In Re MFB

2001 MT 136, 29 P.3d 480
CourtMontana Supreme Court
DecidedAugust 1, 2001
Docket00-269
StatusPublished

This text of 2001 MT 136 (In Re MFB) 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 MFB, 2001 MT 136, 29 P.3d 480 (Mo. 2001).

Opinion

29 P.3d 480 (2001)
2001 MT 136

In the Matter of M.F.B., D.A.B., M.S.B., and S.L.B., Youths in Need of Care.

No. 00-269.

Supreme Court of Montana.

Submitted on Briefs February 16, 2001.
Decided August 1, 2001.

*481 Rebecca T. Dupuis, Attorney at Law, Polson, MT, for Appellant.

Honorable Joseph P. Mazurek, Attorney General; Tammy K. Plubell, Assistant Attorney General, Helena, MT, Robert Zimmerman, County Attorney, Thompson Falls, MT, for Respondent.

Chief Justice KARLA M. GRAY delivered the Opinion of the Court.

¶ 1 The Twentieth Judicial District Court, Sanders County, terminated the parental rights of the mother of M.F.B., D.A.B., *482 M.S.B., and S.L.B. The mother appeals. We affirm.

¶ 2 The issue on appeal is whether the District Court erred in terminating the mother's parental rights.

¶ 3 In December of 1997, the Department of Public Health and Human Services (DPHHS) took M.F.B., D.A.B., M.S.B., and S.L.B. under protective custody based on the then-most recent in a long history of referrals regarding abuse in the family. Ranging in age from 8 to 12 years old, M.F.B., D.A.B., M.S.B., and S.L.B. were the four youngest of six children. At that time, M.S.B. told a DPHHS case worker that her mother spanked the children on their heads, arms, stomachs, legs, and faces with a plastic ladle and their dad spanked them with a belt. She also told the case worker that her brother, D.A.B., had threatened her with a knife. DPHHS had received a referral on the family a month earlier, when 12 year old M.F.B. dragged 8-year-old S.L.B. out of the school lunch room by the hair. S.L.B. told a DPHHS case worker that his dad and older brother fought with knives, his dad dragged him and his siblings by the hair, and his brother D.A.B. held a knife to M.S.B.'s throat. The children's oldest brother had admitted in 1995 to having had sexual intercourse with M.S.B. beginning when she was about a year old. That brother had not yet undergone sex offender treatment and remained with the parents when the four youngest children were removed.

¶ 4 Under a 1998 treatment plan promulgated by DPHHS, the mother was to obtain individual therapy with an approved therapist. Goals of the therapy were to gain a clear understanding of how to prevent her children from further emotional, physical, and sexual abuse and neglect, and to address parenting issues, her own self-esteem, her prior family history, and her dependency on her husband at the expense of her children's safety. The mother also was required to attend parenting classes as recommended by DPHHS and to participate in weekly supervised visitation with her four youngest children and in her oldest son's weekly sex offender counseling. A counselor advised her that she might have to choose between her children and her husband, whose organic brain dysfunction was blamed for his frequent violent outbursts. The mother initially chose to stay with her husband.

¶ 5 During the early part of 1999, as part of reunification efforts associated with family therapy, the children were returned to their parents' home for several overnight visits. Afterwards, M.S.B. reported to school officials two instances in which her father had harshly verbally abused her and her mother had not intervened. The mother did not report these incidents to the family's therapist until the therapist questioned her about M.S.B.'s reports.

¶ 6 In late July or early August of 1999, the mother left her husband and the family home in Thompson Falls, Montana, and moved to a shelter in Kalispell, Montana. The father's parental rights were terminated by default in October of 1999. The District Court held a hearing on DPHHS's request for termination of the mother's parental rights in January and February of 2000. At that time, the mother was living in a one-room apartment and searching for a job. M.F.B. was living in a youth group home and D.A.B., M.S.B., and S.L.B. were living in foster care homes.

¶ 7 After the hearing, the District Court entered findings of fact, conclusions of law and an order terminating the mother's parental rights. The court found that, from the time the mother moved to Kalispell in the summer of 1999 until the hearings in January and February of 2000, she had "at best, sporadic contact with the children who remain in Sanders County." The court found the mother had not complied with the treatment plan, that her 15-month failure to do so was conduct unlikely to change within a reasonable time, and that continuation of the parent-child relationship would likely result in continued abuse or neglect of the children. The court further found the mother "is not willing or able to carry out the tasks associated with parenting due to her mental or emotional illness." Finally, the court found DPHHS had made reasonable efforts to prevent or eliminate the need for removal of the children and to make it possible for the *483 children to return home. The mother appeals.

¶ 8 Did the District Court err in terminating the mother's parental rights to M.F.B., D.A.B., M.S.B., and S.L.B.?

¶ 9 This Court's standards in reviewing a district court's termination of parental rights are whether the district court's findings of fact are clearly erroneous and whether its conclusions of law are correct. In re R.B.O., (1996), 277 Mont. 272, 277, 921 P.2d 268, 271 (citations omitted). A finding is clearly erroneous only if it is not supported by substantial evidence or, if so supported, the district court misapprehended the effect of the evidence or this Court is left with a definite or firm conviction that a mistake has been committed. In re C.F., 2001 MT 19, ¶ 11, 304 Mont. 134, ¶ 11, 18 P.3d 1014, ¶ 11 (citations omitted). The mother, however, points to our language in In re B.F., 2000 MT 231, ¶ 7, 301 Mont. 281, ¶ 7, 8 P.3d 790, ¶ 7, regarding clear and convincing evidence.

¶ 10 We recently reaffirmed our "clearly erroneous" standard of review of trial court findings of fact in cases like that presently before us. See In Re the Matter of A.C., 2001 MT 126, ¶ 36, ___ Mont. ___, ¶ 36, 27 P.3d 960, ¶ 36. We again clarify here that "clear and convincing evidence" relates to a party's burden of proof in the trial court in certain cases. See, e.g., In re T.B., 1999 MT 174, ¶ 13, 295 Mont. 234, ¶ 13, 983 P.2d 929, ¶ 13; see also Wareing v. Schreckendgust (1996), 280 Mont. 196, 206, 930 P.2d 37, 43. Our standard of review of a trial court's findings of fact remains the clearly erroneous test. See T.B., ¶ 12, 983 P.2d 929. We proceed, then, to apply our standards of review to the present case.

¶ 11 The following provisions of § 41-3-609, MCA, were applied in this case:

(1) The court may order a termination of the parent-child legal relationship upon a finding that any of the following circumstances exist:
. . .
(f) the child is an adjudicated youth in need of care and both of the following exist:
(i) 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.

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Related

Wareing v. Schreckendgust
930 P.2d 37 (Montana Supreme Court, 1996)
In re R.B.O.
921 P.2d 268 (Montana Supreme Court, 1996)
In re J.L.
922 P.2d 459 (Montana Supreme Court, 1996)
In re the Inquiry into T.B.
1999 MT 174 (Montana Supreme Court, 1999)
In re Declaring of B.F.
2000 MT 231 (Montana Supreme Court, 2000)
In re the Custody & Parental Rights of C.F.
2001 MT 19 (Montana Supreme Court, 2001)
In re C.B.
2001 MT 42 (Montana Supreme Court, 2001)
In re A.C.
2001 MT 126 (Montana Supreme Court, 2001)
In re M.F.B.
2001 MT 136 (Montana Supreme Court, 2001)

Cite This Page — Counsel Stack

Bluebook (online)
2001 MT 136, 29 P.3d 480, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-mfb-mont-2001.