09/07/2021
DA 21-0066 Case Number: DA 21-0066 IN THE SUPREME COURT OF THE STATE OF MONTANA
2021 MT 224N
IN THE MATTER OF:
K.E.R., SEP 07 2021 Bowen Greenwood Clerk of Supreme Court A Youth in Need of Care. St:-1k4 of Montane
APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DN 19-88 Honorable Michael G. Moses, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Taryn Gray, Driscoll Hathaway Law Group, Missoula, Montana
For Appellee:
Austin Knudsen, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana
Scott D. Twito, Yellowstone County Attorney, Scott Pederson, Deputy County Attorney, Billings, Montana
Submitted on Briefs: July 28, 2021
Decided: September 7, 2021
Filed:
Clerk Justice Ingrid Gustafson delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not
serve as precedent. Its case title, cause number, and disposition shall be included in this
Court's quarterly list of noncitable cases published in the Pacific Reporter and Montana
Reports.
¶2 K.M. (Mother) appeals from the Findings of Fact, Conclusions of Law, Order
Terminating Parental Rights issued May 20, 2021, by the Thirteenth Judicial District Court,
Yellowstone County, terminating Mother's parental rights to K.E.R. (Child). We affirm.
¶3 The Department of Public Health and Human Services, Child and Family Services
Division (the Department) became involved with this family at the hospital shortly after
Mother gave birth to her second child.' At the tirne Mother's second child was born, Child
was in the care of her rnaternal grandmother (Grandmother) and had been in her care for
several months prior.
¶4 A Show Cause hearing was held March 27, 2019, where Mother did not contest the
relief requested by the Department. Child was adjudicated a Youth in Need of Care (YINC)
on May 22, 2019. The court approved Mother's Phase I Treatment Plan on May 22, 2019,
1 The second child is not at issue in this case. At the time of delivery, Mother had made arrangements to place that child for adoption through Lutheran Social Services. That adoption has since occurred.
2 which was filed April 1, 2019. Almost a year later, on March 13, 2020, the Department
filed a petition seeking termination of Mother's parental rights.
¶5 Mother contested termination of her parental rights and hearing on the Department's
termination petition was held August 26, 2020. At the hearing, Mother basically admitted
she had not successfully completed her treatment plan but rather sought additional time to
work her treatrnent plan. At the end of the hearing, the District Court acknowledged that
Mother had completed some of her treatment plan tasks, had worked hard over the
preceding eight weeks, and that her condition had changed slightly for the better. The
District Court weighed whether, under these circumstances where Mother had shown some
recent improved change, it was in Child's best interest to secure permanency with
termination of Mother's parental rights or to provide Mother additional time to work her
treatment plan. Ultimately, the District Court ruled from the bench, terminating Mother's
parental rights.
¶6 We review a court's decision to terminate parental rights for abuse of discretion—
whether the court acted arbitrarily, without conscientious judgment, or exceeded the
bounds of reason, resulting in substantial injustice. In re A.S., 2016 MT 156, ¶ 11,
384 Mont. 41, 373 P.3d 848. We review a district court's findings of fact for clear error
and conclusions of law for correctness. In re MVR., 2016 MT 309, 1123, 385 Mont. 448,
384 P.3d 1058.
¶7 Mother asserts the Department failed to prove by clear and convincing evidence that
terrnination of Mother's parental rights was in Child's best interest. She asserts rather there 3 was clear and convincing evidence that Child's best interests would be served by
guardianship, rather than terrnination of her parental rights. The State counters that Mother
failed to suggest at any time throughout the pendency of the case that the Department
should pursue guardianship with Grandrnother.
¶8 Generally, we do not consider issues raised for the first time on appeal as it is
fundamentally unfair to fault a trial court for failing to correctly consider an issue it was
never given the opportunity to consider. In re MC., 2017 MT 252, ¶ 14, 389 Mont. 78,
403 P.3d 1266. We agree with Mother that a court may order guardianship as a disposition
pursuant to § 41-3-444, MCA.2 We agree with Mother that adoption does not necessarily
offer safer or better well-being outcomes for children when compared to children who
exited into guardianship and there is no statutory permanency preference between
guardianship and adoption. See In re A.B., 2020 MT 64, ¶ 52, 399 Mont. 219, 460 P.3d
405 (Gustafson, J., concurring). While guardianship may be an available disposition in an
abuse or neglect proceeding, it is not what the Department sought here. The Department
filed a petition seeking termination of Mother's parental rights. Mother contested it,
arguing she should be given more time to complete her treatrnent plan to effectuate
sustained change. Mother acknowledged she had not completed the tasks of her treatment
2 Pursuant to § 41-3-444, MCA, guardianship is an available disposition if a child has been adjudicated a YINC, the Department has rnade reasonable reunification efforts, the child has lived with the potential guardian in a family setting, termination of parental rights is not in the child's best interests or parental rights have been terminated, but adoption is not in the child's best interests, and the Department has consented to the guardianship.
4 plan and requested, in light of the recent gains she had made, the District Court permit her
additional tirne to work her treatment plan. Although Mother's counsel made inquiry of
Grandmother at the termination hearing as to whether she would be willing to be a
guardian, that was the extent to which Mother raised the issue of guardianship. She did
not file any petition, motion, or written request that the court consider guardianship. She
did not assert she had sought consent from the Department to a guardianship and said
consent had been unreasonably denied. In fact, there is nothing in the record to suggest
Mother, or Grandmother, sought consent of the Department to a guardianship or that the
Department in any way considered the alternative of guardianship. When the court
expressed that it had to determine if it was in Child's best interest to secure permanency
through terrnination with adoption or delay permanency to permit Mother more time to
work her treatrnent plan, Mother did not suggest guardianship as an alternative—a means
of securing permanency while still permitting Mother incentive to continue to improve her
condition and retain her parental rights. As such, we agree with the State that Mother failed
to preserve for appeal her claim that it was in Child's best interest to accomplish a
guardianship with Grandmother rather than terminate her parental rights.3
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09/07/2021
DA 21-0066 Case Number: DA 21-0066 IN THE SUPREME COURT OF THE STATE OF MONTANA
2021 MT 224N
IN THE MATTER OF:
K.E.R., SEP 07 2021 Bowen Greenwood Clerk of Supreme Court A Youth in Need of Care. St:-1k4 of Montane
APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DN 19-88 Honorable Michael G. Moses, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Taryn Gray, Driscoll Hathaway Law Group, Missoula, Montana
For Appellee:
Austin Knudsen, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana
Scott D. Twito, Yellowstone County Attorney, Scott Pederson, Deputy County Attorney, Billings, Montana
Submitted on Briefs: July 28, 2021
Decided: September 7, 2021
Filed:
Clerk Justice Ingrid Gustafson delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not
serve as precedent. Its case title, cause number, and disposition shall be included in this
Court's quarterly list of noncitable cases published in the Pacific Reporter and Montana
Reports.
¶2 K.M. (Mother) appeals from the Findings of Fact, Conclusions of Law, Order
Terminating Parental Rights issued May 20, 2021, by the Thirteenth Judicial District Court,
Yellowstone County, terminating Mother's parental rights to K.E.R. (Child). We affirm.
¶3 The Department of Public Health and Human Services, Child and Family Services
Division (the Department) became involved with this family at the hospital shortly after
Mother gave birth to her second child.' At the tirne Mother's second child was born, Child
was in the care of her rnaternal grandmother (Grandmother) and had been in her care for
several months prior.
¶4 A Show Cause hearing was held March 27, 2019, where Mother did not contest the
relief requested by the Department. Child was adjudicated a Youth in Need of Care (YINC)
on May 22, 2019. The court approved Mother's Phase I Treatment Plan on May 22, 2019,
1 The second child is not at issue in this case. At the time of delivery, Mother had made arrangements to place that child for adoption through Lutheran Social Services. That adoption has since occurred.
2 which was filed April 1, 2019. Almost a year later, on March 13, 2020, the Department
filed a petition seeking termination of Mother's parental rights.
¶5 Mother contested termination of her parental rights and hearing on the Department's
termination petition was held August 26, 2020. At the hearing, Mother basically admitted
she had not successfully completed her treatment plan but rather sought additional time to
work her treatrnent plan. At the end of the hearing, the District Court acknowledged that
Mother had completed some of her treatment plan tasks, had worked hard over the
preceding eight weeks, and that her condition had changed slightly for the better. The
District Court weighed whether, under these circumstances where Mother had shown some
recent improved change, it was in Child's best interest to secure permanency with
termination of Mother's parental rights or to provide Mother additional time to work her
treatment plan. Ultimately, the District Court ruled from the bench, terminating Mother's
parental rights.
¶6 We review a court's decision to terminate parental rights for abuse of discretion—
whether the court acted arbitrarily, without conscientious judgment, or exceeded the
bounds of reason, resulting in substantial injustice. In re A.S., 2016 MT 156, ¶ 11,
384 Mont. 41, 373 P.3d 848. We review a district court's findings of fact for clear error
and conclusions of law for correctness. In re MVR., 2016 MT 309, 1123, 385 Mont. 448,
384 P.3d 1058.
¶7 Mother asserts the Department failed to prove by clear and convincing evidence that
terrnination of Mother's parental rights was in Child's best interest. She asserts rather there 3 was clear and convincing evidence that Child's best interests would be served by
guardianship, rather than terrnination of her parental rights. The State counters that Mother
failed to suggest at any time throughout the pendency of the case that the Department
should pursue guardianship with Grandrnother.
¶8 Generally, we do not consider issues raised for the first time on appeal as it is
fundamentally unfair to fault a trial court for failing to correctly consider an issue it was
never given the opportunity to consider. In re MC., 2017 MT 252, ¶ 14, 389 Mont. 78,
403 P.3d 1266. We agree with Mother that a court may order guardianship as a disposition
pursuant to § 41-3-444, MCA.2 We agree with Mother that adoption does not necessarily
offer safer or better well-being outcomes for children when compared to children who
exited into guardianship and there is no statutory permanency preference between
guardianship and adoption. See In re A.B., 2020 MT 64, ¶ 52, 399 Mont. 219, 460 P.3d
405 (Gustafson, J., concurring). While guardianship may be an available disposition in an
abuse or neglect proceeding, it is not what the Department sought here. The Department
filed a petition seeking termination of Mother's parental rights. Mother contested it,
arguing she should be given more time to complete her treatrnent plan to effectuate
sustained change. Mother acknowledged she had not completed the tasks of her treatment
2 Pursuant to § 41-3-444, MCA, guardianship is an available disposition if a child has been adjudicated a YINC, the Department has rnade reasonable reunification efforts, the child has lived with the potential guardian in a family setting, termination of parental rights is not in the child's best interests or parental rights have been terminated, but adoption is not in the child's best interests, and the Department has consented to the guardianship.
4 plan and requested, in light of the recent gains she had made, the District Court permit her
additional tirne to work her treatment plan. Although Mother's counsel made inquiry of
Grandmother at the termination hearing as to whether she would be willing to be a
guardian, that was the extent to which Mother raised the issue of guardianship. She did
not file any petition, motion, or written request that the court consider guardianship. She
did not assert she had sought consent from the Department to a guardianship and said
consent had been unreasonably denied. In fact, there is nothing in the record to suggest
Mother, or Grandmother, sought consent of the Department to a guardianship or that the
Department in any way considered the alternative of guardianship. When the court
expressed that it had to determine if it was in Child's best interest to secure permanency
through terrnination with adoption or delay permanency to permit Mother more time to
work her treatrnent plan, Mother did not suggest guardianship as an alternative—a means
of securing permanency while still permitting Mother incentive to continue to improve her
condition and retain her parental rights. As such, we agree with the State that Mother failed
to preserve for appeal her claim that it was in Child's best interest to accomplish a
guardianship with Grandmother rather than terminate her parental rights.3
3 Appellant counsel's apt briefing on the availability of guardianship as a disposition and emerging data that adoption does not necessarily offer safer or better well-being outcomes for children who exited to adoption compared to those who exited to guardianship cannot overcome Mother's failure to raise this issue below.
5 ¶9 The record supports the District Court's termination of Mother's parental rights
pursuant to § 41-3-609(1)(f) and -609(2), MCA. Child was adjudicated a YINC on
May 22, 2019.4 See § 41-3-609(1)(f), MCA. An appropriate treatment plan was approved
by the court, which Mother did not successfully complete. See § 41-3-609(1)(f)(i), MCA.
Although the conduct rendering Mother unable to parent had been ameliorated to some
extent in the approximate eight weeks prior to the termination hearing, Mother had not
shown sustained change and her condition continued to render her unable to give Child
adequate care for the foreseeable future. See § 46-3-609(1)(f)(ii), MCA. This would likely
result in continued abuse or neglect had Child been returned to Mother's care at that time.
See § 46-3-609(2), MCA.
¶1 0 Mother asserts the District Court erred in concluding it was in Child's best interest
to terminate the parent-child relationship between Mother and Child as there was evidence
presented that Child had a strong bond with Mother and it was in Child's best interest to
maintain a relationship with Mother. Mother is correct the record supports it is in Child's
best interest to maintain a relationship with Mother. The record also supports it is in
Child's best interest to maintain her relationship with Grandmother, as well as maintain the
stability of the home and care Grandmother has provided throughout Child's entire life.
4 Several months before the Department became involved with the family, Mother and Grandmother agreed Child should reside with Grandmother as Mother had relapsed and was experiencing housing instability. Although Child was residing in a safe placement with Grandmother on a full-time basis, Mother did not contest adjudication of Child as a YINC.
6 The record supports the District Court's conclusion that the relationship with Mother, as
well as the relationship with Grandmother and the stability of care Grandmother provides
can be accomplished through termination of Mother's rights with adoption by
Grandmother. Grandmother is concerned not only for the care and well-being of Child but
also for Mother. Under the unique facts of this case, Grandrnother is in a position to rneet
Child's best interests by being able to safely maintain a relationship between Child and
Mother as Mother continues to address her substance abuse and rnental health issues, while
also providing Child with the critical stability and permanency she needs.5
1111 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our
Internal Operating Rules, which provides for mernorandurn opinions. In the opinion of the
Court, the case presents a question controlled by settled law or by the clear application of
applicable standards of review.
¶12 Affirmed.
Justice
We concur:
hief Justice
e94 M JUL_ 5 While this may also have been possible to achieve through a guardianship, the District Court was not required to sua sponte consider guardianship as an alternative to termination. The court's findings of fact were not clearly erroneous and its conclusions of law were correct. 7 g--,g,fs Justices