In the Matter of JC

April 21 2008

DA 07-0588

IN THE SUPREME COURT OF THE STATE OF MONTANA

2008 MT 127

IN THE MATTER OF J.C. and A.D.,

Youths in Need of Care.

APPEAL FROM: District Court of the Ninth Judicial District,
In and For the County of Teton, Cause No. DN 2005-003
Honorable Thomas M. McKittrick, 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, Mark Mattioli, Assistant
Attorney General, Helena, Montana

Joe Coble, Teton County Attorney, Choteau, Montana

Sarah Corbally, Assistant Attorney General, Great Falls, Montana

Submitted on Briefs: February 20, 2008

Decided: April 21, 2008

Filed:

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

¶1 On September 13, 2007, the District Court of the Ninth Judicial District, Teton

County, terminated the parental rights of G.C. and J.D. G.C. is the biological mother of

J.C., a six year-old boy, and A.D., a five year-old boy. J.D. is the biological father of

A.D. and is currently married to G.C. J.D. now appeals the District Court’s termination

of his parental rights to A.D. We affirm.

FACTUAL AND PROCEDURAL BACKROUND

¶2 On February 22, 2005, the Teton County Deputy Attorney, on behalf of the

Department of Public Health and Human Services (DPHHS), filed a petition for

temporary investigative authority (TIA Petition) to conduct an investigation into

allegations that J.C. and A.D. had been abused, neglected or abandoned. A show cause

hearing on the TIA Petition was held on March 8, 2005. After the hearing, the District

Court granted the TIA petition by an order dated March 8, 2005.

¶3 The circumstances leading to the filing of the TIA Petition are described in the

District Court’s order and are undisputed. On December 9, 2004, DPHHS received a

report from a physician in Great Falls, Montana, concerning J.C. and A.D. after they

were taken to see him by the parents. The physician reported that J.C. and A.D. were not

clean, were wearing dirty clothes that did not fit, and that J.C. had rotten teeth that

appeared to be from bottle rot. The physician was suspicious that the family “was

running from something or somewhere.”

¶4 On that same day, J.D. contacted DPHHS community social worker Patty Jacobs

stating that he and G.C. had recently moved to Montana from Vermont where they had

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been receiving services and that they would like to continue to receive those services in

Montana. Ms. Jacobs followed up on their prior services in Vermont and contacted

Kathy O’Brien, a child protection social worker for the state of Vermont. Ms. O’Brien

related she had been assigned to their case, that Vermont had jurisdiction over their case,

and that the parents had indicated to officials in Vermont that they were taking a trip to

Montana and would be returning to Vermont shortly. Ms. O’Brien then related the

following information, as contained in the District Court’s order:

She further advised that the Youths were removed from G.C. on June 9,
2004, because of unsafe and unsanitary living conditions in the home.
When Ms. O’Brien investigated and entered the home, both J.C. and A.D.
were sharing a playpen surrounded by garbage and rotten food. A.D. had
dry feces on his chest that had been smeared around. The workers found
feces in the crib in piles and also smeared on the crib rails. Dirty diapers
laid around the crib, feces was in toilets left unflushed, food [and] garbage
was on the floor throughout the house. Protective Supervision over the
parents was granted with the parents required to follow recommendations of
the agency. . . . The recommendations put in place were that the parents
were to work with Family Based Services, participate in parenting classes
and mental health counseling, and that they were to receive medical
services.

¶5 When G.C. and J.D. learned that DPHHS would continue with the plan initiated in

Vermont, they advised that they would return to Vermont and live in a motel until they

could obtain housing. Prior to their arrival in Montana, G.C. had been waiting for

housing in Vermont for approximately six months and had been evicted on a previous

occasion. While Ms. Jacobs offered to work with G.C. and J.D., she also informed them

that if they were to leave Montana, the children would be removed because they would be

homeless and without medical, dental, or mental health services. G.C. and J.D.

subsequently obtained housing in Choteau, Montana with their children.

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¶6 Prior to the show cause hearing on the TIA Petition, a guardian at litem was

appointed for the children, and G.C. and J.D. voluntarily entered into a treatment plan

with DPHHS. The first section of this treatment plan, which both parents signed, reads as

follows:

IDENTIFICATION OF THE PROBLEMS OR CONDITIONS THAT
RESULTED IN THE ABUSE OR NEGLECT:

1) J.C. and A.D. have developmental delay issues, including difficulty with language.
2) J.C. has severe dental decay that requires immediate attention.
3) G.C. and J.D. have no knowledge of child development, no knowledge of
appropriate parenting skills, and limited home maintenance skills.

¶7 The treatment plan contained four major goals and nine specific tasks for G.C. and

J.D. to complete in order to remedy the conditions which resulted in the abuse and

neglect of their children. At the show cause hearing on March 8, 2005, the District Court

asked the parents if they objected to the State’s involvement in the matter, or to any

element of the treatment plan. Neither of the parents objected to the treatment plan itself,

although J.D. did object to one portion of the treatment plan that required him to undergo

sex offender counseling. Although the parents did not have counsel at that time, the

District Court informed them that he would appoint counsel in the matter if they

requested it. The parents did not request counsel at that time.

¶8 In an affidavit in support of the TIA Petition, Ms. Jacobs stated that as a result of

her thorough investigation into this matter, she concluded that the parents had failed to

make progress on the deficiencies which originally led to the intervention by the State of

Vermont. According to Ms. Jacobs, J.C. and A.D. were still in need of medical care,

WIC supplements, and evaluation and services for language and speech development.

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J.C. was behind in his development, requiring speech evaluation immediately. Ms.

Jacobs was concerned about the condition of the children’s teeth, their lack of language

development, possible hearing deficits, and undergrowth and weight gain. Moreover,

J.C. appeared unhappy, was screaming and crying frequently, and A.D. was frequently

expressionless and intimidated.

¶9 The District Court granted the TIA Petition. The District Court noted that DPHHS

had made reasonable efforts to avoid protective placement of the children and had not

removed the children from G.C. and J.D.’s care, as the continuation of the children in the

home at that time was not contrary to the welfare of the children. The District Court

ordered that DPHHS be granted the necessary authority to access all information

concerning the family “which are relevant to the investigation and determination of

whether the above-named children are youths in need of care . . . .” As is clear from this

language as contained in the order, at the time TIA Petition was granted there had not yet

been a formal adjudication that J.C. and A.D. were youths in need of care,

notwithstanding the fact that the order granting the TIA Petition was captioned “Order

Adjudicating Children as Youth in Need of Care and Granting Temporary Investigative

Authority.”

¶10 On April 1, 2005, the District Court appointed counsel for J.D. and G.C. On April

5, the children were removed from G.C. and J.D.’s care. On April 7, 2005, less than one

month after the granting of the TIA Petition, Teton County, on behalf of DPHHS, filed a

Petition for Adjudication of Child as Youth in Need of Care, Immediate Protection and

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Emergency Protective Services, and Temporary Legal Custody (TLC Petition). In the

TLC Petition, the Teton County Deputy Attorney alleged as follows:

Since the date of the Show Cause hearing on March 8, 2005, the
children’s living environment, physical condition and care has
deteriorated. This change in their circumstances has necessitated their
removal from the home. Specifically, Dr. Laura Shelton has diagnosed
J.C. as a Failure to Thrive child. Additionally, Public Health Nurse Jolynn
Miller indicates both children are below the 5th percentile in the weight
and growth charts and that J.C. has actually lost weight over the past
month. As is more specifically set forth in the Affidavit of Social Worker
Patty Jacobs attached hereto, the home of the children is not adequately
furnished despite the apparent financial ability of the parents to adequately
provide furnishings, the children are frequently in dirty, mismatched
clothing, and locked in their bedroom or otherwise confined with limited
movement in their home. Additionally, A.D. continues to show very little
expression or emotional response. On March 28, 2005, a day care
provider observed unusual marks on A.D. that were also sticky. It appears
duct tape was placed on the child over the front part of his torso and leg
area. This matter has been referred to the Teton County Sheriff’s Office
for investigation. Finally, the dietary needs of the children are still not
being met. Day care personnel indicate that every Monday J.C. has
diarrhea, but by the end of the week he is fine. Day care personnel have
noted that J.C. eats very well at day care and that none of the eating issues
are present that the parents complain about. The dental condition of J.C.
continues to be a concern. His front teeth are rotten and J.C. complains
his teeth hurt him.
Upon removal of the children by the Social Worker on April 5,
2005, it was discovered that both children were infected with head lice.
They have had their heads shaved because larvae and eggs were observed.

¶11 In the TLC Petition, the Teton County Deputy Attorney went on to allege

that:

[T]here is sufficient evidence to establish, by a preponderance of the
evidence, that the above-named child is a Youth in Need of Care as
defined in Mont. Code Ann. § 41-3-102 (2003), such that the Court should
enter an order of adjudication and temporary legal custody.

¶12 The Teton County Deputy Attorney also requested, in part, the following relief:

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 Following an adjudicatory hearing, Petitioner requests the court to:

2. Incorporate the terms and provisions of its previous orders granting
relief;
3. Enter an order adjudicating the children as youths in need of care,
by a preponderance of the evidence;
4. Transfer legal custody of the children to the Department of Public
Health and Human Services for a period not to exceed 6 months, or
until further order of the Court;
5. For any and all other such disposition that protects the welfare of
the child.

¶13 On April 8, 2005, the District Court temporarily granted DPHHS temporary legal

custody (TLC) over J.C. and A.D., finding that there was probable cause to believe that

the children were abused or neglected, and setting a show cause hearing for April 19. On

April 19, the District Court appointed Ms. Meghan Lulf Sutton as counsel for the parents,

and continued the show cause hearing to May 6, 2005, allowing the temporary order

granting the TLC Petition to remain in place.

¶14 At the May 6 hearing, J.D. and G.C. were represented by Ms. Sutton, and Teton

County was represented by Deputy Attorney Ms. Laurie McKinnon. The transcript of

that hearing reads as follows:

COURT: Alright, this is the time set for a Review Hearing in this matter,
the Court having previously granted the State Temporary Investigative
authority. Go ahead.

MS. McKINNON: Well, I’m not sure when the Review Hearing was set,
but today’s the Show Cause Hearing on an Emergency Removal, as well
as on Temporary Legal Custody.

COURT: Alright, you may proceed. Ms. Sutton?

MS. SUTTON: Yes, Your Honor. My clients are going to stipulate to
the request for Temporary Legal Custody. I have had a conversation
with them about that, and they’re currently working on a treatment plan

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 and visits have just started. They have done—after talking to the Social
Worker, she tells me the case is progressing and reunification is coming
on as planned and hoped for, and we would stipulate to Temporary
Legal Custody. I would ask the Court to set a status hearing in three
months just to see where we’re at with reunification and getting those
children back in the home.

COURT: Alright, I’ll grant, based upon the stipulation of the parents,
I’ll grant the State’s request for Temporary Legal Custody. It will last for
a period of six months, and it will expire on November 4th. We’ll have a
hearing on July 26th, a Review Hearing, to determine the status of this
matter, and at that time, if necessary, I’ll set a further Review Hearing
prior to the expiration of Temporary Legal Custody. Will that work?

MS. McKINNON: Yes, Judge, thank you.

COURT: If you want to give me an order to that effect, I’ll sign it, okay.

MS. SUTTON: Thank you, Your Honor.

(Emphasis added).

¶15 The District Court signed an order granting the TLC Petition that same day.

Based upon the evidence and allegations contained in the TLC Petition, the District Court

issued the following findings of fact in support of its decision:

2. A Petition for Adjudication of Children as Youth in Need of Care
and Temporary Investigative Authority was previously filed and
granted on March 8, 2005.
3. Since that date, the living environment, physical condition and care
of the children has deteriorated.
4. Dr. Laura Shelton diagnosed J.C. as a Failure to Thrive child.
5. Public Health Nurse JoLynn Miller indicates both children are
below the 5th percentile in weight and growth charts, specifically
J.C. had lost weight.
6. A.D. has been observed to show little expression or emotional
response.
7. Daycare provider observed unusual marks on A.D. It appeared that
duct tape had been placed on the child over the front of his torso and
leg area.
8. The Youths dietary needs have not been meet.

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 9. J.C. continues to have dental concerns, i.e., his front teeth have
rotted.
10. The Court appointed Meghan Lulf Sutton to represent G.C., Mother
of the Youths, and J.D., Father/Stepfather of the Youths.

¶16 These findings, in turn, led the District Court to issue the following conclusions of

law:

2. The Court has jurisdiction of this matter.
3. The Petitioner has shown by a preponderance of the evidence that
continued court and department intervention is required.
4. The above-named children were adjudicated as Youth in Need of
Care on March 8, 2005.
5. Temporary Legal Custody is appropriate and in the best interest of
the children.

¶17 On October 18, 2005, Teton County filed a Petition for Extension of Temporary

Legal Custody (TLC Extension Petition). The deputy attorney alleged in this Petition

that the children continued to suffer abuse and neglect. In the TLC Extension Petition,

the deputy attorney also alleged that since entering into a treatment plan and agreeing to

work with DPHHS, J.D. and G.C. had received two eviction notices. Although

arrangements had been made for them to undergo evaluation for gambling problems, the

parents denied they had gambling problems in spite of the fact that they both frequented

casinos. Moreover, the parents were asked to see a therapist for couples counseling since

they had troubling getting along and were fighting continuously. They told Ms. Jacobs

that they had done so but, in fact, they had not attended any counseling at all. Further,

they refused to sign releases allowing DPHHS to gather the required information in

accordance with their treatment plan. They also refused to schedule appointments with

DPHHS social workers to work on nutritional issues, as required under their treatment

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plan. Accordingly, the deputy attorney re-alleged that there was sufficient evidence to

establish by a preponderance of the evidence that they were youths in need of care

(YINC), as defined in § 41-3-102, MCA, and that the original TLC Petition should be

extended.

¶18 At a show cause hearing on the TLC Extension Petition on October 25, 2005, J.D.

and G.C. were once again represented by counsel. During this hearing, the following

exchange occurred:

COURT: Alright, this is a hearing on the Order to Show Cause. It
appears that the State is asking for a continuation of Temporary Legal
Custody; is that correct?

MS. McKINNON: Yes, Judge.

COURT: Is there any objection from the parents as to a continuation of
that Temporary Legal Custody?

MS. SUTTON: Your Honor, I had a lengthy discussion with Patty Jacobs
and Ms. McKinnon, and we hammered out a new treatment plan, and my
clients have agreed to stipulate to that, I’m stipulating on behalf of my
clients, at this time, to the extension of T. L. C.

(Emphasis added).

¶19 The first section of this second treatment plan, to which the parents stipulated in

open court and later signed, states as follows:

IDENTIFICATION OF THE PROBLEMS OR CONDITIONS THAT
CONTINUE TO CONTRIBUTE TO THE CONDITIONS OF
ABUSE AND/OR NEGLECT:

2. Failure to pay bills that are necessary to maintain warm, safe
housing.
3. Failure to work with Quality Life Concepts; missed appointments.
4. Failure to work cooperatively with Family Based Services; rudeness
to the provider.

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 5. Failure to attend counseling; told Social Worker they were
attending.
6. Failure to attend nutritional education; refusal to set appointments
resulting in nurses being unable to spend the time to work with G.C.
and J.D. if they did happen to show up at [the] Public Health
Department.

¶20 A review hearing was later set for January 10, 2006. At that time, G.C. and J.D.

were again represented by Ms. Sutton, at which the following colloquy occurred:

COURT: Now . . . since this is a review hearing, do we need to do anything
more?

MS. McKINNON: Nothing more from the State, Your Honor.

MS. SUTTON: Your Honor, we’re stipulating to the treatment plan and we
don’t have any opposition to that, at this time.

COURT: There is a treatment plan in place that has been signed off on by the
Court, I believe?

MS. SUTTON: Yes, Your Honor.

(Emphasis added.)

¶21 Another review hearing was held on March 14, 2006, where the District Court

received an update on the parents’ progress. Prior to the date of this hearing, separate

counsel was appointed for J.D. because DPHHS had expressed to the parents that it might

seek to terminate their parental rights. At the hearing, Ms. Jacobs testified that the home

visits were not able to be properly supervised because of the smell of cigarette smoke in

the apartment, and that the excessive smoke was causing wheezing with the children.

Moreover, Ms. Jacobs stated that based on the observations of care providers “the least

amount of contact they have with their parents, that the less aggressive they are and the

better their behaviors are, which leads to the concerns of their treatment of the children

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and their compliance with the treatment plan, or I should say their failure with the

treatment plan.” The District Court expressed concern over the smoking issue and set

another review hearing for April 25, 2006.

¶22 Prior to the next review hearing, G.C. and J.D. signed and agreed to a third

treatment plan. The first section of this third treatment plan read as follows:

IDENTIFICATION OF THE PROBLEMS OR CONDITIONS THAT
RESULTED IN THE ABUSE OR NEGLECT.

1) J.C. and A.D. have developmental delay issues, especially in the area of
language skills.
2) G.C. and J.D. have limited parenting skills and limited home
maintenance skills. G.C. and J.D. have limited knowledge of child
development.
3) G.C. and J.D. have anger management problems. This causes them to
ignore the service providers who are trying to teach them new skills.
4) G. C. and J.D. have relationship problems, creating a tremendous amount
of tension and stress in the home environment.
5) G.C. and J.D. have been unable to manage payment of monthly living
expenses, both have gambling issues that need to be addressed.
6) G.C. and J.D. have childhood abuse issues that interfere with appropriate
parenting. In addition, because of their abusive childhoods, extended
family is not a supportive option for these young parents.

¶23 At the April 25 hearing, the parties again stipulated to continuing the TLC

Petition. At that hearing, S.M. (the biological father of J.C.), was represented by William

E. Hunt, Jr. Mr. Hunt argued that, under statute, the District Court was required to hold a

permanency hearing under § 41-3-445, MCA, given the length of TLC. The District

Court stated its belief that there was no limitation on the timeframes of TLC, so long as

the District Court granted them in six month intervals. However, to address concerns

raised by counsel and ensure compliance with statutory procedures, the District Court

deemed the proceeding a permanency hearing based on testimony given by Ms. Jacobs

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concerning the children’s status and the parents’ progress on their treatment plans. After

her testimony, Ms. Sutton addressed the District Court:

MS. SUTTON: 41-3-445 provides that a permanency hearing can be held
in conjunction with any other hearing, and it sets forth some criteria of
what needs to be discussed at the permanency hearing, and to satisfy Mr.
Hunt’s objection, they could call this a review hearing on a permanency
plan. We’re satisfied that all the criteria under the statute, from Ms.
Jacobs’ testimony today, has been satisfied . . . .

¶24 On June 30, 2006, S.M. filed a petition through his attorney Mr. Hunt to have J.C.,

his biological son, temporarily reside with him in Vermont. On July 25, 2006, the

District Court granted the petition, allowing J.C. to temporarily reside with S.M. in

Vermont from July 31 to September 1. This date was later extended.

¶25 On October 11, 2006, the Teton County Deputy Attorney, on behalf of DPHHS,

filed a petition to terminate G.C. and J.D.’s parental rights. A hearing was eventually

held on this petition on December 12, 2006. However, the District Court did not grant

the petition at that time. Although the District Court received evidence that the parents

had not complied with previous treatment plans, the District Court was concerned that the

existence of multiple treatment plans created some doubt as to which plan had not

properly been complied with, and that this uncertainty could leave the proceedings open

to reversal on appeal. As a result, the District Court ordered the parents to enter into a

fourth treatment plan so that they would have another chance to comply with its terms,

leaving no doubt about the propriety of a potential termination.

¶26 On October 24, 2006, DPHHS stipulated to extend S.M.’s custody of J.C. until

January 31, 2007. This stipulation, to which neither G.C. nor J.D. objected, states in part

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that “J.C. was adjudicated as a Youth in Need of Care on March 8, 2005.” On February

22, 2007, in response to a motion from DPHHS, the District Court allowed S.M. to retain

custody of J.C. in Vermont. According to the record, J.C. continues to reside with S.M.

in Vermont.

¶27 With respect to A.D., however, DPHHS continued to retain TLC. On January 24,

2007, the parents entered into a fourth treatment plan with DPHHS. The first section of

this fourth treatment plan, which the parents signed and stipulated to, reads as follows:

IDENTIFICATION OF THE PROBLEMS OR CONDITIONS THAT
RESULTED IN THE ABUSE OR NEGLECT.

1) G.C. and J.D. have limited parenting skills and limited home
management skills. G.C. and J.D. have limited knowledge of child
development.

2) G.C. and J.D. have limited knowledge of nutritional education, causing
their children to be diagnosed with Failure to Thrive. In addition, G.C.
and J.D. do not attend to their own nutritional needs.

3) G.C. and J.D. must stop smoking, as both of their children are
diagnosed with asthma. Doctors recommend these children be kept from
cigarette smoke.

¶28 On March 23, 2007, another review hearing was held. At that time, the District

Court heard testimony concerning the parents’ progress toward meeting the treatment

goals, which indicated that the parents were not complying with the treatment plan. At

the end of the hearing, the District Court addressed the parents, who were still

represented by counsel, and informed them that “[t]he State’s going to move to terminate

so you have to do what they ask of you in a hurry to stop that, to convince the Court.”

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¶29 On June 11, 2007, DPHHS filed a second Petition for Permanent Legal Custody

and Termination of Parental Rights with the Right to Consent to Adoption (Termination

Petition). In support of the Termination Petition, DPHHS alleged that: (1) A.D. and J.C.

had been adjudicated as YINC within the meaning of § 41-3-102, MCA (2005), by the

District Court on May 6, 2005; (2) four appropriate treatment plans had been prepared

and approved by the District Court and G.C. and J.D. had failed to comply with them; (3)

the conduct or condition rendering J.D. and G.C. unfit parents is unlikely to change

within a reasonable time; (4) the continuation of the parent-child relationship will likely

result in continued abuse or neglect; (5) the children had been in out-of-home care for

approximately twenty-four months; and (6) that the best interest of the children would be

served by terminating G.C. and J.D.’s parental rights and granting DPHHS’s Petition.

¶30 On September 13, 2007, a termination hearing was held before the District Court.

Based on the evidence taken at that hearing, and the fact that G.C. and J.D. had failed to

comply with the most recent treatment plan, the District Court granted the Termination

Petition. In its order, the District Court stated that J.C. and A.D. had been adjudicated

YINC on March 8, 2005, and that, based on the evidence before it, all the other statutory

requirements for a termination had been satisfied.

¶31 On October 25, 2007, J.D. filed a notice of appeal with this Court challenging the

termination of his parental rights. The kernel of J.D.’s appeal is that the District Court

abused its discretion in terminating his parental rights because A.D. and J.C. were never

formally adjudicated as youths in need of care prior to the termination of J.D. and G.C.’s

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parental rights. J.D. argues that the absence of this adjudication requires reversal of the

proceedings below. J.D.’s appeal is timely taken.

ISSUE

¶32 We state the sole issue on appeal as follows: Did the District Court err in

terminating J.D.’s parental rights?

STANDARD OF REVIEW

¶33 We review a district court’s decision to terminate parental rights for an abuse of

discretion. In re L.H., 2007 MT 70, ¶ 13, 336 Mont. 405, ¶ 13, 154 P.3d 622, ¶ 13. “An

abuse of discretion occurs when a district court acts arbitrarily without conscientious

judgment or exceeds the bounds of reason.” State v. McCaslin, 2004 MT 212, ¶ 15, 322

Mont. 350, ¶ 15, 96 P.3d 722, ¶ 15.

¶34 When making a decision to terminate parental rights, the district court must make

specific factual findings in accordance with the requirements of § 41-3-609, MCA, and

we review these factual findings under the clearly erroneous standard. In re L.H., ¶ 13.

“A finding is clearly erroneous if it is not supported by substantial evidence, if the trial

court misapprehended the effect of the evidence, or if our review of the record convinces

us that a mistake has been committed.” Gelderloos v. Duke, 2004 MT 94, ¶ 22, 321

Mont. 1, ¶ 22, 88 P.3d 814, ¶ 22 (citations omitted). We review the district court’s

conclusions of law in terminating parental rights to determine if they are correct. In re

L.H., ¶ 13.

DISCUSSION

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¶35 “The termination of parental rights invokes fundamental liberty interests which

must be protected by fundamentally fair procedures.” In re Custody and Parental Rights

of M.W. and C.S., 2001 MT 78, ¶ 4, 305 Mont. 80, ¶ 4, 23 P.3d 206, ¶ 4 (citing Santosky

v. Kramer, 455 U.S. 745, 102 S. Ct. 1388 (1982)). “We have previously held that

fundamental fairness requires that a parent be represented by counsel at proceedings to

terminate parental rights in order to ‘have an equal opportunity to present evidence and

scrutinize the State’s evidence.’ ” In re Custody of M.W., ¶ 25 (quoting In re A.S.A.,

J.L.A., G.A. and A.J.A., 258 Mont. 194, 198, 852 P.2d 127, 129 (1993)). We have also

stated that “due process requires that the parent not be placed at an unfair disadvantage

during the termination proceedings.” In re A.S., 2004 MT 62, ¶ 12, 320 Mont. 268, ¶ 12,

87 P.3d 408, ¶ 12 (footnote omitted). Moreover, the party seeking termination must

“prove each of the applicable statutory requirements before terminating an individual’s

parental rights.” In re Custody of M.W., ¶ 4. “Additionally, when considering the criteria

for termination of parental rights, courts must give primary consideration to the best

interests of the child as demonstrated by the child’s physical, mental, and emotional

needs.” In re F.M. and D.M., 2002 MT 180, ¶ 22, 311 Mont. 35, ¶ 22, 53 P.3d 368, ¶ 22.

Moreover, Article II, Section 15 of the Montana Constitution, explicitly guarantees to

those persons under the age of eighteen “all the fundamental rights of . . . Article [II]

unless specifically precluded by laws which enhance the protection of such persons.”

¶36 The required statutory criteria for termination are at § 41-3-609, MCA (2005), and

read as follows:

41-3-609. Criteria for termination

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 (1) The court may order a termination of the parent-child legal
relationship upon a finding established by clear and convincing evidence,
except as provided in the federal Indian Child Welfare Act, if applicable,
that any of the following circumstances exist:
(a) the parents have relinquished the child pursuant to 42-2-402 and
42-2-412;
(b) the child has been abandoned by the parents;
(c) the parent is convicted of a felony in which sexual intercourse
occurred or is a minor adjudicated a delinquent youth because of an act
that, if committed by an adult, would be a felony in which sexual
intercourse occurred and, as a result of the sexual intercourse, the child is
born;
(d) the parent has subjected a child to any of the circumstances
listed in 41-3-423(2)(a) through (2)(e);
(e) the putative father meets any of the criteria listed in 41-3-
423(3)(a) through (3)(c); or
(f) the child is an adjudicated youth in need of care and both of the
following exist:
(i) an appropriate treatment plan that has been approved by the court
has not been complied with by the parents or has not been successful; and
(ii) the conduct or condition of the parents rendering them unfit is
unlikely to change within a reasonable time.

¶37 The facts of this case fall under subsection (f) of the statute. J.D. maintains that

under subsection (f) a YINC adjudication a jurisdictional prerequisite to a parental

termination, argues that no such adjudication occurred in this case, and, further, that the

parents never stipulated that A.D. and J.C. were YINC. J.D. notes that the District

Court’s order granting the Termination Petition states that J.C. and A.D. were adjudicated

as YINC on March 8, 2005. J.D. maintains that a review of the March 8 order shows that

J.C. and A.D.’s status as YINC was never formally adjudicated at that time, and that they

were never in fact adjudicated as YINC during any of the subsequent proceedings over

the course of approximately two years. As a result, J.D. maintains, the TIA, TLC, court-

18
approved treatment plans, and termination proceedings are not valid, and the termination

of his parental rights by the District Court must be reversed.

¶38 As an initial matter, we note that a YINC adjudication is not always required for

TIA and court-approved treatment plans. Under § 41-3-433, MCA (2005), DPHHS “may

petition the court for authorization to conduct an investigation into allegations of child

abuse, neglect, or abandonment when necessary. An order for temporary investigative

authority may not be issued for a period of longer than 90 days. The petition must be

served as provided in 41-3-422.” The statute makes no mention of an YINC

adjudication. This makes sense because TIA is generally granted in order to allow

DPHHS to determine if a child is a YINC. Similarly, under § 41-3-443(1), MCA (2005),

“[t]he court may order a treatment plan if: (a) the parent or parents admit the allegations

of an abuse and neglect petition; (b) the parent or parents stipulate to the allegations of

abuse or neglect pursuant to 41-3-434; or (c) the court has made an adjudication under

41-3-437 that the child is a youth in need of care.” Here, the parents admitted their

children had been abused or neglected on four occasions in the treatment plans they

entered into with DPHHS. See ¶¶ 7, 20, 23, 28. Thus, the treatment plans and TIA were

proper, irrespective of an YINC adjudication.

¶39 However, J.D. correctly notes that an adjudication that a child is a YINC is

required for TLC under § 41-3-442(1), MCA (2005), and for a termination of parental

rights under § 41-3-609(f), MCA (2005), if none of the other criteria under § 41-3-609,

MCA (2005), are applicable. See ¶ 37. “By definition, a ‘youth in need of care’ . . . is a

youth who has been adjudicated or determined, after a hearing, to be or to have been

19
abused or neglected. Such a finding, pursuant to § 41-3-404(1), MCA, must be

determined by a preponderance of the evidence.” In re B.N.Y., 2003 MT 241, ¶ 26, 317

Mont. 291, ¶ 26, 77 P.3d 189, ¶ 26. Moreover, we have repeatedly referred to the YINC

adjudication as a jurisdictional prerequisite, or “threshold requirement,” to the

termination of parental rights. In re B.N.Y., ¶ 22; In re M.O., M.O. and M.O., 2003 MT

4, ¶ 12, 314 Mont. 13, ¶ 12, 62 P.3d 265, ¶ 12.

¶40 Throughout these proceedings, the District Court continuously stated that J.C. and

A.D. had been adjudicated as YINC on March 8, 2005. As noted above at ¶ 10, despite

the fact that the order was captioned “Order Adjudicating Children as Youth in Need of

Care and Granting Temporary Investigative Authority,” no adjudication occurred on that

date. Instead, the District Court granted DPHHS TIA so that it could have all the

necessary powers to conduct an investigation to determine whether J.C. and A.D. were

YINC.

¶41 However, an adjudication of the children’s YINC status was not actually required

until the District Court granted TLC on May 6. The State acknowledges that it did not

present evidence that the children were YINC at the adjudication hearing on May 6, but

argues that this failure amounts to harmless error in this case and did not undermine the

fundamental fairness of these proceedings. The State, citing to In re F.H., J.K., and B.K.,

266 Mont. 36, 878 P.2d 890 (1994) and In re A.N. and C.N., 2000 MT 35, 298 Mont.

237, 995 P.2d 427, notes that we have previously applied the doctrine of harmless error in

the parental termination context.

20
¶42 The State asserts that DPHHS did not present evidence of abuse and neglect in

support of a formal adjudication at the May 6 hearing because the parents stipulated to

treatment plans—in which they admitted their children had been abused or neglected—

and also stipulated in open court to the TLC Petition. See ¶ 14. The State concedes that

its counsel and the District Court should have sought a specific stipulation from the

parents, or taken evidence and made an adjudication based on evidence presented at that

time, but that because the parents were stipulating to the proceedings through counsel,

and did not object to the contents of the treatment plans, TLC Petition, or subsequent

petitions thereafter, the State’s failure to present evidence and “any error below did not

undermine the fundamental fairness of the proceedings and would be harmless.”

¶43 We conclude that the error in these proceedings was harmless and did not offend

the parents’ due process rights. A s we have previously stated, “[t]his Court has

consistently interpreted abuse and neglect statutes to protect the best interest of the

children. ‘In matters involving abused and neglected children we have consistently held

that a district court may protect the children’s best interest despite procedural error.’ ” In

re Inquiry Into M.M., A.D., and L.D., 274 Mont. 166, 173, 906 P.2d 675, 679 (1995)

(quoting In re F.H., 266 Mont. at 39, 878 P.2d at 892). In In re F.H., we cited to

numerous Montana cases in which procedural errors were held harmless and did not

prevent us from protecting the best interest of children. In re F.H., 266 Mont. at 39, 878

P.2d at 892. In In re A.N., we upheld a termination even though it was based on

compliance with an unconstitutional treatment plan which forced a father “to choose

between his Fifth Amendment right against self-incrimination and his parental rights.” In

21
re A.N., ¶ 38. We affirmed the termination, stating that “[o]n this record, we cannot

conclude that inclusion of the inappropriate requirements in [the father’s] . . . treatment

plan significantly impacted on the District Court’s decision or resulted in substantial

injustice.” In re A.N., ¶ 41. In so doing, we relied upon the “well established

[principle] . . . 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.’ ” In re A.N., ¶ 39 (quoting Newbauer v. Hinebauch, 1999 MT 115,

¶ 20, 288 Mont. 482, ¶ 20, 958 P.2d 705, ¶ 20).

¶44 Many other jurisdictions similarly apply the harmless error doctrine in termination

proceedings. As the South Dakota Supreme Court has stated, “[o]n rare occasions, this

Court has applied harmless error analysis to the adjudicatory phase to affirm the

termination of parental rights despite errors occurring below. The question is ‘if

reversing for an adjudicatory hearing will truly produce any rational possibility of a

different result.’ ” Interest of J.G.R., 691 N.W.2d 586, 592 (S.D. 2004) (quoting Interest

of C.V., 579 N.W.2d 17, 20 (S.D. 1998)). Similarly, the North Dakota Supreme Court

has held that “non prejudicial mistakes” in termination proceedings constitute harmless

error and are not grounds for reversal. In the Interest of K.S. and A.S., 652 N.W.2d 341,

346 (N.D. 2002).

¶45 By the time of the May 6 hearing, the parents agreed to a treatment plan in which

they admitted their children were abused or neglected. At the May 6 hearing, the parents

then stipulated in open court to the TLC Petition. They were represented by counsel who

did not object to any part of the TLC Petition which clearly states that “Petitioner alleges

22
that there is sufficient evidence to establish, by a preponderance of the evidence, that the

above-named child is a Youth in Need of Care . . . such that the Court should enter an

order of adjudication and temporary legal custody.” Additionally, the TLC Petition

contains specific allegations of abuse and neglect, including an affidavit from DPHHS

social worker Patty Jacobs. (See ¶¶ 10-11.) The District Court made clear that it was

granting the TLC Petition based on the stipulation of the parents in open court. In

previous situations, we have recognized that parents may stipulate a child is a YINC and

that such a stipulation will satisfy this threshold requirement of an YINC adjudication in

the absence of a formal adjudication hearing. In re M.B., J.B., W.B., 2004 Mont. 304,

¶ 17, 323 Mont. 468, ¶ 17, 100 P.3d 1006, ¶ 17. In its order granting the TLC Petition,

the District Court found that:

2. The Petitioner has shown by a preponderance of the evidence that
continued court and department intervention is required.
3. The above-named children were adjudicated as Youth in Need of
Care on March 8, 2005.

¶46 The error committed by the District Court in this and subsequent orders was its

repeated reference to March 8 as the date of adjudication, whereas in reality May 6 was

the date upon which the District Court established, by a preponderance of the evidence

and the stipulation of the parties, that continued involvement was required. As J.D.

correctly notes, the “YINC definition calls for a definite determination of abuse, neglect,

or abandonment.” The evidence from the treatment plans, TLC Petition, and the District

Court’s findings of fact and conclusions of law (See ¶¶ 10-16), demonstrate that abuse

and neglect of these children was determined and established by a preponderance of the

23
evidence by the May 6 hearing. While J.D. avows that neither he nor G.C. ever

stipulated that J.C. and A.D. were YINC, he fails to consider the significance of

stipulating to the TLC Petition and TLC Extension Petition in open court though counsel.

(See ¶¶ 14, 18.) While J.D.’s appellate counsel has carefully examined the record and

correctly noted that no adjudication actually occurred on March 8, and that the District

Court’s repeated references to that date as the date of adjudication was in error, she has

failed to establish why this erroneous reference is anything other than procedural in

nature, given the parents’ repeated stipulations to the TLC Petition which alleged that a

preponderance of the evidence established that J.C. and A.D. were YINC and contained

sufficient evidence to support those allegations, as well as the District Court’s findings of

fact in the order granting the TLC Petition. (See ¶ 15.)

¶47 J.D. does not challenge the evidence or allegations contained in either petition, nor

does he allege that he or his counsel was not aware of their contents, that he was misled

as to the nature of the proceedings, or that the proceedings were fundamentally unfair. In

this regard, the cases upon which J.D. relies, In re B.N.Y. and In re M.O., are

distinguishable. In In re B.N.Y., for instance, we reversed a termination of parental rights

because were there was no evidence of abuse and neglect, or findings to that effect which

were established by a preponderance of the evidence. In re B.N.Y., ¶ 12. In that case, the

mother whose rights were terminated never properly stipulated that her children were

abused or neglected in a treatment plan, and no adjudication had occurred; thus, we held

the treatment plan and subsequent termination was invalid. In re B.N.Y., ¶ 26. Here, by

contrast, the parents have stipulated to and signed treatment plans which alleged that their

24
children have been abused or neglected. They have had counsel throughout these

proceedings. They also stipulated to the TLC Petition, which explicitly stated that the

evidence established, by a preponderance, that continued court involvement was required

and that the children were youths in need of care, even though the date of adjudication

which it referred to was erroneous. J.D. and G.C. then stipulated to the TLC Extension

Petition, which alleges the same. Finally, J.D. and G.C. did not object, at either

termination hearing, that the children were not adjudicated YINC.

¶48 In In re M.O., a petition seeking TIA was filed by DPHHS with respect to a

mother’s (L.K.) three children. At the time, L.K., who was not represented by counsel,

objected to some of the factual allegations in the petition and reserved her right to object

to those allegations at a later date. In re M.O., ¶ 3. Five days prior to a review hearing on

the TIA, DPHHS filed a petition for TLC, and a show cause hearing for TIA and TLC

was scheduled for April 3, 2000. At the joint hearing, DPHHS informed the district court

that it had not actually filed a petition for TLC, but that it would do so if L.K. had no

objection. L.K., who was still not represented by counsel at that time, agreed to the TLC

petition, although at that time there was no evidence or testimony taken concerning the

TLC petition. The district court subsequently granted the petition.

¶49 The TLC petition was extended on two occasions. Then, on April 23, 2001,

DPHHS filed a petition to terminate L.K.’s parental rights. The district court granted the

petition, and in its order stated that L.K.’s children had been adjudicated as YINC on

April 3, 2000. In re M.O., ¶ 8. L.K. appealed the termination, and we reversed. In that

case, there was no testimony and no evidence taken at the April 3, 2000 proceedings.

25
Thus we concluded that “the court neither made nor could have made—given the absence

of any evidence—a determination that a preponderance of the evidence established the

children were youths in need of care.” In re M.O., ¶ 15.

¶50 In the instant case, the evidence of abuse and neglect as set forth in the TLC

Petition, order granting the TLC Petition, and TLC Extension Petition, is overwhelming.

If the parents had objected to any part of the TLC Petition or subsequent findings of the

District Court, or disputed the status of their children as YINC, the District Court could

have easily made a ruling on the children’s YINC status at that time. As it stands, the

District Court’s May 6 order clearly indicates that it was granting TLC based on the

parents’ stipulation and a preponderance of the evidence that TLC should be granted.

The factual findings issued by the District Court in support of its decision demonstrate

abuse and neglect by a preponderance of the evidence (See ¶ 16), showing that J.C. and

A.D. were YINC. In re B.N.Y., ¶ 26 (“[A] ‘youth in need of care’ . . . is a youth who has

been adjudicated or determined, after a hearing, to be or to have been abused or neglected

. . . by a preponderance of the evidence.”). We agree that the District Court should have

made the adjudication effective on May 6 instead of referring to the March 8

adjudication. To its credit, DPHHS alone noticed that May 6 was properly the date of

adjudication, and in both of its termination petitions alleged that A.D. and J.C. had been

adjudicated as YINC by the District Court on May 6, 2005, not on the erroneous March 8

date. However, the error committed by the District Court in this case is harmless and did

not undermine the fundamental fairness of the termination proceedings.

26
¶51 While we agree with J.D. that parents should not have their parental rights

terminated based solely on “unwitting stipulations” due to erroneously captioned court

documents, such is not the case here. A review of the record demonstrates unequivocally

that these parents were afforded full due process at every stage, and had ample

opportunity to object to the proceedings and findings, yet they stipulated and agreed to

the court proceedings through counsel and at every turn.

¶52 A reversal at this point in the proceedings on the grounds advocated by J.D. would

have a devastating effect on the rights of the children and their best interests. The

evidence of abuse and neglect in this case is overwhelming, and the parents have been

afforded ample opportunity to comply with treatment plans, object to any evidence

presented against them on the issues of neglect or abuse, and ensure that their rights have

been respected and protected. More importantly, if the parents had timely objected that

J.C.’s and A.D’s YINC status had not been adjudicated, the District Court could have

done so easily due to the ample evidence before it.

¶53 In her dissent, Chief Justice Gray expresses concern that our Opinion in this case

will subject “any and every statutory requirement” relating to the termination of parental

rights to the “harmless error axe” (Gray, C.J., Dissent at ¶ 57), and that the Court “simply

writes both the statutory and jurisprudential bases for the [YINC] adjudication out of

existence . . . .” (Gray, C.J., Dissent at ¶ 62.) Similarly, in his dissent Justice Nelson

expresses concern that our approach in this case will “encourage sloppy practice and

procedures in the termination process” and thereby deny parents the benefits of their

constitutional rights. (Nelson, J., Dissent at ¶ 73.) These concerns are well-founded.

27
The doctrine of harmless error should be applied in parental termination cases only on the

rarest of occasions and with great caution. In the overwhelming majority of cases, failure

to strictly comply with the statutory requirements governing termination proceedings will

constitute grounds for reversal.

¶54 However, the record before us shows that this is one of those very rare occasions

where the harmless error doctrine should be applied. The Chief Justice argues that the

parents’ repeated agreement to treatment plans and their subsequent stipulations to the

proceedings should not be construed to mean that the children in this case were

adjudicated as youths in need of care. (Gray, C.J., Dissent at ¶¶ 66, 67.) However, Chief

Justice Gray fails to make mention of the District Court’s findings in this case pursuant to

the May 6 hearing, which establish abuse and neglect of the children by a preponderance

of the evidence. (See ¶ 15.) The allegations and evidence in support of these findings

were contained in the TLC Petition and the affidavit of Ms. Jacobs which was attached

thereto. By stipulating to the TLC Petition, and by failing to object to any of its contents

or the evidence contained therein, the parents admitted those allegations as true and, more

importantly, the evidentiary bases upon which the District Court made its decision. Thus,

this case is a far cry from situations such as In re M.O. and In re B.N.Y., where there was

no evidence of abuse or neglect before the district courts. Had the District Court failed to

make these findings, or if there was even the remotest suggestion that they were not

supported by substantial evidence, the case for reversal would be much more compelling.

However, the point of an adjudicative hearing on a child’s status as a YINC is to

establish, by a preponderance of the evidence, that the child has been abused or

28
neglected. The District Court did that here by virtue of the May 6, 2005 hearing when it

decided to grant the TLC Petition.

¶55 On appeal, the parents do not point to any substantive manner in which the

proceedings in this case violated their due process rights. Although J.D. correctly notes a

procedural error in the District Court’s proceedings, he does not argue this error affected

the outcome of the case or that the error prejudiced him in substantive manner. When

parents, who are represented by counsel, stipulate time and again to treatment plans and

TLC petitions which allege their children have been abused or neglected and are

adjudicated YINC, and fail to lodge any objections whatsoever, we should not turn a

blind eye to the best interests of the children, and their constitutional rights—especially

given that Article II, Section 15 of the Montana Constitution explicitly guarantees to

those persons under eighteen “all the fundamental rights of . . . Article [II] unless

specifically precluded by laws which enhance the protection of such persons.”

CONCLUSION

¶56 In face of the overwhelming evidence and repeated stipulations of the parents to

allegations of abuse and neglect, the District Court did not abuse its discretion in

terminating G.C. and J.D.’s parental rights. Although the District Court erred in

concluding a YINC adjudication of the children occurred on March 8, 2005, subsequent

proceedings rendered this error harmless. Thus, we affirm the termination of G.C. and

J.D.’s parental rights.

/S/ PATRICIA COTTER

29
We concur:

/S/ W. WILLIAM LEAPHART
/S/ JIM RICE
/S/ JOHN WARNER
/S/ BRIAN MORRIS

Chief Justice Karla M. Gray, dissenting.

¶57 I respectfully, but strenuously, dissent from the Court’s opinion. I totally agree

that the best interests of the children are ultimately the paramount consideration in child

abuse and neglect cases. It is my view, however, that statutory and jurisprudential rules

must be followed in reaching that ultimate stage. Today, the Court determines that a

failure to adjudicate children as youths in need of care—an adjudication clearly required

by statute as a prerequisite to termination of parental rights and by this Court’s

jurisprudence holding such an adjudication is a required threshold step in the process—

can constitute harmless error which does not violate a parent’s fundamental liberty

interests in fundamentally fair procedures. I conclude from this that not a single statutory

requirement need be followed during trial court proceedings involving allegations of

child abuse or neglect—that is, any and every statutory requirement can fall to the

“harmless error” axe. I cannot agree that the end justifies the means when fundamentally

fair procedures are constitutionally required.

¶58 I also cannot agree that repeated “findings” by the trial court—that an adjudication

which did not occur actually occurred in early March of 2005—can possibly be other

30
than clearly erroneous findings. Under nearly identical circumstances, we have held such

a finding “plainly wrong” without equivocation. Matter of T.C., 2001 MT 264, ¶ 16, 307

Mont. 244, ¶ 16, 37 P.3d 70, ¶ 16. We should do so here and, on that basis, reverse.

¶59 My remaining disagreements with the Court’s opinion are numerous and

substantial, but I will address just the most serious of them in order to avoid further

delay. I begin with the errors—of omission and commission—which are contained in the

FACTUAL AND PROCEDURAL BACKGROUND portion, and which set the stage for

a flawed legal analysis.

¶60 First, the record is clear that the petition filed on February 22, 2005, was not

merely a TIA Petition, as the Court terms it. It was a “Petition for Adjudication of Child

as Youth in Need of Care and Temporary Investigative Authority” (emphasis added)

which contained allegations that “sufficient evidence . . . establish[es] the . . . children

are Youths in Need of Care and requested the trial court to enter “an order of adjudication

and temporary investigative authority.” During the March show cause hearing on the

petition, the only mention that an adjudication of the children as youths in need of care

was being sought came from the District Court at the very outset of the hearing. Nothing

more was said and no evidence or testimony was presented. Notwithstanding the form

order presented to the trial court suggesting that it was an adjudication order as well as an

order granting TIA, the record is clear that no adjudication occurred. Subsequent

petitions likewise were dual in nature; for example, the petition for TLC was also a

petition for adjudication. The record remains clear that no adjudication ever occurred in

this case.

31
¶61 I also observe with some dismay the Court’s repeated reliance on the parents

stipulating to TIA, and later TLC, as though those stipulations bear any relationship to

the required adjudication of the children as youths in need of care. A parent’s stipulation

to TLC—and presumably TIA—is not a stipulation that the children are youths in need of

care; nor does a trial court’s adoption of such a stipulation imply that the court

adjudicated the children as such. See e.g. Matter of T.C., ¶¶ 17-18.

¶62 The Court does correctly set forth § 41-3-609(1)(f), MCA, as containing the

criteria on which the termination of parental rights in the present case was intended to

proceed. See ¶¶ 36-37. The first statutory criterion, of course, is that the child is an

adjudicated youth in need of care. If the adjudication is not made at the initial show

cause hearing, it must be made within 90 days thereafter. Sections 41-3-432 and 41-3-

437, MCA. The Court candidly cites, at ¶ 39, to the cases in which this Court has

“repeatedly referred to the YINC adjudication as a jurisdictional prerequisite, or

‘threshold requirement,’ to the termination of parental rights.” The Court then simply

writes both the statutory and the jurisprudential bases for the adjudication out of

existence by moving on to a “harmless error” analysis and improperly “distinguishing”

the noted cases. I cannot agree.

¶63 It is true that we have, on occasion, applied the harmless error standard in a

termination of parental rights case. We have never done so, however, in a case where no

adjudication of children as youths in need of care—the initial requirement pursuant to

both statute and our cases—occurred, and the Court does not suggest otherwise. How a

proceeding which culminates in a termination of parental rights, but which begins by

32
ignoring the first and underlying requirement for termination, can be a fundamentally fair

procedure protecting the parents’ liberty interest is inconceivable to me.

¶64 The Court also relies at ¶ 45 on the parents’ agreement to a treatment plan

sometime prior to the May 6 hearing, in which they purportedly “admitted their children

were abused or neglected.” The truth of the matter is somewhat different, however, as

the record and transcripts reflect. Soon after the DPHHS filed its initial petition for

adjudication and for TIA, the District Court entered an order to show cause, observing

that there was probable cause to believe that J.C. and A.D. were abused or neglected or in

danger of being abused or neglected. That order also gave the DPHHS certain

emergency authority and set the March 8 show cause hearing. Prior to that hearing and

without authority or approval from the District Court, the DPHHS presented the parents

with the first treatment plan. The parents—no doubt eager to keep the children at home

and cooperate with the DPHHS—signed the treatment plan, as did the DPHHS. It was

presented to the trial court during the March 8 hearing, and an objection was made—and

resolved—regarding one of the elements of the treatment plan. The other elements of the

plan were not challenged. At that hearing, the parents stipulated to TIA and the District

Court set a review hearing for the following month.

¶65 This process totally ignores the mandates in § 41-3-443(1), MCA, pursuant to

which the court may approve a treatment plan if the parents admit the allegations of abuse

and neglect, the parents stipulate to the allegations or the court has made the adjudication

of youths in need of care. Conversely, it also ignores § 41-3-434(2), MCA, which allows

a parent to stipulate to a treatment plan if the child has been adjudicated a YINC. The

33
statutes simply do not contemplate or allow the kinds of procedures used by the DPHHS,

its counsel and the trial court in this case.

¶66 Notwithstanding, the Court construes the parents’ agreement to the formatted

treatment plan—which sets forth goals, tasks for the parents and tasks for the social

worker—as admissions to the allegations of abuse and neglect. It does so on the theory

that, because the beginning portion of the “Treatment Plan” is captioned

IDENTIFICATION OF THE PROBLEMS OR CONDITIONS THAT RESULTED

IN THE ABUSE OR NEGLECT, the parents’ signatures admitted that abuse or neglect

occurred. This cannot be so. The record and transcripts of the March, April, May, July

and October of 2005 hearings make no mention of such admissions; they clearly do

reflect the parents’ agreement with the elements of the treatment plan, with TIA, with

TLC, and with an extension of TLC. The separate section of the document on which the

Court relies has nothing at all to do with the elements, goals and tasks of the treatment

plan portion to which the parents did agree. The DPHHS simply cannot be permitted to

“hornswoggle” unsuspecting parents into damning admissions in such ways. And yet

this is the portion of the various “treatment plans” on which the Court relies in attempting

to distinguish In re B.N.Y. and In re M.O. According to the Court, ¶47, signing treatment

plans containing separate sections of allegations of abuse or neglect constitutes a

stipulation to abuse or neglect. In my view, it does not and cannot.

¶67 The Court also states that the parents stipulated to the TLC and the TLC Extension

Petitions, both of which stated that the evidence established that the children were YINC.

This is simply incorrect. The parents stipulated to TLC and to extension of TLC, and

34
nothing of record reflects stipulations or admissions to anything more. Finally, no

evidence or testimony was taken at any of the hearings in which an adjudication of YINC

could have timely taken place.

¶68 I cannot join in the Court’s approach, analysis or resolution of this case. I would

reverse the District Court, and I dissent from the Court’s failure to do so.

/S/ KARLA M. GRAY

Justice James C. Nelson dissents.

¶69 I join Chief Justice Gray’s dissent and likewise respectfully state my strenuous

disagreement with the Court’s decision.

¶70 Youth-in-need-of-care cases are some of the most difficult this Court reviews.

Indeed, in my nearly 15 years serving as a member of this Court, I can honestly say that

there are few cases where the child or children would not be better off with an adoptive

family, a foster family, or in a group living arrangement, than being “parented” by the

biological parents. Time and time again we see innocent children as the victims of sexual

and physical abuse or abject neglect; living in filth that animal control officers would

condemn; and “parented” by incompetent and uncaring “parents” who operate in a haze

of methamphetamine or some other chemical. We see children whose lives and

35
development are devastated by the people who should be teaching and nurturing them.

Every case is different; but every case is as bad as, or worse than, the last. Indeed, if the

best interests of the child were the sole criteria for terminating parental rights, our jobs

would be simple. We could simply state the facts of the case and affirm.

¶71 However, given the fundamental liberty interest of parents to parent and to not

suffer termination of that interest except through fundamentally fair procedures—see In

re D.B., 2007 MT 246, ¶ 17, 339 Mont. 240, ¶ 17, 168 P.3d 691, ¶ 17—the Legislature

has imposed upon the government a statutory scheme which protects that right. It is the

duty of the county attorney, DPHHS, and the trial courts to follow these statutes. And, it

is our job to make sure they do.

¶72 Unfortunately, in many cases, this Court turns a blind eye when this statutory

scheme is not followed.1 We justify this approach because, in our view, the best interests

of the child or children are better served than requiring the government to follow the law.

¶73 There is mischief in this approach, however. We encourage sloppy practice and

procedures in the termination process, we deny parents the benefit of their constitutional

rights and of the laws the Legislature has enacted, and we invite trial courts to short-

circuit the statutory scheme.

1
See In re K.J.B., 2007 MT 216, 339 Mont. 28, 168 P.3d 629; In re B.B., 2006 MT 66,
331 Mont. 407, 133 P.3d 215; In re A.N.W., 2006 MT 42, 331 Mont. 208, 130 P.3d 619;
In re A.T., 2006 MT 35, 331 Mont. 155, 130 P.3d 1249; In re S.C., 2005 MT 241, 328
Mont. 476, 121 P.3d 552; Inquiry into M.M., 274 Mont. 166, 906 P.2d 675 (1995);
Matter of F.H., 266 Mont. 36, 878 P.2d 890 (1994).

36
¶74 Indeed, there is no incentive for the government to follow the law since there is no

consequence for violating it.

¶75 I, too, dissent from this approach.

/S/ JAMES C. NELSON

37