No. 01-798 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

 

2002 MT 180 

IN THE MATTER OF F.M. and D.M., 

Youths in Need of Care. 

APPEAL FROM: District Court of the Twenty-First Judicial District, 

In and for the County of Ravalli, 

Honorable Jeffrey H. Langton, Judge Presiding 

COUNSEL OF RECORD: 

For Appellants: 

Charles E. Umhey III, Attorney at Law, Hamilton, Montana (For Father) 

Dustin L. Gahagan, Waters & Gahagan, Hamilton, Montana (For Mother) 

For Respondents: 

Honorable Mike McGrath, Attorney General; Mark W. Mattioli, Assistant 

Attorney General, Helena, Montana 

Michael L. Hayes, Hays & Hayes, Hamilton, Montana 

Submitted on Briefs: May 30, 2002 

 Decided: August 22, 2002 

Filed: 

__________________________________________ 

Clerk 
2

Justice Jim Rice delivered the Opinion of the Court. 

¶1 Tina and Vernon, mother and father of F.M. and D.M. 

(collectively, the children), appeal from the Findings of Fact, 

Conclusions of Law, and Judgment entered by the Twenty-First 

Judicial District Court, Ravalli County, terminating their parental 

rights to F.M. and D.M., and awarding permanent care, custody and 

control with authority to assent to adoption or another permanent 

custody arrangement to the Montana Department of Public Health and 

Human Services (Department). We affirm. 

¶2 We rephrase the issues on appeal as follows: 

¶3 1. Did the District Court err in determining that F.M. and 

D.M. were youths in need of care in regard to Vernon?

¶4 2. Did the District Court err in determining that the 

criteria of § 41-3-609, MCA, were met by clear and convincing 

evidence when terminating the parental rights of Tina?

BACKGROUND

¶5 Tina and Vernon are the natural parents of F.M. and D.M., born 

on May 24, 1993, and February 12, 1998, respectively. The 

Department first became involved with the family in October 1997, 

after receiving referrals of physical and emotional abuse and 

neglect of F.M. by both parents and of sexual abuse of F.M. by a 

third party. 

¶6 The Department petitioned for temporary investigative 

authority (TIA) on October 12, 1999. Both Vernon and Tina were 

present at the October 27, 1999, hearing. During the hearing, the 

Department presented testimony from social worker Kim Davis that it 

had received thirteen different referrals in the previous two years 
3

in addition to evidence of physical and verbal abuse, neglect, 

sexual molestation of F.M., poor school attendance, head lice and a 

threat by Vernon to burn F.M.’s bedroom. 

¶7 The District Court also received evidence from the children’s 

case manager, Jennifer Boehmke, that F.M. was severely emotionally 

disturbed and suffered from post-traumatic stress disorder related 

to her sexual molestation. Tina testified at the hearing, 

admitting that F.M. had missed school because of head lice, that 

F.M. had been sexually abused while in her care, and that she and 

Vernon allowed F.M. to be alone in a car with the abuser after F.M. 

reported the abuse. Vernon was present but did not testify at the 

hearing. 

¶8 Based upon the foregoing evidence, the District Court 

determined that probable cause existed that the children were 

abused and neglected. It thus granted temporary investigative 

authority and ordered the children removed from Tina’s home and 

placed in foster care. 

¶9 On November 8, 1999, Rhonda Harris (Harris), a social worker 

for the Department, conducted an introductory meeting with Tina and 

Vernon. Harris informed Tina and Vernon what the Department would 

require in order for them to regain custody of their children, 

suggested parenting classes and counseling for both parents and 

anger management counseling for Vernon. According to Harris’ 

testimony, both understood what the Department expected of them. 

¶10 Vernon and Tina subsequently participated in five scheduled 

visitations with the children through December 15, 1999. Because 

Comment [COMMENT1]: Trans. 102 

Comment [COMMENT2]: Trans. 104 
4

Tina and Vernon broke up shortly thereafter, Vernon moved out of 

Tina’s home and requested individual visitation with the children, 

apart from Tina. The Department granted Vernon’s request and 

scheduled a separate visitation time for January 19, 2000. 

Although Vernon knew of the scheduled visitation, he did not show 

up or call to explain why he was not present, nor did he thereafter 

request further visitation with his children. Despite telling 

Harris that he would keep in contact with his current address and 

phone number, Vernon did not again contact the Department to inform 

anyone of his current residence or general whereabouts for the 

duration of the proceedings. 

¶11 The Department petitioned to extend its TIA on January 25, 

2000. Service of the summons on both Tina and Vernon was 

successful, as Vernon was located at Tina’s residence on February 

3, 2000. The District Court held a hearing on the Department’s 

petition on March 6, 2000, and extended the Department’s 

investigative authority an additional 90 days. 

¶12 On June 5, 2000, the Department petitioned for temporary legal 

custody and the District Court set a hearing date of July 5, 2000. 

 Tina was served with a notice of the petition and was present at 

the hearing. The Department was unable to serve notice to Vernon, 

however, as the Department had not been informed of his whereabouts 

since his last visitation in December 1999, and Vernon had not 

complied with the District Court’s order granting the extension of 

temporary investigative authority, which required that Vernon 

provide the Department with information regarding any changes of 

Comment [COMMENT3]: Trans. 102-103. 

Comment [COMMENT4]: Trans. 160 
5

address or phone numbers. According to the affidavit submitted by 

Harris in support of the petition for temporary legal custody, Tina 

told her and the Foster Care Review Committee on March 16, 2000, 

that Tina had no knowledge of Vernon’s whereabouts and believed 

that he had either moved to California or to Texas. The record 

reflects that the Ravalli County Sheriff was unable to locate 

Vernon and personally serve him with a notice of the hearing. 

¶13 At the July 5, hearing, Tina stipulated to temporary legal 

custody and the District Court entered its order on July 18,1

granting the Department’s petition, finding F.M. and D.M. to be 

youths in need of care with respect to Tina, and approving a 

treatment plan for her. Tina’s treatment plan required, in part, 

that she continue individual counseling with Dr. Carol Blum, 

participate in group sessions for domestic violence counseling and 

training, participate twice a month with the Child Development 

Center (CDC) to learn how to better care for D.M., who was severely 

developmentally delayed, and meet on a regular basis with F.M.’s 

therapist to understand F.M.’s therapeutic needs and the 

recommended parenting techniques needed to parent F.M. Another 

 1

In Findings of Fact #10 and #11 in the District Court’s May 1, 2001, termination order, 

the District Court erroneously refers to its July 5, 2000, hearing as the “July 18, 2000, hearing”--

July 18 being the filing date of the subsequent order. Vernon’s brief on appeal repeats this error. 

 Rather than refer to the erroneous dates as argued, we will correctly make reference to the “July 

5 hearing” and “July 18 order” respectively. 

Comment [COMMENT5]: Trans. p. 12 
6

restriction placed on Tina was that she was expected to refrain 

from contact with Vernon during her treatment plan because of his 

history of verbal and physical abuse toward her and the children. 

¶14 The District Court continued the hearing with respect to 

Vernon and ordered that he be served with the summons via 

publication in the Ravalli Republic for the purpose of notifying 

him of the hearing and presenting him with a treatment plan. The 

Ravalli Republic is a newspaper published in Hamilton, Montana, and 

designated by the District Court as the newspaper most likely to 

give notice to Vernon. 

¶15 Vernon’s summons was subsequently published in the Ravalli 

Republic for three successive weeks from July 21, 2000, through 

August 4, 2000. No response was received from Vernon by the August 

16, 2000, hearing date. Harris testified at the hearing that the 

Department had not had any contact with Vernon since the March 2000 

hearing and did not know of his whereabouts. The District Court 

appointed an attorney to represent Vernon’s interests as separate 

from Tina’s, should Vernon be located by or have contact with the 

Department. The District Court then entered an order granting the 

petition for temporary legal custody as to Vernon, stating: “Based 

upon the record herein and the testimony presented, the Court finds 

no reason to disturb its previous adjudication of the youths as 

Youths in Need of Care.” The District Court approved and ordered a 

treatment plan, requiring in part, that Vernon enroll and 

participate in anger management counseling, complete a 

psychological evaluation, participate in bi-monthly visitation with 

Comment [COMMENT6]: Aug. 

16, 2000, Trans. p. 5 
7

his children, remain in regular contact with the Department and 

participate in paternity testing. 

¶16 Because of Vernon’s absence during much of the proceedings and 

the fact that he did not contact the Department or provide his 

address or phone number, the Department never had the opportunity 

to present Vernon with a copy of the treatment plan or to 

personally work with him to complete the requirements of the plan. 

¶17 Despite Tina’s March 16, 2000, statement that she did not know 

of Vernon’s whereabouts and that he may be in either Texas or 

California, Harris’ testimony reflected that Vernon remained in the 

Hamilton and Missoula area through much or most of the proceedings. 

 Harris testified to the following: 

My records show that on February 23rd of 2000, he appeared 

here in court; on March 6th of 2000, he appeared here in 

court; and March 17th of 2000, I observed him driving in 

the same vehicle with Tina in Missoula; on March 28th of 

2000, I found [Vernon] in the closet at Tina’s house; on 

May 15th, 2000, the foster mom reported that . . . she had 

seen Vern and Tina together at the grocery store; on May 

29th of 2000, another member in our office had seen Tina 

and Vern at a local hardware store together; on October 

23rd of 2000, another social worker saw Vern at Tina’s 

home; on 12/20 of 2000, I again found Vern in a box in 

Tina’s closet; on January 9th of 2001, I observed Vern 

coming out of Tina’s residence and then going back in; 

and on April 2nd, 2001, Vern attended a family group 

conference in Family Services’ office. 

¶18 On cross-examination, Tina verified some of Harris’ accounts 

and admitted to lying to the Department about not spending time 

with Vernon. Tina further admitted lying to the Department in 

March and December 2000, regarding Vernon’s whereabouts and the 

presence of Vernon in her home. 

¶19 The Department filed its Petition for Permanent Legal Custody 

on January 18, 2001. The Sheriff’s return of service reflects that 

Comment [COMMENT7]: Trans. 

p. 106
8

Vernon was served with notice of the Department’s petition at 

Tina’s residence on February 2, 2001. 

¶20 The District Court held hearings on the Petition from April 17 

through 24, 2001, and entered its Order on May 3, 2001, terminating 

Tina’s and Vernon’s parental rights, concluding that, pursuant to § 

41-3-609(1)(f), MCA (1999),2

 Tina and Vernon failed to successfully 

complete their respective, court-approved treatment plans, and that 

the conduct of Tina and Vernon rendering them unfit is unlikely to 

change within a reasonable time. Tina and Vernon now appeal. 

 STANDARD OF REVIEW

¶21 “In reviewing a decision to terminate parental rights, this 

Court determines whether the district court’s findings of fact 

supporting termination are clearly erroneous and whether the 

district court’s conclusions of law are correct.” In re A.C., 2001 

MT 126, ¶ 20, 305 Mont. 404, ¶ 20, 27 P.3d 960, ¶ 20 (citation 

omitted). A finding of fact is clearly erroneous if it is not 

supported by substantial evidence; if the district court 

misapprehended the effect of the evidence; or, if after reviewing 

the record, this Court is left with a definite and firm conviction 

that the district court made a mistake. In re A.M., 2001 MT 60, ¶ 

33, 304 Mont. 379, ¶ 33, 22 P.3d 185, ¶ 33 (citation omitted). 

This Court will not disturb a district court’s findings on abuse 

and neglect “unless a mistake of law exists or the factual findings 

 2

 Unless otherwise indicated, all statutes referenced here 

are those found under Montana’s 1999 codes, which were those in 

force at the time this matter was adjudicated by the District 

Court. 

Comment [COMMENT8]: Trans. p. 107 
9

are not supported by substantial evidence.” In re B.H.M. (1990), 

245 Mont. 179, 184, 799 P.2d 1090, 1093-94 (citation omitted). 

¶22 It is well-established that a natural parent’s right to care 

and custody of a child is a fundamental liberty interest which must 

be protected by fundamentally fair procedures at all stages of the 

proceedings. In re A.F.-C., 2001 MT 283, ¶ 31, 307 Mont. 358, ¶ 

31, 37 P.3d 724, ¶ 31 (citation omitted). Additionally, when 

considering the criteria for termination of parental rights, courts 

must give primary consideration to the best interests of the child 

as demonstrated by the child’s physical, mental, and emotional 

needs. In re M.W., 2001 MT 78, ¶ 4, 305 Mont. 80, ¶ 4, 23 P.3d 

206, ¶ 4 (citation omitted). 

DISCUSSION

¶23 Did the District Court err in determining that F.M. and D.M. 

were youths in need of care in regard to Vernon?

¶24 Vernon argues that the District Court did not properly 

adjudicate the children as youths in need of care in regard to him 

and, therefore, that the District Court’s determination in its 

termination order that it had done so is clearly erroneous, 

requiring reversal of the termination order. 

¶25 At the July 5, 2000, temporary legal custody hearing, the 

District Court received Tina’s stipulation that the children were 

youths in need of care in regard to her, but because of Vernon’s 

absence, continued the hearing in regard to him until August 16, 

2000, subsequent to providing him notice of the hearing via 

publication in the Ravalli Republic. 
10

¶26 After the August 16 hearing, the District Court entered its 

order stating that “[b]ased on the record herein and the testimony 

presented, the Court finds no reason to disturb its previous 

adjudication of the youths as Youths in Need of Care.” Vernon does 

not object to the service via publication, but objects to the 

District Court’s August 16 adjudication for two reasons: first, 

because of the District Court’s alleged reliance on Tina’s 

stipulation at the July 5 hearing as evidence of abuse and neglect 

in regard to Vernon; and second, because the District Court 

allegedly relied upon and received improper and insufficient 

evidence at the August 16 hearing, and thus could not make a 

finding of abuse and neglect by a preponderance of the evidence as 

required by § 41-3-404, MCA. In this regard, Vernon asserts that, 

in adjudicating the children as youths in need of care in regard to 

him, the District Court relied on testimony at the August 16 

hearing regarding conditions from an agreed upon parenting plan in 

Tina and Vernon’s dissolution of marriage. Vernon argues that it 

would violate fundamental principles of fairness to use a condition 

from the parenting plan in a dissolution of marriage action to 

constitute proof of an element in an abuse and neglect proceeding. 

¶27 Vernon explains that a finding of abuse and neglect by a 

preponderance of the evidence is a jurisdictional prerequisite to 

terminate the parent-child relationship pursuant to § 41-3-

609(1)(f), MCA. Vernon thus contends that the District Court did 

not retain jurisdiction to terminate his parental rights, and that 
11

its May 1, 2002, order terminating his parental rights is therefore 

in error. 

¶28 The Department responds that the District Court received 

substantial evidence at the show cause hearings on the Department’s 

TIA petitions and at the permanent legal custody hearing to 

properly adjudicate the children as youths in need of care. The 

Department emphasizes that, prior to disappearing for an extended 

period, Vernon appeared at the initial show cause hearing and the 

hearing on the extension of the TIA. The Department argues that 

the District Court not only received sufficient evidence to 

adjudicate the children as youths in need of care, but that it did, 

in fact, state that the children were youths in need of care at 

both TIA hearings and in its order terminating Vernon’s parental 

rights. The Department argues, therefore, that the District 

Court’s determination that the children were youths in need of care 

at either the show cause or permanent legal custody hearings is 

sufficient to support termination of Vernon’s parental rights. 

¶29 As correctly noted by Vernon, a threshold requirement for 

termination of parental rights under § 41-3-609(1)(f), MCA, is the 

proper adjudication of the children as youths in need of care. 

Thus, a district court cannot obtain jurisdictional authority to 

award the Department permanent legal custody absent such proper 

adjudication pursuant to the hearing mandated by § 41-3-404, MCA. 

See In re M.W., ¶ 46 (citing In re J.B. (1996), 278 Mont. 160, 164, 

923 P.2d 1096, 1099); In re M.J.W., 1998 MT 142, ¶ 11, 289 Mont 

232, ¶ 11, 961 P.2d 105, ¶ 11. 
12

¶30 We therefore disagree with the Department’s assertion that the 

adjudication of the children as youths in need of care can be 

properly established based upon evidence received at the hearing on 

permanent legal custody. Rather, to retain jurisdiction to 

terminate parental rights pursuant to § 41-3-609(1)(f), MCA, the 

district court must, in the temporary legal custody stage, find by 

a preponderance of the evidence that the child is abused or 

neglected. Section 41-3-404, MCA; In re A.M., ¶ 44; In re M.J.W., 

¶ 12. 

¶31 In its subsequent termination order, the district court must 

conclude that it did not exceed its jurisdiction at any time during 

the course of the proceedings. “[T]he decisive first question is: 

does the record show that during the course of the parental rights 

termination proceedings the State offered clear and convincing 

evidence that the District Court correctly adjudicated [the 

children as youths] in need of care under the governing statutes?” 

In re A.M., ¶ 46. Thus, if the district court does not make a 

proper finding of abuse and neglect by a preponderance of the 

evidence pursuant to § 41-3-404, MCA, it will have exceeded its 

jurisdiction in waiting to make such determination until 

terminating parental rights pursuant to § 41-3-609(1)(f), MCA. 

¶32 We thus turn to Vernon’s initial argument that the District 

Court erred in relying on evidence adduced from the July 5 hearing 

wherein Tina stipulated that the children were youths in need of 

care. Citing to this Court’s decision in In re M.W., 2001 MT 78, 

305 Mont. 80, 23 P.3d 206, Vernon asserts that the District Court 
13

improperly inferred that its earlier adjudication that the children 

were youths in need of care in regard to Tina, was sufficient to 

find abuse and neglect regarding him, and given the fact that he 

received no notice of the hearing and did not have the opportunity 

to be heard, he was denied due process. 

¶33 In In re M.W., the district court adjudicated the children 

youths in need of care only in regard to the father because the 

State failed to notify the mother of the hearing. In re M.W., ¶ 7. 

 The State argued that the adjudication of the children as youths 

in need of care in regard to the father would be sufficient for the 

purpose of terminating the mother’s parental rights, but we 

disagreed and reversed, holding that adjudication of the children 

as youths in need of care in regard to the father did not 

adjudicate the children as youths in need of care in regards to the 

mother. In re M.W., ¶ 49. 

¶34 However, In re M.W. is not dispositive of the instant case. 

The Department has not argued that the District Court’s finding of 

abuse and neglect regarding Tina applied to Vernon. Rather, it 

argues that the District Court received sufficient evidence to 

adjudicate the children as youths in need of care at the TIA 

hearings and that the District Court did, in fact, adjudicate the 

children youths in need of care at both TIA hearings in regard to 

Vernon. Furthermore, the record does not reflect that the District 

Court made a determination of abuse and neglect in regard to Vernon 

on the basis of Tina’s stipulation nor based upon anything in 
14

relation to the July 5 hearing. Thus, Vernon’s allegation of a due 

process violation based thereon is without merit. 

¶35 Likewise, the record does not reflect, as Vernon asserts in 

his second argument, that the District Court at the August 16 

hearing made a determination of abuse and neglect based upon the 

parenting plan from Tina and Vernon’s dissolution or upon 

“insufficient” evidence adduced at this hearing. Rather, the 

District Court received testimony from Harris that the Department 

had not had contact with Vernon since the second TIA hearing. 

Harris testified that, in addition to having no contact with 

Vernon, he had not obtained the intensive parenting training nor 

the training for anger management as ordered by the District Court 

in its order of March 7, 2000, an order of which Vernon was aware. 

 Harris testified that Vernon had not completed the recommended 

family counseling nor the recommendations made by the CDC, as 

Vernon was not aware of the recommendations made by the CDC. 

Harris also testified to having a treatment plan prepared for 

Vernon that was geared toward preserving his parental rights as 

they existed before the Department became involved, and that, based 

upon her limited contact with Vernon, she believed that he had the 

ability to complete the treatment plan. Without any further 

evidence or testimony, the District Court then entered its order 

stating: “Based upon the record herein and the testimony presented, 

the Court finds no reason to disturb its previous adjudication of 

the youths as Youths in Need of Care.” 
15

¶36 By then, the District Court had stated on three previous 

occasions that the children were youths in need of care: first, at 

the initial TIA hearing on October 27, 1999; second, at the TIA 

extension hearing on March 6, 2000; and third, in approving Tina’s 

stipulation from the July 5, 2000, temporary legal custody hearing. 

 At the initial TIA hearing, the District Court determined by a 

probable cause standard that the children were youths in need of 

care within the meaning of § 41-3-102, MCA. Following the TIA 

extension hearing, the District Court stated that its order was 

“[b]ased upon the evidence presented and the testimony given there 

having been established by overwhelming evidence that it is not 

possible to safely return the children to their home, and the Court 

previously having found by probable cause to believe that the 

above-named youths are Youths in Need of Care within the meaning of 

Section 41-3-102, MCA . . . .” A review of these hearings is 

helpful to the issue raised here. 

¶37 At the initial TIA hearing, at which Tina and Vernon were 

present, the District Court received testimony that F.M. had been 

sexually molested by a person who also threatened to physically 

hurt or kill her if she told, and further, that Tina, even after 

knowing this and testifying to not trusting the alleged abuser, 

still allowed F.M. to be in a car alone with him. Testimony also 

demonstrated that F.M. repeatedly presented with head lice and was 

given very irregular, uneven hair cuts, down to the scalp in some 

places, and was at one time, shaved with a pair of scissors with 

patches of hair left in places. Further, the District Court 
16

received testimony that Vernon had slapped F.M. in the ears, called 

her derogatory, profane negative names, and had threatened to burn 

the house down, starting with F.M.’s room. Tina testified that she 

obtained a temporary order of protection against Vernon for her own 

safety. Additionally, testimony by the Department and Tina 

demonstrated that F.M. was missing a significant amount of school, 

including approximately nine of the first seventeen days, was often 

late and was performing very poorly. Further, F.M. was exhibiting 

symptoms of post-traumatic stress disorder and problems with bowel 

control. 

¶38 At the TIA extension hearing, again with Tina and Vernon 

present, the District Court received eleven Department exhibits and 

testimony from three Department witnesses as well as testimony from 

Tina and from Dr. Jeff Schroeder on her behalf. Subsequent to the 

hearing, the District Court entered its order finding that 

“overwhelming evidence” established that it was “not possible to 

safely return the children to their home” and that it was in the 

children’s best interest to continue to be removed from the home 

with continued placement in the care and authority of the 

Department. The District Court reiterated that it had previously 

found by probable cause that the children were youths in need of 

care within the meaning of § 41-3-102, MCA. 

¶39 Finally, at the July 5 temporary legal custody hearing, the 

District Court received Tina’s stipulation that the children were 

youths in need of care, and subsequently approved it. Of 

significance, however, is that the District Court did not receive 
17

evidence regarding Vernon at the July 5 hearing and, recognizing in 

its order that its adjudication in regard to Tina did not apply to 

Vernon, ordered Vernon served via publication. It was only after 

completed service by publication upon Vernon and the August 16 

hearing that the District Court stated that it found “no reason to 

disturb its previous adjudication of the youths as Youths in Need 

of Care.” 

¶40 Prior to this ruling, the procedural history of the case 

clearly demonstrates that the District Court had twice prior to 

Tina’s stipulation stated that the children were youths in need of 

care in regard to Vernon within the meaning of § 41-3-102, MCA; 

that it recognized that Tina’s stipulation did not suffice as an 

adjudication of abuse and neglect in regard to Vernon, and 

following Vernon’s absence from the July 5 hearing, had Vernon 

served with a notice of hearing by publication; that Vernon did not 

appear at the August 16 hearing, and, after taking additional 

evidence, the District Court referenced its earlier adjudications, 

which included a finding that there was “overwhelming evidence” 

that the children could not be returned home. 

¶41 Section 41-3-102(23), MCA, defines “youth in need of care” as 

a youth who has been adjudicated or determined, after hearing, to 

be or to have been abused or neglected. The term “child abuse or 

neglect” includes “actual harm or substantial risk of harm by the 

acts or omission of a person responsible for the child’s welfare.” 

 Section 41-3-102(7)(a), MCA. In re A.M., ¶ 41. Harm to a child’s 

health or welfare means, in part, “harm that occurs whenever the 
18

parent or other person responsible for the child’s welfare: (a) 

inflicts or allows to be inflicted upon the child physical or 

psychological abuse or neglect; [or] (b) commits or allows to be 

committed sexual abuse or exploitation of the child.” Section 41-

3-102(9), MCA. 

¶42 While the District Court did not specifically state, pursuant 

to § 41-3-404(1), MCA, that it determined by a preponderance of the 

evidence that the children were youths in need of care, the 

evidence clearly demonstrates that F.M. had suffered actual harm 

and that the children were in danger of a substantial risk of harm 

to their health and welfare as defined in § 41-3-102(9), MCA. See 

In re A.M., ¶ 41. Further, it is apparent from the District 

Court’s order granting temporary legal custody as to Vernon on 

August 16, that it believed its previous adjudication that the 

children were youths in need of care was sufficiently based on 

“overwhelming evidence” of abuse and neglect. 

¶43 We will not disturb a district court’s findings on abuse and 

neglect “unless a mistake of law exists or the factual findings are 

not supported by substantial evidence.” In re B.H.M. (1990), 245 

Mont. 179, 184, 799 P.2d 1090, 1093-94 (citation omitted). Based 

upon the evidence received by the District Court in the instant 

case and its language in its order extending the Department’s 

investigative authority, we cannot conclude that the District Court 

made a mistake of law or that its factual findings are not 

supported by substantial evidence. We hold, therefore, that the 
19

District Court, based on substantial evidence, properly adjudicated 

the children as youths in need of care in regards to Vernon. 

¶44 Did the District Court err in determining that the criteria of 

§ 41-3-609, MCA, were met by clear and convincing evidence when 

terminating the parental rights of Tina?

¶45 Tina alleges that the District Court erred in finding by clear 

and convincing evidence that she did not comply with the courtapproved treatment plan and that the treatment plan was not 

successful. Tina asserts that the record reflects that until the 

incident on December 20, 2000, when Vernon was discovered at Tina’s 

residence, the professionals involved in the case believed that 

Tina was successfully progressing towards reunification with her 

children and was successfully completing the treatment plan. 

¶46 The Department argues that, while the counselors and treating 

professionals were under the impression that Tina was successfully 

complying with the treatment plan, the discovery of Tina’s ongoing 

deception throughout the proceedings undermined any success that 

the professionals initially thought Tina was making. The 

Department notes that, from early in the proceedings, Tina had told 

her counselors and treating professionals that she needed to end 

her destructive and abusive relationship with Vernon because he 

posed a danger to her. Yet, Tina secretly continued the harmful 

relationship, thereby deceiving treatment providers and failing to 

fully comply with several treatment requirements, including failing 

to learn to put the children’s needs before her own. The 

Department thus argues that Tina’s treatment successes were 

illusory because her treatment providers assumed that she was 
20

coming to terms with her destructive relationship with Vernon when 

she instead continued to see him. 

¶47 The Department finally argues that Tina’s history and 

cognitive limitations, combined with the failed efforts of at least 

a dozen treatment professionals, supports the District Court’s 

determination that Tina’s destructive behavior was unlikely to 

change within a reasonable period of time. 

¶48 Prior to terminating an individual’s parental rights, a 

district court must adequately address each applicable statutory 

requirement to determine if it has been established, and the burden 

is on the party seeking termination to demonstrate by clear and 

convincing evidence that every requirement set forth in the statute 

has been satisfied. In re S.M., 2001 MT 11, ¶ 30, 304 Mont. 102, ¶ 

30, 19 P.3d 213, ¶ 30. In the context of termination of parental 

rights cases, we have defined clear and convincing evidence as 

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. In re S.M., ¶ 30 (citing In the Matter 

of B.F., R.F., and M.S., Jr., 2000 MT 231, ¶ 7, 301 Mont. 281, ¶ 7, 8 P.3d 790, ¶ 7). This 

Court’s standard of review for a district court’s findings is whether they are clearly 

erroneous. In the Matter of B.F., ¶ 7. 

¶49 Section 41-3-609, MCA, sets forth the relevant statutory 

language for the termination of parental rights in this case: 
21

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

relationship upon a finding that any of the following circumstances exist: 

. . . 

(f) 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 time. 

¶50 When considering the criteria for termination, primary consideration must be 

given to the best interests of the child as demonstrated by the child’s physical, mental, 

and emotional conditions and needs. In re S.M., ¶ 31 (citing In the Matter of J.N. and 

A.N., 1999 MT 64, ¶ 13, 293 Mont. 524, ¶ 13, 977 P.2d 317, ¶ 13). 

¶51 The District Court found that Tina failed to demonstrate an ability to put her 

children’s needs before her own during counseling with Dr. Carol Blum or to show that she 

understood relationships which placed her children at risk. The District Court also found that 

Tina failed to demonstrate the ability to meet the emotional needs of her children and to 

refrain from contact with Vernon, but rather, continued to have contact with Vernon 

throughout the case, going so far as to hide the contact and thus be convicted of obstructing a 

police officer. 

¶52 Based upon the foregoing, the District Court found that Tina 

engaged in a pattern of dishonesty with her social worker and other 

professionals in the case, including Dr. Blum, all of which 

severely undermined the progress she appeared to be making and thus 

restricted the ability of the Department to safely reunite the 
22

children with Tina in a timely fashion, despite the Department’s 

best efforts. 

¶53 Upon a review of the record, we conclude there is ample 

evidence to support the District Court’s determination that Tina 

had not successfully complied with the treatment plan nor had it 

been successful and that she was unlikely to successfully complete 

it within a reasonable time. For example, the record indicates 

that Tina recognized early in her counseling that Vernon’s verbal 

and physically abusive behavior created an unhealthy and 

unacceptable environment for the children, and that to be 

successful in her counseling required that she follow Dr. Baxter’s 

suggestion of sustaining a lengthy period of no contact with 

Vernon. Tina, however, remained in contact with Vernon throughout 

much of the proceedings. 

¶54 Dr. Blum, Tina’s individual counselor and therapist, testified 

that Tina’s pattern of dishonesty with her therapists and treatment 

professionals demonstrated her inability to place her children’s 

needs above her own and an inability to safely parent the children. 

Dr. Blum further testified, consistent with Dr. Baxter’s 

psychological evaluation, that Tina’s limited cognitive ability, 

difficulty with learning material through verbal means and 

retaining it, difficulty with absorbing verbal information, and 

long-standing personality difficulties, make it very hard for her 

to change the kind of relationships and kind of lifestyle she 

leads, and to maintain that change. Dr. Blum testified that she 

did not think Tina could successfully complete a treatment plan in 

Comment [COMMENT9]: Trans. p. 14 
23

six to twelve months or make much better progress than she had done 

in the previous ten months with intensive treatment. 

¶55 Cheryl Thurman, a family support specialist with Western 

Montana Comprehensive Developmental Center, testified that Tina did 

not successfully complete the treatment objectives aimed at 

improving her parenting of D.M. and helping him to develop his 

speech, communication, play and social skills. Tina admitted to 

not spending sufficient time working with D.M. 

¶56 Harris, Tina’s case manager, testified that Tina’s association 

with Vernon signified a failure of Tina to demonstrate an 

understanding of relationships which placed her children at risk, 

and that Tina’s deceitfulness undermined all parts of the treatment 

plan. Harris also testified, consistent with Thurman, that Tina 

did not follow through with her treatment objectives and did not 

show up for each of the scheduled visitations. 

¶57 Further complicating any possibility of Tina successfully 

completing a treatment plan within a reasonable time is that, 

according to Harris, most of Tina’s treating professionals were 

unwilling to further work with her because of her dishonesty. 

Harris testified that if the District Court were to grant Tina more 

time to work on a treatment plan, a new treatment team would have 

to be assembled, including a new counselor, new case manager and 

new therapist for the children, thereby greatly increasing the time 

it would take for Tina to successfully complete a treatment plan. 

¶58 Although testimony supports that Tina was partly successful 

with some goals of her treatment plan and that her treating 

Comment [COMMENT10]: Trans. 79. 

Comment [COMMENT11]: Trans. 126 

Comment [COMMENT12]: Trans. 159 
24

professionals believe that she was making progress through December 

2000, the evidence demonstrates that even with Tina’s limited 

compliance, she did not successfully complete her treatment plan 

and would not be able to do so within a reasonable time. This 

Court has repeatedly held that partial compliance with a treatment 

plan is insufficient to preclude termination of parental rights. 

Not only must a parent comply with the treatment plan, but the 

treatment plan must also be successful. In re S.M., ¶ 44 

(citations omitted). 

¶59 Based upon the foregoing testimony, we conclude that the 

District Court did not err when it determined that clear and 

convincing evidence supported the finding that Tina failed to 

complete her treatment plan, would not be able to complete the plan 

within a reasonable time, and that it was in the best interests of 

F.M. and D.M. that Tina’s parental rights be terminated. The 

District Court’s findings are, therefore, not clearly erroneous. 

¶60 The decision of the District Court is affirmed. 

/S/ JIM RICE 

We concur: 

/S/ KARLA M. GRAY 

/S/ JAMES C. NELSON 

/S/ JIM REGNIER 

/S/ PATRICIA COTTER