In re K.C.H. , 316 Mont. 13 ( 2003 )

JUSTICE LEAPHART

delivered the Opinion of the Court.

¶1 Appellant, ■ the natural father of K.C.H., appeals the District Court’s Order of January 9, 2002 terminating his parental rights. We affirm.

¶2 Appellant raises several issues on appeal which we have tailored for clarity as follows:

¶3 1. Whether the District Court erred in taking judicial notice of the natural mother’s prior termination proceeding?

¶4 2. Whether the District Court erred in adjudicating K.C.H. as a ‘Youth in Need of Care”?

¶5 3. Whether the District Court erred in terminating Appellant’s parental rights?

¶6 4. Whether § 41-3-301, MCA, the emergency protection service statute, is constitutional?

Background

¶7 In April 2000, the Department of Public Health and Human Services (Department) learned that R.B.-H. was due to deliver a child in June. R.B.-H. had previously been a party to a termination proceeding which culminated in her relinquishing custody of her three children to the Department on September 15,1998. Approximately one month before KC.H.’s birth, R.B.-H and Appellant were interviewed by a social worker for the Department. During the interview, Appellant stated that R.B.-H. would be the baby’s primary care giver because the Appellant worked nights.

¶8 K.C.H. was bom on June 9, 2000. At that time, social workers for the Department placed a forty-eight hour hold on the child as permitted by the emergency service protection statute, § 41-3-301, MCA. Two days later, the Department removed the child from the hospital for emergency placement and subsequently the Department filed a Petition for Temporary Custody. Soon thereafter, the District Court appointed counsel for both parents and a guardian ad litem for K.C.H. Over the course of a year, the Department filed two more petitions for Temporary Custody and Appellant signed off on two treatment plans. K.C.H. has been in the custody of the Department since her birth.

¶9 After Appellant established his paternity of K.C.H., the District Court addressed his motion for summary judgment which asserted that the emergency protective service statute, § 41-3-301, MCA, was unconstitutional. The District Court denied Appellant summary judgment and ruled that the emergency service protective statute was constitutional. In June 2001, the District Court adjudicated K.C.H. as a ‘Youth in Need of Care,” pursuant to § 41-3-102, MCA. Finally, in September 2001, the Department filed a Petition for Permanent Legal Custody, Termination of Parental Rights and Right to Consent to Adoption. Appellant then filed a Motion for a Directed Verdict. In response, the District Court entered its Findings of Fact, Conclusions of Law, and Order terminating Appellant’s parental rights.

¶10 Following the judgment, the Appellant filed a Notice of Appeal, stating he appealed “from the judgement and order of the Thirteenth District Court, Judge Diane Barz, presiding, Order dated January 9, 2002.” We affirm the District Court’s Order in its entirety.

Discussion

¶11 The decision to terminate parental rights is a discretionary ruling reviewed for an abuse of discretion. See In the Matter of C.P., 2001 MT 187, ¶ 9, 306 Mont. 238, ¶ 9, 32 P.3d 754, ¶ 9; In the Matter of J.M.J., 1999 MT 277, ¶ 16, 296 Mont. 510, ¶ 16, 989 P.2d 840, ¶ 16. 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.” In the Matter of C.P., ¶ 9 (citation omitted).

¶12 The standard of review of a district court’s findings of fact in a parental termination case is whether the findings in question are clearly erroneous. See In the Matter of P.E. (1997), 282 Mont. 52, 56, 934 P.2d 206, 209; In the Matter of J.L. (1996), 277 Mont. 284, 287, 922 P.2d 459, 461. The standard of review of a district court’s conclusions of law in such cases is whether its conclusions are correct. See In the Matter of P.E. (1997), 282 Mont. at 56-57, 934 P.2d at 209; In the Matter of J.L., 277 Mont. at 287, 922 P.2d at 461.

I

¶13 Whether the District Court erred in taking judicial notice of the natural mother’s prior termination proceeding?

¶14 Appellant claims that the District Court erred in taking judicial notice of the previous proceeding against R.B.-H., which culminated in her relinquishing custody of her three children in 1998. Appellant contends that the court records in that proceeding were sealed and, therefore, the District Court took notice of facts that were not known and could not be discovered by the Appellant. The Department points outs though, that Appellant was served three petitions. Attached to each petition was a “Report to the Court.” Each report contained over twenty pages detailing the Department’s interaction with R.B.-H. from 1991 until she relinquished her parental rights to the three children in 1998. The Reports included information regarding the removal of the three children from R.B.-H. and her relinquishment of parental rights. Appellant, undoubtedly, was aware of the prior termination proceeding. However, nothing in the present record indicates that he attempted to access the court records of the proceeding even though § 41-3-205(2), MCA, permits a court to disclose confidential records of termination of parental rights when disclosure is necessary for the fair resolution of an issue before it.

¶15 Rule 201, M.R.Evid., authorizes a court to take judicial notice of certain facts. “A fact to be judicially noticed must be one not subject to reasonable dispute in that it is ... (2) capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned.” Rule 201(b)(2), M.R.Evid. Rule 202 (b)(6), M.R.Evid., permits a court to take judicial notice of law, including the “[r]ecords of any court of this state ....”

¶16 Under Rule 202(b)(6), M.R.Evid., the District Court was correct in taking judicial notice of the proceeding involving R.B.-H. as it is a “record of a court of this state.” The fact that Appellant could not access these records without petitioning the Court for their disclosure does not make them entirely inaccessible. Therefore, the District Court did not err in taking judicial notice of the prior termination proceeding.

II

¶17 Did the District Court err in adjudicating K.C.H. as a “Youth in Need of Care”?

¶18 Before terminating parental rights, the district court must first adjudicate the child as a “Youth in Need of Care.” See § 41-3-609(l)(f), MCA. Under Montana Code, “[a] ‘[y]outh in need of care’ means a youth who has been adjudicated or determined, after a hearing, to be or to have been abused or neglected.” Section 41-3-102(23), MCA (1999). “‘Abused or neglected’ means the state or condition of a child who has suffered child abuse or neglect.” Section 41-3-102(3), MCA (1999). Child abuse or neglect is defined as either “actual harm to a child’s health or welfare” or “substantial risk of harm to a child’s health or welfare.” Section 41-3-102(7)(a)(i) and (ii), MCA (emphasis added).

¶19 The District Court’s order of June 11, 2001, in which it adjudicated K.C.H. a ‘Youth in Need of Care,” concluded that K.C.H. was “in immediate or apparent danger of harm.” Appellant argues that, because K.C.H. was removed from her parents at birth, she was never abused or neglected by them, and thus the District Court erred in adjudicating' K.C.H. as a ‘Youth in Need of Care.” Appellant contends that actual, not prospective, abuse or neglect is required for a child to be deemed a ‘Youth in Need of Care.” Appellant’s argument, however, ignores the plain language of § 41-3-102(7)(a)(ii), MCA. This statute provides that a “substantial risk of harm to a child’s health or welfare” constitutes child abuse.

¶20 Recently, this Court addressed the issue of prospective abuse in In the Matter of C.P., 2001 MT 187, 306 Mont. 238, 32 P.3d 754, where we upheld the termination of a natural mother’s parental rights and the adjudication of a ten-day-old newborn as a ‘Youth in Need of Care.” In that case, the mother’s parental rights to C.P.’s sibling had been terminated one month prior to C.P.’s birth. Although, like K.C.H., C.P. had not been actually abused or neglected by his mother, testimony from trial indicated that the mother presented a moderately high risk of child abuse. See C.P., ¶ 6. Ultimately, this Court concluded that “[t]he primary basis for the termination of parental rights was the court’s reliance on the fact that [the mother’s] parental rights to [the sibling], had been involuntarily terminated and the circumstances related to the termination remained relevant to her ability to adequately care for [her newborn],” C.P., ¶ 13. In affirming the termination of the mother’s parental rights, we held that “the continuation of the parent-child relationship between [the mother] and [child] will likely, result in substantial risk of harm to [the child’s] health or welfare.” C.P., ¶ 20.

¶21 Appellant’s statement that R.B.-H., KC.H.’s natural mother, would be the child’s primary care giver required the District Court to consider R.B.-H.’s circumstances even though she is not party to this appeal. If there was any indication that the Appellant would be the primary care giver, then the mother’s circumstances and the fact that she has been party to previous termination proceedings would be less relevant. As it stands, though, Appellant is on record as stating that R.B.-H. would be the child’s primary care giver. Thus, the District Court was called upon to determine whether the termination of R.B.H.’s parental rights to KC.H.’s three siblings remained relevant to her ability to adequately care for K.C.H. Dr. Tranel, the licensed psychologist who performed psychological evaluations on both parents, concluded that it was very unlikely that R.B.-H.’s “extensive limitations in parenting performance ha[d] changed from the previous years when it had been determined that she could not adequately provide for the needs of her young children.” The District Court, in its findings, similarly found that R.B.-H. “displayed the identical symptoms of a personality disorder in this case as she did in [the termination proceedings of KC.H.’s three siblings]: a pattern of detachment, lack of nurturing and warmth ...just like her pattern with the other three children.”

¶22 Therefore, because the circumstances related to the termination of R.B.-H.’s parental rights to K.C.H.’s three siblings have not changed, and because she would be KC.H.’s primary care giver, there was a substantial risk of harm posed to the health and welfare of K.C.H. The District Court did not err in finding that K.C.H. was “in immediate or apparent harm.” Accordingly, we affirm the District Court’s adjudication of K.C.H. as a “Youth in Need of Care.”

Ill

¶23 Whether the District Court erred in terminating Appellant’s parental rights?

¶24 Pursuant to § 41-3-609(f), MCA, once a child is adjudicated as a “Youth in Need of Care,” parental rights may be terminated if both of the following exist: (1) an appropriate treatment plan that has been approved by the court has not been complied with by the parent or has not been successful; and (2) the conduct or condition of the parent rendering them unfit is unlikely to change within a reasonable time. See § 41-3-443, MCA. Appellant argues that neither of his treatment plans were appropriate and, therefore, the District Court erred in terminating his parental rights to K.C.H.

¶25 Appellant maintains that his treatment plans were not “appropriate” because they did not satisfy the requirements of § 41-3-443, MCA. This section provides that every treatment plan must identify the “problems or conditions that resulted in the abuse or neglect of [the] child.” Section 41-3-443(2), MCA. Again, Appellant hangs his hat on the fact that K.C.H. was never actually abused and, consequently, his treatment plans necessarily failed to address the “problems or conditions that resulted in the abuse or neglect of’ K.C.H. While the Appellant is correct that his treatment plans did not identify the “problems or conditions that resulted in the abuse” because, as noted above, no actual abuse occurred, both of his plans did identify the problems or conditions creating the substantial risk of harm to the health and welfare of K.C.H., that is, the lack of a stable home and safe environment. Because of the natural mother’s demonstrated inability to care for her children, Appellant’s treatment plans put the onus on him to provide a safe environment for K.C.H. Both of Appellant’s treatment plans listed one of his primary goals as to “provide a stable home [for] his child with adequate housing and income.” Therefore, because Appellant’s treatment plans did identify the threshold “problems or conditions” creating the substantial risk of harm to the health and welfare of K.C.H., specifically that he, as opposed to R.B.H., provide K.C.H. a stable home with adequate housing and income, the plans were appropriate under § 41-3-443, MCA.

¶26 Appellant also contends that the District Court erred in concluding that he failed to comply with his treatment plans; however, Appellant offers no evidence of his substantial compliance with either plan. Again, the record is replete with evidence of his inability to secure either a residence or a job, key requirements of both treatment plans. On several occasions, social workers could not locate the Appellant at his listed address. Similarly, Appellant did not provide the Department with any evidence of gainful employment, such as pay stubs. The District Court did not abuse its discretion in determining that both elements of § 41-3-609(f), MCA, were present and accordingly terminating Appellant’s parental rights.

IV

¶27 Whether § 41-3-301, MCA, the emergency protection service statute, is constitutional?

¶28 Appellant claims that § 41-3-301, MCA (1999), which allows the immediate removal of the child from the family in emergency situations, is unconstitutional. The constitutionality of this statute, however, is not an issue properly brought for appeal as this issue was not addressed in the District Court’s final judgment, dated January 9, 2002, from which the Appellant appeals. Instead, the District Court ruled on the constitutionality of the statute in its denial of Appellant’s “Motion for Summary Judgment,” dated April 12, 2001.

¶29 Rule 4(c), M.R.App.P., requires that the notice of appeal designate the “judgment, order or part thereof appealed from.” In State v. Spotted Blanket, 1998 MT 59, ¶ 12, 288 Mont. 126, ¶ 12, 955 P.2d 1347, ¶ 12, this Court held that it “will not consider an appeal from an order not designated in the notice of appeal.” Therefore, this Court will not consider any judgment other than the one listed in Appellant’s notice of appeal. Appellant’s notice of appeal confined this appeal to “the judgement and order of the Thirteenth District Court, Judge Diane Barz, presiding, Order dated January 9, 2002.” Consequently, the Appellant has not preserved his right to appeal any ruling other than this judgment. Because Appellant did not preserve an appeal of the April 12, 2000, Order, and the issues contained therein, the constitutionality of the emergency protection service statute will not be addressed by this Court.

¶30 Therefore, we uphold the District Court’s adjudication of K.C.H. as a “Youth in Need of Care” and hold that it did not err in terminating Appellant’s parental rights.

CHIEF JUSTICE GRAY, JUSTICES NELSON, COTTER, REGNIER and RICE concur.