Matter of H.H.

December 10 2013
DA 13-0002
IN THE SUPREME COURT OF THE STATE OF MONTANA
2013 MT 371N
IN THE MATTER OF:
H.H.,
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 11-21
Honorable Karen Townsend, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Lucy Hansen, Attorney at Law; Missoula, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Pamela P. Collins, Assistant
Attorney General; Helena, Montana
Fred R. Van Valkenburg, Missoula County Attorney, Matthew B. Lowy,
Deputy County Attorney; Missoula, Montana
Submitted on Briefs: November 20, 2013
Decided: December 10, 2013
Filed:
__________________________________________
Clerk
Justice Michael E Wheat delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not serve
as precedent. Its case title, 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 D.H. is the father of H.H. A hearing for termination of D.H.’s parental rights was
scheduled for August 6, 2012. When the hearing commenced, the court was informed that
no Court Appointed Special Advocate (CASA) or guardian ad litem (GAL) was present to
represent H.H.’s best interests. Kristen Vorreyer (Vorreyer), a supervisor in the CASA
program, acted as H.H.’s CASA until another volunteer could be appointed on August 9.
Throughout the continuation of the termination hearing, CASA Alicia Maclean (Maclean)
and attorney Janna Gobeo (Gobeo) represented H.H.
¶3 The District Court issued its findings of fact and conclusions of law on November 5,
2012. The court found that D.H. had failed to successfully complete a number of tasks in his
treatment plan that related to H.H. The central issue addressed by the treatment plan
concerned H.H.’s statements and behavior indicating that D.H. had sexually assaulted her.
The court considered the treatment plan together with testimony from Katherine Florez
(Florez), H.H.’s individual therapist, and Taryn Kovac (Kovac), a social worker involved
with the family. Based on this testimony, the court concluded that D.H. had failed to take
any steps to repair the father-daughter relationship pursuant to the treatment plan, and that
his conduct was unlikely to change within a reasonable time.
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¶4 We review a decision to terminate parental rights for abuse of discretion, and we
review a court’s findings of fact to determine whether they are clearly erroneous. In re D.B.,
2008 MT 272, ¶ 13, 345 Mont. 225, 190 P.3d 1072. A court may terminate parental rights if
the parent has failed to comply with a court-approved treatment plan and the conduct or
condition of the parent rendering him unfit is unlikely to change within a reasonable time.
Section 41-3-609(1)(f), MCA.
¶5 Section 41-3-607(4), MCA, requires a GAL to be appointed to represent the child’s
best interests in a hearing determining the involuntary termination of the parent-child legal
relationship. However, “no civil case shall be reversed by reason of error which would have
no significant impact upon the result; if there is no showing of substantial injustice, the error
is harmless.” In re C.B., 2001 MT 42, ¶ 16, 304 Mont. 252, 20 P.3d 117; In re D.B., ¶ 38.
¶6 D.H. contends that he offered compelling testimony that his daughter had been
coached to say that he sexually assaulted her, and that the appointment of a GAL would have
changed the outcome of the termination proceeding. But the District Court did not commit
clear error by finding Florez and Kovac to be more credible than D.H. Those witnesses
testified that H.H. had disclosed the sexual assault, exhibited symptoms of post-traumatic
stress disorder, and had demonstrated “sexualized acting out at her day care.” In light of this
evidence, the District Court’s finding that “the cause of the Youth being a youth in need of
care is her Father’s sexual assault of the Youth” was not clearly erroneous.
¶7 Second, D.H. has not presented any evidence to support his argument that the lack of
a formal GAL influenced the outcome of the case. Rather, D.H. has simply presented the
law that gives rise to the statutory right and asserted that a manifest miscarriage of justice
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will occur if we do not review his claim. No evidence has been presented to demonstrate
that H.H.’s best interests were not represented at the hearing, and no evidence or claim has
cast doubt on Gobeo, Maclean, or Vorreyers’ effective assistance to H.H. D.H.’s attorney
even recognized that the appointment of Vorreyer “follows the intent of the law. . . .”
¶8 Finally, it bears noting that the CASA initially appointed as GAL in these proceedings
had conducted an investigation before having to withdraw for personal reasons, and that
D.H. agreed with the court that the new CASAs could rely on the reports prepared by this
previous CASA. One or more CASAs were present for each and every session of the
adjudication and during all phases of the termination hearing. In addition, the child was
represented by counsel throughout these proceedings. Had counsel deemed the interim
absence of an active GAL significant to the best interests of the child, counsel could have
raised an objection. None was raised. In light of these circumstances, we conclude that the
District Court’s failure to formally appoint a GAL was harmless error.
¶9 For the foregoing reasons, we affirm. The District Court’s conclusions were
supported by substantial evidence and the legal issues are controlled by settled Montana law,
which the District Court correctly interpreted. We have therefore determined to decide this
case pursuant to Section I, Paragraph 3(d), of our Internal Operating Rules, which provides
for noncitable memorandum opinions.
/S/ MICHAEL E WHEAT
We Concur:
/S/ MIKE McGRATH
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/S/ PATRICIA COTTER
/S/ BETH BAKER
/S/ JIM RICE
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