No. 89-277 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1989 

IN THE MATTER OF 

H.R.B. And K.R.B., 

Youths in Need of Care. 

4 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis & Clark, 

The Honorable Jeffrey Sherlock, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

J. Mayo Ashley, Helena, Montana 

For Respondent: 

Hon. Marc Racicot, Attorney General, Helena, Montana 

Dorothy McCarter, Asst. Atty. General, Helena 

Mike McGrath, County Attorney; Leo Gallagher and 

Carolyn Clemens, Deputy Co. Attys., Helena, Montana 

Submitted on Briefs: Sept. 27, 1989 

Decided: October 17, 1989 d 

Filed: 

"Clerk 
Justice 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 

emotionally disturbed as a result of their mother's extensive 

abuse and neglect. Prominent in the children's history are 
incidents 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 foster home and K.R.B. 

was placed at the Deaconess Home where she will remain for at 

least two years. Both children will require extensive 

therapy. 

The District Court adjudicated these children as 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 treatment plan outlined a two phase program, 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 State held 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 

not been successful; and 

(ii) the conduct or condition of the 

parents rendering them unfit is unlikely 

to change within a reasonable time. 

Because the parents' right to custody is a fundamental 

interest, the State must show by clear and convincing 
evidence that the statutory criteria have been met. Matter 

of J.L.S. (Mont. 1988), 761 P.2d 838, 840, 44 St.Rep. 1842, 

1845. Our decisions hold that we will not reverse a district 

court's decision regarding findings of fact unless the 

findings of fact are not supported by substantial credible 

evidence. Matter of A.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 treatment plan and that the treatment plan 

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 State did not present 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 foster parents, the four mental health professionals 

involved in the case, and the mother. 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 successful which is 

an alternative choice under $ 41-3-609(1) (c) (i), MCA. 

Instances of the mother's noncompliance with the treatment 
plan appear in the record as well as instances of compliance. 

The record contains no 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 treatment plan and that the treatment plan 

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 "turn her(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 appellant might 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 

"not wonderful." 

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 

emotionally healthy. 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 to 
them. 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 

District Court's decision. 

In summary, the District Court found that the State met 

its burden of proof under § 41-3-609(1)(c), MCA. Substantial 

credible evidence in the record supports that decision. 

Thus, the District Court's decision to transfer legal custody 

to the State was not an abuse of discretion. 

We affirm the District Court. 

We concur: ./