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No. 97-726

IN THE SUPREME COURT OF THE STATE OF MONTANA

1998 MT 157

IN RE A. W-M., 

A Youth in Need of Care.

 APPEAL FROM: District Court of the Eighth Judicial District,

In and for the County of Cascade,

The Honorable Marge Johnson, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Lawrence LaFountain, Attorney at Law, Great Falls, Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General; Mark Mattioli, 

Assistant Attorney General; Helena, Montana

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Brant Light, Cascade County Attorney; Great Falls, Montana

Submitted on Briefs: May 28, 1998

Decided: June 23, 1998

Filed:

__________________________________________

Clerk

Justice Jim Regnier delivered the opinion of the Court.

¶1 M.M. appeals from an order of the Eighth Judicial District Court, Cascade 

County, terminating her parental rights over her daughter, A.W-M. For the reasons 

stated below, we affirm. The sole dispositive issue on appeal is whether the District 

Court erred in terminating M.M.'s parental rights. 

FACTUAL AND PROCEDURAL BACKGROUND

¶2 A.W-M. was born on March 30, 1996, to M.M., her biological mother, and M.W., 

her biological father. In April 1996, the Department of Public Health and Human 

Services (Department) received "four referrals with concerns as to [M.M.'s] ability 

to care for her infant daughter [A.W-M.] or to provide her with a home." During the 

week of July 8, 1996, the Department received two more referrals "alleging [M.M.] 

was leaving [A.W-M.] for days at a time with caretakers while she was out partying." 

On July 12, 1996, A.W-M. was placed in foster care for a brief period. 

¶3 On July 23, 1996, the Department filed a petition with the Eighth Judicial District 

Court for temporary investigative authority and protective services. On July 31, 

1996, the court issued an order for protective services, and appointed a guardian ad 

litem for A.W-M. The court held a show cause hearing on September 5, 1996, during 

which both M.M. and M.W. agreed to participate in a court-ordered treatment plan. 

On September 23, 1996, the court issued an order granting the Department's petition 

for temporary investigative authority for a ninety-day period, and ordering that M.

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M. and M.W. complete a treatment plan designed to "[p]reserve, if possible, the 

parent child relationship between [A.W-M.] and her parents." Among the treatment 

plan's requirements were that M.M. provide her daughter with "a safe and stable 

home," undergo a psychological assessment, complete a chemical dependency 

evaluation and follow any "recommendations thereof," and complete parenting 

classes.

¶4 In November 1996, A.W-M. was again placed in foster care because M.M. "had 

not followed through at all with the treatment plan and the hospital was concerned 

about her chemical dependency issues." M.M. failed to attend a December 19, 1996, 

review hearing, and the District Court ordered that the Department have temporary 

investigative authority for an additional ninety-day period, and ordered that M.M. 

"continue working on her treatment plan." 

¶5 On February 25, 1997, roughly one month after M.M. appeared at a second status 

hearing, the Department filed a petition for temporary legal custody. Among the 

allegations set forth in the Department's supporting affidavit were that M.M. had 

failed to meet even a single objective of her September 1996 treatment plan. More 

specifically, the Department asserted that, although M.M. had "completed a 

chemical dependency evaluation" and had begun the recommended intensive 

outpatient treatment, she received "a disciplinary discharge because she did not 

show up for two appointments" and because she had "a urinalysis that was positive 

for marijuana." The Department also alleged that M.M. had failed to secure stable 

or permanent living arrangements, failed to attend counseling, and had not 

undergone a psychological evaluation as ordered.

¶6 On March 6, 1997, the court issued an order granting the Department temporary 

legal custody over A.W-M. The court held an adjudicatory hearing on June 5, 1997, 

at which M.M. failed to appear, and granted the Department legal custody for a sixmonth period. The court additionally ordered that M.M. "must make every effort to 

successfully complete" her treatment plan.

¶7 On July 15, 1997, the Department filed its petition for permanent legal custody 

and termination of parental rights. Citing § 41-3-609(1), MCA, the Department 

sought to terminate M.M.'s parental rights for failure to comply with or successfully 

complete her treatment plan, and on the grounds that the conduct or condition 

rendering her unfit was unlikely to change within a reasonable time. The court held a 

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hearing on September 16, 1997, and on October 23, 1997, entered an order 

terminating M.M.'s parental rights. It is from the District Court's order terminating 

her parental rights that M.M. presently appeals. 

STANDARD OF REVIEW

¶8 We review a district court's decision to terminate parental rights to determine 

whether the court interpreted the law correctly and whether its findings of fact are 

clearly erroneous. In re K.F.L. and N.L. (1996), 275 Mont. 102, 104, 910 P.2d 241, 243.

¶9 In In re D.H. and F.H. (1994), 264 Mont. 521, 524, 872 P.2d 803, 805, we clarified 

the standard of review for cases involving a youth in need of care and termination of 

parental rights. The appropriate standard of review to be applied to purely factual 

findings in a termination of parental rights proceeding is the clearly erroneous 

standard as set forth in Interstate Production Credit Association v. DeSaye (1991), 250 

Mont. 320, 323, 820 P.2d 1285, 1287. We review conclusions of law in a termination 

proceeding to determine if those conclusions are correct. In re D.H. and F.H., 264 

Mont. at 525, 872 P.2d at 805.

¶10 This Court has recognized that "a natural parent's right to care and custody of a 

child is a fundamental liberty interest, which must be protected by fundamentally 

fair procedures." In re R.B., Jr. (1985), 217 Mont. 99, 103, 703 P.2d 846, 848. 

Accordingly, prior to terminating an individual's parental rights, the district court 

must adequately address each applicable statutory requirement. In re R.B., Jr., 217 

Mont. at 103, 703 P.2d at 848. 

DISCUSSION

¶11 Did the District Court err in terminating M.M.'s parental rights?

¶12 M.M. advances two arguments on appeal, the first of which is that the District 

Court erred in finding A.W-M. was a youth in need of care. M.M. asserts there was 

no evidence indicating A.W-M. was abused or neglected at the time of her removal 

from M.M.'s care in November 1996. At the hearing on the Department's petition to 

terminate M.M.'s parental rights, social worker Brennan Swanberg explained that 

the Department had placed A.W-M. in foster-care on November 6, 1996, because the 

child had bronchitis and because she had been left with an inappropriate caregiver. 

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On appeal, M.M. argues the Department presented no evidence to suggest that A.WM.'s bronchitis was due to abuse or neglect, and similarly asserts the Department 

failed to present any evidence to suggest that the caregiver with whom M.M. left her 

daughter was inappropriate. Moreover, M.M. disputes the Department's assertion 

that she failed to return for her child when expected by the caregiver. In light of the 

foregoing, M.M. argues the Department failed to present clear and convincing 

evidence that A.W-M. was in danger of being neglected or abused while in her care. 

Because the Department failed to demonstrate that A.W-M. was a youth in need of 

care, M.M. argues, "the child should not have been removed and the action should 

have been terminated." 

¶13 In its order terminating M.M.'s parental rights, the District Court found that A.

W-M. "is a youth in need of care within the meaning [of] § 41-3-201, MCA (1995), 

and her best interests will be served by declaring her a youth in need of care under 

the laws of the State of Montana." The court additionally concluded that A.W-M. 

had previously been "adjudicated a youth in need of care and remains as such." We 

will not disturb a decision by the district court terminating parental rights "unless 

there is a mistake of law or a finding of fact not supported by substantial credible 

evidence that would amount to a clear abuse of discretion. In re S.P. (1990), 241 

Mont. 190, 194, 786 P.2d 642, 644 (quoting In re R.A.D. (1988), 231 Mont. 143, 148, 

753 P.2d 862, 865).

¶14 The record in the present case contains substantial credible evidence to support 

the District Court's determination that A.W-M. was a youth in need of care. For 

example, the record indicates that when A.W-M. was only three months old, M.M. 

left her in the care of a known sex offender. Department social worker Brennan 

Swanberg testified that, when A.W-M. was seven months old and sick with 

bronchitis, M.M. left her with a babysitter. Swanberg explained that when M.M. 

failed to return for her daughter at the predetermined time, the babysitter took A.WM. to the emergency room for treatment. Swanberg stated that, although M.M. 

eventually arrived at the hospital, doctors would not release A.W-M. into her care 

because she "appeared to be high." The record additionally indicates that M.M. 

made few efforts to complete the requirements of her treatment plan, tested positive 

for the use of marijuana, and left A.W-M. with caregivers for indefinite periods of 

time on more than one occasion. Under these circumstances, we hold the District 

Court did not err in finding that A.W-M. was a youth in need of care. Moreover, 

although M.M. argues on appeal that "the child should not have been removed" 

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from her care and placed in a foster home in November 1996, we note that M.M. did 

not object to her removal at that time and did not object to the court's order granting 

the Department investigative authority and protective services. 

¶15 Having held that the District Court did not err in finding that A.W-M. was a 

youth in need of care, we turn next to M.M.'s argument that the court erred in 

concluding she could not be expected to complete her treatment objectives in the 

foreseeable future, and thus erred in terminating her parental rights. In its order 

terminating M.M.'s parental rights, the District Court indeed concluded that M.M. 

"did not comply with" her treatment plan, and determined that those "portions of 

the treatment plan that were attempted were not successful." The court additionally 

concluded that the conduct or condition rendering M.M. unfit to parent her child "is 

unlikely to change within a reasonable time." 

¶16 On appeal, M.M. concedes "it is clear that [she] did not complete her treatment 

plan," but asserts the Department failed to demonstrate that a treatment plan was 

actually necessary. Moreover, M.M. argues the Department presented no evidence to 

contradict her assertion that she was not chemically dependent, and similarly 

presented no evidence that she was an unfit parent. M.M. accordingly argues the 

court erred in concluding that the conduct or condition rendering her unfit to parent 

A.W-M. "is unlikely to change within a reasonable time," and thereby erred in 

terminating her parental rights. 

¶17 Having reviewed the record, we conclude there is ample evidence which supports 

the court's determination that the conduct or condition rendering M.M. unfit was 

"unlikely to change within a reasonable time." Despite M.M.'s assertions to the 

contrary, the record contains substantial evidence indicating she was chemically 

dependent. For example, Gateway Recovery conducted a chemical dependency 

evaluation and recommended that M.M. undergo intensive outpatient chemical 

dependency treatment. Moreover, M.M. was subsequently discharged from 

treatment due in part to the fact that her urine tested positive on one occasion for the 

presence of marijuana. Also indicative of M.M.'s inability to effectively parent her 

child is evidence that she had been unable to secure stable housing or employment, 

had failed to attend court-ordered counseling, and had visited only sporadically with 

her daughter.

¶18 When asked at the termination hearing why she had not completed courtfile:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-726%20Opinion.htm (6 of 7)4/19/2007 9:32:11 AM
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ordered intensive outpatient chemical dependency treatment, M.M. replied that she 

"[j]ust didn't care at the time." M.M. stated that she did not complete the counseling 

requirement contained in her treatment plan because she believed such counseling 

had nothing to with her daughter. When asked why the court should give her more 

time to complete her treatment plan, M.M. explained, "I don't think they should. I 

messed up, and I know I did, and I don't think they should." Although M.M. testified 

that she would not relinquish her parental rights to A.W-M., she simultaneously 

agreed that she was unwilling to do what the court ordered her to do in order to get 

her daughter back. 

¶19 In light of the foregoing, we conclude the record contains substantial evidence 

supporting the court's determination that M.M. was "unfit, unwilling, or unable to 

provide adequate parental care," and that "[t]he conduct or condition of [M.M] 

rendering [her] unfit is unlikely to change within a reasonable time." We thus hold 

the court did not err in concluding M.M. could not be expected to complete an 

appropriate treatment plan in the foreseeable future, and in thereby terminating M.

M.'s parental rights.

/S/ JIM REGNIER 

We Concur:

/S/ KARLA M. GRAY

/S/ JAMES C. NELSON

/S/ W. WILLIAM LEAPHART

/S/ TERRY N. TRIEWEILER

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