No. 89-464 IN THE SUPREME COURT OF THE STATE OF MONTANA 1990

-. IN THE MATTER OF R.B. a/k/a R-K. AND R.J.K., youths in Need of CareCLERKOFSUPHEM. COU~r i;rAY'i F~,J,

APPEAL PROM: District Court of the Eighth Judicial District, In and for the County of Cascade, TheHonorableThomasM. McKj-ttrick, Judgepresiclincj.

COUNSE!., OF RECORD: For Appellant: John Keith, Great Falls,Montana For Respondent: :Ion. Marc Racicot

### ,Attorney General,Hzlena

### ,Plontcil:.: Jennifer M. Anders, Asst. Atty. General, Helen<! Patrick L. Paul, Cocnty Attorney, Great Falls, Fontana; Tammy Plubeli

### , Deputy, Greet Falls

Submitted on Briefs: Feb. 15, 1990 Decided: March 22, :199iJustice John Conway Harrison delivered the Opinion of the Court.

Appellant appeals an order of the Eighth Judicial District, Cascade County, Montana, terminatingherparental rights regarding R.B.K. and R.J.K. We affirm. Appellant raises a single issue forreview: Did the District Court err in its findings that the treatmentplan was unsuccessful? OnDecember 16,1987,theDistrictCourtadjudged R.B.K. 

### , then age four, a youth in need of care and it adjudged R.J.K.

### , born January 8, 1988, a youth in need of care on January 26, 1988. In the order declaring R.J.K. a youth in need of care, the District Court found that appellant had failed to address the abuse or neglect of R.B.K. and had not taken any steps to learn adequate parenting skills. Further,theDistrict Court found that appellant had refused to seekprenatal care, or to adequatelyprovide forher

new baby in terms of food, clothing, or shelter. The two cases were consolidated. On February 29, 1988, the ~istrict Court approved a treatment plan upon which all parties had agreed. The treatmentplan set a three-month completion date. The Department of Family Services filed a petition for permanent legal custody of R.B.K. and R.J.K. on September 20, 1988 alleging the following: The proposed treatment plan has not been compliedwith by [the mother] and has not been successful, in that: 1. The psychological evaluation by Ken Collenborne stated ltcharacterlogical [sic] defects are deeply ingrained and chronic innature and it is unlikely that psychotherapeutic intervention will be of much benefit in bringing about significantchange.'I Ken Collenborne recommended that [the mother] not regain custody of her children, if ever, until she completed a rigorous treatment programwhich included intensive psychotherapy sessions. [The mother] has not initiated any type of psychotherapy services. 2. [The mother] did attend 8 Parents Anonymous sessionsasrequired pursuant to the treatment plan, but did not benefit from the sessionsbecause shehas maintained a strange sense of denial. 3. [The mother] did attend 8 parenting classes at St. Thomas child and ~amily Services, but again did not actively participate in the classes and did not demonstrate a desire to improve her parenting skills. 4. [The mother] moved to Monarch, Montana, which made her involvement in the Supportive Friends Program logistically unfeasible. 5. [The mother] hasbeen unwilling todevelop a cooperative relationship with her social worker and has been extremely negative from the time the Department of Family services intervened in the case. Further, [the mother] has failed to maintain communication with her social worker even after the social worker requested her to do so. The DistrictCourt held hearings on three occasions,December 7, 1988, January 25, 1989, and April 13, 1989. In addition to appellant's testimony, the District Court heard testimony from KennethCollenborne,a clinical psychologist,thechildren'sfoster mother, the children's pediatrician, the various social workers involved in the case, the leaders of the support group and parenting class appellant attended, and several other persons whohad observed appellant with her children. On June 8, 1989, the District Court terminated appellant'sparental rights finding that appellanthad not initiated the long-term psychotherapy she needed to treather emotionalandpersonality disorder. Further,although appellant had complied with the treatment plantsrequirement that she attend parenting classes and support groups, appellant's behavior and ability to parent did not improve as a result, renderingthetreatmentplan unsuccessful. TheDistrict Court also found that the emotional ormental condition causing her parental unfitness was unlikely to change within a reasonable time. In relation to youths in need of care, 5 41-3-609,MCA, sets forth the following criteria for termination of parental rights: 41-3-609(1) (c) 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.

The State must show by clear and convincing evidence that the statutory criteria have been met. Matter of J.L.S. (Mont. 1988), 761 P.2d 838, 840, 44 St.Rep. 1842, 1845. We will not reverse a district court's decision regarding findings of fact if those findings are supported by substantial credible evidence. Matter of A.H. (Mont. 1989), 769 P.2d 1245, 1247, 45 St.Rep. 395, 397. Appellant challenges the District Court's finding that sherefused to participate in a long-term therapy program as recommended by Ken Collenborne. At the hearing, appellant testified that she had contacted the mental health center on several occasions and that shewas told that she had been put on

a waiting list. However, appellant ignores the substantial credible evidence in the record that appellant had never initiated contact with the mental health center and that she was not on a waiting list. We reject appellant's contention. Also disputed is the District Court's conclusion that appellant's existing mental or emotional conditionwas unlikely to change within a reasonable time. Appellant contends that the District Court relied upon the testimony of Ken Collenborne to reach its conclusion. But, Ken Collenborne's testimony cannot support that finding, appellant asserts, because he spent only 35 minutes with appellantand did not observeher interacting with her children. However, therecord discloses thatMr. Collenbornebased his testimonynot only on the actual timehe spent with appellant, but also on the results of psychological tests he administered. He testified that appellant's personality disorder was deeply ingrained and that appellant would have to make a genuine commitmentto change in order tomodify her behavior. Contrary to appellant's contention, the evidence of appellant's unwillingness

or inability tomodify herbehavior comes not fromMr. Collenborne, but from the social workers supervising appellant's case and the leaders of the parenting class and support group she attended. Substantial credible evidence exists in the record to support afinding that appellant is unwillingly or unable to make the necessary effort to change her behavior so that she can adequately parent R.B.K. and R.J.K. In summary, the District Court found that the State met its burden of proof under 5 41-3-609(1) (c)

## ,MCA. Substantial credible evidence 

### in the record supports that decision. We affirm the District Court.

We concur:



# @@*/-/ Justices