August 17 2010
DA 10-0092
IN THE SUPREME COURT OF THE STATE OF MONTANA
2010 MT 176N
IN THE MATTER OF:
T.H.,
A Youth in Need of Care.
APPEAL FROM: District Court of the Sixth Judicial District,
In and For the County of Park, Cause No. DN 08-17
Honorable Laurie McKinnon, Presiding Judge
COUNSEL OF RECORD:
For Appellants:
Elizabeth Thomas, Attorney at Law, Missoula, Montana
Joseph P. Howard, Attorney at Law, Great Falls, Montana
For Appellee:
Steve Bullock, Montana Attorney General; Mardell Ployhar, Assistant
Attorney General, Helena, Montana
Brett D. Linneweber, Park County Attorney, Livingston, Montana
Submitted on Briefs: June 23, 2010
Decided: August 17, 2010
Filed:
__________________________________________
Clerk
Justice Michael E Wheat delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal
Operating Rules, as amended in 2006, the following memorandum decision shall not be cited
as precedent. It shall be filed as a public document with the Clerk of the Supreme Court and
its case title, Supreme Court cause number, and disposition shall be included in this Court’s
quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.
¶2 The Sixth Judicial District Court, Park County, terminated the parental rights of R.H.
and A.G, the parents of T.H. R.H. and A.G. appeal. We affirm. The issues on appeal are
whether the District Court erred by not strictly following statutory requirements and whether
the District Court abused its discretion when it terminated R.H.’s and A.G.’s parental rights.
¶3 On December 1, 2008, when T.H. was approximately four months old, T.H.’s mother,
A.G., brought T.H. to the emergency room in Livingston because T.H. had not been moving
her right leg. An x-ray revealed that T.H.’s femur was broken. Dr. Peggy O’Hara, the
emergency room physician, suspected that the fracture had been caused by child abuse, so
she contacted the Department of Public Health and Human Services (DPHHS). Because of
her suspicions, Dr. O’Hara took more x-rays, which revealed that T.H. had two broken ribs
and a broken clavicle.
¶4 On December 5, DPHHS filed a petition for immediate protection and emergency
services for adjudication as a youth in need of care and for temporary legal custody. The
District Court granted immediate protection and emergency protective services and
scheduled a show cause hearing on the petition for adjudication.
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¶5 Prior to the show cause hearing, Gail McCormick, the court appointed guardian ad
litem, filed a detailed report, in which she concluded:
[There is] great cause for concern for the safety of this child in the immediate
family environment. No one in the family is taking any responsibility for the
injuries inflicted upon this baby, and obviously no one protected this baby
from this neglect and abuse. I am especially concerned about the time lapse in
getting medical help when the baby could not use her right leg . . . . If we
don’t take appropriate actions now for the protection of this child, she could
suffer permanent disability or death.
¶6 On January 6, 2009, the District Court held a show cause hearing at which both
parents stipulated that T.H. was a youth in need of care. A dispositional hearing was
scheduled for March 10.
¶7 On March 6, DPHHS filed a petition for termination of parental rights. In the
petition, DPHHS moved for termination, alleging T.H.’s parents abused and neglected her
chronically and severely, committed aggravated assault, and committed neglect that resulted
in serious bodily injury or death—all conditions for termination under § 41-3-609(1)(d),
MCA. In its petition, DPHHS noted that the parents had stipulated to adjudication of T.H. as
a youth in need of care and asserted it had obtained medical findings that showed T.H. had
been abused and neglected. DPHHS also stated: “No further efforts for reunification with
respect to the parents and the youth are necessary or in the best interests of the youth.”
¶8 The petition contained an affidavit from a DPHHS social worker, who stated that
T.H.’s injuries were consistent with child abuse and that T.H.’s supervised contacts with her
parents did not go well because the parents did not exhibit remorse or sadness about the
child’s injuries. She concluded that a treatment plan would not be successful because the
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parents had severely neglected and chronically abused T.H. and because they refused to
admit that they had caused her injuries or neglected her.
¶9 The District Court filed an order vacating the disposition hearing and setting a hearing
on the State’s petition for termination of parental rights. The court ordered that no further
efforts for reunification were necessary or in the best interests of the youth pending a hearing
on the matter.
¶10 Several witnesses testified at the hearing on the petition to terminate R.H.’s and
A.G.’s parental rights, including A.G. and R.H. A.G. testified that she noticed that T.H. was
having problems with her leg on the evening of November 29. She decided to wait to take
T.H. to the emergency room because although T.H.’s leg appeared slightly swollen, A.G.
wanted to see if T.H.’s leg would improve. A.G. admitted that she did not think that T.H.’s
leg was fractured by being wrapped up in a blanket, like she originally told the social worker
at the hospital. A.G. said she had no knowledge of T.H.’s other fractures until they were
discovered on an x-ray.
¶11 R.H. testified that he noticed a change in T.H.’s behavior on the night of November
29 when T.H. did not seem to be kicking her right leg. He did not notice any swelling in
T.H.’s leg. R.H. testified that he and A.G. waited until Monday to take T.H. to the
emergency room because on Sunday, T.H. appeared to be kicking her leg slightly.
¶12 The DPHHS social workers testified about their observations of the interactions
between T.H. and her parents at the emergency room and on supervised visits. They testified
that T.H.’s health, welfare, and safety were adversely affected due to numerous incidents of
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physical abuse and severe medical neglect; T.H. would be in danger of being abused or
neglected if she was returned to her parents; A.G. and R.H. did not meet T.H.’s physical,
psychological, or medical needs; A.G. and R.H. were grossly negligent; A.G. and R.H.
committed psychological abuse and neglect; and, aggravated circumstances listed in § 41-3-
423(2)(a), MCA, including torture, chronic abuse, severe neglect, and aggravated assault had
been established. The social workers also testified that neither parent had accepted any
responsibility for T.H.’s injuries, thus they were unlikely to change within a reasonable time.
They said termination of R.H.’s and A.G.’s parental rights was in T.H’s best interest because
the risk of T.H. dying if she was returned to her parents’ care was too great.
¶13 A police detective testified that he had interviewed both of the parents separately and
neither parent was able to provide him with a plausible explanation for T.H.’s injuries. Dr.
Mark Schulein, T.H.’s pediatrician, testified that he had seen T.H. for three wellness checks
while she was in her parents’ care. At the last wellness check, Dr. Schulein was concerned
that T.H. was not gaining enough weight and said she was suffering from mild failure to
thrive.
¶14 Dr. Jeffrey Scott Prince, a pediatric radiologist, reviewed T.H.’s x-rays and testified
that T.H. had undergone at least two different episodes of injury. He testified that the femur
fracture was approximately ten days old, rather than three days old as the parents had
claimed. He said that a femur is a very strong bone that could only be fractured with a high
degree of force. Dr. Prince testified that the rib and clavicle fractures were approximately
three weeks old and were extremely uncommon in children. He testified that T.H.’s fractures
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would have been very painful, and it would have been obvious to her caregivers that she was
exhibiting the symptoms of pain. Dr. Prince concluded that T.H.’s injuries were not
consistent with accidental injuries and were consistent with abuse.
¶15 Dr. O’Hara testified that T.H. appeared to be in distress during her initial examination
at the emergency room. She concluded that none of the explanations A.G. and R.H. had
provided for T.H.’s injuries were plausible, and that T.H.’s fractures had been caused by
abuse. She concluded that the parents’ failure to seek medical attention for the fractures
constituted medical neglect.
¶16 Dr. Karen Mielke, a child abuse specialist, testified that rib fractures like T.H.’s are
very uncommon and almost always caused by shaking. She explained that the fracture of the
clavicle would have been caused by a direct blow to the shoulder. Dr. Mielke concluded that
T.H. had suffered from failure to thrive and medical neglect when she was in her parents’
care; her injuries were caused by chronic child abuse; T.H. was likely shaken by one of her
parents; and T.H. did not receive the level of care needed by her parents. She concluded that
T.H. faced “significant risk of serious bodily injury or death” if she was returned to her
parents. Finally, McCormick, the guardian ad litem, testified that A.G. and R.H.’s parental
rights should be terminated.
¶17 The District Court issued findings of fact, conclusions of law, and an order
terminating parental rights. The District Court found: the fractures would have been painful
and observable to a care provider; the parents’ delay in seeking medical attention for each of
T.H.’s injuries constituted chronic, severe neglect and abuse; the parents delayed seeking
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medical attention because they hoped evidence of the injuries would subside; T.H.’s
fractures were caused by physical abuse; and the parents never provided a reasonable
explanation for T.H.’s injuries or showed any remorse. Based on these findings, the District
Court concluded that the parents had subjected T.H. to aggravated circumstances which
constitute chronic abuse and chronic, severe neglect, which are grounds to terminate parental
rights under §§ 41-3-609(1)(d) and 41-3-423(2)(a), MCA.
¶18 On appeal, R.H. and A.G. argue that the District Court failed to follow statutory
requirements and violated their right to a fundamentally fair procedure in three ways: (1) it
violated their due process rights by failing to hold an adjudicatory hearing that met the
requirements of §§ 41-3-437 and 41-3-438, MCA, specifically failing to issue a written
order1 and failing to hold a dispositional hearing; (2) it determined that reunification efforts
were not necessary without holding a hearing as is required by § 41-3-423(5), MCA2; and,
(3) it based its termination of parental rights on insufficient findings not supported by clear
and convincing evidence as is required by § 41-3-609(1)(d), MCA.
¶19 A district court’s findings are clearly erroneous if they are not supported by
substantial evidence, if the district court misapprehended the evidence, or if we come away
from our review with a definite and firm conviction that the district court made a mistake.
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R.H. and A.G. failed to object to the lack of written findings. We will not address this argument.
A party must notify the court at the time the objectionable conduct is at issue to properly preserve an
issue for appeal. In the Matter of A.T., 2006 MT 35, ¶ 15, 331 Mont. 155, 130 P.3d 1249.
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R.H. and A.G. failed to object to the lack of hearing for the finding that reunification efforts were
not necessary. We will not hear arguments on appeal for alleged errors that the district court did not
have an opportunity to correct. In the Matter of D.H., 2001 MT 200, ¶ 41, 306 Mont. 278, 33 P.3d
616.
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Interstate Production Credit v. DeSaye, 250 Mont. 320, 323, 820 P.2d 1285, 1287 (1991).
Because parental rights are a fundamental liberty interest, an order terminating these rights
must be supported by clear and convincing evidence. In re Adoption of K.P.M., 2009 MT
31, ¶ 10, 349 Mont. 170, 201 P.3d 833; See § 41-3-609(1), MCA. The three part DeSaye test
is used to determine if a finding of fact is clearly erroneous in a case where clear and
convincing evidence is the standard of proof. K.P.M., ¶ 10. We review a district court’s
order terminating parental rights for an abuse of discretion. In the Matter of J.C., 2008 MT
127, ¶ 33, 343 Mont. 30, 183 P.3d 22.
¶20 Upon the filing of a petition, an adjudicatory hearing must be held to determine if the
minor is a youth in need of care. Section 41-3-437, MCA. Parties may stipulate to whether
the child meets the definition of a youth in need of care. Section 41-3-434(1), MCA. A
dispositional hearing must be held within 20 days after an adjudicatory order has been
entered, unless the petition is stipulated to by the parties. Section 41-3-438(1), MCA; In the
Matter of B.B., 2006 MT 66, ¶ 23, 331 Mont. 407, 133 P.3d 215.
¶21 The District Court may terminate a parent-child relationship upon a finding
established by clear and convincing evidence that the parent has subjected a child to any of
the circumstances listed in § 41-3-423(2)(a) or (c), MCA, which includes chronic abuse,
chronic and severe neglect, or committing aggravated assault against a child. Section 41-3-
609(1)(d), MCA.
¶22 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our
1996 Internal Operating Rules, as amended in 2006, which provides for memorandum
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opinions. It is manifest on the face of the briefs and the record before us that the appeal is
without merit because the legal issues are controlled by settled Montana law. R.H. and A.G.
stipulated that T.H. met the definition of a youth in need of care, therefore a dispositional
hearing was not required under § 41-3-438(1), MCA. See In re B.B., ¶ 33. Moreover, the
overwhelming evidence in the record clearly and convincingly supports the District Court’s
finding that R.H. and A.G. had chronically abused and chronically and severely neglected
T.H. It did not abuse its discretion when it terminated their parental rights.
¶23 Affirmed.
/S/ MICHAEL E WHEAT
We Concur:
/S/ MIKE McGRATH
/S/ PATRICIA COTTER
/S/ JAMES C. NELSON
/S/ BRIAN MORRIS
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