No. 03-370
IN THE SUPREME COURT OF THE STATE OF MONTANA
2003 MT 366
IN THE MATTER OF S.H. and B.H.,
Youths in Need of Care.
APPEAL FROM: District Court of the Eighth Judicial District,
In and For the County of Cascade, Cause No. ADJ 2001-136-Y,
Honorable Thomas M. McKittrick, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Vince van der Hagen, Deputy Public Defender, Great Falls, Montana
For Respondent:
Honorable Mike McGrath, Attorney General; Jennifer Anders,
Assistant Attorney General, Helena, Montana
Brant Light, County Attorney; Mary Ann Ries, Deputy County
Attorney, Great Falls, Montana
Submitted on Briefs: November 13, 2003
Decided: December 19, 2003
Filed:
__________________________________________
Clerk
Justice W. William Leaphart delivered the Opinion of the Court.
¶1 S.B., the mother of S.H. and B.H., appeals from the District Court’s order terminating
her parental rights. We affirm.
¶2 The two issues on appeal are as follows:
¶3 1. Whether the District Court erred when it found that the condition rendering
S.B. unfit was unlikely to change within a reasonable time?
¶4 2. Whether the District Court erred when it allowed the guardian ad litem to
present hearsay evidence?
Factual and Procedural Background
¶5 S.B. is the natural mother of S.H. and B.H. The natural father of the children is
deceased. The State of Montana Department of Public Health and Human Services
(DPHHS) became involved with the family in Cascade County because of allegations that
the stepfather was sexually abusing the children. S.H. and B.H. were removed from the
home and have been in foster care since June 13, 2001. The District Court adjudicated the
children youths in need of care on September 25, 2001.
¶6 In April of 2003, the District Court held a hearing regarding the State of Montana’s
petition for termination of parental rights. After the hearing, the court found the following
facts. DPHHS developed a treatment plan for S.B. that included obtaining a chemical
dependency evaluation, submitting to random urinalysis drug-testing, attending weekly
Alcoholics Anonymous/Narcotics Anonymous (AA/NA) meetings, providing documentation
of attendance at these meetings, receiving individual counseling, seeing a psychiatrist and
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taking prescribed medications, and maintaining consistent and frequent contact with S.H. and
B.H. On December 31, 2001, the District Court approved the treatment plan and ordered
S.B. to complete it. DPHHS reviewed the requirements of the treatment plan with S.B. on
several occasions.
¶7 S.B. did not successfully complete her treatment plan. S.B. completed a chemical
dependency evaluation but did not consistently submit to random drug testing. She did not
provide verification of attendance at AA/NA meetings. She failed to attend individual
counseling or keep psychiatrist appointments or take prescribed medication. S.B. also failed
to maintain frequent and consistent contact with S.H. and B.H. Based on these factors, the
District Court found that S.B. made minimal efforts to comply with and did not successfully
complete her treatment plan. The court went on to conclude that, due to S.B.’s history of
noncompliance and her failed treatment plan, the conduct or condition rendering her unfit
was unlikely to change within a reasonable time. The court concluded that despite DPHHS’s
reasonable efforts to reunite the family, the evidence demonstrated that the continuation of
the parent-child legal relationship would likely result in continued abuse and neglect. The
court determined that the interests of the children, considering their physical, mental, and
emotional needs, would be best served by terminating S.B.’s parental rights. The court
entered an order terminating her parental rights. S.B. appeals from the District Court’s order.
Discussion
¶8 Issue 1: Whether the District Court erred when it found that the condition rendering
S.B. unfit was unlikely to change within a reasonable time?
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¶9 We review a district court’s decision to terminate parental rights to determine whether
the court abused its discretion. In re J.W., 2001 MT 86, ¶ 7, 305 Mont. 149, ¶ 7, 23 P.3d
916, ¶ 7. We review the decision to “determine whether the district court’s findings of fact
supporting termination are clearly erroneous and whether the district court’s conclusions of
law are correct.” In re A.T., 2003 MT 154, ¶ 9, 316 Mont. 255, ¶ 9, 70 P.3d 1247, ¶ 9. “A
finding of fact is clearly erroneous if it is not supported by substantial evidence, if the court
misapprehended the effect of the evidence or if, upon reviewing the record, this Court is left
with the definite and firm conviction that the district court made a mistake.” In re J.W., ¶
7.
¶10 “It is well-established that in reviewing a district court’s findings, . . . we do not
consider whether the evidence could support a different finding; nor do we substitute our
judgment for that of the fact-finder regarding the weight given to the evidence.” In re D.V.,
2003 MT 160, ¶ 21, 316 Mont. 282, ¶ 21, 70 P.3d 1253, ¶ 21 (citation and internal
quotations omitted). “[I]t is the trial court’s responsibility to weigh the evidence presented
and ascertain the witnesses’ corresponding credibility.” In re K.S., 2003 MT 212, ¶ 20, 317
Mont. 88, ¶ 20, 75 P.3d 325, ¶ 20.
¶11 A court does not make the decision to terminate parental rights lightly. In re D.V.,
¶ 24. “The party seeking to terminate an individual’s parental rights has the burden of
proving by clear and convincing evidence that the statutory criteria for termination have been
met.” In re A.T., ¶ 10 (citation omitted). “[A] natural parent’s right to care and custody of
a child is a fundamental liberty interest which must be protected by fundamentally fair
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procedures.” In re A.T., ¶ 10. “[A] district court must make specific factual findings in
accordance with the requirements set forth in § 41-3-609, MCA.” In re J.W., ¶ 7. A
person’s parental rights to a child may be terminated by a district court, pursuant to § 41-3-
609(1)(f), MCA, if the court “[1] finds that the child has been adjudicated a youth in need
of care, [2] an appropriate court-approved treatment plan has not been complied with or has
been unsuccessful, and [3] the conduct or condition rendering the parent unfit is unlikely to
change within a reasonable period of time.” In re J.W., ¶ 10.
¶12 Complete compliance with a treatment plan is required. In re D.V., ¶ 25. Substantial
or partial compliance is insufficient to prove that a person is prepared to be a fit or
responsible parent. In re D.V., ¶ 25. In determining whether a parent’s conduct or condition
is likely to be cured in a reasonable period of time or is likely to continue for an extended
time, a court considers history of emotional and mental illness, history of violent behavior,
chemical or alcohol dependency, and imprisonment. Section 41-3-609(2), MCA.
¶13 “[T]he district court is bound to give primary consideration to the physical, mental,
and emotional conditions and needs of the children. Consequently, the best interests of the
children are of paramount concern in a parental rights termination proceeding and take
precedence over the parental rights.” In re J.W., ¶ 8 (internal citations and quotations
omitted).
¶14 In this case, the court considered S.B.’s history of chemical dependency and her
continual failure to successfully comply with the treatment plan. The record reflects that
S.B. made minimal efforts to comply with her treatment plan. She did complete a chemical
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dependency evaluation but she failed to consistently submit to random drug testing. She
failed to submit verification of attendance at AA/NA meetings. She did not attend individual
counseling or keep psychiatrist appointments and take prescribed medication. S.B. failed to
maintain a healthy relationship with S.H. or B.H. by maintaining frequent and consistent
contact. Additionally, due to S.B.’s history of noncompliance and minimal attempts to
complete her treatment plan, the court determined S.B.’s behavior was unlikely to change
within a reasonable time. Section 41-3-609(1)(f), MCA.
¶15 The evidence presented to the District Court supports its conclusion that S.B. failed
to comply with her treatment plan and that the court’s concerns about S.B.’s parental fitness
were unlikely to change in a reasonable period of time. The criteria of § 41-3-609, MCA,
were satisfied.
¶16 Issue 2: Whether the District Court erred when it allowed the guardian ad litem to
present hearsay evidence?
¶17 The District Court determined that the three statutory conditions of § 41-3-609(1)(f),
MCA, had been established and terminated S.B.’s parental rights. On appeal, S.B. does not
challenge the court’s finding that S.H. and B.H. had been adjudicated youths in need of care.
Rather, S.B. contends that the court’s termination of her rights was based in part on the
testimony of the guardian ad litem (GAL) and that this testimony was highly prejudicial,
based on hearsay, violated her constitutional due process rights, and lowered the State’s
burden of proof. S.B. also claims that the statute pursuant to which this testimony was
allowed is unconstitutional. S.B. also claims that the court should have accepted her
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testimony that she had substantially complied with her treatment plan because it was not
refuted by the State.
¶18 We have repeatedly recognized that courts should avoid constitutional issues
whenever possible. Merlin Myers Revocable Trust v. Yellowstone County, 2002 MT 201,
¶ 24, 311 Mont. 194, ¶ 24, 53 P.3d 1268, ¶ 24. “We have held that certain constraints govern
the Court’s power to determine the constitutionality of statutes. Among those constraints is
the principle that we will not rule on the constitutionality of a legislative act if we are able
to decide the case without reaching constitutional considerations.” Merlin Myers Revocable
Trust, ¶ 24 (citation and internal quotations omitted).
¶19 On September 24, 2001, the District Court adjudged B.H. and S.H. youths in need of
care. Therefore, the two remaining statutory criteria to be determined at the termination of
parental rights hearing in April of 2002 were whether an appropriate court-approved
treatment plan had been complied with or had been unsuccessful, and whether the conduct
or condition rendering the parent unfit is unlikely to change within a reasonable period of
time. Section 41-3-609(1)(f), MCA.
¶20 At the hearing the court heard testimony from three social workers, the appointed
GAL, and S.B. herself. The court then entered its order that terminated S.B.’s rights because
the evidence presented satisfied the three statutory requirements for parental rights
termination: (1) the youths had already been adjudicated youths in need of care; (2) S.B. did
not comply with her treatment plan; and (3) the condition or conduct rendering S.B. unfit to
be a parent was unlikely to change within a reasonable time. Section 41-3-609(1)(f), MCA.
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The record does not reflect that the court relied upon the testimony of the GAL in
determining either that S.B. did not complete her treatment plan or that the condition or
conduct rendering her unfit was unlikely to change within a reasonable time. The testimony
of the other two social workers was that S.B. did not comply with the treatment plan
requirements to attend individual counseling, abstain from illegal drugs, submit to random
drug-testing, attend AA/NA regularly and provide verification of this attendance, and
maintain healthy relationships with S.H. and B.H.
¶21 The District Court weighed all the evidence presented and determined that S.B. had
not complied with her treatment plan and that the condition or conduct rendering her unfit
to be a parent was not likely to change within a reasonable amount of time. Weighing the
evidence and ascertaining witness credibility is the district court’s responsibility, In re K.S.,
¶ 20, and we will not substitute our judgment for that of the fact-finder regarding the weight
given to evidence, In re D.V., ¶ 21.
¶22 Clear and convincing evidence was provided that the statutory criteria for termination
of parental rights had been met. In re A.T., ¶ 10. The court acted within its discretion when
it gave more weight to the social workers’ testimony than it gave S.B.’s testimony. In re
K.S., ¶ 20. We have previously upheld a district court’s decision to terminate parental rights
on the basis that a parent was unlikely to change within a reasonable time, despite the
parent’s testimony that she demonstrated progress in ending substance abuse and was making
herself more fit to parent. In re K.S., ¶¶ 20-21.
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¶23 S.B. has failed to provide evidence that an error of law occurred or that a finding of
fact was factually unsupported. In re A.T., ¶ 9; In re D.V., ¶ 24. Accordingly, we conclude
that the District Court did not abuse its discretion in determining that the best interests of the
children were served by terminating S.B.’s parental rights. In re J.W., ¶ 7.
¶24 We will not reach the alleged unconstitutionality of the statute that allows a GAL to
provide hearsay testimony because the record reflects that the District Court did not rely on
this testimony in reaching its decision. Merlin Myers Revocable Trust, ¶ 24. The District
Court did not abuse its discretion. In re J.W., ¶ 7.
¶25 Affirmed.
/S/ W. WILLIAM LEAPHART
We concur:
/S/ KARLA M. GRAY
/S/ PATRICIA COTTER
/S/ JAMES C. NELSON
/S/ JIM REGNIER
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