No. 83-428 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1984 

IN MATTER OF DECLARING 

C.L.R., Youth in Need of Care. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable Janes B. Wheelis, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Ferguson & Mitchell, Paulette C. Ferguson, 

Missoula, Montana 

f.Iartha E. McClain argued for Appellant, 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, 

Pion tana 

Robert Terrazas argued, Deputy County Attorney, 

Missoula, Montana 

Morales, Volinkaty & Harr; James P. 0,'Brien argued 

for the Youth, Missoula, Montana 

- -- - 

Submitted: April 19, 1984 

Decided: July 31, 1984 

- -- 

Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of 

the Court. 

William R. Sigler appeals an order issued by the 

Fourth Judicial District Court, 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 1981 until February 1982, Kathy Wilkinson 

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 guilty of deliberate homicide for the child's death. 

The court found him to be 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 she was pregnant. On October 25, 1982, Wilkinson 

gave birth to C.L.R.; Sigler was the natural father. At the 

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 court granted temporary custody of 

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 at which both parents 

stipulated that C.L.R. was a Youth in Need of Care. At the 

hearing the State presented its treatment plans for 

improving the parties1 parenting skills and to assure the 
proper care and treatment of C.L.R. Testimony revealed that 

it would be impossible for Sigler to properly parent C.L.R. 

due to his violent nature and the fact he will remain in 

prison for at least the next eighteen years. Following the 

hearing, the court amended the petition, pursuant to section 

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 the District Court err in terminating Sigler's 

parental rights with 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 first contends that the trial court erred in 

terminating his parental rights by failing to properly 

follow the requirements as set forth in section 41-3-609(1), 

MCA. The pertinent part of that section reads: 

"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), 

as follows, exist: 

"(c) 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." 

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 to be set aside for further 

proceedings. We disagree. 

The Montana Legislature derived the Parent-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 the best interest of the child. . . " 

(Emphasis added. ) 

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 trial court 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, it would 

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 of M.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 treatment plan. 

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 

inflicted on Paul Wilkinson, 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 

assert any interest in this child. 

"52. Respondent Sigler has a history of 

violent behavior. 

"53 Respondent Sigler is under a 

long-term confinement (60 years) in the 

State Prison for deliberate homicide. 

"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 is unlikely to change. 

"56. It is in the best interest of the 

child to terminate 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 Sigler were ever allowed to 

care for the child, this court orders, 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 first establishing a 

treatment plan unless a showing of facts clearly proves the 

impossibility of any workable plan. 

We next turn to appellant's last issue, that the court 
erred by denying his motion for a stay in the proceedings. 

Sigler contends that in order to testify at his termination 

of parental rights hearing, he would jeopardize his Fifth 

Amendment rights to remain silent. He contends the State 

compelled him to testify because if he failed to testify, he 

risked the loss of his parental 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 to testify. 

The key to this rests with determining if appellant is 

compelled to testify or merely required to make tactical 

decisions regarding the defense of his position. 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 to testify. 

The Family Court in Matter of Roman (Fam.Ct.Ono.Co. 

1978), 94 Misc.2d 796, 405 N.Y.S.2d 899 dealt with 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 felt no 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." 405 N.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 testify hinged 

upon a tactical decision and not penalty of certain loss of 

parental rights, as he asserted. We therefore hold that the 

court acted properly in not staying the proceedings until 

appellant's criminal proceedings were terminated. 

We affirm the District Court. 

We concur: V 
Justices 
Mr. Justice Fred 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 treatment plan had not 

been complied with by William R. Sigler before 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 the majority 

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 continuation of the parent-child legal 

relationshi~ will result in continued abuse or 

neglect or ;hat the conduct or the condition of the 

parents renders the parents unfit, unable, or 

unwilling to give the child adequate parental care. 

In making such determinations, the court shall 

consider but is not 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-ordered long-term confinement of the parent; 

" (f) the injury or death of a sibling due to 

proven parental abuse or neglect; 

" (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-term confinement (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 

respondent Sigler, the District Court stated: 

"There is absolutely no sense in putting Russell 

Sigler into a training program when 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 child may obtain the protection of 

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 District Court. 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 treatment plan is appropriate under the facts of the 

case, the court still must order some type of a treatment 

plan in order to meet a. technical requirement of 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 

treatment plan appropriate for him. At that point, I believe 

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 

shall give primary consideration to the physical, mental, and 

emotional conditions and needs of the child." 

It is essential that we weigh very carefully all of the 

facts and the law before terminating a parent's rights as was 

done in this case. The statutory requirements which meet 

these standards were carefully considered and followed by the 
Mr. Justice Da.nie1 J. Shea, dissenting: 

The statute, section 41-3-609 (1) , MCA, is clear, and it 

is mandatory. A "treatment plan" 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's parental rights could not be terminated. 

Here the State has failed to submit any treatment plan, 

and yet this Court has sanctioned the termination of parental 

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. The Court's perceived expediency problem, caused by 

the nonmandatory 60-year prison sentence, should not he the 

legal basis for ignoring a mandatory statutory requirement 

aimed at fortifying parental 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 

sentence to defendant. But because the trial court chose, in 

its infinite discretion, to impose a long sentence, I fail to 

see how a trial court could then use that discretionary act 

as the basis for its decision to ignore the statute requiring 

the State to set up a treatment plan for the defendant. Yet 

that is precisely what the trial court has done and that is 

precisely what the majority opinion has approved. 

Defendant has been deprived of his parental rights 

because he did not plea bargain with the State, and now must 
face the consequences of that failure--a 60-year prison 

sentence. 

By contrast, a codefendant in the 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 State had agreed on (see State v. 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 in prison, is now on parole, and the State, of course, 

submitted a "treatment plan" for the mother which permits her 

to maintain her parental relationship. 

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.