No. 88-36? 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1989 

IN THE MATTER OF 

A.H., A.H., J.A.H., 

Youths in Need of Care. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis & Clark, 

The Honorab1.e Henry Lnhle, Judqe presidinq. 

COUNSEL OF RECORD: 

For Appellant: 

2. Mayo Ashley, Helena, Montana 

For Respondent: 

Hon. Marc Racicot, Attorney General, Helena, Montana 

Dorothy McCarter, Asst. Atty. General, Helena 

Mike ~c~rath, County ~ttorne~, Helena, Montana 

Carolyn Clemens, Deputy County Atty., Helena 

Randi Hood, Guardian Ad Litem, Helena, Montana 

te 

3 

0 >< c> : : - "; ""' . -. c > I{! Submitted on Briefs: Feh. 3, 19P9 

P 

Clerk 
Mr. Justice R. C. McDonough delivered the Opinion of the 

Court. 

This is an appeal from a ruling of the District Court of 

the First Judicial District, 1,ewi.s and Clark County, 

terminating the mother's parental rights to J.H., a minor, 

and committing T.H. and A.H., minors, to the long-term 

custody of the State. We affirm. 

The mother frames a single issue on appeal: Whether the 

District Court erred in terminating the mother's parental 

rights to J.H. and in granting long-term custody of T.H. and 

A.H. to the State Department of Family Services. 

This action is the latest in a series of dealings 

between the State and the mother, who suffers from emotional 

and psychological disturbances. The mother initially 

relinquished custodv of her four minor children on a 

voluntary basis, and they were placed in foster homes. In 

March of 1986, the State petitioned the District Court for 

temporary custody and protective services. After several 

hearings on the petition, the court issued an order in June 

of 1986, in which it found the children to be "youths in need 

of care" and directed the Lewis and Clark County Department 

of Family Services (Department) to develop a treatment plan. 

The plan developed by the Department was designed to 

reunite the children with the mother, and was divided into 

three phases. The goal of the first phase was: 

To restore [the motherl's mental/emotional health 

and capability to a level sufficient to enable her 

to conduct herself behaviorally in a manner which 

would make it reasonable for mental health and 

child protective service professionals to believe 

her likely to function responsibly in the future as 

an adult, parent and homemaker. 
The goal of the second phase was for the mother to maintain 

the mental and emotional stability established during the 

first phase. The third phase would then attempt to restore 

full custody of the children to the mother. The plan would 

take approximately one year. During that time, the children 

would remain in the custody of the Department. 

The mother was making apparent progress under the first 

two phases, and in the spring of 1987, the process of 

reintegrating the children into the mother's home began. 

However, the children soon exhibited behavioral problems. On 

November 10, 1987, the State filed a petition seeking to to 

terminate the mother's parental rights, or in the 

alternative, for long-term custody of A.H., T.H. and J.H. 

!the fourth child had since reached majority). On November 

20, the State petitioned for temporary investigative 

authority and protective services. The court granted the 

latter petition, provided that the children remained in 

foster care and had no contact with the mother until she had 

completed a psychiatric evaluation. 

A hearing on the State's petition to terminate parental 

rights was held in January of 1988. The court heard evidence 

concerning the state of the mother's mental health, as we1.l 

as the health of the children. In March of 1988, the court 

issued its order terminating the mother's parental rights as 

to J.H., and granting long-term custody of A.H. and T.H. to 

the State. This appeal followed. 

I. Termination of Parental Rights 

In our recent decision, Matter of J.L.S. (Mont. 1988), 

761 P.2d 838, 45 St.Rep. 1842, we outlined the legal 

standards to be applied to this type of case. We noted that 

a parent's right to custody is a fundamental liberty 

interest. The State may petition for termination of parental 

rights, but it must show by clear and convincinq evidence 
that the statutory criteria for such termination have been 

met. J.L.S., 761 P.2d at 840. 

The District Court views the evidence and decides 

whether the State has met that burden. We will not disturb 

the District Court's decision "unless a mistake of law exists 

or the factual findings are not supported by substantial 

credible evidence." J.L.S., 761 P.2d at 840-41 (citing In re 

V.R. (Mont. 1987), 744 P.2d 1248, 44 St.Rep. 1838). 

The termination of parental rights is governed by 5 

41-3-609, MCA. Under this statute, parental rights can be 

terminated only after three requirements are satisfied: (1) 

the children have been adjudicated youths in need of care, 

(2) a court-approved treatment plan has not been complied 

with or has been unsuccessful, and (3) the conduct or 

condition causing the problem cannot be rectified within a 

reasonable time. 

J.H., A.H., and T.H. were adjudicated youths in need of 

care by the District Court's order of June, 1986. That order 

was not appealed, and both sides agree that the first 

requirement under the above statute was therefore met. 

The District Court made a specific finding on the second 

requirement; the court-approved treatment plan had not been 

complied with due to disruption caused by the mother, and it 

was therefore not successful. Counsel for the mother 

disputes this finding on appeal. Counsel argues that 

witnesses who testified about lack of compliance with the 

plan gave inconsistent testimony on some points, and were in 

conflict with testimony given by other witnesses. 

In addition to the mother, nine witnesses testified 

before the District Court. Joe Baumgardner, the Department 

social worker who submitted the treatment plan approved by 

the court, testified about his concerns regarding behavioral 

problems (e. g. , defiance and aggressiveness) that resurfaced 
in the children after each visit with the mother during the 

second phase of the plan. Baumgardner had become worried 

that even if the mother were able to gain some control of her 

own problems, she might not be able to deal with the 

children. He also testified about actions by the mother in 

violation of the plan: her association with known and 

suspected felons (one of whom had been convicted of sexually 

deviant conduct with children) that brought the children into 

contact with these people; her interference with the 

children's schooling; her arrest for assaulting one of the 

children; and other conduct Baumgardner characterized as 

"bizarre," causing him to fear for the safety of the children 

in the mother's home. 

Sandi Ashley, a private therapist who has treated the 

mother and two of the children at various times since 1982, 

testified about the mother's consistent refusal to take 

prescribed medication and her threatening behavior toward 

Ashley and personnel in Ashley's office. Ashley also 

testified about the mother's unpredictable behavior toward 

the children, which had caused them to distrust her, and 

about the children's complaints that the mother was not 

complying with the treatment plan. 

There was also testimony by Dr. George Cloutier, who has 

diagnosed the mother as being a manic depressive in a 

hypomanic stage. Dr. Cloutier also testified about having 

difficulty in getting the mother to take prescribed 

medication and about the mother's difficulty in benefitting 

from therapy. 

The State also presented documentary evidence concerning 

the behavioral problems that Raumgardner had noticed in the 

children, which stemmed from their association with their 

mother. This evidence described behaviors such as 

uncontrolled urination, aggression and threats to burn down a 
foster home. The children continue to exhibit anxiety, 

identity disorders, depression and possible suicidal 

tendencies. Two of the children have been recommended for 

extensive therapy in order to address emotional and 

personality disorders. 

The District Court's finding as to the second statutory 

requirement was supported by substantial credible evidence. 

The record shows that the mother failed to comply with the 

treatment program. The continuing problems exhibited by the 

mother and the children are clear evidence that the plan has 

not been successful. 

The court also found that the third requirement was 

satisfied; it was apparent that the conduct or condition 

rendering the mother unfit was unlikely to change within a 

reasonable time. The court made a specific finding that 

continuation of the parent-child Legal relationship would 

result in continued abuse or neglect of the children. 

Counsel for the mother also disputes this finding, and 

first points out that Dr. Cloutier testified it would take 

three or four months to correct the mother's condition with 

proper therapy. This, it is argued, is a reasonable time. 

However, Dr. Cloutier testified that the three- or four-month 

period would be a minimum time frame for stabilizing the 

mother. It would then be necessary to assess her situation 

and begin a course of treatment. Dr. Cloutier also 

reiterated the problems encountered in getting the mother to 

take medication. This could lengthen the stabilization 

period significantly. 

The mother's counsel also argues that the District Court 

ignored the statutory considerations to be used in making 

this finding. Section 41-3-609(2), MCA, lists factors to be 

considered before finding that continuation of the 

parent-child relationship would be detrimental. These 
factors include an emotional or mental illness of the parent, 

a history of violent behavior by the parent, and any 

reasonable efforts by protective service agencies that have 

been unable to rehabilitate the parent. 

The evidence discussed above shows these factors to be 

present in this case. The court also noted the mother's 

persistent and perhaps worsening condition, which was evident 

from her behavior at the hearing. The mother showed a lack of 

coherence and control to the point of screaming, pounding her 

fists and defecating in her pants. The District Court's 

finding on the third statutory requirement is supported by 

substantial credible evidence. 

11. Long-Term Custody 

The District Court granted custody of T.H. and A.H. to 

the State until such time as they reach the age of 18, or 

until further order of the court. The court's authority to 

do so was derived from S 41-3-406, MCA. Under this statute, 

once a youth is found to be abused, neglected or dependent, 

custody of that youth can be transferred to the State. F7e 

will not overturn such a ruling absent a clear showing of 

abuse of discretion. In re Moyer (1977), 173 Mont. 208, 567 

P.2d 47. Given the unfortunate circumstances resulting from 

the mother's emotional and psychological difficulties, it is 

clear that granting custody of these two youths to the 

Department was not an abuse of discretion. 

The District Court applied the correct law to the facts 

before it, and its findings of fact are supported by 

substantial credible evidence. We therefore affirm the 

court's order. 

Justice 

/+ 
We Concur: D