No. 83-428 INTHE SUPREME COURT OF THE STATE OF MONTANA 1984

INMATTER OF DECLARING C.L.R., Youth inNeed of Care.

APPEAL FROM: DistrictCourt of the Fourth JudicialDistrict, Inand for the County of Missoula, The Honorable Janes B. Wheelis, Judge presiding.

COUNSEL OF RECORD:

For Appellant: Ferguson & Mitchell, PauletteC. Ferguson, Missoula, Montana f.IarthaE. McClain argued forAppellant, Missoula, Montana For Respondent: Bon. Mike Greely, Attorney General, Helena, Montana Robert F.W. Smith argued, Asst. Atty. General, Helena Robert L. Deschamps, 111, County Attorney, Missoula, Piontana Robert Terrazas argued, Deputy County Attorney, Missoula, Montana Morales, Volinkaty & Harr; James P. 0,'Brien argued for theYouth, Missoula, Montana

- -- - Submitted: April 19, 1984 Decided: July 31, 1984

- -- ClerkMr. Justice John Conway Harrison delivered the Opinion of the Court.

William R. Sigler appeals an order issued by the Fourth JudicialDistrictCourt, Missoula County, terminating his parental rights of C.L.R. Be also appeals from the denial of his motion for a stay in the proceedings. We affirm. From October 1981until February 1982, KathyWilkinson and William Russell Sigler lived together with Wilkinsonls

son in East Missoula, Montana. On February 23, 1982, Paul Wilkinson, Jr. died as a result of internal injuries sustained from being struck in the abdomen. Wilkinson pled guilty to negligent homicide for said death. A jury found Sigler guiltyof deliberate homicide for the child's death. The court found him tobe a dangerous offender and gave him

a sixty year sentence. See State v. Sigler (Mont. 1984), P.2d 

## , 41 St.Rep. 1039.

At the time of the arrest of the parties, Wilkinson discovered shewas pregnant. On October 25, 1982, Wilkinson gave birth toC.L.R.; Sigler was the natural father. Atthe time of the birth, both Sigler and Wilkinson were incarcerated. On October 25, 1982, the State filed a petition for temporary investigative authority and protective services. The courtgranted temporary custodyof C.L.R. to the State. On April 14, 1983, the State filed a petition for temporary custody of C.L.R. The trial court held a hearing atwhich both parents stipulated that C.L.R. was a Youth inNeed of Care. Atthe hearing the State presented its treatment plans for improving the parties1 parenting skills and to assure theproper care and treatment of C.L.R. Testimony revealed that it would be impossible for Sigler toproperly parent C.L.R. due to his violent nature and the fact he will remain in prison for atleast the next eighteen years. Following the hearing, thecourtamended thepetition, pursuant tosection 41-3-401(11), MCA, and terminated Sigler's parental rights. The court concluded that no treatment plan wa.s feasible for Sigler. Therefore, the child's best interests dictated termination of the parental relationship. The court accepted the plan for Wilkinson but stated if she failed to properly perform said plan, her parental rights would also be terminated. Appellant raises the following issues: (1)Did theDistrictCourt err interminating Sigler's parental rightswith C.L.R.? (2) Did the District Court err in denying Sigler's motion for a stay of proceeding until the pending criminal appeal terminated? Appellant firstcontends thatthetrialcourterred in terminating his parental rights by failing to properly follow therequirements asset forthinsection41-3-609(1), MCA. The pertinentpartof that sectionreads: "Criteria for termination. (1)The court may order a termination of the parent-child legal relati'onship upon a finding that the circumstances contained in subsection (l)(a),(l)(b),or (l)(c), asfollows, exist:

"(c)thechild 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 hasnot been successful; and "(ii) the conduct or condition of the parents rendering them unfit is unlikely tochangewithin a reasonable time." Appellant argues that this language requires establishing a treatment plan prior to termination of parental rights. In the instant case, the court terminated parental rights without first establishing the necessary plan. The failure to follow the procedural requirements constitutes error and requires the trial court's order tobe set aside for further proceedings. Wedisagree. The Montana Legislaturederived theParent-Chi1.d Legal Relationship Termination Act of 1981, by-and-large from section 19-4-101 et seq., Colo. Rev. Stat. (1973). These statutes establish the necessary procedures for termination of the parental right. The act sets forth its purpose in section 41-3-602, MCA: "41-3-602. Purpose. This part provides procedures and criteria by which the parent-child legal relationship may be terminated by a court if the relationship is not in thebest interestof thechild. 

# . ." (Emphasisadded.) Appellant argues that the act specifically requires establishment of a treatment plan prior to termination. He cites several Colorado cases for support. In People in Interest of M.C.C. (Colo. 1982), 641 P.2d 306, the Colorado Court of Appeals held that the single fact that the parent

was incarcerated does not, per 

### se, prohibit the creation and implementation of a treatment plan. That court, remanded the case for further proceedings. The trialcourt failed to establish a treatment plan prior to termination of parental rights. The father was incarcerated at the time of the

### court action and insufficient findings existed to determine if his criminal activities and incarceration made him unavailable for the establishing of an appropriate treatment plan. The Colorado Supreme Court stated in People in Interest of C.A.K. (Colo. 1982), 652 P.2d 603, 611: "[A] treatment plan must be approved by the court prior to any termination of parental rights

# ..

# . In many cases, itwould be impossible to devise a plan, under which success could be guaranteed.

### " This is a case of first impression in the State of Montana. All of the Colorado cases except People 

### in Interest of M.C.C., involve cases where the Court established treatment plans. The court reversed People in Interest ofM.C.C., not specifically because of the failure to establish a treatment plan, but because the trial court failed to make sufficient findings to support its conclusion that no appropriate treatment plan could be established. However, the line of Colorado cases suggested a 

### treatment plan must be established prior to termination. No cases exist as in the instant case where the facts clearly show the impossibility of establishment of even a marginally successful treatmentplan. The trial court set forth extensive findings and conclusions to support its order to terminate the parental rights of the appellant. Those findings included a graphic description of appellant's brutal abuse of C.L.R.'s half brother Paul Wilkinson, Jr., that lead to his death. The court concluded its findings as follows:"49. The seriousness of the abuse inflictedon PaulWilkinson, Jr. by

# . . . Sigler demonstrates the hopelessness of any type of treatment plan. "50. Respondent Sigler's brutally violent treatment of Paul Wilkinson, Jr., creates an impermissible risk to the safety and well-being of C.L.R. "51. Respondent Sigler's actions have caused the foreclosure of his rights to assertany interest inthischild. "52. Respondent Siglerhas a historyof violentbehavior. "53 Respondent Sigler is under a long-term confinement (60 years) in the StatePrison for deliberatehomicide. "54. Respondent Sigler caused the death of the [half] brother of C.L.R. "55. The conduct and condition of

# . . . Sigler rendering him abuse [sic] and neglectful 

### isunlikelytochange. "56. It is in the best interest of the child toterminate the parent-child legal relationship between Respondent 

# . . 

# . Sigler and C.L.R.

"Having found that the child would not receive even minimally satisfactory care and would be exposed to extremely high chances of neglect, abuse, and even death if Respondent Siglerwere ever allowed to care for the child, thiscourtorders, in accordance with section 41-3-609 Mont. Code Ann., that the parent-child legal relationship between William Russell Sigler and C.L.R. is terminated." The trial court acted properly in termination of the parental rights of appellant, Sigler. However, we sound a stern warning that this Court will not permit the termination of parental rights without firstestablishing a treatment plan unless a showing of facts clearlyproves the impossibilityof anyworkable plan. We next turn toappellant's lastissue, that thecourterred by denying his motion for a stay in the proceedings. Sigler contends that in order to testify athis termination of parental rights hearing, he would jeopardize his Fifth Amendment rights to remain silent. He contends the State compelled him totestifybecause if he failed totestify, he risked the lossof hisparental rights. Appellant set forth several cases where a violation of the Fifth Amendment occurred due to compelled testimony. The Fifth Amendment protects persons against testifying against themselves. This protection covers not only criminal proceedings but also other proceedings where compelled testimony could lead to future prosecution. Lefkowitz v. Turley (1973), 414 U.S. 70, 94 S.Ct. 316, 38 L.Ed.2d 274. We fail to find the State compelled appellant totestify. The key tothisrestswith determining if appellant is compelled to testify or merely required to make tactical decisions regarding the defense of hisposition. The cases cited by appellant clearly illustrate instances where had the defendant failed to testify at a proceeding, he would have suffered certain substantial loss as a result of that failure totestify. The Family Court in Matter of Roman (Fam.Ct.Ono.Co. 1978), 94 Misc.2d 796, 405 N.Y.S.2d 899 dealtwith a similar issue. That court reasoned that if a person could remain silent "unless he chooses to speak in an unfettered exercise of his own will" then no violation of the Fifth Amendment

occurs. This case involved an action by the State of New York to establish that the child suffered abuse and/or neglect at the hands of the child's mother and her live-in boyfriend. The court held that these proceedings failed to

### infringe upon his Fifth Amendment rights even though testimony at the proceeding could be used for criminal child abuse charges. The court feltno compulsion occurred. "This is not a situation where a failure to testify will cause a penalty to be exacted. See Lefkowitz v. Turley, 414 U.S. 

### 70, 94 S.Ct. 316, 38 L.Ed.2d 274

(1973). Rather, as in a criminal case, the decision to testify or not in the presentation of a defense remains in the unfettered discretion of the Respondent. The decision is a tactical, not 

### a compelled one. A defense to the allegations may be established by alternative methods which do not require the Respondent's testimony." 405N.Y.S.2d 

### at 904. We 

### find in the instant case, that appellant suffered

no compulsion to testify, therefore no violation of the Fifth Amendment occurred. Appellant clearly could remain silent if he so desired without fear of certain penalty for not testifying. Appellant's determination to testifyhinged upon a tactical decision and not penalty of certain loss of parental rights, as he asserted. We thereforehold that the court acted properly in not staying the proceedings until appellant's criminal proceedings were terminated. We affirm the DistrictCourt.

We 

### concur: 

# V

### Justices

### Mr. JusticeFred J. 

### Weber specially concurs as 

### foll-ows: I 

### concur in affirming the District Court's order terminating the parental rights of William R. 

### Sigler. At first reading, section 41-3-609(l)(c)(i), MCA appears to require a finding that an appropriate treatmentplan had not been complied with by William R. 

### Siglerbefore the court had the authority to order a termination of the parent-child legal relationship. I have concluded that the Parent-Child Legal Relationship Termination Act of 1981,sections 41-3-601 to -612,MCA,does not require that conclusion. In this case the District Court made a careful study and review of the facts and the law. In addition to the portion of section 41-3-609(1), MCA which is quoted in themajority opinion, the District Court also specifically considered the remaining portion of that section which in pertinent part states: "(2) 

### In determining whether the conduct or condition of the parents is unlikely to change within a reasonable time, the court must enter a finding that continuationof the parent-child legal relationshi~will result in continued abuse or neglector ;hat the conduct or the conditionof the parents renders the parents unfit, unable, or unwilling to give the child adequateparental care. In making such determinations, the court shall considerbut isnot limited to the following: 

### "(a) 

### emotional illness,mental illness 

# . . . of the parent of such duration or nature as to render the parent unlikely to care for the ongoing physical,mental, and emotional needs of the child II 

# ... "(b) a history of violent behavior by the parent;



### "(e) present judicial-ly-orderedlong-term confinement of theparent; 

### "(f) the injury or death of a sibling due to proven parental abuse orneglect;



### "(3) In considering any of the factors in subsection (2) in terminating the parent-child

### relationship, the court shall give primary consideration to the physical, mental, and emotional conditions and needs of the child

# ..

# ." The District Court concluded as follows: "The findings of fact in this case clearly establish that the conduct and condition of respondent Sigler rendering him unfit is unlikely to change within a reasonable time. He has a history of violent behavior; he is under a long-termconfinement (60

### years); and he caused the death of the child's brother by beatings and abuse.

### " With regard to the treatment plan itself on the part of respondentSigler,the District Court stated: "There is absolutely no sense in putting Russell Sigler into a training programwhen the chances for success are miniscule and the costs of failure are so high. Respondent's a.ctions have caused the foreclosure of his right to assert any interest in this child. A parent does not have the privilege of 

### inflicting brutal treatment upon his or her child before the childmay obtain the protectionof the State. Matter of T.Y.R., 598 P.2d 593, 595

(Mont. 1979); In re Miller, 242 P.2d 1060 (Wash. 1952)

# ."

As appears from the quoted findings in the majority opinion, the District Court did enter sufficient findings showing that continuation of the parent-child relationship would likely result in continued abuse or neglect and that the condition of the respondent renders him unfit and unable to give the child adequate parental care. In reaching this conclusion, the court properly considered the requirements of section 41-3-609(2) & 

### (3),MCA. In substance, section 41-3-609(1)(c)(i)

## ,MCA authorized the court to terminate the parent-child legal relationship when the parents have failed to comply with an appropriate plan which has been approved by the DistrictCourt. In this instance the District Court had specifically found that the condition of respondent Sigler was such that the ~istrict Court cannot and could not approve a treatment plan as appropriate for Sigler. Our question then becomes whether,

### where no treatmentplan is appropriate under 

### the facts of 

### the case, the court still must order some type of a treatment plan in order tomeet a.

### technical requirementof the statute. Here the District Court made findings of fact pursuant to the statutes and reached the conclusion that Sigler's condition was such that the court could not approve any treatmentplan appropriate forhim. At thatpoint, Ibelieve the initial test under subsection (i)of 41-3-609(1)(c)

### ,MCA had been met. The District Court further concluded that the conduct or condition rendering Sigler unfit is unlikely to change within a reasonable time, thereby satisfying subsection (ii)of 41-3-609(1)(c)

## ,MCA. I 

### conclude that the statutory tests have been met so that the District Court had the power to order the termination of the parent-child legal relationship without the technical step of first requiring a treatment plan for and compliance by Sigler. This gives particular meaning to the latter portion of the statute which states, "The court shallgiveprimary considerationto the physical,mental,and emotional conditionsand needs of the child." It is essential thatwe weigh very carefully all of the facts and the lawbefore terminating aparent's rights aswas done in this case. The statutory requirements which meet these standards were carefully considered and followedby the

### Mr. JusticeDa.nie1J. 

### Shea,dissenting:

The statute, section 41-3-609(1)

## ,MCA, is clear,and it is mandatory. A 

### "treatmentplan" must be submitted for the defendant in this circumstance, and absent this treatment plan, and a failure to comply with the treatment plan, the defendant'sparental rights couldnotbe terminated. Here the State has failed to submit any treatment plan, and yet this Courthas sanctioned the termination ofparental rights. That this Court has the power to ignore this mandatory statute is evidenced by the majority opinion in this case. But whether this Court has the properly constituted legal authority to ignore mandatory statutes, is yet another question, and one not answered by the majority opinion. TheCourt'sperceived expediencyproblem, causedby the nonmandatory 60-year prison sentence, should not he the legal basis for ignoring a mandatory statutory requirement aimed at fortifyingparental rights. Defendant has been victimized by the judiciary. The 60-year sentence imposed, although lawful.,was not mandated by statute. The trial court could have given a shorter sentenceto defendant. Butbecause the trial court chose, in its infinitediscretion, to impose a long sentence, I fail to see how a trial court could then use that discretionary act as thebasis for its decision to ignore the statute requiring the State to set up a treatmentplan for the defendant. Yet that is precisely what the trial court has done and that is preciselywhat the majority opinionhas approved. Defendant has been deprived of his parental rights because he did not plea bargain with the State,and nowmustface the consequences of that failure--a 60-year prison sentence. By contrast, a codefendant inthe criminal case, and the mother of the child involved in this case, secured her chances for a continuing parental rela.tionship by plea bargaining with the State to testify against the defendant. In helping secure the defendant's conviction, the mother, although she did not receive the precise plea bargain that the Statehad agreed on (seeStatev. Wilkinson (Mont. 1984), 679 P.2d 767, 41 St.Rep. 456), by the light sentence received, secured her rights to maintain her parental rel-ationship with the child. The mother served only a few months inprison, isnow on parole, and the State, of course, submitted a "treatment plan" forthemother which permitsher tomaintain herparentalrelationship. I would reverse the trial court's decision and hold as section 41-3-609 (1) 

## , MCA, requires, that a treatment plan must be provided for the defendant. Neither the District Court nor this Court has the right to deprive defendant of his parental rights before a treatment plan has even been submitted and adopted.