NO. 95-380

IN THE SUPREME COURT OF THE STATE OF MONTANA

1996

IN RE A.L.K., K.L.K., and M.S.C.,

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 Appellants:

Jeremy Gersovitz, Public Defender's Office,

Helena, Montana (for Brian Shane Casey)

James B. Obie, Attorney at Law,

Helena, Montana (for Tessa Krause)

For Respondent:

Hon. Joseph P. Mazurek, Attorney General,

Pamella Collins, Assistant Attorney General,

Helena, Montana

Mike McGrath, Lewis and Clark County Attorney,

Carolyn A. Clemens, Deputy County Attorney,

Helena, Montana

Filed:

Submitted on Briefs: January 25, 1996

Decided: February 22, 1996
Justice Terry N. Trieweiler delivered the opinion of the Court.

Pursuant to Section I, Paragraph 3(c), Montana Supreme Court

1995 Internal Operating Rules, the following decision shall not be

cited as precedent and shall be published by its filing as a public

document with the Clerk of the Supreme Court and by a report of its

result to State Reporter Publishing Company and West Publishing

Company.

On January 3, 1995, the Montana Department of Family Services

(DFS) filed a petition with the District Court for the First

Judicial District in Lewis and Clark County to terminate the

parental rights of Tessa Krause, Dennis Mackey, and Brian Shane

Casey. Following a three-day hearing, the District Court issued an

order which terminated the parental rights of the three parents and

transferred custody of the children and the right to consent to

adoption to DFS. Tessa Krause appeals the District Court's order

which terminated her parental rights to A.L.K., K.L.K., and M.S.C.

Brian Shane Casey (Shane) appeals the District Court's order which

terminated his parental rights to M.S.C. We affirm the order of

the District Court.

There are two issues on appeal:

1 . Did the District Court err when it terminated Shane's

parental rights to M.S.C.?

2 . Did the District Court err when it terminated Tessa's

parental rights to A.L.K., K.L.K., and M.S.C.?
FACTUAL BACKGROUND

Tessa Krause is the natural mother of three children: A.L.K.,

born July 16, 1989; K.L.K., born March 25, 1991; and M.S.C., born

May 2, 1992. Each of the children has a different father. Brian

Shane Casey is the natural father of M.S.C. A.L.K.'s father was

not a party to the original district court action, and K.L.K.'s

father has not appealed the order of the District Court terminating

his parental rights.

Tessa and Shane began living together in 1990 when Tessa was

five months pregnant with K.L.K. They remained together off and on

until February 26, 1995, at which time both were arrested for

domestic abuse. Shane was thereafter incarcerated. He had received

a ten-year suspended sentence for felony theft in Missoula County

and his sentence was reinstated for the domestic abuse charges and

for drug usage.

The Montana Department of Family Services became involved with

the family in 1992, when A.L.K. was admitted to Shodair Children's

Hospital for violent and self-abusive behavior. At the hospital,

A.L.K. was diagnosed with post-traumatic stress disorder, attention

deficit hyperactive disorder, and reactive attachment disorder of

early childhood. His case worker determined that his emotional

disturbance might be the product of a violent and chaotic home

life. She recommended that Tessa have an in-home provider of

parent training, further parenting classes, and individual therapy.

In addition, she referred A.L.K. to Mental Health Services for

continued therapy. Tessa, however, did not follow through with

3
A.L.K.'s therapy and did not attend any of the appointments made

for her to assist her in dealing with A.L.K.'s problems. The

Mental Health Center terminated A.L.K.' s therapy on September 28,

1994, because of nonattendance.

K.L.K. was evaluated by a clinical therapist in September and

October 1994. At that time, K.L.K. was diagnosed with disruptive

behavior disorder and possibly reactive attachment disorder. She

manifested her emotional problems through biting, kicking, selfdestructive behavior, and inappropriate sexual behavior. In

addition, she was diagnosed with severe stress-related gastrointestinal problems which were unusual for a child of her age. The

therapist, who tried unsuccessfully to involve Tessa in the

evaluation, determined that K.L.K.'s home environment needed to be

consistent, structured, and safe. It was her opinion that if

K.L.K.'s home life did not improve, she would be in danger.

K.L.K. and M.S.C. attended the Children's Center from January

1995 through March 1995. The children, however, had difficulty

adjusting to the program. Their behavior included kicking,

hitting, spitting, biting, and a general failure to sit still. In

addition, K.L.K. was disruptive during nap time and displayed

sexually inappropriate behavior. Because of K.L.K.'s aggressive

behavior, the center hired an aide to work exclusively with her.

Even with the help of the aide, however, the center determined that

K.L.K.'s and M.S.C.'s needs were beyond the services it could

offer. In March 1995, the center terminated the children from its

program. A.L.K., who attended both the Children's Center and the

4
pre-kindergarten at Rossiter Elementary School, continued to have

severe behavioral problems.

Between July 1993 and March 1995, the three children were in

foster care for a combined total of almost thirteen months. On

December 30, 1992, A.L.K. and K.L.K. were adjudged to be youths in

need of care. On May 10, 1993, M.S.C. was adjudged to be a youth

in need of care. On that date, the District Court granted DFS

temporary investigative authority, protective services, and

temporary custody of the children. Tessa entered into a courtapproved treatment plan on December 30, 1992; the District Court

approved a treatment plan for Shane on August 24, 1993.

In May 1994, DFS determined that both Tessa and Shane had

successfully completed Phase I of their court-approved treatment

plans and instituted Phase II. Phase II of Tessa's treatment plan

required that she: (1) continue therapy and make arrangements for

A.L.K. and K.L.K. to receive therapy through Mental Health

Services; (2) receive chemical dependency counseling and maintain

a drug-free lifestyle; (3) participate in parent training classes;

(4) demonstrate that she could continue to live a lifestyle

conducive to her health and welfare and her children's health and

welfare; (5) maintain suitable housing; and (6) demonstrate that

she was economically and personally capable of adequately

satisfying her own and her three children's basic needs. Phase II

of Shane's treatment plan listed six similar objectives, but was

limited to his parental responsibilities to M.S.C.

5
As of December 1994, DFS determined that both Shane and Tessa

had failed to accomplish Phase II of their respective treatment

plans. Although DFS recognized that Tessa had partially completed

all six of her objectives, the agency determined that Tessa had

failed to complete various tasks set forth in her treatment plan.

In particular, Tessa did not follow through with counseling for

A.L.K. and K.L.K., did not participate in chemical dependency

treatment, did not maintain a drug-free lifestyle, did not complete

the parent training program, and was involved in domestic violence

with Shane such that the three children were removed from the home.

DFS determined that although Shane had partially completed three of

his objectives, he had completely failed to achieve the other

three. In particular, Shane did not attend therapy, did not attend

parent training classes, failed two urinalysis drug tests, was

found to be in possession of drug paraphernalia, and was involved

in domestic violence with Tessa.

Both Tessa's and Shane's treatment plans listed a contingency

that if either failed to accomplish the terms of the plans, DFS

could petition for termination of parental rights and request the

right to consent to the adoption of the youths. Based on its

conclusion that Tessa and Shane had failed to follow through with

their respective treatment plans, DFS petitioned the First Judicial

District Court for termination of parental rights on January 3,

1995.

On May 2, 1995, following a termination hearing, the District

Court entered an order in which it terminated the parental rights

6
of Tessa and Shane. The court found that Tessa and Shane had

failed to successfully complete their court-ordered treatment

plans, and found that it was highly unlikely that the conduct or

condition of either Tessa or Shane--which rendered each unfit,

unable, or unwilling to give the children adequate parental care--

would change within the foreseeable future. The court awarded DFS

permanent legal custody of K.L.K. and M.S.C., and legal custody of

A.L.K. until the parental rights of his father had been terminated.

ISSUE 1

Did the District Court err when it terminated Shane's parental

rights to M.S.C.?

The standard of review for a district court's termination of

parental rights is whether the court's findings of fact are clearly

erroneous and whether its conclusions of law are correct. In Ye J.S.

andP.S (1994), 269 Mont. 170, 173, 887 P.2d 719, 720.

The criteria the district court must consider when it

terminates an individual's parental rights are set forth in

5 41-3-609, MCA. That statute provides, in part:

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

legal relationship upon a finding that any of the

following circumstances exist:

. .

(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

Cd) the parent has failed to successfully complete

a treatment plan approved by the court within the time

7
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.

Section 41-3-410(l), MCA, provides that the court may terminate

parental rights where the child has been in an out-of-home

placement for a cumulative total of at least one year and the

parent has substantially neglected or willfully refused to remedy

the circumstances that cause the child to be in such placement.

In this case, the District Court adjudged M.S.C. to be a youth

in need of care on May 10, 1993. On May 2, 1995, the court found

that M.S.C. had been in out-of-home placement for a cumulative

period of more than one year, that Shane had failed to comply with

his court-approved treatment plan, and that it was highly unlikely

that the conduct or condition that rendered Shane an unfit parent

would change within a reasonable time. Therefore, pursuant to

§ 41-3-609, MCA, the District Court ordered that Shane's parental

rights to M.S.C. be terminated.

On appeal, Shane contends that the District Court's findings

of fact are clearly erroneous because they are not supported by

substantial evidence regarding the likelihood that the conduct or

condition that rendered Shane unfit to parent would change within

a reasonable time. Shane further contends that the District Court

did not adequately sort out the correlation between the behavioral

problems of the individual children and the responsibility of each

child's parents. In particular, Shane maintains that the District

Court did not examine the evidence with respect to Shane alone,

that there is no evidence that the two older children's severe

8
emotional problems were caused by him, and that M.S.C. is a

"normal" child.

The record is clear, however, that the District court

adequately sorted out Shane's parental responsibilities and

liabilities with respect to M.S.C. before it entered its order. In

its findings of fact, the court noted that Shane had failed to

complete his mental health counseling, had failed to comply with

his chemical dependency treatment program, and had failed to follow

through with his parenting classes. In addition, the court found

that Shane had an ongoing drug problem and had admitted to being

involved in the sale of marijuana and methamphetamines. The court

noted that Shane's drug abuse and his domestic abuse of Tessa had

contributed to the revocation of his earlier suspended sentence

such that, as of the time of the district court hearing, he would

not have been eligible for parole for six or seven months.

In making its finding that Shane's conduct was unlikely to

change within a reasonable time, the District Court clearly

addressed the factors set forth in g 41-3-609(2), MCA. Those

factors include:

(b) a history of violent behavior by the parent;

. . . .

(d) excessive use of intoxicating liquor or of a

narcotic or dangerous drug that affects the parent's ability

to care and provide for the child;

(e) present judicially ordered long-term confinement of

the parent;

igi 'any reasonable efforts by protective service

agencies that have been unable to rehabilitate the parent.

9
In addition, the court complied with its duty to give priority

to the best interests of the child over the parent's rights.

Section 41-3-609(3), MCA; Iflre T.M. (19941, 267 Mont. 75, 79, 881

P.2d 1333, 1336. Although Shane asserts that M.S.C. is "normal,"

we note that the child had spent almost half of his three years in

a foster home as of the time of the district court hearing. In

addition, testimony at the hearing revealed that M.S.C. had already

developed behavioral problems, such as biting and hitting, and that

M.S.C. was at risk of becoming seriously emotionally disturbed due

to his exposure to domestic violence and a chaotic environment.

Based on these facts and on the court's determination that M.S.C.

needed permanency and predictability in his life, the District

Court concluded that continuation of Shane's and M.S.C.'s legal

relationship was not in the best interests of M.S.C.

We hold that the District Court's order which terminated

Shane's parental rights to M.S.C. was supported by substantial

credible evidence and was not clearly erroneous. Based on the

evidence that Shane had failed to complete both counseling and

chemical dependency treatment, had failed to follow through with

his parenting classes, had continued to use and sell drugs, and had

continued to abuse Tessa and to expose M.S.C. to that abuse, we

hold that the District Court was correct in terminating Shane's

parental rights to M.S.C.

ISSUE 2

Did the District Court err when it terminated Tessa's parental

rights to A.L.K., K.L.K., and M.S.C.?

10
The District Court terminated Tessa's parental rights pursuant

to 5 41-3-609, MCA, on the basis of its findings that Tessa had

failed to successfully complete her court-ordered treatment plan,

that the conduct or condition which rendered Tessa an unfit parent

would not change in the foreseeable future, and that continuation

of the parent/child legal relationship would not be in the

children's best interests.

On appeal, Tessa maintains that the District Court erroneously

disregarded testimony at the hearing regarding the bond between

Tessa and her three children and the detrimental effect termination

of that bond would have on the children. In addition, Tessa

maintains that the court failed to consider the reasonable efforts

she had made at rehabilitation when it ordered termination of her

parental rights.

In its finding of fact, however, the court recognized Tessa's

counselor's testimony that "the children are bonded with Tessa and

that future contact with her is needed." The court further noted,

however, that although that counselor testified that it would not

be in the best interests of the children to terminate Tessa's

parental rights, she also testified that she would not recommend

returning the children to Tessa until Tessa was in a position to

parent, a process which would take two to three years. The

District Court was also faced with testimony that Tessa had failed

to obtain the necessary counseling for her children, had failed to

cooperate with teachers and other authorities who attempted to help

her children, had failed to follow through with parenting classes,

11
had continued to sell and use drugs, and had continued to maintain

an abusive relationship. In light of this evidence, and in light

of the testimony of DFS social worker Joe Baumgardner, who

testified that the children had become progressively more disturbed

throughout the two years he had worked with them, the court was

clearly not in error when it concluded that:

Continuation of the parent/child legal relationship

is not in the best interests of any of the children.

They have been in limbo far too long and something must

be done now to establish some permanency and predictability in their lives. They simply cannot wait any

longer.

Furthermore, although it is arguable that Tessa had had some

success at counseling, the record is clear that she had a long way

to go--perhaps as long as two or three years--before she could

adequately parent her three children. Although this Court

recognizes that evidence of rehabilitation is a factor which should

be considered, it is well-established that the best interests of

the children are paramount and take priority over parental rights

and familial bonds. InreC.A.R. andP.J.R. (1984), 214 Mont. 174, 182,

187, 693 P.2d 1214, 1219, 1221. In this case, over three years of

intervention by DFS had failed to spur adequate change in Tessa's

lifestyle or parenting skills. In addition, testimony was clear

that A.L.K. and K.L.K. were in need of immediate treatment, and

that M.S.C. was in danger of becoming severely emotionally

disturbed if he continued to live in a violent and chaotic

environment. The evidence therefore supports the District Court's

conclusion that the children's needs for stability and permanency

12
warranted termination of Tessa's parental rights. As we stated in

Inref2.A.R. andP.J.R., 214 Mont. at 186, 693 P.2d at 1221:

Stability is a very important factor in a child's

development, and a child should not be subjected to

constantly changing temporary foster care situations

while waiting for their [sic] mother to possibly improve

her parenting skills.

We therefore hold that the District Court's findings of fact

regarding the termination of Tessa's parental rights were not

clearly erroneous, and that its conclusion that Tessa's parental

rights should be terminated was correct. Accordingly, we affirm

the District Court's order which terminated Tessa's parental rights

to A.L.K., K.L.K., and M.S.C.

We concur:

Justices

13