In re D.T.H.

2001 MT 138, 29 P.3d 1003, 305 Mont. 502, 2001 Mont. LEXIS 201

• Court: Montana Supreme Court
• Decided: August 2, 2001
• Docket: No. 00-282
• Status: Published

Opinions

CHIEF JUSTICE GRAY

delivered the Opinion of the Court.

¶1 C.T. 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 to her son, D.T.H. We affirm.

¶2 The issue on appeal is whether the District Court erred in adjudicating D.T.H. a youth in need of care.

BACKGROUND

¶3 On March 19, 1999, the Montana Department of Public Health and Human Services (DPHHS) petitioned the District Court for temporary investigative authority (TLA) and emergency protective services over both C.T. and D.T.H. In support of its petition, DPHHS filed a report to the court alleging that it had received a report of concern regarding C.T. and her child. Upon investigation, DPHHS learned C.T. had been fifteen years old when she had sexual intercourse with her stepfather, D.H., age 38, and conceived D.T.H.,who was born on January 31,1999. The report further alleged that C.T. had stated she saw nothing wrong about her relationship with her stepfather and she intended to marry him as soon as he divorced her mother, M.H. Additionally, M.H. stated there was no reason for concern regarding her daughter’s relationship with D.H. because M.H. had given her consent and she agreed with the plan that she divorce D.H. so he and C.T. could marry. According to her, all three would then continue to reside together. DPHHS’s report also raised concern regarding a variety of tattoos that D.H. had given C.T. following D.T.H.’s birth. Based on this report, DPHHS requested the District Court to grant the TIA in order to assess the safety of D.T.H.

¶4 The District Court granted DPHHS’s request for emergency protective services and scheduled a show cause hearing on the TLA petition. At the show cause hearing, DPHHS social worker Sarah Blackburn (Blackburn) testified that, although there was no indication of actual abuse or neglect of D.T.H., there was concern for his safety should he be placed in the home with C.T. and D.H. She stated that the circumstances surrounding D.T.H.’s conception placed C.T.’s ability to adequately parent him in question. Blackburn further testified that D.H.’s sexual relationship with C.T. constituted a sex offense because C.T. was underage and, in light of the continuing nature of the relationship, more information regarding D.H.-in the form of a psychological sexual offender evaluation-was needed to determine whether he would be a risk to D.T.H.’s safety. Based on this testimony, the District Court concluded that there was a danger of abuse or neglect to D.T.H., making him a youth in need of care, and granted the TIA. The court also granted DPHHS TLA over C.T.

¶5 C.T. subsequently moved to dismiss the TIA regarding D.T.H., arguing no evidence existed to establish that D.T.H. was abused or neglected or in danger of being abused or neglected and, therefore, he was not a youth in need of care. The next day, DPHHS moved the District Court to extend both TIAs for an additional 90 days to allow further investigation of the case. Shortly thereafter, M.H. moved to dismiss the TIA regarding C.T. on the basis that C.T. and D.H. had recently married and, as a result, she no longer had parental authority over C.T. The court held a joint hearing on the motions, following which it denied the motions to dismiss and extended both TIAs for 90 days.

¶6 On November 30, 1999, DPHHS petitioned to terminate the parental rights of C.T. and D.H. to D.T.H. and M.H.’s parental rights to C.T. On January 28, 2000, on motion of DPHHS, the District Court dismissed the action regarding C.T. as a youth in need of care. The case proceeded to a hearing on the petition to terminate the parental rights to D.T.H. Following the hearing, the District Court entered findings of fact, conclusions of law and an order terminating the parental rights of C.T. and D.H. to D.T.H. C.T. appeals.

STANDARD OF REVIEW

¶7 We review a district court’s conclusions of law in a youth in need of care proceeding to determine whether those conclusions are correct. In re M.P.M., 1999 MT 78, ¶ 12, 294 Mont. 87, ¶ 12, 976 P.2d 988, ¶ 12. We review a court’s findings of fact to determine whether the findings are clearly erroneous. In re M.P.M., ¶ 12. A finding of fact is clearly erroneous if it is not supported by substantial evidence, the court misapprehended the effect of the evidence, or a review of the record leaves us with a definite and firm conviction that the court made a mistake. In re J.M.J., 1999 MT 277, ¶ 15, 296 Mont. 510, ¶ 15, 989 P.2d 840, ¶ 15.

DISCUSSION

¶8 Did the District Court err in adjudicating D.T.H. a youth in need of care?

¶9 Section 41-3-609(l)(f), MCA, provides that a court may terminate a parent-child legal relationship upon finding that

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.

Following the hearing on DPHHS’s petition to terminate, the District Court entered findings conforming with the above criteria and terminated C.T.’s parental rights on that basis. C.T. contends that termination of her parental rights was improper because the District Court’s underlying adjudication of D.T.H. as a youth in need of care was erroneous.

¶10 A youth in need of care is defined as “a youth who has been adjudicated or determined, after a hearing, to be or to have been abused or neglected.” Section 41-3-102(23), MCA. An abused or neglected youth is one who has suffered child abuse or neglect. Section 41-3-102(3), MCA. “Child abuse or neglect” means:

(i) actual harm to a child’s health or welfare; or

(ii) substantial risk of harm to a child’s health or welfare.

Section 41-3-102(7)(a), MCA.

¶11 C.T. argues that the District Court should have denied the petition for TIA at the outset because DPHHS’s report to the court in conjunction with the petition was insufficient on its face. The TIA petition was filed pursuant to § 41-3-402, MCA, which provides, in pertinent part, that

(2) A petition for temporary investigative authority and protective services must state the specific authority requested and the facts establishing probable cause that a youth is abused or neglected or is in danger of being abused or neglected.

(3) The petition for temporary investigative authority and protective services must be supported by an affidavit signed by the county attorney, the attorney general, or an attorney hired by the county or must be supported by a [DPHHS] report stating in detail the facts upon which the request is based. The petition, affidavit, or report of [DPHHS] must contain information regarding statements, if any, made by the parents detailing the parents’ statement of the facts of the case.

C.T. contends that the' DPHHS report failed to meet the statutory requirements because it contained no allegations that D.T.H. had been abused or neglected.

¶12 The report required by § 41-3-402(3), MCA, need only set forth in detail facts supporting the petition’s request for TIÁ based on the assertion that a child is abused or neglected or is in danger of being abused or neglected. Here, the DPHHS’s report set forth the facts that C.T. conceived D.T.H. when she was fifteen years old; the child’s father is C.T.’s then-stepfather D.H.; C.T. continues to reside in the same household as D.H. and plans to continue their relationship; she did not believe there was anything wrong about her relationship with D.H.; her mother, M.H., approved of C.T.’s relationship with D.H.; and C.T. had been sexually abused in the past by her natural father. Furthermore, the report set forth statements made by both C.T. and M.H. regarding the facts of the case. We conclude that DPHHS’s report to the court set forth sufficient facts to support the petition’s allegation that D.T.H. was in danger of being abused or neglected and, therefore, it meets the requirements set forth in § 41-3-402(3), MCA.

¶13 C.T. next argues that DPHHS failed to present sufficient evidence at the show cause hearing to support a determination that D.T.H. was a youth in need of care. In this regard, she points to Blackburn’s testimony that there was no indication D.T.H. had suffered actual abuse or neglect and he appeared to be well cared for. While C.T. is correct that DPHHS presented no evidence establishing abuse or neglect as a result of any actual harm to D.T.H., § 41-3-102(7)(a)(ii), MCA, provides that abuse or neglect may be found where there is a substantial risk of harm to a child’s health or welfare. In that regard, Blackburn testified that D .H.’s sexual relationship with C .T. raised the issue of whether he was inclined to commit sexual offenses against children and that, until he completed a sexual offender evaluation, there was concern he may sexually abuse D.T.H. Blackburn further testified that, in addition to the relationship with D.H., C.T. had been sexually abused by her natural father. According to Blackburn, these experiences, combined with C.T.’s inability to recognize any impropriety in her sexual relationship with D.H., raised concerns about her ability to adequately parent D.T.H. and protect him from harm.

¶14 Blackburn’s testimony is sufficient to support a finding that there was a substantial risk of harm to D.T.H.’s health or welfare if he were returned to C.T.’s custody, thus making him an abused or neglected youth as defined in § 41-3-102(3) and (7), MCA. Consequently, we conclude that the District Court’s post-hearing determination that D.T.H. was a youth in need of care as defined in § 41-3-102(23), MCA, is correct.

¶15 C.T. also argues that the District Court erred in denying her subsequent motion to dismiss the TIA. She notes that, in support of her motion to dismiss, she submitted a psychosexual evaluation of D.H. which stated that he “does not appear to pose a significant risk to sexually abuse his male child ....” She asserts that, based on this evaluation, the District Court should have determined that D.T.H. was not at risk of suffering harm while in her custody and, therefore, was not a youth in need of care.

¶16 At the hearing on the motion to dismiss, DPHHS presented the testimony of Michael Sullivan (Sullivan), the licensed clinical social worker who conducted the psychosexual evaluation of D.H. Sullivan testified that, notwithstanding his statement in the evaluation that D.H. did not appear to pose a risk of sexually abusing D.T.H., he determined D.H. could be classified as an untreated sex offender and should not have access to any children-including D.T.H. and C.T.-until he had enrolled and started to show progress in a treatment program .for sex offenders. Sullivan further testified that C.T.’s relationship with D.H. was unhealthy and that the family unit exhibited extremely poor boundaries, which he defined as the parameters which provide guidelines within which people must operate in all aspects of their lives. He stated that these boundaries are important to a child because they serve as the basis for future relationships in their lives and that neither C.T. nor D.H. could provide D.T.H. with good boundaries until they had completed intensive treatment.

¶17 Sullivan also testified that C.T. had obvious psychological damage from being sexually abused by her father and, until she received treatment for this, she would be unable to set appropriate boundaries or make good decisions for D.T.H. He stated that C.T. is completely dependent on D.H. and has a high level of denial which results in an inability to perceive risk of harm to herself or her child. Sullivan further testified that, without successful treatment, C.T. would be unable to understand the risk of harm her relationship with D.H. poses to D.T.H.

¶18 The District Court entered extensive findings of fact in support of its order denying C.T.’s motion to dismiss which included findings based on Sullivan’s testimony as outlined above. The court then found that D.T.H. “has little hope of a normal emotional, moral, and psychological development with his parents under current circumstances” and concluded that returning D.T.H. to C.T.’s care would place him at substantial risk of harm. On this basis, the court determined D.T.H. continued to be a youth in need of care, denied C.T.’s motion to dismiss and granted DPHHS’s motion to extend the TIA.

¶19 Based on our review of the record, we conclude that the District Court’s findings of fact are supported by substantial evidence and are not otherwise clearly erroneous. Its conclusions of law based on those findings are correct. As a result, we hold that the court did not err in adjudicating D.T.H. a youth in need of care.

¶20 Finally, C.T. argues that the District Court should have granted M.H.’s motion to dismiss the TIA regarding C.T. and its failure to do so resulted in the submission of evidence at the later termination hearing which was not relevant to whether D.T.H. was at risk of suffering harm at the hands of his parents. C.T. fails to set forth what evidence may have been improperly admitted, however, or how that evidence resulted in any prejudice to her. We conclude C.T. has failed to establish that the District Court erred by allowing improper or irrelevant evidence.

¶21 Affirmed.

JUSTICES REGNIER, NELSON and LEAPHART concur.