Ho. 9i-098 

IN THE SUPREME COURT OF THE STATE OF MOKTANA 

1991 

IN THE MATTER OF THE CUSTODY 

AND PARENTAL RIGHTS OF 

N.J. AND A.J., 

Youths in Need of Care. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis and Clark, 

The Honorable Dorothy McCarter, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Leo J. Gallagher, Attorney at Law, Helena, Montana 

For Respondent: 

Hon. Marc Racicot, Attorney General, Helena, Montana 

Micheal S. Wellenstein, Assistant Attorney General, 

Helena, Montana 

Mike McGrath, Lewis and Clark County Attorney, 

Helena, Montana; Carolyn Clemens, Deputy County 

Attorney, Helena, Montana 

Randi Hood, Public Defender's Office, Helena, 

Montana 

Nick Jacques, Attorney at Law, Helena, Kontana 

Filed: 

Submitted on Briefs: Jgly 2, 1991 

Decided: Au~ust 12. 1991 
Chief Justice J. A. Turnage delivered the Opinion of the Court. 

G.J. (Mother) appeals an order of the District Court of the 

First Judicial District, Lewis and Clark County, which terminated 

her parental rights to her two children, N.J. and A.J. We affirm. 

Mother presents one issue on appeal; we rephrase this issue 

as follows: 

Did the District Court abuse its discretion when it terminated Mother's parental rights to N.J. and A.J.? 

Mother married S.J. (Father) at an early age. The couple had 

two children, N.J., born September 27, 1986, and A.J., born August 

16, 1988. The couple separated in January 1989. Mother testified 

that the couple separated because she "[clouldn't handle [Father's] 

drugs and his booze and he wasn't coming home at nights." Mother 

further testified that in May 1989, she left her children with 

B.J., her mother and the children's grandmother, and departed to 

Nevada because she "decided to screw off my life too. . . . II 

The record indicates that Mother and Father share a history 

of chronic drug and alcohol abuse. Additionally, the record 

indicates that Mother has a history of emotional problems stemming 

from her childhood. B.J. testified that Mother has a problem with 

being truthful. 

When Father discovered that Mother had left for Nevada leaving 

the children with B.J., he retrieved the children from B.J. and 

took them to his residence in Wickes, Montana. Mother testified 

that she was unaware that Father had taken the children from B.J. 

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until shortly before she returned to Montana on July 7, 1989. 

Apparently, however, the children remained living with Father 

following Mother's return to Montana. 

On July 31, 1989, Father left the children with a babysitter 

but failed to return to pick them up. On August 4, 1989, the 

babysitter attempted but failed to contact Mother to pick up the 

children. The babysitter then took the children to the Jefferson 

County Sheriff's Office to report their abandonment. The Jefferson 

County Sheriff's Office notified Lewis and Clark County Department 

of Family Services (Department) of the children's situation. The 

Department had knowledge of these children as it had investigated 

past reports of alleged neglect of the children starting in 

September 1988. Following a conversation between the Department 

and the babysitter, the children remained at the home of the 

babysitter over the next few days with B.J. providing the babysitter her assistance with the children. 

Department records indicate that Father returned on August 7, 

1989. Additionally, Department records dated August 7, 1989, 

indicate that Mother contacted the Department about the children, 

but stated that she could not provide adequate care for them as she 

was then living in a friend's *'filthyn house. 

On August 8, 1989, the Department petitioned the District 

Court for temporary investigative authority and protective services 

regarding the children. On August 8, 1989, the District Court, 

granted the Department temporary investigative authority for six 

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for depression. During this time, Mother was also physicaliy 

abused by her boyfriend, S.W. 

Mother returned to Helena in January 1990, and indicated to 

Harris her desire to begin implementation of a treatment plan. On 

February 28, 1990, Mother agreed to a treatment plan previously 

prepared by Harris on December 29, 1989. 

Father's whereabouts were unknown at this time. He was 

notified by publication of a March 2, 1990 hearing concerning the 

Department's December 5, 1989 petition for protective services and 

adjudication of the children as youths in need of care. Accordingly, the Department was unable to discuss with Father and Father was 

unavailable to agree to the implementation of the treatment plan. 

However, later when Father's whereabouts were determined, Father 

expressed no interest in regaining custody of his children. The 

last time Father expressed interest in regaining custody of the 

children was August 1989 

The District Court approved the treatment plan at the March 

2, 1990 hearing. The treatment plan set forth the following goals: 

Goal I: To obtain chemical dependency evaluations and follow the recommendations of the 

evaluation. 

Goal 11: [Mother] and [Father] will have 

psychological evaluations and follow the 

recommendations of the evaluation. 

Goal 111: [Mother] or [Father] will provide 

a stable environment for the children that 

will meet their emotional, psychological, and 

physical needs. 
Additionally, the District Court determined the children to be 

youths in need of care in an order dated March 6, 1990. 

In an effort to meet the first goal of the treatment plan, 

Mother successfully completed an out-patient treatment program at 

Boyd Andrew Chemical Dependency Care Center (Center) on April 19, 

1990, after the Center evaluated and diagnosed her as chemically 

dependent. Mother then began the program's required after-care 

program, but she quit attending the after-care program in June 1990 

because she did not want to discuss at group therapy sessions the 

trauma she suffered as a child. She testified on direct examination at the termination hearing that she would have continued 

attending the after-care program if she could have attended oneto-one sessions instead of group sessions. The after-care program, 

however, offered the one-to-one sessions, which Mother for a time 

attended. On cross-examination, Mother testified that she did not 

know why she quit attending the one-to-one sessions. 

The second goal of the treatment plan required Mother to 

submit to and obtain a psychological evaluation and abide by the 

evaluation's recommendations. Mother failed to submit to a 

psychological evaluation despite repeated reminders from her social 

workers to schedule a time with a psychologist for an evaluation. 

Mother admitted that she lied to one of her social workers when, 

at one point, she told him that she was undergoing a psychological 

evaluation. 
The third goal of the treatment plan was that Mother would 

provide a stable environment for her children. Mother failed to 

provide adequate housing for the children and fziled to maintain 

steady employment. Mother failed to qualify for general assistance 

through Aid to Families with Dependent Children because she refused 

to participate in a project work program. 

Mother testified that, in May 1990, while she was attempting 

to comply with the treatment plan, she was hospitalized because 

she intentionally "OD'ed on Tylenol." Mother further testified 

that some time later, she was hospitalized for depression. The 

record indicates that regarding the last hospitalization for 

depression, Mother was admitted to an emergency room for taking 

pills. 

On September 14, 1990, six months after the court approved the 

treatment plan, the Department petitioned the District Court to 

terminate the parental rights of Mother and Father to the children 

because the goals of the treatment plan were unmet. The District 

Court conducted a hearing on the Department's petition on November 

5, 1990. Although Father was notified of this hearing, he did not 

attend. Father's court-appointed counsel appeared at this hearing 

but the District Court excused him from participating in the 

proceeding after counsel explained that he had no contact with 

Father and had no evidence to rebut any of the evidence to be 

presented. Mother and her court-appointed counsel attended this 

hearing. On November 20, 1990, the District Court terminated the 

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parental. rights of Mother and Father to A. J. and N.3. Cn Decewer 

18, 1990, the District Court amended its November 20, 1990 ruling 

in an order nunc pro tunc dated December 18, 1990, which amenament 

does not relate to any issue in this appeal. From this order, 

Mother appeals 

Did the District Court abuse its discretion when it terminated 

mother's parental rights to N.J and A.J.? 

Mother argues that the District Court erred when it found that 

her "conduct or condition rendering her unfit as a parent was 

unlikely to change within a reasonable time." She further argues 

that although she technically failed to meet the goals of the 

treatment plan by not getting a psychological evaluation, she did, 

on a number of occasions, attempt to get an evaluation completed. 

She argues that she has been drug-free since February 1990. And, 

she argues that she has secured a place to live for her and the 

children. 

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

In 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 parentchild 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 

such 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 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; 

(g) any reasonable efforts by protective 

service agencies that have been unable to 

rehabilitate the parent. 

Here, the record indicates that Mother is not emotionally 

stable enough to care for the children. Since December 1989, 

Mother has been hospitalized and treated for depression and has 

been hospitalized twice for pill overdoses. A psychological 

evaluation and treatment, as recommended in her treatment plan, 

could have assisted Mother, but she chose not to pursue this 

avenue. The record also indicates that Mother has a history of 

chronic alcohol and drug abuse. Although the record indicates that 

she has made efforts to remedy her chemical dependency through a 

treatment program, the record also indicates that she failed to 

complete the required after-care program. Furthermore, the record 

indicates that the Department's efforts to rehabilitate Mother 

failed because she was unwilling to comply with the three goals of 

the court-approved treatment plan over a six-month time span. 
Flurrhermore, 42-3-509(3), MCA, provides that "the court 

shall give primary consideration to the physical, mental, and 

emotional conditions and needs of the child[ren]." Here, the 

record indicates that in May 1969, Mother left her children with 

B.J. and departed to Nevada because she "decided to screw off" her 

life. The record indicates that in August 1989, the children were 

subjected to abandonment by both of her parents when a babysitter 

turned the children over to the Jefferson County Sheriff's Office. 

N.J.'s therapist testified that N.J. displayed the behavior of a 

child who has been abandoned. Because of Mother's and Father's 

actions, the physical, mental, and emotional condition of N.J. has 

been harmed, and his needs have been left unfulfilled. Regarding 

A.J., although she does not exhibit outward signs of abandonment, 

her abandonment by her parents threatened her physical, mental, and 

emotional condition and left her needs unfulfilled. 

In conclusion, we hold that the District Court did not err 

when it found that Mother's conduct or condition rendering her 

unfit as a parent was unlikely to change within a reasonable time. 

Additionally, we hold that Mother failed to comply with the three 

goals under the treatment plan. We therefore affirm the District 

Court's order. 
We concur: 

4J~ -- ices