No. 88-237 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

IN THE MATTER OF DECLARING 

T.M.M., a Youth in Need of Care. 

APPEAL FROM: District Court of the Nineteenth Judicial District, 

In and for the County of Lincoln, 

The Honorable E. Gardner Brownlee, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

L. Charles Evans, Libby, Montana 

For Respondent: 

Mike Greely, Attorney General, Helena, Montana 

Betsy Brandborg, Asst. Atty. General, Helena 

Susan Loehn, County Attorney, Libby, Montana 

tCi) Submitted on Briefs: Aug. 26, 1988 

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Mr. Justice L. C. Gulbrandson delivered the Opinion of the 

Court. 

The father of T.M.M. appeals from an order of the 

Nineteenth Judicial District, Lincoln County, terminating his 

parental rights to T.M.M. and granting the Lincoln County 

Office of Human Services (LCOHS) the authority to assent to 

adoption. We affirm. 

Appellant raises the following issues on appeal: 

1. Whether substantial credible evidence exists to 

support the District Court's determination that: 

a. the father failed to comply with the 

court authorized treatment plan; 

h. the conditions rendering the father 

unfit were unlikely to change within a 

reasonable period of time; and 

c. the Lincoln County Offlce of Human 

Services made reasonahle efforts to 

rehabilitate the father. 

2. Whether the court erred by failing to find that 

continuation of the parent-child legal relationship would 

likely result in continued abuse or neglect. 

3. Whether the District Court erroneously denied the 

father's February 1, 1988 motion for a continuance. 

4. Whether any manifest bias by the District Court 

judge deprived the father of his constitutional right to a 

fair trial. 

T.M.M. is the youngest of four children born to R.M. 

(father) and N.M. (mother). T.M.M. was two and a half years 

of age when her parents separated in December of 1984; her 

parents divorced in June of 1985. She lived with her mother 

until May of 1985, when her mother left her in the custody of 

her father. IJntil December 6, 1985, she remained in the care 
of her father and S.F., a moderately retarded woman unable to 

provide any parental care, but with whom the father began 

living in September of 1985. LCOHS placed all four children 

in protective foster care on December 6, 1985, after 

complaints of physical abuse by the boys and concerns about 

the neglect of T.M.M.; she did not have her own bed, she 

frequently wore and slept in the same clothes for days at a 

time, and she received care primarily from an older brother. 

An initial treatment plan, agreed upon and signed by 

the father, was in effect from December 20, 1985 until 

February 20, 1986. This treatment plan, establishing minimum 

goals for the father to meet prior to the return of any of 

his children, was not successfully completed. 

Additionally, an evaluation of T .M.M.. conducted b>7 

pediatric psychologist Jacelyn Wedell-Monnig on April 17 and 

18, 1986, revealed that T.M.M. suffered from Child 

Maltreatment Syndrome as a result of sexual abuse received at 

the hands of her father. T.M.M. stated that she often 

received a sucker after performing sexual acts with her 

father. Further, T.M.M. displayed inappropriate behavior in 

a child her age. She displayed an excessive interest in 

other children's bodies while fearing exposure of her own; 

she would stiffen her legs when her foster parents attempted 

to diaper her for the night. When playing with anatomically 

correct dolls, she spent an inordinate amount of time 

handling the male doll and placing the male doll on top of 

the female doll. She was observed repeatedly placing the 

male doll, which she called "Daddy doll," on the floor and 

then sitting on its penis. Given these clear indications of 

sexual abuse, Dr. Wedell-Monnig recommended that the father 

have no further contact with his daughter. 
LCOHS filed a petition for temporary legal custody of 

all four children on May 12, 1986 because of lack of any 

progress by the father and because of evidence of the sexual 

abuse of T.M.M. The District Court granted temporary legal 

custody of all four children to LCOHS on July 18, 1986, 

following a hearing on June 2, 1986. The father subsequently 

was denied any visitation rights with T.M.M. The court also 

approved a new treatment plan for each parent. The treatment 

plan for the father required him to seek and complete a 

minimum of twelve counseling sessions with a therapist 

approved by LCOHS, to make and keep regular appointments with 

a social worker, to attend parenting classes, and to stop 

degrading his children's interest in their learning 

achievements. 

Beverly Miller, a social worker assigned to the case, 

reported that the father failed to successfully complete this 

court approved treatment plan. He failed to obtain any 

counseling after the Lincoln County Mental Health Center 

(Center) refused him further counseling. Psychologist Dr. 

Miller stated that the Center denied the father further 

coun~eling because the previous nine years of family 

counseling were unproductive. The father also demonstrated 

no interest in working with LCOHS to effect any real changes, 

and he failed to keep in touch with a social worker following 

his move to Great Falls in the fall of 1987. Additionally, 

he continued to deny any responsibilty for the problems 

leading to the placement of his children in foster care, 

instead telling the boys during visitations that their foster 

care placement was their fault. This denial is consistent 

with psychological evaluations conducted by Dr. Meyers. Dr. 

Meyers diagnosed the father as suffering from an intermittent 
explosive disorder, with other personality disorders, causing 

the father to deal with problems by repression and denial. 

The failure of this court approved treatment plan led 

LCOHS, on February 23, 1987, to petition the court for 

temporary legal custody of all the children until age 

eighteen. A letter written by guardian ad litem Terrie Noser 

on April 7, 1987, stated that an award of custody to LCOHS 

would be in the best interests of the children. The father 

opposed the enrollment of T.M.M. in a preschool program 

despite an evaluation indicating that she had a speech and 

language deficiency. Her foster parents, however, enrolled 

her in a preschool program. Her preschool teacher, Sandra 

Honeychurch, observed a significant growth in T.M.M.'s "motor 

[skills], reasoning, visual perception and expressive 

language" as a result of the preschool program and her 

changed home environment. Consequently, on ~pril 30, 1987, 

Judge Holter found that the best interests of the children, 

all adjudicated youths in need of care, necessitated awarding 

custody to LCOHS until age eighteen. 

On December 2, 1987, LCOHS filed a petition for 

permanent legal custody and termination of parental rights to 

T.M.M., after having located a couple desiring to adopt her. 

The court scheduled a hearing on the motion for January 4, 

1988. On that date, the father appeared without counsel, 

requesting the appointment of counsel. The court denied this 

request, ordered the father to hire an attorney within seven 

days, and then continued the hearing to January 18, 1988. 

The father again appeared without counsel on January 18, 

1988, so the court appointed a public defender and continued 

the hearing to February 8, 1988, warning that no further 

continuances would be qranted. 
On January 21, 1988, the father moved for a continuance 

of the hearing until after he could be evaluated by a 

psychologist with the sexual offender program. Judge 

Brownlee denied this motion after a hearing on February 1, 

1988. The February 8, 1988 termination hearing proceeded as 

scheduled. The District Court issued its findings on March 

3, 1988, granting adoptive custody to LCOHS and terminating 

the father's parental rights to T.M.M. The father thereafter 

filed this appeal. 

The first issue raised upon appeal questions the 

sufficiency of the evidence to support the District Court's 

termination decision. We have held on numerous occasions 

that the State must prove by clear and convincing evidence 

that all statutory termination criteria have been met before 

a court may terminate parental rights. E.g., In re R.B., Jr. 

(Mont. 1985), 703 P.2d 846, 42 St.Rep. 1055; In re J.L.R. 

(1979), 182 Mont. 100, 594 P.2d 1127. The statutory 

requirements relevant to this case which must be fulfilled 

prior to termination are found in S 41-3-609 (1) (c) and (2) , 

MCA . These sections state that a court may terminate 

parental rights after adjudicating the youth in need of care 

and after finding that: 

(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 

. . . [; and] 

(2) continuation of the parent-child. 

legal 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. 

The district court is in the best position to judge 

whether the State has met its burden of proof and satisfied 

all statutory criteria. Consequently, we will presume that 

the District Court correctly decided to terminate parental. 

rights if substantial credible evidence exists in support of 

its decision. In re V.B. (Mont. 1987), 744 P.2d 1248, 1249, 

44 St.Rep. 1838, 1840; In re C.A.R. fMont. 19841, 693 P.2d 

1214, 1218, 41 St.Rep. 2395, 2398-99. 

Neither parent contested Judge Holter's April 30, 1987 

adjudication that all the children, including T.M.M., were 

youths in need of care. The father similarly does not 

contest Judge Brownlee's determination that T.M.M. is a youth 

in need of care. The father does, however, challenge the 

court's finding that the treatment plan was unsuccessful. 

The court approved treatment plan of July 18, 1986, required 

the father to seek and complete a minimum of twelve 

counseling sessions. The evidence clearly indicates that the 

father did not complete such counseling, though apparently he 

made a few attempts to obtain counseling. This fact alone 

amounts to substantial evidence demonstrating that the 

treatment plan was unsuccessful. 

The father also challenges the court's determination 

that the conduct or condition that rendered him unfit was 

unlikely to change within a reasonable time. We find, 

however, that substantial credible evidence supports this 

finding as well. Betty Miller stated that the father 

demonstrated no interest in working with LCOHS. He also 

continued to deny all responsibility for any problems, 

instead placing the blame upon his children. A change in 

conduct or condition within a reasonable time is unlikely 
given such a basic unwillingness to cooperate and accept 

responsibility. 

In addition, Dr. Meyer stated in a letter written May 

7, 1986, that five different therapists in the Center had 

provided intermittent family counseling over a period of 

eight years without any noticeable improvements. For this 

reason, the Center denied the father further counseling. As 

emphasized by Dr. Meyer: 

Neither parent has adequately cared for 

their children in the past, and there 

appears to be very little possibility 

that this situation will change in the 

future. 

Lee Toner, a psychiatric social worker, stated that "it is 

highly unlikely that additional counseling or teaching of 

parenting skills or relationship skills will bring about any 

change" in him. This long history of unproductive counseling 

gives sufficient support to the District Court's 

determination that reasonable efforts at rehabilitation were 

attempted, but unsuccessfull~r. 

The court's determination that reasonable efforts at 

rehabilitation were unsuccessful indicates that the court 

properly considered the factors mandated in S 41-3-609(2) (a) 

through (g), MCA. The court considered other factors which 

rendered the father unfit in addition to the failed 

rehabilitation efforts. The court specifically found that 

the father's sexual conduct toward his daughter and his 

failure to obtain counseling prevented him from being fit to 

provide T.M.M. with adequate parental care. Finding number 5 

states: 

The conditions which render . . . [the 

father] unfit as a parent are unlikely to 

change within a reasonable period of time 

as he continues to denv responsihility 
for the sexual abuse of his daughter . . . and has not successfully entered 

into counseling for his problems. 

This finding satisfies the statutory requirement that a court 

make a finding that the parent's conduct or condition renders 

him unfit to give a child adequate parental care. We 

therefore find the second issue raised upon appeal without 

merit. 

The third issue raised upon appeal is whether the 

District Court erroneously denied the father's motion for a. 

continuance of the hearing until he could obtain a 

psychological evaluation under the sexual offender program. 

A motion to postpone a trial or hearing because of an absence 

of evidence can only be made "upon affidavit showing the 

materiality of the evidence expected to be obtained and that 

due diligence has been used to procure it." Section 

25-4-501, MCA. The language of the statute is mandatory. 

Consequently, this Court has held that no abuse of discretion 

occurs when a court denies a motion for a continuance, for 

purposes of obtaining additional evidence, if no such 

affidavit is filed in support of the motion. In re the 

Marriage of Concepcion (Mont. 1984), 687 P.2d 718, 719, 41 

St.Rep. 1675, 1677; State v. Harvey (1979), 184 Mont. 423, 

431-32, 603 P.2d 661, 666. 

In the instant case, appellant failed to file an 

affidavit showing the materiality of another evaluation and 

showing that he used due diligence in procuring a sexual 

offender psychological evaluation. The District Court thus 

did not abuse its discretion when it denied appellant's 

motion. Further, appellant failed to show good cause to 

support a postponement pursuant to 5 25-4-503, MCA. The 
record of numerous previous continuances merely indicates a 

pattern of unexcused neglect. 

Finding no abuse of discretion in the denial of the 

appellant's motion for a continuance until further 

psychological evaluation, we hold that any bias as to the 

treatability of a sexual offender was harmless. Judge 

Brownlee's opinions did not act to deny appellant his 

constitutional right to a fair trial. 

The judgment of the District Court is aff 

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We concur: /