No. 03-649
IN THE SUPREME COURT OF THE STATE OF MONTANA
2004 MT 202
IN THE MATTER OF J.B.K. and J.T.K.,
Youths in Need of Care.
APPEAL FROM: District Court of the Twenty-Second Judicial District,
In and For the County of Carbon Cause No. DN-02-01
Honorable Blair Jones, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Raymond G. Kuntz, Attorney at Law, Red Lodge, Montana
(for Mother, H.K.)
For Respondent:
Hon. Mike McGrath, Attorney General; Jim Wheelis,
Assistant Attorney General, Helena, Montana
Judy A. Williams, Assistant Attorney General, Billings, Montana
Submitted on Briefs: April 13, 2004
Decided: August 3, 2004
Filed:
__________________________________________
Clerk
Chief Justice Karla M. Gray delivered the Opinion of the Court.
¶1 H.K. appeals from the order entered by the Twenty-Second Judicial District Court,
Carbon County, terminating her parental rights to J.B.K. and J.T.K. We affirm.
¶2 We address the following restated issues:
¶3 1. Does the District Court’s order meet the requirements of § 41-3-609, MCA, for
terminating parental rights?
¶4 2. In light of H.K.’s mental disability, does the failure to afford H.K. additional time
to complete her treatment plan and change the condition or conduct rendering her unable to
parent violate the Americans with Disabilities Act?
BACKGROUND
¶5 In December of 2001, H.K. and her infant son J.B.K. moved from Georgia to live with
her aunt in Montana. H.K. was pregnant with J.T.K. at that time. H.K.’s aunt contacted
social worker Georgia Cady from the Montana Department of Public Health and Human
Services (Department) to inquire about public assistance for H.K.
¶6 Cady later received a referral regarding H.K. and, after a home visit by Cady, the
Department petitioned for emergency protective services and temporary investigative
authority regarding J.B.K. in January of 2002. The District Court granted the petition and
appointed an attorney and a guardian ad litem for H.K. and a guardian ad litem for J.B.K.
After J.T.K. was born, the Department removed him from H.K. and amended its petition to
apply to him as well as to J.B.K. The District Court granted the amended petition in March
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and appointed a guardian ad litem for both children. After J.T.K.’s removal, H.K.’s aunt
moved from the residence.
¶7 In May of 2002, the Department petitioned the District Court to adjudicate J.B.K. and
J.T.K. as youths in need of care and to award the Department temporary legal custody for
six months. After a hearing in July, the District Court granted the Department’s petition in
August of 2002.
¶8 The Department also filed a treatment plan for H.K., which the District Court
approved in July of 2002 after receiving no objection from H.K.’s attorney. The treatment
plan spanned the period from July 15, 2002 to December 15, 2002. It listed a number of
tasks, including successful completion of parenting courses.
¶9 In January of 2003, approximately one month after the treatment plan expired, the
Department petitioned to terminate H.K.’s parental rights, as well as the parental rights of
J.B.K.’s father and J.T.K.’s putative father. The District Court held a hearing on April 4,
2003.
¶10 The Department presented testimony from–and H.K. or her guardian ad litem cross-
examined–six witnesses. Dr. Ned Tranel, a clinical psychologist, testified about H.K.’s
mental disability and opined that her inability to meet a “minimum standard of parenting”
would not change. Murnell Fargo, an employee of the Family Support Network who
monitored H.K.’s weekly supervised visits with her children for over a year, testified she had
observed no consistent long-term improvement in H.K.’s ability to perceive and respond to
the children’s needs without prompting. Dena Burt, program director for the Family Tree
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Center, testified that H.K. had difficulty transferring lessons from parenting classes to
different contexts, despite receiving one-on-one instruction based on a class designed for
parents with special needs before repeating an infant nurturing class. Toni Jackson, a
property manager for H.K.’s apartment building and a former Human Resource Development
Council intensive housing case manager, testified that H.K.’s apartment was filthy when she
visited it. Social worker Cady and Child Protective Services supervisor Roxanne Roller
testified that H.K. had not successfully completed her treatment plan, despite receiving all
services available from the Department.
¶11 H.K. testified on her own behalf that she was aware of her disability and its effects
on her child care abilities. She asserted she had been trying her hardest to comply with the
treatment plan and “working as best as [she] could,” but she “would put more effort into it
so [she] could get it done” if she had more time. She also felt she could be successful.
When asked if she could take care of the children, H.K. replied that she “would try to be the
best parent for them,” but acknowledged the difference between trying to parent and being
able to do so.
¶12 After the hearing, the District Court entered its findings of fact, conclusions of law
and order, terminating the parental rights of H.K., J.B.K.’s father, and J.T.K.’s putative
father. H.K. appeals. Additional facts necessary to our resolution of the issues are included
below.
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STANDARD OF REVIEW
¶13 In reviewing a district court’s termination of parental rights, we determine whether
the statutorily required findings of fact are clearly erroneous, whether the conclusions of law
are correct and whether the court abused its discretion in ordering termination. In re J.V.,
2003 MT 68, ¶ 7, 314 Mont. 487, ¶ 7, 67 P.3d 242, ¶ 7 (citations omitted).
DISCUSSION
¶14 1. Did the District Court’s order meet the requirements of § 41-3-609, MCA, for
terminating parental rights?
¶15 The District Court terminated H.K.’s parental rights pursuant to § 41-3-609(1)(f),
MCA, after finding the children had been adjudicated as youths in need of care, H.K. had
not successfully completed her treatment plan, and the condition or conduct rendering her
unable to parent was unlikely to change within a reasonable time. H.K. asserts error.
¶16 H.K. first argues the District Court’s order violates § 41-3-609(4)(b), MCA, which
provides that “[a] treatment plan is not required under this part upon a finding by the court
following hearing if . . . two medical doctors or clinical psychologists submit testimony that
the parent cannot assume the role of parent.” H.K. contends that, because the Department
did not present the testimony of two medical doctors or clinical psychologists, it “cannot
argue that H.K. is unable to assume the role of parent.” Section 41-3-609(4)(b), MCA, has
no application here, however. It addresses a circumstance in which no treatment plan is
required. As set forth above, the District Court terminated H.K.’s parental rights under a
different portion of § 41-3-609, MCA.
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¶17 H.K. also argues that the District Court’s finding that her conduct or condition was
unlikely to change within a reasonable time does not satisfy § 41-3-609(1)(f), MCA, because
she “was not given enough time to successfully complete the treatment plan . . . .” Section
41-3-609(1)(f), MCA, does not provide that a parent must be given as much time as it takes
for successful completion of a plan. Further, § 41-3-609(2)(a), MCA, requires a court to
consider, among other things, a parent’s mental deficiency in determining whether the
parent’s conduct or condition is likely to change within a reasonable time. When construing
a statute, we ascertain and declare its terms or substance and do not insert what has been
omitted or omit what has been inserted. Section 1-2-101, MCA; In re Adoption of Snyder,
2000 MT 61, ¶ 16, 299 Mont. 40, ¶ 16, 996 P.2d 875, ¶ 16. The District Court properly
considered § 41-3-609(2)(a), MCA, here.
¶18 Moreover, the determination that H.K.’s conduct or condition was unlikely to change
within a reasonable time is a finding of fact pursuant to § 41-3-609(1)(f)(ii), MCA. As stated
above, we review a finding to determine whether it is clearly erroneous. A finding 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 a mistake has been made. In re J.C., 2003 MT 369, ¶ 7, 319 Mont. 112,
¶ 7, 82 P.3d 900, ¶ 7 (citation omitted). Here, H.K. does not argue the District Court’s
finding was clearly erroneous. Furthermore, our review of the record reveals ample
testimony from several witnesses that H.K.’s conduct had not improved in the year since the
Department became involved and her condition was unlikely to change. We conclude the
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District Court’s finding that H.K.’s conduct or condition was unlikely to change within a
reasonable time is supported by substantial credible evidence and is not otherwise clearly
erroneous.
¶19 Finally, H.K. contends the District Court erred in determining her conduct or
condition was not likely to change within a “reasonable time,” as set forth in § 41-3-
609(1)(f)(ii), MCA, because the Americans with Disabilities Act (ADA) requires an
extension of the “reasonable time” to account for her disability. We observe that H.K. cites
to no authority pursuant to which the ADA has been engrafted onto or into § 41-3-
609(1)(f)(ii), MCA, as required by Rule 23(a)(4), M.R.App.P. We do not address arguments
unsupported by authorities. See, e.g., In re A.R., 2004 MT 22, ¶ 10, 319 Mont. 340, ¶ 10,
83 P.3d 1287, ¶ 10. Therefore, we decline to address H.K.’s argument here. In any event,
H.K.’s primary contention in this case relates to the ADA, and we address it below.
¶20 We hold that H.K. has failed to establish that the District Court’s order does not meet
the requirements of § 41-3-609, MCA.
¶21 2. Does the failure to afford H.K. additional time to complete her treatment plan and
change the condition or conduct rendering her unable to parent violate the ADA?
¶22 H.K. argues that, because she is developmentally disabled, the ADA entitles her to
more time to successfully complete her treatment plan and to change the conduct or
condition currently rendering her unfit to parent. She asserts the Department failed to
provide a reasonable modification for her disability and discriminated against her by failing
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to afford her additional time to complete her treatment plan. The District Court did not
address H.K.’s ADA-related arguments.
¶23 The pertinent portion of the ADA provides that “no qualified individual with a
disability shall, by reason of such disability, be excluded from participation in or be denied
the benefits of the services, programs, or activities of a public entity, or be subjected to
discrimination by any such entity.” 42 U.S.C. § 12132. Pursuant to a regulation promulgated
under the ADA, a public entity must make reasonable modifications in its policies, practices,
or procedures if necessary to avoid discrimination on the basis of a disability, unless the
modifications would fundamentally alter the nature of the service, program, or activity. 28
C.F.R. § 35.130(b)(7).
¶24 We have not addressed whether the ADA applies to parental termination proceedings
in Montana. See In re A.M., 2001 MT 60, ¶ 66, 304 Mont. 379, ¶ 66, 22 P.3d 185, ¶ 66.
Many courts addressing the issue have held the ADA does not directly apply to termination
proceedings, either because the ADA creates a separate right of action or because termination
proceedings are not among the public “services, programs, or activities” described in 42
U.S.C. § 12132. See, e.g., In re Doe (Haw. 2002), 60 P.3d 285, 291; In re B.S. (Vt. 1997),
693 A.2d 716, 720. A few courts have applied the ADA to a state agency’s provision of
services prior to a termination proceeding, but have noted a parent must raise such a claim
in a timely manner so that reasonable accommodations may be made. See, e.g., In re
Adoption of Gregory (Mass. 2001), 747 N.E.2d 120, 126-27. One court suggested the ADA
may be raised as an affirmative defense in a termination proceeding, but held the mother
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waived the defense by failing to plead it. In re C.M. (Tex. App. 1999), 996 S.W.2d 269,
270.
¶25 Other courts have declined to directly address whether the ADA applies to termination
proceedings. For example, the Washington Court of Appeals rejected a claim by
developmentally disabled parents that the state agency’s failure to provide specialized
parenting classes violated the ADA. That court determined the agency had provided all
reasonably available services and the services were modified to accommodate the parents’
specific disabilities. It concluded that the agency’s efforts satisfied state statutory
requirements and resulted in “reasonable accommodation” of the parents’ disabilities. In
re Welfare of A.J.R. (Wash. App. 1995), 896 P.2d 1298, 1302. In addressing a mother’s
assertion of an ADA violation based on a failure to offer her services specifically tailored to
her cognitive skills, the Maine Supreme Court merely determined that the record belied the
mother’s claim of lack of services tailored to her needs and established the agency had
“offered a number of services that took [the mother’s] pace and cognitive skills into
account.” In re Angel B. (Me. 1995), 659 A.2d 277, 279. Like the Washington and Maine
courts, we need not directly address whether the ADA applies to termination proceedings in
the present case.
¶26 Noting H.K.’s intellectual limitations, the District Court determined clear and
convincing evidence demonstrated that H.K.’s “conduct and/or condition” was unlikely to
change within a reasonable time and that, “even if given additional time, it is extremely
unlikely that [H.K.] will be able to successfully complete the original treatment plan and the
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subsequent treatment plans that would be necessary before she could adequately parent
J.T.K. and J.B.K.” The District Court made extensive findings based on testimony at the
hearing. Among other things, it relied on Tranel’s opinion that H.K. could not change her
level of intellectual functioning, Fargo’s concern about H.K.’s failure to demonstrate a
consistent long-term improvement in recognizing her children’s needs without prompting,
and H.K.’s inability to identify a specific thing she would do given more time, other than try
to obtain her GED.
¶27 On appeal, H.K. emphasizes Roller’s testimony that, when the treatment plan was
designed, she foresaw H.K. may have needed more time to complete it. Roller also testified,
however, that she believed at the time of the hearing that an extension of time would not
allow H.K. to successfully complete the treatment plan or adequately care for her children.
The court’s findings regarding Tranel’s and Fargo’s testimony are consistent with this belief.
¶28 H.K. does not dispute that the Department offered her every available service, and the
record reflects that the Department attempted to accommodate H.K.’s disability by allowing
her to repeat the infant nurturing class and providing her individual classes based on a special
needs program. Moreover, as discussed above, the District Court determined clear and
convincing evidence established that H.K. likely could not successfully complete treatment
plans or become capable of parenting, even if given additional time. We conclude the
Department took H.K.’s disability into account in administering her treatment plan and in
providing services which took into account her special needs.
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¶29 We note several witnesses testified that H.K. loves her children very much and is
willing to parent them. Unfortunately, love and willingness are sometimes not sufficient to
establish fitness to parent. See, e.g., In re S.C., 2003 MT 93, ¶ 24, 315 Mont. 188, ¶ 24, 68
P.3d 685, ¶ 24; In re Custody and Parental Rights of P.M., 1998 MT 264, ¶ 24, 291 Mont.
297, ¶ 24, 967 P.2d 792, ¶ 24.
¶30 We hold the District Court took H.K.’s disability into account in determining her
conduct and condition were unlikely to change within a reasonable time and did not abuse
its discretion in terminating her parental rights.
¶31 Affirmed.
/S/ KARLA M. GRAY
We concur:
/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
/S/ PATRICIA O. COTTER
/S/ JOHN WARNER
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