In re Declaring J.R.

833 P.2d 1063, 253 Mont. 434, 49 State Rptr. 513, 1992 Mont. LEXIS 163
CourtMontana Supreme Court
DecidedJune 11, 1992
DocketNo. 91-303
StatusPublished
Cited by12 cases

This text of 833 P.2d 1063 (In re Declaring J.R.) 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 Declaring J.R., 833 P.2d 1063, 253 Mont. 434, 49 State Rptr. 513, 1992 Mont. LEXIS 163 (Mo. 1992).

Opinion

JUSTICE TRIEWEILER

delivered the opinion of the Court.

This is an appeal from the judgment of the District Court of the Eighteenth Judicial District in Gallatin County, terminating the parental rights of the natural mother. We affirm

The issues on appeal are whether the mother’s treatment plan ordered by the District Court was appropriate, and whether the termination of her parental rights violated her right to due process.

Appellant is the natural mother of J.R. and S.D., as well as two [436]*436older children. The Montana Department of Family Services first had contact with the mother in 1979 after reports of poor hygiene, lack of supervision, and physical abuse of the two oldest children were brought to the Department’s attention. The mother subsequently entered into an agreement with the Department to seek day care for J.R. and therapy counseling for the two oldest children.

In 1984 and 1985, the family was living in Idaho Falls, Idaho. The Idaho Department of Family Services received reports similar to those made in Montana. The Idaho DFS intervened, and the two oldest children were placed in protective supervision with the mother’s sister in Bozeman, Montana. Following a divorce in 1986, the mother returned with J.R. to the Bozeman area. School authorities noted that J.R. evidenced the same lack of hygiene that her older siblings had shown. J.R.’s kindergarten teacher eventually contacted a social worker, Gloria Edwards, who met with J.R. in September 1989, and confirmed her lack of good hygiene. Edwards filed a Request for a Petition for Temporary Investigative Authority that was not acted upon by the county attorney’s office.

In April 1990, Ms. Edwards was again called to the school to see J.R. Edwards gave the following description of J.R.’s condition:

She was absolutely filthy. She had dirt on her arms, her hands and her face. And her hair looked all sticky and it had things stuck all over it. And I couldn’t tell what they were. I thought it looked maybe like leaves. It was difficult to distinguish. When the other kids left, then I had her roll up her long sleeves and her arms had caked-on dirt just stuck to her. Her teeth also looked really brown and rotting.

Edwards spoke with the child at length, and J.R. divulged information that led Edwards to believe she was being sexually molested by a male baby sitter. Edwards decided to invoke emergency protective powers and remove J.R. and S.D. from their home. Ahearing was held, and the District Court ruled that removal of the children from the home was appropriate. An investigation that had been ongoing since September 1989 resulted in the arrest of the suspect on charges of sexual assault of J.R. on April 10, 1990. The individual was found guilty in a bench trial of sexual assault of J.R. and sentenced to the Montana State Prison. The sentence was affirmed by this Court in State v. Davis (Mont. 1992), [253 Mont. 50,] 830 P.2d 1309, 49 St. Rep. 342.

Ahearing on the State’s petition for termination of parental rights was held on December 17,18, and 19,1990. Several State’s witnesses [437]*437testified to the lack of success of the court-ordered treatment plan and treatment contract. Reasons given in support of termination included: the refusal of the mother to admit any parenting problems; the lack of concern over the sexual abuse of J.R.; the cyclical nature of sexual abuse and physical neglect in the family, as evidenced by the two oldest children; the inability of the mother to protect the children, given that the grandmother of the children was sexually involved with Davis and gave testimony in his defense; the lack of normal interaction between the mother and children during supervised visits; the continuing health and safety problems at the mother’s residence; and the great progress that J.R. showed both academically and socially since being removed from the mother’s home.

The District Court concluded that the treatment plan had not been complied with, and that the situation rendering the mother an unfit parent was unlikely to change in the future. The court concluded that the mother’s professionally diagnosed chronic paranoia was of such a nature that it rendered her unlikely to care for the ongoing physical, mental, and emotional needs of her children. The court, therefore, terminated the parent-child relationship between the mother and J.R. and S.D. Custody of J.R. was given to the Montana Department of Family Services. Custody of S.D. was given to her natural father. The mother appeals from this judgment.

The mother contends that the court-ordered treatment plan was inappropriate, resulting in the termination of her parental rights without due process of law.

Section 41-3-609, MCA (1989), sets forth the criteria for termination of the parent-child relationship. The statute states in part:

(1) The court may order a termination of the parent-child legal relationship upon a finding that the circumstances contained in subsection (l)(a), (l)(b), or (l)(c), as follows, exist:
(c) the child is an adjudicated youth in need of care and both of the following exist:
(1) 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.
(2) In determining whether the conduct or condition of the parents is unlikely to change within a reasonable time, the court [438]*438must 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. In making such determinations, the court shall consider but is not limited to the following:
(a) emotional illness, mental illness, or mental deficiency of the parent of such duration or nature as to render the parent unlikely to care for the ongoing physical, mental, and emotional needs of the child within a reasonable time;
(g) any reasonable efforts by protective service agencies that have been unable to rehabilitate the parent.
(3) In considering any of the factors in subsection (2) in terminating the parent-child relationship, the court shall give primary consideration to the physical, mental, and emotional conditions and needs of the child. The court shall review and, if necessary, order an evaluation of the child’s or the parent’s physical, mental, and emotional conditions.

The mother contends that the treatment plan implemented in her case was not appropriate, as required by § 41-3-609(l)(c)(i), MCA. She asserts that the court failed to consider her financial situation when it ordered her to undergo a treatment plan. She claims that the court’s failure resulted in her inability to receive proper treatment that would have facilitated the preservation of the parent-child relationship as promoted by the statute and case law.

The mother contends that the primary goal of her treatment plan was psychological therapy.

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Bluebook (online)
833 P.2d 1063, 253 Mont. 434, 49 State Rptr. 513, 1992 Mont. LEXIS 163, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-declaring-jr-mont-1992.