No. 91-303 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1992 

IN THE MATTER OF 

DECLARING J.R. AND S.D., 

Youths in Need of Care. 

APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, 

The Honorable Roy Rodieghiero, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Jeannette Ellen Berry, Bozeman, Montana 

For Respondent: 

Hon. Marc Racicot, Attorney General; Paul Johnson, 

Assistant Attorney General, Helena, Montana 

A. Michael Salvagni, County Attorney; Marty Lambert, 

Deputy County Attorney, Bozeman, Montana 

Mark Bryan; Bryan & Atkins, Bozeman, Montana 

Susan B. Swimley, Guardian Ad Litem, Belgrade, 

Montana. 

B Submitted on Briefs: February 6, 1992 

i ecided: June 11, 1992 

JUN 11 1992 

SEid 

.i CLERK OF SUPREirlE COURT. 

STATE OF IVIOI'ITW 

cierk 
Justice Terry N. Trieweiler delivered the opinion of the Court. 

This is an appeal from the judgment of the District Court of 

the ~ighteenth Judicial District in Gallatin County, terminating 

the parental rights of the natural mother. We affirm 

The issues on appeal are whether the mother's treatment plan 

ordered by the District Court was appropriate, and whether the 

termination of her parental rights violated her right to due 

process. 

Appellant is the natural mother of J.R. and S.D., as well as 

two older children. The Montana Department of Family Services 

first had contact with the mother in 1979 after reports of poor 

hygiene, lack of supervision, and physical abuse of the two oldest 

children were brought to the Department's attention. The mother 

subsequently entered into an agreement with the Department to seek 

day care for J.R. and therapy counseling for the two oldest 

children. 

In 1984 and 1985, the family was living in Idaho Falls, Idaho. 

The Idaho Department of Family Services received reports similar to 

those made in Montana. The Idaho DFS intervened, and the two 

oldest children were placed in protective supervision with the 

mother's sister in Bozeman, Montana. Following a divorce in 1986, 

the mother returned with J.R. to the Bozeman area. School 

authorities noted that J.R. evidenced the same lack of hygiene that 

her older siblings had shown. J.R.'s kindergarten teacher 

eventually contacted a social worker, Gloria Edwards, who met with 

J.R. in September 1989, and confirmed her lack of good hygiene. 

2 
Edwards filed a Request for a Petition for Temporary Investigative 

Authority that was not acted upon by the county attorney's office. 

In April 1990, Ms. Edwards was again called to the school to 

see J.R. Edwards gave the following description of J.R.'s 

condition: 

She was absolutely filthy. She had dirt on her arms, her 

hands and her face. And her hair looked all sticky and 

it had things stuck all over it. And I couldn't tell 

what they were. I thought it looked maybe like leaves. 

It was difficult to distinguish. When the other kids 

left, then I had her roll up her long sleeves and her 

arms had caked-on dirt just stuck to her. Her teeth also 

looked really brown and rotting. 

Edwards spoke with the child at length, and J.R. divulged 

information that led Edwards to believe she was being sexually 

molested by a male baby sitter. Edwards decided to invoke 

emergency protective powers and remove J.R. and S.D. from their 

home. A hearing was held, and the District Court ruled that 

removal of the children from the home was appropriate. An 

investigation that had been ongoing since September 1989 resulted 

in the arrest of the suspect on charges of sexual assault of J.R. 

on April 10, 1990. The individual was found guilty in a bench 

trial of sexual assault of J.R. and sentenced to the Montana State 

Prison. The sentence was affirmed by this Court in State v. Davis 

(Mont. 1992) , - P.2d -I 49 St. Rep. 342. 

A hearing on the State's petition for termination of parental 

rights was held on December 17, 18, and 19, 1990. Several State's 

witnesses testified to the lack of success of the court-ordered 

treatment plan and treatment contract. Reasons given in support of 
termination included: the refusal of the mother to admit any 

parenting problems; the lack of concern over the sexual abuse of 

J.R.; the cyclical nature of sexual abuse and physical neglect in 

the family, as evidenced by the two oldest children; the inability 

of the mother to protect the children, given that the grandmother 

of the children was sexually involved with Davis and gave testimony 

in his defense; the lack of normal interaction between the mother 

and children during supervised visits; the continuing health and 

safety problems at the mother's residence; and the great progress 

that J.R. showed both academically and socially since being removed 

from the mother's home. 

The ~istrict Court concluded that the treatment plan had not 

been complied with, and that the situation rendering the mother an 

unfit parent was unlikely to change in the future. The court 

concluded that the mother's professionally diagnosed chronic 

paranoia was of such a nature that it rendered her unlikely to care 

for the ongoing physical, mental, and emotional needs of her 

children. The court, therefore, terminated the parent-child 

relationship between the mother and J.R. and S.D. Custody of J.R. 

was given to the Montana Department of Family Services. Custody of 

S .D. was given to her natural father. The mother appeals from this 

judgment . 

The mother contends that the court-ordered treatment plan was 

inappropriate, resulting in the termination of her parental rights 

without due process of law. 
Section 41-3-609, MCA (1989), sets forth the criteria for 

termination of the parent-child relationship. The statute states 

in part: 

(1) The court may order a termination of the 

parent-child legal relationship upon a finding that the 

circumstances contained in subsection (1) (a), (1) (b) , or 

(1) (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. 

(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 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. In making such determinations, the court shall 

consider but is not limited to the following: 

(a) emotional illness, mental illness, or mental 

deficiency 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 within 

a reasonable time; 

(g) any reasonable efforts by protective service 

agencies that have been unable to rehabilitate the 

parent. 

(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 court shall review and, if necessary, order an 
evaluation of the child's or the parent's physical, 

mental, and emotional conditions. 

The mother contends that the treatment plan implemented in her 

case was not appropriate, as required by § 41-3-609(l) (c) (i), MCA. 

She asserts that the court failed to consider her financial 

situation when it ordered her to undergo a treatment plan. She 

claims that the court's failure resulted in her inability to 

receive proper treatment that would have facilitated the 

preservation of the parent-child relationship as promoted by the 

statute and case law. 

The mother contends that the primary goal of her treatment 

plan was psychological therapy. She states she was ordered by the 

court to pay for her own therapy and was unable to do so because 

she was indigent, dooming the treatment plan to failure. She 

contends that because the treatment plan was a fundamental element 

of the termination procedure, she was denied due process. 

The termination of parental rights invokes fundamental liberty 

interests. Sailtosky v. Krarner (1982), 455 U.S. 745, 102 S. Ct. 1388, 

71 L. Ed. 2d 599. The State bears the burden of proving by clear 

and convincing evidence that all statutory criteria needed to 

terminate parental rights have been met, including the 

appropriateness of the treatment plan. Suittosky, 455 U.S. at 769, 

102 S. Ct. at 1403, 71 L. ~d. 2d at 616; Zit re L.W.K (1989), 236 

Mont. 14, 18, 767 P.2d 1338, 1341. In this case, the treatment 

plan was agreed upon by the mother with the advice of her counsel. 

While that fact should be given consideration it does not by itself 
prove the plan was appropriate. Matter of R.H. (Mont. 1991) , 819 P. 2d 

152, 155, 48 St. Rep. 692, 694. 

The court-ordered treatment plan and contract entered into by 

the mother states that the goal of the agreement is "to assist [the 

mother] in improving her protection and parenting abilities with 

her children . . . ." The return of the children to the mother was 

contingent upon the successful completion of the tasks outlined in 

the contract and the continued evaluation by the Department of 

Family Services and other professionals described in the contract 

regarding the mother's capacity to adequately protect and care for 

her children. Among the specific tasks outlined for the mother 

were: 

1. I agree to contact a psychologist of my choice and 

obtain a psychological evaluation as soon as 

possible. I agree that this evaluation will 

specifically address my ability to understand the 

needs of children and my capacity to make necessary 

changes to adequately protect and care for my 

children. I agree to allow the psychologist access 

to all available background information on my 

parenting difficulties. 

2. I agree to continue weekly mental health counseling 

with a psychologist or licensed professional 

counselor of my choice. I agree to allow 

communication between the counselor and DFS 

representative regarding my progress in making 

necessary changes to understand the needs of my 

children and to adequately protect and care for 

them. 

5. I agree to allow the Gallatin County Health 

Department to make unannounced visits a minimum of 

one time monthly to determine if my living 

conditions are sanitary and suitable for young 

children. Results of each visit will be made 

available to myself and to the DFS representative. 
An evaluation on the mother was performed by Dr. Richard 

Traynham, a licensed clinical psychologist. Relying on standard 

psychometrictests, clinical interviews, and background information 

provided by the DFS, Dr. Traynham concluded that the mother 

suffered from a chronic, entrenched paranoid personality disorder. 

Dr. Traynham discussed the results of his evaluation with the 

mother. His conclusions were that therapy would not be beneficial 

at that time due to the entrenched nature of her paranoid 

personality disorder. He noted that the mother consistently 

refused to admit that she had any problems, making the prognosis 

for change and a beneficial therapeutic relationship poor. 

Consequently, Dr. Traynham supported the termination of the 

motherls parental rights. 

Visits to the mother's home by the Gallatin County Health 

Department officials pursuant to the contract demonstrated an 

environment which was unsuitable for children. An open irrigation 

ditch ran adjacent to the mobile home, garbage and clutter 

surrounded the property, and the home itself had no running water 

and was filthy and cluttered. During one visit, the mother fled 

from the home to avoid the officials and was found waist deep in 

the water, hiding behind a tree. She returned to her home at the 

request of the officials. The mother later moved to another mobile 

home which was in an adult's only section of the park. When asked 

by the manager if she intended to bring her children to live with 

her, she responded that she intended to leave the state upon 

reobtaining custody of the children. 
There was substantial testimony regarding the failure of the 

court-ordered treatment plan. The stated goal of the plan was to 

assist the mother's parenting abilities. It addressed changing 

behavior to accept responsibility for the children, and to make the 

home environment healthy and safe. The testimony indicated that 

the home environment continued to be grossly inadequate in terms of 

health and safety, and that the mother continued in her denial of 

any parenting difficulties, including that J.R. had ever been 

abused. When the treatment plan was initiated by the court, the 

condition of the mother's mental state was not known. Upon 

psychiatric evaluation, it became apparent that the mother's mental 

illness was of such a nature that further mental counseling would 

be of little therapeutic benefit. Under these circumstances, the 

treatment plan implemented in the mother's case was appropriate. 

Substantial evidence was presented that the children were 

abused and neglected; that the mother's mental state rendered her 

an unfit parent; and that the situation was not likely to change 

within a reasonable time. Evidence showed (1) that the mother's 

residences were consistently unsuitable for children; (2) that J.R. 

was dirty and evidenced social and scholastic impediments while in 

the mother's care, and that marked improvement occurred upon 

removal from her care; and (3) that the mother showed a serious 

ambivalence in regard to her role as a mother, a lack of good 

judgment and an incapacity to provide long-term care and protection 

for her children. The decision of the district court to terminate 

parental rights will not be disturbed on appeal unless there is a 
mistake of law or a finding of fact not supported by substantial 

evidence that would amount to a clear abuse of discretion. Matter 

0fS.P. (1990), 241 Mont. 190, 786 P.2d 642. There is substantial, 

credible evidence in this case to support the District Court's 

conclusion that J.R. and S.D. are youths in need of care, that the 

treatment plan was unsuccessful, and that the mother's condition is 

unlikely to change within a reasonable time. Accordingly, we 

affirm the judgment of the District Court. 

We concur: