No. 05-463 

 IN THE SUPREME COURT OF THE STATE OF MONTANA 

 

 2006 MT 41 

IN THE MATTER OF A.J.E., III, 

 A Youth In Need Of Care. 

APPEAL FROM: The District Court of the Third Judicial District, 

In and For the County Deer Lodge, Cause No. DN 2003-016, 

Honorable Ted L. Mizner, Presiding Judge 

COUNSEL OF RECORD: 

For Appellants: 

 Kenneth A. Connors, Connors Law Firm, Anaconda, Montana (Mother) 

 David L. Vicevich, Joseph, Vicevich & Whelan, Butte, Montana (Father) 

For Respondent: 

 Honorable Mike McGrath, Attorney General; Jim Wheelis, Assistant 

 Attorney General, Helena, Montana 

 Joan Borneman, County Attorney, Anaconda, Montana 

 Michelle Sievers, Knight, Dahood, Everett & Sievers, Anaconda, 

 Montana (Guardian ad Litem) 

 Submitted on Briefs: January 11, 2006 

 Decided: February 28, 2006 

Filed: 

__________________________________________ 

Clerk
 2 

Justice W. William Leaphart delivered the Opinion of the Court. 

¶1 On May 18, 2005, the Third Judicial District Court, Anaconda-Deer Lodge 

County, terminated the parental rights of A.E. (Mother) and A.E., II (Father) with regard 

to their son, A.J.E., III (A.J.E.). On different grounds, both parents appeal. We restate 

the issues as follows: 

¶2 1. Did the District Court abuse its discretion in terminating Mother’s parental 

rights by concluding that conditions rendering Mother unfit to parent were unlikely to 

change within a reasonable time pursuant to § 41-3-609(1)(f)(ii), MCA? 

¶3 2. Did the District Court abuse its discretion in terminating Father’s parental 

rights because Father could not assume the role of parent within a reasonable time? 

BACKGROUND 

¶4 A.J.E. was born on August 10, 2003, to Mother and Father. At nine days old, 

Mother, who suffered from bipolar disorder, took A.J.E. to visit Father at Montana 

Chemical Dependency Center (MCDC) where he was incarcerated for assault on a police 

officer. Concerned by Mother’s disoriented appearance—she was wearing pajamas and 

two different shoes—and by the fact that A.J.E. was covered in feces and urine, MCDC 

called the Montana Department of Public Health and Human Services, Child and Family 

Services Division (State). Stephanie Galle, a social worker with the State, responded to 

the call and removed A.J.E. from Mother’s custody. Galle had Mother taken to St. James 

Hospital for a crisis response evaluation; she was subsequently committed to the Montana 

State Hospital. 
 3 

¶5 Galle transported A.J.E. to the office of Dr. Mark Rafferty, a family practitioner 

who had provided prenatal care to Mother. Dr. Rafferty noted that A.J.E. had lost weight 

and diagnosed him as suffering from failure to thrive syndrome. The District Court 

granted temporary legal custody to the State, which placed A.J.E. in foster care—where 

he has lived throughout the pendency of this case—and issued an order adjudicating 

A.J.E. as a youth in need of care. 

¶6 On November 15, 2004, the District Court conducted a hearing for termination of 

Mother’s and Father’s parental rights. The court heard testimony from several 

professionals who had evaluated and/or worked with Mother and Father. 

¶7 Dr. Rafferty testified that he had concerns over Mother’s ability to parent. During 

Mother’s postpartum visits, he observed Mother cause A.J.E. to become hypoxic by 

smashing A.J.E.’s nose against her breast tissue while breast-feeding him. Family 

members contacted Dr. Rafferty to complain that Mother failed to properly clothe and 

feed A.J.E. Dr. Rafferty also noticed a bruise and black eye on Mother and suspected 

that Father physically abused her. Although Mother denied that Father hurt her, family 

members confirmed Dr. Rafferty’s suspicions. 

¶8 Two clinical psychologists, Dr. Ned Tranel and Dr. William Cook, evaluated 

Mother to determine whether she could safely and adequately parent A.J.E. Dr. Tranel 

performed a psychological evaluation on September 24, 2003, concluding that Mother 

had three severe and chronic handicapping conditions relative to her inability to parent. 

First, she suffered from borderline level of intellectual functioning—a level slightly 
 4 

below the cut-off point for mild mental retardation. Second, Dr. Tranel described Mother 

as having a brief psychotic disorder, meaning that while under stress, Mother would float 

into and out of reality. Finally, Dr. Tranel believed Mother had a grossly inadequate 

concept of parenting behaviors—sometimes described as a deficit in emotional 

intelligence, or a deficit in the ability to identify and utilize available resources for 

performing one’s every day tasks. Such deficits, Dr. Tranel testified, could not be 

controlled with medication. Based on these conclusions, Dr. Tranel opined that Mother 

could not meet the minimal standards of parenting for a young child, even with 

rehabilitation. 

¶9 Dr. Cook evaluated Mother on November 14, 2003, and reached conclusions 

similar to those of Dr. Tranel. Dr. Cook’s testing results indicated that Mother suffered 

from a thought disorder or mood instability, exasperated by her failure to consistently 

take her medication. Persons with such a thought disorder often lack insight into their 

problems and tend to harbor anger and resentment towards others, while mood instability 

can preclude attending to the needs of a child and choosing appropriate peers. Dr. Cook 

noted that Mother had poor judgment and had difficulty protecting herself within a 

relationship, specifically with regard to Father; he expressed concerns that Mother would 

not be able to protect A.J.E. from Father. Dr. Cook further concluded that based on his 

evaluation, Mother did not have the ability to meet the needs of a child within a 

reasonable time. 
 5 

¶10 The Court approved a treatment plan for Mother, which despite the State’s 

assistance, she failed to complete. Specifically, Mother did not obtain medical and 

psychiatric diagnosis and treatment, nor did she consistently attend mental health 

appointments. Mother also failed to attend family and individual counseling and did not 

follow the guidelines of the visitation contract, as she failed to provide appropriate 

attention to A.J.E. during their visits. On one occasion, A.J.E. crawled dangerously close 

to a floor heater when Mother left him unattended. Moreover, Mother’s in-home 

parenting coach had to perform many of the tasks Mother needed to do for herself, 

including preparing meals, getting bottles ready and bathing A.J.E. 

¶11 Cheryl D’Remy, Mother’s therapist at the Western Montana Health Center from 

August 2001 to June 2004, testified that during Mother’s three years of treatment, she 

observed no change in Mother’s ability to deal with life’s problems. D’Remy found it 

difficult to work with Mother because Mother did not feel a need to make changes in her 

life and turned away from resources. D’Remy explained that Mother needed to develop 

many skills, including how to make healthy, appropriate companions, how to deal with 

conflict and stress, and how to manage money. D’Remy noted that Mother did not see 

the use in taking classes for stress and anger management or parenting, even though 

throughout treatment, Mother became easily stressed and reacted with hostility. Mother 

also excused Father’s temper, which caused D’Remy to worry that Mother would not be 

able to shield A.J.E. from potential abuse. 
 6 

¶12 Paula Van Meel, a family support worker involved in the parenting classes Mother 

attended, supervised some of Mother’s visits with A.J.E; she testified that Mother needed 

cues in order to implement her parenting training. Although Van Meel believed that 

Mother loved A.J.E. and would not intentionally cause him harm, she expressed concern 

over leaving Mother to parent alone. 

¶13 David Fenchak, the Executive Director of the Anaconda Family Resource Center, 

also supervised visits between Mother and A.J.E. Fenchak similarly opined that he did 

not feel comfortable leaving A.J.E. with Mother unsupervised. 

¶14 With regard to Father, the State presented testimony from Dr. Tranel and Dr. Page, 

both of whom noted that Father’s incarceration in the Great Falls Regional Prison created 

an initial prohibitory factor.1

¶15 Dr. Tranel testified first, providing the results of an evaluation he performed on 

Father at Montana State Prison on January 21, 2004—approximately ten months prior to 

the termination hearing. Because Father refused to complete the standard testing 

procedures, Dr. Tranel explained that he instead spent several hours talking with Father 

and reviewing voluminous records and data relating to Father’s history. Dr. Tranel’s 

findings included a diagnosis of antisocial personality disorder and poly substance 

dependence, as well as a suggestion of bipolar disorder. Dr. Tranel advised that Father 

could not adequately parent A.J.E. and, further, that it was highly unlikely that he would 

 1

While Father resided in MCDC at the time of A.J.E.’s birth, by the termination 

hearing, he had been kicked out of the program for noncompliance. 
 7 

be able to parent within a reasonable time because Father lacked awareness of his 

shortcomings and resisted treatment. 

¶16 Dr. Page, who administered a battery of tests to Father on March 11, 2004, 

testified to having reached similar conclusions to those of Dr. Tranel, including a 

diagnosis of antisocial behavior. In particular, Dr. Page noted that Father’s anger 

issues—including a tendency to act outwardly towards objects or people when enraged—

could negatively affect his ability to parent. In addition, Father’s one-dimensional 

awareness of parenting skills indicated that he would have trouble making spontaneous 

decisions in the best interest of a child. Moreover, Dr. Page testified that separating 

A.J.E. from his foster parents, with whom he had bonded, would likely cause A.J.E. to 

suffer reactive attachment disorder, hindering his ability to form healthy patterns of 

emotional growth. Based on these factors, Dr. Page concluded that Father could not 

safely parent A.J.E. 

¶17 At the termination hearing, Father testified, setting forth reasons for why the court 

should provide him the opportunity to parent his son. Father testified that he had taken 

steps to rehabilitate himself, including attending group mental health treatment sessions 

and completing anger management, parenting, and cognitive principles and restructuring 

classes. Father pointed out that he completed these classes after Dr. Tranel and Dr. Page 

completed their evaluations. 

¶18 To rebut Father’s testimony implying that he had overcome his behavioral 

problems, the State elicited Dr. Page’s opinion as to whether Father’s rehabilitation 
 8 

efforts improved his chances of parenting adequately. Dr. Page testified that despite his 

efforts, Father still lacked adequate skills to parent. In reaching this conclusion, Dr. Page 

relied on his professional experience, as well as an evaluation performed by Dr. Timothy 

J. Casey, another clinical psychologist, who met with Father in August 2004, a few 

months after Dr. Tranel and Dr. Page performed their evaluations and after Father had 

completed his rehabilitative programs.2

 Dr. Page noted that Dr. Casey presented an 

opinion consistent with Dr. Page’s—that is, that Father did not have the appropriate level 

of skill to parent A.J.E. Dr. Page further testified that dramatic changes in individuals 

such as Father are rare. 

¶19 Social worker Galle asked the court to terminate Father’s parental rights, given 

Father’s prison status, violent history and lack of relationship with A.J.E. Galle also 

asked the court to terminate Mother’s parental rights because Mother failed to 

successfully complete her parenting plan and, in Galle’s opinion, A.J.E. would not be 

safe in Mother’s care. Moreover, Galle advised that removing A.J.E. from his foster 

home where he was thriving and bonded to potential adoptive parents would not be in his 

best interest. 

¶20 Based on the testimony and evidence presented at the termination hearing, the 

District Court terminated Mother’s and Father’s parental rights and awarded legal 

custody to the State, concluding that since Mother’s and Father’s “conduct or conditions 

 2

While Father requested Dr. Casey’s evaluation and filed it with the court, he did 

not submit the report as evidence. 
 9 

. . . are unlikely to change within a reasonable time,” foster care and/or adoption served 

A.J.E.’s best interest. 

STANDARD OF REVIEW

¶21 We review a district court’s decision to terminate parental rights to determine 

whether the court abused its discretion. The test for an abuse of discretion is whether the 

trial court acted arbitrarily, without employment of conscientious judgment, or exceeded 

the bounds of reason resulting in substantial injustice. However, because a parent’s right 

to the care and custody of a child is a fundamental liberty interest, it must be protected by 

fundamentally fair procedures. To satisfy the relevant statutory requirements for 

terminating a parent-child relationship, a district court must make specific factual 

findings. We review those findings of fact to determine whether they are clearly 

erroneous. Lastly, we review the court’s conclusions of law to determine whether the 

court interpreted the law correctly. Matter of A.F., 2003 MT 254, ¶ 12, 317 Mont. 367, 

¶ 12, 77 P.3d 266, ¶ 12. 

¶22 The district court is bound to give primary consideration to the physical, mental 

and emotional conditions and needs of the child. Section 41-3-609(3), MCA. 

Consequently, the best interests of the child are of paramount concern in a parental rights 

termination proceeding and take precedence over the parental rights. Moreover, the party 

seeking to terminate parental rights must demonstrate by clear and convincing evidence 

that the statutory requirements for termination have been met. Matter of A.F., ¶ 13. 
 10 

¶23 We presume that a district court’s decision in such a case is correct and will not 

disturb it on appeal unless there is a mistake of law or a finding of fact not supported by 

substantial evidence that would amount to clear abuse of discretion. Matter of A.F., ¶ 14. 

DISCUSSION 

¶24 1. Did the District Court abuse its discretion in terminating Mother’s 

parental rights by concluding that conditions rendering Mother unfit to parent were 

unlikely to change within a reasonable time pursuant to § 41-3-609(1)(f)(ii), MCA? 

¶25 Section 41-3-609(1)(f), MCA, states that a district court may order the termination 

of the parent-child relationship where “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.” Section 41-3-609(1)(f), MCA. 

¶26 Mother concedes that the District Court adjudicated A.J.E. a youth in need of care 

and that she failed to successfully complete a treatment plan approved by the court. 

However, Mother maintains that the court erred in concluding that the conduct or 

condition rendering her unfit to parent was unlikely to change within a reasonable time, 

as required by subsection (ii) of § 41-3-609(1)(f), MCA. Specifically, Mother contends 

that the District Court erroneously relied on “stale evidence and incomplete files” 

because Dr. Tranel and Dr. Cook performed their evaluations approximately one year 

prior to the termination hearing and lacked knowledge of her rehabilitation efforts. 
 11 

Mother further points out that the District Court misstated in its conclusions of law “that 

both clinical psychologists had the benefit of the current evaluation of Dr. Tim Casey in 

reaching their conclusions” when the record shows that neither psychologist relied on Dr. 

Casey’s report. 

¶27 Mother cites to In Re the Matter of J.C., Jr. and R.B., 2003 MT 369, ¶ 11, 319 

Mont. 112, ¶ 11, 82 P.3d 900, ¶ 11, in which we held that a district court is required to 

assess “the past and present conduct of the parent” when determining whether the 

conduct or condition rendering a parent unfit is likely to change within a reasonable time. 

Mother emphasizes this Court’s statement in Matter of J.C. that a district court should, at 

least in part, look to a parent’s “present conduct.” Importantly, however, we also 

emphasized in Matter of J.C. the importance of looking to a parent’s past behavior in 

determining his or her fitness to parent in the future—without a “crystal ball,” a decision 

to terminate parental rights must “to some extent [find basis in] a person’s past conduct.” 

Matter of J.C., ¶ 11. This Court affirmed the District Court’s decision to terminate J.C.’s 

mother’s parental rights, even though she had made improvements, because his mother 

had a “history” of not following through with her “strides” and “steps.” Matter of J.C., ¶ 

15. Moreover, we noted “that evidence of rehabilitation does not render a district court 

powerless to find future danger to the child, it is simply evidence to be considered by the 

district court.” Matter of J.C., ¶ 16. We therefore concluded that the court did not abuse 

its discretion when it found that the mother’s history of noncompliance with her 
 12 

treatment plan outweighed her more recent efforts to comply with the plan. Matter of 

J.C., ¶ 17. 

¶28 In this case, the District Court assessed evidence from a variety of professionals 

who had evaluated and/or observed Mother since A.J.E.’s birth. While the District Court 

misstated in its conclusions of law that Dr. Tranel and Dr. Cook relied on a current 

evaluation by Dr. Casey, when in fact, neither psychologist referenced a report by Dr. 

Casey, this misstatement amounts to harmless error. See In the Matter of S.C. and L.Z., 

2005 MT 241, ¶ 29, 328 Mont. 476, ¶ 29, 121 P.3d 552, ¶ 29 (“[a] harmless error does 

not mandate that we reverse a district court’s judgment; an error must cause substantial 

prejudice to warrant reversal.”) (citation omitted). The fact that Dr. Tranel and Dr. Cook 

evaluated Mother roughly one year before the termination hearing and did not rely on 

more recent information does not lessen the import of their testimony, which centered on 

Mother’s chronic disabilities which preclude her from parenting adequately. Moreover, a 

therapist, a family support worker and the Executive Director of the Anaconda Family 

Resource Center—all of whom worked with Mother in the months after Dr. Tranel and 

Dr. Cook performed their psychological evaluations—testified that despite the State’s 

efforts to help Mother learn necessary skills through parenting and anger management 

classes, she exhibited an inability to implement the lessons taught. Not one of these 

professionals felt comfortable with the idea of leaving A.J.E. alone with Mother. 

¶29 Given the evidence presented at the termination hearing, we conclude that the 

District Court employed conscientious judgment and did not abuse its discretion in 
 13 

concluding that “[t]he conduct or condition of [Mother] rendering [her] unfit is unlikely 

to change within a reasonable time.” Section 41-3-609(1)(f)(ii), MCA.

¶30 2. Did the District Court abuse its discretion in terminating Father’s parental 

rights because Father could not assume the role of parent within a reasonable time?

¶31 Section 41-3-609(4)(b), MCA, states that a district court may terminate parental 

rights without requiring a treatment plan if “two medical doctors or clinical psychologists 

submit testimony that the parent cannot assume the role of parent within a reasonable 

time.” Section 41-3-609(4)(b), MCA. Pursuant to this section, the District Court 

terminated Father’s rights based on the testimony of two clinical psychologists’ opinions 

that it was unlikely Father would be able to parent within a reasonable time. 

¶32 Father argues that the District Court erred in relying on Dr. Tranel’s and Dr. 

Page’s testimony because both psychologists evaluated Father before he engaged in 

various treatments through the prison system. Dr. Tranel evaluated Father roughly nine 

months prior to the termination hearing,3

 while Dr. Page conducted his evaluation 

approximately seven months before the hearing.4

 In the months after the psychological 

 3

Father argues that Dr. Tranel failed to provide substantial evidence because he did 

not formally “test” Father due to Father’s refusal to cooperate. In essence, Father 

challenges the admissibility of Dr. Tranel’s testimony. However, because he did not 

object at the hearing, Father is barred from raising this issue on appeal. Rule 103(a)(1), 

M.R.Evid. 

 4

Father also argues that the District Court violated his due process rights by 

permitting Dr. Page to testify that he had reviewed Dr. Casey’s more recent evaluation of 

August 19, 2004 (which Father filed with the court) when Dr. Casey did not testify and 

his report was not admitted into evidence. Not only did Father fail to object to Dr. Page’s 

testimony during the hearing, the District Court appropriately allowed Dr. Page’s 
 14 

evaluations and prior to the hearing, Father completed the intensive treatment unit at the 

Montana State Prison for chemical dependency, parenting, anger management, and 

cognitive principles and restructuring; he also attended group mental health counseling at 

the Great Falls Regional Prison. Father maintains that in light of these rehabilitative 

steps, Dr. Tranel and Dr. Page provided outdated reports and therefore, the District Court 

should not have relied on their testimony. 

¶33 As we noted above, “evidence of rehabilitation does not render a district court 

powerless to find future danger to the child, it is simply evidence to be considered by the 

district court.” Matter of J.C., ¶ 16. While Father took steps to rehabilitate himself, the 

court determined that Father’s extensive criminal history—including partner assault on 

Mother and violent behavior—as well as his lack of responsibility for behavior that made 

him unavailable to parent his child, contradicted his claims of rehabilitation. The court 

appropriately looked to Dr. Tranel’s opinion that Father suffered from antisocial 

personality disorder, poly substance dependence and likely bipolar disorder, and Dr. 

Page’s conclusion that Father’s tendency to behave aggressively when angry would 

inhibit his ability to parent appropriately, as well as both psychologists’ advice that it was 

highly unlikely that Father would be able to rehabilitate within a reasonable time. 

¶34 Given Father’s extensive history with mental instability, aggression and crime, as 

presented by two clinical psychologists, we conclude that the District Court did not abuse 

 

testimony on the grounds that the information in Dr. Casey’s report is of the type 

normally relied on by these clinical experts in the formulation of their opinions. See Rule 

703, M.R.Evid. 
 15 

its discretion in concluding that Father could not assume the role of parent within a 

reasonable time. In the best interest of A.J.E., the court appropriately ordered termination 

of Father’s parental rights. 

¶35 Affirmed. 

 /S/ W. WILLIAM LEAPHART 

We concur: 

/S/ KARLA M. GRAY 

/S/ PATRICIA COTTER 

/S/ BRIAN MORRIS 

/S/ JOHN WARNER