10/10/2023
DA 23-0022 Case Number: DA 23-0022
IN THE SUPREME COURT OF THE STATE OF MONTANA
2023 MT 192N
IN THE MATTER OF:
M.Z.L.,
A Youth in Need of Care.
APPEAL FROM: District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. CDN-2020-081 Honorable Kathy Seeley, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Shannon Hathaway, Hathaway Law Group, Missoula, Montana
For Appellee:
Austin Knudsen, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana
Kevin Downs, Lewis and Clark County Attorney, Helena, Montana
Jim Reintsma, Assistant Attorney General, Child Protection Unit, Helena, Montana
Submitted on Briefs: August 30, 2023
Decided: October 10, 2023
Filed: ir,-6t----if __________________________________________ Clerk Chief Justice Mike McGrath 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 Mother appeals from a First Judicial District Court order granting the Department
of Public Health and Human Services’ (Department) petition for termination of parental
rights (termination) of her child, M.Z.L. We affirm.
¶3 M.Z.L. was removed from Mother’s care on June 17, 2020, after her two-month-old
sibling was taken to the emergency room with a non-accidental broken arm. Following a
hearing where Mother did not appear, the District Court adjudicated M.Z.L. as a youth in
need of care (YINC) and granted temporary legal custody (TLC) to the Department on
August 11, 2020. Mother agreed to a treatment plan on August 14, 2020. The court
extended TLC three separate times to give Mother more time to complete her treatment
plan—totaling more than half of M.Z.L.’s life. The Department eventually sought
termination after Mother’s continued failure to meet the requirements of her treatment plan.
The District Court held a hearing on November 17, 2022; Mother contested the termination
but offered to stipulate to a guardianship with M.Z.L.’s foster parents. The court entered
the termination order on December 13, 2022. Mother appeals.
2 ¶4 We review a district court’s decision to terminate parental rights for abuse of
discretion, which considers “whether the trial court acted arbitrarily, without employment
of conscientious judgment, or exceeded the bounds of reason resulting in substantial
injustice.” In re K.J.B., 2007 MT 216, ¶ 22, 339 Mont. 28, 168 P.3d 629. We will not
disturb a district court’s decision unless there is a mistake of law or a clearly erroneous
finding of fact—we are not in the position to evaluate the evidence for a different outcome
but rather to determine whether the district court abused its discretion. In re A.B., 2020 MT
64, ¶¶ 23, 40, 399 Mont. 219, 460 P.3d 405. “A finding of fact is clearly erroneous if it is
not supported by substantial evidence, if the district court misapprehended the effect of the
evidence, or if this Court is left with the definite and firm conviction that a mistake has
been committed.” In re S.S., 2022 MT 75, ¶ 12, 408 Mont. 238, 507 P.3d 1161.
¶5 On appeal, Mother offers two arguments: (1) the record supported that guardianship
was in M.Z.L.’s best interests, and (2) the record did not support that termination was in
M.Z.L.’s best interests.
¶6 First, Mother contends that the District Court erred by granting termination because
a guardianship was in M.Z.L.’s best interests. Even if the record supports that a
guardianship could be appropriate, we do not re-weigh the evidence but instead determine
whether the district court abused its discretion in terminating Mother’s parental rights.
In re A.B., ¶ 40. Further, there is no requirement that a district court consider other options
if the statutory requirements for termination are met. In re A.B., ¶ 38. Therefore, as long
as the statutory requirements for termination were met, the District Court did not abuse its
discretion in refusing to consider a guardianship as opposed to termination. 3 ¶7 A court may order termination if clear and convincing evidence establishes that the
child was (1) adjudicated a YINC, (2) an approved treatment plan was not complied with,
and (3) the conduct or condition rendering the parent unfit is unlikely to change within a
reasonable time. Section 41-3-609(1)(f), MCA. Of paramount concern are the child’s best
interests, which take precedence over parental rights. In re K.L., 2014 MT 28, ¶ 15, 373
Mont. 421, 318 P.3d 691. A presumption arises that termination is in the child’s best
interests when a child has been in foster care for at least 15 of the most recent 22 months.
Section 41-3-604(1), MCA; see In re A.B., ¶¶ 32-33, 40. Further, on appeal we review the
evidence in the light most favorable to the prevailing party to determine whether substantial
credible evidence supports the district court’s findings. In re J.B., 2016 MT 68, ¶ 10, 383
Mont. 48, 368 P.3d 715.
¶8 Here, Mother does not contest that M.Z.L. was adjudicated a YINC, that she
completed her treatment plan in the 28 months afforded her, or that she is likely to change
within a reasonable time. And Mother does not contest the presumption in favor of
termination based on the extended foster placement. Mother instead argues that
termination was not in M.Z.L.’s best interests because M.Z.L. and Mother had a strong
bond that guardianship would maintain.
¶9 The District Court found that termination was in M.Z.L.’s best interests, noting it
had given primary consideration to the physical, mental, and emotional needs of M.Z.L.
The court found Mother was unfit to parent due to mental-health issues. These issues—
and Mother’s treatment plan—required her to maintain sobriety from alcohol and drugs to
address the changes necessary to become fit, which she has been unwilling or unable to 4 pursue. The court further found that Mother has been unable to demonstrate her ability to
parent for any sustained period.
¶10 These findings are supported by substantial evidence and are not clearly erroneous.
An addiction counselor testified that when Mother decreased her drug use, her
mental-health progress increased drastically. He also recommended she remain sober to
allow for a better baseline and treatment. The child protection specialist, Justina Clinch
(Clinch), testified that Mother failed most drug tests—on the rare occasion she complied
with mandated testing. Clinch also testified that in the 28 months since the treatment plan
was approved, Mother had not been consistently addressing her childhood trauma or her
drug dependency, which further impaired her ability to meet M.Z.L.’s needs.
¶11 The court also heard testimony that these conditions were unlikely to change within
a reasonable amount of time. Mother had consistently been unwilling to maintain
mental-health treatment and had admitted numerous times to her dependency on drugs and
unwillingness to change that part of her life. During the trial home visit, the record shows
that Mother was unable to demonstrate her willingness to parent long term. The testimony
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10/10/2023
DA 23-0022 Case Number: DA 23-0022
IN THE SUPREME COURT OF THE STATE OF MONTANA
2023 MT 192N
IN THE MATTER OF:
M.Z.L.,
A Youth in Need of Care.
APPEAL FROM: District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. CDN-2020-081 Honorable Kathy Seeley, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Shannon Hathaway, Hathaway Law Group, Missoula, Montana
For Appellee:
Austin Knudsen, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana
Kevin Downs, Lewis and Clark County Attorney, Helena, Montana
Jim Reintsma, Assistant Attorney General, Child Protection Unit, Helena, Montana
Submitted on Briefs: August 30, 2023
Decided: October 10, 2023
Filed: ir,-6t----if __________________________________________ Clerk Chief Justice Mike McGrath 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 Mother appeals from a First Judicial District Court order granting the Department
of Public Health and Human Services’ (Department) petition for termination of parental
rights (termination) of her child, M.Z.L. We affirm.
¶3 M.Z.L. was removed from Mother’s care on June 17, 2020, after her two-month-old
sibling was taken to the emergency room with a non-accidental broken arm. Following a
hearing where Mother did not appear, the District Court adjudicated M.Z.L. as a youth in
need of care (YINC) and granted temporary legal custody (TLC) to the Department on
August 11, 2020. Mother agreed to a treatment plan on August 14, 2020. The court
extended TLC three separate times to give Mother more time to complete her treatment
plan—totaling more than half of M.Z.L.’s life. The Department eventually sought
termination after Mother’s continued failure to meet the requirements of her treatment plan.
The District Court held a hearing on November 17, 2022; Mother contested the termination
but offered to stipulate to a guardianship with M.Z.L.’s foster parents. The court entered
the termination order on December 13, 2022. Mother appeals.
2 ¶4 We review a district court’s decision to terminate parental rights for abuse of
discretion, which considers “whether the trial court acted arbitrarily, without employment
of conscientious judgment, or exceeded the bounds of reason resulting in substantial
injustice.” In re K.J.B., 2007 MT 216, ¶ 22, 339 Mont. 28, 168 P.3d 629. We will not
disturb a district court’s decision unless there is a mistake of law or a clearly erroneous
finding of fact—we are not in the position to evaluate the evidence for a different outcome
but rather to determine whether the district court abused its discretion. In re A.B., 2020 MT
64, ¶¶ 23, 40, 399 Mont. 219, 460 P.3d 405. “A finding of fact is clearly erroneous if it is
not supported by substantial evidence, if the district court misapprehended the effect of the
evidence, or if this Court is left with the definite and firm conviction that a mistake has
been committed.” In re S.S., 2022 MT 75, ¶ 12, 408 Mont. 238, 507 P.3d 1161.
¶5 On appeal, Mother offers two arguments: (1) the record supported that guardianship
was in M.Z.L.’s best interests, and (2) the record did not support that termination was in
M.Z.L.’s best interests.
¶6 First, Mother contends that the District Court erred by granting termination because
a guardianship was in M.Z.L.’s best interests. Even if the record supports that a
guardianship could be appropriate, we do not re-weigh the evidence but instead determine
whether the district court abused its discretion in terminating Mother’s parental rights.
In re A.B., ¶ 40. Further, there is no requirement that a district court consider other options
if the statutory requirements for termination are met. In re A.B., ¶ 38. Therefore, as long
as the statutory requirements for termination were met, the District Court did not abuse its
discretion in refusing to consider a guardianship as opposed to termination. 3 ¶7 A court may order termination if clear and convincing evidence establishes that the
child was (1) adjudicated a YINC, (2) an approved treatment plan was not complied with,
and (3) the conduct or condition rendering the parent unfit is unlikely to change within a
reasonable time. Section 41-3-609(1)(f), MCA. Of paramount concern are the child’s best
interests, which take precedence over parental rights. In re K.L., 2014 MT 28, ¶ 15, 373
Mont. 421, 318 P.3d 691. A presumption arises that termination is in the child’s best
interests when a child has been in foster care for at least 15 of the most recent 22 months.
Section 41-3-604(1), MCA; see In re A.B., ¶¶ 32-33, 40. Further, on appeal we review the
evidence in the light most favorable to the prevailing party to determine whether substantial
credible evidence supports the district court’s findings. In re J.B., 2016 MT 68, ¶ 10, 383
Mont. 48, 368 P.3d 715.
¶8 Here, Mother does not contest that M.Z.L. was adjudicated a YINC, that she
completed her treatment plan in the 28 months afforded her, or that she is likely to change
within a reasonable time. And Mother does not contest the presumption in favor of
termination based on the extended foster placement. Mother instead argues that
termination was not in M.Z.L.’s best interests because M.Z.L. and Mother had a strong
bond that guardianship would maintain.
¶9 The District Court found that termination was in M.Z.L.’s best interests, noting it
had given primary consideration to the physical, mental, and emotional needs of M.Z.L.
The court found Mother was unfit to parent due to mental-health issues. These issues—
and Mother’s treatment plan—required her to maintain sobriety from alcohol and drugs to
address the changes necessary to become fit, which she has been unwilling or unable to 4 pursue. The court further found that Mother has been unable to demonstrate her ability to
parent for any sustained period.
¶10 These findings are supported by substantial evidence and are not clearly erroneous.
An addiction counselor testified that when Mother decreased her drug use, her
mental-health progress increased drastically. He also recommended she remain sober to
allow for a better baseline and treatment. The child protection specialist, Justina Clinch
(Clinch), testified that Mother failed most drug tests—on the rare occasion she complied
with mandated testing. Clinch also testified that in the 28 months since the treatment plan
was approved, Mother had not been consistently addressing her childhood trauma or her
drug dependency, which further impaired her ability to meet M.Z.L.’s needs.
¶11 The court also heard testimony that these conditions were unlikely to change within
a reasonable amount of time. Mother had consistently been unwilling to maintain
mental-health treatment and had admitted numerous times to her dependency on drugs and
unwillingness to change that part of her life. During the trial home visit, the record shows
that Mother was unable to demonstrate her willingness to parent long term. The testimony
showed that for a majority of M.Z.L.’s trial home visit, Mother dropped M.Z.L. off at other
people’s houses to care for her (without Department approval).
¶12 Mother’s aunt testified—and Mother argues before us—that Mother does not want
to parent M.Z.L. full-time, but instead would prefer to remain in her life in a visitation role.
Mother’s witness recognized that although Mother did a great job with M.Z.L. in hour-long
visits once a week, she has repeatedly done a bad job with M.Z.L. when given greater
opportunities. Children need not be forced to wait for their parents to be able to parent. 5 In re A.B., ¶ 38. The District Court’s findings are supported by substantial evidence and
are not clearly erroneous.
¶13 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our
Internal Operating Rules, which provides for memorandum 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.
¶14 Affirmed.
/S/ MIKE McGRATH
We Concur:
/S/ JAMES JEREMIAH SHEA /S/ INGRID GUSTAFSON /S/ DIRK M. SANDEFUR /S/ JIM RICE