In re C. R. O.

2002 MT 50, 43 P.3d 913, 309 Mont. 48, 2002 Mont. LEXIS 67
CourtMontana Supreme Court
DecidedMarch 21, 2002
DocketNo. 01-700
StatusPublished
Cited by18 cases

This text of 2002 MT 50 (In re C. R. O.) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re C. R. O., 2002 MT 50, 43 P.3d 913, 309 Mont. 48, 2002 Mont. LEXIS 67 (Mo. 2002).

Opinions

JUSTICE RICE

delivered the Opinion of the Court.

¶1 Appellant, the father of C.R.O., appeals from the judgment of the District Court for the Third Judicial District, Anaconda-Deer Lodge County, terminating his parental rights. We reverse the judgment of the District Court.

¶2 Appellant presents the following issue on appeal:

¶3 Did the District Court err in concluding that sufficient evidence was presented to terminate Appellant’s parental rights without a treatment plan pursuant to § 41-3-609(4)(b), MCA?

¶4 C.R.O. was born on October 18,2000, to Ross and A.O., father and mother respectively. The District Court terminated the parental rights of Ross and A.O. on August 1, 2001. A.O. does not appeal the termination of her parental rights.

¶5 Due to its previous involvement with Ross and A.O., the Montana Department of Public Health and Human Services, Division of Child and Family Services (Department), petitioned for Temporary Legal Custody and Protective Services on the day of C.R.O.’s birth, and the District Court granted the petition that same day. C.R.O. was placed in foster care upon discharge from the hospital. The District Court held a hearing on the petition on November 8, 2000, adjudicated C.R.O. a youth in need of care, and granted temporary legal custody to the Department.

¶6 At the request of the Department, psychological examinations of Ross were conducted by Dr. Ned Tranel and Dr. Robert N. Page. On [50]*50March 22, 2001, the Department petitioned for termination of Ross’ parental rights without implementation of a treatment plan, pursuant to § 41-3-609(4)(b), MCA, which provides:

Criteria for Termination. (4) A treatment plan is not required under this part upon a finding by the court following hearing if:
(b) two medical doctors or clinical psychologists submit testimony that the parent cannot assume the role of parent.

¶7 This statute authorizes the district court to terminate the parental rights of an individual without establishing a court-approved treatment plan if two medical doctors or clinical psychologists testify that the individual cannot assume the role of parent. Pursuant to this provision, the Department asserted, based upon the two psychological evaluations, that Ross was unable to parent a child and that his condition was unlikely to change within a reasonable time. After the termination hearing on May 16, 2001, the District Court entered its order on August 1, 2001, terminating Ross’ parental rights to C.R.O.

¶8 In In re Baby Boy Scott (1988), 235 Mont. 253, 255, 767 P.2d 298, 299-300, this Court addressed the termination of parental rights without a treatment plan under the statutory scheme then in effect. The Court there grafted the additional requirement that termination of parental rights without the benefit of a treatment plan required that the doctors “must also testify that the ... condition of the parent is unlikely to change within a reasonable time.” In re Baby Boy Scott, 253 Mont. at 255, 767 P.2d at 299-300. We continue to acknowledge that this is an appropriate requirement under the current statute. If the Department is to bypass an attempt to rehabilitate the parent and reunite parent and child, it must demonstrate that the parent’s inability to assume the role of parent cannot be remedied within a reasonable time. Section 41-3-609(1)(f)(ii), MCA.

¶9 Ross contends that the District Court erred in determining that the statutory criteria for termination of his parental rights under § 41-3-609(4)(b), MCA, were established by clear and convincing evidence. Ross does not challenge the testimony of Dr. Tranel as conclusive that Ross could not assume the role of parent, but argues that the testimony of Dr. Page is not in agreement with the testimony of Dr. Tranel. Ross argues that the combined testimony of the two psychologists does not support the District Court’s conclusion that clear and convincing evidence existed to waive the treatment plan pursuant to § 41-3-609(4)(b), MCA.

¶10 In reviewing a decision to terminate parental rights, this [51]*51Court determines whether the district court’s findings of fact supporting termination are clearly erroneous and whether the district court’s conclusions of law are correct. In re A.C., 2001 MT 126, ¶ 20, 305 Mont. 404, ¶ 20, 27 P.3d 960, ¶ 20 (citation omitted). 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., 1999 MT 64, ¶ 11, 293 Mont. 524, ¶ 11, 977 P.2d 317, ¶11 (citations omitted). It is well-established that a natural parent’s right to care and custody of his or her child is a fundamental liberty interest which must be protected by fundamentally fair procedures. In re A.C., ¶ 20. Accordingly, in regard to the statutorily-required findings supporting termination of parental rights, we have stated that the burden is on the party seeking termination to demonstrate by clear and convincing evidence that every requirement set forth in the statute has been satisfied. In re A.C., ¶ 20.

¶ 11 Dr. Tranel based his testimony upon review of voluminous records generated from the time Ross was a young child, himself adjudicated a youth in need of care, and from an independent psychological evaluation. Dr. Tranel testified that Ross had been given more psychiatric labels than anybody he has ever seen, including ADHD, a major depressive disorder, learning disability, paraphilia, oppositional defiant disorder, gender identity disorder and sexual addiction.

¶12 After his independent evaluation, Dr. Tranel concluded that his findings were consistent with the previous psychological test data. Dr. Tranel testified he was particularly concerned with Ross’ antisocial personality disorder, which “suggests that he could become aggressive and harmful to a non-retaliatory capable victim.” He concluded that it would not be in C.R.O.’s best interest if Ross were to be the custodial parent. Ultimately, when asked how much time he thought it would take with intensive support therapy for Ross to have the ability to successfully parent a young child, Dr. Tranel responded, “[y]ears, perhaps decades would be more accurate.”

¶13 Ross contends that the conclusions of Dr. Page do not agree with Dr. Tranel’s conclusions. He argues that, contrary to the requirements of the termination statute, Dr. Page believed that Ross should have been given the opportunity to acquire parenting skills and become a productive parent with the help of an intensive and supervised treatment plan and further believed that it was possible for Ross to complete the treatment plan within fifteen months. Ross points to Dr. Page’s following testimony upon cross-examination to support his [52]*52argument:

Q: Dr. Page, you’re not saying that my client can not learn, correct?
A: Correct.
Q: In fact you stated I believe, in your report that he’s in the average range of intelligent functioning, intellectual functioning?
A: That would be based on reviewing Dr. Tranel’s results that indicated he was in the average range, intellectually.

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Cite This Page — Counsel Stack

Bluebook (online)
2002 MT 50, 43 P.3d 913, 309 Mont. 48, 2002 Mont. LEXIS 67, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-c-r-o-mont-2002.