In re AF, 03-099.

• Decision Date: 23 September 2003
• Docket Number: No. 03-099.,03-099.
• Citation: 317 Mont. 367,77 P.3d 266,2003 MT 254
• Parties: In the Matter of A.F. and A.C., Youths in Need of Care.
• Court: Montana Supreme Court

77 P.3d 266

2003 MT 254

317 Mont. 367

In the Matter of A.F. and A.C., Youths in Need of Care.

No. 03-099.

Supreme Court of Montana.

Submitted on Briefs July 2, 2003.

Decided September 23, 2003.

For Appellant: Connie Camino, Billings, Montana.

For Respondent: Mike McGrath, Montana Attorney General, Jennifer Anders, Assistant Montana Attorney General, Helena, Montana; Dennis Paxinos, Yellowstone County Attorney, Rick Helm, Deputy Yellowstone County Attorney, Billings, Montana; Damon L. Gannett, Billings, Montana (Guardian Ad Litem); Nancy Wetherelt, Billings, Montana (for father M.C.); Kevin T. Sweeney, Billings, Montana (for father D.F.).

Justice PATRICIA O. COTTER delivered the Opinion of the Court.

¶ 1 S.C. is the biological mother of two minor children, A.F. and A.C. In October 2002, the Thirteen Judicial District Court, Yellowstone County, terminated S.C.'s parental rights to both children, and awarded permanent custody of the children to the Montana Department of Public Health and Human Services (DPHHS or the Department). S.C. appeals. We affirm.

ISSUES

¶ 2 A restatement of the issues presented by S.C. follows:

1. Are the District Court's Findings in support of termination clearly erroneous?

2. Was there substantial evidence to support the District Court's Findings that S.C. did not successfully complete her treatment plans?

3. Was there substantial evidence to support the District Court's Findings that the conduct/condition rendering S.C. unfit to parent was unlikely to change within a reasonable time?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 3 S.C. has long suffered from and been diagnosed with various mental and emotional health conditions, including, but not limited to, attention deficit hyperactivity disorder (ADHD), post-traumatic stress disorder, anxiety disorder, personality disorder (not otherwise specified), major depressive disorder, and borderline personality disorder. She was hospitalized twice in 1996 in California, one of which followed a suicide attempt.

¶ 4 A.F. was born in May 1991, while S.C. was married to his father, D.F. A.C. was born in April 1996, while S.C. was married to his father, M.C. S.C. is divorced from both men and is not currently married. In January 2002, D.F. relinquished his parental rights to A.F. D.F.'s rights were officially terminated in the District Court Order issued in the case at bar. D.F. is not a party to this appeal. M.C.'s parental rights are the subject of a separate action.

¶ 5 The Department first received reports about this family in May 1998. Over the following two years, the Department received numerous reports that were investigated and found to be unsubstantiated. Many calls reported that the children were being seriously neglected and without adult supervision. These reports also concerned S.C.'s mental health and her ability to adequately parent A.F. and A.C. The Department referred S.C. to social service providers in the community and she received services from the Family Support Network (FSN), and other individuals and organizations through December 2000.

¶ 6 In December 2000, the Billings Police Department was conducting an undercover prostitution investigation at a Billings hotel. On December 27, 2000, evidence obtained in the investigation led police to S.C.'s home, where she agreed to let the police enter her home and, after being advised of her constitutional rights, to answer questions. Upon questioning she stated that she operated a legal escort service. S.C. also indicated that a man, unknown to her, was waiting in her bedroom for one of her employees. She agreed to get him and bring him out to meet the police. Moreover, she stated that her two young sons were watching television in another room. At that time, A.C. was 4 years old and A.F. was 9 years old.

¶ 7 S.C. allowed the police to search her home. During the search, an officer found records and information that appeared to be consistent with the promotion of prostitution. S.C. was arrested and asked to provide the name of someone who could care for her children while she was in police custody. Either S.C. refused to provide any names or she was unable to reach anyone by telephone. As a result, the police contacted the Department and a social worker took emergency custody of the children. S.C. was charged with Promoting Prostitution and subsequently pled guilty in Billings Municipal Court.

¶ 8 This course of events, in conjunction with the previous reports to the Department, led the DPHHS to file a Petition for Emergency Protective Services in January 2001. The DPHHS thereafter prepared three treatment plans for S.C. and assigned numerous social workers to assist S.C. and her sons between January 2001 and October 2002. Additionally, S.C. underwent extensive psychological testing by several medical professionals to discover the extent of her mental and emotional difficulties. She also willingly participated in extensive private and group counseling sessions by various professionals.

¶ 9 S.C.'s sons experience emotional and mental heath problems similar to those experienced by their mother. A.F. has been diagnosed with Dysthymic Disorder and A.C. has been diagnosed with Reactive Attachment Disorder and Intermittent Explosive Disorder. According to expert witnesses, A.C.'s disorders stem directly from a history of deficient care.

¶ 10 A hearing on temporary custody was held on May 18, 2001, and June 15, 2001. The District Court adjudicated the children to be youths in need of care and granted temporary legal custody to the Department on June 21, 2001. During this time and for several subsequent months, S.C. had regular supervised visits with A.F. and A.C. where she was expected to use the parenting skills that counselors and therapists were helping her learn and develop. These skills were designed, among other things, to aid S.C. in using consistent and appropriate discipline, maintaining appropriate boundaries for herself and her children, and providing even-handed attention and affection to both children.

¶ 11 The DPHHS petitioned for permanent legal custody on December 26, 2001. A hearing was held over the course of six days. On October 28, 2002, the District Court entered its Judgment terminating S.C.'s parental rights and awarding permanent custody of A.F. and A.C. to the Department. S.C. appeals.

STANDARD OF REVIEW

¶ 12 We review a district court's decision to terminate parental rights to determine whether the court abused its discretion. In re J.V., 2003 MT 68, ¶ 7, 314 Mont. 487, ¶ 7, 67 P.3d 242, ¶ 7 (citation omitted). The test for an abuse of discretion is "whether the trial court acted arbitrarily, without employment of conscientious judgment, or exceeded the bounds of reason resulting in substantial injustice." In re D.V., 2003 MT 160, ¶ 14, 316 Mont. 282, ¶ 14, 70 P.3d 1253, ¶ 14 (citation omitted). However, because a parent's right to the care and custody of a child is a fundamental liberty interest, it must be protected by fundamentally fair procedures. D.V., ¶ 14. To satisfy the relevant statutory requirements for terminating a parent-child relationship, a district court must make specific factual findings. We review those findings of fact to determine whether they are clearly erroneous. Lastly, we review the court's conclusions of law to determine whether the court interpreted the law correctly. D.V., ¶ 14.

¶ 13 As we stated in J.V., "[t]he district court is bound to give primary consideration to the physical, mental and emotional conditions and needs of the children. Consequently, the best interests of the children are of paramount concern in a parental rights termination proceeding and take precedence over the parental rights. Section 41-3-609(3), MCA. Moreover, the party seeking to terminate parental rights must demonstrate by clear and convincing evidence that the statutory requirements for termination have been met." J.V., ¶ 8 (internal case citations omitted).

¶ 14 We presume that a district court's decision in such a case is correct and will not disturb it on appeal unless there is a mistake of law or a finding of fact not supported by substantial evidence that would amount to a clear abuse of discretion. In re M.T., 2002 MT 174, ¶ 22, 310 Mont. 506, ¶ 22, 51 P.3d 1141, ¶ 22 (citation omitted).

DISCUSSION

¶ 15 While S.C. presented three separate issues on appeal, we conclude that all of her issues can be resolved simultaneously. Basically, S.C. claims that numerous factual findings by the District Court supporting termination were "clearly erroneous." Additionally, she maintains that the factual findings specific to compliance with her treatment plans and the timing within which her condition may improve were not supported by "substantial evidence."

¶ 16 As noted above, we review a district court's findings of fact to determine whether they are clearly erroneous. A finding of fact is clearly erroneous if: 1) it is not supported by substantial evidence; 2) the court misapprehended the effect of the evidence, or 3) upon reviewing the record, this Court is left with a definite and firm conviction that a mistake has been made. M.T., ¶ 21 (citation omitted). Because we will review the District Court's findings in the case before us to determine if they are clearly erroneous using this above-recited three-prong test, our analysis will subsume S.C.'s issues concerning "substantial evidence."

¶ 17 A district court may terminate a parent-child relationship under several different circumstances, including when the court finds that the child is an "adjudicated youth in need of care" and both of the following circumstances 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. Section 41-3-609(1)(f), MCA; M.T., ¶ 24 (citation omitted).

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