No. 02-115 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

 

2002 MT 183 

IN THE MATTER OF THE CUSTODY 

AND PARENTAL RIGHTS OF 

A.L.R., A.A.R., AND T.C.R., 

Youths in Need of Care. 

APPEAL FROM: District Court of the First Judicial District, 

In and For the County of Lewis and Clark, 

Honorable Dorothy McCarter, Judge Presiding 

COUNSEL OF RECORD: 

For Appellant: 

Jeremy Gersovitz, Public Defender, Helena, Montana 

For Respondent: 

Honorable Mike McGrath, Attorney General; Tammy Plubell, 

Assistant Attorney General, Helena, Montana 

Leo J. Gallagher, County Attorney; Carolyn A. Clemens, Deputy 

County Attorney, Helena, Montana 

Randi Hood, Helena, Montana (For Youths) 

Submitted on Briefs: July 18, 2002 

 Decided: August 27, 2002 

Filed: 

__________________________________________ 

Clerk 
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Justice W. William Leaphart delivered the Opinion of the Court. 

¶1 Ruby, the natural mother of A.L.R., A.A.R. and T.C.R., 

appeals from the Findings of Fact, Conclusions of Law, and Order 

issued by the First Judicial District Court, Lewis and Clark 

County, terminating her parental rights. We affirm. 

¶2 The issue on appeal is whether the District Court erred in 

terminating Ruby’s parental rights. 

Facts and Procedural Background

¶3 The Montana Department of Health and Human Services (the 

Department) first became involved with Ruby when she was charged 

with endangering the welfare of a child when Ruby was found passed 

out in her car with one-week-old A.L.R. At that time, A.L.R. was 

adjudicated a youth in need of care, and the Department developed a 

treatment plan for Ruby. A.L.R. was returned to Ruby’s care 

approximately six months later. The Department continued to 

monitor the case and added A.A.R. to the youth in need of care 

petition when he was born in 1993. At a review hearing in April 

1994, the Department reported that Ruby had successfully completed 

her treatment plan and requested that its services to Ruby be 

terminated since the children were successfully in her care. 

T.C.R. was born in 1997. 

¶4 The Department again became involved with Ruby in 1999 when 

she failed to pick up A.L.R. and A.A.R. from school. Ruby did not 

contact the Department for over twenty-four hours to inquire about 

the whereabouts of the children, and she was subsequently charged 

with criminal possession of dangerous drugs. The children were 
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again adjudicated as youths in need of care, and temporary legal 

custody was awarded to the Department. Because all three children 

are eligible for enrollment in the Blackfeet Tribe, the Department 

gave notice to the Tribe of its intervention with the family. 

After approximately six months, Ruby had satisfactorily completed 

her treatment plan, and the court dismissed the petition on June 6, 

2000. 

¶5 In November 2000, school officials in Whitehall, Montana, 

contacted the Department to report that A.L.R. and A.A.R. had 

hitchhiked twelve miles into town to get to school. Other members 

of the community had observed the boys hitchhiking to school on at 

least four other occasions, and the boys had already missed eight 

days of school. The boys reported that their mom did not get them 

up for school, did not feed them breakfast and did not make sure 

they made it to the school bus on time. They told the social 

worker that if they returned home after missing the bus, their mom 

would yell at them and make them go back to bed until she was ready 

to take them to school. 

¶6 The Department placed A.L.R. and A.A.R. in foster care and 

filed a petition for temporary legal custody of all three boys. A 

treatment plan was developed and adopted by the District Court in 

Jefferson County on December 18, 2000. The plan required Ruby and 

her husband to participate in couple and family counseling, to 

follow their probation guidelines, and to attend parenting class 

and also provided for supervised visitation with A.L.R. and A.A.R. 

 T.C.R. remained in the home with Ruby, and the treatment plan 
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called for intensive in-home services. In January, Ruby informed 

the Department that she and her husband were moving to Helena. The 

social worker instructed Ruby to establish a suitable home in 

Helena and to continue working on the treatment objectives while 

awaiting transfer of the case from Jefferson County to Lewis and 

Clark County. 

¶7 On March 9, 2001, the Department was called to Ruby’s 

apartment in Helena to pick up T.C.R. when Ruby was arrested for 

operating a methamphetamine lab in the apartment. T.C.R. was 

brought to the Children’s Crisis Center in Helena, where A.L.R. and 

A.A.R. were residing. All three boys exhibited severe behavioral 

problems while at the Children’s Crisis Center. 

¶8 On March 16, 2001, the Department filed a petition in Lewis 

and Clark County requesting temporary legal custody of all three 

boys. In April, the District Court adjudicated the boys as youths 

in need of care. A hearing was held in October to terminate Ruby’s 

parental rights to A.L.R., A.A.R. and T.C.R., and the court issued 

an order on November 6, 2001, terminating Ruby’s parental rights. 

She appeals. 

Standard of Review

¶9 We review a district court’s decision to terminate parental 

rights to determine whether the court’s findings of fact are 

clearly erroneous and whether its conclusions of law are correct. 

In re C.A., 2000 MT 227, ¶ 5, 301 Mont. 233, ¶ 5, 8 P.3d 116, ¶ 5. 

 Findings of fact are clearly erroneous if they are not supported 

by substantial evidence, the court misapprehended the effect of the 
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evidence, or this Court’s review of the record persuades it that a 

mistake has been made. In re B.H., 2001 MT 288, ¶ 13, 307 Mont. 

412, ¶ 13, 37 P.3d 736, ¶ 13. Additionally, courts must give 

primary consideration to the best interests of the child as 

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

In re B.H., ¶ 13. 

Discussion

¶10 Did the District Court err in terminating Ruby’s parental 

rights? 

¶11 The criteria for termination of parental rights is set forth 

at § 41-3-609, MCA. Of the six possible scenarios which allow for 

termination, § 41-3-609(1)(f), MCA, applies to this case and 

provides in pertinent part: 

(1) The court may order a termination of the parentchild legal relationship upon a finding that any of the 

following circumstances exist: 

. . . 

(f) 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. 

¶12 Because the children are eligible for enrollment in the 

Blackfeet Tribe, the Indian Child Welfare Act (ICWA) applies to 

this case. Under ICWA, the party seeking termination of an 

individual’s parental rights to an Indian child under state law 

“shall satisfy the court that active efforts have been made to 

provide remedial services and rehabilitative programs designed to 

prevent the breakup of the Indian family and that these efforts 
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have proved unsuccessful.” 25 U.S.C. § 1912(d). Additionally, the 

party seeking termination has the burden of proving beyond a 

reasonable doubt that “the continued custody of the child by the 

parent or Indian custodian is likely to result in serious emotional 

or physical damage to the child.” 25 U.S.C. § 1912(f). 

¶13 The District Court found that the children were adjudicated as 

youths in need of care; that a treatment plan was prepared in 

Jefferson County and approved by the court; that the ICWA worker 

for the Blackfeet Tribe testified that the Department made active 

and reasonable efforts to prevent the break-up of the family and 

that continued custody of the children with Ruby is likely to 

result in serious emotional and physical damage to the children; 

that Ruby lacks the parenting skills as well as the mental and 

emotional maturity to parent normal children; that these children 

are seriously emotionally disturbed; that Ruby failed to complete 

the approved treatment plan; and that Ruby is unlikely to make 

significant progress within a reasonable time to meet the 

children’s needs. From these findings, the court concluded that 

the approved treatment plan was not complied with and was not 

successful because of Ruby’s drug problems; that the children are 

severely disturbed and have special needs as a result of Ruby’s 

severe neglect; that the best interests of the children would be 

served by termination of the mother-child relationship and by 

awarding permanent legal custody to the Department; and that the 

Department had proven beyond a reasonable doubt that continued 
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custody of the children by Ruby would result in serious emotional 

and physical damage to the children. 

¶14 The only argument Ruby makes is that she never actually had a 

treatment plan during the six months preceding her termination 

hearing and that the State should have designed an appropriate 

treatment plan that she could have completed during her county jail 

and prison incarceration. 

¶15 The Department responds that although “Ruby’s treatment plan 

in the instant case was only in place from December 2000 through 

March 2001, it was Ruby who determined the shortness of her last 

treatment plan by participating in dangerous criminal conduct.” 

¶16 A treatment plan was prepared in Jefferson County and adopted 

by the court on December 18, 2000, to be in effect for 180 days. 

The treatment plan required Ruby to follow her probation 

guidelines, to obtain couple and family counseling and to attend 

supervised visitation with the boys. The record is replete with 

factual evidence which indicates that Ruby failed to comply with or 

complete these requirements. In fact, it is undisputed that less 

than three months after the plan’s implementation, Ruby was 

arrested for manufacturing methamphetamine in her apartment with 

T.C.R. present. Ruby is presently incarcerated on convictions of 

Criminal Production of Dangerous Drugs (Accountability), Negligent 

Endangerment and a probation violation involving Criminal 

Possession of Dangerous Drugs (clorazepate). 

¶17 Although a new treatment plan was not prepared in Lewis and 

Clark County, the social worker in Jefferson County had advised 
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Ruby to continue working on the approved treatment plan. Ruby 

claims on appeal that the Jefferson County treatment plan was 

“suspended,” but there is no evidence in the record to indicate 

that it was not still in effect. Several Department workers from 

Lewis and Clark County met with Ruby before her arrest, and Ruby 

continually denied having an alcohol or drug abuse problem and did 

not see a need for treatment. The social worker in Lewis and Clark 

County set minimal goals for Ruby, such as getting better locks on 

the doors to her apartment. Even this simple goal proved too 

difficult for Ruby to accomplish. Several days before Ruby’s 

arrest, T.C.R. was found wandering around on Prospect Avenue in 

Helena by himself, and Ruby was cited for endangering a child. 

¶18 Several witnesses testified to the fact that Ruby missed many 

of her scheduled visitations with the children and that when she 

failed to show up for the visits, it caused the children great 

anxiety. This occurred often enough that staff at the Children’s 

Crisis Center did not inform the children of proposed visits until 

Ruby actually showed up. When Ruby did show up for visits, the 

children afterward became violent and began sexually acting out. 

According to staff at the Crisis Center, the children’s emotional 

upheaval lasted several weeks after one visit. 

¶19 Further, the Department has been involved with Ruby and her 

children off and on since June 1992. Throughout that time, Ruby 

has completed several other treatment plans, but as soon as the 

Department ceases its services to her, Ruby drifts back to a 

chaotic, chemically dependent lifestyle. Additionally, family 
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services agencies in Idaho, Colorado and Oregon have been involved 

with this family. Ruby’s parental rights to three of her older 

children were terminated by the Idaho Department of Health and 

Welfare in 1994. The record clearly shows a longstanding history 

of Ruby’s abuse and neglect of the children. 

¶20 The District Court correctly concluded that Ruby did not 

comply with or successfully complete a court approved treatment 

plan, that Ruby is unlikely to make significant progress within a 

reasonable time to meet the children’s needs, and that the 

Department proved beyond a reasonable doubt that the continued 

custody of the children by Ruby would result in serious emotional 

and physical damage to the children. 

¶21 We affirm the District Court’s order terminating Ruby’s 

parental rights to A.L.R., A.A.R. and T.C.R. 

/S/ W. WILLIAM LEAPHART 

We concur: 

/S/ JAMES C. NELSON 

/S/ JIM REGNIER 

/S/ TERRY N. TRIEWEILER 

/S/ JIM RICE