No. 95-298

IN THE SUPREME COURT OF THE STATE OF MONTANA

1996

IN THE MATTER OF THE CUSTODY AND

PARENTAL RIGHTS OF C.S.,

Youth in Need of Care.

APPEAL FROM: District Court of the First Judicial District,

1n and for the County of Lewis and Clark,

The Honorable Jeffrey Sherlock, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Thomas S. Winsor; Winsor Law Firm,

Helena, Montana

For Respondent:

Hon. Joseph Mazurek, Attorney General,

Micheal S. Wellenstein, Ass't Attorney General,

Helena, Montana

Mike McGrath, County Attorney; Carolyn A. Clemens,

Deputy County Attorney, Helena, Montana

Randi M. Hood, Helena, Montana

1

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Submitted on Briefs: January 25, 1996
Chief Justice J. A. Turnage delivered the Opinion of the Court

Pursuant to Section I, Paragraph 3(c), Montana Supreme Court

1995 Internal Operating Rules, the following decision shall not be

cited as precedent and shall be published by its filing as a public

document with the Clerk of the Supreme Court and by a report of its

result to State Reporter Publishing and West Publishing Companies.

The First Judicial District Court, Lewis and Clark County,

terminated the parental rights of C.S.'s mother and father. The

mother appeals. We affirm.

The issues are:

1 . Did the court err in granting the State's petition for

temporary investigative authority and protective services?

2. Was the mother prejudiced because a joint hearing was held

concerning termination of both parents' rights?

3 . Was the testimony of the foster parent prejudicial?

4 . Did the District Court err in terminating the mother's

parental rights?

C.S. was born in April 1993. Her mother, who was not married

to or living with C.S.'s father, voluntarily placed C.S. in foster

care for five days shortly thereafter while the mother was

hospitalized. C.S. then returned to her mother's care.

Several weeks later, the Department of Family Services (DFS)

filed for temporary investigative authority. The mother's parental

rights to her first child, a daughter, had been terminated in 1985

as a result of sexual abuse, and DFS was concerned about possible

recurrence of similar abuse. DFS had also been involved in the

2
mother's relinquishment for adoption of her second daughter, in

1989.

In June 1993, DFS and the mother entered a court-approved

stipulation allowing DFS to develop a treatment plan and to place

C.S. in foster care if DFS deemed it necessary. The mother then

went to Tennessee with C.S. and C.S.'s father, without notifying

DFS. Two months later, when the mother applied for food stamps in

Great Falls, Montana, DFS became aware that she and C.S. had

returned to the state. DFS removed C.S. from her mother's care,

placed her in foster care, and asked the District Court for

temporary custody and a declaration that C.S. was a youth in need

of care. On August 30, 1993, DFS and the mother stipulated to

those terms and that DFS should prepare a treatment plan.

In Novemiier and December :t994, the court held a hearing on

termination of bo.th parents' rights. DFS ;sreser;ted evidence that

C.S. 's father had failed to coi:rpiy with the terms of his treatment

plan. DFS conceded that by the time of the hearing, the mother had

complied with all terms of her treatment plan except one: a

requirement that she arrange for suitable housing for herself and

C.S. The court terminated both the mother's and the father's

parental rights to C.S. The mother appeals.

i

Did the cvJrt err in granting the State's petition for

temporary investigative authority and protective services?

In support of this claim, the mother argues that allegations

that she sexually abused her oldest daughter were never proven.

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She also complains that a consent form she signed while hospitalized shortly after C.S.'s birth, allowing C.S. to be put up for

adoption if the mother died, represented an overstepping of bounds

by DFS.

We will not put a district court in error for a ruling or

procedure in which the appellant acquiesced or participated. In re

Pedersen (1993), 261 Mont. 284, 287, 862 P.2d 411, 413. The mother

stipulated to temporary investigative authority in June 1993, with

advice of counsel. She cannot therefore now complain about the

grounds on which that authority was granted. Further, neither the

granting of temporary investigative authority nor the termination

of the mother's parental rights was based upon an adoption consent

form. We hold that the mother has not shown error in the granting

of the petition for temporary investigative authority or violation

of her rights during that process.

Was the mother prejudiced because a joint hearing was held

concerning termination of both parents' rights?

The mother contends she was prejudiced by the joint hearing

because her interests and those of C.S.'s father were hostile. She

argues that the hostile positions of the parents served to enhance

the case for termination of parental rights.

The mother first objected to the joint hearing on the day of

the hearing. In denying her request for separate hearings, the

court stated that it would sever the hearings if, during the

hearing, problems arose. Several witnesses testified concerning

4
both parents. The mother does not refer to specific portions of

the record in support of her allegations of prejudice. After

reviewing the record, we conclude that the mother has not demonstrated grounds for reversal on this basis.

III

Was the testimony of the foster parent prejudicial?

This argument is based on the foster father's testimony that

his wife expressed a desire to adopt C.S. after C.S.'s first stay

with the family for approximately five days shortly after her

birth. The mother maintains that the only justification for

introducing testimony regarding the potential adoption is that it

would be in the best interests of the child, which she says is not

the proper standard.

Again, we will not find error in a procedure in which the

appellant acquiesced or participated. Peterson, 862 P.2d at 413.

The mother's counsel elicited testimony from both the foster father

and the DFS caseworker to the same effect as the testimony about

which she now complains. We conclude that the objection made under

this issue has been waived.

IV

Did the District Court err in terminating the mother's

parental rights?

Section 41-3-609(l) (c), MCA (19931, provides:

(1) The court may order a termination of the parentchild legal relationship upon 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:

(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

timeL.1

The State has the burden of proving by clear and convincing

evidence that the statutory criteria under § 41-3-609(l) (c), MCA,

have been met. Matter of S.C. (1994), 264 Mont. 24, 28, 869 P.2d

266, 268.

In the present case, a DFS caseworker testified that C.S.'s

mother had not fully complied with the treatment plan objective

that "[The mother] has suitable housing for she [sic] and [C.S.].

The Department will determine if housing is suitable." The

caseworker testified that when the treatment plan was initiated,

the mother, who has limited mental capability, was living with her

own mother and brother. This was not viewed as suitable housing

for the mother and C.S. because the mother's brother has sexually

molested the mother in the past.

The caseworker testified that the mother rented a one-bedroom

apartment several months prior to the hearing. Her fiance, whom

she planned to marry in February 1994, had no residence of his own

and often stayed with her there. The DFS caseworker and the

fiance's mental health caseworker both testified that both the

fiance and the mother had repeatedly been told that if he was to be

a member of the mother's household, he must complete a parenting

training class before she could regain custody of C.S. The fiance

6
had not undertaken parenting training, yet the mother allowed him

to stay in her apartment.

The mother's caseworker testified that the mother's fifteenmonth failure to obtain suitable housing for herself and c.s.,

combined with her long-term history of involvement with abusive

male partners, made it unlikely that her failure to obtain suitable

housing would change within a reasonable time.

As we have noted, in August of 1993, the mother stipulated to

the court's declaration that C.S. was a youth in need of care. The

record clearly supports termination of the mother's parental rights

under § 41-3-609(l) (c), MCA. The District Court concluded that the

mother had failed to complete her treatment plan by failing to

obtain suitable housing for herself and C.S., and that

history of involvement with DFS indicates that change

occur in the near future.

The decision of the District Court is affirmed.

her long

will not

We concur:

/I ‘ /f- /,

Y

Chief Justice

1

Justices
Justice Terry N. Trieweiler dissenting.

I dissent from the majority opinion. I conclude that as a

matter of law there was insufficient evidence for state action as

harsh as the termination of this mother's parental rights.

There was no evidence that C.S. had ever been abused. There

was no evidence that she had ever been neglected.

C.S. was born on April 20, 1993. Shortly thereafter her

mother had to return to the hospital for treatment of bleeding

ulcers and agreed to the temporary placement of her daughter in

foster care. On May 21, 1993, when C.S. was approximately one

month old, the Department of Family Services petitioned for

temporary investigative authority based solely on the fact that

parental rights to a different child had been terminated in 1986

and that a second child had been relinquished for adoption in 1989.

Significantly, there was no allegation that the daughter, who was

the subject of these proceedings, had ever been neglected or

mistreated in any way. The Department alleged that she was in

danger of being abused based on unproven allegations that the

mother had abused another daughter over eight years earlier.

The mother, whom the court ultimately found suffers from

anxiety and has borderline intelligence, agreed to temporary

investigative authority and later agreed to the treatment plan

proposed by the Department of Family Services. The treatment plan

required that she (1) undergo a sex offender appraisal,

(2) complete a parent training course, (3) acquire suitable

housing, (4) make weekly visits to her daughter while the daughter

8
remained in foster care, (5) avail herself of child health

services, and (6) keep the Department of Family Services advised of

any address changes.

When it was later learned that the mother kept frequent

company with a male companion, an additional provision was added to

the treatment program by the court that he also attend and complete

the parent training course.

There was no description in the treatment plan of what

constituted "suitable housing" for an unemployed single mother who

was living on welfare. The plan simply provided that ‘I [tl he

Department will determine if housing is suitable."

In spite of the fact that she lived in poverty, C.S.'s mother

found housing in which she and her daughter could live. However,

the Department determined it was unsuitable because it had only one

bedroom. Although the mother adequately complied with the

treatment program in every other respect, the District Court

terminated her parental rights based on its finding that she had

not provided adequate housing and that her male companion had not

completed parent training classes.

Based on the record, I conclude that C.S.'s mother did comply

with her court-ordered treatment program in every possible respect,

that the court had no authority to require that a nonparent enter

into a treatment program, and that because of her compliance with

her treatment program, the District Court was without authority to

terminate her parental rights.

9
We have repeatedly held that parental rights involve a

fundamental liberty interest and that a decree terminating such

rights must be supported by clear and convincing evidence. In re

S.P.M. (1994), 266 Mont. 269, 271, 880 P.2d 297, 298. In this case,

before parental rights could be terminated the State had the burden

of proving that: (1) C.S. had been adjudicated a youth in need of

care; (2) an appropriate treatment plan had been approved by the

court and not complied with by the parent; and (3) the conduct or

condition that rendered this parent unfit was unlikely to change

within a reasonable time. Section 41-3-609(l) (cl, MCA.

Although C.S. 's mother stipulated to temporary investigative

authority pursuant to 5 41-3-402, MCA, the basis for the Department

of Family Services' petition was questionable. However, assuming

that the stipulation satisfied the first requirement of § 41-3-

609 (1) Cc), MCA, the State still had the burden of proving by clear

and convincing evidence that C.S.'s mother had not complied with

her treatment plan. It was irrelevant whether her male companion

complied with the treatment program. Section 41-3-609(l) (c) (i),

MCA, refers only to a "parent's" failure to comply with the

treatment program. It is doubtful that the District Court had any

authority to even require that a nonparent enter into a treatment

program based simply on his association with a parent, or that the

parent could subsequently be penalized for the nonparent's failure

to satisfactorily comply with that program.

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C.S.'s mother did satisfactorily comply with the court-ordered

treatment program. The only manner in which she arguably failed

was the quality of her housing. However, it was only considered

inadequate based on the absence of more than one bedroom, and even

without more than one bedroom, the Department of Family Services

conceded it was an adequate apartment had C.S.'s mother not had a

male companion.

The frightening implication of the majority's decision is that

something as fundamental as a parent's rights can be terminated

based on that person's economic status or inability to provide a

home that meets some middle class notion of suitability. Based on

the standards applied in this case, most parents in the third world

would be found unfit. The precedent set by this is case shocking.

For these reasons I dissent from the majority opinion.

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April 12, 1996

CERTIFICATE OF SERVICE

I hereby certify that the following certified order was sent by United States mail, prepaid, to the

following named:

THOMAS S. WINSOR

Wiisor Law Firm

P.O. Box 767

Helena, MT 59624

Mike McGrath, County Attorney

CAROLYN A. CLEMENS, Deputy

Lewis & Clark County

County Courthouse

Helena, MT 59601

J. MAYO ASHLEY

Attorney at Law

222 East Broadway

Helena, MT 59601

RAND1 M. HOOD

Lewis & Clark County

Courthouse

22.5 East Broadway

Helena, MT 59601

HON. JOSEPH MAZUREK, ATTORNEY GENBRAL

Michael S. Wellenstein, Assistant

Justice Building

Helena, MT 59620

ED SMITH

CLERK OF THE SUPREME COURT

STATE OF MONTANA