No. 90-480 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1991 

IN THE MATTER OF A.W. and A.V.1 

youths in Need of Care. 

APPEAL FROM: District Court of the Sixteenth Judicial ~istrict, 

In and for the County of Custer, 

The Honorable Kenneth R. Wilson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

J. Dennis Corbin; Brown, Huss & Corbin; Miles city, 

Montana 

For Respondent: 

Marc Racicot, Attorney General; Deanne L. Sandholm, 

Asst. Atty. General; Helena, Montana 

Keith Haker, County Attorney; Garry P. Bunke, Deputy 

Co. Atty.; Miles City Montana 

Submitted on Briefs: December 20, 1990 

~ecided: February 14, 1991 

Filed: 

Clerk 
Justice R. C. McDonough delivered the opinion of the Court. 

This is an appeal from an order of the Montana Sixteenth 

Judicial District Court, Custer County, terminating the parental 

rights of Roxanne Weaver Vingoe, the natural mother of A.W. and 

A.V. The mother appeals, alleging that the District Court erred 

in concluding that her daughters A.W. and A.V. are youths in need 

of care and terminating her parental rights. We affirm the order 

of the District Court. 

A.W. was born on September 22, 1982 and A.V. was born on June 

14, 1987. At the time of the district court hearing the mother was 

26 years old. The natural father of A.V., Edward Vingoe, is 

currently incarcerated at Deer Lodge for sexual abuse and the 

natural father of A.W. is unknown. 

The record discloses that between January 1987 and July 1988, 

the Custer County Department of Family Services (DFS) received six 

formal referrals regarding A.W. and A.V. The referrals included: 

1) a January 20, 1987 notice of domestic violence between the 

mother and Edward Vingoe, the result of which extensively damaged 

their rented trailer home; 2) a September 21, 1987 referral that 

DFS make living arrangements for the children due to the mother's 

arrest on charges of assault; 3) an October 15, 1987 referral that 

DFS make living arrangements for the children due to the mother's 

arrest on theft charges; 4) a December 24, 1987 report to DFS from 

the mother that A.W. had been sexually abused by the mother's 

cousin, Charlie Weaver; 5) a July 11, 1988 report by a police 

officer that living conditions were such that A.V. had flies 
crawling all over her and that Charlie Weaver was present in the 

house and in the midst of sexual activity with an unknown girl 

(A.W. was not on the premises at the time); and 6) an anonymous 

July 6, 1988 report that A.W. had been seen out as late as 11 p.m. 

approximately five to six times per month, sometimes with her 

alleged abuser, Charlie Weaver, and that the children were cared 

for out of the home for a period of two to three weeks because the 

house was infested with crabs. 

These referrals led to the court's first order of August 8, 

1988 declaring the children as youths in need of care and granting 

temporary legal custody to DFS for six months. From July 11, 1988 

through September 28, 1989, and again from March 19, 1990 until the 

present time, the children have been in the protective custody of 

DFS. After a hearing on September 18, 1989, a stipulation was 

entered between the Custer County Attorney's Office, DFS, the 

mother, and the children's guardian ad litem. The stipulation 

provided that a prior petition for permanent legal custody by DFS 

filed in August of 1989 be dismissed, and that within two weeks of 

the stipulation custody of the children would be returned to their 

mother. The stipulation also provided that DFS would have 

temporary investigative authority for a period not to exceed six 

months and that DFS had a right to develop a treatment plan for the 

family to be presented to the court within thirty days for 

approval, and that such plan would not require the mother to 

participate in any treatment or programs that had already been 

completed by herself. The treatment plan approved by the court 
was designed to assist the mother in improving her personal and 

parental skills. It included alcohol and drug evaluation and 

treatment, mental health counseling to help the mother deal with 

her own victimization from sexual abuse as a child, career 

counseling and work on self-esteem, and an effort to improve her 

judgment in protecting her children from harm by other persons. 

The stipulation further provided that neither Kenneth Yother nor 

the mother's cousin, Charlie Weaver, have any contact with A.W. or 

A. V. at the mother's home or elsewhere. The mother of A.W. and 

A.V. became involved with Ken Yother around December 1988. Their 

relationship was volatile. In January 1989, the mother filed a 

petition for a temporary restraining order against Yother. In her 

supporting affidavit she indicated that on December 31, 1988, 

Yother physically abused her and her unborn child by throwing her 

on the floor, stepping on her midsection and threatening to abort 

the fetus. 

Kenneth Yother is an admitted sex offender. He recently was 

charged with deviate sexual conduct regarding his relationship with 

a seventeen year-old boy over some ten years and pled guilty to 

misdemeanor sexual assault on that charge. (Custer County Criminal 

Cause No. 3313 .) He received a two year deferred imposition of 

sentence with certain terms and conditions, one of which provided 

that he would obey the court order with respect to A.V. and A. W. 

and have no contact with them. 

In spite of the District Court's order the mother of A.W. and 

A.V. left Miles City, Montana with Yother for Las Vegas, Nevada, 
taking A.V. and A.W. in violation of the stipulation with DFS. A 

few days prior to leaving, Yotherls 13-year-old daughter allegedly 

told the mother that she had been raped by her father. During the 

move, A.W. did not attend school from October 1989 to January 1990. 

In March of 1990, the mother of A.W. and A.V. gave birth to a girl 

whose natural father is Kenneth Yother. 

In its order terminating the mother's parental rights, the 

District Court took judicial notice of the earlier proceedings that 

were dismissed when the stipulation was entered. The District 

Court concluded that A.W. and A.V. are youths in need of care 

within the meaning of 3 41-3-102(11), MCA, and that termination of 

the parent-child relationship was appropriate because the mother 

failed to comply with the court ordered treatment plans and that 

the conduct or condition of the mother was not likely to change 

within a reasonable time. The court further determined that the 

best interests of the children would be served by termination of 

the parent-child relationship and by awarding the permanent legal 

custody to DFS with the lawful authority to consent to the 

children's adoption. 

The mother contends that the District Court erred in several 

respects. She contends that there were inadequate grounds to 

terminate her parental rights, that the evidence was insufficient 

to support termination, and that the termination therefore 

constitutes an abuse of discretion by the district court. 

We disagree. The applicable criteria for termination are set 

out at 3 41-3-609, MCA, which provides: 
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 

(ii) the conduct or condition of the parents 

rendering them unfit is unlikely to change within a 

reasonable time. 

Section 41-3-609, MCA; See, e.g., In the Matter of A.H., T.H., and 

J.A.H. (1989), 236 Mont. 323, 326, 769 P.2d 1245, 1247-48. The 

statutes further provide that a "youth in need of care1' is a 

dependent, neglected or abused youth. Section 41-3-102(11), MCA. 

The definition of a dependent youth includes a person under 18 

years of age (1) who is without parents or guardian or not under 

the care and supervision of a suitable adult, or (2) who has no 

proper guidance to provide for the youth's necessary physical, 

moral, or emotional well-being. Section 41-3-102 (10) , MCA. An 

abused or neglected child or youth is defined as any person under 

the age of 18 whose normal physical or mental health or welfare is 

harmed or threatened with harm by the acts or omissions of the 

child's parent other person responsible for the child's welfare. 

Section 41-3-102 (1) through (2), MCA. 

In this case, there is sufficient evidence meeting the 

necessary criteria to support termination of the mother s parent 

rights. In affirming the District Court's order, we are 

nevertheless mindful of the State's high burden in demonstrating 

that such termination is necessary. "Parental rights involve a 
fundamental liberty interest, and a judicial decree terminating 

\J\ such rights must be supported by clear and convincing evidence. 

\ 

4' 

', \ In the Matter of the Adoption of D. J.V. (Mont. 1990) , 796 P. 2d 

1076, 1077-78, 47 St.Rep. 1522, 1524; In re the Adoption of C.R.D. 

(1989), 240 Mont. 106, 109, 782 P.2d 1280, 1282; citing Santosky 

v. Kramer (1982), 455 U.S. 745, 753-4, 102 S.Ct. 1388, 1394-95, 71 

L.Ed.2d 599, 606. Parental rights do not exist without concomitant 

obligations. D.J.V., 796 P.2d at 1078. Here, there is clear and 

convincing evidence supporting the decree terminating the mother's 

parental rights. The mother continually exposed her children to 

a harmful living environment fraught with potential for sexual 

abuse. She apparently has a propensity to associate herself with 

physically and sexually abusive men and has shown no likely 

prospect that she will change this course of conduct. She has 

failed to comply with her treatment program in keeping herself and 

her children away from Ken Yother and in refraining from using 

alcohol. She reported a possible rape upon A.W. by her cousin 

Charlie Weaver but despite the terms of the stipulated order has 

failed to keep A.W. away from this man. 

Thus, the District Court properly adjudicated A.W. and A.V. 

''youths in need of care1' because they are not under the care and 

supervision of a suitable adult, § 41-3-102(10) (b) , MCA; they have 

no proper guidance to provide for their necessary physical, moral, 

or emotional well-being, 41-3-102(lO)(c), MCA; and they are 

threatened with sexual and physical abuse due to the continued 

harmful associations of their mother, 5 41-3-102 (2), MCA. The 
mother has failed to comply with an appropriate court approved 

treatment plan, furthermore such plan has not shown any indications 

of success. The conduct and condition of the mother in associating 

herself with sexually abusive men is unlikely to change--indeed it 

has failed to change--within a reasonable time so as to make her 

a fit parent. section 41-3-609, MCA. 

The mother contends that the ~istrict Court's dismissal of the 

first petition for permanent legal custody and return of the 

children to her absolves her of any past misconduct that might be 

construed as abuse and neglect. his contention lacks merit. At 

no time have the earlier orders of the court adjudicating the 

children as youths in need of care ever been appealed. Once that 

determination is made, the court may terminate parental rights if 

the other two statutory criteria are met: (1) that an appropriate 

court approved treatment plan has been unsuccessful or not complied 

with, and (2) the conduct or condition of the parents rendering 

them unfit is unlikely to change within a reasonable time. section 

41-3-609, MCA; In the Matter of T.C. and R.C. (1989), 240 Mont. 

308, 313-14, 784 P. 2d 392, 395. The statute only requires that the 

parents fail to comply with an appropriate court approved treatment 

plan; it does not require that a treatment plan is in effect at the 

time of termination. Matter of J.L.S. and A.D.S. (1988), 234 Mont. 

201, 206, 761 P.2d 838, 841. The District Court's earlier decision 

to dismiss the initial petition and not terminate the mother's 

parental rights was based in part on the formulation of a treatment 

program for the mother and was contingent upon future compliance 
with such program. The mother's continued failure to comply with 

treatment and to continually endanger her children preclude her 

from claiming that the dismissal has cleared her of her past 

conduct. 

Finally, the court also met its obligation to consider the 

factors set out in subsections (2) and (3) of 5 41-3-609, MCA, 

which provide: 

(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; 

(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; 

(e) present judicially orderedlong-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 the 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. 

Section 41-3-609(2) through (3), MCA. In determining that the 
mother is unfit and unlikely to change her conduct or condition in 

this case, the court apparently gave considerable weight to 

subsections (2) (d) and (2) (g) of § 41-3-609, MCA, listed above. 

Also the mandate of subsection (3) instructs the court to give 

primary consideration to the needs of the children when evaluating 

whether a parent's conduct is likely to change within a reasonable 

time. Thus, the inquiry really focuses on the mental and physical 

health of the children and the urgency of their needs. In the 

Matter of H.R.B. & K.R.B. (1989), 239 Mont. 387, 390, 780 P.2d 

1139, 1141. The District Court's findings of fact and conclusions 

of law set forth the testimony and opinions of mental health and 

child care professionals regarding the mental and emotional states 

of the children and indicate the court's careful consideration of 

the needs of the children in its decision. This Court will not 

overturn a transfer of custody of abused, neglected, or dependent 

youth to the State absent a clear showing of abuse of discretion. 

.I 

T C 784 P.2d at 394; A.H., 769 P.2d at 1249. We find no abuse 

of discretion in this case. The order of the District Court is 

AFFIRMED. 

We Concur: 
Justices 

(, \