NO. 88-94

INTHE SUPREME COURT OF THE STATE OF MONTANA
1988

INTHE MATTER OF J.L.S and A.D.S, Youths inNeed of Care.

APPEAL FROM: DistrictCourt of theFirstJudicialDistrict, Inand fortheCounty of Lewis & Clark, The Honorable Gordon Rennett, Judge presiding.

COUNSEL OF RECORD:

For Appellant: 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



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ClerkMr. Justice L. C. Gulbrandson delivered the Opinion of the Court.

Theparents ofJ.L.S. andA.D.S. appeal froma 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 iswhether the District Court failed to followthe dictatesofS 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 toA.S. (thefather) 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 consumprionof a case ofbeer ormore eachnighr,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, shenored charJ.L.S. appeared sad and fearful and char rhe child's cognicive, psychomoror and social skills were all belownormal. A.D.S. was diagnosedas 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 invesrigariveaurhoriry EO 

### che Scare and denied rheparencs' peririon for rerurnof 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

onMay 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~risingrherapisc. 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 todeny 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 creacmencplan. 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 childrenuncil hearing of chemaccer on December 18, 1986. Ac che December hearing, respondenc 

### introduced cescimony derailing che greac improvemencsnociced in che children's 

### cognitive, emocional, socialand psychologicalwelfare during chepasc eighcmonchs 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., chenew supervising cherapiscwich auchoricy comodify che firsc creacmencplan ashe 

### 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 scheduledmeecing, hue she refused co sign the new creacmencplan 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 lefcwichouc signingcheplan, scaringashe lefc charhewas noc going co cooperatewich cheplan. Upon requesc by che parencs, a hearing was held on March 12, 1987 co discuss che new creacmencplan asmodified by Dr.Miller. Ac chis hearing, che courcrequesced 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 chemaccerwas held onMay 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 inhand 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 cheparking lor. Lascly, on Occober 24, 1987,A.S. was arresced for Criminal Trespassand cheprocessing jailor cescified charhe

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 parencsconduce was unlikely co change wirhin a reasonable rime. Having

### determined char rhebesc ineeresrsof che cwo children would be best servedby permanene

### placement in a foscerhome, 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 cerminacingrheparencal rights co J.L.S. andA.D.S. The Staremay incercede onbehalf of a child and file a pecicion for cerminacion of parenral rights "when ir is apparenc char rhenacuralparenc 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 Scarehas che burden of proving by clear and convincing evidence rhac all scacucory cerminacion criceria have been rnec. In re 

### J.L.R. (1979),182Monc. 100, 117,594 P.2d 1127,1136. The primary duty of deciding wherher the Scace has mec chis burden ofproof,andwhether cuscodyand parenral righrs should be cerminaced, lies wich che Discricr Courc. On appeal, "allreasonable

### presumptions as co rhe correccnessof che dererminarion by rhe disrricr courc will be made." In re

### C.A.R., 693P.2d ac 1218 (cicingFossv. Leifer (1976), 170Monc. 97,550 P.2d 1309). Therefore,wewill 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 reV.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 (cicingSolie

v. Solie (1977),172Monc. 132,561 P.2d 443). The seccionof che scarurerelevanr co chis rerminarion

case isS 

### 41-3-609(1)(c),MCA,which sraces: (1) The courcmay order a cerminacion of che parenc-child legal relarionship upon a finding char

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(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 cochangewichin a reasonablerime. EJeirher parry conresrs rhe Discrice Courc's decerminacion rhac J.L.S. and A.D.S. are yourhs in need of care. Appellancsdo concend,however,char a creacmencplanwas nor in effecc ac che rime of rerminarion and rhac che courc's cerminacionwas an abuse ofdiscrerion. 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 creacmenrplan 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 complywirh the inirialcourr-approved rrearmenrplan, and ir

### is chus 

### irrelevantwhether or nor che new creacmencplan, as modified by Dr. Miller,was in face auehorized and in effecc prior ro cerminacionproceedings. 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 relationshipwill 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 coA.S. and cwo applied co B.G. 

### Subscancial credible evidence exiscs in supporc of chese findings. Firsc, che evidence shows chaeA.S. had a hisrory ofviolent behavior; he was previously arresced for physically abusing his wife, and numerous bruises found onA.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 cheywere 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 uncooperariveacticude,mose nocably by che farher, during counseling sessions. Dr. Miller also cescified ofhis repeaced efforcs in January and February of 1987 co meec with che parenrs to explain the modified creacmencplan. The last such accempc ended wich a
scacemencby A.S. char he would noc cooperace wirh eheplan. Given all cheabove evidence,wehold chac cheDiscriceCourr did noc err in holding chac the conduce and condieion of che parencs rendered chemunfic coprovide adequareparencal care and chac such conducewas 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 cornrniraceswhich deprivea child of an adequacephysical and emocional 

### environment, chebese incerescof che child becomes paramount over parenral righrs. In reC.A.R., 693 P.2d ac1219 (citing InRe Bad Yellow Hair (1973),162Mont. 107,509

Testimonywas given that the childrenhadmade 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 

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# . 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.

iefJustice