No. 88-052 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

IN RE THE MATTER OF: 

J.W. AND J.C., Youths 

in Need of Care, 

APPEAL FROM: District Court of the First Judicial District 

In and for the County of Lewis and Clark 

The Honorable Henry Loble, Judge presiding 

COUNSEL OF RECORD: 

For Appellant: 

Edmund F. Sheehy, Jr.; Cannon and Sheehy, Helena, MT 

For Respondent: 

Honorable Mike Greely, Attorney General, Helena, MT 

Paul D. Johnson, Assistant Attorney General 

Nicholas Jacques, Helena, MT 

Mike McGrath, County Attorney, Helena, MT 

Carolyn Clemens, Deputy County Attorney 

Submitted on Briefs: April 21, 1988 

Decided: M~Y 91 1988 

Filed: YAY 9 - 1988' 

- .- Clerk 
Mr. Justice John C. Harrison delivered the Opinion of the 

Court. 

This is an appeal from the First Judicial District, 

Lewis and Clark County, State of Montana, the Honorable Henry 

Loble presiding. The appeal is from an action which arose 

when the Lewis and Clerk County Office of Human Services 

(Office of Human Services) received referrals in December 

1984 and February 1985 concerning J.C. and J.W., the natural 

children of B.W. (hereinafter referred to as mother). After 

mother was hospitalized for psychiatric care in May of 1985, 

a petition was filed on behalf of the Office of Human 

Services requesting temporary investigative authority and 

protective services for the children. That petition was 

granted on May 10, 1985. After receiving further referrals 

in the fall of 1985, the Office of Human Services petitioned 

for further temporary investigative authority and the right 

to place the children in foster care. That petition was 

granted on June 20, 1986, the District Court thereafter 

entered an order declaring J.C. and J.W. to be youths in need 

of care. 

Following a dispositional hearing the District Court 

issued its order granting the continued temporary care of the 

children with the Department of Social and Rehabilitation 

Services (SRS) and in particular recommending that J. C. 

remain with his natural father in Arizona and J.W. remain in 

foster care. In the disposition order the court endorsed the 

treatment plan submitted by the Office of Human Services. On 

August 26, 1986, the mother appealed, challenging the 

District Court's order adjudicating J.C. and J.W. to be 

youths in need of care. This Court affirmed the District 

Court in May, 1987, see In the Matter of J.W. & J.C. (Mont. 

1987), 736 P.2d 960, 44 St.Rep. 843. 
In January 1987 the mother was involuntarily committed 

to Warm Springs State Hospital after attempting to commit 

suicide by shooting herself in the chest. During that 

commitment period her third child, R.W., was born. On May 

27, 1987 R.W. was placed with the same foster family that is 

caring for J.W., her half-brother. A petition for temporary 

custody and temporary investigative authority regarding R.W. 

was filed on May 28, 1987. That petition is not a subject of 

this appeal. On June 18, 1987, the State filed a petition to 

terminate the mother's parental rights with respect to J.W. 

and J.C. The mother was released from Warm Springs State 

Hospital in early July 1987. On July 23, 1987, the District 

Court heard the petition for termination of the mother's 

parental rights and on October 13, 1987 terminated her rights 

with respect to J.W. That order awarded permanent custody of 

J.C. to his natural father. The mother now appeals. We 

affirm. 

The issues before the Court are: 

1. Did the District Court err when it concluded that 

the mother's condition rendered her unfit and was unlikely to 

change within a reasonable time? 

2. Did the District Court err when it granted custody, 

care and control of J.C. to his natural father pursuant to 

the February 11, 1987, custody order issued by an Arizona 

Superior Court? 

After the mother's release from Warm Springs State 

Hospital, various mental health authorities testified that 

her mental condition required termination of her parental 

rights with J.C. and J.W. Dr. Virginia Hill, a psychiatrist 

at Warm Springs State Hospital, said the mother suffers from 

chronic undifferentiated schizophrenia, an illness in which 

the subject does not realize how ill she is. Because the 

patients do not appreciate the extent of their illness they 
tend not to comply with treatment plans. Staff at Warm 

Springs State Hospital were not able to administer medication 

to mother until after R.W. was born, Dr. Hill said, but once 

medication began the mother began to improve immediately. 

Dr. Hill testified that unless the mother abides by terms of 

the psychiatric plan prescribed for her, she would not be a 

proper parent. 

When the mother was released from Warm Springs State 

Hospital, her psychiatric plan included her return to Helena 

under the guidance of the Offices of Human Services. This 

plan also would have allowed her weekly supervised visits 

with J.W. The mother has not adhered to this treatment plan; 

instead she went to Butte. She has filed for welfare and has 

been unable to make most of her visits with J.W. because she 

lacked transportation. On the occasions that the mother 

appeared for the visit, J.W. displayed no interest in the 

mother. 

J.W. has been placed in a foster home now for about two 

years. This family considers him a part of the family and 

would adopt him if allowed to. Margaret Stuart, director of 

the Social Work Program at Carroll College, testified at the 

termination hearing that primary considerations include the 

child's age, his development level, and his home environment. 

She said that changing the home environment of a pre-school 

child such as J.W. is particularly touchy since this is a 

crucial stage of the child's development. The longer such a 

child is in one setting, the more traumatic it is to remove 

him from it. If the child is moved often enough he loses the 

ability to bond with parent figures and Ms. Stuart said a 

third placement is a "watershed" mark; any placement after 

that increases markedly the risk that the child will not be 

able to bond with parent figures. J.W. is currently in his 

third placement. 
J.C., the older boy, has lived continuously with his 

father since November 1985, even though custody of J.C. was 

granted to the mother when the parents divorced in 1978. The 

father testified at the termination hearing that he has 

accepted the custody of J.C. on several occasions when the 

mother was disabled by her mental condition. J.C.'s father 

has remarried, and has purchased a home and the father and 

his new wife have space in their home for J.C. and have 

integrated him into their home. J.C. does well in school and 

participates in extra-curricular activities. He wrote a 

letter to the District Court in which he expressed a desire 

to remain with his father and stepmother. 

On February 11, 1987, the father obtained an order from 

an Arizona Superior Court modifying the decree of dissolution 

so as to place permanent custody of J.C. with the father, 

subject to any order arising from the Montana proceedings. 

The mother did not appear for the Arizona proceedings and did 

not object to awarding custody of J.C. to the father since 

the father had assured her that she would always be able to 

see J.C. and enjoy visitation privileges. 

Mother contends that the District Court abused its 

discretion when it terminated her parental rights since the 

court's findings do not comply with 55 41-3-607 and 41-3-609, 

MCA. Under 5 41-3-609, MCA, which establishes the criteria 

for terminating parental rights, mother says only one 

criterion applies. That is subsection (1) (c) , which allows 

the court to terminate parental rights - if the child has been 

adjudicated a youth in need of care - and the parent has 

disregarded an appropriate treatment plan or such plan has 

failed, - and the parent's condition rendering her unfit is 

unlikely to change in a reasonable amount of time. She then 

cites findings by the court that her schizophrenic condition 

"will likely endure throughout [her] life, but can be 
controlled by the use of medication" and that "without such 

medication she will be incapable of parenting her children." 

The court ultimately concluded: 

[The mother's] mental illness is a chronic 

condition and because of her inability to follow 

through, the conduct that renders her unfit as a 

mother is not likely to change within a reasonable 

amount of time. 

On review of a District Court's decision terminating a 

person's parental rights, the District Court is presumed to 

be correct. In Re the Matter of M.L.H. (Mont. 1986), 715 

P.2d 32, 35, 43 St.Rep. 375, 379; In the Matter of J.L.F. 

(Mont. 1981), 626 P.2d 253, 255, 38 St.Rep. 533, 535. The 

findings of the District Court are not to be overturned 

"unless there is a mistake of law or a finding of fact not 

supported by credible evidence that would amount to a clear 

abuse of discretion." In Re the Matter of C.A.R. (~ont. 

1984), 693 P.2d 1214, 1218, 41 St.Rep. 2395, 2399, citing In 

Re Gore (1977), 174 Mont. 321, 570 P.2d 1110. Because a 

termination of parental rights case is a non-jury matter, the 

District Court is held responsible for determining the 

credibility of witnesses and weighing the witnesses' 

testimony. In Re the Matter of R.M.B. (Mont. 1984), 689 P.2d 

281, 284, 41 St.Rep. 1925, 1928. 

The findings quoted from above plus the conclusion 

quoted above represent substantial credible evidence 

supporting the District Court. We find there is ample 

evidence in the record to support the court's findings and 

its conclusion. The mother argues that the conclusion of the 

District Court is inconsistent with the court's findings 

since the prospect of further treatment should entitle her to 

an opportunity to regain custody of J.W. She notes previous 

cases where this Court has stated that "family unity should 
be preserved whenever possible." See, Matter of C.A.R, 693 

P.2d 1214, 1221, In Re the Matter of M.R.L. (1980), 186 Mont. 

468, 472, 608 P.2d 134, 137. This Court, though, has never 

placed family unity over the welfare of an abused or 

neglected child: 

[Wlhen the rights of the youth to an adequate 

physical and emotional environment encounter 

demonstrated acts of commission or omission by the 

parents which deprive the youth of this 

environment, the best interest of the youth is 

paramount and takes precedence over parental rights 

or familiar bonds. 

Matter of C.A.R., 693 P.2d at 1219. See also In the Matter 

of M.N. (1982), 199 Mont. 407, 410, 649 P.2d 749, 751. The 

viability of the "best interest" rule is underscored by 

§ 41-3-609 (3) , MCA, which orders the District Court to give 

"primary consideration" to the needs of the child in 

determining whether the conduct or condition of the parents 

is unlikely to change within a reasonable time. 

This Court has repeatedly directed District Courts to 

consider the "totality of the circumstances" when assessing 

the best interests of a child. --- In re Gore, 570 P.2d at 1114. 

After reviewing the facts of this case, it is readily 

apparent that the District Court order terminating the 

mother's parental rights to J.W. is in the infant's best 

interests. 

We have difficulty following the mother's arguments 

that the District Court erred by terminating her parental 

rights to J.C. since the Arizona court already had amended 

its original divorce decree so as to give custody to the 

father. Neither did the District Court terminate all 

parental rights, holding merely that custody of J.C. "is 

placed with his natural father . . . subject to visitation as 

agreed to by [the father]." The wording of these two orders, 
one by the Montana District Court and the other by the 

Arizona court, both made allowance for the decision of the 

other. They represent a delicate balancing of all the 

factors relevant to child custody proceedings. We will not 

disturb this balance. 

The findings, conclusions, and judgment of the District 

Court are affirmed. 

Justlces