No. 94-290

IN THE SUPREME COURT OF THE STATE OF MONTANA

IN THE MATTER OF THE CUSTODY

AND PARENTAL RIGHTS OF M.M.,

Youth in Need of Care.

APPEAL FROM: District Court of the First Judicial District,

In and for the County of Lewis and Clark,

The Honorable Jeffrey Sherlock, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

James B. Obie, Attorney at Law, Helena, Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General; John

Paulson, Ass't Attorney General, Helena, Montana

Mike McGrath, County Attorney; Carolyn A. Clemens,

Deputy County Attorney

Randi Hood, Public Defender, Helena, Montana

Filed:

Submitted on Briefs: January 12, 1995

Decided: April 25, 1995
Justice Karla M. Gray delivered the Opinion of the Court

Richard M. (Richard), the natural father of M.M., appeals from

the findings of fact, conclusions of law and order entered by the

First Judicial District Court, Lewis and Clark County, which

terminated his parental rights to M.M. We affirm, holding that the

District Court did not err in concluding that the treatment plans

provided for Richard were appropriate.

M.M. was born on July 11, 1989, to Richard M. and Elizabeth L.

In September 1992, the Lewis and Clark County Department of Family

Services (DFS) placed M.M. in emergency protective custody

following a report that Richard had taken him to a bar and spent

the day drinking, leaving M.M. unattended. On September 9, 1992,

Richard signed a stipulation agreeing to DFS' temporary

investigative authority over M.M. and preparation of a treatment

plan for Richard. The District Court approved the stipulation on

the same day.

Richard signed the treatment plan on October 29, 1992, and the

District Court subsequently approved it. The two goals of the

treatment plan were for Richard to exhibit stability in his

everyday lifestyle and end his dependence on alcohol. Richard was

required to maintain stable and safe housing, obtain a

psychological evaluation, complete approved parenting classes and

ensure that any adult residing in his household abided by the

provisions of the treatment plan. He also was required to obtain

a chemical dependency evaluation and follow the evaluator's

recommendations.

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On March 23, 1993, the District Court extended the treatment

plan for an additional six months. Two months later, Chris Valdez

(Valdez), the Lewis and Clark County (County) social worker

assigned to the case, reported that Richard was dishonest with

alcohol counselors and refused to participate in parenting classes.

Valdez recommended that Richard receive a psychological evaluation,

as required by the treatment plan, and continue to work towards

completing the plan. On May 25, 1993, the County, acting on behalf

of DFS, petitioned for adjudication of M.M. as a youth in need of

care.

On June 9, 1993, pursuant to a revised treatment plan signed

by both Richard and his attorney and in accordance with a

stipulation, the District Court ordered DFS to retain temporary

custody and investigative authority over M.M. The revised

treatment plan, approved by the court, required Richard to complete

parenting training with Greg Daly (Daly), take classes on fetal

alcohol syndrome, participate in Alcoholics Anonymous (AA) and

submit to 30 days of alcohol testing. The revised treatment plan

was to remain in effect for 90 days and stated specifically that

Richard's failure to abide by its terms would result in DFS

petitioning to terminate his parental rights to M.M.

Richard showed little, if any, progress on the goals and

tasks of the treatment plan during the following months, according

to Valdez's October 21, 1993, report. Richard had moved eleven or

twelve times during the course of Valdez's management of the case

and was involved with three different women, each of whom he

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required M.M. to address as "mother." At the time of the October

1993 report, Richard recently had married Toni M. They lived in a

two-bedroom apartment with seven other people, including Richard's

brother Thomas, a convicted child molester, and his brother's wife,

a convicted felon. Toni's parental rights to two of her children

had been terminated, she was caring for her 18-month-old child and

she and Richard were expecting a child.

Valdez also reported that Richard had failed to attend AA and

failed to report for alcohol testing. Following Valdez's report,

the County petitioned for the termination of Richard's parental

rights and for permanent legal custody of M.M. with the right to

consent to adoption.

On January 4 and 11, 1994, the District Court held a hearing

on the termination petition. Many of the professionals who had

worked with M.M. and Richard over the course of the preceding two

years testified, discussing the specific problems facing M.M. and

Richard, and Richard's failure to comply with the requirements of

the treatment plan.

Following the hearing, the District Court entered extensive

findings of fact, conclusions of law and an order terminating

Richard's parental rights. Richard appeals.

Did the District Court err in concluding that the

treatment plans approved for Richard were appropriate?

Section 41-3-609, MCA, sets forth the criteria for termination

of the parent-child relationship. Termination is authorized if the

court determines that the child is a youth in need of care and both

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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(l) cc), MCA.

The termination of parental rights involves fundamental

liberty interests. Matter of J.R. (1992), 253 Mont. 434, 438, 833

P.2d 1063, 1066 (citation omitted) As a result, the party

petitioning for termination has the burden of proving by clear and

convincing evidence that the statutory criteria needed to terminate

parental rights have been met. Matter of J.R., 833 P.2d at 1066.

A district court's conclusions of law in a termination proceeding

are reviewed to determine if they are correct. Matter of J.J.G.

(1994), 266 Mont. 274, 281, 880 P.2d 808, 812 (citation omitted).

In this case, we focus on the 5 41-3-609(l) (c) (i), MCA,

criterion for termination involving whether the parent complied

with an appropriate treatment plan. It is essentially undisputed

that Richard did not comply with either the original, or the

revised, plan and, indeed, he does not challenge any of the court's

extensive findings relating to his lack of compliance.

Richard argues that the District Court erred in concluding

that he was provided with an appropriate treatment plan prior to

termination of his parental rights. While he makes a passing

reference to a separate statutory factor regarding whether DFS made

reasonable efforts to rehabilitate him (see § 41-3-609(2) (g), MCA),

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the thrust of his argument is that a psychological evaluation of

him should have been obtained earlier than August 1993. According

to Richard, an earlier evaluation would have highlighted both his

borderline intellectual functioning and the need for a treatment

plan taking his limitations into account.

This Court has not specifically defined what constitutes an

"appropriate" treatment plan as a matter of law and, indeed, no

such bright line definition is possible given the unique

circumstances existing in each case. We have, however, recognized

several factors applicable to determining whether a treatment plan

is appropriate. One such factor is whether the parent was

represented by counsel and stipulated to the treatment plan. See

Matter of R.H. (1991), 250 Mont. 164, 169, 819 P.Zd 152, 155.

Here, both Richard and his counsel stipulated to the June 1993

treatment plan. While this fact does not establish that the plan

was appropriate, it is entitled to consideration. Matter of J.R.,

833 P.2d at 1066.

Other factors which must be taken into consideration in

determining whether or not the individual treatment plan is

appropriate are the particular problems facing both the parent and

the child. See Matter of S.C. (1994), 264 Mont. 24, 29, 869 P.2d

266, 269; Matter of J.R., 833 P.2d at 1065-66. In this case, it is

clear that DFS considered the particular physical and mental

problems facing both M.M. and Richard when devising and

implementing the treatment plans.

Dr. William Fulton (Fulton), a child psychiatrist and the

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medical director of child psychiatrist services at Shodair

Hospital, testified regarding M.M. 's problems at the termination

hearing. Fulton evaluated M.M. in December 1992, after M.M. was

admitted to address problems exhibited while in foster care,

including developmental and speech delay, self-injurious behavior

and aggression. According to Fulton, M.M. was functioning at the

level of an 18-month-old infant at age 41 months. Fulton's

evaluation also disclosed that M.M. was plagued by a number of

physical and mental problems, including reactive attachment

disorder, often the result of grossly neglectful caretaking;

possible post-traumatic stress disorder; mental retardation; fetal

alcohol syndrome; and a cleft palate.

Fulton opined that M.M. needed a parent who could

intellectually understand his condition and provide a stable,

consistent and loving environment. This opinion was echoed by Dr.

Susan Lewin, another Shodair physician trained in pediatrics and

medical genetics who had evaluated M.M.

The two broad goals of the treatment plan were for Richard to

maintain a stable lifestyle and to break his dependency on alcohol.

To meet these goals, Richard was responsible for obtaining safe and

stable housing, attending parenting and fetal alcohol syndrome

classes, obtaining a psychological evaluation and refraining from

the use of alcohol. Given Richard's documented alcohol problem and

transient lifestyle, these goals not only dovetailed into Fulton's

opinion of M.M.'s needs, but also were pertinent to Richard's

individual problems.
Besides the terms of the treatment plans, the professionals

who worked with M.M. and Richard also attempted to deal with their

unique problems. These social workers testified that they

understood both M.M.'s and Richard's particular needs and tried to

assist Richard in confronting and resolving these issues.

Ultimately, they concluded that Richard's inability to admit and

confront both his own and M.M.' s problems caused his failure with

the treatment plans.

Richard points out that the psychological evaluation performed

in August 1993 revealed he had borderline intellectual functioning.

On this basis, he argues that an appropriate treatment plan should

have provided him with such an evaluation earlier and then taken

the limited mental capabilities it disclosed into account in

designing the remainder of the plan. His argument is not

persuasive.

The October 1992 treatment plan prepared for Richard included

the requirement that he "contact a Department of Family Services

approved therapist to obtain a psychological evaluation and . . .

follow any recommendations." He did not do so. The June 1993

treatment plan included a nearly identical requirement. Richard

did not obtain the evaluation until August 1993 at which time his

borderline intellectual functioning was officially discovered

during a neuropsychological examination at St. Peter's Hospital.

While it is true that the State may assist a parent in completing

the treatment program, the parent retains the responsibility for

complying with the plan. Matter of R.H., 819 P.Zd at 156 (citation

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omitted). Richard was responsible for obtaining the evaluation at

an earlier time and simply failed to do so.

More importantly, however, Richard has not established how

earlier knowledge of his condition would have affected either the

particular requirements of the plan or the professionals' work with

Richard and the plan. Indeed, Richard has not argued with any

specificity what modifications to the treatment plans would, or

even might, have resulted from an earlier evaluation. A plain

review of the plans reveals that there is nothing complicated about

the tasks Richard was required to complete.

In addition, the professionals who worked with Richard seemed

to understand his limited intellectual abilities and tailored their

interaction with him accordingly. For example, psychotherapist

Bill Evans (Evans) met with Richard on numerous occasions in the

autumn of 1992 to work on his alcohol addiction, anger and

impulsiveness. When asked if Richard's limited intelligence had

affected their work together, Evans stated that, while he would

often have to repeat himself, Richard appeared to comprehend what

he was saying. In Evans' opinion, Richard's failure to respond to

the counseling sessions was due to his lack of motivation to make

the internal changes necessary to overcome his problems, not his

limited intelligence.

Daly, the instructor for Richard's parenting training, also

testified about the affect of Richard's limited intelligence on his

progress under the treatment plan. After working with M.M. and

Richard together, Daly developed parenting goals for Richard which

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included learning how to positively interact with--and discipline--

M.M., and how to act as an appropriate role model. Daly testified

that Richard resisted the education and would not accept or admit

that his son had disabilities that required special attention. As

a result, Daly saw no change in Richard's method of parenting. He

ultimately opined that Richard would continue to refuse to learn

the skills necessary to be an effective parent for M.M.

Daly was cross-examined about his knowledge of Richard's

limited intelligence and its impact on their work together. Daly

testified that he knew of Richard's limited intelligence from the

beginning and tailored his instruction accordingly.

The District Court also heard testimony from Valdez about the

affect Richard's intelligence had on his progress with the

treatment plan. On cross-examination, Richard's attorney asked

Valdez whether, if knowledge of Richard's limited intellectual

abilities had been known earlier, his performance under the

treatment plan would have been different. Valdez responded: "I

guess what I see is that it is not as much [Richard's] functioning

ability as his inability to . . . change how he functions and how

he parents his child."

Kelly Moorse (Moorse), M.M.'s guardian ad litem, was the only

witness who testified that advance knowledge of Richard's limited

abilities would have benefited his progress under the treatment

plans. She opined that earlier knowledge of Richard's condition

would have assisted both Richard and the professionals working with

him in dealing with his problems. Ultimately, however, Moorse

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testified that, while such knowledge would have "helped in terms of

approaches[,l I am not sure the outcome would have been any

different." Moorse's report recommended termination of Richard's

parental rights.

The inability of some parents to face deeply rooted personal

problems, often identified in the treatment plan, is not uncommon.

In Matter of J.R., the parent argued that a treatment plan

requiring her to obtain psychological counseling was not

appropriate because of her limited financial means. However, the

professionals who worked with the parent testified that the failure

of the plan resulted from her refusal to admit she had a problem,

not from her financial situation. We affirmed the termination

order, concluding that the District Court did not err in

terminating the parent's rights. Matter of J.R., 833 P.2d at 1067.

As was the case in Matter of J.R., the failure of the

treatment plan in this case is not the result of an inappropriate

plan; it is the result of Richard's failure to admit and address

the problems the treatment plan was designed to overcome. Nor was

the plan inappropriate because it did not specifically recognize

Richard's limited intellectual functioning. Earlier compliance by

Richard with the requirement that an evaluation be obtained would

have disclosed the information. Moreover, ample evidence exists

that the professionals who worked with Richard on the treatment

plans understood his level of intelligence and tailored their work

accordingly. We hold, therefore, that the District Court did not

err in concluding that Richard's treatment plans were appropriate

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within the meaning of 5 41-3-609(l) (c) (i), MCA.

Affirmed.

We concur:

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