October 6 2008
DA 08-0213
IN THE SUPREME COURT OF THE STATE OF MONTANA
2008 MT 335
IN THE MATTER OF:
T.C.,
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 07-10-BN
Honorable Brad Newman, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Jim Wheelis, Chief Appellate Defender; Joslyn Hunt, Assistant Appellate
Defender, Helena, Montana
For Appellee:
Hon. Mike McGrath, Attorney General; Mark W. Mattioli, Assistant
Attorney General, Helena, Montana
Submitted on Briefs: August 27, 2008
Decided: October 6, 2008
Filed:
__________________________________________
Clerk
Justice Brian Morris delivered the Opinion of the Court.
¶1 P.Y. appeals from an order of the Second Judicial District, Silver Bow County,
terminating her parental rights. We affirm.
¶2 We review the following issue on appeal:
¶3 Did the District Court abuse its discretion in terminating the parent-child relationship
between P.Y. and T.C.?
FACTUAL AND PROCEDURAL BACKGROUND
¶4 The Department of Health and Human Services (Department) received a report from
T.C.’s caretaker on December 19, 2006. The caretaker, T.C.’s maternal great aunt, stated
that P.Y. was acting irrationally on the phone and wanted to pick up her four-year-old
daughter T.C. When contacted by social worker Kara Richardson by phone, P.Y. was
irrational, deceptive, and unable to focus during the conversation. T.C. had been out of her
mother’s care for nearly a month.
¶5 Richardson was concerned about T.C.’s safety based on her past experience with P.Y.
Richardson requested that P.Y. take a urinalysis to determine whether P.Y. again was
abusing drugs. P.Y. refused to take the urinalysis or otherwise cooperate with the
Department. She indicated that she was on her way to Spokane, Washington, and was not
going to let Richardson’s inquiries ruin her trip.
¶6 The Department informally placed T.C. with the great aunt. The Department tried
repeatedly to contact P.Y. by letter and by phone. P.Y. failed to respond to the Department
and she did not resume care of T.C. Richardson finally made contact with P.Y. on February
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8, 2007, in the Silver Bow County Jail, where P.Y. was in custody on theft charges. The
Department placed T.C. in kinship care with the great aunt.
¶7 The Department filed a petition for Emergency Protective Services, Adjudication as
Youth in Need of Care and Temporary Legal Custody. The Department filed an
accompanying affidavit of social worker Richardson detailing the specific allegations.
Richardson adopted the averments in her affidavit at the adjudication hearing on March 7,
2007, and expanded on the Department’s concerns for T.C.’s welfare. Richardson noted that
she had worked with P.Y. in 2004 when the Department obtained temporary legal custody
over T.C. because of P.Y.’s methamphetamine use. Richardson testified that P.Y was
exhibiting similar characteristics to those that she had exhibited in 2004.
¶8 P.Y.’s mother testified that she often cared for T.C. when P.Y. was “coming and
going.” P.Y.’s mother further testified that her son who lived with her had an alcohol
problem and had frequent altercations with P.Y. The mother testified that she had warned
P.Y. that P.Y. should not take T.C. with her to Spokane and leave T.C. in the care of people
whom T.C. did not know. P.Y’s mother also expressed concern about P.Y. taking T.C. to
Spokane because P.Y. was associating with people with criminal records.
¶9 The District Court found evidence that T.C. was a youth in need of care based on
social worker Richardson’s affidavit and the testimony of Richardson and P.Y.’s mother.
The District Court specifically found that T.C. had been abused or neglected or that there
was a reasonable likelihood that she would be abused or neglected if there was no
intervention in the family situation. The District Court entered an order adjudicating T.C. as
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a youth in need of care and granting the Department temporary custody. The District Court
entered specific findings of fact regarding the nature of the abuse and neglect. The District
Court found that returning T.C. to P.Y.’s care would place T.C. at an unreasonable risk of
harm affecting her health and well-being.
¶10 The District Court ordered two separate treatment plans in the ensuing months with
specific goals for P.Y. aimed at returning T.C. to her custody. P.Y. refused to sign the
treatment plans. The District Court twice extended the temporary legal custody to give P.Y.
an opportunity to complete successfully the treatment plans. P.Y. did not cooperate with the
Department, and she made virtually no effort to comply with the treatment plans.
¶11 The Department filed a Motion for a Permanency Hearing on February 14, 2008, with
an accompanying affidavit. The Department noted that T.C. was thriving in the home of her
great aunt and uncle and that the couple was committed to providing T.C. a permanent home
by adopting her. The Department recommended that T.C. be placed permanently in the
home. The District Court held a permanency hearing on February 27, 2008. The District
Court approved the Department’s permanency plan in its order of February 29, 2008.
¶12 The Department filed a Petition for Permanent Legal Custody and Termination of
Parental Rights with Right to Consent to Adoption. The District Court held the parental
termination hearing on March 26, 2008. The District Court granted the State’s petition in its
Findings of Fact, Conclusions of Law and Order Terminating Parental Rights. The District
Court found that P.Y. had failed to complete successfully either of the appropriate court
approved treatment plans. The District Court also found that the conduct or condition of the
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parents rendering them unfit was not likely to change within the reasonable future, based on
P.Y.’s recent criminal convictions and the lack of even minimal effort to comply with the
treatment plans.
STANDARD OF REVIEW
¶13 We review a district court’s decision to terminate parental rights for an abuse of
discretion. In re M.P., 2008 MT 39, ¶ 16, 341 Mont. 333, ¶ 16, 177 P.3d 495, ¶ 16. A
district court abuses its discretion if it acts arbitrarily, without employment of conscientious
judgment, or so exceeds the bounds of reason as to perform a substantial injustice. In re
M.P., ¶ 16.
¶14 We review a district court’s findings of fact to determine whether they are clearly
erroneous. In re D.B., 2007 MT 246, ¶ 18, 339 Mont. 240, ¶ 16, 168 P.3d 691, ¶ 18. We
will consider a district court’s findings of fact clearly erroneous if the finding is unsupported
by substantial evidence, if the court misapprehended the effect of the evidence, or if the
finding leaves this Court with the definite and firm conviction that the district court made a
mistake. In re S.T., 2008 MT 19, ¶ 8, 341 Mont. 176, ¶ 8, 176 P.3d 1054, ¶ 8. We review a
district court’s conclusions of law to determine whether the district court correctly
interpreted and applied the law. In re M.P., ¶ 17.
DISCUSSION
¶15 Did the District Court abuse its discretion in terminating the parent-child relationship
between P.Y. and T.C.?
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¶16 A parent’s right to the care and custody of a child constitutes a fundamental liberty
interest that fundamentally fair procedures must protect. In re D.B., ¶ 17. Fundamental
fairness and due process require that a parent not be placed at an unfair disadvantage during
the termination proceedings. In re A.S., 2006 MT 281, ¶ 33, 334 Mont. 280, ¶ 33, 146 P.3d
778, ¶ 33. The court’s primary consideration is the physical, mental, and emotional
condition and needs of the child, however, and therefore the best interests of the child are
paramount and must take precedence over parental rights. In re R.T., 2005 MT 173, ¶ 13,
327 Mont. 498, ¶ 13, 116 P.3d 783, ¶ 13 (citing § 41-3-609(3), MCA).
¶17 Section 41-3-609(1)(f), MCA, provides that a court may order termination of a parent-
child legal relationship if the child qualifies as a youth in need of care and (1) the parent has
failed to comply with an appropriate treatment plan, and (2) the condition or conduct
rendering the parent unfit is unlikely to change within a reasonable period of time. To
adjudicate a child as a youth in need of care, the Department must prove by a preponderance
of the evidence that the child has suffered from abuse or neglect by a parent. In re A.S., ¶ 30
(citing § 41-3-102(3), MCA). The abuse or neglect may be actual physical or psychological
harm to a child, or substantial risk of physical or psychological harm to a child by the acts or
omissions of a person responsible for the child’s welfare. In re A.S., ¶ 30 (citing § 41-3-
102(7), MCA).
¶18 P.Y. does not challenge the District Court’s finding that she failed to complete the
treatment plans or the District Court’s finding that the condition rendering her unfit was
unlikely to change within a reasonable time. P.Y. instead challenges only T.C.’s
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adjudication as a youth in need of care. She argues that the District Court improperly
adjudicated T.C. as a youth in need of care, and that this improper adjudication invalidated
the subsequent parental termination.
¶19 P.Y. argues that she had notice only as to allegations of actual physical neglect. P.Y.
alleges that she did not have notice that the allegations included a substantial risk of physical
neglect. She contends that the allegation according to the petition and social worker
Richardson’s affidavit was “physical neglect,” and that consequently, § 41-3-102(7)(a)(i),
MCA, dealing only with actual physical abuse, represents the only applicable statutory
provision for which she had notice. P.Y. argues that the District Court’s order violated her
due process rights when it discussed the substantial risk of abuse or neglect instead of
focusing solely on actual neglect. P.Y.’s argument falters on several bases.
¶20 We note first that P.Y. did not voice the lack of notice argument until this appeal. She
did not object at the youth in need of care hearing. She did not object or in any way indicate
to the District Court that any irregularities existed in the adjudicatory proceeding in the more
than twelve months that elapsed between the adjudicatory hearing and the termination
hearing. She did not raise the issue of lack of notice at the termination hearing. This Court
generally will not address either an issue raised for the first time on appeal or a party’s
change in legal theory. Williams v. Lowther, 2008 MT 46, ¶ 16, 341 Mont. 394, ¶ 16, 177
P.3d 1018, ¶ 16.
¶21 Moreover, P.Y.’s argument that she had notice only of physical neglect lacks merit.
P.Y. fails to mention the other bases upon which the Department relied in the same affidavit
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and petition. Both the petition and affidavit describe T.C. as abused or neglected, or in
danger of being abused or neglected. The term “abused or neglected” means the state or
condition of a child who has suffered child abuse or neglect. Section 41-3-102(3), MCA.
The term “child abuse or neglect” includes not only actual harm to a child’s health or
welfare, but also threatened harm to a child’s health or welfare. Section 41-3-102(7)(a),
MCA; In re A.M., 2001 MT 60, ¶ 41, 304 Mont. 379, ¶ 41, 22 P.3d 185, ¶ 41. The term
“physical neglect” includes the failure to provide basic necessities or general supervision, or
allowing the child to be exposed to an unreasonable physical or psychological risk. Section
41-3-102(20), MCA. The Department’s affidavit and petition clearly provided P.Y. with
notice that the allegations against her included more than actual physical abuse.
¶22 The District Court determined T.C. to be a youth in need of care after considering all
of the evidence. The District Court based its determination on P.Y.’s irrational behavior, her
lack of cooperation with the department, her failure to care for her child, concerns of drug
abuse, and her refusal to take a urinalysis. The District Court determined that the return of
T.C. to the home would place T.C. at an unreasonable risk of harm affecting her health and
well-being. Substantial evidence supported the District Court’s finding that T.C. was a youth
in need of care, and the finding is not otherwise erroneous. We conclude that the District
Court did not abuse its discretion when it terminated P.Y.’s parental rights.
¶23 Affirmed.
/S/ BRIAN MORRIS
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We Concur:
/S/ KARLA M. GRAY
/S/ PATRICIA COTTER
/S/ W. WILLIAM LEAPHART
/S/ JIM RICE
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