No. 02-308 Tf{E S";PRE".;IE COURT OF: I~tiE SmTEOF hlOx~rAA%Jr\ 2003 M'f 10

!Y 1LIE XIATTER OF THE C['STODY AED PAREIVTAL. RIGHTS OF M.A.D. and C.D., Youths In Need Of Care

APPEAL FROM: District Court of the First Judicial District, In and For the County of Lewis and Clark, Honorable Dorothy McCarter, Judge Presiding COGNSEL OF RECORD: For Appellant: Peter Bov~ngdon. Assistant Public Defender, Helena, Montana For Respondents: Honorable R4ske hlcGrath, r\ttorney General. Jlm Il'heehs, Asb~siant Attorney General. Heicna, Vontana Leo Gallagher, County .kttorneq; Carolyn A Clemens, Deputy County Attorney, Helena. Montana Randl M Hood, ChiefPublic Defender, Helena, Montana (For Youths)

Filed: Subnnttcd on Br~efs Ociobcr 17,2002 Decided. January 23,2003Jastice \V. Williain idcaphartdelivered the 

### iipinion oftiicC:our~. 4; 1 .Appeiiani. LP.i?., natural moihii- of 2;i.A.l). and 

### C.D.. appca!s ilic District Court's Orders of J:rntiary 20, 

### 20112,and Fehrnary 

### 15: 2002, terminating her parenra?rights. We afirrn. 

### 72 The sole issue raised on appeal is whether tlie District Court abused its discretion in terminating D.D.'s parental rights. Background *3 In March 2000. D.D.was cited for endangeri~ig the welfare ofher children. Police, in search ofajuvenile offender with a serious criminal record, entered D.D.'s home kvhcre they foundonechild chew 111g or:a clgarcttcand the other ch~ld eatlngn~~tshells offthe floor. Thc ch~ldren were three and he )ears old at the tlmc. D.D uasnot at home, anti the adults 

### in the residence tvere sleeping. 

### 1j.D.had previo~~sly heel1 cited for child eizdangerment 

### in Ohio for leaving M.A.D. and C.D. alone when they were one and three pears old. 

### $4 The police referred the incident to the Montana Dcpartnlcnt of Health and Human Services (the Department), which begam an investigation. Social lvorkers from the Ilepartmc~it learned that the olclest child, 'L1.A.D.; had bccn sexually n~olested by a male whom 

### D.D. had let stay in the home. .4nother man staying with 

### D.D. had kicked M.A.D.

across the living room floor. 

### *5 In April 2000, the tlepal-tment entered into a trcatme~it plan with 

### D.D. ?'he plan reyu~rcd 

### Lj 11..rfshchad to leabe the ehildlcn, to place them with he1 stepmother and fatherThe plan also required 

### D.11. to screen visitors to hcr home, kcgin corrnseiing, cornplcte a chcmicid iiepcncicncy evaluation, attend parenting classes. find ernpioyrni:ni, and 

### perform sevcral other 

### rasks. 76 Shortly after entering into the first treatment pian, D.D, requested that thc children be placed in foster case because she believed both she and her cl~ildren were in danger. Illtimately, after a series ofunsuecessfiii treatment plans,the Department filed apetition ibr tire termination of D.D.'s parental rights. Shortly thereafter, i1.D. moved to LL'yoming to "start 

### a new life,'' and in July 

### 2001. she relinquished 11erparental rights; however, she later retracted the relinquishment. "'7 II A hearing on the termi~ratioll of 

### D.D.'s parcntal rights was heid in Noi~cn~ber 2001. Dean Ckegg, 

### a clisiical psychologist who had interviewed 

### D.D., testi6ed that 

### D.D. had a below-average 

### I.Q. of 84, and that she probably had 

### a learning disorder which lecl her to choose associates unwisely atid limited her ability to end relationships kvhert necessary. Gregg further testified that 

### D.D. was not familiar m-ith children's normal tlcvelopsncntal stages and that her treatment would be lengthy, from two to four years, given that she was neither insightful nor motivated. 

### "8 ti 

### M.A.D.'sprimaryther:~pist at intermountaini::hiidr-en'sIIome: :Ilal-garelAnnStin~at~; also testified. At the time of the hearing, M.A.D. had been at Intermountain for approximately three months. Stimatzbelieved that

### M.A.D.Iradbeen sexiiallyabused andthathehad a history ofphysical abuse. Shetestified that b4..4.D. resisted nurture rind care, did not trustadults, 

### was aggressive with both aciults and children, and had acted our sexually with both his yourlgcr brother and another 

### boy in his foster "Ro:ne. Slle a!so 

### testified that ti,.A,B.'s I~istory showed that he was left unattended at rimes 

### and that 

### 13.D.'~ acquaintances hacibeen violent to\vard him. She testified that his bchaiior was typical ofchildren who had been sexually abused. Stimatzbelieved that, in order for

### D.D. tohake arole in his life, shewould have tobe willing to work with his therapists; however. in the three months that M.A.D.had been at intermountain, 

### D.D.hadonlycontacted Intermonntainonce. Stimatznotedthat 

### D.D. itadnot requested to seeher children when she %asin Helena forthe ternhationhearing and that she had visited with her children only once in thc five months prior to the hearing. ql9 I\ social worker for the Department, who had worked extensivelywith D.D.testified that 

### D.D. had faiied to complete any of lter treatnieut plans. %,%i!e over the course of 18 montl~s D.D. had obtained some evaluations, she had eo~npletcd neither the therapy nor a psychosexual evaluation as outlined in the plans. The social worker also testified that she believed that D.D. still did not understand how to protect the children. 710 

### D.D. testified on her own behalf at the lieari~ig.She explained that she was Inore stablc since n~o\-ing to Wyoming, that she had a steady job, that she livcd with a man who worked reg~ilarl:;; and that she could get proper daycare for both her cliildrcn, 

### '11 1 ,After reviewing the testimony, the District 

### C:ourt ordered the termination of 

### t).Il.'s parental rights 011 January 29,2002. An amended orderofterrtiination followed afe~- wccks 

### latcr. ln both, the District Court hundthat "[tjhc problen~s which existed in March 2000.which lcd to the dccision oiDPfiJHS to 

### ask for custodyoftheyouths 

### still csist at 

### this litnc,"

-9 

### and (hat '"ji;.(>.] is 

### not 

### likely ioco~l-tpletc hcr [irea-irncnij 

### plans 

### within a rt.asi;nab!c time. 

### D.D. filed this timely appeal. Standard of Review 

# ri 12 

### Werckiew airial court's decision to terminateparental rights 

### for abuse ofdiscretion. See In re CX, 2001 MT 187,l9. 

### 306 Pvlont. 238, rj0.32 P.3d 754,T ")citing 

### In rP.J.i\4.J., I999 MT 277; 

## 7 10: 200 Mont. 510,

## 7 16, 989 P.2d 840, 16). The test for an abuse of discretion is "whcthcr the trial court acted arbitrarily, without employinent of conscientious judgment, or exceeded the bounds of reason resulting in substantial injustice." It! re 

### C.'.I1.> 9. 'Phe standard ofreview of a trial caul-t's findings of fact in a parental termination case is whether the findings in question are clearly erroneous. See CLIiztter

### of/'.E. (19977),282 Mont. 52, 56,9334 P.2d 206,200; 12,lnttcr of,J.

### I,., I1.L. ijri~IA.C;. (1996),277 MOII~. 283,287, 922 P.2d450,461. The standard ofreview ofatrial court's conclusions of law in such eases is whether its conclusions are correct. See \/lutti?r 

### of'l'.E., 282 Mont. at 56-57, 934 P.2d at 200;jZluftcr 

### ofJ.L.,277 Mont. at 287, 922 P.2d at 461.



### '11 3 Seetton41-3-600,MCA, nhlcl~ applicsto thetet-rnniationofparental rtghts, pro\ldes in pertinent part as follows: 

### 'i'he co~trt may order a termination ofthe parent-child legal relationship upon a finding that 

### . . . the follotving circumstances exist: 

### . . . (i) the child is an adjudicated youth in need of care and both ofthe following exist: 

### . . 

### . (ii)theconduct or-condition oftire parcnts rcndcring the111 iinljt

### is unlikciy to change within a reasonable timc. i).D.arguesillatthe District Counabused iisdiscretion in fiilding that "[tjlic problems ,which existed in March 2000 

### . . .still exist at this time," and that -' sheis nor likely to complcte her [treatment] plans within a reasonable time." These findings imply that subsection (f)(,ii)of 

### $41 -3-6!!9, MCi\, thatthe "conduct orco~idition" rendering her r~niit wasunlikely to change in 

### a reasonable time, was satisficd. D.D. argues that the District Court erred because thc "conduct or condition" rendering her unfit in March 2000. her lack of stability, no longer exists as she now leads a "stable" and 

### “child-centered" life in LVyorning. 714 !-(owever,D.D.'s argument ignoresthe contrary tesiirilony oEa clinical psychologist,

a 

### therapist, and a social worker. Their 

### testimony illeluded the obscrcation that I3.D. had not completed any of her treatment plans and that she had essentially refused to obtain rt~ental health and alcohol counseling. Certainly, the fact that D.D.haci not completed a treatment plan within a year and a half indicates that 

### D.D. is unlikely to complete one within a reasonable time and, consequently, the condt~ct rendering her unfit is sintilarly unlikely to change ivithin a reasonable tirnc. We hold that the District Court based its findings on substantial credibleeikkmce. 

### 'Therefore;we affirm the District (-ourt's termiilationofD.D.'s parental rights.

Justice /Vieconcur: