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 

for Maternal Grandmother) 

tm cz 

3 For Respondent: c'd . 0 . . -4 . .: <-' 

PI I I~il Ted 0. Lympus, County Attorney, Randy K. 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 (Attorney for LlI - : 

C- Youths) 

0 7 :< 

"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 

~istrict Court, Eleventh ~udicial District, County of Flathead, 

which terminated her 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 childn test in terminating the parental rights of 

appellant. 

3. Whether there was sufficient evidence 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 this murder on March 21, 1986. Rickman was sentenced to 

35 years in prison. 

At the March 21 hearing, Rickman testified that appellant and 

appellant's mother, Opal Howard, had assisted in the homicide. As 

a result, appellant was arrested on March 19, 1986, and 

subsequently pled guilty to obstructing justice by helping Rickman 

dispose of Dan Moels body. Appellant was sentenced to ten years 

in prison. 

2 
After appellant was arrested for her participation in the 

murder and incarcerated in Flathead County, a petition for 

Temporary Investigative Authority (TIA) was filed with the District 

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 children were 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 hearing was held on April 

9, 1986. At this hearing, Shawn Trontel, a psychiatric social 

worker, testified that BHM, who was three and one-half years old, 

showed behavior more appropriate to 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 the murder was planned to prevent the 

children from having contact with their father and his family. 

Further, he testified that his participation in the murder was 
compelled by threats from Opal and appellant that he would lose 

contact with his son, JTH. Neither appellant nor Opal refuted this 

testimony. The court denied the motion to dismiss and the children 

were initially adjudicated youths in need of care. The involvement 

of their mother in the murder of Dan Moe had a detrimental impact 

on the children's mental and physical health. 

As part of the court's order, all of the potential caregivers 

underwent psychological evaluations and submitted to home 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, the maternal 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. 

This notice 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 evidence 
regarding BHM and CMM1s improvement after a two-week visit with 

their aunt and uncle, Pat and Karen Moe. Their preschool teacher 

testified that after the visit they seemed like new children. Two 

social workers who had had contact with the children recommended 

that they be placed with family members. 

On November 21, 1986, the court found that it was in the best 

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 Pat Moe obtain counseling and admonished the Moes not 

to make any deprecatory statements about the children's mother. 

The court also ordered that the placements be regularly monitored. 

In a report dated February 10, 1987, social worker Donna 

Taylor noted that BHM and CMM were doing well in the Moes care but 

that JTH should be removed from his 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 and May 16-17, 1989. 

At the hearing, at least six professionals testified as to the 
fragile 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 upon the evidence presented at the hearing, the District 

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 the best interests of the 

children would be served by termination of the parental rights; and 

by an award of permanent legal custody to the Department with 

authority to consent to adoption of the children. 

The first issue is whether the District Court followed proper 

procedure in terminating the parental rights of the appellant 

Two procedures culminated in the District Court's finding that 

appellant's parental rights should be terminated. The first one 

was the District Court's grant of temporary investigative authority 

(TIA) and protective services pursuant to a Department petition, 

governed by 55 41-3-401 through 409, MCA. The second was 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 in terminating the mother'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 may 
challenge the Department's grounds for the TIA and the temporary 

transfer of the children from foster care to the Moe 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 

hired by the county welfare department or off ice of human 

services may file a petition for temporary investigative 

authority and protective services. 

The District Court received a petition 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. The mother and grandmother then moved 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 found probable cause to support the TIA 

petition. 

Appellant contends that the grant of the TIA and the 

subsequent transfer of the children from neutral foster care to the 

Moe home was based only on the absence of the parents; she 

maintains that abuse or neglect within the mandate of the statute 

was never alleged. However, the statute provides that danser of 

abuse or neglect is adequate grounds for issuing a TIA. It is 
certainly 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 

subsequent psychological 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 

generally will 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 emotional deprivation. Matter of JLB, 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 investigative authority. ~aving determined that the TIA 

was properly granted, we now turn to the issue of permanent 

termination. 

The proper procedure for permanent 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 : 
. . . (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. 

The ~istrict Court properly found, first, that the children were 

"youth in need of carew as 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 treatment plan" was never authorized by 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 were 
violated because a complete treatment plan was never attempted. 

Although the District Court did approve a preliminary 

"treatment planN 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 treatment plan is not required under this part 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 findings whether 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 in May of 1989, in which the practicality of a treatment 

plan was discussed, as well as the benefit to the children of 

permanent alternate placement. Appellant was 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 the mother's deficiencies and the length of her prison 

sentence. Appellant's argument that the court did not comply with 

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 termination of parental care. Further, adequate evidence 
was presented to indicate that appellant's condition was 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 childrentt standard 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 is properly used after an initial finding of 

dependency, abuse, or neglect. Matter of Guardianship of Doney, 

174 Mont. 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 adequate physical 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 of 
Care, 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 the needs of the children, the history 

of violent behavior by the parents, 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 

considered the children's whole situation, as the statute mandates, 

and was well within its discretion in its final decision. 

The third issue is whether sufficient evidence was presented 

to support the District Court's order. 

Appellant presents testimony from members of various 

communities where the family lived that the children seemed to be 

physically well cared for and not unusually ill-behaved. The 

District Court, however, found the respondent's evidence 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 indications of being subject to 

physical abuse. They were not toilet trained. They exhibited 

substantial emotional improvement after removal from the home and 
placement 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: