No. 84-220 

IN THE SUPREME COURT OF THE STATE OF PIONTANA 

1984 

IN THE MATTER OF C.A. R. and P. J. R. , Youth in Need of Care. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Diane G. Barz, Judge presidinq. 

COUNSEL OF RECORD: 

For Appellant: 

W. Corbin Howard, Billings, Montana 

For Respondent : 

Harold Hanser, County Attorney, Billings, Montana 

Greg Mullowney, Deputy County Attorney, Billings 

Damon L. Gannett for Children, Billings, Montana 

Submitted on Briefs: Sept. 6, 1984 

Decided: December 20, 1384 

Filed: it , 1t-j84 

1 Y 

- -- Clerk 
Mr. Justice L. C. Gulbrandson delivered the Opinion of the 

Court 

This is an appeal from an order of the District Court 

of the Thirteenth Judicial District, Yellowstone County, 

Montana, the Honorable Diane G. Barz presiding, that awarded 

to the Department of Social and Rehabilitation Services 

custody of the youths C.A.R. and P.J.R. with the authority to 

assent to adoption. 

There is one issue on appeal: whether the trial court 

abused its discretion in terminating M.R.'s rights as natural 

mother to C.A.R. and P.J.R. M.R. contended before the 

District Court that she had recovered from alcoholism and 

that the recovery signalled her general rehabilitation. This 

evidence of rehabilitation, she argued, reduced the 

probativeness of her past omissions and neglect, and mandated 

that the District Court award her custody. The District 

Court heard testimony from M.R. and various other witnesses 

and terminated the parental relationship. We affirm. There 

was substantial credible evidence supporting the District 

Court order. 

The trail of events leading to this action began in 

March of 1978. The Yellowstone County office of the Montana 

Department of Social and Rehabilitation Services (SRS) , has 

been assisting M.R., a single mother, since that time. SRS 

had received reports that her son C.A.R., less than one year 

old, was being neglected. A social worker found that the 

child was inadequately clothed and livinq in a dirty home 

with M.R. and his maternal grandmother, B. J.R. C.A.R. was 

not yet crawling, and the back of his head was flat, 

indicating that he was spending a great deal of time on his 

back and not being held or moved. He was listless and 

non-responsive to stimulation. M.R. did not appear 
intoxicated at that time. The social worker offered M.R. the 

services of a SRS homemaker, and nursing and medical 

services. M.R. did not show much motivation to follow up 

with these services, or initiative in caring for her child. 

On April 26, 1979, the social worker was notified that 

M.R. had left C.A.R. with a baby-sitter the day before, and 

had not returned for him. He was placed in an emergency 

foster care home, and the next day with his grandmother, 

B.J.R., after she contacted the social worker requesting 

custody. At that time, SRS sought and received Temporary 

Investigative Authority. C.A.R. was again placed in foster 

care in May, 1979, and from December 1979 urti-1 February 1980 

because neither M.R. nor B.J.R. were able to care for the 

child. P.J.R. was born in 1980. 

On May 19, 1981, another social worker placed C.A.R., 

then almost age four, and P. J.R., nine months, in emergency 

foster care after discovering the children unattended in 

M.R.'s home. P.J.R. was wet in a urine soaked crib and 

C.A.R. was playing in dog feces that was scattered about the 

floor of the apartment. The children were again placed with 

B.J.R. the next day at her request. 

From December 1980 until October 1981, SRS attempted to 

provide M.R. with various community services, but she did not 

utilize them. After the children were returned in September 

1981 to M.R. from the voluntary foster care placement, C.A.R. 

was enrolled in the Billings McKinley Preschool Early 

Childhood Intervention program to help him develop skills 

appropriate for a child his age. An examination by a team of 

professj.onals at the Development Assessment Clinic of the 

Montana Center for Handicapped Children had discovered 

significant developmental delays in C.A.R. 
The youth missed school thirty-two times that fall and 

was terminated from the program for lack of attendance. The 

coordinator of the program talked to M.R. several times about 

this problem. M.R. explained that sometimes C.A.R. was ill 

and other times she was unable to wake up in time to ready 

C.A.R. to catch the noon bus across the street. The 

coordinator did not observe M.R. to be intoxicated during 

these conversations. 

In November 1981, another social worker arranged 

appointments and transportation to take P.J.R. to Shodair 

Hospital in Helena for medical tests. Two appointments were 

made and cancelled after M.R. failed to awaken in time to 

prepare P.J.R. for the trip. When P. J.R. finally made it to 

Shodair, Dr. Opitz observed that she was very dirty and 

smelled of urine and that she was very passive and 

non-responsive during the examination. The back of her head 

also appeared flat. 

In September of 1982, a teacher with the McKinley 

]?reschool Program assisted M.R. with a simple stimulation 

program for P.J.R. after her pediatrician, Dr. Pat Sauer, had 

discovered significant developmental delays. M.R. showed 

little enthusiasm for the program. The teacher noticed no 

improvement in P. J. R. 's development while in M. R. 's custody, 

but noticed great improvement after the child was placed in 

foster care and the same program was implemented by the 

foster parents. A clinical psychologist also noted that 

P.J.R.'s mental functioning, developmental skills, and 

behavioral problems all improved substantially after the 

child had been under foster care for several months. Her IQ 

increased dramatically after being placed in foster care; a 

fact attributed to increased stimulation. 
In October of 1982, the social worker placed both 

children in foster care after Dr. Sauer diagnosed P. J.R. as 

having suffered internal vaginal trauma, which apparently 

occurred while she was left with M.R. Is brother. M.R. 

explained that the trauma was accidental, due to P.J.R.'s 

falling down on a toy dump truck. Dr. Sauerls opinion was 

that the trauma was not accidental and that it was consistent 

with sexual abuse. On further questioning by Dr. Sauer, M.R. 

mentioned that a man named Donny, who had been staying with 

her brother, might be responsible for P. J. R. ' s in juries 

P.J.R. was, at the time two years and two months old. 

Treatment plans for M.R. were implemented several 

times. Prior to December, 1981, M.R. had agreed to a plan 

which required her to get C.A.R. to school every day, to 

bathe the children, to obtain toys and medical assistance for 

them, to keep the house clean, and to attend pa-renting class. 

M.R. failed to meet the conditions of the plan in any 

sufficient way. Another plan was a.greed to by M.R. which 

additionally required her to locate suitable housing, to 

increase her employment skills, and to improve her parenting 

abilities. Again, she failed to meet the conditions of this 

plan. A third plan was adopted in November 1983, after the 

SRS had filed for termination of parental rights. The 

petition for termination was abated when M.R. agreed to this 

third plan. It required her to attend the Galen State 

Hospital Alcohol Rehabilitation program, and to attend 

Alcoholics Anonymous as part of her after-care treatment. It 

again required her to obtain housing, obtain a job or seek 

job skills, visit her children, and improve her parenting 

skills. 

After completing the program at Galen State Hospital, 

M.R. moved to Missoula despite the social worker's request 
that she come to Billings to be near her children. M.R. said 

she went to Missoula to be away from the social setting in 

Billings. She found a job there but after a few months moved 

back to Billings, losing her job in the process. At that 

time, the SRS reinstated its request for termination of 

M. R. ' s pa-rental rights. 

At the date of the hearing, M.R. had successfully 

abstained from alcohol since leaving Galen State Hospital. 

She had found an apartment, but was unable to keep the 

children there, and had gone to work helping her mother do 

janitorial work at a bar in Billings. She presented evidence 

that corroborated the fact that she had abstained from 

alcohol since her release from Galen Hospital. She argued 

that this fact was sufficient evidence of rehabilitation so 

that she should be allowed another chance at caring for her 

children, and that she was ready to make a serious and 

sincere effort to do so. 

Dr. Richard Agosto, a clinical psychologist in 

Billings, Montana, had examined M.R., P.J.R. and C.A.R. He 

and several social workers who had worked with M.R. concluded 

that alcohol was not the primary cause of her neglect of her 

children. They all felt that M.R. was using alcohol as an 

excuse for more fundamental problems. Her basic problem was 

a lack of motivation and maturity to appreciate and cope with 

the needs of her children. These problems were not likely to 

change in the foreseeable future, even with additional 

therapy. Dr. Agosto stated. that if the children were 

returned to M.R. it was probable that her previous parenting 

patterns would be repeated. Dr. Agosto and the social 

workers agreed that M.R. had been given an adequate 

opportunity to parent her children, and failed to do so. 
In regards to the children, Dr. Agosto, and the social 

workers all testified that mental and emotional harm would 

result if they were not provided with some stability, 

consistency, stimulation, proper parenting, and attention to 

their special needs. Dr. Agosto predicted that if the 

children were returned to the non-stimulating environment, 

that they could be expected to regress into their prior 

conditions. He concluded that the best interests of the 

children were that they not be returned to the custody of 

M.R. 

This Court has reviewed similar district court 

determinations in the past. In In Re Gore (1977), 174 Mont. 

321, 570 P.2d 1110, we discussed our role in this review: 

". . . This Court is mindful that the 

primary duty of deciding the proper 

custody of children is the task of the 

district court. As a result, all 

reasonable presumptions as to the 

correctness of the determination by the 

district court will be made. Foss v. 

Leifer , Mont . , 550 P.2d 1309, 

33 St.Rep. 528 (1976). Due to this 

presumption of correctness, the district 

court's findings will not be disturbed 

unless there is a mistake of law or a 

find.ing of fact not supported by credible 

evidence that would amount to a clear 

abuse of discretion. Solie v. Solie, 

Mont . , 561 P.2d 443, 34 St.Rep. 

142 (1977) ." 

See also In the Matter of R.M.B. (Mont. 1984), 689 P.2d 281, 

41 St.Rep. 1925; In the Matter of M.D.Y.R. (1978), 177 Mont. 

Section 41-3-101, MCA sets forth Montana.'~ policy in 

regards to its youth. It states, in pertinent part: 

I' (1) It is hereby declared to be the 

policy of the State of Montana to: 

" (a) insure that all youth are afforded 

an adequate physical and emotional 

environment to promote normal 

development; . . . 
" (2) It is the policy of this state to 

provide for the protection of children 

whose health and welfare are or may be 

adversely affected and further threatened. 

by the conduct of those responsible for 

their care and protection. . . " 

That statute also emphasizes that the needs of youth are 

presumably best met in a family environment, see also 

Santosky v. Kramer (19821, 455 U.S. 745, 102 S.Ct. 1388, 71 

L.Ed.2d 599. But when the rights of a youth to an adequate 

physical and emotional environment encounter demonstrated 

acts of commission or omission by the parents which deprive 

the youth of this environment, the best interest of the youth 

is paramount and takes precedence over parental rights or 

familial bonds. In Re Bad Yellow Hair (1973), 162 Mont. 107, 

Before a court can award permanent custody of any child 

to SRS with a termination of parental rights, it must make 

findings in zccordance with sections 41-3-406, 607 and 609, 

MCA . 41-3-609, MCA sets out the criteria that must be 

evaluated by the Court prior to ordering a termination, which 

in relevant part states: 

"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, exists: 

" (1) (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. 

" (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 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 

hut 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; 

"(g) any reasonable efforts by 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." 

Before parental rights may be terminated, the State 

must demonstrate by clear and convincing evidence that the 

statutory criteria has been met. Santosky v. Kramer, supra; 

In the Ma.tter of T.J.D. (Mont. 1980), 615 P.2d 212, 37 

St.Rep. 1385; In the Matter of J.L.B. (1979), 182 Mont. 100, 

With the requirements of section 41-3-609 in mind, we 

turn to the record. The first requirement is that the 

children are youth in need of care. The District Court held 

that C.A.R. and P.J.R. were, and this holding is supported by 

substantial credible evidence. A youth in need of care is 

one who is "dependent, abused, or neglected" 41-3-102(1O), 

IJICA. An abused or neglected child is ". . . 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" 41-3-102(2), 

MCA. Harm to a child's health or welfare encompasses many 

aspects of the chil.dts care and environment, and can result 

when a parent "inflicts or allows to be inflicted upon the 

child physical or mental injury" 41-3-102 (3) (a) , MCA. The 

type of inquiry contemplated by this part of the statue 

includes "the commission or omission of any act or acts which 

materially affects the normal physical or emotional 

development of a youth." In the Matter of M.R.L. (1980), 186 

Mont. 468, 608 P.2d 134, and mental injury includes the 

identifiable and substantial impa.irment of a child's 

intellectual or psychological functioning," section 

41-3-102 (8) , MCA. 

M. R. s failure to care and attend to C .A. R. and P. J. R. 

caused the physical problems such as excessive illness, 

flattened heads and uncharacteristic listlessness. The 

greatest injury to the children, though, was to their 

cognitive and emotional development. Dr. Agosto, Dr. Sauer 

and other experts all testified that the poor care the 

children were receiving had a detrimental effect on their 

development. When they were put in foster homes, they made 

remarkable progress, and appeared physical1.y and emotionally 

happier. Dr. Agosto's opinion was that if the children were 

placed back in the care of M.R., they could be expected to 

regress. 

The second statutorily defined area of harm to a child 

is when a parent "commits or allows to be committed a sexual 

assault against the child . . . " 41-3-102 (3) (b) . Dr. 

Sauer's examination of P.J.R. indicated that she had been 

sexually abused while in the care of M.R. 's brother. M.R. 's 
explanation of the incident was clearly unsatisfactory. It 

was either an inexcusable attempt to protect someone who does 

not deserve protection, or to deny the obvious. The District 

Court was being charitable when it characterized M.R.'s 

explanation as "lame." We have considered similar situations 

before, and have no difficulty in considering this type of 

incident as evidence of neglect. In In the Matter of A.J.S. 

(Mont. 1981), 630 P.2d 217, 38 St.Rep. 947, we held: 

". . . Regardless of any actual proof 

that a parent intentionally inflicted 

injuries upon his or her child, the 

occurrence of serious and frequent, yet 

unexplained, physical injuries to the 

child is sufficient to properly bring the 

child within the statutory definition." 

630 P.2d at 221, 38 St.Rep. at 951. 

We provided further guidance in this area of the law in 

the case of In the Matter of T.Y.K. (1979), 183 Mont. 91, 598 

P.2d 593, when we stated: 

". . . Section 41-3-101, et seq., Montana 

Code Annotated, grants to the District 

Court the ability to make a determination 

of neglect and abuse as to all children 

in a family based upon the policy that 

abuse of one child has a. detrimental 

effect on the other children's 

development." 183 Mont. at 36, 598 P.2d 

at 596. 

The third area of harm specifically listed in 

41-3-102(3), MCA is in subsection (c) , encompassing 

situations where the parent "causes failure to thrive or 

otherwise fails to supply the child with adequate food or 

fails to supply clothing, shelter, education or health care, 

though financially able to do so or offered financial or 

other reasonable means to do so." We have held that this 

provision "is broad enough to include emotional deprivation, 

inadequate nutrition, and extreme and prolonged uncleanliness 

of the child" In the Matter of A.J.S., 630 P.2d at 221, 38 

St.Rep. at 950. The record is replete with instances of 
inadequate hygiene, nutrition, inattention to offered 

financial and social support, educational needs, and so on. 

The District Court clearly had substantial evidence upon 

which it based its decision that the children were abused and 

neglected children. 

The second requirement in 41-3-609, MCA is in 

subsection (1) (c) (i) ; that the parent had agreed to an 

approved treatment plan, but has failed to meet its 

conditions. Here, M.R. was given three opportunities, one in 

1981, and two in 1983. Her failure to meet the provisions of 

the second plan brought about a prior termination proceeding 

which was abated pending the third plan. Her failure in the 

third plan brought about this action. This element was met. 

The third requirement of 41-3-609, MCA, is in 

subsection (1) (c) (ii) . The court must find that the conduct 

or condition of M.R. that renders her unfit is unlikely to 

change in a reasonable time. Stability is a very important 

factor in a child's development, and a child should not be 

subjected to constantly changing temporary foster care 

situations while waiting for their mother to possibly improve 

her parenting skills. In making this determination, the 

court may consider the nature of the deficiency that renders 

the parent unfit, 41-3-609 (2) (a) , MCA, and any reasonable 

efforts by protective agencies that have failed to bring 

about rehabilitation, 41-3-609(2) (g), MCA. Along with this 

finding, the court must also determine that the continuation 

of the parent-child relationship will result in continued 

abuse or neglect. Again the record is replete with evidence 

supporting the District Court's holding. Dr. Agosto, the 

examining psychiatrist, testified that M.R.'s basic problem 

was a lack of motivation towards her children, an inability 

to comprehend their needs, and a lack of depth of maturity to 
bring about the needed change. He did not feel that M.R. was 

able to change significantly in the near future. Other 

social workers and experts testified to the same effect. 

None of them felt that alcohol was the particular problem 

with M.R., but rather that it was being used as a convenient 

excuse. A significant array of resources were enlisted to 

help M.R., but she showed little interest. And finally, all 

of those familiar with the children testified that they were 

in dire need of stability and proper care soon. Further care 

by M.R. was likely to negate any progress already made. The 

best interest of the children was for the parental 

relationship to be terminated. 

M.R.'s sole argument on appeal is that the District 

Court failed to consider the evidence of her rehabilitation. 

M.R. contends that the District Court placed inordinate 

emphasis on past events, and insufficient emphasis on the 

fact that M.R. had abstained from drink for the year prior to 

the hearing. 

First, we agree with M.R. when she argues that the 

purpose of termination actions is not merely to provide 

children with a "better life." It is, instead, designed to 

allow the State to step in only when it is apparent that the 

natural parent is failing, and is likely to continue to fail 

to provide the children with a minimally adequate life. If 

the children are being provided with the care and resources 

minimally adequate to their growth and development, the 

family is primary, and the State has no business in the 

matter. It is only when the child's care fa-11s below that 

which is minimally adequate, that the State becomes 

interested as a protector of the child's welfare. See 

Santosky v. Kramer, supra. 
Secondly, a termination proceeding must necessarily 

include a judgment about the ability of the parent to care 

for the child in the future. Regrettably, we do not have a 

crystal ball to look into to make this determination, so it 

must, to some extent, be based on a person's past conduct. 

We agree with M.R.'s assertion that evidence of 

rehabilitation is germane to this determination, but do not 

take it so far as to establish a rule that any evidence of 

rehabilitation renders the District Court powerless to find 

future danger to the children. It is evidence to be 

considered by the District Court, no more, no less, and is 

subject to the same standard of review as any other evidence. 

M.R. cites several cases that support her argument that 

parental rights cannot be terminated in the face of credible 

evidence of rehabilitation. In In Re Welfare of A.R.W. 

(Minn. 1978), 268 N.W.2d 414, the Minnesota Supreme Court 

upheld a district court order returning the children to their 

natural mother from temporary foster care after it was shown 

that, over the course of six years she had been 

rehabilitated. In this case, M.R. had been under the 

observation of the SRS from 1-978 until 1984, also a period of 

six years. Here, though, she did not show any progress until 

the very end of that time, and then under the threat of the 

previous termination petition. The district court's opinion 

that, "They've [the children] waited long enough." was 

justified. 

M.R. also cites In Re M. (Ohio 1979), 416 N.E.2d 669, 

and State v. Pogue (Mo. 1955), 282 S.W.2d 582 for the 

proposition that changed circumstances mandate the children's 

return to the rehabilitated parent. In both these cases, the 

children were still in temporary foster care. The children 

were returned to their parents--just as C.A.R. and P.J.R. 
were returned to M.R. on several occasions from 1978 to 1984. 

Here, the question the judge faced. was the permanent 

termination of parental rights. The District Court's 

determination that M.R.'s conduct was unlikely to change 

significantly in the future was supported by substantial 

evidence, and was not an abuse of its discretion. 

Affirmed. 

We concur: 

P~da, Qho 

Chief Justice