<97-439

 No. 97-439

 IN THE SUPREME COURT OF THE STATE OF MONTANA

 

 1998 MT 135

IN RE DECLARING E.W., C.W., AND A.W.

Youths in Need of Care.

APPEAL FROM: District Court of the Eighteenth Judicial District,

 In and for the County of Gallatin,

 The Honorable Thomas A. Olson, Judge presiding.

COUNSEL OF RECORD:

 For Appellant:

 Daniel P. Buckley; Berg, Lilly, Androlio & Tollefson, P.C.;

 Bozeman, Montana

 For Respondent:

 Hon. Joseph P. Mazurek, Attorney General; 

 Stephen C. Bullock, Assistant Attorney General;

 Helena, Montana

 Marty Lambert, Gallatin County Attorney; 

 Gary Balaz, Deputy County Attorney; Bozeman, Montana

 For Guardian Ad Litem:

 Todd Hillier, Attorney at Law, Bozeman, Montana

 Submitted on Briefs: April 16, 1998

 Decided: June 2, 

1998 

Filed:

 __________________________________________

 Clerk

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Justice Jim Regnier delivered the opinion of the Court.

¶1 J.A. appeals from an order of the Eighteenth Judicial District Court,

Gallatin County, terminating her parental rights over E.W., C.W., and A.W. 

For the reasons stated below, we affirm. The sole issue on appeal is whether

the District Court erred in terminating J.A.'s parental rights.

 FACTUAL AND PROCEDURAL BACKGROUND

¶2 J.A. and L.W. married in 1986, and are the natural parents of E.W.,

C.W., and A.W., the three minor children involved in the present matter. 

Their first child, E.W., was born on November 22, 1988. The Department of

Public Health and Human Services, formerly the Department of Family

Services, first began providing services to J.A. in June 1989 when E.W. was

seven months old. On September 1, 1989, J.A. and the Department entered

into a service treatment agreement designed to help J.A. provide proper care

for her son. On October 15, 1990, the Department filed a petition for

temporary investigative authority and emergency protective services. The

court issued an order for emergency protective services, and appointed a

guardian ad litem for E.W. At the October 30, 1990, show cause hearing, the

parties informed the court they had reached an agreement, and the Department

entered into a service treatment plan with J.A. and L.W. The District Court

issued an order granting the Department temporary investigative authority over

E.W. for the six-month period due to expire on January 30, 1991. The parties

subsequently agreed to terminate supervision, and on January 14, 1991, the

District Court terminated the matter. 

¶3 J.A. and L.W. had their second child, C.W., on August 4, 1991. Their

third child, A.W., was born nearly a year later, on July 1, 1992. J.A. and L.W.

divorced in 1993, and J.A. married T.A. on July 17, 1994. The record

indicates there were numerous referrals during this period of time, and the

Department thus continued its involvement with J.A.

¶4 On July 14, 1994, the Department filed a second petition in response

to a referral of physical, emotional, and medical neglect, this time seeking

temporary investigative authority and protective services for E.W., C.W., and

A.W. T.A. subsequently left the state, thereby violating the conditions of his

probation, and J.A. was evicted from her apartment in August 1994. The

children were placed in foster care on August 19, 1994, where they have since

remained. On August 30, 1994, the District Court entered an order granting

the Department's petition for temporary investigative authority and protective

services for a six-month period. 

¶5 On September 28, 1994, J.A. entered into a court ordered contract and

treatment plan designed to "reunite the family by helping [J.A.] learn

appropriate parenting skills and how to provide a safe environment for the

children." On February 22, 1995, the Department filed a petition seeking

temporary custody for an additional six-month period, on the grounds that J.A.

had failed to fulfill her obligations under the September 1994 treatment plan. 

The court granted the Department's petition on March 14, 1995, providing the

Department with another six-month period of temporary custody, and ordering

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that J.A. "successfully complete her treatment plan." 

¶6 Six months later, the Department again petitioned the court to extend

its temporary custody over E.W., C.W., and A.W. for an additional six months

and asked for a revised treatment plan. In support of its September 11, 1995,

petition, the Department cited to J.A.'s continuing failure to complete the

requirements of her existing treatment plan. The parties agreed to another

six-month period of temporary custody, and on September 20, 1995, the District

Court entered an order continuing the Department's temporary custody until

March 1996. The District Court appointed counsel for J.A., and the parties

negotiated a revised contract and treatment plan, approved by the court on

January 10, 1996.

¶7 On April 19, 1996, the Department filed a petition to terminate J.A.'s

parental rights. Arguing J.A. had failed to comply with the requirements of

her January 1996 treatment plan, the Department sought to terminate J.A.'s

parental rights on the stated grounds "that the treatment plan has not been

successful and the mother's conduct or condition rendering her unfit is unlikely

to change within a reasonable time." 

¶8 In May 1996, the District Court conducted a five-day hearing on the

petition to terminate parental rights. On June 3, 1997, the court issued its

findings of fact, conclusions of law, and order, terminating J.A.'s parental

rights to E.W., C.W., and A.W. It is from the District Court's order

terminating her parental rights that J.A. presently appeals. 

 STANDARD OF REVIEW

¶9 We review a district court's decision to terminate parental rights to

determine whether the court interpreted the law correctly and whether its

findings of fact are clearly erroneous. In re K.F.L. and N.L. (1996), 275 Mont.

102, 104, 910 P.2d 241, 243.

¶10 In In re D.H. and F.H. (1994), 264 Mont. 521, 524, 872 P.2d 803, 805,

we clarified the standard of review for cases involving a youth in need of care

and termination of parental rights. The appropriate standard of review to be

applied to purely factual findings in a termination of parental rights proceeding

is the clearly erroneous standard as set forth in Interstate Production Credit

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

DeSaye, we explained that, pursuant to the clearly erroneous standard of

review,

 [f]irst, the Court will review the record to see if the findings are

 supported by substantial evidence. Second, if the findings are

 supported by substantial evidence we will determine if the trial

 court has misapprehended the effect of the evidence. Third, if

 substantial evidence exists and the effect of the evidence has not

 been misapprehended the Court may still find that "[A] finding

 is 'clearly erroneous' when, although there is evidence to support

 it, a review of the record leaves the Court with the definite and

 firm conviction that a mistake has been committed." U[nited]

 S[tates] v. U.S. Gypsum Co. (1948), 333 U.S. 364, 68 S.Ct. 525,

 92 L.Ed. 746.

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DeSaye, 250 Mont. at 323, 820 P.2d at 1287 (citations omitted).

¶11 We review conclusions of law in a termination proceeding to determine

if those conclusions are correct. In re D.H. and F.H., 264 Mont. at 525, 872

P.2d at 805.

¶12 This court has recognized 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 R.B., Jr. (1985), 217 Mont. 99, 103,

703 P.2d 846, 848. Accordingly, prior to terminating an individual's parental

rights, the district court must adequately address each applicable statutory

requirement. In re R.B., Jr., 217 Mont. at 103, 703 P.2d at 848. Moreover,

"the party seeking termination must present clear and convincing evidence to

the district court that the prerequisite statutory criteria for termination have

been met." In re J.L., D.L., and A.G. (1996), 277 Mont. 284, 288, 922 P.2d

459, 461.

¶13 In the context of parental rights termination cases, we have defined

clear and convincing evidence as 

 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 the proof. This requirement does not

 call for unanswerable or conclusive evidence.

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

¶14 We presume that the district court's decision 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 J.R. and S.D. (1992), 253 Mont. 434, 440-41, 833 P.2d 1063,

1067; In re J.J.C.H. and C.M.H. (1992), 252 Mont. 158, 162, 827 P.2d 812,

815.

 DISCUSSION

¶15 Did the District Court err in terminating J.A.'s parental rights? 

¶16 The Department petitioned to terminate J.A. parental rights pursuant to

§ 41-3-609(1)(c), MCA (1995) (since renumbered § 41-3-609(1)(e), MCA),

which provided as follows:

 The court may order a termination of the parent-child legal relationship upon

 a finding that any of the following circumstances 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.

 

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¶17 Relying on § 41-3-609(1)(c), MCA (1995), the Department sought to terminate J.

A.'s

parental rights due to her alleged failure to comply with the January 1996 treatment 

plan, and

on the grounds "that the treatment plan has not been successful and the mother's 

conduct or

condition rendering her unfit is unlikely to change within a reasonable time." 

 

¶18 In its June 3, 1997, order terminating J.A.'s parental rights, the District 

Court

concluded that "[a]ll of her treatment plans have met with mixed results, but [J.A.] 

cannot

parent these children in the near or distant future." The court also concluded the 

termination

of J.A.'s parental rights was warranted because it was "not in the interests of 

these children's

physical, mental and emotional needs to place them on hold any longer." 

¶19 On appeal, J.A. argues the court erred in so concluding, and generally asserts 

that,

because the Department failed to meet its burden of presenting clear and convincing 

evidence

in support of its petition for termination, the court's findings of fact are thus 

clearly

erroneous, and its conclusions of law incorrect. More specifically, J.A. argues the 

court

improperly disregarded testimony by a number of professionals who opposed the 

termination

of her parental rights and instead "supported the return of the children." J.A. 

asserts the

evidence of record, including testimony by all three professionals integrally 

involved in the

case, demonstrates that she complied with the January 1996 treatment plan, and that 

the

treatment plan was successful. Based on the foregoing, J.A. argues the evidence of 

record

demonstrates "by clear and convincing proof that [J.A.] is a competent mother," and 

asserts

the court erred in concluding J.A. is unfit to parent her children and in 

terminating her

parental rights.

¶20 In support of her argument that the 1996 treatment plan was successful, J.A. 

relies in

part upon the testimony of counselor Barbara Boik, who explained that, were J.A. to 

"have

a good support system in line and get the help that she needed," Boik "would really 

like to

see the children with her." J.A. also points generally to testimony by Eleanor 

Truitt, a

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licensed clinical social worker, who explained that she believed J.A. could, with 

proper help,

parent her children, and that the children should thus "be able to return to their 

mother." J.A.

also relies upon the opinion of case aid Joyce VanderVoort who testified that 

because J.A.

had made a concerted effort to improve her parenting skills, she was deserving of a 

chance

to "use the skills." Moreover, J.A. notes that clinical psychologist Dr. 

McElhinny, although

called as a witness by the Department, conceded that the opinions expressed by Boik, 

Truitt,

and VanderVoort regarding the placement of the children would be important. 

Finally, J.A.

points to similar testimony by clinical social worker Suzy Saltiel who stated that 

she "would

like to see these children with their mother." Pointing to testimony by the 

foregoing

individuals, J.A. argues that all of the professionals who "were integral to the 

treatment plan"

believed she had successfully completed the plan and supported the return of her 

children. 

¶21 The Department, in response, points to contrasting testimony by a number of

witnesses who expressed their ongoing concerns about J.A.'s ability to parent her 

children,

and who concluded that the treatment plan had been unsuccessful. For example, the

Department notes that Meg Babits, the children's guardian ad litem, expressly 

testified that,

in her opinion, "[t]he treatment plan has not been successful." The Department also 

relies

upon testimony by social worker Elizabeth Hoyt-Leonard, who explained that she did 

not

think the January 1996 treatment plan had been effective. The Department 

additionally points

to testimony by Steven Ware, a member of J.A.'s treatment team, who explained that he

continued to have concerns about J.A. neglecting her children and not being able to 

look out

for their emotional well-being. The Department also relies upon the opinion of Ellen

Berglund, the children's trained therapeutic foster mother, who testified that she 

thought J.A.

was unable to change and had neglected to remedy the circumstances that led to the 

removal

of her children. Finally, the Department notes that Dr. James Feist, the children's

pediatrician for nearly six years, testified that the children were "high needs" 

children, and

that J.A. did not have the ability to "respond to their needs." 

¶22 As demonstrated by the parties' respective arguments, the record contains 

conflicting

evidence and testimony with regard to the success or failure of J.A.'s 1996 

treatment plan. 

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Under these circumstances, it is not our function on appeal to reweigh the 

conflicting

evidence of record, substitute our "evaluation of the evidence for that of the trial 

court, or

pass upon the credibility of the witnesses." In re J.L., 277 Mont. at 290, 922 P.2d 

at 462

(quoting In re Interest of S.M.O. (Kan. 1990), 796 P.2d at 545.) That there exists 

conflicting

evidence of record "does not automatically preclude a finding that clear and 

convincing

evidence to support a given position exists." In re J.L., 277 Mont. at 290, 922 

P.2d at 462.

¶23 In its order terminating J.A.'s parental rights, the District Court recognized 

that the

record contained conflicting evidence regarding J.A.'s ability to parent her 

children, as well

as the success or failure of her January 1996 treatment plan. The court made 284 

findings

of fact, many of which chronicled conflicting testimony by various witnesses 

regarding the

implementation and success of the treatment plan at issue. For example, the court 

recounted

testimony by Babits and Hoyt-Leonard, each of whom believed that the 1996 treatment 

plan

had not been effective or successful. The court did acknowledge, however, that 

there existed

conflicting testimony by a number of individuals. For example, the court recognized 

in its

findings of fact that Boik believed "the children would be better off with their 

mother, so

long as she had a support system around her." The court also acknowledged that 

Truitt "was

of the opinion that [J.A.] could parent her children with help" and that "[s]he 

favored a return

of the children to [J.A.], so long as [J.A.] received parenting aid, and respite day 

care." 

Finally, the court noted that VanderVoort thought J.A. deserved a chance to use her 

newly

acquired skills and parent her children with support from the Department. 

¶24 Thus, although J.A. argues the District Court failed to give proper 

consideration to

testimony by Boik, Truitt, and VanderVoort, review of the District Court's lengthy 

findings

of fact indicates otherwise. The court clearly considered the testimony of each 

witness

before concluding that all of J.A.'s treatment plans, including the 1996 treatment 

plan, had

"met with mixed results, but [J.A.] cannot parent these children in the near or 

distant future." 

After considering all of the evidence before it, the court concluded that J.A., 

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 the mother of these three children, by proof beyond all doubt, will never be a

 competent mother. She has been given every service available by the

 department. Although it is true, the department should have stepped in much

 sooner, given her services and then terminated her rights if she could not

 improve, the fact still remains that she will never be able to parent these 

three

 children adequately, given the intensive parenting they require and her level

 of parenting skills. 

¶25 Review of the District Court's findings of fact and conclusions of law 

indicates it did

not, as J.A. suggests, "ignore[] the recommendation of the three primary 

professionals who

were integral to and a part of the treatment plan." Instead, the court evaluated 

all pertinent

evidence and testimony before effectively concluding J.A.'s treatment plan had been

unsuccessful, and ordering the termination of J.A.'s parental rights. Having 

reviewed the

record and the District Court's order, we conclude the court's findings of fact are 

supported

by substantial evidence, and are not clearly erroneous. We hold the court did not 

err in

concluding that J.A.'s treatment plan had met with only "mixed results" and was thus

unsuccessful.

¶26 As noted above, J.A. also argues that the evidence of record demonstrates she

complied with the January 1996 treatment plan, and suggests the court thus erred in

concluding she was unfit to parent her three children. Pursuant to § 41-3-609(1)

(c), MCA

(1995), a court may order the termination of parental rights upon a finding that a

court-approved treatment plan has been unsuccessful or has not been complied with, 

and a

finding that "the conduct or condition of the parents rendering them unfit is 

unlikely to

change within a reasonable time." In other words, "a parent must not only comply 

with the

treatment plan, but the treatment plan must also be successful." In re S.C. (1994), 

264 Mont.

24, 29, 869 P.2d 266, 269.

 

¶27 In the present case, the Department expressly petitioned to terminate J.A.'s 

parental

rights on the grounds "that the treatment plan has not been successful and the 

mother's

conduct or condition rendering her unfit is unlikely to change within a reasonable 

time." In

light of our determination that the District Court correctly concluded that J.A.'s 

treatment

plan had met with only mixed results, and was thus unsuccessful, whether J.A. 

complied

with the 1996 treatment plan is immaterial. Accordingly, we decline to address J.

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A.'s

argument that she in fact complied with the requirements of the January 1996 

treatment plan

and that the District Court thus erred in terminating her parental rights.

¶28 Section 41-3-609(1)(c), MCA (1995), also required that to order the termination 

of

parental rights a district court must find "the conduct or condition of the parents 

rendering

them unfit is unlikely to change within a reasonable time." That the District Court 

in this

case evaluated this statutory requirement is evidenced by its conclusion that, "by 

proof

beyond all doubt," J.A. "will never be a competent mother" and "will never be able 

to parent

these three children adequately, given the intensive parenting they require and her 

level of

parenting skills." 

¶29 On appeal, J.A. generally argues it was error for the court to conclude she 

was, and

would continue to be, an unfit mother. Having reviewed the record, however, we hold

otherwise. As it did with respect to the implementation of J.A.'s treatment plan, 

the court

made numerous findings of fact regarding her ability to parent her children. For 

example,

the court pointed to testimony from various witnesses which indicated J.A. had 

failed to

maintain regular visitation, did not properly medicate her children, missed medical

appointments, dressed her children inappropriately, did not wake up in the morning 

to care

for her children, and failed to pick them up after school. Moreover, the court 

noted the

Department's six-year involvement with J.A. and her children, concluding she had 

"been

given every service available by the department" but was still unable to properly 

parent her

children. Having reviewed the record, we conclude the court's findings of fact are 

supported

by substantial evidence, and are not clearly erroneous. We hold the court did not 

err in

effectively concluding the conduct or condition which rendered J.A. unfit to parent 

her

children was unlikely to change within a reasonable time, and on that basis ordering 

the

termination of her parental rights.

¶30 Based on the foregoing, we affirm the order the District Court, and hold the 

court did

not err in terminating J.A.'s parental rights on the grounds that her treatment plan 

had been

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unsuccessful and the conduct rendering her unfit was unlikely to change within a 

reasonable

time. 

 /S/ JIM REGNIER 

 

We Concur:

/S/ KARLA M. GRAY

/S/ W. WILLIAM LEAPHART

/S/ JAMES C. NELSON

/S/ TERRY N. TRIEWEILER

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