No. 93-622 IN THE SUPREME COURT OF THE STATE OF MONTANA 1994

IN RE THE CUSTODY OF T.M., A Youth in Need of Care.

APPEAL FROM: District Court of the First Judicial District, In and for the County of 

### Lewis and Clark, The Honorable Thomas C. Honzel, Judge presiding.

COUNSEL OF RECORD: For Appellant: J. Mayo Ashley, Attorney at Law, Helena, Montana 

### For Respondent: Hon. Joseph P. Mazurek, Attorney General, 

### Patricia J. Jordan,Assistant Attorney General, Helena,Montana Mike McGrath, 

### Lewis and Clark County Attorney, Carolyn Clemens, Deputy County Attorney, Helena, Montana

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,a -.' ClerjfJustice William E. Hunt, Sr., delivered the opinion of the Court. Appellant Robert Dare11 Martz appeals 

### from an order of the First Judicial ~istrict Court, Lewis and Clark County, terminating appellantls parental rights over T.M. Affinned. The sole issue on appeal iswhether the ~istrict Court abused its discretion 

### in terminating the parental rights of appellant. T.M. was born May 5, 1989. Appellant is T.M.Is natural father. T.M. s mother, Cindy Bruno Martz

## , died in an automobile accident when T.M. was 14 months old. T.M. has been diagnosed ashaving fetal alcohol syndrome. As a result, he requires a structured environment and constant parental supervision. Appellant was incarcerated 

### in Washington State when T.M. was born, and from October 1991 through November 1992, as well as on several other occasions while T.M. was in his care. InFebruary 1993, appellant

### was convicted of driving under the influence and served five days in jail. In April 1993, he was convicted 

### of domestic abuse and served three days 

### in jail. Appellant was convicted 

### of driving under the influence for the third time in April 1993. He was sentenced to one year 

### in the county jail,with all but 30 days suspended, on the condition that he receive treatment at Galen State Hospital. Appellant attended the program but did not graduate because of rule infractions. On 

### or aboutApril 7,1993,appellant was arrested for abusing his live-in girlfriend. The Department of Family Services (DFS)was informed that appellant had been driving intoxicated with 

### T.M. 

### in the car. Thereafter, the DFS removed T.M. from appellant and placed him in foster care. The DFS requested family-based services to assist appellant. Appellant was assessed as needing chemical dependency treatment, parenting assistance, and family therapy. On April 16, 1993, the DFS filed a petition for temporary investigative authority, protective services, temporary custody, and for adjudication of T.M. as a youth in need of care. At the time the petition was filed, T.M. was in foster care because appellant was incarcerated for domestic abuse. By stipulation dated May 6, 1993, appellant agreed that T.M. was a youth in need of care and that the DFS would have temporary investigatoryauthority,protective services,and temporary custody of T.M. for sixmonths. The stipulationwas entered as an order of the court on March 14, 1993, and it authorized the DFS to develop

a treatmentplan. The plan required appellant to obtain treatment for his chemical dependency; to complete an anger management 

### or domestic abuseprogram; to successfully complete aparenting class; to attain and maintain safe housing; and to remain a law abiding citizen. On June 13, 1993, appellant was arrested for obstructing a police officer. Appellant was intoxicated at the time. He was referred to the Boyd Andrew Chemical Dependency Care Center which placed him in its intensive outpatient program. Appellant wasdischarged from the program for failing to complete an assignment and for failing to keep an appointment with his counselor. The DFS agreed to pay the costs for appellant's July 1993 alcoholtreatment,parenting classes,and anger management classes. Appellant was dropped from each of these programs because he was arrested three times in 

### July 1993 for alcohol related incidents. As a result of the above facts, the State filed a petition to terminate parental rights on August 25, 1993. A hearing was held

on September 23 and 27, 1993. On October 25, 1993, the District Court entered 

### its order which provides: 1. [T.M.] is a youth in need of care. All parental rights of Robert Martz, the father of the youth, are hereby terminated and he shall have no further legal claims to [T.M.] or to his property. 2. [T.M.] is hereby placed in the permanent legal custody of the Montana Department of Family services. 3. The Montana Department of Family Services is authorized toplace theyouth for adoption and to consent to his adoption. The court concluded that appellant failed to comply with his treatment plan, and that the conditions that made appellant unfit

as a parent were not likely to change with the passage of time. Did the ~istrict Court abuse its discretion in terminating

### the parental rights of appellant? Appellant argues that the court failed to consider a11 of the available information regarding appellant's efforts to become a good parent, and abused its discretion by terminating his parental rights pursuant to 5 41-3-609,MCA.The appropriate standard of review to be applied to purely factual findings in a proceeding to terminate parental rights is whether the findings are clearly erroneous. Matter of J

# . J.G. (Mont. l994), 51 St. Rep. 793, 796; Matter of 

### D.H. and 

### F.H. (Mont. 1994), 51 St. Rep. 386; Interstate Production Credit Assln

v. DeSaye (1991), 250 Mont. 320, 820 P.2d 1285. We review conclusions of law inaterminationproceeding todeterminewhether they are correct. Matter of J.J.G. 51 St, Rep. at 796;Matter of D.N. and F.H., 51 St. Rep. at 387; In re Marriage of Burris (l993), 258 Mont. 265, 269, 852 P.2d 616, 619. The criteria for termination of parental rights are set forth in 3 41-3-609,MCA, which provides in part: (1) The court may order a termination of the parent-child legal relationship upon a finding that any of the following circumstances exist:

..*a (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; or (d) theparent has failed to successfully complete a treatment plan approved by the court within the time periods allowed 

### for the child to be in foster care under 41-3-410 unless it orders other permanent legal custody under 41-3-410. 

### T.M. was adjudicated 

### a youth in need of care on 

### May 6,1993. On May 10, 1993, appellant signed his court approved treatment plan. However, appellant did not complete his chemical dependency programs at either Galen State ~ospitalor Boyd Andrew chemical Dependency Care Center. Appellant did not complete his parentingand anger management classes afterbeing arrested on three separate alcohol related incidents. At the time of the District Court hearing, appellant did not have a stable home. Appellant did not remain law-abiding. Hewas arrested and incarcerated fivetimes in June and July, 1993. The record clearly demonstrates that appellant did not comply with or succeed at his treatment plan. The District Court concluded that the conduct or conditions that rendered appellant unfit as a parent were unlikely to change within a reasonable time pursuant to 5 41-3-609 (2) and (3)

## , MCA, which provides in part: (2) Indetermining whether theconduct or condition of the parents is unlikely to change within a reasonable time, the courtmust enter a findingthat continuation of theparent-child legal relationship will likelyresult in continued abuse or neglect or that the conduct or the condition of the parents renders the parents unfit, unable, 

### or unwilling to give the child adequate parental care. In making such determinations, the court shall consider but is not limited to the following:



# .... (g) 

### any reasonable efforts 

### by protective service agencies that have been unable to rehabilitate the parent. (3) In considering any of the factors in subsection (2) in terminating the parent-child relationship,the court shall giveprimary consideration to the physical, mental, and emotional conditions and needs of the child. The record supports the District Court

## 's conclusion. effort to rehabilitate appellant, the DFS agreed topay the cost of appellant's July 1993 treatment programs. Appellant did not complete these programs, due to his incarcerations. Pam Ponick,a licensed family services counselor,worked closelywith appellant. She expressed serious concerns about appellant's ability to parentand his refusal to addresshis chemicaldependency. She determined that before he could parent T.M., appellant would need 

### at least one year of sobriety,parent training, and therapy. Dr. Susan Lewin, a geneticist at Shodair Hospital, diagnosed T.M. as having suffered a prenatal event that was probably fetal alcohol effect. She found that T.M. needed a stable, highly structured environment with a consistent, full-timeparent. Having

a parent drop out of his life for periods of time would be very damaging to 

### T.M. Prior to being placed in foster care, 

### T.M. had

seven care takers, appellant not included. T.M. was enrolled in a preschool program for children with disabilities. His teacher, Peggy Hollow-Phelps, testified that when T.M. first arrived he had difficulties with fine motor coordination, communication,problem solving, and social interaction. By contrast, Ms. Hollow-Phelps found that T.M. made a 21-month gain in development after being placed in foster care. Finally, the District Court was bound to give primary considerationto thephysical, mental, and emotional conditionsand needs of the child. Section 41-3-609(3), MCA. The best interest of the child is paramount and takes precedence over parental rights. Matter of J.J.C.H. (1992), 252 Mont. 158, 165, 827 P.2d 812, 816; In re J.W. (1988), 232 Mont. 46, 50, 757 P.2d 769, 771. It 

### is clear 

### from the record that T.M. Isbest interestwas servedby terminating appellant's parental rights. We conclude the District Courtls findings are not clearly

erroneous. The District Court properly applied the criteria setforth in 5 41-3-609, MCA, to the facts 

### in the present case. The court concluded, and we agree, that T.M. was a youth 

### in need of care; that appellant failed to comply with his treatmentplan; and that 

### the conditions that made appellant unfit as a parent were unlikely to change within a reasonable time. We hold that the District Court did not abuse its discretion in terminating appellant's parental rights. We affirm.

We concur:

Chief JusticeOctober4,1994 CERTfFICATEOFSERVICE Iherebycertifythatthefollowingcertifiedorder

### was

### sentby

### United Statesmail,prepaid,tothe followingnamed: 

# I J.MayoAshley 

### AttorneyatLaw 222Broadway Helena,MT59601 

### CarolynA.Clemens,

### DeputyCo.Amy. Lewis&

### ClarkCountyCourthouse 228Broadway Helena,MT

### 59601 Hon.JosephP.Mazurek,Attorney

### General Patricia

### J.Jordan,Assistant JusticeBuilding Helena,MT59620

EDSMITH CLERK

### OF

### THESUPREME COURT STAm

### OFMONTANA