C.A.R., Matter of

• Decision Date: 20 December 1984
• Docket Number: No. 84-220,84-220
• Citation: 41 St.Rep. 2395,214 Mont. 174,693 P.2d 1214
• Parties: In the Matter of C.A.R. and P.J.R., Youth in Need of Care.
• Court: Montana Supreme Court

Page 1214

693 P.2d 1214

214 Mont. 174

In the Matter of C.A.R. and P.J.R., Youth in Need of Care.

No. 84-220.

Supreme Court of Montana.

Submitted on Briefs Sept. 6, 1984.

Decided Dec. 20, 1984.

W. Corbin Howard, Billings, for appellant.

Harold Hanser, County Atty., Greg Mullowney, Deputy County Atty., Damon L. Gannett, Billings, for Children, for respondent.

GULBRANDSON, Justice.

This is an appeal from an order of the District Court of the Thirteenth Judicial District, Yellowstone County, Montana, the Honorable Diane G. Barz presiding, that awarded to the Department of Social and Rehabilitation Services custody of the youths C.A.R. and P.J.R. with the authority to assent to adoption.

There is one issue on appeal: whether the trial court abused its discretion in terminating M.R.'s rights as natural mother to C.A.R. and P.J.R. M.R. contended before the District Court that she had recovered from alcoholism and that the recovery signalled her general rehabilitation. This evidence of rehabilitation, she argued, reduced the probativeness of her past omissions and neglect, and mandated that the District Court award her custody. The District Court heard testimony from M.R. and various other witnesses and terminated the parental relationship. We affirm. There was substantial credible evidence supporting the District Court order.

The trail of events leading to this action began in March of 1978. The Yellowstone County office of the Montana Department of Social and Rehabilitation Services (SRS), has been assisting M.R., a single mother, since that time. SRS had received reports that her son C.A.R., less than one year old, was being neglected. A social worker found that the child was inadequately clothed and living in a dirty home with M.R. and his maternal grandmother, B.J.R. C.A.R. was not yet crawling, and the back of his head was flat, indicating that he was spending a great deal of time on his back and not being held or moved. He was listless and non-responsive to stimulation. M.R. did not appear intoxicated at that time. The social worker offered M.R. the services of a SRS homemaker, and nursing and medical services. M.R. did not show much motivation to follow up with these services, or initiative in caring for her child.

On April 26, 1979, the social worker was notified that M.R. had left C.A.R. with a baby-sitter the day before, and had not returned for him. He was placed in an emergency foster care home, and the next day with his grandmother, B.J.R., after she contacted the social worker requesting custody. At that time, SRS sought and received Temporary Investigative Authority. C.A.R. was again placed in foster care in May, 1979, and from December 1979 until February 1980 because neither M.R. nor B.J.R. were able to care for the child. P.J.R. was born in 1980.

On May 19, 1981, another social worker placed C.A.R., then almost age four, and P.J.R., nine months, in emergency foster care after discovering the children unattended in M.R.'s home. P.J.R. was wet in a urine soaked crib and C.A.R. was playing in dog feces that was scattered about the floor of the apartment. The children were again placed with B.J.R. the next day at her request.

From December 1980 until October 1981, SRS attempted to provide M.R. with various community services, but she did not utilize them. After the children were returned in September 1981 to M.R. from the voluntary foster care placement, C.A.R. was enrolled in the Billings McKinley Preschool Early Childhood Intervention program to help him develop skills appropriate for a child his age. An examination by a team of professionals at the Development Assessment Clinic of the Montana Center for Handicapped Children had discovered significant developmental delays in C.A.R.

The youth missed school thirty-two times that fall and was terminated from the program for lack of attendance. The coordinator of the program talked to M.R. several times about this problem. M.R. explained that sometimes C.A.R. was ill and other times she was unable to wake up in time to ready C.A.R. to catch the noon bus across the street. The coordinator did not observe M.R. to be intoxicated during these conversations.

In November 1981, another social worker arranged appointments and transportation to take P.J.R. to Shodair Hospital in Helena for medical tests. Two appointments were made and cancelled after M.R. failed to awaken in time to prepare P.J.R. for the trip. When P.J.R. finally made it to Shodair, Dr. Opitz observed that she was very dirty and smelled of urine and that she was very passive and non-responsive during the examination. The back of her head also appeared flat.

In September of 1982, a teacher with the McKinley Preschool Program assisted M.R. with a simple stimulation program for P.J.R. after her pediatrician, Dr. Pat Sauer, had discovered significant developmental delays. M.R. showed little enthusiasm for the program. The teacher noticed no improvement in P.J.R.'s development while in M.R.'s custody, but noticed great improvement after the child was placed in foster care and the same program was implemented by the foster parents. A clinical psychologist also noted that P.J.R.'s mental functioning, developmental skills, and behavioral problems all improved substantially after the child had been under foster care for several months. Her IQ increased dramatically after being placed in foster care; a fact attributed to increased stimulation.

In October of 1982, the social worker placed both children in foster care after Dr. Sauer diagnosed P.J.R. as having suffered internal vaginal trauma, which apparently occurred while she was left with M.R.'s brother. M.R. explained that the trauma was accidental, due to P.J.R.'s falling down on a toy dump truck. Dr. Sauer's opinion was that the trauma was not accidental and that it was consistent with sexual abuse. On further questioning by Dr. Sauer, M.R. mentioned that a man named Donny, who had been staying with her brother, might be responsible for P.J.R.'s injuries. P.J.R. was, at the time two years and two months old.

Treatment plans for M.R. were implemented several times. Prior to December, 1981, M.R. had agreed to a plan which required her to get C.A.R. to school every day, to bathe the children, to obtain toys and medical assistance for them, to keep the house clean, and to attend parenting class. M.R. failed to meet the conditions of the plan in any sufficient way. Another plan was agreed to by M.R. which additionally required her to locate suitable housing, to increase her employment skills, and to improve her parenting abilities. Again, she failed to meet the conditions of this plan. A third plan was adopted in November 1983, after the SRS had filed for termination of parental rights. The petition for termination was abated when M.R. agreed to this third plan. It required her to attend the Galen State Hospital Alcohol Rehabilitation program, and to attend Alcoholics Anonymous as part of her after-care treatment. It again required her to obtain housing, obtain a job or seek job skills, visit her children, and improve her parenting skills.

After completing the program at Galen State Hospital, M.R. moved to Missoula despite the social worker's request that she come to Billings to be near her children. M.R. said she went to Missoula to be away from the social setting in Billings. She found a job there but after a few months moved back to Billings, losing her job in the process. At that time, the SRS reinstated its request for termination of M.R.'s parental rights.

At the date of the hearing, M.R. had successfully abstained from alcohol since leaving Galen State Hospital. She had found an apartment, but was unable to keep the children there, and had gone to work helping her mother do janitorial work at a bar in Billings. She presented evidence that corroborated the fact that she had abstained from alcohol since her release from Galen Hospital. She argued that this fact was sufficient evidence of rehabilitation so that she should be allowed another chance at caring for her children, and that she was ready to make a serious and sincere effort to do so.

Dr. Richard Agosto, a clinical psychologist in Billings, Montana, had examined M.R., P.J.R. and C.A.R. He and several social workers who had worked with M.R. concluded that alcohol was not the primary cause of her neglect of her children. They all felt that M.R. was using alcohol as an excuse for more fundamental problems. Her basic problem was a lack of motivation and maturity to appreciate and cope with the needs of her children. These problems were not likely to change in the foreseeable future, even with additional therapy. Dr. Agosto stated that if the children were returned to M.R. it was probable that her previous parenting patterns would be repeated. Dr. Agosto and the social workers agreed that M.R. had been given an adequate opportunity to parent her children, and failed to do so.

In regards to the children, Dr. Agosto, and the social workers all testified that mental and emotional harm would result if they were not provided with some stability, consistency, stimulation, proper parenting, and attention to their special needs. Dr. Agosto predicted that if the children were returned to the non-stimulating environment, that they could be expected to regress into their prior conditions. He concluded that the best interests of the children were that they not be returned to the custody of M.R.

This Court has reviewed similar district court determinations in the past. In In Re Gore (1977), 174 Mont. 321, 570 P.2d 1110, we discussed our role in this review:

"... This Court is mindful that the primary duty of deciding the proper custody of children is the task of the district court. As a result, all reasonable presumptions as to the correctness of the determination by the district court will be made. Foss v. Leifer, 170 Mont. 97, 550 P.2d 1309, 33 St.Rep. 528 (1976). Due to...