No. 86-99 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

IN THE MATTER OF D.S.N., 

a Youth in Need of Care. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis & Clark, 

The Honorable Gordon Bennett, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Cannon & Sheehy; Edmund F. Sheehy, Helena, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Dorothy McCarter, Asst. Attorney General, Helena 

Mike McGrath, County Attorney, Peter Funk, Deputy, 

Helena, Montana 

Anne Sheehy, Helena, Montana 

Submitted on Briefs: April 30, 1986 

Decided: July 18, 1986 

Filed: 

JUL I P 1986 

Clerk 
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of 

the Court. 

K.N. appeals the order of the First Judicial District 

Court, County of Lewis and Clark, terminating his parental 

rights to his natural child, D.S.N. We affirm the decision 

of the trial judge. 

A petition for temporary investigative authority 

and protective services for D.S.N. was filed December 19, 

1984. On January 3, 1985, the natural parents of D.S.N. 

stipulated to the investigation, the continued placement of 

the child in foster care and the development of a treatment 

plan for all parties concerned. K.N. further agreed to 

attend the in-patient alcohol treatment program at Galen 

State Hospital. 

Following completion of the alcohol treatment program, 

mental evaluations were completed on K.N., D.S.N. and 

D.S.N.'s natural mother. Based on these evaluations, a 

treatment plan was established by the mental health evaluator, Sue Barton, and the family's social worker, Joe 

Baumgardner. 

The treatment plan contained four goals: 

1) Both parents must be mentally/emotionally able 

to provide for and respond to [D.S.N. 's] 

mental/emotional needs. 

2) Both parents must be economically able and 

capable to adequately satisfy their own an6 

[D.S.N.'s] basic needs for food, clothing and 

shelter. 

3) Both parents must demonstrate they can live a 

life style conducive to the health and welfare of 

CD.S.N.1 and be sufficiently able to parent, including being skilled in behavioral management. 

4) [D.S.N.] must be sufficiently mentally/emotionally adjusted and able to return to the care, 

custody and control of her father or, in the alternative, her mother. 
A hearing was held April 12, 1985. D.S.N. was found, by 

stipulation, to be a youth in need of care. The treatment 

plan was approved by the court and a hearing to review the 

parties' progress was ordered in six months. 

The natural mother made no effort to comply with the 

treatment plan, nor did she express interest in either legal 

or physical custody of her child. On the other hand, K.N. 

attempted to comply with his treatment plan and expressed an 

intense desire to have custody of his child. 

K.N.'s treatment plan included mental health counseling 

by his clinical social worker, Sue Barton. At the end of the 

six-month period, Ms. Barton submitted a report to the District Court recommending that K.N.'s custodial rights be 

terminated. A petition pursuant to S 41-3-607, MCA, was 

thereafter filed seeking to terminate K.N.'s parental rights. 

A two-day hearing was held and the petition was granted. The 

sole issue on appeal is whether the trial judge abused his 

discretion in terminating K.N.'s parental rights. 

The relevant criteria for terminating parental rights 

are found in § 41-3-609, MCA. 

41-3-609. Criteria for termination. (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 

(i i ) 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; 

(b) a history of violent behavior by the parent; 

(c) a single incident of life-threatening or 

gravely disabling injury to or disfigurement of the 

child caused by the parent; 

(dl excessive use of intoxicating liquor or of a 

narcotic or dangerous drug that affects the parent's ability to care and provide for the child; 

(el present judicially ordered long-term confinement of the parent; 

(f) the injury or death of a sibling due to proven 

parental abuse or neglect; 

and 

(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. 

Each specific requirement found in the statute must be 

addressed by the court. In the Matter of R.B. , Jr. (Mont. 

1985), 703 P.2d 846, 848, 42 St.Rep. 1055, 1058. We disagree 

with K.N.'s contention that the trial judge failed to address 

all of the requirements. 

Finding of fact VII states that "[K.N.] has not made 

sufficient progress with therapy to be able to be considered 

a fit parent." Finding of fact X states that " [K.N.] has 

continued to deny that problems exist with his previous care 

of [D.S.N.], making it virtually impossible to change his 

behavior." Both findings demonstrate that despite his good 

intentions to do so, K.N. has been unable to obtain the first 

goal of his treatment plan, to become mentally and emotionally able to provide for his child's mental and emotional 

needs. Other findings illustrate K.N.'s inability to achieve 

the third goal, that of living a lifestyle conducive to the 
health and welfare of the child and being sufficiently able 

to parent. For instance, finding of fact XIV refers to the 

continually unstable relationship between K.N. and his 

present wife. And, finding of fact XV reflects the experts' 

opinions that K.N. may never be capable of caring for his 

child. Clearly, the general term "care for" includes being 

sufficiently able to parent. 

Findings of fact VII, VIII and XVI combine to support a 

determination that K.N.'s condition rendering him an unfit 

parent is unlikely to change within a reasonable time. A 

reasonable time for D.S.N. is now. Section 41-3-609(3), MCA, 

mandates that in determining whether the parents' condition 

will change within a reasonable time, primary consideration 

should be given to the needs of the child. Two experts 

testified that D.S.N.'s age (9) makes it imperative that she 

be provided with a loving, stable home as soon as possible. 

D.S.N.'s well-being will not withstand further delay. 

Other findings reflect some of the factors recommended 

by the statute for use in determining whether the parent's 

condition will change. Finding of fact XI11 notes K.N.'s 

history of violent behavior toward his wife; finding of fact 

IX summarizes D.S.N.'s continual exposure to violence and 

alcohol while living with K.N.; and the findings as a whole 

reflect K.N.'s failure to benefit from the services provided. 

There is no question but that the findings of the trial 

judge address each specific requirement found in § 41-3-609, 

MCA . Furthermore, those findings are supported by 

substantial credible evidence. 

Sue Barton testified in response to the question whether 

D.S.N. has time to wait for her father to become a fit parent 

as follows: 
No , I think [K.N.] could be coming to therapy 

weekly for two years hence and we could be in the 

same spot. I think that if [D.S.N.] is going to be 

a productive member of society and be anywhere near 

being emotionally healthy, she has to be in a place 

where she feels safe and - protected and can go 

forward with talking about the kinds of things 

she's experienced already under the care of her 

parents. 

Tr. p. 52. 

Margaret Stewart, an expert in the child welfare area, 

supported Ms. Barton's stance. She stated that although 

D.S.N.'s problems now lie under the surface, once she reaches 

adolescence, they will explode. D.S.N. needs to become 

stabilized now, before she reaches adolescence. (Tr. p. 90.) 

Other testimony supports the conclusion that K.N. will 

be unable to change in the near future. Sue Barton testified 

that after six months of counseling, K.N. has been unable to 

achieve the first essential step toward improvement, the 

ability to trust another human being. (Tr. pp. 43-45.) This 

inability to trust results in an inability to relate to 

others in a normal manner. An individual with this problem 

will be unlikely to raise a child to be emotionally and 

mentally healthy. (Tr. p. 63.) 

Other testimony related to K.N.'s inability to properly 

respond to D.S.N. as a parent. In his relationship with his 

daughter, K.N. is the child. He relies on D.S.N. for protection and satisfaction of his own needs. (Tr. pp. 43, 60.) 

Further, when K.N. drinks, he physically neglects D.S.N. and 

becomes prone to violence. (Tr. p. 46.) And, substantial 

evidence casts doubt on K.N.'s ability to refrain from 

drinking for an extended period of time. (Tr. pp. 39, 45, 

150.) 

The evidence unequivocally supports the conclusion that 

K.N. is unable to provide D.S.N. with the minimum care and 

resources needed to assure adequate growth and development. 
In the Matter of C.A.R. and P.J.R. (Mont. 1984), 693 P.2d 

1214, 1221, 41 St.Rep. 2395, 2402. The decision of the 

District Court is affirmed. 

We Concur: