In re Custody of TZ, 00-078.

• Decision Date: 01 August 2000
• Docket Number: No. 00-078.,00-078.
• Parties: In re the Matter of the CUSTODY OF and the Parental Rights of T.Z. and J.Z., Youths in Need of Care.
• Court: Montana Supreme Court

6 P.3d 960

2000 MT 205

300 Mont. 522

In re the Matter of the CUSTODY OF and the Parental Rights of T.Z. and J.Z., Youths in Need of Care.

No. 00-078.

Supreme Court of Montana.

Submitted on Briefs May 25, 2000.

Decided August 1, 2000.

Julia Weddle Swingley, Attorney at Law, Helena, Montana, For Appellant.

Hon. Joseph P. Mazurek, Attorney General; Tammy K. Plubell, Assistant Attorney General; Helena, Montana, John T. Flynn, Broadwater County Attorney, Townsend, Montana, For Respondent.

Charles E. Petaja, Attorney at Law, Helena, Montana, Attorney for Youths in Need of Care and Guardian Ad Liem.

Justice TERRY N. TRIEWEILER delivered the opinion of the court.

¶ 1 The Department of Public Health and Human Services (DPHHS) petitioned the District Court for the First Judicial District in Broadwater County to terminate the parental rights of Christina Osterloth or, alternatively, to grant long-term legal custody of Christina's children, T.Z. and J.Z., to DPHHS with the right to assign guardianship. The District Court granted DPHHS long-term legal custody of T.Z. and J.Z. with the right to assign guardianship to the children's grandmother. Christina appeals the District Court's order. We affirm the order of the District Court.

¶ 2 The following issues are presented on appeal:

¶ 3 1. Did the District Court err when it failed to make specific findings to support its award of long-term custody of T.Z. and J.Z. to DPHHS with the right to assign custody to the children's grandmother?

¶ 4 2. Did the District Court err by deciding to award long-term legal custody without requiring a separate petition limited to that issue?

FACTUAL BACKGROUND

¶ 5 Christina Osterloth is the mother of two children, T.Z. and J.Z. T.Z. was born in March 1985 and J.Z. was born in April 1986. The children's father is deceased.

¶ 6 On November 1, 1996, the District Court found that T.Z. and J.Z. were youths in need of care, and granted the Broadwater County Department of Health and Human Services temporary custody of the children. Between 1996 and the time of this appeal, T.Z. and J.Z. have lived intermittently with both their mother and their grandmother, Phyllis Potter, under the supervision of DPHHS.

¶ 7 On August 19, 1999, the State petitioned the District Court for an order terminating the parental rights of Christina, or in the alterative, an order granting long-term custody of the children to DPHHS with the right to assign guardianship to Potter.

¶ 8 Following a hearing, the District Court filed its findings of fact, conclusions of law, and order on November 3, 1999. The District Court did not terminate Christina's parental rights; rather, the court granted DPHHS long-term custody with the right to assign custody to Potter. The District Court found that:

[Christina] is currently under a ten year Department of Corrections supervised sentence as of July 14, 1999. Christina has two felony drug convictions on her record and is currently attending Alcoholics Anonymous (AA) meetings.

In October 1996, a social worker for the Department of Family Services found [J.Z.] sitting in Christina's front yard. [J.Z.] indicated that his mother had locked up the house and was on an extended trip with her boyfriend. The children were left to fend for themselves. The children were under the "supervision" of [a] 17-year-old male who had pending drug charges against him in Helena, Montana. The social worker noted that the house was filthy, with beer cans strewn around and that the children had not attended school that week.

It clearly appears to this Court that Christina has failed in her treatment plan. On February 11, 1999, she failed a drug test at St. Peter's Community Hospital.... It should be noted that Christina did pass a subsequent drug screen on July 6, 1999.

The Court must also note that, of the four people residing in Christina's house in October 1996, all four of them have been since convicted of felonies.

The Court notes that the past is the best predictor of the future. Christina has been given many chances to straighten herself out and retain custody of her children. However, she is unable to focus on anything other than her own needs, be they emotional or chemical. She was warned by Wendy Cook that this last treatment plan was her last chance but despite that she has failed to comply with the treatment plan and has continued to attempt to sabotage her children's stability and peace of mind. The Court has no trouble at all in entering a finding that Christina is unable to distinguish between the children's best interests and her own perceived interests.

The District Court also found that since J.Z. began living with Potter he became involved in the community and improved in school; and that J.Z. expressed a desire to continue living with Potter. With respect to T.Z. the District Court found that, although Christina was overtly manipulating T.Z. to resist placement with Potter, T.Z. improved in school and became involved in the community. The District Court then stated:

The Court finds that the continuation of the parent/child legal relationship will likely result in continued abuse or neglect if the children are returned to Christina, and that the conduct and condition of Christina renders her unfit, unable and unwilling to give the children adequate parental care.

Nevertheless, the District Court did find that "it would be in the best interest of the children if their mother were allowed to visit with them, but only as directed and determined by the Department of Public Health and Human Services."

¶ 9 Based on these findings the District Court granted DPHHS long-term legal custody of J.Z. and T.Z. The District Court also granted DPHHS the right to assign guardianship of J.Z. and T.Z. to Potter. Christina appeals.

STANDARD OF REVIEW

¶ 10 We review a district court's conclusions of law to determine whether they are correct. In re J.N. and A.N., 1999 MT 64, ¶ 11, 293 Mont. 524, ¶ 11, 977 P.2d 317, ¶ 11. We review a district court's findings of fact to determine whether the court's findings are clearly erroneous. In re J.N., ¶ 11. A finding of fact is clearly erroneous if it is not supported by substantial evidence; if the district court misapprehended the effect of the evidence; or if, after reviewing the record, this Court is left with a definite and firm conviction that the district court made a mistake. In re J.N., ¶ 11.

ISSUE 1

¶ 11 Were the District Court's findings sufficiently specific to support its award of long-term custody of T.Z. and J.Z. to DPHHS with the right to assign custody to the children's grandmother?

¶ 12 Christina contends that when the District Court granted DPHHS long-term legal custody, it did so based on evidence offered in support of the petition to terminate parental rights and that there was insufficient evidence to support long-term custody. She argues that the District Court based its decision on law applicable to termination of her parental rights, not § 41-3-412, MCA, the statute for long-term custody.

¶ 13 The State responds that the youth in need of care statutes give the district court broad discretion to act in the children's best interest and to make certain that children who are unable to return to their parents do not remain in temporary foster care.

¶ 14 A natural parent's right to custody of a child is a fundamental liberty interest, which must be protected by fundamentally fair procedures. In re J.N., ¶ 12. However, if the State follows fundamentally fair procedures, the State can divest a parent of custody. Section 41-3-406(5), MCA, provides in part:

Before the expiration of the order for temporary legal custody, the county attorney, the attorney general, or an attorney hired by the county shall petition for one of the following:

(b) termination of the parent-child legal relationship and either; [or]

(c) long-term custody pursuant to 41-3-412;

The procedure for termination of the parent-child legal relationship is set forth in § 41-3-601, MCA, et. seq. The procedure for long-term custody is set forth in § 41-3-412, MCA, which provides in part:

(6) If the permanency plan hearing results in a finding that reunification of the child with the child's parent or guardian is not in the best interests of the child, a subsequent petition filed must be one of the following:

....

(c) long-term custody of a child if the evidence demonstrates by a preponderance of the evidence, which is reflected in specific findings by the court, that:

(i) the child has an emotional or mental handicap that is so severe that the child cannot function in a

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