In Re KJB

DA 07-0038

IN THE SUPREME COURT OF THE STATE OF MONTANA
2007 MT 216

IN RE THE MATTER OF

K.J.B.,

A Youth in Need of Care.

APPEAL FROM: District Court of the Eighth Judicial District,
In and For the County of Cascade, Cause No. ADJ 2005-235-Y(c)
Honorable Kenneth R. Neill, Presiding Judge

COUNSEL OF RECORD:

For Appellant Father:

Jim Wheelis, Chief Appellate Defender, Joslyn M. Hunt,
Assistant Appellate Defender, Helena, Montana

For Appellant Mother:

Sunday Z. Rossberg, Rossberg Law Office, LLC, Great Falls, Montana

For Respondent:

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

Brant Light, Cascade County Attorney, Sarah Corbally,
Deputy County Attorney, Great Falls, Montana

Submitted on Briefs: July 3, 2007

Decided: September 5, 2007

Filed:

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

¶1 The parents of K.J.B. appeal the Eighth Judicial District Court’s Order terminating

their parental rights to the child. We affirm.

ISSUE

¶2 While the parents present multiple issues on appeal, the dispositive issue is

whether the District Court abused its discretion in terminating J.B.’s and C.B.’s parental

rights to K.J.B.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 J.B. and C.B. II (hereinafter C.B.) are the natural parents of five living children

born between 1995 and 2005: C.B. III, A.B., C.B. V, T.B. and K.J.B. In addition, a sixth

child, C.B. IV, was delivered stillborn during these years. J.B., the children’s mother,

suffers from a chromosomal abnormality known as velocardiofacial syndrome (VCFS).

VCFS causes physical and cognitive difficulties and developmental delays. Among

others symptoms it can manifest in heart defects, cleft palate, curved esophagus, hearing

and speech impairment, bowel problems, and poor muscle tone. As a result of VCFS,

J.B. is mentally impaired with limited intellectual capacity. Each of J.B.’s children was

born with VCFS. As the previous termination proceedings involving these parents were

judicially noticed by the District Court at the adjudicatory hearing stage of these

proceedings and are critical to our ruling, we provide the necessary details of those

proceedings below.

Termination of Rights to C.B. III

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¶4 C.B. III was born in May 1995. In August 1995, while the child was in the

Deaconess Hospital in Great Falls, the Montana Department of Public Health and Human

Services, Child and Family Services Division (DPHHS), filed for temporary investigative

authority, protective services, temporary custody, and for adjudication that C.B. III, was a

youth in need of care. C.B. III suffered each of the above-listed manifestations of VCFS.

His curved esophagus created feeding difficulties which required that he be fed with a

feeding tube. Additionally, for the first several months of his life, he was required to be

on oxygen at all times. His doctors speculated that he would need physical, speech and

occupational therapy, in addition to on-going medical treatments, and that his intellectual

capacity would be limited.

¶5 One of C.B. III’s doctors indicated that when the child was first born, the parents

seemed to be involved in his care and rarely missed a scheduled doctor’s appointment. In

a short amount of time, however, their commitment to the effort waned and they began to

miss appointments. As a result of his parents’ inability to adequately care for him, C.B.

III was placed in foster care in early October 1995 upon his release from a two-month

hospital stay. J.B. and C.B. stipulated, with assistance of counsel, to adjudication that

C.B. III was a youth in need of care and agreed to DPHHS having temporary custody.

Beginning in October 1995 DPHHS provided a therapist to work with J.B. and C.B. to

assess their needs and assist in teaching them how to care for their special needs child.

The therapist, after observing personality issues, cognitive impairment and paranoia

exhibited by the parents, suggested that J.B. and C.B. undergo psychological evaluations,

the results of which would allow the Department to better tailor the parents’ treatment

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plans to their needs and abilities. J.B. and C.B. refused to undergo the evaluations.1 As a

result, they ultimately signed treatment plans that did not consider or address their

specific needs. The Plans were approved by the Lewis and Clark County District Court

in December 1995.

¶6 During the course of assistance provided by DPHHS, the therapist noted that the

parents consistently failed to physically interact with C.B. III, touching or holding him

only when prompted to do so. They also were unable to understand how to feed C.B. III

with a feeding tube and could not consistently diaper him properly. Because the parents

could not master these two necessary basic activities, the therapist was unable to move on

to other child care requirements such as bathing C.B. III. Despite being told that cigarette

smoke was considered risky to C.B. III’s health, J.B. and C.B. refused to stop smoking

when DPHHS brought C.B. III to their home for visits. The Department therefore moved

the visits to another location, and J.B. and C.B. responded by refusing to attend visits

outside of their own home. By this time, the parents rarely attended C.B. III’s medical

appointments.

¶7 In June 1996 DPHHS filed a petition to terminate J.B.’s and C.B.’s parental rights

on the ground that the parents had not complied with the provisions of the treatment plan.

Specifically, J.B. and C.B. had failed to participate in the majority of scheduled visits

with C.B. III or attend his doctor appointments, they had refused to undergo the Plan-

1
A neuro-psychological evaluation performed on C.B. during subsequent termination
proceedings indicated that C.B. is severely handicapped with marginal intellectual ability and
schizoid personality disorder manifesting in little ability to identify and respond to the emotional
state of another person, especially in the absence of verbal cues.

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required psychological evaluations, J.B. failed to seek Plan-prescribed prenatal care

during her pregnancy with C.B. IV resulting in the child’s still birth, and the couple failed

to maintain a stable residence.

¶8 A hearing was held on the Department’s termination petition in August 1996.

Counsel for the parents appeared but J.B. and C.B. did not, having moved from Montana

and leaving no forwarding address. The First Judicial District Court for Lewis and Clark

County terminated their parental rights.

Termination of Rights to C.B. V and A.B.

¶9 By August 1999, J.B. and C.B. had returned to Montana and C.B. V and A.B. had

been born, both with VCFS. At that time both children were adjudicated youths in need

of care by the Second Judicial District Court for Silver Bow County, and in January 2000

J.B.’s and C.B.’s parental rights to these children were terminated. C.B. and counsel for

both C.B. and J.B. attended the hearing but J.B. did not. The Silver Bow court took

judicial notice of the previous involuntary termination and stated that the circumstances

surrounding the abuse and neglect of C.B. III were related to the termination of rights to

C.B. V and A.B. Specifically, the court noted that J.B. failed to complete a psychological

evaluation, both parents failed to maintain a stable residence, J.B. did not have adequate

prenatal care with respect to her pregnancy with C.B. V, both parents failed to provide

adequate and timely medical care for A.B., J.B. failed to obtain medical care and

monitoring of her medical situation on a timely and constant basis, and they left both

children with care providers without making arrangements for food, clothing, or advising

when they would return for the children. Additionally, J.B. told the DPHHS social

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worker that she did not wish contact with her children and wanted to relinquish her

parental rights. As described above, C.B. underwent a neuro-psychological evaluation

which indicated that his severe intellectual and personality handicaps were developmental

and irreversible. The doctor testified that C.B. could not meet the minimum criteria for

providing for the needs of his handicapped children.

Termination of Rights to T.B.

¶10 Subsequently T.B. was born, also with VCFS, and was placed in emergency

protective custody on April 16, 2003, one day after her birth. On May 6, 2003, J.B. and

C.B. were appointed counsel, and on May 21, 2003, T.B. was adjudicated a youth in need

of care. The Eighth Judicial District Court for Cascade County acknowledged the

previous terminations and found that J.B. and C.B. continued to be unable or unwilling to

provide the child with the special care she required. The court noted that C.B. ignored

medical advice regarding T.B.’s feeding requirements, insisting that a feeding tube was

unnecessary despite being specifically ordered by T.B.’s doctors. In December 2003 the

court terminated the parents’ rights to T.B.

The Instant Case—Termination of Rights to K.J.B.

¶11 On October 5, 2005, K.J.B. was born, also with VCFS, and was placed into

emergency protective custody on October 7, 2005. An adjudicatory hearing was held on

December 6, 2005, and both parents were present with their court-appointed attorneys.

The court adjudicated K.J.B. a youth in need of care and set a dispositional hearing for

January 2006. After the adjudicatory hearing, psychological evaluations for J.B. and

C.B. were scheduled to determine whether the previous four involuntary terminations

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were relevant to their ability to adequately parent K.J.B. within a reasonable amount of

time and to determine whether DPHHS should provide the parents with a treatment plan.

¶12 The dispositional hearing was continued twice because the psychological

evaluations of the parents could not be completed within the normal time frame as the

parents required more than the normal amount of time to complete the testing. The

evaluation results were provided to the attorneys for the parents shortly before the

dispositional hearing scheduled for April 4, 2006. The attorneys requested a continuance

to have more time to review the evaluation results and the additional time was granted.

¶13 At the April 25, 2006, scheduled hearing, DPHHS requested that the court find

that reasonable efforts to reunify the parents with K.J.B. were not required pursuant to

§ 41-3-423(2)(e), MCA, as the parents had their parental rights to the child’s siblings

involuntarily terminated and the circumstances related to the previous terminations were

relevant to the parents’ ability to adequately care for K.J.B. At the same hearing,

attorneys for the parents requested a 60-day continuance to allow their clients to undergo

independent psychological evaluations and parenting assessments. The Department did

not object to the parents seeking independent evaluations but indicated that it would be

filing a termination petition before the 60 days had lapsed. DPHHS explained that the

factual basis for its petition to terminate was identical to the factual and statutory basis

for its request that the court find that reasonable efforts for reunification were not

necessary. The court therefore ordered that the termination petition be filed before the

dispositional hearing rescheduled for June 27, 2006, at which time a consolidated

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dispositional/termination hearing would be held. DPHHS filed the Petition for

Permanent Legal Custody and Termination of Parental Rights on May 18, 2006.

¶14 The June 2006 dispositional hearing was continued numerous times, primarily at

the parents’ requests, and ultimately commenced on November 14, 2006. Dr. Donna

Zook, the psychologist who performed the evaluations of J.B. and C.B. testified as did

K.J.B.’s pediatrician, Dr. Nora Gerrity.

¶15 Dr. Zook testified that based on her evaluations she did not believe either parent

could learn to adequately parent K.J.B. within a reasonable amount of time due to their

lack of insight and/or acknowledgment of their past parenting problems with their other

children. She explained that while many of the tests she performed on each parent were

characterized as “invalid” and unable to be scored, she nonetheless was able to interpret

the test results and produce a valid psychological evaluation. She explained that J.B. was

unrealistic and did not admit to any problems she had that could affect her parenting. Dr.

Zook noted that J.B. presented in a way that indicated that she deferred parenting

responsibilities to C.B. Additionally, Dr. Zook concluded that J.B. expected the child to

give her emotional satisfaction and attend to her needs, rather than J.B. providing these

things to her child. As for C.B., the doctor opined that he was emotionally distant,

emotionally disconnected from K.J.B., unable to develop insight or understanding, and

that his perception of his life was inconsistent with the actuality of his life. She observed

that he perceived himself to be a “perfect parent” without any problems but with the right

to “have my kid back because a parent has a right to raise the kid any way they want.”

Moreover, she testified that she had concerns about C.B.’s judgment in that he reported

8
that he was prescribed medication but could not tell her what kind of medication or the

dosage and admitted that he was not taking it because he had not had it refilled. Dr. Zook

concluded that his denial of faults and problems was pervasive, intense and chronic and

could not be treated in a reasonable amount of time.

¶16 Dr. Gerrity testified that she had been K.J.B.’s pediatrician since the child’s birth

and had diagnosed K.J.B. with VCFS. She stated that while the child was still quite

young at the time of the hearing (one year and one month), she was smaller than normal,

was microcephalic 2 , and had impaired hearing and delayed motor skills. She explained

that feeding K.J.B. was very difficult and required a “good parenting situation” because

proper feeding would allow her to grow to her maximum potential but due to the VCFS

she would not reach “full stature.” The doctor surmised that K.J.B. needed to begin

therapy for her motor and physical disabilities as well as speech immediately and that she

would need to continue these therapies indefinitely. She posited that over time K.J.B.’s

needs would shift from primarily medical to medical and educational with the need for

special schooling, such as the School of Deaf and Blind, and intense intellectual

stimulation, a difficult task for caregivers of a hearing impaired child. She testified that

K.J.B. would need ongoing upgrades of her hearing aid devices. Dr. Gerrity emphasized

that the services and the work of specialists that can be provided during K.J.B.’s early

years would help her improve her functionality in years to come. She also testified that

2
Dr. Gerrity explained that not every VCFS child is microcephalic. She opined that she is more
concerned about K.J.B.’s “overall intellectual functioning” than she would be were K.J.B. not
microcephalic. She also noted that K.J.B.’s head circumference is not only “not paralleling” a
normal curve, but is “falling off.”

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“the people that spend the most time with [a] child like this create the most positive or the

most negative, because it’s everything you do—is every minute of every day that can be a

stimulating environment for the child to learn, and reach out, and to accomplish things.”

She opined that many parents or caregivers of VCFS children have this ability to engage

and provide a constant stimulating environment instinctively but it is very difficult to

teach those who do not.

¶17 At the close of Dr. Gerrity’s testimony, the hearing was continued to December

12, 2006, at which time Lee Smith, the DPHHS social worker, Carol Sears, a DPHHS

case aide, and Gerri Labunetz, the project coordinator for Healthy Mothers/Healthy

Babies, testified.

¶18 Smith testified that he had met with the parents approximately twenty times

between K.J.B.’s birth and the termination hearing and had observed them for brief

periods of time during three to five visits with K.J.B. He believed it was in K.J.B.’s best

interests to have her parents’ rights terminated and allow her to be adopted. At the time

of the December 2006 hearing K.J.B. had been in foster care for fourteen months with the

family who had adopted two of her siblings and wished to adopt her. Smith stated that

this family had the compassion, experience and ability to care for the special needs of

VCFS children. Smith explained that he petitioned for emergency protective services at

the time of K.J.B.’s birth and was seeking termination based on J.B.’s and C.B.’s

previous involuntary terminations.

¶19 Carol Sears, a case aide assigned to supervise visits between the parents and

K.J.B., testified that J.B. had problems changing K.J.B.’s diaper and dressing her. She

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also observed that, during K.J.B.’s infancy, the parents would not hold her for more than

two or three minutes before passing her to the other parent who in turn held her for two or

three minutes before passing her back again. As K.J.B. got a little older, they would

place her on a blanket with toys but would not interact with her or touch or hold her until

she got fussy. She pointed out that the parents had missed numerous scheduled

visitations with K.J.B.—J.B. attended eight of the final thirty-two scheduled visits and

C.B. attended sixteen of the final thirty-two visits. Sears acknowledged that she never

had to stop a visit out of concern for the child’s safety.

¶20 Gerri Labunetz frequently conducts parenting inventories at the request of DPHHS

and she conducted such an inventory on J.B. Based on her responses to the inventory

questions, J.B. achieved three “at-risk” scores and two “average” scores. Labunetz stated

that a parent’s scores may improve as they gain confidence in their skills and feel good

about their relationship with their child. She explained that J.B. achieved an “average”

score on the nurturing quiz which indicated that “she has the knowledge of the skills” but

it “does not necessarily indicate that she can carry them out.” She testified that if J.B.

succeeded in learning “how to hold the baby, how to bathe the baby, how to dress a baby,

how to keep a baby safe, how to play with a baby,” she could then participate in a

program that would help her understand a child’s development and provide her with

exercises under which “she would be constantly working on maintaining the child’s

potential for growth and development.” Labunetz opined that J.B. “would definitely need

a lot of support to parent [K.J.B.], particularly with her needs.”

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¶21 At the conclusion of the hearing, the District Court granted the Department’s

petition to terminate finding that K.J.B. was a special needs child, that J.B. and C.B. were

unable to adequately care for such a child and that no satisfactory services were available

that could enable the parents to adequately parent K.J.B. within a reasonable time. In the

court’s subsequent written Order, it recounted portions of the testimonies of Zook,

Labunetz, Gerrity and Sears to which it apparently attributed significant weight. The

court also found that the circumstances related to the four previous involuntary

terminations of parental rights of J.B. and C.B. were relevant to their ability to adequately

care for K.J.B. The court determined that it was in K.J.B.’s best interests to terminate the

parental rights of J.B. and C.B. and it was authorized to do so under § 41-3-423(2), MCA.

J.B. and C.B. appeal the District Court’s termination of their parental rights to K.J.B.

STANDARD OF REVIEW

¶22 We review a district court’s decision to terminate parental rights to determine

whether the court abused its discretion. The test for an abuse of discretion is “whether

the trial court acted arbitrarily, without employment of conscientious judgment, or

exceeded the bounds of reason resulting in substantial injustice.” However, because a

parent’s right to the care and custody of a child is a fundamental liberty interest, it must

be protected by fundamentally fair procedures. In re V.F.A., 2005 MT 76, ¶ 6, 326 Mont.

383, ¶ 6, 109 P.3d 749, ¶ 6 (internal citations omitted).

¶23 To satisfy the relevant statutory requirements for terminating a parent-child

relationship, a district court must make specific factual findings. We review those

findings of fact to determine whether they are clearly erroneous. It is well established

12
that in reviewing a district court’s findings, this Court does not consider whether the

evidence could support a different finding; nor does it substitute its judgment for that of

the fact-finder regarding the weight given to the evidence. In re D.V., 2003 MT 160,

¶ 23, 316 Mont. 282, ¶ 23, 70 P.3d 1253, ¶ 23 (citation omitted). It is the district court’s

responsibility to weigh the evidence presented and ascertain witnesses’ corresponding

credibility. In re K.S., 2003 MT 212, ¶ 20, 317 Mont. 88, ¶ 20, 75 P.3d 325, ¶ 20.

Lastly, we review the court’s conclusions of law to determine whether the court

interpreted the law correctly. V.F.A., ¶ 7.

¶24 The district court is bound to give primary consideration to the physical, mental

and emotional conditions and needs of the children. Consequently, the best interests of

the children are of paramount concern in a parental rights termination proceeding and

take precedence over the parental rights. Section 41-3-609(3), MCA. Moreover, the

party seeking to terminate parental rights must demonstrate by clear and convincing

evidence that the statutory requirements for termination have been met. V.F.A., ¶ 8

(citation omitted).

DISCUSSION

¶25 Sections 41-3-601–612, MCA, provide for termination of the parent-child

relationship. Section 41-3-602, MCA, states the purpose:

This part provides procedures and criteria by which the parent-child legal
relationship may be terminated by a court if the relationship is not in the
best interest of the child. The termination of the parent-child legal
relationship provided for in this part is to be used in those situations when
there is a determination that a child is abused or neglected, as defined in
41-3-102.

13
¶26 Relevant definitions are found in §§ 41-3-102(3) and (7), MCA:

(3) “Abused or neglected” means the state or condition of a child who has
suffered child abuse or neglect.
(7) (a) “Child abuse or neglect” means:
(i) actual physical or psychological harm to a child;
(ii) substantial risk of physical or psychological harm to a child; or
(iii) abandonment.

¶27 To terminate a parent-child relationship, a district court must determine that one of

the criteria in § 41-3-609, MCA, exists. V.F.A., ¶ 12. Sections 41-3-609(1)(d), MCA, is

relevant to this case and provides:

(1) The court may order a termination of the parent-child legal relationship
upon a finding . . . 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).

¶28 Section 41-3-423(2)(e), MCA, provides:

(2) Except in a proceeding subject to the federal Indian Child Welfare Act,
the department may, at any time during an abuse and neglect proceeding,
make a request for a determination that preservation or reunification
services need not be provided. . . . A court may make a finding that the
department need not make reasonable efforts to provide preservation or
reunification services if the court finds that the parent has:
(e) had parental rights to the child’s sibling or other child of the parent
involuntarily terminated and the circumstances related to the termination of
parental rights are relevant to the parent’s ability to adequately care for the
child at issue.

¶29 In summary, for the District Court to terminate the parental rights of J.B. and C.B.

under § 41-3-609(1)(d), MCA, the court had to “determine” that K.J.B. was at substantial

risk of physical or psychological harm. (Sections 41-3-602, MCA, 41-3-102(3) and

(7)(a)(ii), MCA.) After such a determination was made, the court was authorized to

terminate their parental rights if it was established by clear and convincing evidence that

14
J.B. and C.B. had had their parental rights to K.J.B.’s sibling or siblings involuntarily

terminated (Sections 41-3-609(1)(d), MCA, 41-3-423(2)(e), MCA), and the

circumstances related to those involuntary terminations were relevant to their ability to

adequately care for K.J.B. (Sections 41-3-609(1)(d), MCA, 41-3-423(2)(e), MCA.)

Moreover, the District Court had to give primary consideration to K.J.B.’s physical,

mental and emotional conditions and needs, placing K.J.B.’s best interests over J.B.’s and

C.B.’s parental rights. V.F.A., ¶ 8.

¶30 As stated above, the District Court held an adjudicatory hearing on December 6,

2005, and adjudicated the child a “youth in need of care.” The parents challenge the

court’s Order arguing that it did not contain the level of specificity required by

§§ 41-3-437(2) and (7)(a), MCA 3 . Among other things, the parents complain that the

court’s findings did not expressly state that “either parent posed a ‘substantial risk of

physical or psychological harm to [the] child.’ ” Without express findings relative to the

nature of the abuse or neglect suffered by K.J.B., the parents assert she could not properly

be designated a youth in need care. Without such designation, the parents maintain, the

District Court could not terminate their parental rights.

3
Section 41-3-437(2), MCA, requires, in relevant part: The court may make an adjudication on
a petition under 41-3-422 if the court determines by a preponderance of the evidence . . . that the
child is a youth in need of care. . . . Adjudication must determine the nature of the abuse and
neglect and establish facts that resulted in state intervention and upon which disposition, case
work, court review, and possible termination are based.
Section 41-3-437(7)(a), MCA, states: Before making an adjudication, the court may make
oral findings, and following the adjudicatory hearing, the court shall make written findings on
issues, including but not limited to the following: (i) which allegations of the petition have been
proved or admitted, if any; (ii) whether there is a legal basis for continued court and department
intervention; and (iii) whether the department has made reasonable efforts to avoid protective
placement of the child or to make it possible to safely return the child to the child’s home.

15
¶31 The parents’ assertions might arguably be correct if termination was being sought

under § 41-3-609(1)(f), MCA. Section 41-3-609(1), MCA, provides multiple

circumstances under which a court is authorized to terminate a parent’s right to a child,

only one of which requires adjudication of the child as a youth in need of care—§ 41-3-

609(1)(f), MCA. All other circumstances described in §§ 41-3-609(1)(a)-(e), MCA,

require a “determination” that the child is abused or neglected. In the case before us,

DPHHS alleged in its initial Petition for Emergency Protective Services, Adjudication as

Youths [sic] in Need of Care, and Temporary Legal Custody that probable cause existed

to believe that K.J.B. was “abused or neglected,” as defined by the relevant statute, by

reason of her parents’ previously-established inability to care for their other special needs

children and the State’s involuntary termination of their parental rights to all four of those

children. In social worker Smith’s affidavit attached to the initial petition, he described

in detail the medical conditions and the special needs of all of J.B.’s and C.B.’s children,

including K.J.B. He described the physical, mental, emotional and intellectual limitations

of J.B. and C.B. and the reasons three different district courts in Montana concluded they

were unable or unwilling to care for their children in the manner the children required.

Smith described the efforts taken by the Department to help the parents learn the

necessary parenting skills and their inability and failure to do so. He unequivocally

stated, “Due to the extensive history of this family, no efforts could be made to ensure

that [K.J.B.] would be safe in the care of her parents.”

¶32 Smith testified in even greater detail at the adjudicatory hearing at which the

District Court took judicial notice of the previous termination cases. At the conclusion of

16
the hearing, the District Court judge stated, “The [c]ourt finds that based on that

sufficient evidence I conclude that the child is in danger of being abused and neglected

and therefore a youth in need of care.” In the District Court’s subsequent Order, it

specifically found that K.J.B.’s best interests were served by continued out-of-home

placement; that she was a youth in need of care as defined by § 41-3-102, MCA 4 ; that the

parents’ rights to their previous children were terminated due to their long term and

ongoing inability to safely parent the children; that dismissing the petition would create

an ongoing risk of “abuse and/or neglect” to K.J.B; and that custody of K.J.B. with her

parents would likely result in a risk of continued abuse and/or neglect and removal was

necessary to protect the child. We conclude the District Court’s repeated language serves

as an adequate “determination” that K.J.B. was at “substantial risk of physical or

psychological harm” by “acts or omissions of a person responsible for the child’s

welfare.” Sections 41-3-102(7)(a)(ii) and (b)(i)(A), MCA.

¶33 In In re M.J.W., 1998 MT 142, 289 Mont. 232, 961 P.2d 105, we explained that

§ 41-3-609(1)(b), a “sister” provision to § 41-3-609(1)(d), MCA, upon which the case

before us relies, is a provision for termination that does not require a youth in need of

care adjudication but rather a determination of “abused or neglected.” In that case we

held that the court “implicitly” determined the child was “abused and neglected” upon a

determination that the child was abandoned. See also In re T.H., 2005 MT 237, 328

Mont. 428, 121 P.3d 541. However, in the case before us, the District Court repeatedly

4
“Youth in need of care” means a youth who has been adjudicated or determined, after a
hearing, to be or to have been abused, neglected, or abandoned. Section 41-3-102(34), MCA.

17
and expressly, rather than implicitly, characterized K.J.B. as a child at risk for ongoing or

continued abuse and/or neglect.

¶34 Having concluded that the District Court adequately “determined” that K.J.B. was

at risk of abuse or neglect, we turn to the other requirements for termination under

§ 41-3-609(1)(d), MCA—previous involuntary terminations and relevancy thereof to the

current proceeding. It is undisputed that the parents have been subject to four previous

involuntary terminations of parental rights to their other four children; therefore, we need

only determine whether the District Court correctly concluded that the “circumstances

related to the termination of parental rights are relevant to the parent’s ability to

adequately care for the child at issue.” Section 41-3-423(2)(e), MCA.

¶35 C.B. argues on appeal that the psychological evaluation from two years ago was

“stale” and irrelevant” and claims, without elaboration or reasoning, that it is possible

that he now functions at a level that would allow him to parent K.J.B. However, J.B.’s

and C.B.’s primary argument seems to be not that their circumstances related to the

previous terminations have changed, but rather that the District Court’s Order lacked

specificity in that it “failed to reference what circumstances of the previous terminations

are relevant to J.B.’s [and C.B.’s] ability to care for K.J.B.” Additionally, J.B. asserts

that the District Court improperly shifted from the Department to the parents the burden

of demonstrating by clear and convincing evidence that the previous termination

circumstances were relevant.

¶36 Our review of the record convinces us that DPHHS met its burden of establishing

that J.B. and C.B. remain unable to safely and adequately address K.J.B.’s special needs

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and provide for her necessary care and that the court did not improperly shift the burden.

In this respect, their circumstances are unchanged from the circumstances surrounding

and underlying their previous parental terminations. The District Court heard extensive

testimony from numerous professionals who have worked with, observed or evaluated the

parents including the DPHHS-assigned social worker, the DPHHS case aide, K.J.B.’s

pediatrician, a psychologist who conducted multiple tests and evaluations of both parents,

and the project coordinator for an organization specifically designed to strengthen

families and assist families and children in need of intervention. As noted above, the

court’s termination Order specifically referenced as findings of fact the witness testimony

upon which it based its conclusions of law. These witnesses competently described

K.J.B.’s current and future extensive needs to address her physical and intellectual

growth and well-being. The psychological evaluations of J.B. and C.B., while not

including an observation of them with K.J.B., nonetheless informed the court that their

physical, mental, emotional and intellectual circumstances had changed little, if at all,

during the two years since termination of their parental rights to T.B. The previous

termination orders also indicated that the parents’ conditions were permanent, chronic

and irreversible. Under these circumstances, it is apparent that the two critical

circumstances—the parents’ limitations and the special needs of the child—that were

relevant to the parents’ inability to care for their previous children had not changed. In

light of these circumstances, we will not consider it an abuse of discretion that the

District Court failed to precisely state which “specific circumstances of previous

terminations” remained relevant to J.B.’s and C.B.’s ability to care for K.J.B.

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¶37 The dissent objects to the Court’s determination of the dispositive issue. It posits

that the “actual dispositive issue” was the insufficiency of the evidence upon which the

District Court adjudicated K.J.B. as a youth in need of care. As a result of such

insufficient evidence, the dissent asserts, the State did not have lawful custody of K.J.B.

after the adjudication hearing in December 2005. It bears repeating, however, that a

parent-child relationship may be terminated by the court without any adjudication, under

certain narrow statutory circumstances, including, inter alia, voluntary relinquishment,

abandonment, the conviction of a parent of an offense involving felony sexual

intercourse, or the fact that parental rights to other children have already been “. . .

involuntarily terminated and the circumstances related to the termination . . . are relevant

to the parent’s ability to adequately care for the child at issue.” See §§ 41-3-609(1)(d)

and 41-3-423(2)(e), MCA. This circumstance, multiplied by four, was plainly present

here. Nonetheless, and though not required to do so under the law, the State continued to

work with the parents in an effort to help them gain the skills necessary to adequately

care for K.J.B. Only after determining that such skills were not developing did the State

conclude the termination on the above statutory grounds. Accordingly, we do not agree

that the District Court violated the law.

CONCLUSION

¶38 For the foregoing reasons, we affirm the District Court’s termination of the

parental rights of J.B. and C.B. to K.J.B.

/S/ PATRICIA COTTER

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We Concur:

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

Chief Justice Karla M. Gray, dissenting.

¶39 I strenuously dissent from the Court’s opinion. Indeed, I strenuously dissent from the

Court’s determination that the dispositive issue on appeal is whether the District Court abused its

discretion in terminating mother’s and father’s parental rights to their daughter K.J.B. In my

view, the dispositive issue on appeal is whether sufficient evidence supports the District Court’s

adjudication of K.J.B. as a youth in need of care.

¶40 The reason for the Court’s choice and statement of the dispositive issue in this case

becomes apparent only at ¶ 31. There, the Court comes close to admitting the merit of the

parents’ position that insufficient evidence supported the District Court’s adjudication of K.J.B.

as a youth in need of care in December of 2005. The Court avoids dealing with that issue,

however, by “fast forwarding” to a Petition for Termination of Parental Rights and Permanent

Custody filed on May 18, 2006, based on § 41-3-609(1)(d), MCA.

¶41 The Court overlooks critical and dispositive facts. The District Court adjudicated K.J.B.

as a youth in need of care in December of 2005, as requested by the State. On that basis, the

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court also granted temporary legal custody to the State, and continued that custody thereafter

based on the youth in need of care adjudication. Unless the adjudication was based on sufficient

evidence, no basis existed for the State’s custody of the child from at least December 6, 2005—

when the District Court adjudicated K.J.B. a youth in need of care from the bench. The Court

apparently is comfortable with the absence of lawful State custody of K.J.B. from December of

2005 until December of 2006, when the District Court terminated mother’s and father’s parental

rights. One can only surmise that the Court implicitly concludes that the procedural facts of this

case constitute “fundamentally fair procedures” to protect mother’s and father’s constitutional

liberty interest in parenting their child. See In re A.J.E., 2006 MT 41, ¶ 21, 331 Mont. 198, ¶ 21,

130 P.3d 612, ¶ 21 (citation omitted); In re T.H., 2005 MT 237, ¶ 21, 328 Mont. 428, ¶ 21, 121

P.3d 541, ¶ 21 (citation omitted); In re V.F.A., 2005 MT 76, ¶ 6, 326 Mont. 383, ¶ 6, 109 P.3d

749, ¶ 6 (citation omitted).

¶42 I return briefly to the actual dispositive issue on appeal: Whether sufficient evidence

supported the District Court’s adjudication of K.J.B. as a youth in need of care in December of

2005. The answer is a resounding no.

¶43 The State removed K.J.B. from the hospital where she was born two days after her birth,

pursuant to statutory authority. At the adjudication hearing requested by the State, and held on

December 6, 2005, social worker Lee Smith was the only witness for the State. The “substance”

of his testimony—if any—was that the removal of the child was “based on the history with this

family and our Department and the prior terminations, and the previous findings that the parents

were not able to care for their previous children.” He indicated that the last evaluations of either

parent were several years old. He stated that “based on the past,” he felt that the child would be

at risk in her parents’ custody at that time. On cross-examination, he admitted he had no current

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indication as to the mental health status of either parent and no indication that mother did not

receive proper prenatal care while pregnant with K.J.B. At the State’s request, the District Court

took judicial notice of the findings of fact, conclusions of law and orders in the four prior

termination proceedings involving these parents. The State then requested the adjudication, and

opposing counsel argued the State had not met its burden.

¶44 The District Court ruled from the bench, stating that, having taken judicial notice of the

other orders, it found “based on that sufficient evidence” (emphasis added) that the child was in

danger of being abused and neglected and, therefore, was a youth in need of care. The court’s

subsequent written order found there had been four previous terminations, those terminations

were due to mother’s and father’s inability to parent, the allegations in the State’s petition had

been proven, and that “sufficient evidence established, by a preponderance of the evidence,” that

K.J.B. was a youth in need of care pursuant to § 41-3-102, MCA.

¶45 On this record, however, virtually no evidence supported the adjudication of the child as

a youth in need of care and her placement in the State’s custody. I have no quarrel with the

District Court’s ability to take judicial notice of the prior proceedings. That is a far cry,

however, from permitting a trial court to avoid making findings of fact and conclusions of law

adjudicating a child as a youth in need of care based on the present, rather than the past.

¶46 In closing, I note only that we have repeatedly cautioned the State and the district courts

to strictly follow the statutes applicable to child abuse and neglect proceedings. See In re A.R.,

2004 MT 22, ¶ 23, 319 Mont. 340, ¶ 23, 83 P.3d 1287, ¶ 23; Inquiry into M.M., 274 Mont. 166,

174, 906 P.2d 675, 680 (1995); Matter of F.H., 266 Mont. 36, 40, 878 P.2d 890, 893 (1994);

Matter of R.B., 217 Mont. 99, 105, 703 P.2d 846, 849 (1985). We have done so, on occasion, to

avoid reversing a trial court’s decision. See, e.g., In re A.R., ¶ 23; Inquiry into M.M., 274 Mont.

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at 173-74, 906 P.2d at 679-80. It is obvious that our cautions continue to fall on deaf ears.

Apparently, the State and the trial courts simply do not care what the law is in Montana, as stated

by this Court.

¶47 In the present case, the Court places its imprimatur on an entirely unlawful proceeding. I

suspect the State and the district courts will finally pay heed—to this case. What a tragedy for

the rule of law and for parents in Montana.

¶48 I would reverse the District Court. I wholeheartedly dissent from the Court’s failure to

do so.

/S/ KARLA M. GRAY

Justice James C. Nelson joins in the foregoing dissenting opinion.

/S/ JAMES C. NELSON

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