In re D.D.

400 Mont. 105

464 P.3d 60

2020 MT 126

In the MATTER OF: D.D., A Youth in Need of Care.

DA 19-0425

Supreme Court of Montana.

Submitted on Briefs: April 15, 2020

Decided: May 19, 2020

For Appellant: Jennifer Dwyer, Avignone, Banick & Williams, Bozeman, Montana

For Appellee: Timothy C. Fox, Montana Attorney General, Damon Martin, Assistant Attorneys General, Helena, Montana, Joshua A. Racki, Cascade County Attorney, Great Falls, Montana

Justice Ingrid Gustafson delivered the Opinion of the Court.

¶1 A.B.-A. (Mother) appeals from the termination of her parental rights to her child D.D. issued July 3, 2019, by the Eighth Judicial District Court, Cascade County. We reverse.¹

¶2 We restate the issue on appeal as follows:

Whether D.D. was properly determined to be an abused or neglected child.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 Mother has a substantial history of chemical dependency issues, requiring intervention from the Department of Public Health and Human Services, Child and Family Services Division (the Department), in relation to her various children. Prior to this cause, the Department filed for intervention in 2015 regarding D.D. due to physical neglect, related to Mother's use of methamphetamine. At the outset of investigating that case, D.D. reported to the CPS worker that he missed school as he had to stay home to take care of his baby brother, C.S., as Mother slept all day. In addition to Mother's use of methamphetamine, C.S.’s father also admitted methamphetamine use. Both C.S. and D.D. were removed from Mother's care on May 8, 2015. D.D. was placed with his birth Father, R.D. Mother and C.S.’s father then completed treatment plans and C.S. was returned to their care. Mother and R.D. agreed D.D., then 12 years old, would remain in R.D.’s care and continue to reside with him and the cause was closed December 10, 2015. In May 2016, the Department received a report of domestic violence involving Mother, and C.S. was removed from her care on May 5, 2016. At that time, the State also filed a petition with regard to D.D.—DDN-16-153—in which it acknowledged "Birth Father [R.D.] has custody of [D.D.], and he has not visited Birth Mother in some time." The CPS affidavit in support of this petition did not contain any allegations of abuse or neglect by Mother in relation to D.D. Mother again completed a treatment plan and C.S. was returned to her care on April 10, 2017, and that cause was then closed. Within weeks, Mother relapsed on methamphetamine, and C.S. was again removed in June 2017. That cause was closed on August 31, 2018, after Mother completed inpatient treatment, and C.S. later returned to Mother's care. Apparently recognizing D.D. did not reside in Mother's home, but rather continued to reside with his father, R.D., the Department only brought its intervention petition in relation to C.S.

On December 5, 2018, the Department received another report alleging Mother was using methamphetamine and domestic violence was occurring in her home. C.S. was again removed from Mother's care. At the time, D.D. was residing in Helena with his Father and was not in Mother's care and had not been so since May 8, 2015.

¶4 On January 4, 2019, the Department filed its Petition for Emergency Protective Services (EPS), Adjudication of Youth as Youth in Need of Care (YINC), Request for Finding of No Reasonable Efforts and Motion for Permanent Legal Custody, Termination of Parental Rights and Request for Hearing, wherein the Department alleged physical neglect and sought a finding from the court that it be relieved of the obligation to provide reasonable efforts to preserve and reunify the family under § 41-3-423(2)(a), MCA. The Department contended a treatment plan was not required as Mother met the criteria of § 41-3-609(1)(d), MCA, by subjecting C.S. and D.D. to the aggravating circumstance of chronic, severe neglect, as provided in § 41-3-423(2)(a), MCA, by her continued pattern of relapse and domestic violence. The CPS worker's affidavit in support of the petition acknowledged D.D.’s father was his "primary caregiver" and admitted: "The only child currently living in the home with [Mother] is C.S. Both of her other children are living with birth fathers."² The supporting affidavit set forth no allegations of abuse of neglect in relation to D.D. since May 8, 2015, when he was removed from Mother's care and placed with his birth father in the prior action—ADN-15-130. Oddly, despite prior representations to the contrary in the Department's motions to close the prior causes and despite the CPS workers’ supporting affidavits to the contrary when requesting the court close the prior causes, the State also alleged Mother had failed to successfully comply with her treatment plans previously ordered in her three prior DN cases—ADN-15-132, DDN-16-155, and BDN-17-185.

¶5 The District Court held hearings on the State's petition on April 25, 2019, and June 20, 2019. At the close of the June 20 hearing, the State admitted, "[D.D.] resides in Helena. He was not a participant in the BDN 2017 case, because he was residing with his father. And, what contact he's having with his mother was minimal at best, and he wasn't at risk. [C.S.] has been a child at issue in each of these cases."

Ultimately, the District Court implicitly determined D.D. was an abused or neglected child, found the Department need not make reasonable efforts to provide preservation or reunification services, and terminated Mother's parental rights to both D.D. and C.S. Mother appeals.

STANDARD OF REVIEW

¶6 This Court reviews a district court's decision to terminate parental rights for an abuse of discretion. In re B.J.J. , 2019 MT 129, ¶ 9, 396 Mont. 108, 443 P.3d 488 ; In re A.S. , 2016 MT 156, ¶ 11, 384 Mont. 41, 373 P.3d 848 ; In re K.A. , 2016 MT 27, ¶ 19, 382 Mont. 165, 365 P.3d 478. The Department has the burden of proving by clear and convincing evidence that the statutory criteria for termination have been met. In re B.J.J. , ¶ 9. In the context of parental rights cases, clear and convincing evidence is the requirement that a preponderance of the evidence be definite, clear, and convincing. In re B.J.J. , ¶ 9 ; In re K.L. , 2014 MT 28, ¶ 14, 373 Mont. 421, 318 P.3d 691. This Court reviews a district court's findings of fact for clear error and conclusions of law for correctness. In re B.J.J. , ¶ 9 ; In re M.V.R. , 2016 MT 309, ¶ 23, 385 Mont. 448, 384 P.3d 1058. "A factual finding is clearly erroneous if it is not supported by substantial evidence, if the court misapprehended the effect of the evidence, or if review of the record convinces this Court a mistake was made." In re B.J.J. , ¶ 9. "To reverse a district court's evidentiary ruling for an abuse of discretion, this Court must determine the district court either acted arbitrarily without employment of conscientious judgment or exceeded the bounds of reason resulting in substantial injustice." In re B.J.J. , ¶ 9 (quoting In re I.M. , 2018 MT 61, ¶ 13, 391 Mont. 42, 414 P.3d 797 ).

DISCUSSION

¶7 Whether D.D. was properly determined to be an abused or neglected child.

¶8 Mother asserts the District Court did not hold fundamentally fair procedures, erroneously finding D.D. to be a YINC based upon a stipulation Mother did not make. The State counters that adjudication of a child as a YINC is only required when termination is sought pursuant to § 41-3-609(1)(f), MCA. The State asserts termination pursuant to § 41-3-609(1)(a) through (e), MCA, only requires there be a "determination" that a child is abused or neglected. The State also asserts, "[t]he fact that D.D. was residing in another city did not mean he was unaffected by his mother's continual relapses."

¶9 As the care and custody of a child is a fundamental liberty interest protected by fundamentally fair procedures, termination procedures must satisfy the Due Process Clause of the Fourteenth Amendment. In re C.J. , 2010 MT 179, ¶ 26, 357 Mont. 219, 237 P.3d 1282. Sections 41-3-601 through -612, MCA, provide the procedures and criteria by which the parent-child relationship may be terminated. These provisions are only operative when there has first been a determination that a child has been abused or neglected as defined in § 41-3-102, MCA, or adjudicated as a YINC, depending upon which statutory basis is asserted for the termination. The threshold consideration when involuntary termination is sought pursuant to § 41-3-609(1)(f), MCA, is whether the child has been adjudicated a YINC. An involuntary termination, however, sought pursuant to §§ 41-3-609(1)(d) and -423(2)(a), MCA, does not require that the child be adjudicated as a YINC, only that it be determined the child was abused or neglected. See In re C.B ., 2019 MT 294, ¶ 25, 398 Mont. 176, 454 P.3d 1195. Thus, the issue herein is whether the District Court properly determined D.D. to be abused or neglected while providing Mother fundamentally fair procedures.

¶10 "Child abuse or neglect" is defined as "(i) actual physical harm or psychological harm to a child; (ii) substantial risk of physical or psychological harm to a child; or (iii) abandonment."

Section 41-3-102(7)(a)(i)-(iii), MCA. " ‘Physical or psychological harm to a child’ means the harm that occurs whenever the parent or other person responsible for the child's welfare" subjects the child to one of the events or conditions enumerated in § 41-3-102(21)(a)(i)-(vi), MCA. "A person responsible for a child's welfare" means "the child's parent ... who resides in the same home in which the child resides ." Section 41-3-102(2)(a), MCA (emphasis added).³

¶11 The Department's policies go hand-in-hand with these statutory provisions. The Department's Philosophy Statement provides:

It is the Division's mission to keep children safe and families strong. Safety of the child takes precedence over all other decisions surrounding child protective services. At the time of investigation, a child may be considered safe when there is an absence of serious threat of

...