Matter of J.M. ( 1997 )

IN THE SUPREME COURT OF THE STATE OF MONTANA
IN THE MATTER OF J.M., S.C., and T.C.,
APPEAL FROM: District Court of the Eighteenth Judicial District, In and for the County of
Gallatin, the Honorable Thomas A. Olson, Judge Presiding.
COUNSEL OF RECORD:
For Appellant:
Thomas I. Sabo, Gallatin Gateway, Montana
For Respondent:
Honorable Joseph P. Mazurek, Attorney General; Tammy Plubell,
Assistant Attorney General, Helena, Montana
Gary Balaz, Deputy County Attorney, Bozeman, Montana
Leslie C. Taylor, Bozeman, Montana
Submitted on Briefs: May 1, 1997
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Filed:
Chief Justice J. A. Tumage delivered the Opinion of the Court.
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1995 Internal
Operating Rules, this decision shall not be cited as precedent and shall be published by its
filing as a public document with the Clerk of this Court and by a report of its result to the
West Publishing Company and State Reporter Publishing Company.
The parents of S.C. and T.C. (the parents) appeal from a decision of the Eighteenth
Judicial District Court, Gallatin County, terminating their parental rights to S.C. and the
mother's parental rights to J.M. J.M.'s father consented to the termination of his parental
rights and is not a party to this appeal. Thc court also grantcd the Department of Public
Health and Human Services temporary investigative authority (TIA) with respect to the
parents' infant daughter, T.C. We affirm.
The issues are whether the court abused its discretion in terminating the parents' rights
to S.C. and the mother's rights to J.M. and in granting TIA with respect to T.C.
The Department obtained TIA concerning J.M. in December of 1993, after an incident
of physical abuse by S.C.'s father, with whom S.C., J.M., and their mother lived. The
Department had received at least ten prior reports of abuse and neglect of S.C. and J.M.
The Department initiated a treatment plan to which the parents agreed. TIA was later
extended for six more months and was expanded to include S.C. In November of 1994, S.C.,
then seven years old, fainted while walking to school after her mother had told her to stay
home because they were being evicted and she needed to pack. Citing ongoing problems
order terminating parental rights must be supported by clear and convincing evidence.
Matter of Adoption of Doe (1996), 277 Mont. 251,255,921 P.2d 875,878.
The parents cite the statutory purpose under 5 41-3-101, MCA, of protecting family
unity whenever possible. They complain that the actions of the Department while S.C. and
J.M. were in foster care contravened that purpose. Specifically, they complain that they were
required to travel twenty miles from their home in Manhattan, Montana, to Bozeman,
Montana, for visitation and that they were granted telephone visitation although they did not
have a telephone at their home. They also complain that the District Court took the attitude
that it was their responsibility to do whatever they had to, in order to get their children back.
The District Court made comprehensive findings of fact in this matter. It found from
the evidence presented that, because of past abuse and neglect, S.C. and J.M. have serious
emotional problems and will require skillful parenting and continued therapy. The court
found that during the time S.C. and J.M. had been in foster care, the parents had not
completed their treatment plan and had not made enough improvement to establish that the
conduct and conditions which led to the children's out-of-home placement would change in
a reasonable amount of time. They "completed only those objectives of the [treatment] plan
that were specifically arranged for them." The court noted that in 1994, the parents received
a sizeable settlement of a medical malpractice claim concerning a daughter who died, but that
they did not use the funds to improve the living situation of the family or otherwise care for
the children. The court concluded that the conduct of the parents was unlikely to change
with the parents regarding the children's school attendance and the physical and sanitary
safety of their home, the Department placed J.M. and S.C. in foster care. After a hearing,
the District Court granted the Department temporary custody.
In March of 1995, the parents signed a new treatment plan. J.M. and S.C. remained
in foster care. Both children required ongoing psychological therapy, and J.M. was enrolled
in a day facility for children with serious emotional illnesses. T.C., who was born to the
parents in October 1995, resided with them throughout these proceedings.
In January 1996, the Department petitioned the District Court for termination of
parental rights to S.C. and J.M. and for six months' TIA concerning T.C. At the hearing on
the petition, the court heard testimony by S.C. and J.M.'s teachers and therapists, counselors
who had seen the parents, the foster mother of S.C. and J.M., and the Department's
caseworkers and social services assistant assigned to this case. The court also heard the
testimony of S.C. and J.M.'s legal guardian for this action, the children's paternal
grandmother, a friend of the parents, and the parents. The court granted the Department's
petition. The parents appeal.
This Court's standard of rcvicw of a district court's findings of fact in a termination
of parental rights is whether the findings are clearly erroneous. Matter of J.L. (1996), 277
Mont. 284, 287, 922 P.2d 459, 461. The standard of review of conclusions of law in a
termination case is whether the conclusions are correct. Matter of J.L., 922 P.2d at 461. An
within a reasonable time. After reviewing the record and considering the arguments raised
on appeal, we conclude that the District Court's findings are not clearly erroneous, its
conclusions are correct, and its judgment terminating parental rights to S.C. and J.M. is
supported by clear and convincing evidence.
The parents further argue that TIA concerning T.C. was granted without any evidence
that they abused or neglected her. A petition for TIA must be supported by substantial
evidence to support probable cause that the youth in question is in danger of being abused
or neglected. Matter of J.W. (1987), 226 Mont. 491,496-97,736 P.2d 960,963.
The court's findings acknowledge the absence of evidence of abuse or neglect of T.C.
However, h a m to one child may justify protective actions as to another child. Matter of T.C.
(1989), 240 Mont. 308,312,784 P.2d 392, 394. The District Court specifically found that,
while T.C. appeared to be well-nourished and appropriately cared for, "[als she gets older
and more difficult to manage, the parents' old patterns may resurface. The parenting history
of these parents suggest that there is reason to believe she is in danger of abuse or neglect."
After reviewing the record, we conclude that the order for TIA concerning T.C. is supported
by substantial evidence to support probable cause that T.C. is in danger of being abused or
neglected.
Affirmed.
We concur: