No 

No. 98-115

IN THE SUPREME COURT OF THE STATE OF MONTANA

1999 MT 32N

In the Matter of Declaring H.G.,

A Youth in Need of Care.

APPEAL FROM: District Court of the Eleventh Judicial District,

In and for the County of Flathead,

The Honorable Ted O. Lympus, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

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Patrick D. Sherlock, Sherlock & Nardi, Kalispell, Montana; Robert B. Allison, Kalispell, Montana (guardian ad 

litem)

For Respondent:

Joseph P. Mazurek, Attorney General, Mark W. Mattioli, Assistant Attorney General, Helena, Montana; Thomas 

J. Esch, Flathead County Attorney, Randy K. Schwickert, Deputy Flathead County Attorney, Kalispell, Montana

Submitted on Briefs: July 16, 1998

Decided: February 24, 1999

Filed:

__________________________________________

Clerk

Justice James C. Nelson delivered the Opinion of the Court.

¶1. Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal 

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Operating Rules, the following decision shall not be cited as precedent but shall be 

filed as a public document with the Clerk of the Supreme Court and shall be 

reported by case title, Supreme Court cause number and result to the State Reporter 

Publishing Company and to West Group in the quarterly table of noncitable cases 

issued by this Court.

¶2. Kathy G. (Kathy), the natural mother of H.G., appeals from the decision of the 

District Court for the Eleventh Judicial District, Flathead County, terminating her 

parental rights to H.G. We affirm.

¶3. Kathy raises two issues on appeal, which we have consolidated into one issue and 

restate as follows:

¶4. Did the District Court err in terminating Kathy's parental rights to H.G.?

Factual and Procedural Background

¶5. Kathy gave birth to H.G. on December 28, 1992. On July 24, 1995, the Flathead 

County Family Services Program (FCFSP) and the Montana Department of Public 

Health and Human Services (DPHHS) filed a petition for temporary investigative 

authority and protective services of H.G. Later that day, the District Court issued an 

order wherein it granted FCFSP and DPHHS the authority to take H.G. and place 

him in a foster home, to require Kathy and H.G. to undergo medical and 

psychological evaluations, and to authorize reasonable and necessary medical 

treatment for H.G. The court also appointed a guardian ad litem for H.G., and 

ordered Kathy to appear at a hearing. H.G. was placed in a foster home on July 25, 

1995. After the court's hearing on August 3, 1995, it issued an order which granted 

the FCFSP and the DPHHSs' petition for temporary investigative authority and 

protective services. 

¶6. On November 3, 1995, the FCFSP filed a motion to continue its temporary 

investigative authority and protective services. In support of its motion, the FCFSP 

attached a report from Myra Barron (Barron), a social worker, which recommended 

that the temporary investigative authority and protective services remain in effect 

and requested that the court approve two treatment plans to which the FCFSP and 

Kathy agreed. On November 22, 1995, the court held a hearing on the FCPSP's 

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motion. Six days later, on November 28, 1995, the court issued an order which 

granted the FCFSP's motion and approved the treatment plans. Under the terms of 

the treatment plans, Kathy was required to: (1) complete inpatient chemical 

dependency treatment; (2) refrain from the use of alcohol and drugs; (3) obtain a 

psychological evaluation and follow-up treatment; (4) attend scheduled visits with H.

G.; (5) attend parenting classes; and (6) participate in the "Coping with Life" 

support group.

¶7. On August 28, 1996, the State filed a motion wherein it requested the court to 

approve a supplemental treatment plan which Kathy and Barron signed on May 3, 

1996. Under the terms of the supplemental treatment agreement, Kathy was required 

to: (1) comply with the provisions of her previous treatment plans; (2) continue to 

attend an outpatient chemical dependency program until graduation; (3) attend 

alcoholics anonymous and narcotics anonymous meetings; (4) complete and graduate 

from the "Coping with Life" support group; (5) incorporate the skills that she 

learned in the "Coping with Life" support group into her daily interactions with 

others; (6) attend counseling sessions with Bob Piersall (Piersall); and (7) continue to 

take medications prescribed to her by Dr. Herbert Gray (Dr. Gray). On September 

4, 1996, the court issued an order which approved the supplemental treatment plan.

¶8. On October 31, 1996, the FCFSP moved the court to continue the temporary 

investigative authority and protective services. In support of its motion, the FCFSP 

filed Barron's Report to the Court dated October 30, 1996, which documented that 

Kathy had failed to comply with the terms of her treatment plans and stated that the 

Division of Child and Family Services was planning to request that Kathy's parental 

rights to H.G. be terminated. After a hearing, the court granted the FCFSP's motion. 

¶9. On March 18, 1997, the DPHHS filed a Petition for Permanent Custody and 

Authority to Assent to Adoption. On that day, William Poston, who Kathy had 

named as H.G.'s natural father, filed an affidavit wherein he denied paternity and 

waived his parental rights to H.G. The District Court held a hearing on the DPHHS's 

petition on September 29, 1997, wherein it heard testimony regarding Kathy's ability 

to parent H.G. On October 10, 1997, the court issued its Findings of Fact, 

Conclusions of Law and Order which terminated Kathy's parental rights to H.G. and 

awarded the DPHHS care, custody and control of H.G.

¶10. On October 29, 1997, Kathy filed motions wherein she moved the court to either 

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grant her a new trial or to amend its judgment on the basis that the evidence did not 

support the court's decision to terminate her parental rights. After receiving the 

DPHHS's brief in opposition to Kathy's motions and conducting a hearing, the court 

denied Kathy's motions.

¶11. Kathy appeals from the court's Findings of Fact, Conclusions of Law and Order 

terminating her parental rights and from the court's rulings on her post-trial 

motions.

Standard of Review

¶12. This Court reviews a district court's conclusions of law to determine whether 

the court interpreted the law correctly. In re A. W-M., 1998 MT 157, ¶ 8-9, 960 P.2d 

779, ¶ 8-9, 55 St.Rep. 628, ¶ 8-9. 

¶13. We review a district court's findings of fact to determine whether the court's 

findings are clearly erroneous. A. W-M., ¶ 8-9 (citing Interstate Production Credit 

Association v. DeSaye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287). This Court 

adopted a three-part test in DeSaye to determine whether a district court's finding of 

fact is clearly erroneous. A finding of fact is clearly erroneous under the DeSaye test 

if it is not supported by substantial evidence; if the district court misapprehended the 

effect of the evidence; or if, after reviewing the record, this Court is left with a 

definite and firm conviction that a mistake has been made. In re E.W., 1998 MT 135, 

¶ 10, 959 P.2d 951, ¶ 10, 55 St.Rep. 536, ¶ 10 (citing DeSaye, 250 Mont at 323, 820 

P.2d at 1287).

¶14. This Court has stated that "a natural parent's right to care and custody of a 

child is a fundamental liberty interest, which must be protected by fundamentally 

fair procedures." In re E.W., ¶ 12 (quoting In re R.B., Jr. (1985), 217 Mont. 99, 103, 

703 P.2d 846, 848). Thus, a district court must adequately address each applicable 

statutory requirement before terminating an individual's parental rights. In re E.W., 

¶ 12 (citing In re R.B., Jr., 217 Mont. at 103, 703 P.2d at 848). The party seeking to 

terminate an individual's parental rights has the burden of proving by clear and 

convincing evidence that the statutory criteria for termination has been met. In re E.

W., ¶ 12 (citing In re J.L., D.L., and A.G. (1996), 277 Mont. 284, 288, 922 P.2d 459, 

461). In cases involving the termination of parental rights, this Court has stated that 

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clear and convincing proof is simply a requirement that a preponderance of the evidence 

be definite, clear, and convincing, or that a particular issue must be clearly established by 

a preponderance of the evidence or by a clear preponderance of proof. This requirement 

does not call for unanswerable or conclusive evidence. The quality of proof, to be clear 

and convincing, is somewhere between the rule in ordinary civil cases and the requirement 

of criminal procedure--that is, it must be more than a mere preponderance but not beyond 

a reasonable doubt. 

In re J.L., D.L., and A.G., 277 Mont. at 289, 922 P.2d at 462 (quoting In re Interest of S.M.

Q. (1990), 247 Kan. 231, 796 P.2d 543, 545).

¶15. When considering the criteria for termination, courts must give primary 

consideration to the best interests of the child as demonstrated by the child's 

physical, mental, and emotional conditions and needs. Section 41-3-609(3), MCA. See 

also Matter of B.C. (1997), 283 Mont. 423, 430, 942 P.2d 106, 110 (citation omitted). 

Discussion¶16. Did the District Court err in terminating Kathy's parental rights to H.G.?

¶17. The District Court adjudicated H.G. as a youth in need of care pursuant to § 41-

3-102, MCA, and terminated Kathy's parental rights pursuant to § 41-3-609, MCA, 

which provides in pertinent part: 

(1) The court may order a termination of the parent-child legal relationship upon a finding 

that any of the following circumstances exist: . . . 

(e) 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

(ii) the conduct or condition of the parents rendering them unfit is unlikely to change 

within a reasonable time; . . . .

Kathy does not dispute that H.G. is a youth in need of care. Instead, she argues that the 

District Court erred in terminating her parental rights pursuant to § 41-3-609(1)(e), MCA, 

because there was insufficient evidence to support the court's findings that she failed her 

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court-approved treatment plans and that her condition was unlikely to change within a 

reasonable time. We will address each of these issues in turn. 

A.

¶18. Did the District Court err in finding that Kathy failed to comply with her treatment 

plan?

¶19. The District Court found that Kathy failed to comply with her court-approved 

treatment plans. Kathy does not dispute that she failed to comply with her treatment 

plans. Rather, she argues that her noncompliance was insubstantial. Notwithstanding 

Kathy's argument, partial compliance with a treatment plan is insufficient to 

preclude termination of parental rights. Matter of B.C., 283 Mont. at 430, 942 P.2d at 

111 (citing Matter of J.J.C.H. (1992), 252 Mont. 158, 164, 827 P.2d 812, 816). 

¶20. Moreover, even if substantial compliance was sufficient to preclude termination 

of parental rights, we disagree with Kathy's argument that her noncompliance was 

insubstantial. Kathy's treatment plan required her to refrain from drinking alcohol. 

In spite of this requirement, the record shows that Kathy drank on one occasion to 

the point of not being able to recall how she traveled from a bar to her apartment. 

The record also shows that Kathy was required, but failed, to complete inpatient 

chemical dependancy treatment, complete outpatient chemical dependancy 

treatment, complete psychological treatment and counseling, and to take medications 

which Dr. Gray prescribed to her. Thus, it cannot be said that Kathy's 

noncompliance was insubstantial.

¶21. Kathy also contends that the District Court erred in finding that she failed to 

comply with her treatment plans because she was not given sufficient time to 

complete her treatment plans. However, Kathy had more than twenty-one months 

from the date the court approved her first treatment plan to the date of the court's 

hearing on the petition to terminate her parental rights to H.G. Kathy also had 

eleven months from the date that the court approved her second treatment plan to 

the date of the court's hearing on the petition. As a result, we conclude that Kathy 

had adequate time to comply with and complete her treatment plans.

¶22. Accordingly, having thoroughly reviewed the record in this case, we conclude 

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that there is clear and convincing evidence supporting the District Court's finding 

that Kathy failed her court-approved treatment plans. 

B.

¶23. Did the District Court err in finding that Kathy's conduct or condition is unlikely to 

change within a reasonable time?

¶24. The District Court found that "[t]he conduct and condition that renders Kathy 

unfit as a parent is not likely to change within a reasonable time measuring 

reasonable from the point of view of [H.G.'s] needs and interests." Kathy urges this 

Court to reverse the District Court's finding based on testimony that she had 

matured and become more responsible.

¶25. Section 41-3-609(2), MCA, provides in pertinent part:

(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 parentchild 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 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; . . .

(d) 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; . . . 

and

(g) any reasonable efforts by protective service agencies that have been unable to 

rehabilitate the parent.

¶26. In support of her argument, Kathy points to testimony from several witnesses 

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who stated that Kathy had matured and was "pulling her life together in a positive 

manner." Even so, most of the witnesses who testified agreed that Kathy was not 

likely to change her conduct and conditions so as to become a capable parent in a 

reasonable amount of time. Piersall, for example, testified that Kathy had 

"progressed," had the potential to progress further, and that her outlook on life had 

improved. Piersall, however, went on to state that he "couldn't make a strong 

argument" against the statement that Kathy's chances of becoming a successful 

parent were "very poor" because "the truth is [that] Kathy is a very fragile person 

with many problems." Dr. Gray testified that Kathy suffers from bipolar disorder 

but could possibly change her behavior so as to become a capable parent by taking 

the medication which he prescribed to her. Dr. Gray explained, however, that the 

problems concerning whether she would stay on the medications was "massive." 

Joanne Graves-Gill (Graves-Gill), a chemical dependancy counselor who had treated 

Kathy, testified that Kathy did not appear to relate her chemical use as a factor in 

the continued problems that she experienced. Graves-Gill also testified that Kathy's 

relapse potential was "very high." Ruth Watkins, a clinical psychologist who treated 

Kathy, testified that working with Kathy "is like pulling teeth" and opined that 

Kathy's behavior was unlikely to change in a reasonable amount of time. As a final 

example, Theresa Luhman, a treatment supervisor for therapeutic foster care who 

had worked with Kathy and H.G., testified that, although she had observed Kathy 

"making gains," it was "very unlikely" that Kathy could make the necessary changes 

in her behavior to "do what is right for [H.G.]." 

¶27. Thus, it is clear from the record that, based on Kathy's mental illness, use of 

alcohol and drugs, and the unsuccessful efforts of protective services agencies to 

rehabilitate her, Kathy's conduct and behavior was unlikely to change in a 

reasonable time. Section 41-3-609(2), MCA. Accordingly, we hold that there is clear 

and convincing evidence supporting the District Court's finding that the conduct and 

conditions that render Kathy unfit as a parent was unlikely to change within a 

reasonable time even though many witnesses testified that Kathy had made progress.

¶28. Based on the foregoing, we hold that clear and convincing evidence supports the 

District Court's findings that Kathy failed to comply with her treatment plans and 

that the conditions and conduct that made her unfit as a mother were unlikely to 

change within a reasonable time. Accordingly, we hold that the District Court 

correctly terminated Kathy's parental rights to H.G.

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¶29. Affirmed.

/S/ JAMES C. NELSON

We Concur:

/S/ J. A. TURNAGE

/S/ KARLA M. GRAY

/S/ WILLIAM E. HUNT, SR.

/S/ TERRY N. TRIEWEILER

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