No. 03-099

IN THE SUPREME COURT OF THE STATE OF MONTANA

2003 MT 254

IN THE MATTER OF A.F. and A.C.,

Youths in Need of Care.

APPEAL FROM: District Court of the Thirteenth Judicial District,

In and for the County of Yellowstone, Cause No. DN 01-001

The Honorable Gregory R. Todd, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Connie Camino, Billings, Montana

For Respondent:

Mike McGrath, Montana Attorney General, Jennifer Anders, Assistant

Montana Attorney General, Helena, Montana; Dennis Paxinos, Yellowstone

County Attorney, Rick Helm, Deputy Yellowstone County Attorney,

Billings, Montana; Damon L. Gannett, Billings, Montana (Guardian

Ad Litem); Nancy Wetherelt, Billings, Montana (for father M.C.); Kevin T.

Sweeney, Billings, Montana (for father D.F.)

Submitted on Briefs: July 2, 2003

 Decided: September 23, 2003

Filed:

__________________________________________

Clerk
2

Justice Patricia O. Cotter delivered the Opinion of the Court.

¶1 S.C. is the biological mother of two minor children, A.F. and A.C. In October 2002,

the Thirteen Judicial District Court, Yellowstone County, terminated S.C.'s parental rights

to both children, and awarded permanent custody of the children to the Montana Department

of Public Health and Human Services (DPHHS or the Department). S.C. appeals. We

affirm.

ISSUES

¶2 A restatement of the issues presented by S.C. follows:

1. Are the District Court's Findings in support of termination clearly erroneous?

2. Was there substantial evidence to support the District Court's Findings that

S.C. did not successfully complete her treatment plans?

3. Was there substantial evidence to support the District Court's Findings that

the conduct/condition rendering S.C. unfit to parent was unlikely to change within a

reasonable time?

FACTUAL AND PROCEDURAL BACKGROUND

¶3 S.C. has long suffered from and been diagnosed with various mental and emotional

health conditions, including, but not limited to, attention deficit hyperactivity disorder

(ADHD), post-traumatic stress disorder, anxiety disorder, personality disorder (not otherwise

specified), major depressive disorder, and borderline personality disorder. She was

hospitalized twice in 1996 in California, one of which followed a suicide attempt.

¶4 A.F. was born in May 1991, while S.C. was married to his father, D.F. A.C. was born

in April 1996, while S.C. was married to his father, M.C. S.C. is divorced from both men
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and is not currently married. In January 2002, D.F. relinquished his parental rights to A.F.

D.F.'s rights were officially terminated in the District Court Order issued in the case at bar.

D.F. is not a party to this appeal. M.C.'s parental rights are the subject of a separate action.

¶5 The Department first received reports about this family in May 1998. Over the

following two years, the Department received numerous reports that were investigated and

found to be unsubstantiated. Many calls reported that the children were being seriously

neglected and without adult supervision. These reports also concerned S.C.'s mental health

and her ability to adequately parent A.F. and A.C. The Department referred S.C. to social

service providers in the community and she received services from the Family Support

Network (FSN), and other individuals and organizations through December 2000.

¶6 In December 2000, the Billings Police Department was conducting an undercover

prostitution investigation at a Billings hotel. On December 27, 2000, evidence obtained in

the investigation led police to S.C.'s home, where she agreed to let the police enter her home

and, after being advised of her constitutional rights, to answer questions. Upon questioning

she stated that she operated a legal escort service. S.C. also indicated that a man, unknown

to her, was waiting in her bedroom for one of her employees. She agreed to get him and

bring him out to meet the police. Moreover, she stated that her two young sons were

watching television in another room. At that time, A.C. was 4 years old and A.F. was 9

years old.

¶7 S.C. allowed the police to search her home. During the search, an officer found

records and information that appeared to be consistent with the promotion of prostitution.
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S.C. was arrested and asked to provide the name of someone who could care for her children

while she was in police custody. Either S.C. refused to provide any names or she was unable

to reach anyone by telephone. As a result, the police contacted the Department and a social

worker took emergency custody of the children. S.C. was charged with Promoting

Prostitution and subsequently pled guilty in Billings Municipal Court.

¶8 This course of events, in conjunction with the previous reports to the Department, led

the DPHHS to file a Petition for Emergency Protective Services in January 2001. The

DPHHS thereafter prepared three treatment plans for S.C. and assigned numerous social

workers to assist S.C. and her sons between January 2001 and October 2002. Additionally,

S.C. underwent extensive psychological testing by several medical professionals to discover

the extent of her mental and emotional difficulties. She also willingly participated in

extensive private and group counseling sessions by various professionals.

¶9 S.C.'s sons experience emotional and mental heath problems similar to those

experienced by their mother. A.F. has been diagnosed with Dysthymic Disorder and A.C.

has been diagnosed with Reactive Attachment Disorder and Intermittent Explosive Disorder.

According to expert witnesses, A.C.'s disorders stem directly from a history of deficient care.

¶10 A hearing on temporary custody was held on May 18, 2001, and June 15, 2001. The

District Court adjudicated the children to be youths in need of care and granted temporary

legal custody to the Department on June 21, 2001. During this time and for several

subsequent months, S.C. had regular supervised visits with A.F. and A.C. where she was

expected to use the parenting skills that counselors and therapists were helping her learn and
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develop. These skills were designed, among other things, to aid S.C. in using consistent and

appropriate discipline, maintaining appropriate boundaries for herself and her children, and

providing even-handed attention and affection to both children. 

¶11 The DPHHS petitioned for permanent legal custody on December 26, 2001. A

hearing was held over the course of six days. On October 28, 2002, the District Court

entered its Judgment terminating S.C.'s parental rights and awarding permanent custody of

A.F. and A.C. to the Department. S.C. appeals.

STANDARD OF REVIEW

¶12 We review a district court's decision to terminate parental rights to determine whether

the court abused its discretion. In re J.V., 2003 MT 68, ¶ 7, 314 Mont. 487, ¶ 7, 67 P.3d

242, ¶ 7 (citation omitted). The test for an abuse of discretion is "whether the trial court

acted arbitrarily, without employment of conscientious judgment, or exceeded the bounds

of reason resulting in substantial injustice." In re D.V., 2003 MT 160, ¶ 14, 316 Mont. 282,

¶ 14, 70 P.3d 1253, ¶ 14 (citation omitted). However, because a parent's right to the care and

custody of a child is a fundamental liberty interest, it must be protected by fundamentally

fair procedures. D.V., ¶ 14. To satisfy the relevant statutory requirements for terminating

a parent-child relationship, a district court must make specific factual findings. We review

those findings of fact to determine whether they are clearly erroneous. Lastly, we review

the court's conclusions of law to determine whether the court interpreted the law correctly.

D.V., ¶ 14. 
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¶13 As we stated in J.V., "[t]he district court is bound to give primary consideration to the

physical, mental and emotional conditions and needs of the children. Consequently, the best

interests of the children are of paramount concern in a parental rights termination proceeding

and take precedence over the parental rights. Section 41-3-609(3), MCA. Moreover, the

party seeking to terminate parental rights must demonstrate by clear and convincing evidence

that the statutory requirements for termination have been met." J.V., ¶ 8 (internal case

citations omitted). 

¶14 We presume that a district court's decision in such a case is correct and will not

disturb it 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. In re M.T., 2002 MT

174, ¶ 22, 310 Mont. 506, ¶ 22, 51 P.3d 1141, ¶ 22 (citation omitted).

DISCUSSION

¶15 While S.C. presented three separate issues on appeal, we conclude that all of her

issues can be resolved simultaneously. Basically, S.C. claims that numerous factual findings

by the District Court supporting termination were "clearly erroneous." Additionally, she

maintains that the factual findings specific to compliance with her treatment plans and the

timing within which her condition may improve were not supported by "substantial

evidence." 

¶16 As noted above, we review a district court's findings of fact to determine whether they

are clearly erroneous. A finding of fact is clearly erroneous if: 1) it is not supported by

substantial evidence; 2) the court misapprehended the effect of the evidence, or 3) upon
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reviewing the record, this Court is left with a definite and firm conviction that a mistake has

been made. M.T., ¶ 21 (citation omitted). Because we will review the District Court's

findings in the case before us to determine if they are clearly erroneous using this aboverecited three-prong test, our analysis will subsume S.C.'s issues concerning "substantial

evidence." 

¶17 A district court may terminate a parent-child relationship under several different

circumstances, including when the court finds that the child is an "adjudicated youth in need

of care" and both of the following circumstances 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. Section 41-3-609(1)(f), MCA; M.T., ¶ 24 (citation

omitted).

¶18 S.C. does not challenge the District Court's finding that A.F. and A.C. were

adjudicated youths in need of care, nor does she challenge the appropriateness of her three

treatment plans. Therefore, to determine whether the District Court correctly terminated her

rights, we must ascertain whether clear and convincing evidence was presented that S.C.

failed to complete her court-approved treatment plans or that her treatment plans were

unsuccessful. Additionally, we must determine whether the evidence supports the court's

finding that her condition is unlikely to change within a reasonable time.

¶19 The District Court, in its twenty-two page Findings of Fact, Conclusions of Law and

Order, made extensive findings based on the record and evidence presented during the
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hearing. In its findings, the court summarized the testimony of twelve of the nineteen

witnesses. Several psychologists and counselors who have met with and tested S.C. and/or

her sons testified on behalf of the Department. Numerous social workers who have been

involved heavily in this case testified for the DPHHS as well. Additionally, a few DPHHS

social workers, as well as S.C.'s group therapy social worker, her intensive case manager,

her psychiatrist and her clinical psychologist testified on her behalf. 

¶20 The District Court described the three court-approved treatment plans S.C. was

assigned. The first treatment plan covered the period from March 9, 2001, to June 9, 2001.

Social Worker Juli Pierce was assigned to S.C. during this time and testified by deposition

on August 16, 2001, that S.C. had completed only one goal in her first treatment plan, i.e.,

resolving her criminal matter. S.C. does not dispute that she did not successfully complete

her first treatment plan.

¶21 The second court-approved treatment plan covered the period June 9, 2001, to

December 15, 2001. Both the first and second treatment plans required S.C. to establish

an emotionally healthy, stable, and consistent lifestyle and a healthy relationship with her

children. S.C. maintains that Social Worker Pierce testified in her August 16 deposition that

S.C. had completed her second treatment plan. Pierce left her job with the Department and

was replaced by Social Worker Metcalf in late August 2001. Metcalf testified that while S.C.

completed many of the individual tasks listed in her second treatment plan, the second

treatment plan was unsuccessful. Metcalf explained that despite counseling and guidance,

S.C. could not consistently apply her parenting skills or utilize good judgment. She also
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failed to consistently maintain appropriate boundaries for herself and her children. Metcalf

claimed that, as a result, S.C. was unable to establish a stable and consistent lifestyle and a

healthy relationship with her sons, a critical goal in all of her treatment plans.

¶22 The third treatment plan covered the period from March 19, 2002, to July 3, 2002.

The goals and tasks of the third plan were similar to the first and second plans but contained

more specific tasks tailored to address the concerns of the mental health professionals and

the community and DPHHS service providers who had been working with S.C. and her

children for more than a year. In the third plan, S.C. was required to: 1) improve her mental

health status, enabling her to provide the children with a safe environment; 2) increase her

parenting abilities; 3) provide a safe environment for her children; 4) establish a stable, legal

financial status allowing the children's physical and emotional needs to be met, and; 5)

cooperate with and assist the DPHHS in assessing compliance with the plan and evaluating

successful progress or further needs in developing necessary parental skills and practices.

¶23 Testimony presented by Social Worker Metcalf, her supervisor, Roxanne Roller, and

other services providers demonstrated that S.C. failed to complete several tasks included in

the third treatment plan. On the other hand, testimony presented by S.C.'s witnesses

indicated that she had completed the majority of the tasks and goals of the third treatment

plan. The District Court found that S.C. had failed to successfully complete several tasks

in her last treatment plan.

¶24 We have noted on numerous occasions, that it is not this Court's function, on appeal,

to reweigh conflicting evidence or substitute our evaluation of the evidence for that of the
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district court. M.T., ¶ 29 (citing In re E.K., 2001 MT 279, ¶ 43, 307 Mont, 328, ¶ 43, 37

P.3d 690, ¶ 43). Moreover, we recognize that the District Court had the benefit of observing

the demeanor of witnesses and therefore defer to the court's determination of the credibility

of those witnesses. Matter of R.J.W. (1987), 226 Mont 419, 423, 736 P.2d 110, 112.

¶25 The record supports that S.C. did not comply with all of the tasks and goals of her

treatment plans. We have repeatedly held that partial compliance with a treatment plan is

insufficient to preclude termination of parental rights. D.V., ¶ 27 (citing In re N.A., 2002 MT

303, 313 Mont. 27, 59 P.3d 1135). Moreover, the relevant statute is written in the

disjunctive--a treatment plan has not been complied with or has not been successful. Section

41-3-609(1)(f)(i), MCA (emphasis added). We have recognized on several occasions that

completing all tasks in a treatment plan does not necessarily mean the plan is "successful."

M.T., ¶ 31 (citing E.K., ¶ 42). Based on the record in this case, we conclude that the District

Court's finding that S.C. did not comply with her treatment plans was supported by

substantial evidence and is not clearly erroneous.

¶26 We now look at the second prong of § 41-3-609(1)(f), MCA,--whether the conduct

or condition rendering S.C. unfit or unable to parent her children is likely to change within

a reasonable time. Determining whether, and when, such a change may occur requires the

court to assess not only the present conduct of the parent but also her past conduct. M.T.,

¶ 34. The statute provides the following relevant guidance:

(2) In determining whether the conduct or condition of the parents is unlikely

to change within a reasonable time, the court shall enter a finding that

continuation of the parent-child legal relationship will likely result in
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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 the determinations, the court shall consider but is not

limited to the following: 

(a) emotional illness, mental illness, or mental deficiency of the

parent of a 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; 

. . . . 

Section 41-3-609(2), MCA.

¶27 Since the DPHHS first became involved with this family, the agency had been

concerned about S.C.'s emotional and mental stability and her ability to adequately parent

her children in a safe, consistent and nurturing manner. Each treatment plan required S.C.

to take the necessary steps to reach the goal of establishing a healthy relationship with her

sons and providing a safe home environment for them. While the District Court recognized

that S.C. loves her sons and that she attempted to complete the many tasks assigned in her

treatment plans, the court nonetheless found that S.C.'s "mental illness is of such a nature as

to render her unlikely to care for the on-going physical, mental and emotional needs of the

children within a reasonable time."

¶28 S.C. argues that the DPHHS failed to meet its burden of proving this unlikelihood by

clear and convincing evidence. She claims that several witnesses testified that she had made

progress through therapy and medication, that she would continue to make progress and that

her children should be returned to her care. We note, however, that the District Court also

heard testimony from several other witnesses that S.C.'s long and significant history of
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mental and emotional illness adversely impacted her ability to function and to adequately

parent her children. S.C. is receiving social security disability because she is unable to work

due to the severity of her mental illness. Numerous psychologists testified that the disorders

from which S.C. suffers are extremely difficult to treat and require extensive, long-term

treatment. Even then, success is often limited. Again, as we stated above, where there are

conflicts in the testimony, it is the function of the District Court to resolve them and we will

not substitute our judgment for that of the trier of fact as the trial court is in a better position

than this Court to resolve such issues. M.T., ¶ 29.

¶29 Given the circumstances of this case and the testimony presented to the District Court,

we conclude that the court's finding that the conduct or condition rendering S.C. unable to

adequately parent her children would not likely change in a reasonable time was supported

by substantial evidence. 

¶30 While we note that some of the District Court's factual findings contained errors or

misstatements of the facts as presented in hearing testimony, we conclude these errors were

harmless in that they did not pertain to the court's ultimate findings regarding S.C.'s

treatment plans or the likelihood that her condition would not change within a reasonable

time. As indicated above, the District Court may terminate parental rights to an adjudicated

youth in need of care if an appropriate treatment plan has not been complied with or has been

unsuccessful and if the condition rendering a parent unfit is unlikely to change within a

reasonable time. As discussed above, the court's findings pertaining to the statutory

requirements for termination were not erroneous.
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¶31 Accordingly, we hold that the District Court did not abuse its discretion when it

terminated S.C.'s parental rights.

CONCLUSION

¶32 For the foregoing reasons, we affirm the District Court.

/S/ PATRICIA COTTER

We Concur:

/S/ KARLA M. GRAY

/S/ JIM RICE

/S/ W. WILLIAM LEAPHART

/S/ JAMES C. NELSON