NO. 34-234 

IN THE SUPNME COURT OF THE STATE OF MONTANA 

1984 

IN THE MATTER OF 

R.M.B., Youth in Need of Care. 

APPEAL FROM: District Court of the Twelfth Judicial District, 

In and for the County of Hill, 

The Honorable Chan Ettien, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Morrison, Barron & Young; Dennis G. Loveless, 

Havre, Montana 

For Respondent: 

David G. Rice, Deputy County Attorney, Havre, 

Montana 

Waldo Spangelo, Havre, Montana 

Submitted on Briefs: July 27, 1984 

Decided: October 16, 1984 

Filed: acr L 384 

----- Clerk 
Mr. Justice TJ. C. Gulbrandson delivered the Opinion of the 

Court. 

L. R. appeals from an order of the District Court of 

the Twelfth Judici a1 District, Hill County, terminating the 

parent-child relationship between L. B. and R. M. R. and 

awarding permanent custody of the youth to the Montana 

Department of Social and Rehabilitation Services. We affirm 

the order of the District Court. 

L. B. the appellant, is the natural mother of R. M. B. 

who was born on January 13, 1982. F. M. B.'s father has not 

been identified. In January of 1982, Anna Mae Fischli, a 

social caseworker for the Hill County Welfare Department, 

began investigating the appellant ' s ability to properly care 

for R. M. B. The investigation was prompted by a Health 

Department report that R. M. R. was a high risk child due to 

low birth weight, and the mother's difficulty with alcohol 

and inability to care for R. M. B. From January to November 

of 1982, the appellant's problem with alcohol and drug abuse 

worsened, culminating in two attempted suicides and 

hospitalization for treatment of delirium tremens in the fal-1 

of 1982. On September 22, 1982, the Hill County Welfare 

Department petitioned for a District Court order requiring 

the appellant to undergo treatment for mental i1-lness and 

alcoholism, and requiring that R. M. B. be temporarily pla.ced 

in a foster home. The petition was granted on November 23, 

1982, and R. M. B. was placed in a foster home. The foster 

parents and social workers noted severe motor, social and 

cognitive Zevelopmental problems in R. M. R. At the age of 

eight months the child could not sit up or hold the head up 

and the child' s arms and legs were rigid. The back of R. M. 

B. 's head was flat and bald. R. M. B. would not make eye 
contact, would not respond to affection, and. would flinch 

when anyone raised a hand in the vicinity of the child. R. 

M. B. never cried, and had a poor appetite. 

While R. M. B. was in the foster home, appellant was 

being treated at Warm Springs State Hospital for serious 

mental illness. She was released from Warm Springs on March 

17, 1983, and returned to Havre, Montana. During April and 

May, appellant was hospitalized. on numerous occasions as a 

result of alcohol and drug abuse and severe depression. 

On April 29, 1983, a petition was filed requesting that 

temporary custody of R. M. B. he awarded to the Department of 

Social and Rehabilitative Services for a period of six 

months. Following a hearing on the petition, an order 

awarding temporary custody was issued on May 19, 1983. 

On May 3, 1983, appellant signed and agreed to the 

terms of a ninety day treatment plan, the eventual goal of 

which was to return custody of R. M. B. to the appellant. 

The treatment plan contemplated therapy for appellant's 

mental illness and alcoholism, as well as training to help 

appellant deal with her child's developmental problems. The 

treatment plan specifically stated that failure to comply 

with the plan could result in termination of appellant's 

parental rights. The District Court approved the treatment 

plan on May 6, 1983. The evidence indicated that the 

appellant failed to compl-y with the treatment plan. 

In the period between September 7, 1982 to January 4, 

1984, the appellant was hospitalized for a total of 220 days: 

112 days at Northern Pontana Hospital and 108 6ays at Warm 

Springs State Hospital, the Chemical Dependency Center in 

Gl.asgow, Montana, and the Midwest Challenge Program in 

Minneapolis, Minnesota. Appellant's hospitalizations were 
mainly due to her problems with depression and suicidal 

tendencies, alcohol abuse, and drug overdoses. The latest 

hospitalization occurred on December 25, 1983, and was caused 

by a drug overdose which was apparently another attempt by 

appel-lant to commit suicide. 

On September 21, 1983, Hill County filed a petition for 

permanent legal custody of R. M. B. and for termination of L. 

B.'s parental rights. A quardian ad litem was appointed for 

R. M. B. and a hearing on the petition was held on January 

27, 1984, and February 28, 1984. Expert medical testimony at 

the hearing indicated that the appellant had a borderline 

personality with suicidal tendencies and major depressive 

illness. Other testimony indicated that appel-lant ' s mental 

illness and alcoholism were not conducive to a stable 

mother-child relationship, and that appellant's mental 

illness was unlikely to change within a reasonable time. 

On March 26, 1984, the District Court issued its 

findings of fact and conclusions of law, along with an order 

terminating L. Be's parent-child relationship with R. M. B. 

Custody of the child was awarded to the Montava Department of 

Social and Rehabilitation Services, which was authorized to 

consent to the adoption of R. M. B. L. B. appeals from the 

District Court's order of March 26, 1984. 

The appellant's first contention is that the District 

Court committed reversible error by admitting hearsay 

evidence during the hearing on the petition for legal custody 

and termination of parental rights. 

In particular, appellant argues that in four instances 

during the direct examination of the State's principal 

witness, hearsay material was admitted over proper objection. 

One of these instances involved the recollection by Anna Mae 
Fischli of statements made by out-of-court declarants 

regarding the paternity of the infant, R. M. B. The court 

admitted this testimony over objection specificall-y to show 

that Fischli, a. social worker for the Hill County Welfare 

Department, had made an effort to locate the father. This 

effort was necessary in order to determine if the infant fell 

within the definition of "Indian child" under the Indian 

Child Welfare Act. Thus the out-of-court sta.tement was not 

offered to prove the truth of the matter asserted, i.e. 

paternity, and was admissible. Rule 801(c), M.R.Evid. 

As to the three remaining hearsay objections, we agree 

with the appellant that the admitted statements constituted 

hearsay under Rule 801 (c) , M.R. Evid. , and were therefore 

inadmissible under Rule 802, N.R.Evid. 

However, we will not reverse the District Court where, 

as here, the error was harmless. Rule 61, M.R.Civ.P. The 

objectionable statements were amply corroborated by competent 

evidence entered into the record without objection. The gist 

of the three hearsay statements was that: (1) appellant was 

drunk while caring for her child; (2) appellant failed to 

meet a requirement of the court-approved treatment plan; and 

(3) the infant R. M. B. was rigid, unresponsive, and would 

not cry. Anna Mae Fischli, who was the chief social worker 

involved with L. B. and R. M. B., testified that in the 

course of her casework she had observed L. B. intoxicated 

while caring for R. M. B. Also, L. B. had reported to 

Fischli that she had struck the child in order to quiet R. M. 

B. while she was enduring hangovers. L. B. herself testified 

that she did not want her child around during those times 

when she was hungover. And the four medical doctors who 
testified all recounted L. B.'s long history of alcoholism, 

which extends back at least to her pregnancy. 

Fischli and her supervisor from the Hill County Welfare 

Office, Judith Rominger, both testified that L. B. had failed 

to meet the requirements of the court approved treatment plan 

despite their direct and continuing supervision. And 

Fischli, Barbara LaBrie (home trainer, Child and Family 

Services), and Jeanette Matter (foster parent) all testified 

that R. M. B. was rigid, unresponsive and developmentally 

retarded. Fischli and Matter testified that R. P'1. E. would 

not cry in order to call attention to personal needs. 

We find that admission of the three hearsay statements 

did not affect the substantial. rights of the appellant 

because the testimony was cumulative. Rule 61, M.R.Civ.P.; 

Thompkins v. Fuller (Mont. 1983), 667 P.2d 944, 953, 40 

St.Rep. 1192, 1203. 

The appellant's remaining specifications of error 

basically turn on the adequacy of the findings of fact and 

conclusions of law of the trial court. Specifically, 

appellant maintains that: 

(1) The District Court abused its discretion in relying 

on the medical testimony of Doctors Lawrence Stineford and 

Lawrence Jarvis, while disregarding that of Dr. Brian Earle, 

Jean Lawton, a psychiatric nurse, and Pat Barron, an 

ex-employee of the Havre Mental Health Center. 

(2) The District Court relied too heavily upon the 

respondent's proposed findings of fact and conclusions of 

law. 

(3) The evidence i.s insufficient to support the 

findings and conclusions of the District Court, particularly 

the court's conclusion that the statutory criterja for the 
termination of a parent-child relationship in this case had 

been met. 

Although there is conflicting expert testimony on the 

record regarding L. B. 's fitness as a parent, "the 

credibility of witnesses and the weight given their testimony 

are matters exclusively within the province of the District 

Court in a nonjury case. " Como v. Rhines (~ont. 1.982) , 645 

P.2d 948, 951, 39 St.Rep. 932, 935. See also Speer v. Speer 

(Mont. 1982), 654 P.2d 1001, 1003, 39 St.Rep. 2204, 2206; 

Harris v. Harris (Mont. 1980), 616 P.2d 1099, 1102, 37 

St.Rep. 1696, 1699. And while it is true that this Court has 

discouraged trial courts from excessive reliance on the 

proposed findings of fact and conclusions of law of the 

prevailing party, in Kowis v. Kowis (Mont. 1983), 658 P.2d 

1084, 1088, 40 St.Rep. 149, 154, we stated the rule that: 

"where . . . findings and conclusions are 

sufficiently comprehensive and pertinent 

to the issues to provide a basis for 

decision, and are supported by the 

evidence, they will not be overturned 

simply because the court relied upon 

proposed findings and conclusions 

submitted by counsel." 

A perusal of the trial court's findicgs and conclusions 

in this case reveal them to be comprehensive and pertinent to 

the issues presented to the court. They are in fact more 

extensive than the proposed. findings and conclusions of the 

respondent and the changes made by the court are clearly 

substantive. Upon review, we conclude that the trial court 

has carefully considered all. the relevant facts and issues 

involved, and had a solid basis upon which to make its 

decision. 

The remaining question is whether the evidence is 

sufficient to support the findings and conclusions of the 
District Court. Specifically, appellant argues that the 

evidence is insufficient to support the trial court's finding 

that (a) the appellant failed to comply with a court approved 

treatment plan, and (b) the appellant's condition which 

rend-ered her unfit to be a parent is unlikely to change 

within a reasonable time. Both findings are required in 

order for a district court to terminate a pzrent-child 

relationship, under section 41-3-609(1) (c), MCA. 

This Court has long adhered to the standard of review 

which provides that we will consider only whether substantial 

credible evidence supports the findings and conclusions of 

the trial court. Jensen v. Jensen (Mont. 1981), 629 P.2d 

765, 768, 38 St.Rep. 927, 930. The findings of the court 

will not be set aside unless clearly erroneous. M.R.Civ.P. 

52(a), Nunnally v. Nunnally (Mont. 1981), 625 P.2d 1159, 

1162, 38 St.Rep. 529, 532. 

A survey of the hearing transcript indicates that Anna 

Mae Fischli drew up a 90 day treatment plan which was 

approved by the District Court on May 6, 1983. The plan was 

discussed with and explained to the appellant, and appellant 

was made aware that failure to comply with the plan could 

result in a termination of parental rights. This term was 

specifically included in the plan. The plan required 

appellant to obtain regular therapy for her deteriorating 

mental condition as well as regular treatment for her chronic 

alcoholism. Appellant was required to meet regularly with a 

Family and Children Services caseworker, Barbara LaBrie, in 

order to develop her skills as a parent. She was also 

required to meet regularly with her Hill County Welfare 

Department caseworker, Anna Mae Fischli, in order to monitor 

progress under the plan. 
Fischli and her supervisor, Judy Rominger, testified 

that appellant had subs tantially ignored the plan during its 

first month of operation. Upon their urging, appellant 

registered in the Midwest Challenge Program in Minneapolis 

for treatment of alcoholism. Appellant dropped this program 

after three days, but remained out of contact with Fischli 

for most of the second month of the plan's operation. 

Appellant began a local Alcoholics Anonymous program, but 

quit because in appellant's words "I don't get into that." 

The testimony of Fischli, Rominger and Barbara LaBrie 

indicate that regular treatment under the plan was severely 

hindered by appellant's inability or refusal to attend 

scheduled appointments. 

Medical testimony presented by Doctors Jzrvis and 

Stineford established that appellant was mentally ill with 

borderline personality, severe depression and strong suicidal 

tendencies. Both doctors recalled appellant's history of 

drug and alcohol abuse. Both doctors are qualified 

psychologists, and both felt that appellant's condition was 

Likely to persist over time. Dr. Jarvis felt it would be a 

mistake to return the infant, R. K. B., to appellant's care 

due to her inability to resolve her problems with mental 

illness and drug and alcohol abuse. Jarvis also felt that 

the infant, R. M. B., was at a developmental stage that 

required a stable environment, which appellant could not 

provide. In the opinion of Dr. Jarvis, appellant simply 

lacked the necessary child-rearing skills to raise an infant 

properly. 
Reviewing the evidence in a light most favorable to the 

respondent, we concl-ude that the findings and conclusions of 

the District Court are supported by substantial credible 

evidence. Burlingame v. Mar-jerrison (Mont. 1983) , 665 P. 2d 

13.36, 40 St.Rep. 1005; Wallace v. Wallace (Mont. 19831, 661 

P.2d 455, 40 St.Rep. 430. We therefore affirm the decision 

of the District Court. 

We concur: 

Chief Justice 

d