No. 88-36?

IN THE SUPREME COURT OF THE STATEOF MONTANA
1989

IN THEMATTER OF A.H., A.H., J.A.H., Youths inNeed of Care.

APPEAL FROM: District Court of the FirstJudicial District, In and for the County of Lewis & Clark, TheHonorab1.e Henry Lnhle,Judqepresidinq.

COUNSELOF RECORD:
ForAppellant:

2. Mayo Ashley, Helena,Montana
For Respondent:
Hon. Marc Racicot,Attorney General, Helena,Montana DorothyMcCarter,Asst. Atty. General, Helena Mike ~c~rath, County~ttorne~, Helena, Montana Carolyn Clemens, Deputy County Atty., Helena Randi Hood, GuardianAd Litem,Helena,Montanate 3 0 ><c> :: 

### - ";""'

. -. c > I{! Submitted onBriefs: Feh. 3,19P9



### P Clerk

### Mr. Justice 

### R. C. 

### McDonough delivered the Opinion of the Court.

This is an appeal from a rulingof 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 StateDepartment 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 tobe "youthsinneed of care" and directed the Lewis and Clark County Department of Family Services (Department)to develop a treatmentplan. The plan developed by the Department was designed to reunite the children with the mother, and was divided into threephases. The goalof the first phasewas:
To restore [themotherl'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 soonexhibited 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 themother until she had completeda psychiatric evaluation. A hearing on the State'spetition to terminateparental rightswas held inJanuaryof 1988. The courtheard 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 themother'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 ParentalRights 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 fortermination ofparental rights, but it must show by clear and convincinq evidencethat 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 theDistrict Court's decision "unlessamistake 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), 744P.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 reasonabletime. J.H., A.H., and T.H. were adjudicated youths in need of

careby theDistrictCourt's order of June, 1986. Thatorder

was not appealed, and both sides agree that the first requirementunder the above statutewas thereforemet. TheDistrict Courtmade a specific findingon the second requirement; the court-approved treatment plan had not been complied with due to disruption caused by themother, 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 somepoints, and were in conflict with testimony givenby otherwitnesses. 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 themother were able to gain somecontrol ofher
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 (oneof whom had been convicted of sexually deviant conduct with children) thatbrought 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,"causinghim to fear for the safetyof the children in themother'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 treatmentplan. There was also testimonyby 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 alsopresented 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 toburn 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 treatmentprogram. The continuing problems exhibited by the mother and the children are clear evidence that theplan has notbeen 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 orneglect 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 themother'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. Themother's counsel alsoargues 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. Thesefactors include an emotionalormental illnessof theparent,
a history of violent behavior by the parent, and any reasonable efforts by protective service agencies that have been unable to rehabilitatetheparent. 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,whichwas evident fromher behavior at the hearing. The mother showed a lack of coherenceand control to thepoint of screaming,pounding her fists and defecating in her pants. The District Court's finding on the third statutory requirement is supported by substantialcredible 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 sowas 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), 173Mont. 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 ofdiscretion. 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