In re JV, 02-436.

• Decision Date: 03 April 2003
• Docket Number: No. 02-436.,02-436.
• Citation: 67 P.3d 242,2003 MT 68,314 Mont. 487
• Court: Montana Supreme Court
• Parties: In the Matter of J.V., S.V., T.V. and M.V., Youths in Need of Care.

67 P.3d 242

2003 MT 68

314 Mont. 487

In the Matter of J.V., S.V., T.V. and M.V., Youths in Need of Care.

No. 02-436.

Supreme Court of Montana.

Submitted on Briefs February 20, 2003.

Decided April 3, 2003.

For Appellant: J. Dennis Corbin, Miles City, Montana (for F.B., natural father of J.V.)

J.B. Wheatcroft, Miles City, Montana (for N.V., mother of the Youths in Need of Care).

For Respondent: Mike McGrath, Montana Attorney General, Ilka Becker, Assistant Montana Attorney General, Helena, Montana; Coleen J. Magera, Custer County Attorney, Gary Bunke, Assistant Attorney General, Child Protection Unit, Cynthia K. Thornton, Miles City, Montana (for E.T., natural father of M.V., S.V. & T.V.).

Guardian ad Litem: Janette Krutzfeldt Jones, Miles City, Montana. Justice JAMES C. NELSON delivered the Opinion of the Court.

¶ 1 The Sixteenth Judicial District Court, Custer County, terminated the parental rights of the three natural parents of J.V., S.V., T.V. and M.V., and awarded permanent legal custody with the right to consent to adoption to the Montana Department of Health and Human Services (DPHHS). N.V., the mother of the four boys, and F.B., the father of J.V., appeal from the court's Findings of Fact and Conclusions of Law. Termination of parental rights for the father of S.V., T.V. and M.V. is not at issue in this appeal. We restate the issues as follows:

¶ 2 I. Did the District Court abuse its discretion in terminating N.V.'s parental rights?

¶ 3 II. Did the District Court abuse its discretion in terminating F.B.'s parental rights?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 4 On April 11, 2000, DPHHS for the third time petitioned the District Court for temporary legal custody of J.V., S.V., T.V. and M.V. These four children had been removed from the care of their natural mother, N.V., by DPHHS in 1996 and 1998 on the basis of allegations of excessive punishment, non-supervision, inadequate living conditions and inconsistent, chaotic parenting. The same allegations formed the basis for the April 2000 petition for the four boys who, at the time, ranged in age from 2½ to 7½ years. The parents agreed to grant DPHHS temporary legal custody of the children by stipulation and to follow individual treatment plans. The court granted DPHHS legal custody of the four boys for the following six months. Separate treatment plans for the parents were approved by the court in June 2000.

¶ 5 In October 2000, DPHHS petitioned to continue temporary legal custody of the children. A second hearing was held in January 2001, and new treatment plans were filed for both N.V. and F.B., which covered the period from January through July 2001. F.B.'s second treatment plan included the participation of his new wife, Joanna, in parenting classes and mental health evaluations.

¶ 6 At the conclusion of the second treatment plan period, DPHHS petitioned the District Court for permanent legal custody of the four children. Two days of hearings followed, on October 15 and November 27, 2001, during which the parents, social workers and mental health professionals testified regarding the special needs of the children and the parents' respective abilities to provide for those needs. At the time of the termination hearing, the children had lived in foster homes for the previous 20 months. On January 10, 2002, the court filed its Findings of Fact, Conclusions of Law and Order terminating the parental rights of the natural parents of the four boys. N.V. and F.B. filed this consolidated appeal.

STANDARD OF REVIEW

¶ 7 A district court's decision to terminate parental rights is discretionary and we review that decision to determine whether the court abused its discretion. In re J.W., 2001 MT 86, ¶ 7, 305 Mont. 149, ¶ 7, 23 P.3d 916, ¶ 7 (citation omitted). However, a parent's right to the care and custody of a child is a fundamental liberty interest, which must be protected by fundamentally fair procedures. In re M.A.E., 1999 MT 341, ¶ 18, 297 Mont. 434, ¶ 18, 991 P.2d 972, ¶ 18 (citation omitted). As a result, when determining whether to terminate parental rights, a district court must make specific factual findings in accordance with the requirements set forth in § 41-3-609, MCA. In re J.W., ¶ 7. We review those findings of fact to determine whether they are clearly erroneous. In re J.W., ¶ 7. We review conclusions of law to determine whether the court interpreted the law correctly. In re M.A.E., ¶ 17.

¶ 8 The district court is bound to give primary consideration to the physical, mental and emotional conditions and needs of the children. In re J.W., ¶ 8 (citing Matter of C.M. (1997), 281 Mont. 183, 187, 932 P.2d 1063, 1066). 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; In re J.W., ¶ 8. Moreover, the party seeking to terminate parental rights must demonstrate by clear and convincing evidence that the statutory requirements for termination have been met. In re M.A.E., ¶ 18.

DISCUSSION

¶ 9 A district court may terminate parental rights if it finds that the child has been adjudicated a youth in need of care, an appropriate court-approved treatment plan has not been complied with or has not been successful, and the conduct or condition rendering the parents unfit is unlikely to change within a reasonable period of time. Section 41-3-609(1)(f), MCA. In determining whether the conduct or condition of the parents is unlikely to change within a reasonable time, the court shall 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. Section 41-3-609(2), MCA. Among the factors a court must consider is whether emotional illness, mental illness, or mental deficiency renders a parent unlikely to care for the ongoing physical, mental, and emotional needs of the child within a reasonable time. Section 41-3-609(2)(a), MCA.

I.

¶ 10 Did the District Court abuse its discretion in terminating N.V.'s parental rights?

¶ 11 N.V. does not challenge the court's finding that her four sons had been adjudicated youths in need of care. Instead, she argues that the court erred by finding that she substantially failed to complete her second treatment plan and that she was unlikely to be able to adequately parent her children within a reasonable time. We address each contention in turn.

A. Failure to complete treatment plan

¶ 12 The primary goals outlined in N.V.'s second treatment plan were to learn appropriate parenting skills by participating in parenting classes; to improve her relationship with her children by maintaining regular contact with them and attending weekly psychological counseling sessions; to seek gainful employment; and to stabilize the home environment by securing permanent housing. Although the District Court found that N.V. participated in the court-ordered intensive parenting classes, mental health counseling and supervised visitation, the court determined that N.V. failed to engage in meaningful visitation with her children; to obtain consistent employment or housing; to address the financial responsibilities which limited her ability to care for her children; and to demonstrate sufficient progress in the treatment of her own physical and mental health needs.

¶ 13 N.V. counters the District Court's determination that she did not have meaningful visitation with her children and asserts that she made strides during the period of the second treatment plan to change her conduct and the conditions that limited her fitness to parent her children. She claims that she was diligent in her efforts to attend court-ordered classes, supervised visits with the children, counseling sessions and psychological evaluations.

¶ 14 DPHHS social workers and a county health nurse facilitated visitation between N.V. and her children during the second treatment plan and provided intensive parenting instruction. From April to July 2001, Carol Quale transported the children to the Red Rocks Motel for visits between N.V. and all four children each month and between N.V. and the two older boys twice weekly. Quale testified that N.V.'s interaction with the children was erratic. At times, N.V. exhibited positive interest in her sons and interacted with self-control; at other times, N.V. placed unrealistic demands upon the children and inappropriately criticized them. Public health nurse Alice Kmetz, who provided parenting instruction to N.V., observed that N.V. did not appear to be bonded with her two younger sons and did not interact with any of the children in consistently positive or respectful ways. Cynthia Heidt, a mental health counselor at Eastern Montana Community Mental Health Center, who worked with the two younger boys for a year, reported that four-year-old T.V. did not know his mother. Jodi Braden, a DPHHS community social worker, testified that during visits with their mother the children played Nintendo and had little interaction with N.V. According to Braden, N.V. did not follow through on suggestions that she help the children with schoolwork or engage playfully with the children. Braden testified that N.V. canceled several appointments and failed to show up for others. Although N.V. underwent all requested evaluations, Braden stated that N.V. failed to follow through with the recommendations of counselors and therapists to change her lifestyle. Dr. Dawn Birk, a clinical psychologist who provided individual therapy for the oldest child, J.V., terminated N.V.'s visitation in July 2001, due to the adverse effect contact with his mother had upon the well-being of the child.

¶ 15 Placement of the boys in foster homes during the period of N.V.'s successive treatment plans disqualified N.V. for welfare cash...