer M. Anders, Assistant Attorney General, 

Helena, Montana 

Mike McGrath, County Attorney, Helena, Montana, 

Carolyn Clemens, Deputy County Attorney, Helena, 

Montana 

Randi Hood, Public Defender's Office, Helena, 

Montana 

.- ,+Submitted: May 16, 1990 

Decided: July 19, 1990 

JUL 19 1990 

CLEAKOFSUPREMECOUR 

STATE OF MONTANA 
Justice William E. Hunt, Sr., delivered the Opinion of the Court. 

Appellant L. G.H. , the natural mother of D.G., appeals from the 

order of the District Court of the First Judicial District, Lewis 

and Clark County, terminating her parental rights. We affirm. 

The issues raised on appeal are: 

1) Whether the ~istrict Court erred in terminating 

appellant's parental rights rather than awarding Department of 

Family Services long-term custody of D.G. 

2) Whether the ~istrict Court abused its discretion in 

ordering the Department of Family Services to consider visitation 

by the appellant following adoption. 

D.G. was born on June 24, 1982, to appellant and G.G. 

Appellant also had two other children. Beginning approximately at 

the time of D.G.'s birth, a pattern of chronic neglect of all the 

children, as documented by the Department of Family Services 

(Department), began developing. 

The State's involvement with D.G.'s welfare was initiated in 

1986 when D.G. was four years old. The Department began receiving 

numerous reports about D.G. alleging neglect, physically aggressive 

behavior, and inappropriate sexual conduct for a boy his age. 

After each report the Department discussed its concerns with 

appellant. Although appellant displayed a cooperative attitude, 

she repeatedly failed to follow through with counseling for D.G. 

or with the Department's recommendations that D.G. participate in 

various services. 
In response to these numerous reports and appellant's failure 

to act, the Park County Attorney filed a petition requesting that 

the Department be given temporary investigative authority over 

D.G. Appellant signed a stipulation and treatment plan in August, 

1987, which was approved by the court. Appellant and D.G. 

subsequently moved to Helena, Montana, resulting in a 

jurisdictional transfer of the petition to Lewis and Clark County. 

On July 31, 1987, D.G. was placed in the child psychiatric 

unit of Shodair Children's Specialty Hospital (Shodair) with 

appellant's permission. The Shodair staff concluded that D.G. had 

been subjected to physical, emotional, psychological, and sexual 

abuse, and that his tantrums and manipulative behaviors were the 

result of a dysfunctional, abusive, and unstable family life. 

Upon his release from Shodair in September, 1987, D.G. was 

placed in foster care. While in foster care, his behavior 

deteriorated. As a result, he was placed at the Intermountain 

Deaconess Home (Deaconess) for children. 

In response to the petition of the Park County Attorney, a 

hearing was held in Lewis and Clark County and the court granted 

90-day investigative authority to the Department. After the 

investigation was completed, the Lewis and Clark County Attorney's 

office filed a petition for temporary custody and protective 

services. A hearing was held at which the court found that D.G. 

was a youth in need of care. In June, 1988, the court granted the 

Department temporary custody of D.G. for a period of one year and 

directed the Department to prepare a treatment plan to be approved 

by the court. The treatment plan was prepared, signed by both 

3 
parents, and subsequently approved by the court. Appellant failed 

to comply with this second treatment plan. 

In February, 1989, appellant was sentenced to twenty-five 

years at the State Women's Correctional Facility for the offense 

of criminal sale of dangerous drugs. Her sentence was amended by 

the Sentence Review Division of the Montana Supreme Court to 

twenty-five years with ten years suspended. With her amended 

sentence, appellant could be eligible for parole in approximately 

October, 1991. D.G. has been able to visit appellant on three or 

four occasions since her incarceration. 

After the completion of the one-year temporary custody period, 

the County Attorney filed a petition to terminate appellant's 

parental rights. The petition also requested that the parental 

rights of D.G. Is father be terminated. A hearing was held. 

Testimony by D.G.'s therapist at Deaconess, Dodie Heffner, 

indicated that D.G. will need continued therapy and that such 

therapy can only thrive in an atmosphere of consistency, security 

and stability. Heffner stated that she still sees aggressive 

behavior and anxiety in D.G. and that he will need a lot of time 

and attention. She stressed that D.G. needs a permanent placement 

and recommended a permanent adoptive home. However, Heffner also 

recommended that it would be in D.G. Is best interests to retain 

some regular contact with his mother. The County Attorney 

supported such a recommendation. 

Following the hearing, the court terminated the parental 

rights of appellant and D.G.'s father, concluding that neither 

appellant nor D.G. 's father could presently provide the type of 
care which D.G. needs and it is unlikely that they would be able 

to do SO in the foreseeable future. The court did recognize, 

however, that it would be in D. G. ' s best interests to maintain 

continuing contact with appellant. Therefore, the court ordered 

that, before the Department consents to an adoption of D.G., 

consideration should be given as to whether the adoptive parents 

would voluntarily allow contact between appellant and D.G. 

The first issue to be raised on appeal is whether the District 

Court erred in terminating appellant's parental rights rather than 

awarding Department of Family Services long-term custody of D.G. 

The standard of review on appeal is: 

[w]e will not disturb the District Court's decision 

unless the findings of fact are not supported by 

substantial, credible evidence, or the conclusions of law 

amount to a clear abuse of discretion. 

Matter of V.B., 229 Mont. 133, 744 P.2d 1248 (1987). Section41- 

3-609, MCA, lists the criteria the court must consider in 

terminating the parental rights of an individual. The court must 

find the following: 

(c) the child is adjudicated a 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. 

Section 41-3-609 (1) (c) , MCA. 

The treatment plan was approved by the court on August 23, 

1988, and had a six-month time frame. The evidence indicates that 

appellant's compliance with the treatment plan had not even begun 
by the time appellant was jailed in early December, 1988. Although 

appellant's incarceration may have interfered with her ability to 

complete the treatment plan, her failure to even begin the plan 

within four months coupled with her consistent failure to complete 

parenting tasks previously assigned by the Department foretells of 

the potential failure of this treatment plan. 

Although not specifically considered by the court, it should 

be noted that 5 41-3-609 (4) (b) , MCA, provides that a treatment plan 

is not required if ''the parent is incarcerated for more than 1 year 

and such treatment plan is not practical considering the 

incarceration. This section recognizes that a child may need help 

while a parent is incarcerated and that such help cannot be delayed 

pending the parent's release. D.G. needs immediate help which 

cannot wait for appellant's release. 

Additionally, the court found that appellant's conduct and 

condition are unlikely to change within a reasonable time. Section 

41-3-609(2), MCA, provides the court with various factors to 

consider in making such a finding. These factors include "any 

reasonable efforts by protective service agencies that have been 

unable to rehabilitate the parent." Section 41-3-609(2)(g), MCA. 

The evidence indicates that, through repeated efforts, the 

Department has been unable to rehabilitate appellant. Appellant 

is unable to care for D.G. The Department was involved with 

appellant for a period of seven years during which time little or 

no progress was observed in appellant's ability to parent any of 

her children. In fact, a chronic pattern of neglect was reported 

by the Department with respect to all three of appellant's 

6 
children. The reports of the Department combined with appellant's 

current state of incarceration support the court's finding that 

appellant's condition and conduct are unlikely to change within a 

reasonable time. 

Paramount to the court's decision to terminate parental rights 

are the best interests of the child. Section 41-3-609(3), MCA. 

Although appellant argues that it would be in D.G. 's best interests 

to award the Department long-term custody of D.G. rather than 

terminating appellant's parental rights, the evidence indicates 

otherwise. 

Long-term custody would allow appellant to retain visitation 

rights and to petition the court to regain custody of D.G. See 

Matter of R.T.L.P., 777 P.2d 892, 46 St.Rep. 1354 (Mont. 1989). 

Testimony by Dodie Heffner indicated that it was in D.G. Is best 

interests to have appellant's parental rights terminated. D.G. is 

an extremely emotionally disturbed child who needs consistency, 

security, and stability. He needs a permanent placement, 

preferably in an adoptive home, and needs to know where he is 

going. Long-term custody will not provide the permanency that D.G. 

so desperately needs. Although both Heffner and the State 

indicated that continuing contact between appellant and D.G. may 

be in D.G.'s best interests, it is only a factor to be considered 

in evaluating his overall condition. The court's termination of 

appellant's parental rights was proper. 

The second issue on appeal is whether the District Court 

abused its discretion in ordering the Department to consider 

visitation by the appellant following adoption. 

7 
This Court previously addressed this issue in Matter of V.B. 

We held that, even if visitation by the natural parent is in the 

child's best interest, such visitation cannot be ordered if a 

parent's rights have been terminated. Matter of V.B., 229 Mont. 

at 137, 744 P.2d at 1250. Based upon 4-3-611(1) , MCA, 

termination divests the natural parent of all rights over the 

child, including visitation. Matter of V.B., 229 Mont. at 137, 744 

P.2d at 1250. 

However, we also held that, although the court cannot order 

visitation, even with the Department's approval, the court may 

order the Department to consider the availability of continuing 

contact between parent and child in the event of an adoption. 

Matter of V.B., 229 Mont. at 137, 744 P.2d at 1250. This 

continuing contact will only be allowed in exceptional cases. 

Matter of V.B., 229 Mont. at 137, 744 P.2d at 1250. 

In this case, the court specifically concluded that, based 

upon the testimony of Heffner, this case is exceptional. The court 

ordered that the Department consider continuing contact in the 

event of an adoption. Such ''restricted contact allowed by the 

court falls short of a visitation right" and is, therefore, within 

the District Court's discretion. Matter of V.B., 229 Mont. at 137, 

744 P.2d at 1250. 

Affirmed. 1 
We Concur: