No. 04-288
IN THE SUPREME COURT OF THE STATE OF MONTANA
2004 MT 371
IN THE MATTER OF D.B., J.D., S.B., J.B., and L.B.,
Youths In Need Of Care.
APPEAL FROM: The District Court of the Sixteenth Judicial District, In and For the County of Custer, Cause No. DN 2001-9, Honorable Gary L. Day, Presiding Judge
COUNSEL OF RECORD:
For Appellants:
J. Dennis Corbin, Attorney at Law, Miles City, Montana (Father)
Ali Moulton, Attorney at Law, Glendive, Montana (Mother)
For Respondent:
Honorable Mike McGrath, Attorney General; Tammy K. Plubell, Assistant Attorney General, Helena, Montana
Garry P. Bunke, County Attorney; Paul Emerson, Deputy County Attorney, Miles City, Montana
Judy A. Williams, Assistant Attorney General, Child Protection Unit, Billings, Montana
Janette Krutzfeldt Jones, Krutzfeldt & Jones, Miles City, Montana (Guardian Ad Litem)
Submitted on Briefs: November 18, 2004
Decided: December 22, 2004
Filed:
__________________________________________ Clerk Justice W. William 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
1 For reference’s sake, please note that Father happens to have the same initials as Youngest Son.
2 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 the
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;
3 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 many 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
4 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
5 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, after 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.
¶15 Both of Father’s treatment plans required twelve tasks of him, but the District Court
was unsure whether Father was advised of the last eight tasks of the second plan. Three of
the first four tasks–present in both treatment plans–required Father to obtain a chemical
dependency evaluation and follow through with all the recommendations of the chemical
dependency counselor, obtain a psychiatric evaluation and follow through with all the
recommendations of the psychiatrist, and obtain a complete psycho-sexual evaluation with
Michael Sullivan and follow through with his recommendations.
¶16 Father failed to obtain any evaluations. The District Court found that Father had not
completed any of these three tasks despite having the opportunity. Since he did not complete
6 any evaluation before he was jailed or in the six months after his incarceration, he, of course,
could not have completed any of the respective recommendations.
¶17 Mother raises the following issues:
¶18 1. Whether the District Court erred by denying the motion to dismiss the petition to
terminate parental rights based on the discovery of newly-acquired evidence that signifi-
cantly undermined the validity of the prerequisite adjudication of the children as youths in
need of care.
¶19 2. Whether the Department had probable cause to grant a TIA on the allegation of
failure to educate the children for failing to address developmental needs though provided
the opportunity.
¶20 3. Whether the District Court erred in allowing the Department to provide Dr.
Peterson with historical documents and information.
¶21 4. Whether Mother’s treatment plans were inappropriate because the Department
drafted them for a sexual offender based upon the allegations of sexual abuse when it should
have focused on correcting the children’s alleged developmental delays.
¶22 5. Whether the District Court erred in determining that Mother was unsuccessful or
noncompliant with her treatment plan.
¶23 6. Whether the District Court erred in determining that the conduct or condition
rendering Mother unfit was unlikely to change within a reasonable amount of time.
¶24 Father raises the following issues:
7 ¶25 1. Whether the District Court erred by denying the motion to dismiss the petition to
terminate parental rights based on the discovery of newly-acquired evidence that signifi-
cantly undermined the validity of the prerequisite adjudication of the children as youths in
¶26 2. Whether Father’s treatment plans were inappropriate because he was incarcerated
during much of the two treatment plans and the District Court did not tailor those plans to
fit a father in incarceration.
¶27 3. Whether the District Court abused its discretion in finding Father failed to complete
his treatment plan successfully.
¶28 4. Whether the District Court erred in determining that the conduct or condition
rendering Father unfit was unlikely to change within a reasonable amount of time.
STANDARD OF REVIEW
¶29 This Court reviews a District Court’s decision to terminate parental rights to
determine whether the District Court abused its discretion. In re N.A., 2002 MT 303, ¶ 22,
313 Mont. 27, ¶ 22, 59 P.3d 1135, ¶ 22. A district court abuses its discretion when it acts
arbitrarily, without employment of conscientious judgment, or exceeding the bounds of
reason resulting in substantial injustice. In re D.V., 2003 MT 160, ¶ 14, 316 Mont. 282,
¶ 14, 70 P.3d 1253, ¶ 14.
¶30 This Court reviews the District Court’s findings of fact supporting termination to
determine whether they are clearly erroneous. In re B.H., 2001 MT 288, ¶ 13, 307 Mont.
412, ¶ 13, 37 P.3d 736, ¶ 13. Those facts will be clearly erroneous (1) when substantial
8 evidence fails to support the district court’s finding; (2) when the district court misappre-
hended the effect of the evidence; or (3) when, after reviewing the record, this Court has a
definite and firm conviction that the district court made a mistake. In the Matter of A.C.,
2001 MT 126, ¶ 20, 305 Mont. 404, ¶ 20, 27 P.3d 960, ¶ 20. In reviewing a district court’s
conclusions of law, we determine whether they are correct. N.A., ¶ 22.
MOTHER’S ISSUE 1 AND FATHER’S ISSUE 1
¶31 Father and Mother each argue that the District Court erred by denying their motions
to dismiss the petition to terminate parental rights based on the discovery of newly acquired
evidence that significantly undermined the validity of the prerequisite adjudication of the
children as youths in need of care. They argue that, absent the sexual molestation allegations
from the LSA mis-diagnosis, the District Court could not have designated the children youths
in need of care. The District Court terminated the parent-child relationships pursuant to
§ 41-3-609, MCA (2001), that provides, in relevant part, as follows:
(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.
If the District Court erred in adjudicating the children as youths in need of care, the
subsequent termination is legally invalid. The parents further argue that the allegations of
sexual molestation due to the LSA mis-diagnosis tainted the entire proceedings to such a
9 tremendous degree that they deprived Mother of her rights to due process and fundamental
fairness.
¶32 We conclude the District Court had adequate grounds independent of the LSA mis-
diagnosis for adjudicating these children youths in need of care. Pursuant to § 41-3-
422(5)(a)(ii), MCA (2001), the District Court used the preponderance of the evidence
standard for the adjudication as youths in need of care. The children suffered from severe
language delays that required significant intervention, and the parents had psychological
conditions affecting their parenting abilities. Three of the children were as much as 30
percent delayed. Father had Paranoid Personality Disorder with features of narcissism and
antisocial orientation, and Mother poses an indirect threat to her children because she avoids
issues surrounding the children’s removal and exhibits denial of any problems with child-
rearing.
¶33 Even if the physical evidence attributable to LSA had not been introduced at the time
of the adjudicatory hearing, there was substantial evidence supporting the District Court’s
designation. Any taint attributable to the LSA has not pervaded this case to violate
fundamental fairness. The developmental delays and psychological disorders–independent
of the sexual molestation allegations–support the District Court’s finding by a preponderance
of evidence that these children were youths in need of care.
MOTHER’S ISSUE 2
¶34 Mother argues that the District Court would not have had probable cause to order the
TIA based on the allegation that she failed to address developmental needs. Without that
10 probable cause, the argument goes, the Department could never have taken the children
away, and Mother would have had the opportunity to correct the developmental deficiencies.
¶35 The circumstances need only rise to the level of probable cause for a district court to
issue an order for a TIA. Section 41-3-422(5)(a)(i), MCA (2001). Subsequent discovery that
the initial probable cause determination was based on faulty information does not change the
fact that the district court initially had probable cause based upon information available at
the time of the determination. With such a difficult disease to detect as LSA, neither Dr.
Young nor Dr. Rauh acted unreasonably in making referrals to the Department. At the time
of the TIA hearing, the District Court had evidence of sores, anal scarring, and bruises in
Oldest Daughter’s perineal area. Dr. Rauh testified that constipation and straddling were
unlikely to have caused those injuries. Substantial, credible evidence supported the District
Court’s finding of probable cause for issuing the TIA.
MOTHER’S ISSUE 3
¶36 The District Court ordered Dr. Peterson to take into account the alleged child abuse
that took place in California when he made his psychological evaluations. Mother contends
that the Department should not have sought and acquired the unsubstantiated California
reports from 1990 to 1997. Montana statutes require the Department to destroy non-medical,
unsubstantiated records after three years. Section 41-3-202(5)(c)(i)(A) to (B), MCA (2003).
By seeking out those California reports and transferring them to Dr. Peterson, Mother asserts
the Department violated the spirit of that Montana statute and prejudiced Dr. Peterson’s
evaluation of Mother.
11 ¶37 Section 41-3-202(5)(c), MCA (2003), was enacted in 2003–after the commencement
of this action and after the District Court’s decision that Dr. Peterson should consider the
California history. Act approved Apr. 17, 2003, ch. 406, 2003 Mont. Laws 1489. Without
legislative intent, statutes do not apply retroactively, so this 2003 statute did not apply to the
District Court’s 2001 decision. Section 1-2-109, MCA (2001) (“No law contained in any of
the statutes of Montana is retroactive unless expressly so declared.”); Porter v. Galarneau
(1996), 275 Mont. 174, 185, 911 P.2d 1143, 1150. Thus, the District Court did not err by
requiring Dr. Peterson to consider unsubstantiated allegations from California.
¶38 Second, Mother argues that, included in the “Documents Accompanying the Referral”
that Dr. Peterson received, was a reference to Father’s alleged history of violence in
California. Mother cites three cases that she contends, together, stand for the proposition
that a district court can consider only violence of the parent who is subject to the inquiry or
violence of a spouse or intimate partner committed during the course of the relationship with
the parent who is the subject of the inquiry: In re M.T., 2002 MT 174, 310 Mont. 506, 51
P.3d 1141 (admitting evidence of violence between the mother and her husband); In Re
M.F.B., 2001 MT 136, 305 Mont. 481, 29 P.3d 480 (admitting evidence of violence among
the mother, father, and children); and In re A.W. (1991), 247 Mont. 268, 806 P.2d 520
(admitting evidence of violence by the mother’s boyfriend and the father of one of her
children). Mother argues that, because she was neither dating nor married to Father at the
time of the alleged violence, Dr. Peterson should not have considered Father’s alleged violent
history in evaluating Mother.
12 ¶39 Mother has committed the Converse Fallacy of Accident or Hasty Generalization.
Ruggero J. Aldisert, Logic for Lawyers: A Guide to Clear Legal Thinking 191-92 (1989).
Contrary to Mother’s characterization, the three cases she cites stand for the proposition that
the district court can include evidence of violence of the parent or the parent’s spouse or
intimate partner. Father was, at the time of the events, neither Mother’s spouse nor her
intimate partner. Thus, she reasons, the District Court cannot include that evidence.
Choosing to admit some evidence does not imply a choice to exclude other, related evidence.
Just because Tom is a man and Joe is a man, that does not imply that, because Dave is
neither Tom nor Joe, Dave is not a man. These cases do not require a district court to
exclude any evidence if that evidence is relevant. If the evidence is admissible in court, a
fortiori, the psychologist can admit it into his own evaluation.
MOTHER’S ISSUES 4 & 5
¶40 First, Mother contests the District Court’s findings of fact that she failed to complete
her treatment plan. Mother argues that keeping her appointments every week or every other
week from February 2002 to May 2003, investing herself in therapy, cooperating with Ms.
Brewer, making progress in her assertiveness and interpersonal skills, and doing even more
than Brewer asked, together, constitute successful completion of therapy. Concerning her
failure to complete a program to understand the children’s developmental and safety needs,
Mother argues that working with Mr. Brewer twenty to twenty-five times from September
2002 to April 2003 and maintaining interest, engagement, and understanding the information
constitutes completion of that task.
13 ¶41 A parent must completely comply with a treatment plan; partial compliance or even
substantial compliance is insufficient. In re D.V., 2003 MT 160, ¶ 27, 316 Mont. 282, ¶ 27,
70 P.3d 1253, ¶ 27. After assessing Ms. Brewer’s testimony, the District Court found that
Mother had been making progress until May 2003. After that, her attendance at and
scheduling of counseling appointments deteriorated.
¶42 Therapy was not a priority for Mother. Father’s return to the home after his
incarceration caused Mother to fall back into her former dependent patterns despite many
months’ work. Mother was going through the motions by completing the book work and
intellectually understanding Mr. Brewer’s lessons, but she refused to internalize the lessons
and apply them to her own situation.
¶43 The Legislature did not intend, and the Department does not include, therapy tasks
in treatment plans as exercises in futility. If the Department wanted Mother to learn self-
discipline by requiring her to show up at certain times and read certain books, it could use
other treatment plan tasks. Mother needs to do more than just go through the motions. The
Department wanted Mother to better parent her children by learning new techniques and by
applying those techniques to her situation. New techniques will not change the situation
unless they are put into practice.
¶44 Second, Mother argues that the treatment plans were inappropriate under § 41-3-
609(1)(f)(i), MCA (2001), because the Department drafted them for a sexual offender based
upon the allegations of sexual abuse when it should have focused on correcting the children’s
alleged developmental delays. Because every situation is unique, this Court has never
14 established a test to determine what is “appropriate” with respect to treatment plans in
general. Instead, we have articulated a number of factors by which to determine whether a
treatment plan is appropriate under the circumstances, including (1) whether counsel
represented the client, (2) whether the parent stipulated to the plan, and (3) whether the plan
addresses the particular circumstances facing both the parent and the child. In re the Custody
and Parental Rights of M.M. (1995), 271 Mont. 52, 56-57, 894 P.2d 298, 301.
¶45 Counsel represented Mother, and she stipulated to the plan, so the only remaining
question is whether the sexual abuse was a particular circumstance facing both the parent and
the child. For Mother, the LSA mis-diagnosis changed the assumptions on which the
Department based her treatment plans. If a treatment plan contains both appropriate and
inappropriate tasks, the parent need not complete the inappropriate tasks and the district court
cannot consider that failure in its determination whether to terminate parental rights. In re
A.N., 2000 MT 35, ¶¶ 36-41, 298 Mont. 237, ¶¶ 36-41, 995 P.2d 427, ¶¶ 36-41.
¶46 Assuming, arguendo, that the treatment plan tasks related to sexual abuse were
inappropriate, and excluding those tasks, the District Court, nevertheless, had substantial,
credible evidence supporting its finding by clear and convincing evidence that Mother did
not complete her treatment plan. Since the inclusion of the inappropriate sexual abuse
treatment plan elements constitutes harmless error, the District Court did not clearly err in
determining that Mother had failed to complete her treatment plan.
MOTHER’S ISSUE 6
15 ¶47 Mother argues that the District Court erred in determining that the conduct or
condition rendering Mother unfit was unlikely to change within a reasonable amount of time.
Mr. Brewer worked weekly with Mother, who was interested in the material, engaged in it,
and appeared to understand what was being discussed. She argues that, if she did not
successfully complete her treatment plans, she completed most of her treatment plan tasks
and successfully completed working with the counselor regarding her own sexual abuse
victimization. Thus, no evidence supports a finding that Mother will continue abusing or
neglecting her children.
¶48 The District Court terminated parental custody under § 41-3-609(1)(a)(f), MCA
(2001). Subsection (ii) requires the District Court to find that “the conduct or condition of
the parents rendering them unfit is unlikely to change within a reasonable time.” Section
41-3-609(2), MCA (2001), clarifies the meaning of “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 shall 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 the determinations, the court shall consider but is not limited to the following: (a) emotional illness, mental illness, or mental deficiency of the parent of a 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; ....
16 “[W]e do not have a crystal ball to look into to make this determination, so it must, to some
extent, be based on a person’s past conduct.” In re C.A.R. (1984), 214 Mont. 174, 187, 693
P.2d 1214, 1221.
¶49 Dr. Peterson found that Mother had a “pollyannish” personality disorder that caused
her to avoid problems, and Ms. Brewer diagnosed her with many elements of both Schizoid
Personality Disorder and Dependent Personality Disorder. Mother’s avoidance of problems
combined with her refusal to apply the lessons to her children suggest that she has never
acknowledged doing anything wrong. Without accepting responsibility, she will not change
her behavior. Under the same conditions, the children’s recent developmental advances will
arrest.
¶50 The gains that Mother made during the periods she participated in the treatment
objectives were insufficient to enable her to parent her children adequately. Her mental
illnesses are sufficient in number, degree of severity, and effect on the children’s welfare to
support the District Court’s conclusion that she was unlikely to change within a reasonable
amount of time.
FATHER’S ISSUE 2
¶51 Father argues that his treatment plans were inappropriate because Father entered
incarceration twelve days after the District Court approved the first treatment plan, Father
was incarcerated during the whole second treatment plan, and the District Court did not tailor
that plan to fit a father in incarceration. Parents must complete programs that the prison
17 offers them or allows them to complete. See In re J.N., 1999 MT 64, ¶ 19, 293 Mont. 524,
¶ 19, 977 P.2d 317, ¶ 19.
¶52 Any portions of the tasks Father could have completed while incarcerated or during
his periods not incarcerated are appropriate. Contrary to Father’s assertion, the second
treatment plan continued from January 2003 until the hearing in November 2003. He had
twelve days before the State incarcerated him and five months after the State released him
to complete the evaluations. Grant Larson, a social worker, testified that Father could have
obtained the chemical dependency and psycho-sexual evaluation and maybe the psychiatric
evaluation while in prison. Thus, the evaluation tasks were appropriate.
FATHER’S ISSUE 3
¶53 Father argues the District Court abused its discretion in finding Father failed to
complete his treatment plan. A parent must completely comply with a treatment plan; partial
compliance or even substantial compliance is insufficient. D.V., ¶ 27. Father had great
opportunities–if not before, then after his incarceration–to obtain the evaluations, but he
failed to do so. Father utterly failed to obtain a chemical dependency evaluation and a
psychiatric evaluation. Assuming the psycho-sexual evaluations were inappropriate, the
District Court committed harmless error by including them. A.N., ¶ 41. Even discarding that
psycho-sexual evaluation task, since Father failed two necessary and integral treatment plan
tasks, the District Court did not abuse its discretion in finding that Father failed to complete
his treatment plan.
FATHER’S ISSUE 4
18 ¶54 Father also argues that the District Court erred in determining that the conduct or
condition rendering Father unfit was unlikely to change within a reasonable amount of time.
To determine this, in addition to the emotional and mental illness element of § 41-3-
609(2)(a), MCA (2001), a district court may take into account “a history of violent behavior
by the parent; . . . .” Section 41-3-609(2)(b), MCA (2001). In the only psychological
evaluation Father underwent, Dr. Peterson diagnosed him with Paranoid Personality Disorder
with elements of narcissism and antisocial orientation. He refused all further evaluations.
Father does not know his children’s birth dates and that ignorance shows that he is too
narcissistic to work to correct their developmental deficiencies if the children return to his
care.
¶55 In 1991, California courts convicted Father of exhibiting a firearm during a threatened
suicide. Taken together, these mental illnesses and violent tendencies pose a danger to the
children’s future welfare. The District Court did not commit clear error in determining he
was unlikely to change within a reasonable amount of time.
¶56 Affirmed.
/S/ W. WILLIAM LEAPHART
We concur:
/S/ PATRICIA O. COTTER /S/ JAMES C. NELSON /S/ JOHN WARNER
19 /S/ JIM RICE