NO. 34-234 INTHE SUPNMECOURTOF THE STATEOF MONTANA 1984

IN THEMATTER OF R.M.B., Youth inNeed of Care.

APPEAL FROM: District Court of the Twelfth Judicial District, Inand for the County of Hill, TheHonorable ChanEttien, Judgepresiding.

COUNSELOF RECORD:

ForAppellant: Morrison,Barron & Young;Dennis G. Loveless, Havre,Montana

For Respondent: David G. Rice,Deputy CountyAttorney, Havre, Montana Waldo Spangelo, Havre,Montana

Submitted on Briefs: July 27, 1984 Decided: October 16, 1984

Filed: 

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## 384

----- ClerkMr. Justice TJ. C. Gulbrandson delivered the Opinion of the Court.

L. R. appeals from an order of the District Court of the Twelfth Judicia1 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 theDistrictCourt. L. B. the appellant, is the naturalmother 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 Departmentreport 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-lnessand alcoholism,and requiring that

### R. M. B. be temporarilypla.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 legswere rigid. Theback 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 apoor 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. DuringApril and May, 

### appellant was hospitalized.on numerous occasions as a result of alcoholand drug abuseand severedepression. OnApril 29, 1983, apetitionwas 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 temporarycustodywas issued onMay 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 dealwith her child's developmentalproblems. 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-ywith the treatmentplan. In the period between September 7, 

### 1982 to January 4, 1984, the appellantwas hospitalized fora 

### 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 hospitalizationoccurred onDecember 25, 1983,andwas caused by 

### a drug overdose which was apparently another attempt by appel-lantto commit suicide. On September 21, 1983,Hill County filed a

### petition for permanent legal custodyof R. M. B. 

### and for terminationofL. B.'s parental rights. A quardian ad litemwas appointed for R. 

### M. B. and a hearing on the petition was held on January 27, 

### 1984,and February 28, 

### 1984. Expert medical testimonyat 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 conclusionsof law,alongwith an order terminating L. 

### Be'sparent-child relationship with R. M. B. Custody of the childwas awarded to theMontava Department of Social and Rehabilitation Services, which was authorized to consent to the adoption of R. 

### M. B. L. 

### B. appeals from the DistrictCourt's orderof March 26, 

### 1984. The appellant's first contention is that the District Court committed reversible error by admitting hearsay evidence during the hearing on thepetition for legal custody and termination ofparental rights. In particular, appellant argues that in four instances during the direct examination of the State's principal witness,hearsaymaterialwas admitted overproper objection. One of these instances involved the recollection by 

### Anna MaeFischli 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-yto show that Fischli, 

### a. social worker for the Hill County Welfare Department, had made an effort to locate the father. This effortwas 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.tementwas not offered to prove the truth of the matter asserted, i.e. paternity,andwas admissible. Rule 801(c), M.R.Evid. As to the three remaininghearsay objections,we agree with the appellant that the admitted statements constituted hearsay under Rule 801(c)

## , M.R. Evid.

## , and were therefore inadmissibleunder Rule 802,N.R.Evid. However,we will not reverse the DistrictCourtwhere,

as here, the error was harmless. Rule 61,M.R.Civ.P. The objectionable statementswere amply corroboratedby competent evidence entered into the recordwithout objection. The gist of the three hearsay statementswas that: (1)appellantwas drunk while caring for her child; (2) appellant failed to meet a requirement of the court-approved treatmentplan; 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 shehad struck the child in order to quietR. M. B. while shewas enduringhangovers. L. B. herself testified that she did not want her child around during those times when she was hungover. And the four medical doctors whotestified all recounted L. B.'s long history of alcoholism, which extendsback at least toher pregnancy. Fischliand her supervisor from the HillCountyWelfare Office,Judith Rominger,both testified that L. B. had failed tomeet the requirements of the courtapproved treatmentplan 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 callattention topersonalneeds. 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 itsdiscretion 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 thetermination 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 theweight 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 submittedby counsel."

A perusal of the trial court's findicgsand conclusions in this case reveal them to be comprehensiveandpertinent 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 supportthe 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-eredher 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 thatwewill consideronlywhether 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 thatAnna Mae Fischli drew up a 90 day treatment plan which was approved by the District Court on May 6, 1983. Theplan 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 conditionaswell as regular treatment for her chronic alcoholism. Appellant was required to meet regularlywith 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 tomonitor progress under theplan.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 depressionand 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 lightmost favorable to the respondent, we concl-udethat 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 theDistrict Court.

We concur:

Chief Justice 

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