Matter of L.A., YINC

2024 MT 77N

• Court: Montana Supreme Court
• Decided: April 9, 2024
• Docket: DA 22-0697
• Status: Published

Opinion

04/09/2024

DA 22-0696

IN THE SUPREME COURT OF THE STATE OF MONTANA 2024 MT 77N

IN THE MATTER OF:

D.A., L.A., and F.A.,

Youths in Need of Care.

APPEAL FROM: District Court of the Second Judicial District, In and For the County of Butte-Silver Bow, Cause Nos. DN-19-72, DN-19-73, and DN-19-74 Honorable Robert J. Whelan, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Laura Reed, Attorney at Law, Missoula, Montana (for Father)

Gregory Dee Birdsong, Attorney at Law, Santa Fe, New Mexico (for Mother)

For Appellee:

Austin Knudsen, Montana Attorney General, Bjorn E. Boyer, Assistant Attorney General, Helena, Montana

Eileen Joyce, Butte-Silver Bow County Attorney, Butte, Montana

Submitted on Briefs: July 26, 2023

Decided: April 9, 2024

Filed:

__________________________________________ Clerk Justice Dirk Sandefur delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating

Rules, we decide this case by memorandum opinion. It shall not be cited and is not

precedent. The 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 Respondents T.S. (Mother) and A.A. (Father) respectively appeal the November

2022 judgments of the Montana Second Judicial District Court, Butte-Silver Bow County,

terminating their respective parental rights to their minor children (D.A., L.A., and F.A.)

pursuant to § 41-3-609(1)(f), MCA.1 We affirm.

¶3 The Child and Family Services Division of the Montana Department of Health and

Human Services (Department) most recently became involved with this family in August

2019, when five-year-old D.A. and three-year-old L.A. were found roaming the streets in

Butte, Montana, unsupervised for over an hour.2 Law enforcement later located Father at

the family home sleeping in bed with two-month-old F.A. while Mother was at work.

Father was apparently impaired due to marijuana use. A week later, D.A. and L.A. were

again found roaming the streets alone for over an hour. This time, Mother claimed she put

the children down for a nap, she then fell asleep with infant F.A., and that D.A. and L.A.

1 The separate cases for each child, DA 22-0696, DA 22-0697, and DA 22-0698, are consolidated for appeal. 2 The Department was previously involved with this family in 2016, and frequently thereafter, based on alleged or apparent child abuse or neglect including, inter alia, parental inability to meet the children’s basic needs, domestic violence, and four-year-old D.A’s hospitalization due to ingestion of the prescription drug Prozac.

2 “snuck out” while she was sleeping. In August 2019, the Department removed and placed

all three children in a protective kinship placement and petitioned for emergency protective

services, adjudication of the children as youths in need of care (YINC), and for temporary

legal custody (TLC) under Title 41, chapter 3, MCA. Upon service of the petitions and

issuance of preliminary protective and scheduling orders, the parents appeared with their

respective court-appointed counsel and stipulated to adjudication of the children as YINC

as defined by § 41-3-102(36), MCA, based on the uncontested factual averments in the

petitions. The District Court thus: (1) adjudicated the children as YINC as defined by

§ 41-3-102(36), MCA; (2) granted the Department TLC pursuant to §§ 41-3-438(1),

(3)(f)(i), and -442, MCA; and (3) imposed separate reunification-oriented treatment plans

on each parent by stipulation pursuant to §§ 41-3-438(1), (3)(g)-(h), and -443, MCA. The

court later granted three stipulated six-month TLC extensions to afford each parent

additional time to successfully complete all treatment plan requirements.

¶4 As of early January 2022, neither parent had successfully completed all of their

respective treatment plan requirements, thus causing the Department to transition to

court-ordered guardianships as the new permanency plan for the children instead of

parental reunification. In support of the proposed permanency plan change, the

Department asserted, inter alia, that the parents had yet to complete their respective

treatment plan requirements, had failed to demonstrate significant improvement in their

respective abilities to adequately parent, and thus still did not have “adequate parenting

abilities to safely parent” the children. Over Mother’s objection that it was failing to make

3 reasonable reunification efforts, the Department indefinitely suspended parental visitation

with L.A. and F.A. in March 2022 due to the emotional distress they experienced as a

result. At the permanency plan hearing, neither parent disputed the Department’s

assessment of their incomplete treatment plan compliance, nor objected that it had not

made reasonable reunification efforts up to that point.

¶5 On March 16, 2022, the Department petitioned for a fourth six-month TLC

extension, but later petitioned for termination of parental rights under § 41-3-609(1)(f),

MCA (treatment plan non-compliance and failure), on March 30th. The petitions alleged

that: (1) termination was statutorily presumed to be in the best interests of the children

because they had been in out-of-home protective placement for 28 months;3 (2) the parents’

reunification-oriented treatment plans had respectively failed to due to their respective

failures to successfully complete all treatment plan requirements; (3) each parent thus

remained unfit, unable, or unwilling to provide adequate parental care; and (4) each

parent’s continuing condition of unfitness was unlikely to change within a reasonable time.

Following a contested hearing in August and September 2022, the District Court issued

findings of fact, conclusions of law, and judgments terminating the parents’ respective

parental rights pursuant to § 41-3-609(1)(f), MCA. Based on various supporting findings,

it made ultimate findings of fact under §§ 41-3-604(1), -609(1)(f), (2), and (3), MCA.

3 See § 41-3-604(1), MCA (termination presumed to be “in the best interests of the child” where child has been in State’s physical custody “for 15 of the most recent 22 months”).

4 ¶6 Parents have implied fundamental constitutional rights to the exclusive “care and

custody” of their children “which must be protected by fundamentally fair procedures.”

In re A.T., 2003 MT 154, ¶ 10, 316 Mont. 255, 70 P.3d 1247. District courts have discretion

to terminate parental rights due to child abuse or neglect pursuant to § 41-3-609(1)(f),

MCA. The procedure and substantive criteria specified by Title 41, chapter 3, part 6, MCA,

for termination of parental rights due to child abuse or neglect provide fundamentally fair

due process protections of the constitutional rights of parents to the custody and care of

their children. See In re B.N.Y., 2003 MT 241, ¶ 21, 317 Mont. 291, 77 P.3d 189; In re

D.H., 2001 MT 200, ¶ 14, 306 Mont. 278, 33 P.3d 616. We review parental rights

terminations under § 41-3-609(1)(f), MCA, for an abuse of discretion under the statutory

criteria at issue in each case. In re D.E., 2018 MT 196, ¶ 21, 392 Mont. 297, 423 P.3d 586;

In re K.A., 2016 MT 27, ¶ 19, 382 Mont. 165, 365 P.3d 478; In re D.B., 2007 MT 246,

¶ 16, 339 Mont. 240, 168 P.3d 691. An abuse of discretion occurs if the court terminates

parental rights based on a clearly erroneous finding of fact, an erroneous conclusion or

application of law, or exercises granted discretion arbitrarily, without conscientious

judgment or in excess of the bounds of reason, resulting in substantial injustice. See In re

D.E., ¶ 21; In re K.A., ¶ 19. We review lower court factual findings only for clear error,

and conclusions and applications of law de novo for correctness. In re L.N., 2014 MT 187,

¶ 12, 375 Mont. 480, 329 P.3d 598. A finding of fact is clearly erroneous only if not

supported by substantial evidence or, upon our independent review, the record clearly

5 manifests that the lower court misapprehended the effect of the evidence or was otherwise

mistaken. In re N.R.A., 2017 MT 253, ¶ 10, 389 Mont. 83, 403 P.3d 1256; In re D.H., ¶ 14.

¶7 Here, on various grounds, both parents assert that the District Court erroneously

terminated their respective parental rights based on findings of fact not supported by clear

and convincing evidence as required by § 41-3-609, MCA. As a preliminary matter, the

District Court made all ultimate findings of fact required under § 41-3-609(1)(f) and (2),

MCA. District courts have broad discretion to determine the credibility, veracity, and

probative value of evidence, including the relative credibility, veracity, and probative value

of any conflicting evidence. In re Marriage of Bliss, 2016 MT 51, ¶¶ 15-21, 382 Mont.

370, 367 P.3d 395. Moreover, partial compliance with treatment plan requirements is

insufficient to preclude termination under § 41-3-609(1)(f), MCA. In re D.A., 2008 MT

247, ¶ 22, 344 Mont. 513, 189 P.3d 631. The record manifests that both parents had ample

opportunity to comply with all requirements of their respective treatment plans, and thus

demonstrate substantially improved knowledge and ability to adequately parent their

children, including attendance to their physical and emotional needs, but did not.

¶8 Upon our review, the District Court’s findings of fact are manifestly supported by

substantial record evidence, regardless of any conflicting evidence. We further find no

basis upon which to conclude that the court clearly misapprehended the effect of the

evidence or was otherwise mistaken. The parents have thus failed to meet their respective

appellate burdens of demonstrating that any material District Court finding of fact was

clearly erroneous, or that the supporting evidence upon which they were based was

6 insufficient to constitute clear and convincing evidence. We hold that the District Court

correctly terminated the parents’ respective parental rights under § 41-3-609(1)(f), MCA.

¶9 On various grounds, both parents further assert that the District Court erroneously

terminated their respective rights without clear and convincing evidence that the

Department made reasonable family preservation and reunification efforts as required by

§ 41-3-423, MCA. The Department has a duty to make reasonable good faith family

preservation and reunification efforts in the exercise of its authority under Title 41, chapter

3, parts 4-5, MCA. Section 41-3-423(1)(a) and (b)(i), MCA. However, § 41-3-423, MCA,

does not require it to make every conceivable or possible effort, or to provide every

conceivable or available manner of care or service, that might be of beneficial assistance

to aid parents in successfully completing their treatment plans or otherwise avoiding

termination of parental rights. See In re J.O., 2015 MT 229, ¶¶ 25-28, 380 Mont. 263, 354

P.3d 1242; In re B.J.J., 2019 MT 129, ¶ 24, 396 Mont. 108, 433 P.3d 488. Parents have

their own reciprocal responsibilities, moreover, to avail themselves of services and

assistance offered by the Department, and to meaningfully engage in good faith, with

reasonable concerted effort, to successfully complete reunification-oriented treatment

plans in cooperation with the Department. See In re R.J.F., 2019 MT 113, ¶ 38, 395 Mont.

454, 443 P.3d 387. See also § 41-3-423(1)(b)(i), (vi), and (c), MCA (“health and safety”

of the child is “of paramount concern” in Department provision of reasonable “preservation

or reunification services” and efforts).

7 ¶10 The “reasonable efforts” requirement of § 41-3-423, MCA, “is not a separate

requirement for termination” of parental rights, but rather “a predicate” consideration, inter

alia, regarding the requisite finding of fact under § 41-3-609(1)(f)(ii), MCA (“conduct or

condition” rendering a parent unfit, unwilling, or unable to parent “is unlikely to change

within a reasonable time”). In re R.J.F., ¶ 26. See similarly In re C.K., 2022 MT 27, ¶ 40,

407 Mont. 329, 503 P.3d 1104; In re D.B., ¶ 25. There is substantial record evidence here

that, up until it transitioned to guardianships as the new permanency plan due to the parents’

respective failures to successfully complete all treatment plan requirements, the

Department was actively involved in the administration and monitoring of their respective

treatment plan progress and compliance despite visitation interruptions occasioned by the

associated emotional distress of the children. The Department’s ultimate cessation of

parental contact with the children, over two-and-a-half years post-removal in advance of

petitioning for termination, did not undermine its significant reunification efforts up to that

point, or any of the other substantial evidence supporting the District Court’s ultimate

findings of fact under § 41-3-609(1)(f) and (2), MCA. We hold that District Court did not

terminate the parents’ respective parental rights without clear and convincing evidence that

the Department made reasonable family preservation and reunification efforts as required

by § 41-3-423, MCA.

¶11 Father asserts that the District Court erroneously admitted child hearsay statements

through the hearing testimony of therapists Allison Brown and Jolynn Browning. Brown

testified, inter alia, that L.A. told her that her sister D.A. “was put in [a] bag” and

8 “left . . . at home.” Browning testified, inter alia, that D.A. told her that Father “touched

[her] no-no box.”4 Father further asserts that the District Court “erred in finding that the

sexual abuse allegations were proven by clear and convincing evidence.”5 Construing the

record in the light most favorable to the judgment in accordance with the presumption of

correctness on appeal, the record appears to indicate, albeit unclearly, that the District

Court overruled Father’s preserved hearsay objections on the ground that those out-of-court

statements were admissible not for the truth of the matter asserted, but as definitional

non-hearsay under M. R. Evid. 702, 703, and 801(c) for the purpose of explaining the bases

of the opinion testimony of the respective child therapists regarding the observed fear and

distress experienced by the children in Father’s presence. See, e.g., In re G.M., 2024 MT

49, ¶¶ 14-15, 415 Mont. 399, __ P.3d __ (citing inter alia In re C.K., 2017 MT 69,

¶¶ 18-29, 387 Mont. 127, 391 P.3d 735). If so, the District Court correctly recognized that

the proffered non-hearsay purpose was relevant to the disputed question of fact under

4 For the first time on appeal, Father asserts similar error regarding: (1) Brown’s earlier testimony that D.A. told her that Father “touched her pee-pee”; (2) Browning’s earlier testimony that L.A. told her that Mother and Father both “touched her ‘no-no box’”; and (3) a Department social worker’s testimony regarding a multitude of similar statements purportedly made by one or both of those children. Father further asserts, for the first time on appeal, that the District Court erroneously permitted Department witnesses to “vouch for the credibility of the child hearsay.” However, Father waived those new assertions of error by failing to contemporaneously object below, and has not demonstrated plain error. 5 Mother asserts all of the same errors asserted by Father but, by merely incorporating his briefing by reference, has failed to perfect them for review on appeal. See M. R. App. P. 12(1)(g); State v. Ferguson, 2005 MT 343, ¶¶ 40-43, 330 Mont. 103, 126 P.3d 463. We thus limit our review to Father’s preserved assertions of error.

9 § 41-3-609(1)(f)(ii), (2), and (3), MCA, as to whether the children would feel safe and

secure if returned to the custody of their parents.

¶12 For two distinct reasons, however, we need not further address Father’s preserved

assertions of error. First, contrary to Father’s allegation here, the District Court made no

finding as to the truth or accuracy of the disputed out-of-court statements of the children

regarding abuse. It found only that “the children have disclosed inappropriate sexual

touching” and that D.A. “reported inappropriate sexual contact” with Father. Second, even

if the disputed out-of-court statements to which Father objected were excised from the

record as inadmissible hearsay, arguendo, the Court’s ultimate and supporting findings of

fact under § 41-3-609(1)(f), MCA, would still be independently supported by similar

out-of-court statements attributed to the children in prior testimony to which he did not

object, observational assessments of the subject children’s emotions to which the therapists

testified without reference to those statements, and other supporting record evidence. Thus,

Father’s preserved assertions of hearsay-based error were at most harmless error, if any.

See M. R. Evid. 103(a).

¶13 We decide this case by memorandum opinion pursuant to Section I, Paragraph 3(c)

of our Internal Operating Rules. For the foregoing reasons, we hold that neither parent has

demonstrated that the District Court erroneously terminated his or her parental rights under

§ 41-3-609(1)(f), MCA. Affirmed.

/S/ DIRK M. SANDEFUR

10 We concur:

/S/ MIKE McGRATH /S/ BETH BAKER /S/ INGRID GUSTAFSON /S/ JIM RICE