05/18/2021
DA 20-0520
Case Number: DA 20-0520
IN THE SUPREME COURT OF THE STATE OF MONTANA
2021 MT 126N
IN THE MATTER OF:
G.H.,
A Youth in Need of Care.
APPEAL FROM: District Court of the Second Judicial District,
In and For the County of Butte/Silver Bow, Cause No. DN 19-20-RW
Honorable Robert J. Whelan, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Meri K. Althauser, Forward Legal, PLLC, Missoula, Montana
(for Mother)
Taryn Gray, Driscoll Hathaway Law Group, Missoula, Montana
(for Father)
For Appellee:
Austin Knudsen, Montana Attorney General, Katie F. Schulz, Assistant
Attorney General, Helena, Montana
Mark Vucurovich, Henningsen, Vucurovich & Richardson, P.C., Butte,
Montana
Eileen Joyce, Butte-Silver Bow County Attorney, Butte, Montana
Submitted on Briefs: April 21, 2021
Decided: May 18, 2021
Filed:
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__________________________________________
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 D.S. (Mother/Parent) and C.H. (Father/Parent) appeal from the September 24, 2020
Findings of Fact, Conclusions of Law, and Order Continuing Emergency Protective
Services, Determining Preservation/Reunification Services are not Required and Granting
Permanent Legal Custody issued by the Second Judicial District Court, Butte-Silver Bow
County, terminating both parents’ parental rights to G.H. (Child). We affirm.
¶3 Parents have thirteen children, none of which are in their care. This case involves
their twelfth child.1 Prior to the Montana Department of Health and Human Services, Child
and Family Services Division (Department) intervening in this case, Parents had a history
with the Department, both in Montana and Utah. In 2013, the Utah Department of Child
and Family Services sought and obtained involuntary termination of Parents’ parental
rights to eight other children under circumstances similar to those present in this case—
concerns of ongoing substance use resulting in Parents’ inability to appropriately provide
1
A thirteenth child, A.H., was born during the pendency of this case, prompting a separate legal
intervention by the Department. Parents have secreted this child from the Department and the
Department has been unable to determine the whereabouts of this child. That cause is not before
us on this appeal.
2
for the care and needs of their Child and housing instability. In 2015, the Department
intervened in relation to two additional children, obtained adjudication of the children as
youths in need of care (YINC) and was granted temporary legal custody (TLC). As Parents
had not made progress on completing court-ordered treatment plans, the Department
sought extension of TLC. At a hearing on the extension, Parents relinquished their parental
rights to these two children and they were thereafter placed by the Department for adoption.
¶4 On March 29, 2019, based on the Parents’ prior histories with the Department, both
in Utah and Montana, the Department intervened and placed newborn Child in protective
custody. The parents stipulated to emergency protective services, adjudication of Child as
a YINC, and TLC to the Department. The District Court accepted Parents’ stipulation and
adjudicated Child a YINC on May 1, 2019. On June 7, 2019, the Department petitioned to
terminate Parents’ parental rights asserting termination to be appropriate pursuant to §§ 41-
3-609(1)(d) and 41-3-423(2)(e), MCA, by having had their parental rights to Child’s
siblings terminated involuntarily under circumstances related to their ability to adequately
care for Child. The Department also requested the court order it need not provide further
reunification services pursuant to § 41-3-423(2)(e), MCA. Following the termination
hearing, the District Court terminated Mother and Father’s parental rights to Child—
finding termination warranted as the parents had previously had their parental rights to
eight of Child’s siblings involuntarily terminated under similar circumstances related to
their ability to adequately care for Child. The court also ordered the Department need not
provide further reunification services. Mother and Father appeal.
3
¶5 Mother asserts the removal of Child was improper as no present danger was
identified and the Department failed to make reasonable efforts to prevent removal or
reunify her with Child. Mother also asserts the District Court violated her rights when it
terminated her parental rights without sufficient evidence. Father similarly asserts the
Department failed to produce by clear and convincing evidence relevant criteria pursuant
to §§ 41-3-609(1)(d) and 41-3-423(2)(a)-(e), MCA, and that the District Court violated his
constitutional right to parent when it terminated his parental rights after not adhering to
statutory requirements that ensure a fundamentally fair process—namely, the Department
ceased providing reasonable efforts without a judicial determination to do so.
¶6 We review a district 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. The State must prove by clear and convincing evidence
the statutory criteria for termination. In re R.L., 2019 MT 267, ¶ 12, 397 Mont. 507, 452
P.3d 890 (citing In re K.L., 2014 MT 28, ¶ 14, 373 Mont. 421, 318 P.3d 691). “In the
context of parental rights cases, clear and convincing evidence is the requirement that a
preponderance of the evidence be definite, clear, and convincing.” In re R.L., ¶ 12 (citing
In re K.L., ¶ 14). This Court reviews a district court’s findings of fact for clear error and
its conclusions of law for correctness. In re M.V.R., 2016 MT 309, ¶ 23, 385 Mont. 448,
384 P.3d 1058.
4
¶7 Mother, for the first time on appeal, asserts Child should not have been removed
and intervention by the Department was not warranted. Neither Parent objected to the
Department’s intervention and both Parents stipulated to emergency protective services,
adjudication of Child as a YINC, and TLC to the Department. Since neither Parent
preserved this claim, Mother now seeks plain error review.2 Although the asserted error
implicates a fundamental right—the right to parent one’s child—Mother has failed to
establish plain error review is warranted. At the outset of this matter, Parents were each
appointed separate legal counsel and had full opportunity to contest intervention,
adjudication, and custody. Instead, they stipulated to the relief sought by the Department.
Through Parents’ failure to contest or object to intervention, adjudication, and custody
throughout the case, Parents have waived their right to appeal the appropriateness of
intervention, adjudication, or custody. The District Court’s acceptance of the Parents’
stipulation did not constitute a manifest miscarriage of justice, leave unsettled the question
of fundamental fairness of the proceedings, or compromise the integrity of the proceedings.
¶8 Parents next argue there was insufficient evidence to support termination of their
parental rights pursuant to § 41-3-423(2)(e), MCA, as the Department did not enter
certified copies of the Utah court orders terminating their parental rights to eight other
children.
2
Plain error review is invoked sparingly, on a case-by-case basis, and applied only if the error is
plain and we are firmly convinced that failing to review would result in a manifest miscarriage of
justice, leave unsettled the question of fundamental fairness of the proceedings, or compromise the
integrity of the judicial process. In re B.J.J,, 2019 MT 129, ¶ 27, 396 Mont. 108, 443 P.3d 488.
5
¶9 Pursuant to § 41-3-609(1)(d), MCA, a “court may order a termination of the
parent-child relationship upon a finding established by clear and convincing evidence” the
parents have “subjected a child to any of the circumstances listed in 41-3-423(2)(a) through
(2)(e).” The circumstance provided for in § 41-3-423(2)(e), MCA, applies when a parent
has:
had parental rights to the child’s sibling or other child of the parent
involuntarily terminated and the circumstances related to the termination of
parental rights are relevant to the parent’s ability to adequately care for the
child at issue.
To establish the circumstances of § 41-3-423(2)(e), MCA, the State is not required,
although it may have been preferable, to enter certified copies of court orders terminating
Parents’ rights to other children, but rather must establish such by clear and convincing
evidence. See In re R.L., ¶ 12. Here, the record contains substantial, unrebutted evidence,
including Father’s admission3 of such, that the circumstances of § 41-3-423(2)(e), MCA—
involuntary termination of parental rights to eight of Child’s siblings occurred in Utah in
2013 under similar circumstances to those impairing Parents’ ability to care for Child—
were met. The evidence is not only clear and convincing but overwhelming. Prior to
appeal, throughout all of the proceedings, Parents did not seriously contest that the prior
terminations occurred and their appeal in this regard is disingenuous at best.
3
While Father testified their rights to eight other children were terminated in Utah, he asserted he
did not recall if the terminations were involuntary. Such lack of recall does not negate Father’s
admission in that the involuntary terminations were asserted and relied upon by the Department
from the outset of this case. Parents did not object to or rebut Child Protection Specialist (CPS)
Burk’s initial affidavit which included averments that Parents’ parental rights to eight of Child’s
siblings had previously been involuntarily terminated in Utah.
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¶10 Finally, Parents assert the Department deprived them of fundamentally fair
proceedings by failing to provide reasonable efforts for reunification without first obtaining
a court order permitting such. From our review of the record, we are not persuaded by this
argument. At the outset of the case, CPS Burk arranged visitation between Child and
Parents. While it could be argued that the frequency of visitation was not ideal to promote
bonding with a newborn, the Parents did not even attend the visitation arranged,
no-showing for several visits and arriving inappropriately late to others. Despite at times
exhibiting behaviors consistent with drug or alcohol use—such as nodding off while
holding Child and smelling of alcohol—Parents contended they no longer had drug or
alcohol issues and refused Department requests for UA testing without a court order
requiring such. Within approximately a month of adjudication, the Department sought to
be relieved of providing preservation/reunification services and sought termination of
Parents’ parental rights. While the Department sought this, it continued to provide
engagement services, which constituted reasonable reunification efforts under the
circumstances created by the Parents.
¶11 Jennifer Hoerauf, CPS Regional Administrator, took over the case upon the
Department’s filing for termination and to be relieved of providing further reunification
services. She testified to the Department’s extensive efforts to engage Parents while
awaiting a ruling on the Department’s request to not provide reasonable efforts. Despite
Parents’ numerous no-shows, the Department continued to offer family visits with gas
vouchers to cover transportation costs. Following missed visits, CPS Hoerauf attempted
7
to reach Parents via telephone—though their contact telephone was frequently
disconnected—and sent them letters. She even tried to connect with them through
Facebook. Only after Parents missed several visits was the determination made to move
Child from close proximity to Parents to a foster placement in the home of her siblings.
This determination was made in an attempt to preserve Child’s family bonds with siblings
as Parents were not productively engaging with Child or the Department.
¶12 Further, CPS Hoerauf personally met with Parents to explain the Department’s basis
for seeking not to provide services and termination of parental rights. She discussed in
detail the Department’s concerns—history of drug use, housing instability, and prior
established inability to care adequately for their children resulting in multiple
terminations—and what actions Parents needed to demonstrate they had changed their
conduct and circumstances which impaired their ability to provide appropriate care for their
children. Despite being offered the opportunity to demonstrate they had addressed the
concern for ongoing drug use, Parents refused to engage with Department-requested UA
testing.4 After discussing with CPS Hoerauf what would be needed for them to demonstrate
they had changed their lives and addressed the conduct and conditions which resulted in
the prior terminations of their parental rights, the Parents did not request additional services
or assistance of the Department. Quite the opposite occurred. The record demonstrates
4
The drug testing of record did nothing to allay the Department’s concerns in this regard—showing
Mother testing positive for methamphetamine upon delivery of a subsequent child in February
2020, Father admitting in February 2020 he would be positive for methamphetamine, and Mother
testing positive for methamphetamine on August 16, 2019.
8
Parents failed to acknowledge any parenting deficits or need to engage in any services and
refused to do so without a court order. The record also demonstrates a significant lack of
engagement in the most basic aspects of successful parenting. Parents consistently missed
scheduled visitations and failed to maintain contact with the Department. Since their last
visit in mid-July of 2019, Parents did not contact the Department or make any further
inquiry about Child’s welfare despite CPS Hoerauf’s efforts to reach them via letters of
August 1, 2019, September 4, 2019, and September 13, 2019, and email communication to
their counsel advising of Parents’ lack of participation. Parents did not request the court
order a treatment plan on an interim basis pending ruling on the Department’s request to
not provide further reunification services or request assistance or services directly from the
Department. Instead, the Parents disappeared, quitting all engagement, requiring the
Department to seek continuance of the termination hearing in order to serve parents by
publication.
¶13 “What constitutes reasonable efforts is not static or determined in a vacuum, but
rather is dependent on the factual circumstances of each case—the totality of the
circumstances—including a parent’s apathy and/or disregard for the Department’s attempts
to engage and assist the parent.” In re R.L., ¶ 22. Although the Department was seeking
an order from the court permitting it to discontinue reunification services and did not offer
Parents formal treatment plans, the Department continuously offered Parents services and
engagement which they actively resisted. Parents’ apathy and/or active resistance to
engagement with the Department, does not constitute failure on the Department’s part to
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provide reasonable efforts. Under the totality of circumstances in this case, the Department
provided reasonable efforts to avoid removal and to reunify Parents with Child until
receiving the court’s order discontinuing its requirement to do so. Had Parents participated
in good faith with the Department’s engagement services, their arguments now would
perhaps be more availing.
¶14 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.
¶15 Affirmed.
/S/ INGRID GUSTAFSON
We concur:
/S/ MIKE McGRATH
/S/ LAURIE McKINNON
/S/ JAMES JEREMIAH SHEA
/S/ DIRK M. SANDEFUR
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