In Re SM

1999 MT 36, 975 P.2d 334
CourtMontana Supreme Court
DecidedMarch 2, 1999
Docket98-122
StatusPublished
Cited by23 cases

This text of 1999 MT 36 (In Re SM) 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 SM, 1999 MT 36, 975 P.2d 334 (Mo. 1999).

Opinion

975 P.2d 334 (1999)
1999 MT 36

In the Matter of S.M., R.D., Jr., D.D., S.D., C.D., and J.D., Youths in Need of Care.

No. 98-122.

Supreme Court of Montana.

Submitted on Briefs December 10, 1998.
Decided March 2, 1999.

Kathryn S. Syth, Attorney at Law, Billings, Montana, For Appellant.

Hon. Joseph P. Mazurek, Attorney General, Helena, Montana, Mark Mattioli, Assistant Attorney General, Helena, Montana, Sheila Kolar, Deputy County Attorney, Billings, Montana, Damon L. Gannett, Gannett Law Firm, Billings, Montana, Guardian ad litem For Respondent.

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

¶ 1 Betty Davey (Betty) appeals from the judgment entered by the Thirteenth Judicial District Court, Yellowstone County, on its findings of fact, conclusions of law and order terminating her parental rights and awarding custody of her minor children to the Montana Department of Public Health and Human Services (Department). We affirm.

¶ 2 The dispositive issue on appeal is whether the District Court erred in terminating *335 Betty's parental rights pursuant to § 41-3-609(1)(c), MCA(1995).

BACKGROUND

¶ 3 Betty is the natural mother of a daughter, S.M. The Department first became involved with Betty in 1984, when it received substantiated reports of S.M. being sexually abused by her natural father. The Department sought and received Temporary Investigatory Authority (TIA) relating to S.M.'s sexual abuse, but the TIA later was dismissed when the family left Montana. Betty subsequently divorced and returned to Montana with S.M.

¶ 4 Betty married Robert Davey, Sr. (Robert) in 1985. They have three sons, D.D., S.D., C.D., and a daughter, J.D. Robert also had a son, R.D., Jr., from a previous marriage. S.M., R.D., Jr., D.D., S.D., C.D. and J.D. all lived with Betty and Robert.

¶ 5 In March of 1987, the Department petitioned for, and the District Court granted, a TIA based on reports that Robert was physically abusing R.D., Jr., and the Department later received temporary custody of R.D., Jr. Robert moved out of the house in 1994, after he became abusive towards the other children and the court prohibited unsupervised contact.

¶ 6 After Robert left, the Department received reports that he was making unsupervised visits to the house, that he allegedly sexually assaulted an adult woman, that he was having a difficult time financially supporting himself and that the boys were displaying abnormal sexual behaviors. In order to monitor the contact between Robert and the children, the Department petitioned for temporary custody of all six children in April of 1994.

¶ 7 Prior to the hearing on the Department's petition, S.M. told a social worker that her uncle, who lived in the basement, had inappropriate sexual contact with her. Betty was reluctant to contact the police, and did so only at the social worker's insistence. The social worker also insisted that the uncle move out of the basement immediately. At the temporary custody hearing the next day, however, Betty indicated that the uncle had not moved out of her basement; in fact, he was babysitting the children while she attended the hearing.

¶ 8 On May 23, 1994, the District Court granted the Department temporary custody of all six children based on its determination that they were youths in need of care. While retaining temporary custody, the Department initially allowed the children to remain in Betty's care.

¶ 9 Charles Sterling (Chuck) began living with Betty sometime in 1994, and Chuck's brother, Bobby Sterling (Bobby), began to frequent the household. In May of 1995, the Department received reports that Bobby had made several inappropriate sexual advances toward S.M. When the Department confronted Betty with the allegations, she minimized the incident and later said that she did not like to take sides.

¶ 10 In May of 1995, S.M. told a social worker that she was getting up in the mornings to get the boys ready for school because Betty was out with Chuck. The Department also received a referral that Bobby was sexually abusing S.M. J.D. reported that C.D., age eight, and R.D., Jr., age fourteen, touched her "privates" on several occasions and once made her eat "poop" when Betty left the two boys to babysit. The Department also received reports that Betty allowed Robert to make unauthorized visits to see the children. The Department subsequently placed the children in foster care based on Betty's inability to protect them and, thereafter, Betty and the children received counseling and evaluations by various medical professionals.

¶ 11 In August of 1995, a social worker explained to Betty that further contact between Bobby and the children was contrary to the children's welfare. Thereafter, Betty brought Bobby to one of S.M.'s therapy appointments and S.M. "fell apart" when she saw him. Betty also brought Bobby to a church service S.M. was attending; Bobby reportedly began rubbing S.M. and she again "fell apart."

¶ 12 The District Court began approving treatment plans for Betty in June of 1995. The plans outlined several tasks, including *336 that she attend parenting and counseling sessions, maintain a clean and safe home environment, use only appropriate disciplinary methods, protect the children from abuse, teach the children appropriate grooming skills and not allow Bobby access to any of the children.

¶ 13 By June of 1996, the Department determined that Betty's treatment plans had not been successful. As a result, it petitioned for permanent legal custody, termination of parental rights and the right to consent to adoption concerning D.D., S.D., C.D., and J.D. The Department also petitioned to extend its temporary custody of S.M. and R.D., Jr. until they reached the age of eighteen. S.M. turned eighteen during the pendency of the petition, rendering the Department's petition for her temporary custody moot. The Department continued to work with Betty and implemented two more court-approved treatment plans after filing its petition.

¶ 14 The District Court held hearings on the Department's petitions during January, March and April of 1997. The court subsequently issued findings of fact, conclusions of law and an order terminating the respective parents' parental rights and awarding permanent custody of D.D., S.D., C.D. and J.D. to the Department and temporary custody of R.D., Jr. to the Department until he reaches the age of eighteen. Betty appeals.

STANDARD OF REVIEW

¶ 15 We review a district court's decision to terminate parental rights to determine whether its findings of fact are clearly erroneous. In re E.W., 1998 MT 135, ¶ 9, ___ Mont. ___, ¶ 9, 959 P.2d 951, ¶ 9, 55 St.Rep. 536, ¶ 9 (citation omitted). Findings of fact are clearly erroneous if they are not supported by substantial evidence; or, if so supported, the district court misapprehended the effect of the evidence; or, if so supported and the district court did not misapprehend the effect of the evidence, this Court is left with the definite and firm conviction that a mistake has been committed. In re E.W., ¶ 10 (citation omitted). We review a district court's conclusions of law to determine whether they are correct. In re E.W., ¶ 9 (citation omitted).

DISCUSSION

¶ 16 Did the District Court err in terminating Betty's parental rights pursuant to § 41-3-609(1)(c), MCA (1995)?

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Cite This Page — Counsel Stack

Bluebook (online)
1999 MT 36, 975 P.2d 334, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-sm-mont-1999.