IN THE MATTER OF C. R. O., A Youth in Need of Care, 309 Mont. 48

JUSTICE RICE delivered the Opinion of the Court. ¶1 Appellant, the father of C.R.O., appeals from the judgment of the District Court for the Third Judicial District, Anaconda-Deer Lodge County, terminating his parental rights. We reverse the judgment of the District Court. ¶2 Appellant presents the following issue on appeal: ¶3 Did the District Court err in concluding that sufficient evidence was presented to terminate Appellant’s parental rights without a treatment plan pursuant to § 41-3-609(4)(b), MCA? ¶4 C.R.O. was born on October 18,2000, to Ross and A.O., father and mother respectively.

The District Court terminated the parental rights of Ross and A.O. on August 1, 2001. A.O. does not appeal the termination of her parental rights. ¶5 Due to its previous involvement with Ross and A.O., the Montana Department of Public Health and Human Services, Division of Child and Family Services (Department), petitioned for Temporary Legal Custody and Protective Services on the day of C.R.O.’s birth, and the District Court granted the petition that same day. C.R.O. was placed in foster care upon discharge from the hospital.

The District Court held a hearing on the petition on November 8, 2000, adjudicated C.R.O. a youth in need of care, and granted temporary legal custody to the Department. ¶6 At the request of the Department, psychological examinations of Ross were conducted by Dr. Ned Tranel and Dr. Robert N. Page. On March 22, 2001, the Department petitioned for termination of Ross’ parental rights without implementation of a treatment plan, pursuant to § 41-3-609(4)(b), MCA, which provides: Criteria for Termination.

(4) A treatment plan is not required under this part upon a finding by the court following hearing if: (

b) two medical doctors or clinical psychologists submit testimony that the parent cannot assume the role of parent. ¶7 This statute authorizes the district court to terminate the parental rights of an individual without establishing a court-approved treatment plan if two medical doctors or clinical psychologists testify that the individual cannot assume the role of parent. Pursuant to this provision, the Department asserted, based upon the two psychological evaluations, that Ross was unable to parent a child and that his condition was unlikely to change within a reasonable time.

After the termination hearing on May 16, 2001, the District Court entered its order on August 1, 2001, terminating Ross’ parental rights to C.R.O. ¶8 In In re Baby Boy Scott (1988), 235 Mont. 253, 255, 767 P.2d 298, 299-300, this Court addressed the termination of parental rights without a treatment plan under the statutory scheme then in effect.

The Court there grafted the additional requirement that termination of parental rights without the benefit of a treatment plan required that the doctors “must also testify that the ... condition of the parent is unlikely to change within a reasonable time.” In re Baby Boy Scott, 253 Mont. at 255, 767 P.2d at 299-300. We continue to acknowledge that this is an appropriate requirement under the current statute.

If the Department is to bypass an attempt to rehabilitate the parent and reunite parent and child, it must demonstrate that the parent’s inability to assume the role of parent cannot be remedied within a reasonable time.

Section 41-3-609(1)(f)(ii), MCA. ¶9 Ross contends that the District Court erred in determining that the statutory criteria for termination of his parental rights under § 41-3-609(4)(b), MCA, were established by clear and convincing evidence. Ross does not challenge the testimony of Dr. Tranel as conclusive that Ross could not assume the role of parent, but argues that the testimony of Dr. Page is not in agreement with the testimony of Dr. Tranel.

Ross argues that the combined testimony of the two psychologists does not support the District Court’s conclusion that clear and convincing evidence existed to waive the treatment plan pursuant to § 41-3-609(4)(b), MCA. ¶10 In reviewing a decision to terminate parental rights, this Court determines whether the district court’s findings of fact supporting termination are clearly erroneous and whether the district court’s conclusions of law are correct. In re A.C., 2001 MT 126, ¶ 20, 305 Mont. 404, ¶ 20, 27 P.3d 960, ¶ 20 (citation omitted).

A finding of fact is clearly erroneous if it is not supported by substantial evidence; if the district court misapprehended the effect of the evidence; or if, after reviewing the record, this Court is left with a definite and firm conviction that the district court made a mistake. In re J.N., 1999 MT 64, ¶ 11, 293 Mont. 524, ¶ 11, 977 P.2d 317, ¶11 (citations omitted). It is well-established that a natural parent’s right to care and custody of his or her child is a fundamental liberty interest which must be protected by fundamentally fair procedures. In re A.C., ¶ 20.

Accordingly, in regard to the statutorily-required findings supporting termination of parental rights, we have stated that the burden is on the party seeking termination to demonstrate by clear and convincing evidence that every requirement set forth in the statute has been satisfied. In re A.C., ¶ 20. ¶ 11 Dr. Tranel based his testimony upon review of voluminous records generated from the time Ross was a young child, himself adjudicated a youth in need of care, and from an independent psychological evaluation. Dr.

Tranel testified that Ross had been given more psychiatric labels than anybody he has ever seen, including ADHD, a major depressive disorder, learning disability, paraphilia, oppositional defiant disorder, gender identity disorder and sexual addiction. ¶12 After his independent evaluation, Dr. Tranel concluded that his findings were consistent with the previous psychological test data. Dr.

Tranel testified he was particularly concerned with Ross’ antisocial personality disorder, which “suggests that he could become aggressive and harmful to a non-retaliatory capable victim.” He concluded that it would not be in C.R.O.’s best interest if Ross were to be the custodial parent. Ultimately, when asked how much time he thought it would take with intensive support therapy for Ross to have the ability to successfully parent a young child, Dr. Tranel responded, “[y]ears, perhaps decades would be more accurate.” ¶13 Ross contends that the conclusions of Dr. Page do not agree with Dr. Tranel’s conclusions.

He argues that, contrary to the requirements of the termination statute, Dr. Page believed that Ross should have been given the opportunity to acquire parenting skills and become a productive parent with the help of an intensive and supervised treatment plan and further believed that it was possible for Ross to complete the treatment plan within fifteen months. Ross points to Dr. Page’s following testimony upon cross-examination to support his argument: Q: Dr. Page, you’re not saying that my client can not learn, correct? A: Correct.

Q: In fact you stated I believe, in your report that he’s in the average range of intelligent functioning, intellectual functioning? A: That would be based on reviewing Dr. Tranel’s results that indicated he was in the average range, intellectually. Q: So that means he can process information, learn new skills, and apply those skills when it comes to parenting a child? A: Cognitively, you know Dr. Tranel can get more specific on scale score, the meaning of the breakdown on the scale scores.

But basically with the full scale IQ in the average range it doesn’t suggest any deficits necessary in his ability to obtain the knowledge and skills. Q: And I believe Dr. Tranel didn’t find any specific learning disabilities, correct? A: I don’t think so. Q: Okay. So Ross would be able to process new information, learn and acquire new parenting skills and abilities when it comes to parenting a child? A: Theoretically. I don’t know that there are any specific other neurological problems Dr. Tranel might be able to identify.

Theoretically, there should be nothing, nothing stands out that would stop him from being able to learn, to acquire knowledge. Q: And is it your opinion that he would benefit from a treatment program? A: Yes sir. Q: At this time. Do you believe that-that your report concluded that given the opportunity with strict supervision and an on-going treatment plan which may provide continuous monitoring by trained professionals that at some point in time Ross may assume a parenting role? A: Theoretically, it’s possible. Q: In any event, would you agree with me Dr.

Page that Ross should be given the opportunity to acquire parenting skills and become a productive parent?

A: If he hasn’t already been given the opportunity to be trained and acquire the knowledge, but I think that with the caveat that his history of acts of deviance as well as marijuana use, etcetera, of long standing nature leave him at [sic] a vulnerable person to maintain presence in such a treatment plan and there’s a question as to how much that-It would have to be monitored and measured from the standpoint of progress being made, very closely, in my opinion. ¶14 Ross additionally points to the following cross-examination of Dr. Page by C.R.O.’s guardian ad litem: Q: Mr.

DiRe had asked you questions about can he parent or can he learn what he needs to learn to parent, and you indicated that it’s possible at some time he can be taught that. There’s a presumption in Montana that fifteen (15) months out of home placement that termination is in the child’s best interest. Could he learn anything substantial in fifteen months? A: Ah, yes, theoretically. There’s not a deficient intellectual capacity with [sic] which would prohibit him from being able to absorb and retain knowledge, that I know of.

There are some vulnerabilities and some high risks against suggesting, difficulty in obtaining such necessary knowledge and lowered impulse; increased impulse control, etcetera, etcetera. Particularly surrounding the risks that I’ve identified in my report in fifteen months. It’s possible. Q: So is it fair to say that he has the intellectual ability to learn how to parent but given his background and his diagnosis, he may not be able to accomplish that in a reasonable time? A: He has significant vulnerabilities.

I should say liabilities that he brings into such a treatment plan that would have to be addressed specifically. Q: Could he learn that within a reasonable time given his own history and his own background in spite of his cognitive abilities to assess parenting techniques? A: It would be very difficult. I’m not going to say it’s impossible. ¶15 According to Ross, the treatment plan was improperly waived in this case as the foregoing testimony of Dr.

Page falls short of, and negates, any reasonable conclusion that clear and convincing evidence exists that he cannot assume the role of a parent within a reasonable time with the help of a treatment plan. ¶16 The Department counters that the above testimony, taken out of context, does not fairly characterize the conclusions of Dr. Page. The Department argues that the District Court relied on Dr. Page’s concurrence with Dr. Tranel that Ross was multi-handicapped and unable to provide a minimal standard of parenting for a young child at this time.

The Department also argues that to terminate parental rights pursuant to § 41-3-609(4)(b), MCA, the district court need not find that a parent is unable to learn and never able to parent in the foreseeable future, rather, only that the parent is unable to assume the role of parent at this time and unable to do so within a reasonable time. The Department contends that, while Dr. Page did not rule out the possibility that Ross could ever assume a parenting role, he clearly testified that Ross could not do so within a reasonable amount of time. We disagree with the Department’s assessment of Dr.

Page’s testimony. ¶17 Upon review of the full testimony of Dr. Page, this Court is at a loss to discover testimony directly supporting a conclusion by Dr. Page that Ross could not assume the role of parent within a reasonable time. When asked on direct examination how long it would take for Ross, in the ideal program, before he could successfully parent a young child, he responded that, while it would not likely be within the next year, it is “awfully hard to nail down a particular time frame because it’s dependent on so many variables .... I don’t know how long that would take for Ross.” ¶18 Dr.

Page gave no stronger conclusion on cross-examination or upon examination by the guardian ad litem. Rather, when asked whether Ross could learn anything substantial within fifteen months and assume a parenting role, he responded that, although it would be difficult, it was theoretically possible. Dr. Page testified that Ross is of average intellectual functioning and theoretically can process new information, learn and acquire new parenting skills and abilities. Dr.

Page opined that Ross could theoretically assume the role of parent if given the opportunity to participate in an ongoing treatment plan with strict supervision and continuous monitoring by trained professionals. ¶19 The Department argues that the District Court also relied on Dr. Page’s concurrence with Gwen Farnsworth, Ross’ former social worker and outpatient adolescent sex offender therapist.

The Department refers to the November 29,2000, letter from Gwen to the Department wherein she opined that “under no circumstances do I believe he should be in the position to control the destiny of a child.” When asked whether he agreed with Gwen’s statement that under no circumstances should Ross be in the position to control the destiny of a child, Dr.

Page again specifically stated that, “[a]t this point in time, the statement about ‘should not be in the position to control the destiny of a child’ would be accurate” (emphasis supplied). ¶20 To terminate a parent’s rights pursuant to § 41-3-609(4)(b), MCA, it is insufficient that both psychologists agree merely that a parent is currently unable to assume the role of parent. Both must also agree that the condition making a parent unable to assume the role of parent be unlikely to change within a reasonable time. In re Baby Boy Scott, 253 Mont. at 255, 767 P.2d at 299-300; § 41-3-609(1)(f)(ii), MCA.

The record contains substantial evidence that Dr. Page, Dr. Tranel and Gwen Farnsworth agree that Ross is currently unable to assume the role of parent. However, the record is bereft of testimony by Dr. Page that the condition making Ross currently unable to parent is unlikely to change within a reasonable time. ¶21 Rather, the District Court extrapolated the conclusion that Ross’ condition was unlikely to change within a reasonable time from Dr. Page’s testimony that despite years of counseling and therapy, Ross has not been able to achieve mastery of the tools he needs to manage his own life.

The District Court concluded that, as Dr. Page did not provide the Court with a “reasonable timeframe” in which Ross may “theoretically” be able to manage the life of a child, and based upon Ross’ longstanding history, his condition is unlikely to change within a reasonable time. ¶22 The requirements of § 41-3-609(4)(b), MCA, are not satisfied simply because a parent has had a long and troubled psychological past, nor because a clinical psychologist does not provide the district court with a reasonable time frame for successful rehabilitation.

It is essential that the testimony of two clinical psychologists clearly and convincingly establish that the condition of the parent is unlikely to change within a reasonable time. The testimony of Dr. Page does not clearly and convincingly support this finding. ¶23 The dissents offer arguments which tug at the heart, but miss the law. Justice Cotter acknowledges that Dr. Page did not offer testimony in accordance with statutory terms, but nonetheless asserts that the Court should deem the statute satisfied from the “theme” and “tone” of his testimony.

Justice Nelson argues that the Court has blindly elevated form over substance, ignoring both the purpose of the statute and C.R.O.’s constitutional rights. While he stops short of advocating that this Court do away with the controlling provision, § 41-3-609(4)(b), MCA, he clearly implies that the Court should ignore the requirements of that statute in this case. ¶24 The Court does not have the option of choosing to ignore the plain wording of a statute, even when those words mandate a result deemed undesirable.

Nor can we, by a “between-the-lines” assessment of a witness’s tone and theme, create testimony that does not exist in the transcript. ¶25 The dissents suggest that if this Court would only view substance over “form” (the requirements of the statute), that Ross’s long and troubled past, in conjunction with his extensive psychological labels, demonstrates that the current condition that renders Ross unable to assume the role of parent is unlikely to change within a reasonable time. However, the statute specifically requires two doctors or psychologists to testify to that conclusion. Undisputably, Dr.

Page did not. ¶26 The record, viewed as a whole, may reveal a history of extensive counseling and a “failure [of Ross] to achieve the tools” to manage his own life, but this Court is constrained first to determine whether substantial evidence exists to support the statutory requirements. In re J.N., ¶ 11 (citations omitted).

Because the record does not support a finding that two psychologists agree that Ross’ condition is unlikely to change within a reasonable time, the basic statutory requirements to terminate Ross’ parental rights, without the benefit of a treatment plan, are not met. ¶27 We hold that substantial evidence does not exist to support the District Court’s finding that Dr. Page believed that the condition preventing Ross from assuming the role of parent is unlikely to change within a reasonable time. In re Baby Boy Scott, 253 Mont. at 255, 767 P.2d at 299-300.

The District Court’s finding is therefore, clearly erroneous. In re A.C., ¶ 20 (citation omitted). ¶28 We reverse and remand for proceedings consistent with this opinion. CHIEF JUSTICE GRAY, JUSTICES REGNIER and TRIEWEILER concur. Jus tice Nelson asserts that, pursuant to § 41-3-602, MCA, a parent-child relationship maybe terminated if the relationship is not in the best interest of the child. That

section is a purpose provision which actually states: “This part provides procedures and criteria by which the parent-child legal relationship may be terminateaby a court if the relationship is not in the best interest of the child.” The proper criterion to be applied here is not best interest of the child, but that which is set forth in § 41-3-609(4), MCA.