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 inNeed of Care.

APPEAL FROM: District Court of the Thirteenth JudicialDistrict, Inand for the County of Yellowstone, TheHonorable DianeG. Barz, Judgepresidinq.

COUNSELOF RECORD: ForAppellant: W. Corbin Howard, Billings,Montana For Respondent: Harold Hanser,CountyAttorney, 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

1Y

- -- ClerkMr. 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 youthsC.A.R. and P.J.R. with the authority to assent to adoption. There is one issue on appeal: whether the trial court abused itsdiscretion in terminatingM.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 ofher past omissionsand 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 singlemother, 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 appearintoxicated at that time. The social worker offeredM.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 InvestigativeAuthority. C.A.R. was again placed in foster

care in May, 1979,and fromDecember 1979urti-1February 1980 because neither M.R. nor B.J.R. were able to care for the child. P.J.R. wasborn 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 thatwas scattered about the floor of the apartment. The children were againplaced with B.J.R. the nextday at her request. From December 1980until October 1981, SRSattempted to provide M.R. with various community services,but she did not utilize them. After the children were returned in September 1981 toM.R. from thevoluntary foster care placement,C.A.R.

was enrolled in the Billings McKinley Preschool Early Childhood Intervention program to help him develop skills appropriate fora child his age. An examinationby a team of professj.onals at the Development Assessment Clinic of the Montana Center for Handicapped Children had discovered significant developmental delays inC.A.R.The youth missed school thirty-two times that fall and

was terminated from the program for lack of attendance. The coordinatorof theprogram talked toM.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 formedical tests. Two appointmentswere made and cancelled after M.R. failed to awaken in time to prepare P.J.R. for the trip. When P.J.R. finallymade 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. afterher 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. 'sdevelopmentwhile in M.R. 'scustody, 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 severalmonths. 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. Sauerlsopinion was that the traumawas not accidentaland that itwas consistent with sexual abuse. On furtherquestioningby 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 injuries P.J.R. was, at the time two years and twomonths 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 andmedical assistance for them,to keep thehouse 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 improveher parenting abilities. Again, she failed tomeet 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 AlcoholicsAnonymous as part ofher 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 requestthat 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 fewmonthsmoved back to Billings, losing her job in the process. At that time, the SRS reinstated its request for termination of M.R.

### 'spa-rentalrights. 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 abar in Billings. Shepresented 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 socialworkers 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 formore fundamentalproblems. Her basic problemwas

a lack ofmotivation and maturity to appreciateand copewith the needs ofher children. Theseproblemswere not likely to change in the foreseeable future, even with additional therapy. Dr. Agosto stated. that if the children were returned to M.R. itwas 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), 174Mont. 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.ingof factnot supportedby 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), 177Mont.

Section 41-3-101, MCA sets forth Montana.'~ policy in regards to itsyouth. It states, inpertinentpart:

I' (1) It is hereby declared to be the policy of the StateofMontana 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 furtherthreatened. 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, thebest interestof the youth is paramount and takes precedence over parental rights or familialbonds. In Re Bad Yellow Hair (1973),162 Mont. 107,

Before a court can award permanent custodyof 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 Courtprior to ordering a termination, which in relevantpart 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 inneed 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 unlikelyto 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 childwithin a reasonable time;

"(g) any reasonable effortsby protective serviceagencies that have been unable to rehabilitate theparent. 

### "(3)In consideringany 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 evaluationof 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),182Mont. 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 supportedby 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 whosenormal 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 commissionor omissionof any act or acts which materially affects the normal physical or emotional developmentof ayouth." In the Matter ofM.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.yand emotionally happier. Dr. Agosto's opinionwas that if the childrenwere 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 "commitsor 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 ofM.R. 'sbrother. M.R. 'sexplanation of the incident was clearly unsatisfactory. It

was either an inexcusable attempt toprotect someonewho does not deserve protection,or to deny the obvious. The District Court was being charitable when it characterized M.R.'s explanationas "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 ofA.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 sufficientto properly bring the child within the statutory definition." 630 P.2d at 221, 38 St.Rep. at 951. We provided furtherguidance in this area of the law in the case of In theMatter of T.Y.K. (1979),183Mont. 91,598 P.2d 593,whenwe stated: 

# ".

.

# .Section 41-3-101,et seq., Montana Code Annotated, grants to the District Court the ability tomake 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 emotionaldeprivation, inadequate nutrition,and extremeand 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 ofinadequate hygiene, nutrition, inattention to offered financial and social support, educationalneeds, and so on. The District Court clearly had substantial evidence upon which itbased 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 theprovisions 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 elementwasmet. The third requirement of 41-3-609, MCA, is in subsection (1)(c)(ii)

# . The courtmust 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 theirmother topossibly 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 repletewith 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 ofdepth ofmaturity tobring about the needed change. He did not feelthat 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 itwas 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 familiarwith the children testified that they were indire need of stability and proper care soon. Further care by M.R. was likely to negate any progress alreadymade. The best interest of the children was for the parental relationshipto 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 thatM.R. had abstained fromdrink for the yearprior 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 aminimally 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-11sbelow that which is minimally adequate, that the State becomes interested as a protector of the child's welfare. See Santoskyv. 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 subjectto 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 adistrict 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 observationof the SRS from 1-978until 1984,also aperiod of sixyears. Here, though, shedid not showanyprogress until the very end of that time, and then under the threat of the previous terminationpetition. 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 rehabilitatedparent. Inboth 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 toM.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,andwas not an abuse of its discretion. Affirmed.

We concur: 

# P~da, 

# Qho

Chief Justice