In re D.B.

2004 MT 371, 103 P.3d 1026, 325 Mont. 13, 2004 Mont. LEXIS 659
CourtMontana Supreme Court
DecidedDecember 22, 2004
DocketNo. 04-288
StatusPublished
Cited by27 cases

This text of 2004 MT 371 (In re D.B.) 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 D.B., 2004 MT 371, 103 P.3d 1026, 325 Mont. 13, 2004 Mont. LEXIS 659 (Mo. 2004).

Opinion

JUSTICE LEAPHART

delivered the Opinion of the Court.

¶1 Father S.B. (Father) and mother L.D. (Mother) appeal from the District Court’s termination of the parenting rights of their five children, D.B. (Oldest Daughter), J.D. (Oldest Son), S.B.1 (Youngest Son), J.B. (Middle Daughter), and L.B. (Youngest Daughter). We affirm the District Court.

BACKGROUND

¶2 Father and Mother had five children together. Oldest Daughter was born in March 1997, and is 13 months older than Oldest Son, who is 14 months older than Youngest Son, who is 18 months older than Middle Daughter, who is 16 months older than Youngest Daughter.

¶3 In July 2001, Oldest Daughter complained to her mother about pain in her perineal area. Mother took her to the clinic the next day. Dr. James Young saw red sores and reported the situation to the Department of Public Health and Human Services (the Department) and referred Oldest Daughter to an obstetrician gynecologist, Dr. J. Randall Rauh. Dr. Rauh determined that accidental straddling, assault, or self-inflicted blunt trauma could have caused the injuries, but that it was most likely caused by assault.

¶4 Beyond the perineal sores, Dr. Rauh discovered an older anal scar and found he could very easily put his thumb into Oldest Daughter’s rectum, which implies that things at least as large as his thumb had already been inserted. Father and Mother argued that was the result of severe constipation, but Dr. Rauh believed that an external force must have caused the trauma. Finally, Dr. Young also found finger-shaped bruises on Oldest Daughter’s back. By the end of July 2001, the District Court had issued an order granting temporary investigative authority (TIA) and protective services for all the children.

¶5 Almost two years passed during which everyone involved-except [16]*16the parents-believed parental sexual misconduct caused the sores on Oldest Daughter. In May 2002, both Father and Mother were criminally charged with abuse and neglect of their children. Father stayed in jail for a year. By May 16, 2003, after subsequent observations of the same sores and consultation with Dr. Stephen Guertin from Lansing, Michigan, Dr. Rauh diagnosed Oldest Daughter with a rare skin disease called lichens sclerosis et atrophicus (LSA). ¶6 The LSA made Oldest Daughter’s perineal area itch, and she scratched it. The results of LSA resemble the evidence of sexual abuse, but the origin of the disease is unknown. With a new, clear, alternate explanation, the State dropped the charges against Father and released him in May 2003. The District Court, in this case, specifically ruled that it would disregard prior testimony and exhibits related to physical findings previously believed to be evidence of sexual abuse of Oldest Daughter.

¶7 Dr. Young testified that, as early as January 2001, he had ongoing concerns about the development of the other children because Oldest Son and Youngest Son appeared seriously delayed in their speech. In January 2001, he had suggested the parents take the children to the Developmental Educational Assistance Program (DEAP) for speech evaluations; however, the Father opposed the evaluations. Only after the Department placed the children in foster care did DEAP have an opportunity to evaluate the children.

¶8 Those evaluations revealed that Oldest Daughter was sixteen months, or 30 percent, behind in development; Oldest Son was eleven months, or 27 percent, behind; and Youngest Son was six months, or 22 percent, behind. The children began progressing quickly in their development after living in foster care. Oldest Son progressed from having nearly no understandable speech to carrying on conversations. Dr. Young testified that the improvement was attributable to therapy and not just the passage of time.

¶9 In October 2001, Dr. F. Tom Peterson completed psychological evaluations on both parents with special attention to parental competence. The court ordered Dr. Peterson to consider historical documents including Father’s unsubstantiated child neglect history from California involving a 1997 allegation of neglect of Oldest Daughter and a 1990 conviction for exhibiting a firearm. Dr. Peterson found the Mother was “pollyannish” and avoided problems including those that resulted in the Department taking her children away. Later, Alicia Brewer, a licensed clinical professional counselor, diagnosed Mother with most characteristics of Schizoid Personality Disorder and [17]*17many characteristics of Dependent Personality Disorder. Dr. Peterson concluded Father was suffering from Paranoid Personality Disorder with features of narcissism and antisocial orientation. Father does not know his children’s birth dates.

¶10 The District Court approved two treatment plans for each parent. Mother’s treatment plan ran from March 2002 to August 2002, and January 2003 through the remainder of the case. Father’s treatment plans ran from May 2002 to August 2002 and January 2003 through the remainder of the case. Both parents’ second plans specifically provided, “This agreement will remain in effect until approval of a subsequent plan ....” The District Court found that neither parent completed either treatment plan.

¶11 The Mother’s first treatment plan required twelve tasks of her. Inter alia, she had to undergo a psycho-sexual evaluation by Michael Sullivan and follow through with his recommendations, engage in therapy exploring parent-child and marital dynamics, and participate in a program with a professional to develop an understanding of her children’s developmental needs. Her second treatment plan required her, in addition to the first twelve tasks, to address her previous involvement with Child Protective Services in Montana and California and receive treatment for her past sexual abuse victimization.

¶12 The District Court found that Mother failed to follow the recommendations Michael Sullivan made in his psycho-sexual evaluation, to address successfully the risk factors identified by Michael Sullivan in the psycho-sexual evaluation, to complete therapy, to complete a program with a professional to help her understand her children’s developmental and safety needs, to discuss her children’s developmental and safety needs as they relate to the professional’s material, to attend marital counseling, to address previous involvement with California and Montana child protection services, and to address her personality disorder.

¶13 Ms. Brewer, Mother’s therapist, testified that Mother was open to working on the treatment plan, invested in therapy, seemed cooperative, made progress in her assertiveness and interpersonal skills, and did even more than Brewer asked. Mother kept her appointments every week or every other week from February 2002 to May 2003. Mother worked with Earl Brewer at DEAP twenty to twenty-five times from September 2002 to April 2003, and he testified she was interested, engaged, and understanding the information.

¶14 The District Court found that therapy was not a priority for Mother. Ms. Brewer believed that Father’s return home in May 2003, [18]*18after his incarceration, caused Mother to fall back into her former patterns of doing what he wanted because it was easy and comfortable for her. After assessing Mr. Brewer’s testimony, the District Court found that, while Mother completed some book work and intellectually understood the developmental and safety needs of the children, she was unwilling or unable to personalize the material to her own situation.

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Bluebook (online)
2004 MT 371, 103 P.3d 1026, 325 Mont. 13, 2004 Mont. LEXIS 659, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-db-mont-2004.