03/25/2020
DA 19-0231 Case Number: DA 19-0231
IN THE SUPREME COURT OF THE STATE OF MONTANA 2020 MT 64
IN THE MATTER OF:
A.B.,
A Youth in Need of Care.
APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DN-16-159 Honorable John W. Larson, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Shannon Hathaway, Montana Legal Justice, PLLC, Missoula, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana
Kirsten Pabst, Missoula County Attorney, Diane Conner, Deputy County Attorney, Missoula, Montana
Submitted on Briefs: January 22, 2020
Decided: March 24, 2020
Filed:
'ig-6--4c __________________________________________ Clerk Justice Beth Baker delivered the Opinion of the Court.
¶1 R.B. (“Mother”) appeals the order of the Fourth Judicial District Court,
Missoula County, terminating her parental rights to her son, A.B. Mother argues that the
District Court erred in concluding that her conduct was unlikely to change within a
reasonable time and in finding that termination of parental rights, rather than guardianship,
was in A.B.’s best interests. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 On October 5, 2016, probation officers arrived at the house of A.B.’s birth father
(“Father”) to arrest him for a probation violation. The officers reported to the
Department of Child and Family Services (“Department”) that Father1 and Mother’s infant
son, A.B., was present during drug use, that Mother had used morphine that day, and that
Mother had a loaded syringe on the bathroom counter. The Department determined that
A.B. was in immediate danger due to both parents demonstrating “out of control behavior
due to their addictive drug use” and because A.B. was an “extremely vulnerable child due
to his age and dependence on his caregivers to meet all of his basic needs.” A.B. was
eleven months old at the time. Mother stated that her mother, D.F. (“Grandmother”), could
care for A.B. and that she had left A.B. with Grandmother in the past. The Department
implemented a 30-day voluntary out-of-home protection plan that placed A.B. with his
Grandmother and required Mother to submit to weekly urinalysis (“UA”) testing, obtain a
1 Father relinquished and the District Court terminated his parental rights on February 6, 2019. Because termination of Father’s parental rights is not at issue in this appeal, we discuss the facts relevant to the termination of Mother’s parental rights. 2 chemical dependency evaluation, and maintain contact with the investigating Child
Protection Specialist (“CPS”).
¶3 On November 4, 2016, the Department filed a petition for adjudication of youth in
need of care and a petition for temporary legal custody. Mother was admitted to Family
Drug Treatment Court (“Treatment Court”). The Treatment Court ordered Mother to
obtain a chemical dependency evaluation; abstain from using alcohol or unprescribed
drugs; and submit to random UA testing. The District Court adjudicated A.B. a youth in
need of care, granted the Department temporary legal custody, approved interim treatment
plans, and ordered Mother to complete UA testing. Mother obtained a chemical
dependency evaluation on December 27, 2016. The evaluator recommended inpatient
treatment due to Mother’s long-term use of morphine and methamphetamine. The
Treatment Court assisted Mother in applying to Recovery Center Missoula, a chemical
dependency center.
¶4 At a status hearing in January 2017, Grandmother reported that Mother was doing
well and that A.B. interacted very well with her. The court noted that Mother had missed
several UAs and that those she provided were consistently positive for methamphetamine.
At a status hearing in April 2017, Grandmother reported that Mother was undergoing
inpatient treatment, had detoxed, and was actively participating in the treatment.
Grandmother also reported that A.B. was doing well.
¶5 The District Court approved Mother’s treatment plan on May 3, 2017. The
treatment plan required Mother to complete parenting classes; regularly attend supervised
and unsupervised visits with A.B.; attend addictions counseling and follow the
3 recommendations of the chemical dependency evaluator; not use or possess any alcohol or
unprescribed drugs; submit to random substances testing; and avoid exposing A.B. to any
alcohol or drugs.
¶6 The court extended temporary legal custody to the Department and would do so
throughout the proceedings. Between May and July 2017, Mother was discharged from
inpatient treatment for noncompliance. She began using methamphetamine again and
missed UAs. The District Court emphasized that it was important for Mother to visit A.B.
despite her relapse. Mother then began another outpatient treatment program but stopped
participating within a month. Mother was suspended from Treatment Court due to missed
UA testing and failure to appear for a hearing. In mid-August 2017, Mother stopped seeing
Diane McLaverty, her therapist at Courage to Change Missoula. In September 2017,
Mother reported she had reengaged in treatment and was visiting A.B. However, Mother
had not submitted to UAs and the District Court warned her that she needed to commit to
treatment and visits by the end of October 2017. A.B.’s Court Appointed Special Advocate
(“CASA”) reported that Grandmother believed Mother was still using illegal drugs.
Grandmother continued facilitating visits with Mother and A.B. for some time, but by late
September, Mother stopped attending visits.
¶7 The Department filed a Motion to Approve Permanency Plan on November 9, 2017.
In the motion, the Department indicated that A.B. was placed with Grandmother, that he
was well-bonded, had no special needs, and was happy and excited when he saw Mother.
The Department also stated that Mother no longer was completing UAs, was still using
substances, and saw A.B. only occasionally. The Permanency Plan called for reunification
4 with Mother if she successfully completed the treatment plan within a reasonable time and
if reunification was in A.B.’s best interests. It simultaneously called for adoption if
reunification was not in the best interests of A.B. The Permanency Plan did not mention
guardianship as an option.
¶8 On January 11, 2018, the Department reported that Mother was again visiting A.B.
regularly. The Department informed the court that A.B. had been out of his parents’ care
for over fifteen months, giving rise to a presumption that termination was in A.B.’s best
interests, but the Department requested an exception to the presumption for “two or, at
most, three months to see if we can work with the mother and see if we can give some
additional time to work on reunification.” The District Court granted the exception and
acknowledged that A.B. was doing well in his placement, was not suffering, and that the
extension would give Mother an “extra opportunity” for reunification.
¶9 Mother continued to test positive for methamphetamine. Mother’s counselor again
recommended she attend inpatient treatment. At a March 2018 status hearing, the
District Court encouraged Mother to engage in her treatment plan and consider all inpatient
treatment opportunities. Grandmother stated that she believed Mother was using drugs
but was doing well with her visits and had continued to participate in parenting coaching.
The District Court stated at the status hearing that its inclination was to “go to a
guardianship in this thing” and that guardianship would be an incentive for Mother to
“fully perform all of the parenting obligations that are outlined.”
¶10 Mother continued to test positive for methamphetamine through July 2018. A
second chemical dependency evaluation observed that despite Department intervention and
5 the offered outpatient treatment, Mother continued to use drugs. The evaluation concluded
that if Mother did not participate in a structured treatment environment, she would remain
at high risk to continue using. The counselor recommended that Mother complete inpatient
treatment, which she did not do.
¶11 On August 22, 2018, the Department filed a petition to terminate parental rights
(“Termination Petition”) requesting permanent legal custody of A.B. with the right to
consent to adoption. The Department asserted that Mother had continued to use
methamphetamine and failed to seek inpatient chemical dependency treatment; that
Mother’s conduct or condition rendered her unfit or unwilling to provide adequate parental
care to A.B.; and that the conduct or condition was unlikely to change in a reasonable
amount of time. It requested that A.B.’s Permanency Plan be amended to include adoption
by Grandmother and stated that the amended plan would be in A.B.’s best interests. The
Department asserted that adoption would ensure that A.B.’s physical, emotional, and
medical needs would be met in the future. The Department did not support guardianship,
stating it would “undermine the idea of permanency for [A.B.], given his very young age
and circumstances.” All other parties voiced objections to the Termination Petition, as well
as to the Department’s proposed amended plan.
¶12 In October 2018, the CASA reported that A.B. continued to do well in
Grandmother’s care and that there were no concerns for A.B.’s physical or mental
development. The CASA stated, “This CASA believes reunification with the child is not
in the child’s best interest.” The CASA reported concern that the Department would
terminate Mother’s parental rights and believed it was in A.B.’s best interests to remain
6 with his Grandmother under guardianship, noting it would mean “hope” for Mother’s
recovery.
¶13 Mother continued to avoid UAs and test positive for methamphetamine throughout
the following months. Her counselor again upgraded her level of recommended chemical
dependency treatment from outpatient to inpatient. She was placed on probationary status
with the Treatment Court due to noncompliance and ultimately did not attend inpatient
treatment.
¶14 Mother, Father, and Grandmother filed a joint brief in support of a private
guardianship, asserting that Grandmother could maintain a positive and safe relationship
between A.B. and Mother as she had done for two years.
¶15 The District Court conducted the termination hearing on February 6, 2019. The
court heard testimony from Mother; Darren Ashby, a licensed addictions counselor; CPS
Kate Larcom, Child and Family Services Child Welfare Manager; Candace Miera,
Licensed Addictions Counselor with the Recovery Center; Rylie Shade, visit coach with
Evolution Services; CPS Miranda Sanderson; Mother’s sister; and Grandmother.
¶16 Mother testified that A.B. had been living and doing well in Grandmother’s care for
two years and that she signed a consent for Grandmother to have guardianship of A.B. She
acknowledged that she continued to use methamphetamine and only submitted one clean
UA sample in May 2018. She stated that she did not “believe inpatient [treatment] would
be the right fit” for her; she was doing the work she was supposed to do, just “not in the
time frame that was allotted.” Mother stated that she preferred guardianship over
7 termination, that she and Grandmother co-parented very well, and that if Grandmother was
unavailable to parent, then Mother’s sister would fill in that role as co-guardian.
¶17 Rylie Shade, a visit coach at Evolution Services who worked with Mother to
improve her parenting skills, stated that Mother attended nearly all of her supervised visits
with A.B. and showed great progress with her parenting. Shade believed that Mother was
able to meet A.B.’s emotional and physical needs and that they had a “very special bond.”
She testified that if Mother reported that she was using, she would not go to Grandmother’s
house to be around A.B. She testified that she and Mother had many conversations
regarding her use of methamphetamine and how that could affect A.B. She testified that a
large concern for her was that Mother needed to see A.B. more consistently, and that when
Mother was using, she would not visit her son. She believed a guardianship would be in
A.B.’s best interests instead of termination. She testified that A.B. and Grandmother had
a strong bond and that Grandmother would put A.B.’s needs first, even if that contrasted
with Mother’s wishes.
¶18 Regional CPS Supervisor Kate Larcom testified that she had supervised the social
workers assigned to Mother’s case since December 2016 and participated in ongoing
decision-making meetings concerning A.B.’s Permanency Plan. Based on her experience
and discussions with the CPSs, the Department determined that it was in the best interests
of A.B. to proceed with adoption in the Permanency Plan. CPS Larcom testified that when
the Department determined that adoption was preferable to guardianship, it assessed
substantial relationships, A.B.’s age, A.B.’s wishes, the parents’ wishes, the need for a
subsidy, and the needs of A.B., as outlined in the CFS manual. According to CPS Larcom,
8 adoptions are more permanent than guardianships and do not leave A.B.’s placement open
to litigation to dissolve a guardianship, thus providing A.B. with stability. Adoptions also
have the potential to provide financial assistance that guardianships do not. CPS Larcom
testified that she had experience where youths were involved in guardianships. She stated
that she had seen how litigation surrounding guardianships impacts children and that foster
children often feel they have little voice in their permanency plans. CPS Larcom testified
that if proceedings to dissolve a guardianship are initiated, the Department comes back into
the picture and further disrupts the children’s lives with renewed evaluations and
interference.
¶19 The Department believed that adoption was in A.B.’s best interests because Mother
had ample opportunities to complete her treatment plan and had not been successful.
CPS Larcom testified that the parents’ and Grandmother’s focus for requesting
guardianship was based on Mother’s needs and not necessarily A.B.’s best interests. CPS
Larcom explained that Grandmother expressed that she was concerned that termination,
rather than guardianship, would impact Mother’s mental health and she feared Mother
would overdose. According to the Department, “what’s in the child’s best interests is
different than what the family feels is in the child’s best interests. And I believe
it’s – they’re looking out for what’s in the family’s best interests, which is absolutely
within their role and that’s where the – discrepancy is.” According to CPS Larcom, if the
Department had the facts to support a guardianship, it already would have done so.
¶20 CPS Miranda Sanderson, the social worker assigned to A.B.’s case since 2017, also
testified at the termination hearing and agreed with CPS Larcom. CPS Sanderson
9 explained that Mother failed to complete her treatment plan and, in her opinion, would not
make the required changes in a reasonable period of time to address her methamphetamine
use and to safely parent A.B. She also believed that the motivation behind guardianship
was concern for Mother and not for A.B.’s best interests. She further testified that granting
a guardianship would continue to enable Mother and reward her for not following the
treatment plan. She testified that she saw no motivation from Mother to parent full-time
because of her drug use. She testified that she believed A.B. needed permanency, and
adoption by Grandmother was the only form of permanency she recommended because
there were too many unknowns with guardianship.
¶21 Grandmother and Mother’s sister testified in favor of guardianship. Grandmother
stated that it was important for Mother to continue to try to parent, and that was why
guardianship was preferable to termination of Mother’s parental rights. Grandmother
testified that Mother and A.B. were absolutely bonded and Mother “truly has A.B.’s best
interests at heart despite the fact that she is encompassed with addiction.” She did not think
that Mother would subject A.B. to litigation in a guardianship. She testified that she had
already provided A.B. with a sense of permanency and would continue to do so. She said
that she was financially capable of supporting him, and she wanted a guardianship instead
of termination of Mother’s rights.
¶22 On March 18, 2019, the District Court issued its findings of fact, conclusions of law,
and order terminating Mother’s parental rights and granting the Department permanent
legal custody with the right to consent to adoption. The court found that the Department
made reasonable efforts to finalize the Permanency Plan, including developing treatment
10 plans for Mother and offering her evaluations and services. The court found that Mother
was still using methamphetamine, had twenty-one months to comply with her court-
approved treatment plan, and did not comply. The court found that the excessive use of
methamphetamine affected Mother’s ability to care and provide for the child and that it
was unlikely to change within a reasonable time.
STANDARDS OF REVIEW
¶23 This Court reviews a district court’s termination of parental rights for an abuse of
discretion. In re R.J.F., 2019 MT 113, ¶ 20, 395 Mont. 454, 443 P.3d 387 (citing In re A.S.,
2016 MT 156, ¶ 11, 384 Mont. 41, 373 P.3d 848). This Court will not disturb a district
court’s decision on appeal unless “there is a mistake of law or a finding of fact not
supported by substantial evidence that would amount to a clear abuse of discretion.”
In re D.B., 2012 MT 231, ¶ 17, 366 Mont. 392, 288 P.3d 160. An abuse of discretion
occurs when the district court acted arbitrarily, without employment of conscientious
judgment, or exceeded the bounds of reason resulting in substantial injustice.
In re D.B. & D.B., 2007 MT 246, ¶ 16, 339 Mont. 240, 168 P.3d 691. A district court has
abused its discretion if its findings of fact are clearly erroneous or its conclusions of law
are incorrect. In re D.B., ¶ 16. “A factual finding is clearly erroneous if it is not supported
by substantial evidence, if the court misapprehended the effect of the evidence, or if review
of the record convinces the Court a mistake was made.” In re J.B., 2016 MT 68, ¶ 10,
383 Mont. 48, 368 P.3d 715.
11 DISCUSSION
¶24 A district court may order the termination of the parent-child legal relationship if
there is clear and convincing evidence that the child was adjudicated a youth in need of
care, that the parent failed to comply with an appropriate treatment plan, and if the
condition or conduct that rendered the parent unfit is unlikely to change within a reasonable
time. Section 41-3-609(1)(f), MCA. When considering any of the relevant factors in
determining the likelihood of that change, the court must give primary consideration to the
physical, mental, and emotional conditions and needs of the child.
Section 41-3-609(3), MCA.
¶25 Mother argues that the District Court erred in terminating her parental rights because
the Department failed to prove by clear and convincing evidence that every requirement of
the termination statute has been satisfied. She argues that: (1) the District Court
erroneously concluded that Mother’s conduct was unlikely to change within a reasonable
time; and (2) it was not in A.B.’s best interests to terminate Mother’s parental rights
because substantial evidence showed that guardianship was in A.B.’s best interests.
¶26 1. Did the District Court err when it found that the conduct or condition rendering Mother unfit to parent was unlikely to change within a reasonable time?
¶27 To determine that the condition or conduct that rendered a parent unfit is unlikely
to change within a reasonable time, thus supporting termination, the court must find that
the parent’s conduct or condition renders the parent unfit, unable, or unwilling to give the
child adequate parental care. Section 41-3-609(2), MCA. The court should consider the
excessive use of a narcotic or dangerous drug that affects the parent’s ability to care and
12 provide for the child. Section 41-3-609(2)(c), MCA. Under this statute, the question is not
merely whether a parent has made progress or would make some progress in the future, but
whether the parent is likely to make enough progress within a reasonable time to overcome
the circumstances rendering her unfit to parent. In re D.F., 2007 MT 147, ¶ 43,
337 Mont. 461, 161 P.3d 825 (citing § 41-3-609(1)(f)(ii), MCA). To determine whether
the conduct or condition is likely to change, the court is “required to assess the past and
present conduct of the parent. We 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 S.C.L., 2019 MT 61, ¶ 9, 395 Mont. 127, 437 P.3d 122 (citations omitted).
¶28 Mother had many conversations with the court and with her counselors regarding
her methamphetamine use and how it affected her ability to parent. Mother stated that
when she was using, she would not visit A.B., and other testimony confirmed this. She
admits that although she continued to struggle with relapse, she was honest about her
relapses and showed that she wanted to continue to try to parent. Shade, Mother’s
parenting coach from Evolution Services, testified that Mother was successful in her
parenting abilities, and Grandmother testified that Mother and A.B. had a good bond and
that Mother would visit frequently.
¶29 The District Court found that Mother continued to use methamphetamine and did
not successfully attend inpatient treatment as recommended by her counselors. The
District Court granted an extension to allow Mother to work on her treatment, noting
“we’re giving Mother an extra opportunity.” However, Mother had only one clean UA in
over two years of Department involvement despite the various evaluations, counseling, and
13 inpatient treatment offered to her. The evidence showed that when Mother was using, she
avoided visiting A.B. The District Court did not clearly err by finding clear and convincing
evidence that the conduct or condition rendering Mother unfit to parent was unlikely to
change within a reasonable time.
¶30 2. Did the District Court abuse its discretion when it found that Mother did not overcome the presumption that termination was in A.B.’s best interests and terminated her parental rights instead of granting guardianship?
¶31 If a child is out of the home for fifteen of the most recent twenty-two months, the
Department must file a petition for termination unless a specific exception applies.
Sections 41-3-604(1)(a)-(c), MCA. Mother argues that she is entitled to the exception in
(1)(a), which eliminates the mandatory filing if the child is being cared for by a relative.
But as the Department argues and we have held, it retains discretion to file even when an
exception applies. See In re C.W.E., 2016 MT 2, ¶¶ 14-15, 382 Mont. 65, 364 P.3d 1238.
¶32 There is a presumption that termination is in the child’s best interests if the child
has been in an out-of-home placement for fifteen out of the most recent twenty-two months.
Section 41-3-604(1), MCA. The parties do not dispute that the presumption has arisen.
A.B. was in out-of-home placement with Grandmother for almost all of the most recent
twenty-two months when the Department filed its Termination Petition.
¶33 The District Court found that Mother did not overcome the presumption that
termination of her parental rights was in A.B.’s best interests based on Mother’s extensive
history of drug use and her failure to make sufficient progress in her treatment plan. The
court found, based on the testimony presented, that Mother was unwilling to address her
addiction and its impact on her ability to parent A.B. The court found that Mother failed
14 to complete the recommended inpatient chemical dependency treatment and did not
achieve and maintain sobriety. The Court considered A.B.’s need for a stable, consistent,
and safe primary caregiver and determined that Mother could not provide that role for A.B.
within a reasonable time, and it was not persuaded that guardianship was in A.B.’s best
interests.
¶34 The District Court found that it was in A.B.’s best interests to terminate Mother’s
parental rights. It considered CPS Larcom’s testimony that adoption grants greater stability
to the child because there is no future risk of litigation over guardianship. It found further
that Mother had not given priority to A.B.’s stability and permanency and concluded that
A.B. should not be left subject to Mother’s right to challenge his placement in the future.
The court weighed the evidence before it and found that granting guardianship without
terminating Mother’s parental rights would “subordinate the child’s needs for permanency
to meet the mother’s timeline of becoming able to parent sometime in the next 15 years,
which is not reasonable.”
¶35 Mother asserts that overwhelming evidence showed that termination was not in
A.B.’s best interests because he was in a stable, safe placement with Grandmother; Mother
maintained consistent visits with A.B.; Mother and A.B. had a significant bond; and the
family and other witnesses testified against termination. Mother argues that the
Department failed to present testimony or evidence demonstrating her substance use
negatively impacted A.B. She asserts that the court failed to consider this evidence, instead
focusing on Mother’s failure to maintain sobriety and engage in treatment. Mother argues
15 that the District Court erred when it found that the only form of permanency was through
adoption and instead asserts that A.B.’s best interests would be served by guardianship.
¶36 Finally, Mother asserts that the District Court failed to consider the credible
testimony in support of guardianship presented by the CASA, Shade, and the family.
Mother asserts that the Department’s witnesses who testified that termination was in A.B.’s
best interests based their testimony on generalities regarding Mother’s methamphetamine
use, the general possibility that A.B. may need financial support in the future, and the
possibility that a guardianship may subject A.B. to future litigation. She points to the
testimony that A.B.’s health and safety needs were being met by Grandmother and that the
family desired guardianship.
¶37 The Department contends that the District Court correctly applied the presumption
in favor of termination and that Mother did not overcome that presumption. The
Department argues that the request for guardianship was really an argument that
guardianship was better for Mother, not for A.B. CPSs Larcom and Sanderson both
testified that the Department discussed guardianship and termination as options, ultimately
deciding to pursue termination because, in their view, the parties were seeking
guardianship for Mother’s best interests, not for A.B.’s. The Department asserted that it
was in A.B.’s best interests to terminate parental rights because of Mother’s continued drug
use and failure to make sufficient progress in her treatment plan. It asserted that Mother
was not able to meet A.B.’s basic needs. The Department’s role is to determine what is
best for the child, not what is best for the family, and the Department believed that adoption
was more in A.B.’s best interests based on the CPSs’ experience.
16 ¶38 “Children cannot always afford to wait for their parents to be able to parent.”
In re L.S., 2003 MT 12, ¶ 15, 314 Mont. 42, 63 P.3d 497. We have held that if a district
court finds the statutory criteria supporting termination are met, “no limitation requires the
district court to consider other options prior to terminating parental rights.” In re T.S.,
2013 MT 274, ¶ 30, 372 Mont. 79, 310 P.3d 538. “[T]he statute’s permissive language
gives district courts discretion in deciding whether to terminate parental rights.”
In re C.M., 2015 MT 292, ¶ 35, 381 Mont. 230, 359 P.3d 1081. A child’s need for a
permanent, stable, and loving home supersedes a parent’s right to parent the child.
In re D.A., 2008 MT 247, ¶ 21, 344 Mont. 513, 189 P.3d 631 (citing In re A.T.,
2006 MT 35, ¶ 20, 331 Mont. 155, 130 P.3d 1249).
¶39 The District Court thoughtfully considered guardianship as well as termination and
ultimately determined that termination and adoption were in A.B.’s best interests. This
was supported by the court’s experience with Mother for the prior three years, testimony
regarding guardianship and its challenges, and its determination that Mother and
Grandmother sought guardianship for Mother’s needs, not for A.B.’s. This determination,
based on the record before it, was within the court’s discretion.
¶40 Based on its history with the case, its familiarity with the family through the years
of court proceedings, and the testimony it received at the termination hearing, the
District Court found that the reasons for guardianship were not in A.B.’s best interests and
that the evidence supported termination. Reviewing the testimony and evidence presented
in the District Court in the light most favorable to the prevailing party, we cannot conclude
that the court abused its discretion when it found that Mother failed to overcome the
17 presumption that termination was in A.B.’s best interests and that adoption was preferable
to guardianship. We are not in a position to evaluate the evidence for a different outcome;
we determine only whether the court abused its discretion. Woerner v. Woerner,
2014 MT 134, ¶ 29, 375 Mont. 153, 325 P.3d 1244 (citations omitted). The court did not
act arbitrarily, without employment of conscientious judgment, or exceed the bounds of
reason resulting in substantial injustice. In re D.B. & D.B., ¶ 16. It had substantial, credible
evidence which it did not misapprehend to support its determination that it was in A.B.’s
best interests to terminate Mother’s parental rights.
CONCLUSION
¶41 The District Court did not err when it determined that Mother’s condition or conduct
rendering her unfit to parent was unlikely to change within a reasonable time. It did not
abuse its discretion when it determined that termination was in A.B.’s best interests and
that Mother did not overcome the presumption in favor of termination. We affirm.
/S/ BETH BAKER
We concur:
/S/ MIKE McGRATH /S/ JIM RICE /S/ JAMES JEREMIAH SHEA /S/ INGRID GUSTAFSON /S/ LAURIE McKINNON /S/ DIRK M. SANDEFUR
18 Justice Ingrid Gustafson, concurring.
¶42 Based on the standard of review—abuse of discretion—I concur with the majority’s
opinion that the District Court did not abuse its discretion in terminating Mother’s parental
rights. I write, however, to point out my concerns regarding this case and to provide
information as to myths surrounding guardianships in child dependency cases.
¶43 While under our standard of review, I concur the District Court did not abuse its
discretion in terminating Mother’s rights, I do believe the circumstances of this case would
have been more appropriately resolved through a guardianship as was advocated for by
Grandmother (the adoptive placement), Mother, Father, the guardian ad litem, and the
CASA worker.
¶44 There is little debate that children generally do better when they maintain regular,
ongoing contact with their family of origin. Montana’s own child dependency policy
supports this. It is the policy of the state of Montana to “provide for the protection of
children whose health and welfare are or may be adversely affected and further threatened
by the conduct of those responsible for the children’s care and protection” and to “achieve
these purposes in a family environment and preserve the unity and welfare of the family
whenever possible.” Section 41-3-101(1)(a)-(b), MCA (emphasis added). The loss a child
experiences when separated from a parent is profound and can last into adulthood. See
Vivek Sankaran, Christopher Church & Monique Mitchell, A Cure Worse Than the
Disease? The Impact of Removal on Children and Their Families, 102 Marq. L. Rev. 1161,
1165-69 (2019); see also Erin Sugrue, Alia Innovations, Evidence Base for Avoiding
19 Family Separation in Child Welfare Practice: An Analysis of Current Research – July 2019
(2019), https://perma.cc/CU4D-JTM6. The factor most closely associated with positive
outcomes for children is when they remain safely connected to their families. Logically
then, it is counterproductive to terminate a parent’s rights when such does not increase the
overall safety or stability of the child and is not in the best interest of the child’s family.
¶45 Montana has long included guardianship as a permanency option, which advances
its overarching policy of preserving the unity and welfare of the family in child dependency
cases. Sections 41-3-444, -445(8), MCA. In 1999, HB 180—a bill requested by the
Department to authorize guardianship as a permanency option—was adopted. See
1999 Mont. Laws ch. 428. Pursuant to the legislative history, the primary purposes of
HB 180, initially codified at § 41-3-421, MCA (1999), and now renumbered as § 41-3-444,
MCA, was to increase permanent placement options for a child; promote reunification;
provide an alternative for children for whom there is no compelling reason to terminate
parental rights, yet cannot live at home; provide for situations where a child has strong
bonds with the parent or other reasons when parental rights are not terminated, but
permanent placement with the parents is not possible; allow children to stay in families
when relationships have been formed; look at placement through the eyes of a child; and
to ensure those becoming permanent guardians are committed to a long-term relationship
with the child.
¶46 In 1994 with the passage of the Social Security Act Amendments of 1994, Pub. L.
No. 103-432, § 208, 108 Stat. 4398, 4457-59—and later expanded in 1997 through the
Adoption and Safe Families Act of 1997, Pub. L. No. 105-89, § 301, 111 Stat. 2115,
20 2127-28—States were able to conduct child welfare demonstration projects involving the
waiver of certain requirements of Titles IV-B and IV-E of the Social Security Act. The
waivers granted States flexibility in using Federal funding for alternate services and
supports—including subsidized guardianships—that promote safety, permanence, and
well-being for children within the child protection system. Unfortunately, since becoming
one of eleven original states to have implemented a subsidized guardianship demonstration
and thereafter opting to continue with its guardianship assistance program (GAP) 1 under
the Fostering Connections to Success and Increasing Adoptions Act of 2008, Pub. L.
No. 110-351, § 101, 122 Stat. 3949, 3950-53, see Children’s Bureau, U.S. Dep’t of Health
& Human Servs., Synthesis of Findings: Subsidized Guardianship Child Welfare Waiver
Demonstrations 2 (2011), https://perma.cc/CNC6-CYER, it appears Montana has
underutilized guardianships as an effective permanency option.
¶47 As partially demonstrated in this case, a variety of myths and misconceptions exist
regarding the safety, permanency, and effectiveness of guardianships. These myths and
misconceptions include but are not necessarily limited to: guardianships are not permanent
and have higher re-entry rates in the child welfare system; guardianships result in worse
outcomes for children; Montana will not approve subsidy payments for guardianships;
1 GAPs provide financial support for children exiting foster care to permanent guardianships with kin. They have steadily expanded such that as of September 2017, 36 states and the District of Columbia had approved GAPs. Assistant Sec’y for Planning & Evaluation, U.S. Dep’t of Health & Human Servs., Title IV-E GAP Programs: A Work in Progress 1 (2017), https://perma.cc/R5CQ/BMQL. 21 guardianships can be easily undone; and guardianships are only appropriate for older
children.
Guardianships Are as Permanent as Adoption.
¶48 Research has shown the availability of guardianships increases overall family
permanence. Research relating to subsidized guardianships has found no appreciable
differences in stability among comparable groups of children exiting to adoption as
compared to those exiting to guardianship. Children’s Bureau, U.S. Dep’t of Health &
Human Servs., Synthesis of Findings: Subsidized Guardianship Child Welfare Waiver
Demonstrations 19-20 (2011), https://perma.cc/CNC6-CYER.
¶49 The Department’s most recent Reports Oriented Management (ROM) data2 is
consistent with these research findings in that re-entry rates into the child dependency
system were lower for children exiting to guardianship than those for children exiting to
adoption over the last five years. The ROM data shows children exiting to guardianship
on average spent 348 days less time in foster care prior to guardianship finalization than
those in foster care prior to adoption finalization. Resoundingly, the research suggests
permanency is more closely tied to the child’s relationship with his/her placement than to
an ultimate legal designation. Children’s Bureau, U.S. Dep’t of Health & Human Servs.,
Synthesis of Findings: Subsidized Guardianship Child Welfare Waiver Demonstrations
18-20 (2011), https://perma.cc/CNC6-CYER.
2 Available through the Department and soon to be available on the Department’s website. 22 Guardianships Do Not Result in Worse Outcomes for Children.
¶50 Research relating to subsidized guardianships has found no appreciable differences
in child well-being—school performance, safety, engagement in risky behaviors, access to
and satisfaction with services and supports, and overall quality of life—among comparable
groups of adopted and guardianship children. See Children’s Bureau, U.S. Dep’t of Health
& Human Servs., Synthesis of Findings: Subsidized Guardianship Child Welfare Waiver
Demonstrations 20 (2011), https://perma.cc/CNC6-CYER. Further, research shows
subsequent abuse and neglect—re-entry into the child welfare system—is lower among
children discharged to guardianship as compared to adopted children. Leslie Cohen &
Mark Testa, Children & Family Research Ctr., Subsidized Guardianship and Permanence
(2004), https://perma.cc/28FD-W626. In subsidized guardianship waiver demonstrations,
research indicates guardianship significantly decreases the time to permanency, see
Children’s Bureau, U.S. Dep’t of Health & Human Servs., Synthesis of Findings:
Subsidized Guardianship Child Welfare Waiver Demonstrations 18 (2011),
https://perma.cc/CNC6-CYER, an area identified by federal audit of the Montana
Department as needing substantial improvement. The Department has not demonstrated
outcomes for children exiting to guardianship to be any worse than those exiting to
adoption in Montana. In fact, evidence from Montana demonstrated children who exited
care to adoption are not safer nor do they have better well-being outcomes than children
who exited care to guardianship. James Bell Assocs., Children’s Bureau, U.S. Dep’t of
Health & Human Servs., Profiles of the Title IV-E Child Welfare Waiver Demonstration
23 Projects: Volume 1: Demonstrations Active between Federal Fiscal Years 1996 and 2012
113 (2013), https://perma.cc/5KEU-5BNF.
Montana Will Subsidize Guardianships.
¶51 As discussed above, Montana was one of eleven states to have originally
implemented a subsidized guardianship waiver demonstration, following which it elected
to continue with a GAP post the initial demonstration period. Contrary to CPS Larcom’s
testimony, the Department has not, under its current Child and Family Services Division
Administrator, denied any request for a guardianship subsidy, even if the child is not IV-E
eligible, nor has the idea that adoptions are more permanent than guardianships been a “hot
topic” of Montana’s federal review as intimated to by CPS Larcom.3 As discussed above,
the legislative history of § 41-3-421, MCA (1999), now § 41-3-444, MCA, indicates
guardianship was added to promote safety, permanence, and well-being for children within
the child protection system, and to this end, the Legislature also provided a means for
subsidizing guardianships.
Guardianships Are Not Only Appropriate for Older Children.
¶52 Pursuant to § 41-3-445(8), MCA, Montana’s permanency options include:
reunification, permanent placement with the noncustodial parent, adoption, guardianship,
and long-term custody in a planned permanent living arrangement. While there is statutory
preference for reunification with a parent, there is no statutory preferred permanency option
3 While it is accurate Montana’s federal review identified deficiencies in meeting timely permanency standards, the deficiencies relate to the average time a child spends in care prior to adoption, rather than a conclusion that adoption in Montana is more permanent than guardianship. 24 between guardianships and adoptions. When initially adopted, § 41-3-421, MCA (1999),
now § 41-3-444, MCA, permitted a guardianship only if the child was at least 12 years old
or in a group of siblings at least one of whom was at least 12 years old. Recognizing a
child’s age should not preclude the safety, permanency, and well-being a guardianship
could offer, this age limitation, at the request of the Department, was eliminated nearly
twenty years ago in 2001. See 2001 Mont. Laws ch. 281, § 15 (codified as § 41-3-444,
MCA).
Guardianship Are Not Easily Undone.
¶53 With some frequency CPS workers express the idea that guardianships are easily
undone merely by a parent filing a request to terminate the guardianship after dismissal of
the child dependency case. In this case, CPS Larcom testified her main objection to a
guardianship in this case was that it “would leave the child open to continued litigation for
the next 15 years” as a parent could potentially seek to dissolve a guardianship.4 The
incidence of termination of guardianships is very rare, and the incidence of termination of
guardianships not supported by the Department are even more rare. It does not appear the
Department has even been involved in any contested legal actions over the past five years
involving a parent petitioning to dissolve a previously ordered guardianship. CPS
Larcom’s testimony actually highlighted the infrequency and unlikelihood of this
occurring. CPS Larcom, who has worked for the Department as a social worker, a CPS
4 It is noted this idea is incongruous with the Department’s offering Mother a guardianship earlier in the case. When Mother was earlier offered the option of guardianship, no concern was expressed that she would engage in years of litigation to undo the guardianship in the future. 25 supervisor, and now as a regional child welfare manager—working a total of 11 years for
the Department—testified she had never seen a scenario where a parent attempted to undo
a guardianship, was denied by the court, and then came back again. The risk of 15 years
of litigation in this case seems far exaggerated. CPS Larcom, after considerable prompting
by the State, did testify about one particular guardianship termination action in which the
Department took no position. From this isolated case, it is not possible to conclude with
any reliability that A.B. was at risk of 15 years of future litigation or that future litigation
would actually be contrary to A.B.’s best interests. Here, Mother and Grandmother are
co-parenting, and it is clear their intention is to continue to do so. Mother has a strong
bond with A.B., and if Mother and Grandmother believe Mother is able to appropriately
parent in the future, it is likely A.B. will return to Mother’s care regardless of the legal
designation of his adoption by Grandmother. While not an abuse of discretion, termination
of Mother’s parental rights to avoid the very remote chance of future litigation in this case
did little, if anything, to improve A.B.’s safety, permanency, or well-being.
¶54 On a broader basis though, guardianships granted pursuant to § 41-3-444, MCA, are
not easily revoked. A parent would have to file a petition to revoke the guardianship. The
court must hold a hearing on the request and the Department, the guardian, and other
persons directly interested in the welfare of the child must be provided notice of the
hearing. § 41-3-444(6), MCA. The parent petitioner would then have to establish at
hearing that it is in the child’s best interest to revoke the guardianship. This, by its nature,
would require not only that the parent petitioner demonstrate she or he had successfully
addressed the condition rendering him or her unable to parent when the guardianship was
26 established, but also that at the time of the hearing, it is in the child’s best interests to revoke
the guardianship and restore custody to the parent rather than to the Department.
Section 41-3-444, MCA. If the parent is able to meet this high evidentiary hurdle, why
would the Department desire the child to be maintained in a situation that no longer meets
his or her best interests?
¶55 Further, I believe the Opinion, to some extent, misconstrues Mother’s argument on
appeal. Mother does not assert she is capable of parenting A.B. on a full-time basis, nor
does she seriously contest the District Court’s finding that the condition rendering her
unable to parent on a full-time basis is not expected to resolve in a reasonable period of
time. Rather, Mother argues that given the particular circumstances here—her strong bond
with A.B., her near daily interaction with A.B., her current and expected co-parenting of
A.B., and the overall family dynamic—granting Grandmother’s petition for a guardianship,
rather than terminating her parental rights and Grandmother then adopting A.B., is in
A.B.’s best interests.
¶56 In this case, A.B. resides with Grandmother and has done so for over two years.
Despite this, A.B. has a strong, close bond with Mother, who provides significant parenting
to A.B. When asked about the impact on A.B. if his ties to his mother were permanently
severed, CPS Larcom admitted “mother should have continued contact with A.B.”—yet
the Department advocated for a disposition, which is arguably designed to eliminate a
relationship between A.B. and his Mother. Grandmother and Mother testified they have
been co-parenting A.B. and CPS Larcom testified Grandmother is assertive enough to
challenge Mother and look out for A.B.’s best interests. Grandmother has, throughout the
27 duration of the case, proven she is able to keep A.B. safe, while maintaining a positive and
safe relationship with Mother, and she undoubtedly would continue to do so whether the
legal relationship be that of guardian or adoptive parent. It is unrefuted Mother has
participated in the care of A.B. and made substantial gains in parenting skills. Mother and
Grandmother—who is the Department’s identified adoptive placement and who the
Department believes has the capacity to determine A.B.’s best interest and to act to meet
those interests—agree that given time, Mother could regain her ability to parent A.B. and
that, if she does so, it would be in A.B.’s best interest to return to Mother’s care. While
Grandmother expressed concern for her daughter that termination of Mother’s parental
rights was not in Mother’s best interests, there was no evidence Grandmother would forego
A.B.’s best interests merely because she also has concerns for her own daughter. All
members of A.B.s family, including Grandmother, Mother, and Father, as well as A.B.’s
visit coach, the Guardian Ad Litem, and the CASA worker believe guardianship, rather
than termination, is in A.B.’s best interest.
¶57 The testimony of CPS Larcom and CPS Sanderson expressing a preference for
adoption over guardianship seems related to a generalized belief—which is now being
shown to be unfounded by the emerging research—that adoption is the preferred
permanency option to a guardianship, rather than to an individualized consideration of
A.B.’s best interests under the circumstances of this case. CPS Larcom testified that in her
professional opinion adoption is the best permanency option, “All my training and
experience, in the child welfare systems, says that the primary consideration, as an
alternative plan [to reunification], should be adoption.” Unfortunately, the testimony of
28 the CPS workers also demonstrates a desire to sanction Mother for failing to adequately
address her substance use disorder. CPS Larcom admitted guardianship would have been
available to Mother a year prior because she was “far more engaged in her treatment” but
was now not being offered. CPS Sanderson actually testified that not terminating Mother’s
rights would “almost reward [Mother], in a way, for not following her treatment plan. That
her - - she would continue to still have her rights.” This testimony not only discounts the
concept that what is in this family’s best interest is quite likely in A.B.’s best interests, it
also shows a fundamental lack of understanding of the disease of addiction.
¶58 With very little to no risk Mother would ever seek to dissolve the guardianship,5
termination of Mother’s parental rights—such that Grandmother is now his mother and
Mother is now his sister—provided no real benefit to A.B. in terms of stability,
permanency, and well-being, while simultaneously disrupting the best interests of his
family. Further, in the event of Grandmother’s death or incapacity, the termination of
Mother’s parental rights would eliminate Mother as a future placement option—even if at
that time, she continues to have a strong parental bond with A.B., is a safe and appropriate
caregiver, and is the Department’s preferred placement.6
5 CPS Larcom identified Father as her primary concern for future litigation to dissolve the guardianship. Father’s parental rights have been terminated and he has not appealed the termination. Mother and Grandmother both testified Mother would not file in court to regain custody of A.B. 6 Department policy precludes placement with individuals whose parental rights to their children have been terminated. 29 ¶59 It is, at best, incongruous for the Department to assert Grandmother is the primary
caregiver best suited for making decisions on behalf of A.B. and determining A.B.’s best
interests and providing for them, but then not defer determination of what is in A.B.’s best
interest—preservation of his Mother’s parental rights—to her and instead force an adoption
upon her. Here, there is no doubt Mother will continue to be engaged in A.B.’s life as she
has been over the duration of this case. In the event Mother regains the ability to parent on
a full-time basis, Grandmother will most likely return A.B. to her care, regardless of the
legal termination of Mother’s parental rights. Under the circumstances created by the
Department here, it is unlikely Grandmother will seek further assistance from the
Department, even if she were in need of such. Rather than seek termination of Mother’s
parental rights, I believe it would have been far more prudent for the Department to work
with A.B.’s family, not against them, to accomplish the guardianship.
/S/ INGRID GUSTAFSON
Justice Dirk Sandefur and Justice Laurie McKinnon join in the concurring Opinion of Justice Gustafson.
/S/ DIRK M. SANDEFUR /S/ LAURIE McKINNON