No. 89-531 IN THE SUPREME COURT OF THE STATE OF MONTANA 1990

IN RE THE MATTER OF DECLARING B.H.M., C.M.M. and J.T.H., Youths in Need of Care.

APPEAL FROM: District Court of the Eleventh Judicial District, In and for the County of Flathead, The Honorable Leif Erickson, Judge presiding.

COUNSEL OF RECORD: For Appellant: Chris P. Christensen, Kalispell,Montana Paulette C. Ferguson, Missoula, Montana, (Attorney forMaternal Grandmother)tm cz 3 For Respondent: c'd 

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## . .: <-' PI I I~il Ted 0.Lympus,CountyAttorney,RandyK. Schwickert, € L-.; 1 Deputy County Attorney, Kalispell, Montana; Marc a CZ W Racicot, Attorney General, Elizabeth L. Griffing, -1 

# - Assistant Attorney General, Helena, Montana rn I-:,) L cU -.. Robert B. Allison, Kalispell,Montana (Attorneyfor LlI

## -: C- Youths) 0 

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## :<"ISubmitted: July 13, 1990 Filed: Decided: October 25, 1990

1~ustice William 

### E. Hunt, Sr., delivered the opinion of the Court.

Appellant Doreen Karen Howard appeals from the order of the ~istrictCourt, Eleventh ~udicialDistrict, County of Flathead, which terminatedher parental rights to BHM, CMM, and JTH,who had previously been designated youths in need of care. We affirm. The issues presented on appeal are: 1. Whether the District Court followed proper procedural steps in terminating the parental rights of the appellant. 2. Whether the ~istrict Court erred in considering the Itbest interests of the childntest in terminating theparental rights of appellant. 3. Whether there was sufficientevidence presented to support the ~istrict Court's order. BHM, born on August 26, 1982, and CMM, born on September 17, 1983, are children of appellant and Dan Moe, deceased. JTH,born

on July 1, 1985, is the child of appellant and Mark Rickman. Dan Moe was murdered on July 31, 1985. Mark Rickman pled guilty to thismurder on March 21, 1986. Rickman was sentenced to 35 years in prison. At theMarch 21hearing,Rickman testified that appellant and appellant'smother, Opal Howard,had assisted in thehomicide. As a result, appellant was arrested on March 19, 1986, and subsequentlypled guilty to obstructing justiceby helping Rickman dispose of Dan Moelsbody. Appellant was sentenced to ten years in prison. 2After appellant was arrested for her participation in the murder and incarcerated in Flathead County, a petition for Temporary InvestigativeAuthority (TIA)was filedwith theDistrict Court seeking protective services for her three children. The supporting affidavit stated that both appellant and the natural father of JTH were currently incarcerated and the natural father of BHM and CMM was deceased. The "court granted the TIA on March 21, 1986. As a result, the childrenwere removed from their home and placed in foster care with non-relatives. On April 4, 1986,Opal Howard moved to dismiss and vacate the order granting the TIA. An adjudicatory hearingwas held onApril 9, 1986. At this hearing, Shawn Trontel, a psychiatric social worker, testified that BHM, who was three and one-half years old, showedbehavior more appropriateto a two-year-old. His speech was basically unintelligible. He was withdrawn and fearful. He was not toilet-trained and showed fears of toilet training. He was unable to form attachments to other persons and was unable to follow simple directions. CMM was not toilet-trained and lacked skills associated with a child of her age. The children were unable to feed themselves with utensils and drank from I1tippyl1 cups.Mark Rickman testified at this hearing concerning the involvement appellant and her mother, Opal, had in the murder of Dan Moe. He testified that themurder was planned to prevent the children from having contact with their father and his family. Further, he testified that his participation in the murder wascompelled by threats from Opal and appellant that he would lose contactwith his son,JTH. Neither appellant nor Opal refuted this testimony. The courtdenied themotion todismiss and the children

were initiallyadjudicatedyouths inneed of care. The involvement of their mother in themurder of Dan Moe had a detrimental impact

on the children's mental and physical health. As part of the court's order, all of thepotential caregivers underwentpsychological evaluations and submitted tohome studies. After reviewing these evaluations and home studies, the Flathead County Department of Public Welfare (Department) attempted to transfer the placement of BHM and CMM to Pat and Karen Moe, the children's paternal aunt and uncle, and the placement of JTH to Duane and Karen Wock, thematernal aunt and uncle. The Department justified this request based upon the positive feelings that the children,BHM and CMM,had for Pat and Karen, and the idea that the longer the children stayed in foster care, the more difficult it would be if an eventual break occurred. Appellant obtained a temporary restraining order to prevent the transfers because the Department had failed to first contact appellant. Opal Howard filed a formal notice withdrawing herself from consideration as an alternate caretaker for the children. Thisnotice was based upon her objection to the general release of her psychological evaluation. A hearing was held in November, 1986, to determine whether a permanent injunction should issue preventing the transfer of the children. At this hearing, the court heard substantial evidenceregarding BHM and CMM1simprovement after a two-week visit with their aunt and uncle, Pat and Karen Moe. Theirpreschool teacher testified that after thevisit they seemed like new children. Two social workers who had had contact with the children recommended that they be placed with familymembers. On November 21, 1986,the court found that it was in thebest interests of BHM and CMM to be placed with Pat and Karen Moe, and for JTH to be placed with Duane and Theresa Wock. The court recognized the animosity between the Howards and the Moes, and ordered that PatMoe obtain counseling and admonished theMoes not to make any deprecatory statements about the children's mother. The court also ordered that theplacements be regularlymonitored. In a report dated February 10, 1987, social worker Donna Taylor noted that BHM and CMM were doing well in theMoes carebut thatJTH shouldbe removed fromhis placement at the request of the Wocks. Upon motion by the State, the court ordered that JTH be placed in the home of his maternal aunt and uncle, Dan and Eileen Howard. In November, 1988, the Department filed a petition for permanent custody and authority to consent to adoption with the court. On February 1, 1989, Opal Howard moved to intervene and filed a petition for custody of the children. On February 17, 1989, Mark Rickman filed notice that he would not contest the termination of his parental rights. A hearing was conducted on February 21-24 andMay 16-17, 1989. At the hearing, at least six professionals testified as to thefragile emotional condition of the oldest child, BHM; the children's improvement after being placed in foster care; and appellant's incapacity to care for dependent children on a long term basis. Based upontheevidencepresented at thehearing, theDistrict Court concluded that the children had been abused and neglected, and were youths in need of care. The court further concluded that the parental rights of appellant should be terminated because her conduct and condition were unlikely to change within a reasonable time. Finally 

## , the court concluded that thebest interests of the childrenwould be servedby terminationof theparental rights;and by an award of permanent legal custody to the Department with authority to consent to adoption of the children. The first issue iswhether the District Court followedproper procedure in terminating the parental rights of the appellant Twoprocedures culminated intheDistrictCourt's finding that appellant's parental rights should be terminated. The first one was theDistrict Court's grantof temporary investigativeauthority

(TIA) and protective services pursuant to a Department petition, governedby 55 41-3-401 through 409,MCA. The secondwas the final termination of rights, governed by 58 41-3-601 through 612,MCA. The primary issue before this Court is whether the District Court acted arbitrarily interminatingthemother's parental rights permanently, not whether the District Court acted improperly 

### in accepting the recommendation of the Department for temporary authority. ~ssuming,nevertheless, that Doreen Howard maychallenge the Department's grounds for the TIA and the temporary transfer of thechildren from fostercare to theMoe home, a review of the record shows that the District Court adhered to the proper statutory procedures. The Department was well within its bounds when it filed a petition for temporary custody. Section 41-3-402(1), MCA, states: In cases where it appears that a youth is abused or neglected or is in danger of being abused or neglected, the county attorney, attorney general, or an attorney hiredby thecounty welfare department or office ofhuman servicesmay file apetition for temporary investigative authority and protective services.

The DistrictCourt received apetition for temporary investigative authority and protective services filed pursuant to 55 41-3-401

(10) and 41-3-402, MCA. The court issued an order pursuant to 5 41-3-403, MCA, which expressly allows the court to grant such relief as may be required for the immediate protection of the youth. Themother and grandmother thenmoved to vacate the order and dismiss the petition. A hearing was held on April 19, 1986, to decide on the motion. From the evidence as set forth in the record, the District Court foundprobable cause to support the TIA petition. Appellant contends that the grant of the TIA and the subsequent transferof thechildren fromneutral fostercare to the Moe home was based only on the absence of the parents; she maintains that abuse or neglect within themandate of the statute

was never alleged. However, the statuteprovides that danser of abuse or neglect is adequate grounds for issuing a TIA. It iscertainly within the contemplation of an agency or judicial body that the violent death of one parent and the incarceration of another could place children in danger of psychological and emotional trauma. That the children's mother was alleged to have participated in perpetrating this trauma rises to the level of at least neglect, if not abuse. The District Court found, after subsequentpsychological testing, that at least one of the children exhibited distress and fear at the thought of going back to live with his grandmother. The findings of a district court on abuse and neglect generallywill not be disturbed 'lunless a mistake of law exists or the factual findings are not supported by substantial evidence." In the Matter of J.L.S. and A.D.S., Youths in Need of Care, 234 Mont. 201, 206, 761 P.2d 838, 841 (1988). The term "neglectI1 includes emotionaldeprivation. Matter ofJLB, 182 Mont. 100, 114, 594 P.2d 1127, 1135 (1979). The mother's complicity in the homicide, coupled with the results of the psychological testing, could prompt a condition of emotional deprivation. Clearly the ~istrict Court was within its discretion in granting the state temporary investigativeauthority. ~aving determined that the TIA

was properly granted, we now turn to the issue of permanent termination. Theproper procedure forpermanent termination is outlined in 

### 3 41-3-609, MCA, which states in part: (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:

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# . (c) the child is an adjudicated youth in need of care and both of the followingexist: (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 renderingthem unfit isunlikelytochange within a reasonable time. The ~istrict Court properly found, first, that the children were "youth in need of carewas defined in 5 41-3-603(2), MCA. IvYouth in need of carew means a youth who is dependent, abused, or neglected as defined in 5 41-3-102(2)

## . Section 41-3-102(2)

### , MCA states: "Abused or neglected child1'means a child whose normal physical or mental health or welfare is harmed or threatened with harm by the acts or omissions of his parent or other person responsible for his welfare.

Substantial evidence was presented regarding the children's abuse or neglect at both the TIA proceeding and the 1989 permanent custody hearings. They were thus adjudicated ''youth in need of

carevv as the first criterion of f, 41-3-609, MCA, requires. The final two criteria that must be met under 9 41-3-609, MCA, are: 1) that a treatment plan has not been successful and 2) that the condition of the parent(s) is not likely to change within a reasonable amount of time. Appellant argues that under f, 41-3-609(1)(c)(i)

## , MCA, an "appropriate treatmentplan"wasnever authorizedby the court;the only plan attempted was one by which to evaluate appellant's probable success with a treatment plan, and to then propose an appropriate plan. She states that her due process rights wereviolated because a complete treatment plan was never attempted. Although the District Court did approve a preliminary "treatmentplanN for appellant in order to determine her chances of success in thorough treatment, it was not required to do so. Subsection (4) of 41-3-609,MCA, reads: A treatmentplan is not required under thispart upon a finding by the court following hearing if: (b) the parent is incarcerated for more than 1 year and such treatment plan is not practical considering the incarceration

# ..

# . While it is unclear from the District Court's findingswhether it

was proceeding under 

### 5 41-3-609(1)(c)(9), MCA requiring proof of

an unsuccessful treatment plan, or under 

### 5 41-3-609(4), MCA, not requiring any plan at all, we conclude that there is sufficient evidence in the record to justify the District Court's decision to terminate. A lengthy hearing was held in February of 1989, and continued inMay of 1989, inwhich thepracticality of a treatment plan was discussed, as well as the benefit to the children of permanent alternateplacement. Appellantwas given an opportunity to testify at this hearing. In spite of her testimony, the District Court found that a treatment plan would not be practical because of themother's deficiencies and the length of her prison sentence. Appellant's argument that the courtdid not complywith the requirements of 

### 5 41-3-609(1)

## ,MCA (requiring the treatment plan) is without merit. In meeting the requirements of 

### 5 41-3- 609(4) (the exception to the treatment plan rule), the court provided due process by fulfilling all of the requirements for permanent terminationofparental care. Further,adequate evidencewas presented to indicate that appellant's conditionwas unlikely to change within a reasonable amount of time as required by 41- 3-609(1)(c)(ii)

## ,MCA. The second issue is whether the District Court abused its discretion by considering the best interests of the children in terminating parental rights. Appellant contends that the District Court's finding of fact

no. 51 and conclusion of law no. 5, erroneously use the "best interest of the childrenttstandard in terminating her parental rights. She further argues that the State is using parental deficiencies alone to justify the termination of parental rights. We disagree. The case law that appellant cites clearly states that the "best interestsn test isproperly used after an initial finding of dependency, abuse, or neglect. Matter of Guardianship of Doney, 174Mont. 282, 286, 570 P.2d 575, 578 (1977); Matter of Fish, 174 Mont. 201, 206, 569 P.2d 924, 927 (1977); In Re Gore, 174 Mont. 321, 327, 570 P.2d 1110, 1113 (1977); Matter of Guardianship of Aschenbrenner, 182 Mont. 540, 549, 597 P.2d 1156, 1162 (1979). Here the court has met the threshold requirement by finding the children "youth in need of care"; their status as such satisfies the prerequisites for the ''best intereststt test. Further, this Court has previously stated that "when parents commit acts which deprive a child of an adequatephysical and emotional environment, the best interest of the child becomes paramount over parental rights.'' In the Matter of J.L.S. and A.D.S., Youths in Need ofCare, 234 Mont. 201, 208, 761 P.2d 838, 842 (1988). While the "best interests1' test is specifically applied after termination in order to determine proper placement for the children, it is also used as a guideline throughout proceedings once an unacceptable home environment has been ascertained. Appellant's argument that it is her parental deficiencies alone that are justifying termination is equally without merit. Finding of fact no. 51 cites a variety of factors to justify the court's decision, including theneeds of the children,thehistory of violent behavior by theparents, and the long term confinement of the parents. These are all factors that the court 'Ishall'' consider pursuant to 

### 5 41-3-609(2)

## , MCA. The District Court has consideredthechildren's whole situation,as the statute mandates, and was well within its discretion in its final decision. The third issue iswhether sufficient evidence was presented to support the District Court's order. Appellant presents testimony from members of various communitieswhere the family lived that the children seemed to be physically well cared for and not unusually ill-behaved. The DistrictCourt,however, foundtherespondent'sevidence persuasive that at least some of the children were abused, neglected and/or deprived. At least one of the children had speech and developmental problems, and showed indicationsof being subject to physical abuse. They were not toilet trained. They exhibited substantial emotional improvement after removal from the home andplacement in foster care. The record does not reflect any abuse of discretion on the part of the District Court. The judgment is affirmed. I

Justice I - We Concur: