No. 01-896 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

 

2002 MT 232 

IN THE MATTER OF THE CUSTODY AND 

PARENTAL RIGHTS OF D.T., T.D., and B.D., 

Youths in Need of Care. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis and Clark, 

The Honorable Dorothy McCarter, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Jeremy Gersovitz, Assistant Public Defender, Helena, Montana 

For Respondent: 

Hon. Mike McGrath, Attorney General; Jennifer Anders, 

Assistant Attorney General, Helena, Montana 

Leo Gallagher, Lewis and Clark County Attorney; Carolyn A. Clemens, 

Deputy County Attorney, Helena, Montana 

For Youths: 

Randi M. Hood, Chief Public Defender, Helena, Montana 

Submitted on Briefs: May 30, 2002 

Decided: October 17, 2002 

Filed: 

__________________________________________ 

Clerk
2 

Justice Jim Regnier delivered the Opinion of the Court. 

¶1 The Appellant, Mona, appeals from the Amended Findings of 

Fact, Conclusions of Law, and Order entered by the First Judicial 

District Court, Lewis and Clark County, which terminated her 

parental rights with respect to her three children. We affirm. 

¶2 The sole issue on appeal is whether the District Court abused 

its discretion when it terminated Mona’s parental rights. 

BACKGROUND 

¶3 Mona is the natural mother of the three minor children, 

Brittany, Thomas and Dakota, at issue in this case. Brittany and 

Thomas’ natural father is Sheldon, whose whereabouts are unknown, 

and Dakota’s natural father is Colin. Colin and Sheldon are not 

parties to this appeal. 

¶4 The Department of Public Health and Human Services (“DPHHS”) 

began working with this family in February of 1999 as a result of 

Thomas’ aggressive behavior at school. Later, on April 8, 1999, 

DPHHS received information that Colin had sexually assaulted 

Brittany and referred the matter to the appropriate authorities. 

Thereafter, on April 13, 1999, the State filed a petition in the 

District Court for temporary investigative authority, protective 

services, and temporary custody over all of the children. 

¶5 On April 23, 1999, the parties stipulated that the children 

were youths in need of care. Further, Mona and Colin agreed that 

the District Court should grant temporary investigative authority 

and custody of the children to DPHHS for a period of six months. 

The children were then moved to their grandparents’ home. In June 
3 

of 1999, Mona and Colin acquiesced to treatment plans designed to 

address chemical dependency and sexual offender issues to preserve 

the parent-child relationship. Mona and Colin agreed to the terms 

of another treatment plan in September of the same year. In 

October, DPHHS moved for an extension of temporary custody based on 

Mona’s three alcohol related relapses and Mona and Colin’s failure 

to complete the previously agreed upon treatment plans. On October 

21, 1999, the District Court, upon stipulation of the parties, 

extended DPHHS’s temporary custody of the children for an 

additional six months so Mona could undergo further chemical 

dependency treatment and Colin could undergo further sexual 

offender treatment. 

¶6 In January and March of 2000, Mona and Colin agreed to the 

terms of additional treatment plans. However, on April 11, 2000, 

the District Court, upon DPHHS’s motion, granted another six month 

extension of temporary custody based, in part, on Mona’s inability 

 “to parent three children at this time.” Thereafter, Mona and 

Colin signed a fifth and sixth treatment plan in May and September 

of 2000 respectively. On October 17, 2000, upon DPHHS’s motion, 

the District Court terminated DPHHS’s temporary investigative 

authority, protective services, and temporary custody and returned 

the children to Mona. 

¶7 On January 17, 2001, the State filed a second petition for 

temporary investigative authority, protective services, and 

temporary custody due to Mona’s continued neglect of the children 

and abuse of alcohol. The District Court granted the second 
4 

petition and returned the children to their grandparents’ home. 

Mona signed a seventh treatment plan in March of 2001 and Colin 

signed another plan in April of 2001. Finally, on June 29, 2001, 

the State filed a petition to terminate Mona and Colin’s parental 

rights with respect to the three children. The petition alleged 

that the parents failed to comply with the provisions of their 

treatment plans and the conduct and conditions which rendered them 

unfit to parent were unlikely to change within a reasonable time. 

Colin subsequently relinquished his parental rights to Dakota. 

¶8 On October 19, 2001, the District Court issued its Amended 

Findings of Fact, Conclusions of Law, and Order, which terminated 

Mona and Colin’s parental rights. Mona appeals from the judgment 

of the District Court which terminated her parental rights. 

STANDARD OF REVIEW 

¶9 A district court’s decision to terminate parental rights is 

discretionary and we review that decision to determine whether the 

court abused its discretion. In re J.W., 2001 MT 86, ¶ 7, 305 

Mont. 149, ¶ 7, 23 P.3d 916, ¶ 7. In reviewing a decision to 

terminate parental rights, we determine whether the district 

court’s findings of fact supporting termination are clearly 

erroneous and whether the district court’s conclusions of law are 

correct. In re C.B., 2001 MT 42, ¶ 6, 304 Mont. 252, ¶ 6, 20 P.3d 

117, ¶ 6. A finding of fact is clearly erroneous if it is not 

supported by substantial evidence; if the district court 

misapprehended the effect of the evidence; or if, after reviewing 

the record, this Court is left with a definite and firm conviction 
5 

that the district court made a mistake. In re J.N., 1999 MT 64, ¶ 

11, 293 Mont. 524, ¶ 11, 977 P.2d 317, ¶ 11. 

¶10 This Court has further stated that a natural parent's right to 

care and custody of a child is a fundamental liberty interest which 

must be protected by fundamentally fair procedures. In re J.N., ¶ 

12. Thus, before terminating an individual’s parental rights, a 

district court must adequately address each applicable statutory 

requirement. In re J.N., ¶ 12. The party seeking to terminate an 

individual’s parental rights has the burden of proving by clear and 

convincing evidence that the statutory criteria for termination 

have been met. In re J.N., ¶ 12. 

DISCUSSION 

¶11 Did the District Court abuse its discretion when it terminated 

Mona’s parental rights? 

¶12 Section 41-3-609(1)(f), MCA, provides that a court may 

terminate parental rights upon a finding that 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. 

Mona does not dispute the District Court’s finding that her 

children are youths in need of care. However, Mona does contest 

the District Court’s determination that she has “failed to 

successfully complete her treatment plans.” Mona contends that the 

evidence at trial indicated that she substantially complied with 
6 

the treatment plans. Further, Mona argues that the evidence showed 

that she is a “loving mother struggling and succeeding against 

incredible odds to parent her children.” Therefore, Mona maintains 

that the District Court erred when it concluded that her treatment 

plans were unsuccessful. 

¶13 When considering the criteria for termination, primary 

consideration must be given to the best interests of the child as 

demonstrated by the child’s physical, mental, and emotional 

conditions and needs. In re S.M., 2001 MT 11, ¶ 31, 304 Mont. 102, 

¶ 31, 19 P.3d 213, ¶ 31. The law presumes that the best interests 

of the child compel termination of parental rights when a child has 

remained in foster care under the state’s custody for fifteen of 

the most recent twenty-two months. See § 41-3-604(1), MCA. 

Finally, as for compliance with a court-approved treatment plan, 

partial compliance is insufficient to preclude termination of 

parental rights. In re A.N., 2000 MT 35, ¶ 45, 298 Mont. 237, ¶ 

45, 995 P.2d 427, ¶ 45. 

¶14 After listening to the testimony presented at trial, the 

District Court entered the following findings of fact and 

conclusions of law: 

All of the professionals involved with Mona noted 

her inability to follow through on her treatment plans. 

. . . . 

Mona did not complete the Court-approved treatment 

plans in that she has failed to remain drug and alcohol 

free; she has failed to complete the recommended chemical 

dependency treatment; she has failed to participate 

regularly in her own individual therapy and she has not 

consistently attended family therapy with her children; 

she has been unwilling to work consistently with AWARE on 
7 

parenting skills; she has not terminated her relationship 

with Colin; and she has failed to work consistently with 

[the psychiatric nurse practitioner] to monitor her 

medication needs. 

The treatment plans have not been successfully 

completed in that Mona has continued to experience 

serious problems with her alcohol and drug addictions 

which have made it impossible for her to care for her 

children on a consistent basis; she continues to have 

serious mental health issues which have not been 

addressed; and her children continue to be seriously 

emotionally disturbed. 

Because of Mona’s failure to successfully complete 

the treatment plans, the Court concludes that the 

children remain at risk for neglect and emotional abuse. 

 Mona’s history of not following through and the 

seriousness of her problems indicate that the problems 

which make her unable to parent her children now will 

persist well into the future. Change cannot be expected 

in the foreseeable future. Mona has already had plenty 

of time to successfully complete her treatment plans, and 

she has been unable or unwilling to do so. 

Mona contends that the State did not present clear and convincing 

evidence to support these findings and conclusions. We disagree. 

¶15 Randy Koutnik, the primary social worker involved in this 

case who began working with Mona and the children in May of 1999, 

testified that Mona sporadically showed promise of parental 

fitness. However, he stated that “[e]very time . . . we [made] 

progress with Mona we had to pull back because of relapses, because 

of her failing her treatment plan, various parts, particularly 

drinking again and using drugs.” He stated that Mona consistently 

missed scheduled counseling and therapy sessions; failed to 

adequately deal with her chemical dependency issues as she 

experienced at least six substance abuse relapses, several of which 

required hospitalization; left the children to their own devices 
8 

when the children remained under her supervision; and neglected the 

children’s need for medication. 

¶16 Koutnik testified that he warned Mona on several 

occasions of the consequences of noncompliance with the treatment 

plans. However, Koutnik stated that Mona has not “demonstrated 

that she is serious about making any progress or [taken the] 

initiative . . . to make a significant change in her life that 

would allow her to be a responsible parent.” Koutnik claimed that 

he was unaware of any other rehabilitative options at DPHHS’s 

disposal to rectify Mona’s family situation. Koutnik testified 

that, in his opinion, the children would experience continued abuse 

and neglect if returned to Mona’s care. 

¶17 Christa Andersen, the youth case manager of the family 

services, testified that Mona did very well when she did not have 

the children with her. When the children transitioned home, 

Andersen observed that Mona became overwhelmed, succumbed to 

physical sickness, and regressed back to general irresponsibility. 

 Andersen testified that Mona simply appeared “unable to deal with 

having three very disturbed children.” 

¶18 Dana Hillyer, a psychiatric nurse practitioner, began working 

with Mona in September of 1999 to manage the symptoms of her 

bipolar disorder. Hillyer testified that many people who suffer 

from mental illness sufficiently stabilize through treatment to 

enable them to parent their children. To do so, however, requires 

a “structured and responsible sort of lifestyle” carefully tailored 
9 

around regimented treatment. Hillyer noted the following in regard 

to Mona’s sporadic attendance at treatment: 

Q: . . . [Mona] wasn’t very consistent with you? 

A: Not overall. . . . [T]here are gaps between her coming 

in and then not showing for follow-up treatment and then 

coming back. I mean in the sense that she would not 

show, call in, reschedule, come, and there would be, you 

know, a lapse maybe of a month or so in this whole period 

of time. 

Q: And that is not what you are talking about when you 

say that someone with a mental illness needs to be 

monitored and stabilized and have a stable lifestyle, 

that sort of thing? 

A: Exactly. 

¶19 Rita Pickering, a social worker for A.W.A.R.E., Inc., which 

provides case management services to seriously emotionally 

disturbed children and in-home family support services, became 

actively involved with this case in October of 2000. Pickering 

sought to visit Mona’s residence twice a week to assist Mona with 

the children’s transition home. Pickering stated that she made 

herself available to help Mona improve her parenting skills and 

manage the day-to-day routine of child-rearing but Mona “wasn’t 

able to let me. She didn’t let me.” Due to Mona’s consistent 

cancellations, Pickering only spent about fifteen hours with Mona 

in six months. Pickering testified that “Mona can talk about 

parenting and appropriate parenting . . . [but] she can’t do [it].” 

¶20 Dodie Heffner, a licensed clinical social worker and 

Brittany’s individual therapist since April of 1999, testified that 

Brittany is a sexually overactive child who suffers from 

depression, post traumatic stress disorder, and attachment issues 
10 

as a result of sexual abuse and exposure to alcoholism in the 

family. Heffner claimed that Mona has been emotionally 

inconsistent with the children and only sporadically attended 

family therapy sessions. In her opinion, Mona did not make 

consistent progress in treatment over the extended period of time. 

 Heffner stated that Brittany “needs to be in a permanent placement 

as soon as possible.” Further, Heffner testified that: 

[Brittany] needs a sense of security and stability, 

consistency, she needs structure because of the sexually 

reactive behaviors; needs a lot of understanding about 

that; behavior management strategies that are positive 

and constructive and someone that can be emotionally 

available for her so she can learn that the world is 

trustworthy and dependable. 

Heffner concluded that Mona is not in a position to provide those 

things to Brittany and would not be for quite some time. Heffner 

did not feel that DPHHS could safely return the children to Mona’s 

care at this time. 

¶21 Meegan Butler, a therapeutic aid at A.W.A.R.E. who provides 

one-on-one support to emotionally disturbed children, worked with 

Thomas for approximately two years. Butler provided testimony on 

the behavioral differences exhibited by Thomas under both Mona and 

his grandparents’ care. Butler claimed that Thomas manifested 

escalated behavioral problems while under Mona’s supervision. Yet, 

Thomas displayed an improved emotional condition while under his 

grandparents’ supervision. Butler testified that, while in his 

grandparents’ custody, Thomas’ compliance with adults markedly 

improved, he appeared less physically tired, and he did better in 

school. Further, Susan Anderson, Thomas’ therapist since May of 
11 

1999, opined that Mona gets so overwhelmed with her own personal 

issues that she loses focus of the children’s needs. Anderson 

testified that without a high degree of consistency, 

predictability, and structure, she would expect to see Thomas in 

the juvenile or adult justice system in the future. 

¶22 As indicated above, following a finding that a child is an 

adjudicated youth in need of care, a court may terminate parental 

rights if the parent has failed to comply with an appropriate 

treatment plan or the treatment plan proved unsuccessful and the 

conduct rendering the parent unfit is unlikely to change within a 

reasonable time. For purposes of this Opinion, we have provided 

merely a snapshot of the evidence presented at trial. In fact, the 

State presented additional professional witnesses who recounted 

similar experiences with Mona that we have not included herein. 

While most of the witnesses expressed fondness for Mona, the 

collective testimony clearly and convincingly established the 

statutory criteria for termination. 

¶23 Further, as the State indicates, when it filed the petition to 

terminate Mona’s parental rights, her children had been under 

DPHHS’s custody for twenty-two of the past twenty-six months. 

Given the evidence presented at trial, in conjunction with the 

presumption in favor of termination of parental rights, we hold 

that the District Court did not abuse its discretion when it 

terminated Mona’s parental rights. 

¶24 Affirmed. 

/S/ JIM REGNIER 
12 

We Concur: 

/S/ PATRICIA COTTER 

/S/ JAMES C. NELSON 

/S/ W. WILLIAM LEAPHART 

/S/ JIM RICE