August 17 2010
DA 10-0117
IN THE SUPREME COURT OF THE STATE OF MONTANA
2010 MT 179
IN THE MATTER OF:
C.J.,
A Youth in Need of Care.
APPEAL FROM: District Court of the Fourth Judicial District,
In and For the County of Missoula, Cause No. DN 09-38
Honorable Robert L. Deschamps, III, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Joslyn Hunt, Chief Appellate Defender, Helena, Montana
Elizabeth Thomas, Office of Appellate Defender, Missoula, Montana
For Appellee:
Steve Bullock, Montana Attorney General, C. Mark Fowler, Assistant
Attorney General, Helena, Montana
Fred Van Valkenburg, Missoula County Attorney, Missoula, Montana
Kimberly Dudik, Assistant Attorney General, Missoula, Montana
Submitted on Briefs: July 21, 2010
Decided: August 17, 2010
Filed:
__________________________________________
Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.
¶1 C.J. is the third child of L.S. (Mother). Mother’s parental rights to her first two
children were terminated several years before C.J. was born. The Department of Health
and Human Services (DPHHS or Department) took custody of C.J. shortly after her birth.
DPHHS moved the Fourth Judicial District Court for an order holding that reasonable
efforts toward reunification were not required in this case based on the previous
terminations of Mother’s parental rights and other pertinent circumstances. After
numerous hearings, the District Court terminated Mother’s rights to C.J.
¶2 Mother appeals arguing that the District Court abused its discretion by failing to
hold a timely hearing on DPHHS’s “reasonable efforts” request. She claims the
unreasonable delay in conducting the hearing violated her right to a fundamentally fair
proceeding. She also claims that the court’s ruling that the Department could forego
reasonable efforts, and the court’s termination of her parental rights constituted an abuse
of discretion. We affirm.
ISSUE
¶3 A restatement of the dispositive issue on appeal is:
¶4 Did the District Court abuse its discretion when it terminated Mother’s parental
rights?
FACTUAL AND PROCEDURAL BACKGROUND
¶5 Mother has been diagnosed with somatization disorder, mild mental retardation,
and borderline personality disorder with the possibility of Munchhausen’s Syndrome.
Psychological testing revealed severe cognitive impairment, developmental delays, and
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difficulty learning new tasks and reading social cues. She further has a history of drug
and alcohol abuse but reportedly had stopped using these substances at the time this case
was pending.
¶6 Mother’s earlier children were born in May 2003 and April 2004. The biological
father of these children is Mother’s former partner, T.F. The first child was born three
weeks prematurely and the second child was eight weeks early. At the time the first child
was born, hospital staff observed Mother’s and T.F.’s interaction with the child and
became concerned that the parents would not be able to provide a safe and nurturing
environment for the child. As a result, the Department was notified and was awarded
Temporary Investigative Authority over the infant and the child was placed in foster care.
The Department worked closely with the parents in an effort to teach them necessary
parenting skills. The Department made two attempts to reunite this child with the parents
but both attempts failed.
¶7 In April 2004, a second child was born. In view of the parents’ inability to
provide adequate care for their first child, the Department placed a protective hold on this
second child. In a continued effort to unite the family, the Department approved a living
arrangement in which T.F., Mother and both children would live with T.F.’s aunt and
uncle. This arrangement lasted about six weeks at which time the children were removed
from the home and placed in foster care.
¶8 By June 2004, both children were adjudicated youths in need of care and treatment
plans were developed for the parents. During this time, the Department took numerous
steps to evaluate the parents’ abilities and to teach them necessary parenting skills.
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Despite the Department’s close oversight and the abundance of services and resources
made available to the parents, their mental health problems, learning disabilities and
persistent resistance to assistance, as well as the children’s diagnosed special needs,
rendered Mother and T.F. unable to progress under the treatment plans.
¶9 The Department ultimately moved to terminate Mother’s and T.F.’s parental
interests in the children and to place them for adoption. In March 2006, after concluding
that the statutory requirements for termination were satisfied, the district court granted
the Department’s motion and terminated the parents’ rights. Both children were
subsequently adopted by a Bozeman couple. In 2007, the adoptive parents reported that
Mother and T.F. had been “stalking” them at their home despite an order preventing any
contact with the children.
¶10 At some time in 2008, Mother and T.F. ended their relationship and Mother
embarked upon a new one. However, Mother and her new partner continued living with
T.F. In October 2008, Mother and her new partner began stalking Mother’s children and
their adoptive family.
¶11 On May 25, 2009, Mother, approximately five months pregnant, was hospitalized
with placental abruption. On June 14, 2009, Mother reported to the nurses she was
bleeding. On June 30, the hospital performed an emergency Caesarean section. The
child, C.J., was delivered eleven weeks early and weighed three pounds. Hospital staff
suspected, and noted in its records, that Mother attempted to induce early labor by
introducing a foreign object into the vaginal canal. The hospital noted that such behavior
is not uncommon for a woman with Mother’s psychological diagnoses.
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¶12 Mother reported that her new partner was the child’s father (Father). By the time
C.J. was born, the parents were no longer living with T.F. and were homeless. The child
was placed in protective custody shortly after birth. DPHHS cited the following reasons
for protective custody: Mother’s intentional induction of premature labor, her mental
health and cognitive issues, her lack of stable housing, her past and then-current charges
of criminal activities, and the involuntary termination of her parental rights to her two
other children.
¶13 C.J. required hospitalization for fifty-seven days. During this time, nurses at the
hospital tried to teach both Mother and Father how to care for their newborn child,
especially in light of the child’s special needs brought on by her premature birth. Mother
was unable to perform even the most basic activities for C.J.’s care. On July 22, 2009,
before C.J. was discharged from the hospital, the Department filed a Petition for
Emergency Services, Adjudication as a Youth in Need of Care, Finding that Reasonable
Efforts Are Not Required, and Termination of Mother’s Parental Rights to Youth as a
Consequence of Mother’s Conduct. The Department took custody of C.J. upon her
hospital discharge in August 2009. The Department argued that reasonable efforts to
reunify C.J. with her parents were unnecessary under the circumstances of this case.
¶14 On August 20, 2009, counsel for Mother objected to the removal of C.J. and
moved the court for a hearing on the Department’s assertion that reasonable efforts were
not necessary. On August 25, the District Court held a show cause hearing and set a
hearing on the State’s petition for September 3, 2009. At the September 3 hearing, the
District Court heard various witnesses testify on behalf of Mother. It ordered that
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DPHHS would retain custody of the child but ordered the Department to accommodate
additional visitation for the parents. The court further explained to the parents that
reunification may not occur any time soon because of the risk to C.J. Also, in response to
the State request that a guardian ad litem be appointed for Mother, the court so ordered.
The District Court also addressed Father’s willingness to parent C.J. on his own if Mother
could not. The court suggested neuropsychological evaluation for Father. The State
advised that a disposition hearing was not necessary as it was seeking to terminate
Mother’s parental rights and was preparing a treatment plan for Father only. The court,
nonetheless, set a disposition hearing as to both parents on September 25.
¶15 On September 21, the court issued an order in which it found C.J. to be a youth in
need of care. On September 24, the court appointed special advocate (CASA) issued a
periodic report to the court indicating that C.J. was progressing well in the foster home
and was in a “safe and nurturing environment.” The CASA expressed continued concern
over Mother’s ability to parent noting that Mother, after three children, remained
challenged by diapering, holding the child in a manner providing head and neck support,
dressing C.J. and using an infant car seat.
¶16 At the September 25 disposition hearing, the court ordered a neuropsychological
evaluation for Father. It also heard testimony that Father may not actually be the father
of the child, and that two other men could possibly be C.J.’s father. The State requested
paternity testing of Father, which he opposed. The court determined that Mother and
Father were married by common law, and therefore Father would be deemed the parent.
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¶17 A status conference was held on October 27. The State told the court that Father’s
treatment plan was not yet approved. Father reported that the proposed treatment plan
anticipated him parenting without participation by Mother—in other words, ending his
relationship with Mother—and he did not intend to do that. The court disagreed that this
was required by the treatment plan and approved the plan. Father objected to the
psychologist chosen to administer testing and requested that testing be conducted by
another doctor. The Department expressed its concerns about the suggested physician.
After extensive discussion, the court instructed Father to use the original psychologist
and to seek approval for payment of his chosen doctor to provide a second opinion.
Mother’s Guardian Ad Litem complained that the hearing on “reasonable efforts” was too
distant and requested that the court find that reasonable efforts were necessary as to
Mother. The District Court denied the request but granted all parties the right to file a
response to the Department’s submitted point brief on the appropriateness of foregoing
reasonable efforts. It set a December 11 hearing for both Mother’s termination and to
address DPHHS’s request that reasonable efforts and reunification services need not be
provided to Mother.
¶18 At the December hearing, the court heard extensive testimony and then took the
matter under advisement. It set a status conference for December 15. At the status
conference, the court reported that after reviewing and considering the testimony
presented during all the hearings in the matter as well as court records from Mother’s
earlier terminations, it concluded that DPHHS had made reasonable efforts toward
reunification with Mother in the past and during this case, and that Mother was not
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capable of caring for the minor child. The court granted the Department’s petition for
termination. The District Court set a hearing for Father for January 2010, and discharged
the services of Mother’s guardian ad litem.
¶19 The District Court issued its Findings of Fact, Conclusions of Law, and Order
Terminating the Mother’s Parental Rights on January 22, 2010. It is this Order that
Mother appeals. At the time of this appeal, Father was not progressing well with his
treatment plan; therefore, the court extended temporary legal custody to the Department.
STANDARD OF REVIEW
¶20 We review for abuse of discretion a district court’s termination of parental rights.
We determine whether the district court’s findings of fact are clearly erroneous and
whether the conclusions of law are correct. In re B.M., 2010 MT 114, ¶ 14, 356 Mont.
327, 233 P.3d 338 (citations omitted).
DISCUSSION
¶21 Did the District Court abuse its discretion when it terminated Mother’s parental
rights?
¶22 Mother does not challenge the District Court’s factual findings, but challenges the
court’s failure to conduct an earlier “reasonable efforts” hearing and its legal conclusion
to terminate Mother’s parental rights. Mother states that she is also challenging the
District Court’s conclusion that “reasonable efforts” by DPHHS were not required in this
case. However, both the transcript of the hearing and the court’s January 22, 2010 order
reflect that the court did not conclude that “reasonable efforts” were not required; rather,
it concluded that the Department had made “reasonable efforts” in this case. Therefore,
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we look only at whether the hearing on this issue was held in an untimely manner and
whether the District Court abused its discretion in terminating Mother’s rights.
¶23 It is the policy in Montana to protect children whose health and welfare may be
threatened by those persons responsible for their care, but this protection must be
provided in a manner that preserves the family environment, if possible. Section
41-3-101(1)(a) and (b), MCA. In its mission to protect children, DPHHS must make
“reasonable efforts” to avoid removing a child from its family, or if removal is necessary,
make “reasonable efforts” to reunify the family. Such efforts include, but are not limited
to, entering into voluntary protective service agreements, developing individual written
case plans, and providing services pursuant to such a plan. Section 41-3-423(1), MCA.
In making decisions about preserving or reunifying families, DPHHS must always
consider the health and safety of the child. Section 41-3-423(1), MCA.
¶24 There are circumstances, however, under which the Department need not make
such “reasonable efforts.” Rather, upon removal, DPHHS may request a court ruling that
“reasonable efforts” are not necessary and then proceed toward terminating parental
rights instead of toward reunification. Section 41-3-423(2), MCA. One such
circumstance is when a parent has had parental rights to a child’s siblings involuntarily
terminated and the circumstances related to the earlier terminations are relevant to the
parent’s ability to adequately care for the current child at risk. Section 41-3-423(2)(e),
MCA. It is under this provision that DPHHS sought the District Court’s permission to
proceed to termination of Mother’s rights without pursuing further actions toward
reunification. The Department argued that Mother had had her parental rights
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involuntarily terminated to C.J.’s older siblings and the same circumstances that resulted
in those terminations continued to exist and prevent Mother from safely caring for C.J.
¶25 While the statute addresses circumstances under which the Department may
request an exemption from “reasonable efforts,” it does not provide a timeline for a
hearing on a “reasonable efforts” motion or a decision by the court. Mother argues that
four and one-half months passed from the time the Department requested exemption from
“reasonable efforts” until the District Court held a hearing on the motion. She argues that
this delay prejudiced her, violated her right to a fundamentally fair proceeding, and that
during this time the Department did not provide her with helpful services.
¶26 It is well established that a “natural parent’s right to care and custody of a child is
a fundamental liberty interest which courts must protect with fundamentally fair
procedures at all stages of the proceedings for the termination of parental rights.” In re
B.N.Y., 2003 MT 241, ¶ 21, 317 Mont. 291, 77 P.3d 189, citing In re T.C. and W.C., 2001
MT 264, ¶ 22, 307 Mont. 244, 37 P.3d 70; In re A.F.-C., 2001 MT 283, ¶ 31, 307 Mont.
358, 37 P.3d 724. As such, termination procedures must satisfy the Due Process Clause
of the Fourteenth Amendment. B.N.Y., ¶ 21. A parent may not be placed at an unfair
disadvantage during the termination proceedings. In re T.C., 2008 MT 335, ¶ 16, 346
Mont. 200, 194 P.3d 653.
¶27 Key components of a fair proceeding are notice and an opportunity to be heard. In
re T.C. and W.C., ¶ 22. Notice is not at issue in this case as no one disputes that Mother
had notice of the Department’s intent to forego reasonable efforts. Furthermore, the
record reveals that Mother was given ample opportunity to be heard. This case was
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extensively litigated, a n d t he court conducted multiple hearings that—while not
designated as hearings on “reasonable efforts”— were conducted in a manner in which
Mother was allowed to present her claims. At the actual “reasonable efforts” hearing in
December 2009, the court heard lengthy testimony and learned that a public health nurse
was assigned to help Mother and Father learn to properly change a diaper and hold C.J. in
a supportive safe manner, a certified lactation consultant assisted Mother in breast
feeding technique and provided breast pumps, and supervised visitation was regularly
scheduled. Lastly, the Department arranged for another neuropsychological evaluation to
establish whether Mother’s previously-diagnosed impairments had improved. We note as
well that witnesses testifying on Mother’s behalf failed to identify any additional services
that could have been provided to Mother for help with C.J. that may have prevented
removal or encouraged reunification.
¶28 Based upon our review of the record, we are not persuaded that Mother was
denied a meaningful opportunity to establish that the Department could, and should, have
provided her with additional services or that she was the victim of a fundamentally unfair
procedure. Moreover, as noted above, while the Department requested an exemption
from the requirement to make reasonable efforts at reunification, the court did find as a
matter of fact that reasonable efforts to reunify had been made.
¶29 We turn now to whether the District Court abused its discretion in terminating
Mother’s parental rights. Section 41-3-609, MCA, sets forth the criteria for terminating a
parent’s right to a child. The relevant provisions are:
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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 . . . that any of
the following circumstances exist:
. . .
(d) the parent has subjected a child to any of the circumstances listed
in 41-3-423(2)(a) through (2)(e); [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.
. . .
(4) A treatment plan is not required under this part upon a finding by
the court following hearing if:
(a) the parent meets the criteria of subsections (1)(a) through (1)(e).
Section 41-3-609(1)(d) and (f)(i), (ii) and (4)(a), MCA.
¶30 In this case, Mother was not given a treatment plan because she met the criteria of
§ 41-3-609(1)(d), MCA. This provision refers back to § 41-3-423(2)(e), MCA, which is
the statute that allows a court to exempt the Department from making reasonable efforts
to reunify a family if a parent has had his or her parental rights to a child’s siblings
involuntarily terminated.
¶31 Therefore, in this case, the District Court:
1) adjudicated C.J. a youth in need of care (§ 41-3-102, MCA);
2) expressly noted that Mother’s rights to C.J.’s older siblings had been
involuntarily terminated (§ 41-3-609(1)(d) and (4)(a), MCA);
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3) heard conflicting testimony over whether the condition that rendered
Mother unfit to parent her first two children had improved or was likely to
improve in a reasonable amount of time;
4) weighed the credibility of the witnesses (Kulstad v. Maniaci, 2009 MT
326, ¶ 90, 352 Mont. 513, 220 P.3d 595) and concluded that Mother’s
condition had not improved and was unlikely to improve in a reasonable
period of time (§§ 41-3-423(2)(e) and 41-3-609(1)(d), (4)(a), MCA);
5) concluded that sufficient reasonable efforts had been made to reunify
the family (§ 41-3-423, MCA);
6) gave primary consideration to the physical, mental, and emotional
needs of C.J. (§ 41-3-609(3), MCA); and
7) concluded that it was in C.J.’s best interest to terminate Mother’s
parental rights.
¶32 The court’s unchallenged findings were sufficiently specific and supported by the
record and its legal conclusions were correct. The clear and convincing evidence in this
case supports the District Court’s ruling to terminate Mother’s parental rights. The court
did not abuse its discretion in so ruling.
CONCLUSION
¶33 For the foregoing reasons, we affirm the judgment of the District Court.
/S/ PATRICIA COTTER
We concur:
/S/ MIKE McGRATH
/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
/S/ BRIAN MORRIS
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