No. 89-277

IN THE SUPREMECOURTOF THE STATEOF MONTANA
1989

IN THEMATTER OF H.R.B. And K.R.B., Youths inNeed of Care.

4 APPEAL FROM: DistrictCourt of the First JudicialDistrict, In and for the County of Lewis & Clark, TheHonorable Jeffrey Sherlock,Judgepresiding.
COUNSEL OF RECORD:
ForAppellant:

J. Mayo Ashley,Helena,Montana
For Respondent:
Hon. Marc Racicot,Attorney General,Helena,Montana DorothyMcCarter,Asst. Atty. General,Helena Mike McGrath, CountyAttorney; Leo Gallagher and Carolyn Clemens,Deputy Co. Attys., Helena,Montana

Submitted on Briefs: Sept. 27, 1989 Decided: October 17, 1989

d Filed:

"ClerkJustice John Conway Harrison delivered the opinion of the Court.

This is an appeal from a ruling of the First Judicial District, Lewis and Clark County, terminating the mother's legal custodial rights to H.R. and K.R.B. and transferring legal custody of the children to the State. The mother retained the right to supervised visitation with her children. We affirm. Appellant presents a single issue for review: Did the District Court err in terminating the mother's legal custodial rights to H.R. and K.R.R. and in transferring legal custody to the State? On October 13, 1987, Lewis and Clark County Family Services personnel removed H.R. and K.R.B. from their mother's care and placed them at Shodair Hospital for evaluation. Both children had exhibited symptoms of emotional disturbance at school. The District Court subsequently issued an order for temporary investigative authority and protective services. During the investigative portion of these proceedings, Family Services discovered at least 32 referrals of the mother for abuse or neglect to Human Service agencies in Washington and Oregon. These agencies had intervened in the family and in 1981 the State of Washington removed the children from their mother for an extended time. The mother has been evaluated by a number of mental health professionals since 1981 and all concur that the mother suffers from long-standing emotional problems that adversely affect her ability to parent. The children were evaluated at Shodair and both were found to be severely emotionallydisturbed as a result of theirmother's extensive abuse and neglect. Prominent in the children's history areincidents of sexual and physical abuse by the mother's male friends and also their uncle. As a result of Shodair's recommendations,H.R. was placed in a fosterhome and K.R.B.
was placed at the DeaconessHome where shewill remain for at least two years. Both children will require extensive therapy. The District Court adjudicated these childrenas youths in need of care on February 23, 1988. A treatment plan was formulated and approved by the District Court on April 13, 1988. The treatmentplan outlined a twophaseprogram,Phase I of which carried a 180-day timetable. On November 17, 1988, the Lewis and Clark County Attorney petitioned for permanent custody of the children to be awarded to the State

(Montana Department of Family Services). The December 28, 1988 permanent custody hearing transcript reveals that the Stateheld itself to the standard of proof required to terminate parental rights pursuant to S 41-3-609, MCA, even though it did not seek termination of all parental rights. The District Court utilized S 41-3-609 criteria in reaching its decision. In relation to children adjudged youths in need of care, S 41-3-609, MCA, sets forth the following criteria for termination of parental rights: 41-3-609(1)(c) 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 notbeen successful;and

(ii) the conduct or condition of the parents rendering them unfit is unlikely to change within a reasonabletime.
Because the parents' right to custody is a fundamental interest, the State must show by clear and convincingevidence that the statutory criteria have been met. Matter of J.L.S. (Mont. 1988), 761 P.2d 838, 840, 44 St.Rep. 1842, 1845. Ourdecisionshold that we will not reversea district court's decision regarding findings of fact unless the findings of fact are not supported by substantial credible evidence. Matter ofA.H. (Mont. 1989), 769 P.2d 1245, 1247, 45 St.Rep. 395, 397. The District Court found that the mother had not complied with the treatmentplan and that the treatmentplan had not been successful. Further, the District Court found that the mother's conduct was unlikely to change within a reasonable time. Appellant contends that the District Court erred because the Statedid notpresent evidence that she failed to comply with the treatment plan. As well, appellant argues that the evidence does not support the conclusion that her behavior would not change within a reasonable time. We disagree. At the hearing, the District Court heard evidence from the social worker supervising the treatment plan, one of H.R.B.'s fosterparents, the fourmental health professionals involved in the case,and themother. At best, the testimony reveals that the mother had partially complied with the treatment plan. The District Court's findings acknowledge that some progress had been made toward achieving the objectives of Phase I of the treatment plan. However, contrary to appellant's apparent contention, partial compliance is not the same as the statutory criteria of compliance set forth in S 41-3-609(1)(c)(i)

## , MCA. Also, appellant does not appear to challenge the District Court's finding that the treatment plan was not successfulwhich is

an alternative choice under $ 41-3-609(1)(c)(i), MCA. Instances of the mother's noncompliance with the treatmentplan appear in the record aswell as instances of compliance. The record containsno evidence that the mother complied with the treatment plan in its entirety. Thus, the record supports the District Court's finding that the mother had not complied with the treatmentplan and that the treatmentplan
was unsuccessful. Appellant next attacks the finding that the mother's conduct is unlikely to change within a reasonable time, the second prong of the termination criteria in § 41-3-609(1)(c), MCA

# . In support of her argument, appellant cites her treating therapist's testimony that she could "turnher(se1f) around" in eight months to a year, a reasonable time she contends. However, appellant mischaracterizes the therapist's testimony. Although the therapist did testify that appellantmight be able to change her conduct in eight to twelve months, the therapist's prognosis was extremely guarded. He testified that the chances of the mother being able to take the children back sometime in the future were "notwonderful." Also appellant's assertion that eight to twelve months is a reasonable time ignores the mandate of S 41-3-609(3)

## , MCA

# . That mandate instructs the court to give primary consideration to the needs of the children when evaluating whether a parent's conduct is likely to change within a reasonable time. Thus the inquiry really focuses on the mental and physical health of the children and the urgency of their needs. Similar to the child in Matter of D.S.N.

(1986), 222 Mont. 312, 722 P.2d 614, experts in this case testified that H.R. and K.R.B. need stability and predictability in their lives now if they are ever to become emotionallyhealthy. As with D.S.N., experts testified that further delay in providing H.R. and K.R.B. with that stability and predictability would be highly detrimental tothem. The testimony regarding the immediacy of the children's needs and the extremely guarded prognosis regarding the likelihood that the mother's conduct will change provided substantial credible evidence for the DistrictCourt's decision. In summary, the DistrictCourt found that the Statemet itsburden ofproof under § 41-3-609(1)(c),MCA. Substantial credible evidence in the record supports that decision. Thus,the DistrictCourt's decision to transfer legal custody to the Statewas not an abuse of discretion. We affirm theDistrictCourt.

We concur: ./