In Re DB

August 5 2008

DA 08-0103

IN THE SUPREME COURT OF THE STATE OF MONTANA

2008 MT 272

IN THE MATTER OF
D.B. and D.B.,

Youths in Need of Care.

APPEAL FROM: District Court of the Fourth Judicial District,
In and For the County of Missoula, Cause No. DN-2004-055
Honorable Robert L. Deschamps, III, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Jim Wheelis, Chief Appellate Defender, Roberta R. Zenker, Assistant
Appellate Defender, Helena, Montana

For Appellee:

Hon. Mike McGrath, Montana Attorney General, C. Mark Fowler,
Assistant Attorney General, Helena, Montana

Fred R. Van Valkenburg, Missoula County Attorney, Diane Conner,
Deputy County Attorney, Missoula, Montana

Submitted on Briefs: June 25, 2008

Decided: August 5, 2008

Filed:

__________________________________________
Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.

¶1 C.B., mother of D.B. and D.B., appeals the Fourth Judicial District Court’s order

terminating her parental rights and the court’s denial of her motion to dismiss. We

affirm.

ISSUES

¶2 A restatement of the issues is:

¶3 Did the District Court err in denying C.B.’s motion to dismiss?

¶4 Are the District Court’s findings of fact contained in the order of termination

clearly erroneous?

FACTUAL AND PROCEDURAL BACKGROUND

¶5 This is the second time C.B. has been before us on appeal. In our earlier decision,

In re D.B., 2007 MT 246, 339 Mont. 240, 168 P.3d 691 (hereinafter D.B. I), we set forth

the background of this parental termination proceeding. We will therefore summarize the

previous facts and provide additional facts as required for our analysis.

¶6 In October 2004, the Department of Public Health and Human Services, Child and

Family Services (CFS or Department) petitioned for emergency protective services and

temporary investigative authority of C.B. and her infant children in accordance with

§§ 41-3-422 and -427, MCA. The Department had reason to believe the children were in

danger of abuse or neglect due to C.B.’s drug use and her relationship with an abusive

boyfriend. The children were removed from the home and placed in foster care. C.B. did

not object to the petition and in December 2004 the court granted it. In May 2005, C.B.

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stipulated that she had neglected the infants and the court entered an order adjudicating

the children as youths in need of care.

¶7 In June 2005, C.B. was incarcerated on a parole violation. Shortly thereafter, CFS

presented a treatment plan for C.B. that contained twenty-one goals designed to address

C.B.’s chemical dependence and history of domestic violence. Initially C.B. objected to

the plan because it required her to undergo a neuropsychological evaluation. She

subsequently withdrew her objection. The District Court approved the plan in December

2005.

¶8 C.B. reported that, as required by her treatment plan, she attended AA/NA

meetings while incarcerated. It is unclear whether she provided attendance records to

corroborate this. CFS arranged for individual therapy sessions that C.B. could attend

while she was incarcerated. C.B. did not like the therapist and unilaterally discontinued

therapy while incarcerated. Upon C.B.’s release from prison in early January 2006,

counselors began working with her immediately on the treatment plan goals. C.B.’s

compliance with many goals, however, was sporadic and inconsistent.

¶9 A neuropsychological evaluation conducted in March 2006 revealed that C.B. had

mild to moderate cerebral dysfunction, post-traumatic stress disorder based on domestic

abuse, and paranoid and schizoid personality traits. The report indicated that C.B. has

difficulty learning new information especially if presented orally. The evaluator testified

that C.B.’s cognitive impairment would not improve over time but that she could employ

some compensatory techniques to help her. Such techniques include visual checklists,

reminders from other people, repetition, and assistance from third parties in

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understanding new circumstances and making decisions. The written treatment plan was

not revised to reflect these cognitive and emotional disabilities.

¶10 In July 2006, CFS filed a petition to terminate C.B.’s parental rights. Four months

later the District Court conducted a hearing on the petition. C.B. objected to what she

described as “onerous” conditions in her treatment plan and complained that CFS did not

provide her with adequate support. On December 28, 2006, the District Court issued an

order terminating her rights. C.B. appealed this decision. In September 2007, we

reversed and remanded the matter to the District Court. We concluded that the District

Court had erred by applying the wrong statutory standards to assess whether C.B.’s rights

should be terminated and by failing to provide specific factual findings as required by

§ 41-3-609(1)(f), MCA. We set forth the proper statutory criteria and instructed the

District Court to apply the criteria on remand.

¶11 On receipt of the remanded case, the District Court concluded that it could comply

with our instruction by relying on the record created in the underlying proceeding. C.B.

objected and, on October 29, 2007, moved to dismiss on the grounds that the court’s

approach would violate her “due process right to an appropriate treatment plan.” In

November, CFS filed a renewed petition to terminate C.B.’s parental rights. On

December 3, 2007, the District Court denied C.B.’s Motion to Dismiss and, on January

25, 2008, it entered new Findings of Facts, Conclusions of Law and Order, again

terminating C.B.’s parental rights. C.B. filed a timely appeal of both orders.

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 STANDARDS OF REVIEW

¶12 The question of whether a district court properly denied a motion to dismiss is a

conclusion of law which we review to determine if the court’s interpretation and

application of the law is correct. Dime Ins. Agency v. Johnson, 279 Mont. 121, 123, 926

P.2d 733, 734 (1996) (citation omitted).

¶13 We review a district court’s findings of fact in a parental termination case to

determine whether the findings in question are clearly erroneous. The court’s

conclusions of law in such cases are reviewed for correctness and its decision to

terminate parental rights is a discretionary ruling reviewed for an abuse of discretion. In

re K.C.H., 2003 MT 125, ¶¶ 11-12, 316 Mont. 13, ¶¶ 11-12, 68 P.3d 788, ¶¶ 11-12

(citations omitted).

DISCUSSION

¶14 As noted above, in D.B. I—the first appeal in this matter—we reversed and

remanded the matter to the District Court holding that the court had failed to make the

specific factual findings required by § 41-3-609(1)(f), MCA; namely, whether C.B.’s

treatment plan was appropriate, whether she completed the treatment plan, and whether

her condition was unlikely to change within a reasonable time. D.B. I, ¶ 25. We noted

that the District Court prematurely applied the presumption found in § 41-3-604(3),

MCA, which states that there is a legal presumption that termination of parental rights is

appropriate in cases where children have been in foster care for 15 of the last 22 months.

D.B. I, ¶ 40. We explained that this presumption “neither eliminates the substantive

requirements of § 41-3-609, MCA, nor diminishes the clear and convincing burden of

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proof on the party seeking termination of parental rights.” D.B. I, ¶ 23. Only after the

court has made the factual findings required by § 41-3-609(1)(f), MCA, may the court

properly “take the statutory presumption favoring termination into consideration.” D.B.

I, ¶ 40. We provided factors to be considered by the District Court on remand in

determining the appropriateness of the treatment plan’s conditions, including the parent’s

special needs and deadlines for achieving the identified goals. D.B. I, ¶¶ 32-36. We also

reiterated the statutory factors to be considered in determining whether a parent’s conduct

or condition is unlikely to change within a reasonable time. D.B. I, ¶¶ 31-39.

¶15 Did the District Court err in denying C.B.’s motion to dismiss?

¶16 Upon receipt of the case on remand, the District Court announced it would rely on

the existing record to issue revised factual findings and conclusions. C.B. protested and

moved to dismiss the case claiming that the record created during the District Court

proceeding did not contain sufficient evidence to allow the District Court to apply the

proper statutory criteria required by D.B. I. The District Court denied her motion, noting

that dismissal was an extreme sanction that was inappropriate in this case. The court

expressly interpreted D.B. I as a “directive for further proceedings on the original

petition.” The court surmised that had dismissal been warranted and required, we would

have dismissed the case on appeal. The court further stated that § 41-3-442(5), MCA,

authorizes a district court to continue orders for temporary legal custody (TLC) pending

hearings on a petition for termination. The court noted that TLC had been extended on

multiple occasions without C.B.’s objection.

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¶17 On appeal, C.B. insists that the District Court erred by denying her motion to

dismiss because it is impossible for CFS to prove a set of facts from the existing record

that would support the findings required by § 41-3-609(1)(f), MCA.

¶18 CFS counters that C.B.’s dismissal arguments presented on appeal are based on a

misreading of D.B. I. The Department submits that D.B. I did not conclude that C.B.’s

treatment plan was inappropriate, nor did it void the treatment plan or mandate a new

plan. CFS further posits that our ruling in D.B. I did not assure additional remedies such

as a new hearing or new findings to C.B., nor did it conclude that C.B.’s plan did not

address her cognitive impairments. Additionally, the Department argues that our reversal

of the District Court’s original order of termination left the children’s prior legal status

intact. In other words, the children remained youths in need of care and CFS retained

temporary legal custody over them. C.B. did not contest either of these elements of the

underlying case. CFS further asserts that the legislature clearly established the criteria for

dismissal of an abuse and neglect petition in § 41-3-424(1), MCA, and that C.B. did not

allege, and cannot prove, satisfaction of the criteria.

¶19 As indicated above, CFS initiated this action against C.B. by filing a petition under

§ 41-3-422, MCA, alleging abuse and neglect of C.B.’s children. Once a child has been

adjudicated a youth in need of care, the Department and the court are bound to proceed in

a manner designed to protect the child. Section 41-3-424, MCA, provides the

circumstances under which an abuse/neglect petition can be dismissed:

Unless the petition has been previously dismissed, the court shall dismiss
an abuse and neglect petition on the motion of a party, or on its own
motion, in any case in which all of the following criteria are met:

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 (1) a child who has been placed in foster care is reunited with the
child’s parents and returned home;
(2) the child remains in the home for a minimum of 6 months with
no additional confirmed reports of child abuse or neglect; and
(3) the department determines and informs the court that the issues
that led to department intervention have been resolved and that no reason
exists for further department intervention or monitoring.

¶20 It is undisputed that C.B. cannot satisfy the criteria established in § 41-3-424,

MCA. Furthermore, C.B. appears to overstate our ruling in D.B. I. As pointed out by

CFS, we did not hold in D.B. I that C.B.’s treatment plan was inappropriate or that she

was entitled to a new plan or further hearings. We did not hold that her due process

rights were violated or that her parental rights were wrongfully terminated. Nor did we

determine that the record of the underlying proceeding failed to contain sufficient

evidence to support the findings we instructed the District Court to provide. We simply

instructed the District Court to comply with the statutory requirements. Dismissal of the

Department’s abuse and neglect proceeding against C.B. is inappropriate and unavailable

under § 41-3-424, MCA. The children remain youths in need of care and the District

Court must resolve the matter by providing some form of relief as established in

§ 41-3-422(1), MCA. Under these circumstances, the District Court did not err in

denying C.B.’s motion to dismiss.

¶21 Are the District Court’s findings of fact contained in the order of termination
clearly erroneous?

¶22 In January 2008, the District Court issued a detailed twenty-eight page Findings of

Fact, Conclusions of Law and Order that incorporated its original twelve-page Opinion

and Order issued in 2006 terminating C.B.’s parental rights. In its 2008 order, the court

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individually addressed each condition of C.B.’s treatment plan. It expressly stated that

each condition was appropriate and explained its ground for so determining. It also

explained, for each condition, why and how the condition addressed C.B.’s special

cognitive needs and/or her substance abuse and domestic violence issues.

¶23 Addressing this Court’s concern over the lack of deadlines in the treatment plan,

the District Court explained the original and subsequent “timelines” imposed on C.B. to

accomplish the tasks identified in her treatment plan. While the court acknowledged that

specific dates for achieving specific goals were not included in the treatment plan, this

did not mean that no timelines were imposed. Given the nature of the tasks in the

treatment plan (e.g., participate in weekly support sessions, abstain from use of alcohol

and drugs, follow and complete the recommendations of treatment counselors, participate

in AA/NA, write weekly letters to her children, etc.), the court did not prioritize the tasks;

rather it intended that they all be pursued simultaneously. Therefore, the court viewed

the expiration dates for the treatment plan as deadlines for completing the tasks. As

indicated above, in December 2005, the District Court approved Phase I of the treatment

plan which was to remain in effect until March 30, 2006, or until further order of the

court. Therefore, the court considered March 30, 2006, as a deadline for achieving the

goals in the treatment plan.

¶24 The District Court further explained in its 2008 order that upon C.B.’s release

from prison in January 2006, CFS established an “intensive” program for C.B. and began

actively making referrals to help her accomplish the goals and tasks of her treatment plan

in early 2006. Subsequent to C.B.’s March 2006 neuropsychological evaluation, the

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treatment plan was extended until August 2006. While the written terms of the treatment

plan were not revised, the District Court revealed in its order that therapists working with

C.B. under her treatment plan approached their tasks and interactions with C.B.

specifically in recognition of the results of her cognitive evaluation.

¶25 For example, CFS worked patiently with C.B. in its attempts to find a suitable

therapist and therapy program for C.B. upon C.B.’s release from jail. Under the

treatment plan, C.B. was responsible for contacting the YWCA in January 2006

regarding support group services and to attend the sessions recommended by the YWCA

staff. When, at the time of her neuropsychological evaluation in March 2006 she had not

yet contacted the YWCA, CFS suggested private counseling would be more suitable

based upon C.B.’s evaluation. Given C.B.’s past unhappiness with various therapists, the

Department asked C.B. to identify a therapist with whom she would like to work.

Several weeks later, C.B. provided the name of a heath care professional with inadequate

credentials and without the appropriate specialty background. Thereafter, CFS arranged

for C.B. to work individually with a clinical social worker and therapist, Katherine

Florez, on a weekly basis beginning in mid-April 2006.

¶26 Florez, in consideration of C.B.’s cognitive evaluation report and with C.B.’s

assistance, devised a written checklist with simplified task descriptions. The checklist

prioritized the tasks and included such treatment plan items as attending AA/NA

meetings and calling a daily urinalysis (UA) hotline to learn whether she needed to

submit to testing. Through repetition and reminders, Florez attempted to assist C.B. in

accomplishing the listed tasks. Additionally, the evaluation recommended that C.B.

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undergo domestic violence education. Florez specifically incorporated such education

into C.B.’s therapy. Because C.B.’s neuropsychological evaluation advised that C.B.

would benefit from taking anti-depressant medication, Florez arranged to get the

appropriate prescription for C.B.

¶27 Florez had multiple hour-long telephone conferences with C.B.’s CFS social

worker to identify methods that each could utilize to address C.B.’s special needs and

help her be successful. Unfortunately, C.B. displayed opposition and defensiveness.

Between mid-April 2006 and late July, C.B. missed five of fifteen scheduled

appointments and quit therapy at the end of July because she interpreted the counselor’s

“constructive suggestions” as additional demands. As long-term therapy was

recommended by C.B.’s evaluation and other therapists, the CFS social worker tried to

convince C.B. to return to therapy with Florez. When these attempts failed the

Department compiled a list of other therapists, with phone numbers, and offered to

contact them to arrange for further counseling. C.B. indicated that she would call and

make an appointment. It took C.B. until October 2006 to choose another therapist, and

then she attended only one session. C.B.’s CFS case worker, in deference to C.B.’s “lack

of trust issues” identified in her evaluation, refrained from contacting this therapist in

order to deflect C.B.’s fears that her new therapist was reporting to CFS.

¶28 CFS displayed repeated flexibility when C.B. “forgot” to call in for UA testing or

failed to show up for testing due to her work schedule. The Department offered to go to

her for a test rather than have her come to them or, alternatively, they offered to test a

hair sample. C.B. declined these offers. Despite the Department’s efforts through

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reminders, repetition and flexibility to help C.B. remain sober, she missed forty-nine out

of seventy-eight scheduled UAs. Additionally, the Department provided Dialectical

Behavior Therapy (DBT) upon C.B.’s release from incarceration. This service was

provided even before the neuropsychological evaluation indicated that C.B. possibly

could benefit from DBT. C.B., however, missed multiple appointments and the therapist

determined this form of treatment would not be effective for C.B. at that time.

¶29 C.B. participated in eight weekly sessions with Family Concepts, the group that

supervised visits between C.B. and her children. These sessions were designed to

provide parenting feedback instruction and ongoing support. C.B.’s neuropsychological

evaluation acknowledged that C.B.’s parenting skills could be adversely affected by her

difficulty in interpreting socioemotional cues such as body language and factional

expressions. The parenting feedback instruction through Family Concepts was designed

to help C.B. in this area. While not relevant to C.B.’s cognitive difficulties, CFS offered

C.B. transportation vouchers to help defer the cost of traveling to meetings and testing

and provided them to C.B. when she requested. Thus, we conclude that the program

established by CFS for C.B. did appropriately take into consideration C.B.’s cognitive

impairments.

¶30 Lastly, the District Court analyzed each of the twenty-one assigned tasks to

determine whether C.B.’s condition or conduct was unlikely to change within a

reasonable time. The court expressly acknowledged the eight tasks that C.B. had

accomplished including, but not limited to, that she appeared to have severed contact

with her former abusive boyfriend, that she was not currently in an abusive relationship,

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and that she was not allowing anyone to live in her home without first obtaining CFS

approval. The District Court also characterized the likelihood of change for three other

tasks as “uncertain,” “unclear,” or “unknown.” These tasks involved participation in

AA/NA meetings, participation in parenting-related classes or study, and the maintenance

of an alcohol and drug-free home. The court set forth the evidence that led to its

“uncertain” status which included conflicting evidence pertaining to task completion and

C.B.’s admission of illegal drug use within two weeks of the hearing.

¶31 Additionally, the court explained why, with five of C.B.’s other tasks, it was

unable to definitively find whether her conduct was unlikely to change or not. One such

task was the requirement that C.B. participate in a neuropsychological evaluation and

follow all the recommendations of the evaluation. The court noted that C.B. underwent

the evaluation but was not following all of the recommendations. Another task was to

refrain from being involved in criminal activity. The District Court found that while she

was generally law-abiding, she admitted to using illegal drugs two weeks before the

hearing and testified that she was not sure that she would be able to refrain from using

drugs again. The court’s assessment involved weighing C.B.’s partial compliance with

these tasks as well as her counselors’ evaluations of her willingness to comply further.

¶32 Finally, as to the five remaining tasks, the District Court found that her conduct or

condition was unlikely to change. As it had with the other tasks, it provided its rationale

for its findings.

¶33 C.B. asserts that the District Court’s 2008 “findings of fact are clearly erroneous in

that they do not comport with the requirements of [D.B. I].” She maintains that the

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record does not support the court’s finding that her treatment plan was appropriate. She

reasons that because her treatment plan was in place at the time her cognitive difficulties

were diagnosed, and her treatment plan was not subsequently modified in writing to

acknowledge her “particular problems,” the plan was inappropriate. C.B. further

challenges the District Court’s “global deadline” assigned to the treatment plan, as

opposed to task-specific deadlines.

¶34 Additionally, C.B. maintains that the District Court failed to comply with the

directives in D.B. I pertaining to whether the conduct or condition rendering her unable to

parent her children was unlikely to change within a reasonable time. C.B. argues that the

court’s findings relative to each treatment plan task did not comply with § 41-3-609(2),

MCA, in that the court failed to expressly address whether “continuation of the parent-

child legal relationship will likely result in continued abuse or neglect or that the conduct

or the condition of the parents render the parents unfit, unable, or unwilling to give the

child adequate parental care.” She points out that CFS moved the court to amend its

January 2008 findings to include such statutorily-required findings but the District Court

failed to do so.

¶35 CFS counters that the District Court “scrutinized the plan for ‘appropriateness’

under all the factors outlined in D.B.I.” It submits that the District Court outlined the

manner in which implementation of the treatment plan was modified to address C.B.’s

cognitive needs and provide additional assistance in recognition of those needs. CFS

maintains that the record provides “clear and convincing evidence” to support the court’s

findings of appropriateness.

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¶36 The Department acknowledges that the District Court failed to expressly enter a

finding that C.B.’s conduct or conditions render her unfit, unable, or unwilling to provide

her children with parental care. CFS opines, however, this is not a “fatal” error as alleged

by C.B. It asserts that C.B. is precluded from arguing this error on appeal as she

acquiesced to it when she failed to file a timely response to CFS’s motion to amend the

District Court’s order to include such findings. Alternatively, CFS maintains that the

failure to include such task-specific findings is harmless error given that the court made

an express conclusion that the conduct and conditions that render C.B. unfit to parent her

children are unlikely to change within a reasonable time, and will likely result in

continued abuse or neglect because such conduct and conditions render her unfit, unable,

or unwilling to give the child adequate parental care.

¶37 There is sufficient evidence in the record to support the District Court’s findings

pertaining to the appropriateness of C.B.’s treatment plan. While C.B.’s treatment plan

was not amended in writing after a neuropsychological evaluation revealed her cognitive

difficulties, there was ample testimony that the counselors assisting C.B. were aware of

her diagnoses and modified their methods of assistance in recognition of her difficulties.

As we said in In re A.N., 2000 MT 35, ¶ 26, 298 Mont. 237, ¶ 26, 995 P.2d 427, ¶ 26,

there is no “bright line definition” of appropriateness but one factor in determining

appropriateness is whether the plan “takes into consideration the particular problems

facing both the parent and the child.” A.N., ¶ 27. The evidence indicates that C.B.’s

treatment plan was “customized” to meet her particular needs. See In re J.B.K., 2004 MT

202, ¶ 28, 322 Mont. 286, ¶ 28, 95 P.3d 699, ¶ 28. While written modification after

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C.B.’s evaluation would have precluded this particular challenge, we nonetheless

conclude that the District Court did not err in finding C.B.’s treatment plan was

implemented in a manner recognizing her particular needs and, therefore, was

appropriate.

¶38 Additionally, the tasks established in C.B.’s treatment plan were tasks that

reasonably could be undertaken immediately and pursued on an ongoing and

simultaneous basis. While, as we explained in D.B. I, ¶ 37, “due process requires the

inclusion of a timeline for completion of goals and tasks in a treatment plan,” we also

have acknowledged that each treatment plan is different. D.B. I, ¶ 36. In the case before

us, the tasks identified in the treatment plan were specific to C.B.’s situation and were

implemented in a manner cognizant of her particular needs. Under these circumstances,

the court’s imposition of the same deadline for each task is supported by the record and is

not clearly erroneous. Moreover, it does not appear from the record that imposition of

specific task-related dates would have had a significant impact on the outcome of C.B.’s

performance. She performed those tasks she was willing to perform and failed to

perform those she was unwilling to do. As we noted in In re C.B., 2001 MT 42, ¶ 16,

304 Mont. 252, ¶ 16, 20 P.3d 117, ¶ 16, “It is well established that ‘no civil case shall be

reversed by reason of error which would have no significant impact upon the result; if

there is no showing of substantial injustice, the error is harmless.’ ”

¶39 Similarly, the District Court provided individual explanations for its findings that

C.B.’s conduct and condition relative to certain tasks was unlikely to change in a

reasonable time. As a result of these specific findings, which are supported by the record,

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the court’s conclusion that C.B. will continue being unfit, unable, or unwilling to provide

her children with adequate parental care is not incorrect.

CONCLUSION

¶40 For the foregoing reasons, we affirm the District Court’s denial of C.B.’s motion

to dismiss and its January 2008 order terminating C.B.’s parental rights.

/S/ PATRICIA COTTER

We concur:

/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ JOHN WARNER
/S/ JIM RICE

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