Matter of S.B ( 1986 )

No. 86-20
IN THE SUPREME COURT OF THE STATE OF MONTANA
1986
IN THE MATTER OF S.B., Youth in
Need of Care.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Diane Barz, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Morin & Collins; Colleen Collins, Billings, Montana
For Respondent:
Harold Hanser, County Attorney, Billings, Montana
Greg Mullowney, Deputy County Attorney, Billings
Olsen, Christensen & Gannett; Damon Gannett,
Billings, Montana
Submitted on Briefs: March 28, 1986
Decided: August 211 1986
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.
B.R. (the mother) appeals a Yellowstone County District
Court order which terminates her parental rights to her
daughter S.B. and awards custody to the Montana Department of
Social and Rehabilitative Services (SRS) . The sole issue on
appeal is the sufficiency of the evidence to support the
court's order. We affirm.
In February 1984 appellant gave birth to a daughter,
S.B. Appellant and the putative natural father of S.B. were
divorced prior to the birth. The child had some health
problems from birth. She was underweight and a poor eater,
initially had some kidney problems, had club feet, and had
problems with gastroesophageal reflux (food regurgitation).
The child was hospitalized for about three weeks after birth
and was released. Approximately three to four weeks later,
S.B. was re-hospitalized and Doctor Sauer, a pediatrician,
diagnosed S.B. for a "failure to thrive," i.e., a failure to
maintain either normal height, normal weight, or a
combination of both, in comparison to standardized charts.
Doctor Sauer also termed S.B. hypotonic (low muscle tone),
which he described as a child who was extremely "floppy" with
almost no strength. After being re-hospitalized S.B. gained
a suitable amount of weight in the hospital.
Appellant has a history of mental problems and has at
least twice attempted suicide. Dr. Donna Veraldi, a licensed
clinical psychologist, twice evaluated appellant and
testified that appellant has a schizotypal personality
disorder which would be present throughout her lifetime. The
doctor added that such a disorder is acquired over a long
period of time and is difficult to treat in therapy.
In March 1984 when S.B. was discharged from the
hospital, Lori Freck, a registered nurse with the Yellowstone
City-County Health Department, began working with S . B . and
appellant. Freck instructed appellant in parenting skills,
basic infant care and health care. She felt the child was
not consuming enough formula and that the mother was not
feeding the child as instructed.
The Montana Center for Handicapped Children (the
Center) evaluated S . B . in June 1984, November 1984, and March
1985. In June 1984 when S . B . was approximately four months
old, the Center diagnosed S . B . as having a high risk for
developmental delay. The Center found that S . B . was 20%
underweight for her height. The Center also found an overall
developmental gross motor delay and a one to two month delay
in her functional abilities.
In August 1984 S R S filed a petition for temporary
investigative authority and protective services in regards to
S.B. The Youth Court granted S R S temporary investigative
authority over S . B . for a period of 90 days. Also in August
1984 S . B . was placed in foster care part of each week and
with her mother part of each week.
In November 1984 when S.B. was approximately nine
months old, the Center diagnosed S . B . as having a failure to
thrive and developmental delays. The Center found that S . B .
was four to six months behind in her communication skills,
that S . B . was below the fifth percentile in weight for age
and in weight for height, that S . B . was 18% underweight for
height, and that S . B . performed tests at a mental age of 5%
months which indicated a significant delay in cognitive
skills.
In November 1984 SRS filed a motion to extend the order
for temporary investigative authority and protective
services. The Youth Court granted the motion for extension.
In February 1985 SRS filed a petition for permanent custody
and authority to assent to adoption.
In March 1985 when S.B. was thirteen months old, the
Center again diagnosed S.B. as having a failure to thrive and
developmental delays. The Center found that S.B. functioned
at a 6% month level in a motor development test, that S.B.
had made a four month improvement in gross motor skills in
the last nine months, that S.B. Is language skills were from
three to five months behind, that S.B. was 16% underweight
for her height, that her weight was below the fifth
percentile, and that S.B. had an approximate mental age of
thirteen months.
Also in March 1985, appellant entered into a service
treatment agreement with the county children's services
agency. The Youth Court approved the service treatment
agreement which was signed by appellant and by a social
worker. In April 1985 the named putative natural father
filed an affidavit denying paternity and consenting to the
termination of his parental rights. In July 1985 the
Yellowstone County District Court held a hearing on the SRS
petition for permanent custody.
Dr. Sauer, two social workers who had worked with
appellant, and an early intervention specialist from a local
school district testified at the hearing. They stated that
appellant did not progress adequately in parenting classes,
or follow recommendations of professionals involved with
S.B., that appellant could not adequately care for S.B. at
the present time, and that appellant's condition and
parenting ability, which rendered her an unfit parent, were
unlikely to change in the near future.
In August 1985 the District Court filed its findings of
fact, conclusions of law, order and judgment which granted
permanent custody, and the right to assent to adoption, to
SRS and terminated the parental rights of the natural parents
of S.B. The mother appeals.
In discussing the standard of review applicable to
cases of this nature, we have stated:
... This Court is mindful that the
primary duty of deciding the proper
custody of children is the task of the
district court. As a result, all
reasonable presumptions as to the
correctness of the determination by the
district court will be made ... Due to
this presumption of correctness, the
district court's findings will not be
disturbed unless there is a mistake of
law or a finding of fact not supported by
credible evidence that would amount to a
clear abuse of discretion. [Citations
omitted. 1
Matter of C.A.R. (Mont. 1984), 693 P.2d 1214, 1218, 41
St.Rep. 2395, 2398-2399. However, the State must demonstrate
by clear and convincing evidence that the statutory criteria
for termination of parental rights have been met before such
termination may be ordered. Matter of C.A.R., 693 P.2d at
The statutory criteria for termination of parental
rights under § 41-3-609(1), MCA, are that:
A court may order a termination of a
parent-child legal relationship upon
finding that the child has been
adjudicated a youth in need of care, and
(1) an appropriate treatment plan
approved by the court has not been
complied with, and (2) the conduct or
condition of the parents rendering them
unfit is unlikely to change within a
reasonable time.
Matter of R.J.W. (1982), 197 Mont. 286, 288-289, 642 ~ . 2 d
Section 41-3-102(11), MCA, defines a youth in need of
care as a "youth who is dependent, abused, or neglected as
defined in this section." Section 41-3-102(2) states that:
An "abused or neglected child" means a
child whose normal physical or mental
health or welfare is harmed or threatened
with harm by the acts or omissions of his
parent or other person responsible for
his welfare.
A further definition relevant to the instant case is
S 41-3-102(3), MCA, which defines "harm to a child's health
or welfare" as:
... the harm that occurs whenever the
parent or other person responsible for
the child's welfare:
(a) inflicts or allows to be inflicted
upon the child physical or mental injury,
including injuries sustained as a result
of excessive corporal punishment;
(c) causes failure to thrive or
otherwise fails to supply the child with
adequate food or fails to supply
clothing, shelter, education, or health
care, though financially able to do so or
offered financial or other reasonable
means to do so;
The type of inquiry contemplated by S 41-3-102 (3)(a), MCA,
includes "'the commission or omission of any act or acts
which materially affects the normal physical or emotional
development of a youth.'" Matter of C.A.R., 693 P.2d at
1220; quoting In the Matter of M.R.L. (1980)~186 Mont. 468,
In the instant case, credible evidence establishes the
three prerequisites required to terminate the parental rights
of appellant. Dr. Sauer and the Montana Center for
Handicapped Children both diagnosed S.B. as a "failure to
thrive" baby. That diagnosis reflected a continuing
condition which was present shortly after birth, at nine
months of age and at thirteen months of age. There was also
testimony that (1) appellant was careless in feeding the
baby, (2) appellant did not follow the recommendations of
health care professionals, (3) appellant missed many
appointments and classes with professionals teaching her
parenting skills, and (4) appellant could not adequately care
for her child. Thus, there is substantial, credible evidence
to support a finding that S.B. is a youth in need of care
under the statutory definitions.
The second requirement to terminate appellant's
parental rights is that a court-approved treatment plan must
have been unsuccessful or not complied with. One of the
social workers testified that the court-approved service
treatment agreement was not a success. The agreement itself,
with appellant's signature thereon, was introduced into
evidence. Substantial, credible evidence also supports the
court's finding that this requirement was met.
Finally, we also uphold the lower court's finding that
appellant's conduct or condition rendering her unfit to
provide adequate parental care is unlikely to change within a
reasonable time. After many months of parenting classes and
instruction, appellant was still unable to adequately care
for S.B. A social worker familiar with appellant's parenting
skills opined that appellant's conduct would not change in
the foreseeable future. Moreover, the clinical psychologist
stated that appellant's personality disorder would be present
throughout appellant's lifetime and was difficult to treat in
therapy. In sum, there is substantial, credible evidence to
support the finding of the third and last requirement to
terminate parental rights.
Affirmed.
We concur: