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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Justice 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. 

Af f inned. 

The sole issue on appeal is whether 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 as having 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. 

In February 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 about April 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 

investigatory authority, protective services, and temporary custody 

of T.M. for six months. The stipulation was entered as an order of 

the court on March 14, 1993, and it authorized the DFS to develop 

a treatment plan. The plan required appellant to obtain treatment 

for his chemical dependency; to complete an anger management or 

domestic abuse program; to successfully complete a parenting 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 was 
discharged 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 

alcohol treatment, 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 to place the youth 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 in atermination proceeding to determine whether 

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) the parent 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 ~ospital or Boyd Andrew chemical 

Dependency Care Center. Appellant did not complete his parenting 
and anger management classes after being 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. He was arrested and incarcerated five times 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) In determining whether the conduct or condition 

of the parents is unlikely to change within a reasonable 

time, the court must enter a finding that continuation of 

the parent-child legal relationship will likely result 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 give primary 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 to pay 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 closely with appellant. 

She expressed serious concerns about appellant's ability to parent 
and his refusal to address his chemical dependency. 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-time parent. 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 

consideration to the physical, mental, and emotional conditions and 

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. Is best interest was served by 

terminating appellant's parental rights. 

We conclude the District Courtls findings are not clearly 

erroneous. The District Court properly applied the criteria set 
forth 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 treatment plan; 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 Justice 
October 4, 1994 

CERTf FICATE OF SERVICE 

I hereby certify that the following certified order was sent by United States mail, prepaid, to the 

following named: 

I J. Mayo Ashley 

Attorney at Law 

222 Broadway 

Helena, MT 59601 

Carolyn A. Clemens, Deputy Co. Amy. 

Lewis & Clark County Courthouse 

228 Broadway 

Helena, MT 59601 

Hon. Joseph P. Mazurek, Attorney General 

Patricia J. Jordan, Assistant 

Justice Building 

Helena, MT 59620 

ED SMITH 

CLERK OF THE SUPREME COURT 

STAm OF MONTANA