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No. 01-084 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

2001 MT 200 

IN THE MATTER OF 

D.H., S.H., K.H., N.S, J.B., Jr.,

Youths in Need of Care.

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone,

The Honorable Maurice R. Colberg, Jr., Judge presiding.

COUNSEL OF RECORD:

For Appellants:

Kevin Gillen, Attorney at Law, Billings, Montana

For Respondent:

Hon. Mike McGrath, Attorney General; Nancy G. Schwartz,

Assistant Attorney General, Helena, Montana

Submitted on Briefs: June 29, 2001 

Decided: October 4, 2001 

Filed:

__________________________________________

Clerk

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Justice Jim Regnier delivered the Opinion of the Court.

¶1 This is an appeal by N.S. and J.B. Jr.'s mother, Marta, and J.B. Jr.'s father, James Sr., 

from the Findings of Fact, Conclusions of Law, and Order issued by the Thirteenth 

Judicial District Court, Yellowstone County, terminating their parental rights with respect 

to N.S. and J.B. Jr. We affirm.

¶2 We address the following issues on appeal:

¶3 1. Did the District Court err in concluding that Marta and James Sr.'s treatment plans, 

as set out by the Department of Public Health and Human Services, were unsuccessful?

¶4 2. Did the District Court abuse its discretion in terminating Marta and James Sr.'s 

parental rights when a less restrictive alternative existed?

BACKGROUND

¶5 Marta is the natural mother of nine children, the youngest four of whom were the 

subject of the District Court proceedings. Marta's current husband, James Sr., is the natural 

father of the youngest child, J.B. Jr.

¶6 In 1994 this family came to the attention of the Wyoming Child Protective Services 

upon allegations that D.H. (no longer subject to these proceedings) sexually abused some 

of his younger siblings. Wyoming courts placed D.H. on probation for sexually abusing S.

H. and N.S. In 1995 the family moved to Billings, Montana. D.H.'s probation was 

transferred to Billings where he and the rest of the family underwent counseling for 

several years. However, in 1996 the Department of Public Health and Human Services 

("DPHHS") closed the case upon determining that no new incidents of incest had occurred 

and the family was complying with the requisite counseling and treatment needs.

¶7 As of July 1998, five children lived with Marta and James Sr.: D.H., K.H., S.H., N.S., 

and J.B. Jr. On July 24, 1998, DPHHS again intervened upon receiving information that K.

H. had raped N.S. while the parents were away celebrating an anniversary. DPHHS 

immediately filed a petition for temporary investigative authority and emergency 

protective services and removed N.S., J.B. Jr. and R.M. (a grandchild not subject to these 

proceedings) from the home, placing them in protective custody. DPHHS later removed S.

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H. from the home when she expressed fear of sexual abuse from D.H. 

¶8 The District Court granted the temporary investigative authority for a period of ninety 

days following a show cause hearing and approved treatment plans for Marta and James 

Sr. The treatment plans sought to: establish financial stability to meet the children's needs, 

increase parenting abilities, provide a safe environment for the children, improve the 

parents' mental health status, and maintain and improve the parent-child bond. 

¶9 After removing the children from the home, DPHHS discovered additional abuse. S.H. 

reported being raped by her older brother D.H. Further, N.S. and J.B. Jr. reported other 

incidents of sexual abuse by their older siblings. The children also reported instances of 

inappropriate punishment and severe neglect. Therefore, on November 9, 1998, DPHHS 

moved the District Court to extend temporary investigative authority for an additional 

ninety days. Marta and James Sr. did not object to the extension and the District Court 

granted DPHHS' motion without testimony based on the contents of the court file. The 

District Court approved a second treatment plan for Marta and James Sr. containing 

similar goals and objectives to the original plan.

¶10 On February 3, 1999, DPHHS filed a petition for temporary custody for a period of 

ninety days citing further disclosures of sexual abuse and intimidation by the older 

siblings and the parents' inability to provide a safe home and social environment for the 

children. Following a hearing on April 9, 1999, and no objections being made, the District 

Court granted temporary custody of S.H., K.H., N.S., and J.B. Jr. to DPHHS. Having 

reached the age of majority, the District Court dismissed D.H. from the custody 

proceedings. The District Court approved a third treatment plan for Marta and James Sr. 

similar to the previous plans.

¶11 On July 8, 1999, DPHHS filed a motion to extend temporary custody for a period of 

six months because of concerns about the parents' inability to provide a safe environment 

for the children. Following a September 1999 hearing and no objections being made, the 

District Court granted DPHHS' motion to extend temporary custody for a period of six 

months. The District Court approved a fourth treatment plan for Marta and James Sr. 

containing similar goals and objectives as the prior plans.

¶12 Finally, on March 16, 2000, DPHHS filed a petition for permanent legal custody, 

termination of parental rights, right to consent to adoption, and extension of temporary 

custody. DPHHS sought to: extend its temporary custody of S.H. and K.H. until they 

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attained the age of eighteen; terminate Marta and N.S.'s father's parental rights as to N.S.; 

terminate Marta and James Sr.'s parental rights as to J.B. Jr.; and obtain permanent legal 

custody of N.S. and J.B. Jr. with the authority to consent to adoption. In the interim, the 

District Court approved a fifth and final treatment plan for Marta and James Sr. 

¶13 On November 15, 2000, the District Court issued its Findings of Fact and Conclusions 

of Law wherein the court granted long term custody of S.H. and K.H. to DPHHS and 

terminated their father's parental rights; terminated Marta's parental rights as to N.S. and J.

B. Jr.; terminated N.S.'s father's parental rights; and terminated James Sr.'s parental rights 

as to J.B. Jr. This appeal addresses only those issues pertinent to the termination of Marta 

and James Sr.'s parental rights as they relate to N.S. and J.B. Jr.

STANDARD OF REVIEW

¶14 In reviewing a decision to terminate parental rights, we determine whether the district 

court's findings of fact supporting termination are clearly erroneous and whether the 

district court's conclusions of law are correct. In re C.B., 2001 MT 42, ¶ 6, 304 Mont. 252, 

¶ 6, 20 P.3d 117, ¶ 6. Findings of fact are clearly erroneous if they are not supported by 

substantial evidence; or, if so supported, the district court misapprehended the effect of the 

evidence; or, if so supported and the district court did not misapprehend the effect of the 

evidence, this Court is left with the definite and firm conviction that a mistake has been 

committed. In re S.M., 1999 MT 36, ¶ 15, 293 Mont. 294, ¶ 15, 975 P.2d 334, ¶ 15. In 

regard to the statutorily required findings of fact supporting termination, we have stated 

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 and, therefore, the burden is on 

the party seeking termination to demonstrate by clear and convincing evidence that every 

requirement set forth in the statute has been satisfied. In re C.B., ¶ 6.

¶15 Finally, a district court's decision to terminate parental rights is discretionary and we 

review that decision to determine whether the court abused its discretion. In re J.W., 2001 

MT 86, ¶ 7, 305 Mont. 149, ¶ 7, 23 P.3d 916, ¶ 7. The test for 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. In re J.M.J., 1999 MT 

277, ¶ 16, 296 Mont. 510, ¶ 16, 989 P.2d 840, ¶ 16.

ISSUE ONE

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¶16 Did the District Court err in concluding that Marta and James Sr.'s treatment plans, as 

set out by DPHHS, were unsuccessful?

¶17 Pursuant to § 41-3-609(1)(f), MCA, a court may terminate parental rights upon a 

finding that 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.

When considering the criteria for termination, primary consideration must be given to the 

best interests of the child as demonstrated by the child's physical, mental, and emotional 

conditions and needs. In re S.M., 2001 MT 11, ¶ 31, 304 Mont. 102, ¶ 31, 19 P.3d 213, ¶ 

31.

¶18 Marta and James Sr. have not challenged the District Court's finding that N.S. and J.B. 

Jr. are youths in need of care. They do challenge the appropriateness of the treatment 

plans, the District Court's finding that the treatment plans were unsuccessful, and the 

District Court's finding that their conduct is unlikely to change within a reasonable time.

A. Appropriateness of the Treatment Plans

¶19 From what we can deduce, Marta and James Sr. contend the treatment plans were 

inappropriate and unreasonable in light of the long term care required to help these 

sexually abused children. Further, Marta and James Sr. assert they were trapped into a 

treatment plan which was destined to fail due to the abbreviated time constraints of the 

plans. To support this proposition, Marta and James Sr. cite the concurring opinion in 

Matter of J.S. & P.S. (1994), 269 Mont 170, 178-79, 887 P.2d 719, 724 (Gray, J., specially 

concurring).

¶20 This Court has not specifically defined what constitutes an "appropriate" treatment 

plan as a matter of law and, indeed, no such bright line definition is possible given the 

unique circumstances existing in each case. Matter of Custody and Parental Rights of M.

M. (1995), 271 Mont. 52, 56, 894 P.2d 298, 301. In evaluating the appropriateness of a 

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treatment plan, we have considered such factors as: (1) whether the parent was represented 

by counsel and stipulated to the treatment plan; and (2) whether the treatment plan was 

directed at problems facing the parent and the child. Matter of M.M., 271 Mont. at 57, 894 

P.2d at 301.

¶21 In the present case, DPHHS documented several instances of incestuous sexual abuse 

perpetrated against several children in the family by their siblings. There is no evidence 

indicating Marta or James Sr. ever sexually abused any of the children. Therefore, DPHHS 

primarily sought to educate the parents on how to provide a safe physical and emotional 

environment for the children. To that end, DPHHS developed several treatment plans to 

address the parents' deficiencies.

¶22 From August 24, 1998, to June 6, 2000, DPHHS designed five separate treatment 

plans for Marta and James Sr. The treatment plans endeavored to establish stable financial 

conditions, heightened parenting abilities, a safe environment for the children, improved 

mental health in regards to Marta and James Sr., and an improved parent-child bond. To 

perpetuate the treatment plans, the family underwent extensive individual and family 

counseling and maintained continued contact with social workers. While Marta and James 

Sr. signed only two of the treatment plans, they attempted to comply with all of them. The 

District Court approved all five plans. 

¶23 Marta and James Sr. contend that their treatment plans were destined to fail due to 

unrealistic time constraints. They cite the concurring opinion in Matter of J.S. & P.S. in 

support of this proposition. In Matter of J.S. & P.S., two minor children were removed 

from their home after their father sexually assaulted one of them. The Department of 

Family Services established treatment plans for both the mother and father. After their 

mother failed to comply with her two month treatment plan, the District Court terminated 

her parental rights and this Court affirmed. Matter of J.S. & P.S., 269 Mont. at 178, 887 

P.2d at 724. In a concurring opinion, Justice Gray stated:

I am troubled by the notion that a two-month treatment plan which involves 

counseling is an "appropriate" treatment plan under § 41-3-609, MCA. Preparing 

such an abbreviated plan involving counseling strikes me as trapping the parent into 

an inability to successfully complete the program within the time allotted. 

Successful results from counseling will not be immediate, and such short-term 

counseling mandates should not be utilized in treatment plans merely to provide an 

easy and expeditious opportunity for the government to establish that the parent has 

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not been successful in completing the treatment plan.

Matter of J.S. and P.S., 269 Mont. at 179, 887 P.2d at 724 (Gray, J., specially concurring). In 

essence, Justice Gray expressed concern about terminating the mother's parental rights in light of the 

brevity of her two month treatment plan.

¶24 In the present case, DPHHS drafted five treatment plans for Marta and James Sr. over 

the course of two years. Marta and James Sr. had more than sufficient time to comply with 

any one of the treatment plans. At all times relevant to the custodial proceedings, Marta 

and James Sr. were represented by counsel. The record does not reflect any objections to 

the plans prior to this appeal. Clearly, these treatment plans were directed at protecting the 

children from further sexual abuse within the home. We conclude that the treatment plans 

were "appropriate" for purposes of § 41-3-609, MCA.

B. Success of the Treatment Plans

¶25 The District Court determined, pursuant to § 41-3-609(1)(f)(i), MCA, that Marta and 

James Sr. failed to successfully complete their treatment plans. Marta and James Sr. 

contend they satisfied all of the "attainable" goals of the treatment plans. Therefore, they 

argue the District Court erred in finding the treatment plans unsuccessful as that finding 

was not supported by clear and convincing evidence. We disagree.

¶26 DPHHS arranged for the family to undergo treatment at South Central Treatment 

Associates ("SCTA"), an outpatient sexual abuse treatment program. DPHHS developed 

the first treatment plan in September 1998. Since January 1999, five professionals from 

SCTA were involved with treating this family. SCTA provided the family with several 

treatment services including sexual offender treatment for the identified sex abusers in the 

family, victim support and individual counseling for S.H., N.S., and J.B. Jr., individual 

counseling and group therapy for Marta, and family therapy for the whole family.

¶27 One of the professionals, clinical social worker Michael D. Sullivan, testified that on 

at least three occasions between April and August 1999, SCTA informed Marta and James 

Sr. of treatment expectations and consequences for noncompliance. Marta and James Sr. 

were repeatedly warned that a failure to comply with their treatment plans could result in 

termination of their parental rights. With the children's safety as the primary concern, 

SCTA worked with Marta and James Sr. to improve particular problem areas. Areas of 

focus included establishing boundaries, acknowledging denial, and fostering honest 

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communication.

¶28 Sullivan testified that during his work with Marta he did not feel she effectively 

participated in treatment. During Marta's treatment, Sullivan noted she appeared dishonest, 

projected blame on DPHHS, failed to assume personal responsibility for behavior, and 

attempted to manipulate professionals. Similarly, Sullivan testified that James Sr. was very 

manipulative and dishonest, projected a great deal of blame, failed to assume 

responsibility, and felt victimized by the circumstances. Further testimony revealed 

sporadic attendance and ineffective use of time in treatment. The evidence also indicated 

Marta and James Sr. failed to provide support and encouragement to the identified sexual 

offenders' participation in treatment. 

¶29 In Sullivan's opinion, neither Marta nor James Sr.'s therapy proved successful as he 

saw no improvement in their parenting skills or ability to protect the children. Sullivan 

testified that from November 1998 until his last meeting with the family, he saw no 

improvement which would cause him to pause in recommending termination of parental 

rights. Cathy Cardneaux, a licensed clinical professional counselor, and social worker Nita 

Weyler corroborated Sullivan's testimony regarding Marta and James Sr.'s lack of 

improvement.

¶30 While the record indicates Marta and James Sr. did comply with some obligations of 

the treatment plans, partial compliance with a treatment plan is an insufficient basis on 

which to premise error in the District Court's finding that Marta and James Sr. failed to 

comply with their treatment plans. See In re A.N., 2000 MT 35, ¶ 45, 298 Mont. 237, ¶ 45, 

995 P.2d 427, ¶ 45. The record before us contains substantial evidence supporting the 

District Court's finding that Marta and James Sr. failed to successfully complete the 

obligations of their treatment plans. Therefore, we conclude that the District Court's 

finding that Marta and James Sr. failed to successfully complete their treatment plans is 

not clearly erroneous.

C. Conduct Unlikely to Change Within a Reasonable Time

¶31 In determining whether the conduct or condition rendering a parent unfit is unlikely to 

change within a reasonable time, a trial court must find that continuation of the parentchild 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. § 41-3-609(2), MCA. Here, the District Court found that Marta 

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and James Sr. were unable to improve their conduct or condition that renders them unfit, 

unable or unwilling to give the children adequate parental care. The District Court 

concluded that this conduct or condition rendering them unfit appears unlikely to change 

within a reasonable time. Marta and James Sr. argue that these findings are clearly 

erroneous. We disagree.

¶32 Our prior case law clearly establishes that the best interests of the child are paramount 

in a termination of parental rights action and take precedence over parental rights. In re J.

W., ¶ 8. In weighing the competing interests, the district court must give primary 

consideration to the physical, mental, and emotional conditions and needs of the child. § 

41-3-609(3), MCA. The trial court should assess a parent's past and present conduct in 

determining whether that parent's conduct is unlikely to change within a reasonable time. 

In re M.A.E., 1999 MT 341, ¶ 37, 297 Mont. 434, ¶ 37, 991 P.2d 972, ¶ 37.

¶33 We review the record to determine whether substantial evidence supports the District 

Court's finding that Marta and James Sr.'s unfit conduct was unlikely to change within a 

reasonable time. Sullivan testified that neither Marta nor James Sr. effectively participated 

in treatment. He based this opinion on the fact that Marta and James Sr. required treatment 

on the same issues at the conclusion of treatment as they did at the treatment's inception. 

Essentially, in Sullivan's opinion, Marta and James Sr. did not progress in their treatment. 

Further, Sullivan stated he did not believe Marta or James Sr. would be capable of 

providing a safe environment for their children in the foreseeable future. He questioned 

their ability to protect young children in their home from sexual abuse.

¶34 Cardneaux agreed with Sullivan's assessment of Marta and James Sr.'s progress. 

Cardneaux also testified that Marta never appreciated the impact of sexual abuse on the 

children. In Cardneaux's opinion, Marta had not changed enough to sufficiently protect her 

children.

¶35 Marlene Johnson, a licensed clinical professional counselor, began working with J.B. 

Jr. in December of 1999. Johnson diagnosed J.B. Jr. with reactive attachment disorder, 

citing J.B. Jr.'s failure to empathize with others, his isolating nature, and narcissistic 

disposition. Johnson testified that J.B. Jr. needs to develop an attachment to a strong, 

healthy adult who provides structure, nurturing, and consistency in his life. Johnson felt 

that Marta and James Sr. showed a lack of motivation and involvement in J.B. Jr.'s 

treatment. She stated that as J.B. Jr. progresses into adolescence without a strong family to 

identify with, his prognosis worsens. Johnson cautioned that, if left alone, J.B. Jr. could 

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develop into what is known as a child without a conscience. Johnson recommended 

termination of parental rights as to J.B. Jr. as soon as possible.

¶36 Finally, N.S. testified at the termination of parental rights hearing. J.B. Jr. did not 

testify. Damon Gannett, the court appointed Guardian Ad Litem, asked N.S. what she 

wanted the District Court to do with respect to her situation. N.S. responded that she 

wanted the District Court to terminate her parents' parental rights so she could find a 

family who will love and care for her for who she is.

¶37 As stated above, the District Court found that Marta and James Sr.'s conduct or 

condition that renders them unfit, unable, or unwilling to give the children adequate 

parental care was unlikely to change within a reasonable time. The foregoing testimony, 

the fact that the children have been in foster care since July 1998, the number of treatment 

plans provided to Marta and James Sr., and the length of time available to Marta and 

James Sr. to comply with the treatment plans provide substantial evidence to support the 

District Court's finding. We conclude that the District Court's finding is not clearly 

erroneous.

¶38 For the aforementioned reasons we hold that the District Court's findings of fact 

regarding the termination of Marta and James Sr.'s parental rights to N.S. and J.B. Jr. were 

not clearly erroneous. Therefore, the District Court did not abuse its discretion in 

terminating Marta and James Sr.'s parental rights.

ISSUE TWO

¶39 Did the District Court abuse its discretion in terminating Marta and James Sr.'s 

parental rights when a less restrictive alternative existed?

¶40 Marta and James Sr. contend that, even if we conclude that the District Court's 

findings regarding § 41-3-609, MCA, are not clearly erroneous, the District Court abused 

its discretion because a less restrictive alternative to termination of parental rights existed. 

Marta and James Sr. rely on In re E.W., 1998 MT 135, ¶ 12, 289 Mont. 190, ¶ 12, 959 

P.2d 951, ¶ 12, for the principle that parental rights are a fundamental liberty interest and, 

therefore, the District Court can only restrict these rights to the extent necessary to protect 

the children. See In re J.M.J., ¶ 29. They argue the District Court could have extended 

DPHHS' temporary custody, thus preserving the children's best interests and Marta and 

James Sr.'s fundamental parental rights. DPHHS insists we should not address this issue 

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on appeal as Marta and James Sr. did not raise it before the District Court. Marta and 

James Sr. did not respond to DPHHS' contention.

¶41 As a general rule, we do not consider an issue presented for the first time on appeal 

because it is fundamentally unfair to fault the trial court for failing to rule correctly on an 

issue it was never given the opportunity to consider. In re J.M.J., ¶ 31. Here, the District 

Court did hear evidence regarding the children's best interests. However, Marta and James 

Sr. did not present the argument to the District Court that their parental rights could only 

be restricted to the extent necessary to protect their children. Therefore, we decline to 

address it further.

¶42 Affirmed.

/S/ JIM REGNIER

We Concur:

/S/ KARLA M. GRAY

/S/ W. WILLIAM LEAPHART

/S/ TERRY N. TRIEWEILER

/S/ JIM RICE

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