NO. 88-94 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

IN THE MATTER OF 

J.L.S and A.D.S, 

Youths in Need of Care. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis & Clark, 

The Honorable Gordon Rennett, Judge presiding. 

COUNSEL OF RECORD: 

For Appel lant : 

Edmund Sheehy, Jr., Helena, Montana 

J. Mayo Ashley, Helena, Montana 

For Respondent : 

Hon. Mike Greely, Attorney General, Helena, Montana 

George Schunk, Asst. Atty. General, Helena 

Mike McGrath, County Attorney, Helena, Montana 

Submitted on Briefs: Aug. 11, 1988 

Decided: September 28, 1988 

4% 

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

Court. 

The parents of J.L.S. and A.D.S. appeal from a judgment 

of the First Judicial District, Lewis and Clark County, 

terminating parental rights to the two children. The 

District Court awarded the Montana Department of Social and 

Rehabilitative Services custody of the two children, with 

authority to assent to adoption. We affirm. 

The sole issue raised on appeal is whether the District 

Court failed to follow the dictates of S 41-3-609, MCA, prior 

to terminating parental rights to J.L.S. and A.D.S. More 

specifically: 

1. Did the District Court err in holding that the 

parents failed to comply with a court authorized treatment 

plan? 

2. Did the District Court err in holding that the 

parents conduct was unlikely to change within a reasonable 

time ? 

J.L.S. and A.D.S. are the oldest two of four children 

born to A.S. (the father) and B.G. (the mother), a couple who 

have lived together since 1980. At the time of termination 

of parental rights, J.L.S. was five years of age and A.D.S. 

four. 

The events culminating in the District Court's 

termination of parental rights to J.L.S. and A.D.S. began on 

February 25, 1986. On that day, A.S. was arrested for 

domestic violence and B.G. was hospitalized as a result of 

this abuse. Both parents had been drinking at the time of 

this incident. 

The children were left in the care of neighbors wrho 

later called the Lewis and Clark County Office of Human 

Services (LCCOHS) . Prior to placing the children under 
temporary foscer care, a social worker wich LCCOHS observed 

numerous bruises on A.D. S. A pecicion for remporary 

invesrigacive auchoriry and proreceive services subsequenrly 

was filed and granred on February 28, 1986. 

Psychological evaluations of rhe parencs and che 

children were conducced in March of 1986. Clinical 

psychologisr Dean Gregg, Ph.D., diagnosed boch parencs as 

having a mixed personalicy disorder. Psychologist Revel 

Miller, Ph.D., noced char borh parencs admicced eo che 

rourine consumprion of a case of beer or more each nighr, yec 

chey denied any problems wich alcohol or with child abuse. 

Clinical psychologist Mary Chronisrer, Ph.D., diagnosed 

J.L.S. as suffering from major depression, recurrenr, wirh 

melancholia. Furrher, she nored char J.L.S. appeared sad and 

fearful and char rhe child's cognicive, psychomoror and 

social skills were all below normal. A.D.S. was diagnosed as 

having an acrencion deficic disorder wich hyperacriviry. 

These psychological evaluarions were introduced inro 

evidence during hearings conduceed on April 15, 17, and 28, 

1986. Following che hearings, the Disrricr Courc granred 

continuing remporary invesrigarive aurhoriry EO che Scare and 

denied rhe parencs' peririon for rerurn of cuscody of rhe cwo 

children. The Disrricr Court adjudicared J.L.S. and A.D.S. 

youchs in need of care and ordered che Departmenr of Social 

and Rehabilitarive Services (SRS) rhrough J;CCOEIS co rerain 

temporary cusrody of the cwo children. The courc rhen 

ordered respondenr ro develop a rrearmenr plan, which was 

approved and adopred by rhe courc ac a dispositional hearing 

on May 15, 1986. 

This inirial rrearmenr plan required rhe parenrs ro 

abscain from che use of all alcohol and ocher chemicals, and 

ro parcicipare in various rypes of counseling wirh Dr. 

Molineux, che super~rising rherapisc. Borh Twila Coscigan, 
che primary social worker assigned co the case, and Dr. 

Molineux cescified chat chis firsc creacmene plan was noc 

successful because of che parencs' general unwillingness -co 

follow che creacmenc plan. Alchough inceraceion wich che 

children improved some, che faeher remained particularly 

hoscile and uncooperacive coward counseling efforcs. 

Addieionally, boch parencs concinued to deny che existence of 

any problems. Two neighbors also cescified char chey had 

witnessed che father drinking beer in lace August and again 

in Occober of 1986. Jim Hagen, a caxi cab driver, cescified 

chac he occasionally delivered beer co che home during che 

fall of 1986. Neicher parry concescs che failure of chis 

firsc creacmenc plan. 

On November 13, 1986, upon pecicion of che Scare, che 

courc ordered a concinuacion of che creacmenc plan and 

excended LCCOHS' temporary cuscody of the cwo children uncil 

hearing of che maccer on December 18, 1986. Ac che December 

hearing, respondenc introduced cescimony derailing che greac 

improvemencs nociced in che children's cognitive, emocional, 

social and psychological welfare during che pasc eighc monchs 

of foscer care. Based upon chis face and evidence of che 

parencs' failure co abide by che creacmenc plan as initially 

formulated, che courc concinued che placement of the cwo 

children in foscer homes and designaced Dr. Revel Miller, 

Ph.D., che new supervising cherapisc wich auchoricy co modify 

che firsc creacmenc plan as he determined appropriate. 

In January and February of 1987, Dr. Miller scheduled 

several meecings wich che parenes and cheir accorneys ro 

explain che cerms of che ereacmenc plan as modified. A.S. 

failed co show up for che scheduled meecing on chree 

different occasions. B.G. failed co aceend che firsc 

scheduled meecing. She did, however, keep che second 

scheduled meecing, hue she refused co sign the new creacmenc 
plan wichouc A. S. A.S. finally mec wich Dr. Miller on 

February 10, 1987, but A.S. became very angry and hoscile 

afcer an explanacion of only cwo poincs of che plan. 

Consequenely, he lefc wichouc signing che plan, scaring as he 

lefc char he was noc going co cooperate wich che plan. 

Upon requesc by che parencs, a hearing was held on 

March 12, 1987 co discuss che new creacmenc plan as modified 

by Dr. Miller. Ac chis hearing, che courc requesced char che 

Lewis and Clark Councy Accorney eicher dismiss che case or 

file a pecicion for cerminacion. The Councy subsequenely 

filed a pecicion for cerminacion on March 25, 1987 and a 

hearing on che maccer was held on May 21 and 22, 1987. 

New evidence relacing co che maccer came co light 

following che May, 1987 hearing. Consequently, two 

additional hearings were held on Augusc 14 and Occober 29, 

1987, ac which rime che Councy introduced chis new evidence. 

Marylis Filipovich, a social worker wich LCCOHS, cescified 

char A.S. had knocked on her door looking for che previous 

cenanc ac 6:30 a.m. on July 25, 1987. He had a beer in hand 

and his breach smelled of alcohol. Furcher, a barmaid 

cescified chac A.S. and B.G. were regular cuscomers ac che 

Ichabod bar in Augusc and Sepcernber of 1987. She cescified 

char A.S. was permanently chrown our of che bar because of 

his loud and obnoxious behavior when drinking. In Sepeember 

of 1987, B.C. remained drinking in che bar all evening and 

chen laxer became involved in a fighc oucside in che parking 

lor. Lascly, on Occober 24, 1987, A.S. was arresced for 

Criminal Trespass and che processing jailor cescified char he 

was very incoxicaced ac che rime of chis arresE. 

The Disericc Courc subsequencly held char che parencs 

had failed co comply wich any cerminacion plan, char che 

conduce or condieion of che parenes rendered chem unfit: co 

give J.L.S. and A.D.S. adequace care, and char rhe parencs 
conduce was unlikely co change wirhin a reasonable rime. 

Having determined char rhe besc ineeresrs of che cwo children 

would be best served by permanene placement in a foscer home, 

the courc cerminared che parenral righrs on November 12, 

1987. This appeal followed. 

The issue on appeal is whecher che Discricr Courr 

failed ro follow che dicrares of S 41-3-609, MCA, prior ro 

cerminacing rhe parencal rights co J.L.S. and A.D.S. 

The Stare may incercede on behalf of a child and file a 

pecicion for cerminacion of parenral rights "when ir is 

apparenc char rhe nacural parenc is failing, and is likely co 

conrinue to fail ro provide che children wich a minimally 

adequare life." In re C.A.R. (Monc. 1984), 693 P.2d 1214, 

1221, 41 Sc.Rep. 2395, 2402; see also S 41-3-602, MCA. The 

righc of rhe nacural parencs co care and cuscody of rheir 

children, however, is a fundamenral liberry inceresc. In re 

R.B., Jr. (Monc. 1985), 703 P.2d 846, 848, 42 Sr.Rep. 1055, 

1058 (cicing Sancosky v. Kramer (1982), 455 U.S. 745, 102 

S.Cc. 1388, 71 L.Ed.2d 599). Consequenely, che Scare has che 

burden of proving by clear and convincing evidence rhac all 

scacucory cerminacion criceria have been rnec. In re J.L.R. 

(1979), 182 Monc. 100, 117, 594 P.2d 1127, 1136. 

The primary duty of deciding wherher the Scace has mec 

chis burden of proof, and whether cuscody and parenral righrs 

should be cerminaced, lies wich che Discricr Courc. On 

appeal, "all reasonable presumptions as co rhe correccness of 

che dererminarion by rhe disrricr courc will be made." 

In re C.A.R., 693 P.2d ac 1218 (cicing Foss v. Leifer (1976), 

170 Monc. 97, 550 P.2d 1309). Therefore, we will nor discurb 

a decision of rhe Discricc Courr unless a mistake of law 

exisrs or the facrual findings are nor supporced by 

subscaneial credible evidence. In re V.R. (Monr. 1987), 744 

P.2d 1248, 1249, 44 Sr.Rep. 1838, 1840; In re M.D.Y.R. 
(1978), 177 Monc. 521, 534, 582 P.2d 758, 766 (cicing Solie 

v. Solie (1977), 172 Monc. 132, 561 P.2d 443). 

The seccion of che scarure relevanr co chis rerminarion 

case is S 41-3-609(1) (c), MCA, which sraces: 

(1) The courc may order a cerminacion of 

che parenc-child legal relarionship upon 

a finding char . . . 

(c) che child is an adjudicared yourh in 

need of care and boch of the following 

exisc: 

(i) an appropriare rrearmenc plan char 

has been approved by rhe courc has nor 

been complied wirh by che parenrs or has 

nor been successful; and 

(ii) che conducr or condieion of che 

parencs rendering rhem unfic is unlikely 

co change wichin a reasonable rime. 

EJeirher parry conresrs rhe Discrice Courc's decerminacion 

rhac J.L.S. and A.D.S. are yourhs in need of care. 

Appellancs do concend, however, char a creacmenc plan was nor 

in effecc ac che rime of rerminarion and rhac che courc's 

cerminacion was an abuse of discrerion. 

Appellancs' firsc concencion is wichouc merir. The 

sraruce requires only rhac rhe parencs fail co comply wirh 

- an appropriate rrearmenr plan. Borh Dr. Molineux and Twila 

Cosrigan indicated chac che firsr creacmenr plan approved by 

che Discricc Courc on May 15, 1986, failed due ro rhe 

parenrs' lack of cooperacion wirh counseling efforcs. 

Addieionally, rescimony was inrroduced which recounred 

various cimes when che parencs were observed purchasing 

and/or drinking alcohol in che fall of 1986 in violarion of 

che approved rrearmenr plan. Subscanrial credible evidence 

exisrs supporting a decerminacion thac che parenrs failed to 

comply wirh the inirial courr-approved rrearmenr plan, and ir 
is chus irrelevant whether or nor che new creacmenc plan, as 

modified by Dr. Miller, was in face auehorized and in effecc 

prior ro cerminacion proceedings. 

Appellants also concend char che Discricc Courc's 

conclusion char che parenes conduce was unlikely co change 

wichin a reasonable eime was noc supporced by subscancial 

credible evidence. Seccion 41-3-609(2), MCA, scaces chae in 

determining wheeher che conduce or condicion of che parenes 

is unlikely co change wichin a reasonable eime, che courc 

musc find: 

[Tlhac concinuacion of che parenc-child 

legal relationship will likely resulc in 

continued abuse or neglecc or chae che 

conduce or che condicion of che parencs 

renders che parenes unfic, unable, or 

unwilling co give the child adequace 

parencal care. 

The courc musc consider che seven crieeria ourlined in 

S 41-3-609(2) (a) chrough (g), MCA, when making such a 

decerminacion. The Discrice Courc's conclusions of law 

clearly indicace char the courc carefully considered each of 

these seven faccors. 

The courc found chae ac lease four of che lisced 

criceria applied co A.S. and cwo applied co B.G. Subscancial 

credible evidence exiscs in supporc of chese findings. 

Firsc, che evidence shows chae A.S. had a hisrory of violent 

behavior; he was previously arresced for physically abusing 

his wife, and numerous bruises found on A.D. S. indicace she 

was abused as well. Second, cescimony by numerous people 

indicated char boch parencs routinely drank alcoholic 

beverages to excess, char chey became aggressive and violent 

under che influence of alcohol, and chac chey were generally 

unable co properly care for rheir children during rimes of 

such excess. Third, a physical examinacion of A.D.S. 
revealed numerous bruises on her neck, arm, back, buccocks 

and legs which poinc co physical abuse. Fourch, che 

cescimony of Twila Coscigan and Dr. Molineux indicates chac 

counseling efforcs under che inicial plan were unsuccessful 

because of a general hoscile and uncooperarive acticude, mose 

nocably by che farher, during counseling sessions. Dr. 

Miller also cescified of his repeaced efforcs in January and 

February of 1987 co meec with che parenrs to explain the 

modified creacmenc plan. The last such accempc ended wich a 

scacemenc by A.S. char he would noc cooperace wirh ehe plan. 

Given all che above evidence, we hold chac che Discrice Courr 

did noc err in holding chac the conduce and condieion of che 

parencs rendered chem unfic co provide adequare parencal care 

and chac such conduce was unlikely to change in a reasonable 

rime. 

Prior to ordering cerminacion of parencal righrs LO 

J.L.S. and A.D.S., che courc also considered rhe bese 

incerescs of che rwo children. This consideraeion is in 

accord wich rhe scacucory mandace of 5 41-3-609 (3) , MCA, 

which scares: 

In considering any of che faccors in 

subsection (2) in cerminacing che 

parenc-child relarionship, che courc 

shall give primary consideracion to the 

physical, men~al, and emorional 

condicions and needs of che child. The 

court shall review and, if necessary, 

order an evaluation of the child's or che 

parenc's physical, mencal, and emorional 

condicions. 

Furcher, chis Courc has previously scared char when parencs 

cornrnir aces which deprive a child of an adequace physical and 

emocional environment, che bese inceresc of che child becomes 

paramount over parenral righrs. In re C.A.R., 693 P.2d ac 
1219 (citing In Re Bad Yellow Hair (1973), 162 Mont. 107, 509 

Testimony was given that the children had made a lot of 

progress cognitively, emotionally, and mentally while in 

foster care. Further, Dr. Miller stated that, in a1.l 

likelihood, both children would regress to their previous 

behavioral patterns if returned home. Dr. Guggenheim 

similarly stated in regards to J.L.S that: 

continued placement in a consistent and 

supportive home environment would seem 

extremely important . . . in a child who 

already has a tendency for passive/ 

aggressive and manipulative adaptations 

to stress . . . 

Given all the above evidence, we hold that substantial 

credible evidence exists supporting the District Court's 

decision to terminate parental rights to J.L.S. and A.D.S. 

Finding no abuse of discretion, we affirm the District 

Court's decision. 

ief Justice