NO. 91-168 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1992 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Maurice R. Colberg, Jr., Judge 

presiding. 

COUNSEL OF RECORD: 

For Appellant: 

James A. Patten, Patten Law Firm, Billings, Montana. 

For Respondents: 

Hon. Marc Racicot, Attorney General, Helena, 

Montana: Cregg W. Coughlin, Assistant Attorney 

General, Helena, Montana: Dennis Paxinos, County 

Attorney, Billings, Montana: Susan Dunn, Deputy 

County Attorney, Billings, Montana; Damon L. 

Gannett, Attorney at Law, Billings, Montana; D. 

Michael Eakin, Attorney at Law, Billings, Montana. 

Filed: 

Submitted on Briefs: February 13, 1992 

Decided: March 24, 1992 
Chief Justice J. A. Turnage delivered the Opinion of the Court. 

M.M. (Mother) appeals the findings of fact, conclusions of law 

and judgment of the Thirteenth Judicial District, Yellowstone 

County, terminating her parental rights to her children, A.N.S. and 

L.M.R. We affirm. 

We rephrase the issues presented on appeal as follows: 

1. Did the District Court lack jurisdiction to terminate 

Mother's parental rights? 

2. Did the District Court abuse its discretion in denying 

Mother's motion to dismiss? 

3. Were the District Court's findings of fact, conclusions of 

law, and the judgment supported by substantial credible evidence? 

Mother is the natural mother of three children: L.M., born 

October 29, 1983; A.N.S., born November 19, 1987; and L.M.R., born 

March 16, 1989. The natural father of L.M. is unknown. L.S. is 

the natural father of A.N.S. and is incarcerated at Montana State 

Prison. M.R. is the natural father of L.M.R. 

Mother suffers from a chronic schizophrenia, undifferentiated 

type, and a borderline personality disorder. Her mental illness 

causes her to suffer paranoia and active hallucinations. On August 

19, 1985, the District Court terminated Mother's parental rights to 

L.M. after finding 1) L.M. to be a youth in need of care under 

g 41-3-102, MCA, 2) Mother incapable of adhering to any proposed 

treatment plan, and 3) Mother unfit and unable to provide adequate 

parental care to L.M. with her conduct and condition unlikely to 

2 
change in a reasonable amount of time. In the Matter of L.M., 

Thirteenth Judicial District Court, Yellowstone County, Cause No. 

DJ-85-007 (1985) . 

A.N.S. and L.M.R. have been under protective custody of 

Montana Department of Family Services since their births. A.N.S. 

was placed in foster care and L.M.R. was placed with his father, 

M.R. Besides periodic visits, A.N.S. has never been in Mother's 

custody. L.M.R has never lived with Mother. 

From 1984 to 1989, Department of Family Services and other 

agencies attempted to assist Mother in developing parenting skills 

with minimal success. Mother's conduct and condition continued to 

render her unable to provide adequate parenting skills. 

On May 24, 1989, a deputy county attorney, on behalf of 

Montana Department of Family Services, petitioned the District 

Court for permanent legal custody and termination of Mother's 

parental rights to A.N.S. and temporary legal custody and termination of mother's parental rights to L.M.R. On July 10, 1990, the 

District Court terminated Mother's rights to A.N.S. and L.M.R. 

From this order, Mother appeals. 

1. Did the District Court lack jurisdiction to terminate 

Mother's parental rights? 

Mother argues that 5 41-3-607(1), MCA, which provides that a 

dispositional hearing on termination of parental rights be held 

within 180 days of the filing of the petition, mandates that a 

3 
petition be dismissed if a hearing is not held within the prescribed time. Here, the petition was filed May 24, 1989. The case 

was assigned to District Court Judge Barz. Thereafter, Judge Barz 

was appointed to the Montana Supreme Court. Judge Colberg was 

appointed as a judge to the Thirteenth Judicial District on 

November 13, 1989. On November 30, 1989, Judge Colberg scheduled 

a dispositional hearing in this matter for February 14, 1990. 

Thereafter, Mother moved for a continuance but reserved her rights 

to assert all defects arising due to the lapse of time period. 

This matter was then heard on March 20 and 21, 1990. 

The 1985 Montana Legislature amended 5 41-3-607(1), MCA, as 

shown by the underlined portion which follows: 

The termination of a parent-child legal relationship 

shall be considered only after the filing of a petition 

pursuant to 41-3-401 alleging the factual grounds for 

termination. Termination of a parent-child legal 

relationship shall be considered at a dispositional 

hearing held pursuant to 41-3-406, following or together 

with an adjudicatory hearing held pursuant to 41-3-404, 

within 180 daw after the filina of the petition. 

See, 1985 Mont. Laws, Ch. 388. The Legislature's intent was to 

give added protection to children who are the subjects of abuse, 

neglect, and dependency by encouraging those cases to be handled in 

a reasonably prompt manner. Nothing in the legislative history of 

this amendment suggests that the Legislature intended that an 

action be dismissed when a dispositional hearing is not held within 

the 180-day time frame or that the amendment was intended to 

4 
provide a statute of limitation protection for the parents of 

children who are alleged to be abused, neglected, or dependent. 

Mother further argues that the word tvshalll' in this statute 

mandates dismissal of this action if the 180-day time limitation is 

not met. While the word "shall" in a statute is oftentimes 

mandatory, other factors must be considered to determine a 

statute's mandatory or directive effect when a time limitation is 

involved. 

In State v. Nelson (Kan. 1968), 436 P.2d 885, cert. denied, 

392 U.S. 915, the court considered a similar challenge to a court's 

jurisdiction, wherein a criminal defendant sought discharge from 

incarceration when the court did not impose sentence within five 

days of the court's denial of his motion for a new trial. The 

court held: 

Provisions intended to secure order, system and dispatch 

in the mode of proceeding by public officials, and by a 

disregard of which parties cannot be injuriously affect- ed, are not regarded as mandatory unless accompanied by 

negative words importing the acts required shall not be 

done in any other manner or time than that designated. 

[Citations omitted.] 

Nelson, 436 P.2d at 887. 

The same reasoning was enunciated in Wyoming State Treasurer 

v. City of Casper (Wyo. 1976), 551 P.2d 687, wherein the court 

held: 

It is a universal holding that a statute specifying a 

time within which a public officer is to perform an 

official act regarding the rights and duties of others is 

directory, unless the nature of the act to be performed, 

or the phraseology of the statute is such that the 

5 
designation of time must be considered as a limitation of 

the power of the officer. [Citations omitted.] 

.... 

Another aid to construction is in the rule that an 

affirmative statutory provision relating to the time of 

performing official acts, unlimited or unqualified by 

negative words, is generally considered as directory 

rather than mandatory. [Citations omitted.] 

City of Casper, 551 P.2d at 698-99. 

In Wilson v. Brodie (1966), 148 Mont. 235, 419 P.2d 306, this 

Court considered whether a justice court lost jurisdiction to enter 

sentence when the sentencing did not meet the statutory requirement 

that it occur "not more than two days nor less than six hours after 

the verdict is rendered.'' Although deciding the case on other 

grounds, this Court stated: 

Even if the sentencing, arguendo, was imposed irregularly 

it is still valid for the purpose of determining whether 

the justice was acting within his jurisdiction. It is 

merely a procedural irregularity which cannot be raised 

for the purpose of attacking the jurisdiction of the 

justice court. [Citations omitted.] The statute is 

directory rather than mandatory or jurisdictional. 

Wilson v. Brodie, 148 Mont. at 239, 419 P.2d at 309. Accordingly, 

we hold that 5 41-3-607(1), MCA, is directory and therefore, the 

District Court did not lack jurisdiction to terminate Mother's 

parental rights based on the 180-day time limitation. 

2. Did the District Court abuse its discretion in denying 

Mother's motion to dismiss? 

6 
Mother argues that because the dispositional hearing was not 

held within 180 days of the filing of the petition, the evidence 

presented at the dispositional hearing was stale and not based upon 

Mother's current situation. Following a review of the record, we 

hold that nothing about the delay in the hearing caused prejudice 

to Mother. Mother has been seriously 

mentally ill for years, 2) five years of treatment plans and other 

agency involvement to help Mother with parenting skills have proven 

unsuccessful, and 3) Mother's condition and conduct are unlikely 

to change in the future. We therefore hold that the District Court 

did not abuse its discretion when it denied Mother's motion to 

dismiss. 

The record indicates that 1) 

3. Were the District Court's findings of fact, conclusions of 

law, and the judgment supported by substantial credible evidence? 

Section 41-3-609, MCA (1989), sets forth the criteria the 

District Court was to follow for terminating Mother's parental 

rights: 

(1) The court may order a termination of the parentchild legal relationship upon a finding that the circum- stances contained in subsection (1) (a), (1) (b) , or 

(1) (c), as follows, exist: 

... 

(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 

7 
(ii) the conduct or condition of the parents rendering 

them unfit is unlikely to change within a reasonable 

time . 

(2) In determining whether the conduct or condition of 

the parents is unlikely to change within a reasonable 

time, the court must enter a finding that continuation of 

the parent-child legal relationship will likely result in 

continued abuse or neglect or that the conduct or the 

condition of the parents renders the parents unfit, 

unable, or unwilling to give the child adequate parental 

care. In making such determinations, the court shall 

consider but is not limited to the following: 

(a) emotional illness, mental illness, or mental 

deficiency of the parent of such duration or nature as to 

render the parent unlikely to care for the ongoing 

physical, mental, and emotional needs of the child within 

a reasonable time; 

... 

(9) any reasonable efforts by protective service 

agencies that have been unable to rehabilitate the 

parent. 

Mother argues that the record does not support by substantial 

credible evidence the statutory criteria of 5 41-3-609, MCA (1989). 

She argues that the record merely proves that Mother is uncooperative and argumentative. We disagree. 

The record indicates that the children were adjudicated to be 

youths in need of care. Ten witnesses, including health care 

professionals, social workers, a home attendant, a child care 

volunteer, a friend of Mother's, and a neighbor gave testimony 

relating to 1) several unsuccessful attempts to assist Mother with 

developing parenting skills through treatment plans and agency 

involvement and 2) Mother's ongoing inability to provide adequate 

parenting skills for her children. In particular, Dr. David 

8 
Carlson, a psychiatrist, testified that Mother suffers from chronic 

schizophrenia, undifferentiated type, and a borderline personality 

disorder, mental illnesses of such duration or nature as to render 

her unlikely to be able to care for the ongoing physical, mental, 

and emotional needs of her children within a reasonable time. 

Based on this clear and convincing testimony, we hold that the 

District Court's findings of fact, conclusions of law, and judgment 

are supported by clear and convincing evidence. 

In conclusion, we affirm the District Court's findings of 

fact, conclusions of law and judgment terminating Mother's parental 

rights to A.N.S. and L.M.R. 

We concur: 

9 
IN THE SUPREME COURT OF THE STATE OF MONTANA 

NO. 91-168 

IN THE MATTER OF A.N.S., 

and L.M.R., Youths 

in Need of Care. 

The Opinion of this Court in the above-entitled matter, 

decided March 24, 1992, is hereby amended as follows: 

On page 2, paragraph 5, the statement of the third issue is 

amended to read: 

3. Were the District Court's findings of fact, 

conclusions of law, and the judgment supported by clear 

and convincing evidence? 

On page 7, paragraph 2, the statement of the third issue is 

amended to read: 

3. Were the District Court's findings of fact, 

conclusions of law, and the judgment supported by clear 

and convincing evidence? 

On page 8, paragraph 6, the first sentence is amended to read: 

Mother argues that the record does not support by 

clear and convicing evidence the statutory criteria of 

5 41-3-609, MCA (1989). 

$2 

DATED this zL - day of March, 1992. /