Matter of M.B.

No. 04-074
IN THE SUPREME COURT OF THE STATE OF MONTANA
2004 MT 304IN THE MATTER OF M.B., J.B.
and W.B.,
Youths in Need of Care.
APPEAL FROM: District Court of the Twenty-First Judicial District,
In and For the County of Ravalli, Cause No. DN 2001-03,
Honorable Jeffrey H. Langton, Presiding Judge
COUNSEL OF RECORD:
For Appellants:
Brian C. Smith, Worden Thane P.C., Missoula, Montana
For Respondent:
Honorable Mike McGrath, Attorney General; John Paulson, Assistant
Attorney General, Helena, Montana
Kathleen Jenks, Department of Public Health and Human Services,
Missoula, Montana
Larry Mansch, McLaverty & Associates, Missoula, Montana
(Guardian ad Litem)
Submitted on Briefs: June 1, 2004
Decided: November 4,
2004
Filed:
__________________________________________
Clerk
Justice Jim Rice delivered the Opinion of the Court.
¶1 S. B. and D. B. (“Appellants”) appeal the judgment of the Twenty-First Judicial
District Court, Ravalli County, which terminated their parental rights to their children M. B.,
J. B., and W. B., and awarded permanent legal custody of these children to the Montana
Department of Public Health and Human Services (hereinafter, “the Department”), together
with the right to consent to their adoption. We affirm.
¶2 We address the following issues on appeal:
¶3 1. Did the District Court abuse its discretion when it terminated the mother’s parental
rights to all three children?
¶4 2. Did the District Court abuse its discretion when it terminated both the mother’s
and father’s parental rights to W. B.?
¶5 3. Did the District Court err by failing to approve a second treatment plan for the
mother?
¶6 4. Did the District Court err with regard to the father’s treatment plan?
¶7 5. Did the District Court err in finding that the social worker did not have a conflict
of interest with the mother such as to warrant reversal?
FACTUAL AND PROCEDURAL BACKGROUND
¶8 M. B., and J. B., the two minor daughters of S. B. and D. B., and W. B., their minor
son, were removed by the Department from the family home on March 23, 2001. The
Department took this action after receiving a report that S. B., the children’s natural father,
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had been arrested pursuant to an affidavit-supported bench warrant which alleged that he had
committed felony incest against his four daughters, including M. B. and J. B.
¶9 On October 10, 2001, S. B. pled guilty to four counts of felony incest–one count as
to each of his daughters–and was sentenced on December 31, 2001, to 40 years in prison,
with 20 years suspended. S. B. later appealed his sentence, though not his guilty plea or his
conviction, to this Court. We affirmed.1
¶10 The Department ultimately petitioned for permanent legal custody of the minor
children, and termination of Appellants’ rights to them, on February 3, 2003. By Order dated
June 2, 2003, the District Court granted the Department’s petition. S. B. and D. B. appeal
therefrom.
STANDARD OF REVIEW
¶11 A district court’s decision to terminate parental rights is discretionary, and we review
that decision to determine whether the court abused its discretion. In re J. W., 2001 MT 86,
¶ 7, 305 Mont. 149, ¶ 7, 23 P.3d 916, ¶ 7. In reviewing a decision to terminate parental
rights, we determine whether the district court’s findings of fact supporting termination are
clearly erroneous and whether the district court’s conclusions of law are correct. In re C. B.,
2001 MT 42, ¶ 6, 304 Mont. 252, ¶ 6, 20 P.3d 117, ¶ 6. A finding of fact is clearly
erroneous if it is not supported by substantial evidence; if the district court misapprehended
the effect of the evidence; or if, after reviewing the record, this Court is left with a definite
1
Because providing the citation to the opinion which affirmed S. B.’s sentence
would reveal the surname of the family involved in the present case, we refrain. See
Section VII, ¶ 10, Montana Supreme Court Internal Operating Rules (1996).
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and firm conviction that the district court made a mistake. In re J. N., 1999 MT 64, ¶ 11,
293 Mont. 524, ¶ 11, 977 P.2d 317, ¶ 11.
¶12 Moreover, it is well established that in reviewing a district court’s findings, we do not
consider whether the evidence could support a different finding; nor do we substitute our
judgment for that of the fact-finder regarding the weight given to the evidence. In re L. S.,
2003 MT 12, ¶ 10, 314 Mont. 42, ¶ 10, 63 P.3d 497, ¶ 10 (citation omitted).
¶13 This Court has stated, furthermore, that a natural parent’s right to care and custody
of a child is a fundamental liberty interest which must be protected by fundamentally fair
procedures. Thus, before terminating an individual’s parental rights, a district court must
adequately address each applicable statutory requirement. The party seeking to terminate
an individual’s parental rights has the burden of proving by clear and convincing evidence
that the statutory criteria for termination have been met. In re J. N., ¶ 12.
DISCUSSION
¶14 1. Did the District Court abuse its discretion when it terminated the mother’s
parental rights to all three children?
¶15 The Appellants argue that M. B., J. B., and W.B. were never properly adjudicated to
be youths in need of care, a pre-requisite for termination of parental rights. We disagree.
¶16 Section 41-3-609(1), MCA, authorizes a district court to order a termination of the
parent-child legal relationship upon a finding, established by clear and convincing evidence,
that circumstances exist as set forth in any of several subsections. The District Court
terminated D. B.’s parental rights to all three children based on subsection (f):
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(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.
Section 41-3-609(1)(f), MCA. Thus, proof by clear and convincing evidence that the child
was previously adjudicated a youth in need of care is a statutory precondition for terminating
parental rights to the child under the statute. See In re J.N., ¶ 12. “The adjudication of a
child as a youth in need of care is a threshold requirement without which a court may not . . .
terminate a person’s parental rights under the statute.” In re B.N.Y., 2003 MT 241, ¶ 22, 317
Mont. 291, ¶ 22, 77 P.3d 189, ¶ 22.
¶17 Section 41-3-437, MCA, provides that a child’s adjudication as a youth in need of
care may occur upon a hearing in which the court determines the same by a preponderance
of the evidence. See § 41-3-437(2), MCA; In re A.M., 2001 MT 60, ¶¶ 44-45, 304 Mont.
379, ¶¶ 44-45, 22 P.3d 185, ¶¶ 44-45 (evidentiary standard for adjudication of child as youth
in need of care different from the ultimate standard applied in parental termination cases).2
Such a hearing apparently did not occur in the present case. This Court has, however,
recognized that the parents’ stipulation that a child is a youth in need of care, when filed with
2
Appellants insist that § 41-3-609(1)(f), MCA, establishes the clear-and-
convincing evidentiary standard for adjudicating children to be youths in need of care as
a precondition for terminating parental rights. This assertion is erroneous. Rather, the
statute in question requires clear and convincing evidence that the child has been
adjudicated a youth in need of care. This standard can be met by simply introducing the
adjudication order, or by moving the district court to take judicial notice of its prior
ruling. Section 41-3-437(2), MCA, provides the evidentiary standard for the prior
adjudication: preponderance of the evidence. See In re A.M., ¶¶ 44-45.
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the district court, may be treated as an adjudication for the purposes of § 41-3-437, MCA,
and, therefore, may suffice for purposes of terminating parental rights pursuant to § 41-3-
609, MCA, although it should be “closely scrutinized.” In re Custody of M. W., 2001 MT
178, ¶ 47, 305 Mont. 80, ¶ 47, 23 P.3d 206, ¶ 47. Further, the 2001 Legislature enacted §
41-3-434(1), MCA, which authorizes a parent to stipulate that a child is a youth in need of
care by a preponderance of the evidence.
¶18 The record herein reflects that Appellants twice stipulated that all three of their minor
children were youths in need of care. First was the Stipulation to Temporary Legal Custody,
filed on November 13, 2001, which was signed by, among others, both Appellants and their
attorney. Appellants acknowledged therein that M. B., J. B., and W. B. were all youths in
need of care. The District Court found therefrom that the minor children were youths in
need of care and granted the Department’s request for temporary legal custody by its order
of December 19, 2001. Appellants again so stipulated in the Stipulation to Extension of
Temporary Legal Custody, filed October 23, 2002. (“The children named above have been
previously adjudicated Youths in Need of Care. . . . The parents . . . stipulate and agree that
. . . the State could prove by a preponderance of the evidence that the children . . . continue
to beYouths in need of care.”) This latter stipulation set forth the evidentiary basis for such
an adjudication in considerable detail. D. B. and her attorney signed this document, and
though S. B. did not sign it, he agreed through his counsel in open court to the stipulation.
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¶19 On the basis of these stipulations, § 41-3-434(1), MCA, and our holding in Custody
of M.W., we conclude that the District Court properly adjudicated the minor children to be
youths in need of care.
¶20 Appellants next argue that the District Court clearly erred in finding that D. B., the
natural mother, did not successfully complete her treatment plan. We disagree.
¶21 The Department presented D. B. with a treatment plan on November 13, 2001, and
on December 19, 2001, the District Court ordered D. B. to complete the treatment plan. The
plan stated its ultimate goal was “to reunite [D. B.] with her children and for [D. B.] to
demonstrate her ability to believe her children and protect them.” The treatment plan
identified three “problems” related to D. B.’s ability to provide emotional care and support
to her children and otherwise to parent them in a manner conducive to their overall health
and well-being. Each problem was accompanied by a “goal,” which set forth the general
criterion for success in addressing the problem, together with a series of specific “client
objectives” for meeting each goal.
¶22 The District Court found that D. B. had failed to meet many of her objectives. For
example, the treatment plan’s Problem 1 states that D. B., having endured sexual molestation
during her own childhood and having never received treatment for it, tended to minimize the
effect such abuse had had on herself. Consequently, she was unable to empathize with and
protect her own daughters when the eldest revealed to her the sexual abuse being perpetrated
against them by S. B., some two years before the Department filed its first petition in this
matter. The goal which the treatment plan prescribed for D. B. in this regard was that she
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understand how being sexually abused had affected her ability to parent and to protect her
children, and that she demonstrate empathy and appropriate care for her children regarding
their sexual abuse issues.
¶23 Citing the collective testimony of the witnesses presented at the termination hearing,
documentary evidence, and information contained in the court file, the District Court found
that D. B. had clearly failed to achieve this goal. The children’s therapist, Laurie Bogart,
testified that D. B. was disruptive and antagonistic in the two Department-sponsored
meetings with her children, and failed to demonstrate empathy for, or understanding of, their
suffering. Furthermore, D. B. often appeared skeptical in these meetings about her children’s
truthfulness regarding the abuse. As a result, D. B.’s therapist, Billie Nelson, continually had
to redirect their interactions down less volatile paths. The Department’s social worker, Amy
Rau, testified that in group therapy sessions D. B. made excuses for her husband’s behavior
towards her daughters, and that she continued to express doubts about the abuse. The
District Court found that, taken together, these facts clearly indicated that D. B. had failed
to achieve an empathetic understanding of her children’s needs in the wake of their abuse at
her husband’s hands, the crucial objective of D. B.’s treatment plan, and we conclude that
the District Court did not clearly err in making this determination.
¶24 Appellants further argue that the District Court clearly erred in finding that D. B. was
unable to change her condition within a reasonable time. We disagree.
¶25 As we previously noted, the District Court terminated D. B.’s parental rights to her
children pursuant to § 41-3-609(1)(f), MCA. This subsection requires a finding, not only (i)
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that the natural parent in question has not successfully completed her treatment plan, but
also (ii) that the conduct or condition which renders the natural parent unfit is unlikely to
change within a reasonable time. For making this latter determination, § 41-3-609(2), MCA,
provides guidance in the form of a non-exhaustive list of considerations. Among these is the
natural parent’s emotional illness, mental illness, or mental deficiency, of such a duration or
nature as to render the parent unlikely to care for the continuing physical, mental, and
emotional needs of the child within a reasonable time. Section 41-3-609(2)(a), MCA.
¶26 The District Court referred in its factual findings to Dr. Paul Moomaw’s diagnosis that
D. B. was suffering from paranoid personality disorder. At the termination hearing, D. B.’s
therapist, Ms. Nelson, testified that she disagreed with this diagnosis, preferring one of post-
traumatic stress disorder (PTSD) precipitated by the removal of the children from the family
home. In response to questioning from the District Court, however, Ms. Nelson conceded
that D. B. did not meet the criteria for a PTSD diagnosis, and that D. B.’s condition was
consistent with paranoid personality disorder, a mental illness which is extremely resistant
to treatment.
¶27 The District Court also cited what it termed D. B.’s long history of disregarding her
children’s needs, her exposure of the children to unreasonable risk, and her failure to protect
them in determining that D. B. was unlikely to be able to parent her children adequately
within a reasonable time. D. B. stipulated to the fact that her eldest daughter had disclosed
to D. B. the continuing abuse she was suffering fully two years before the Department filed
its initial petition in this case; the young woman herself confirmed this at the termination
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hearing. Furthermore, the District Court received testimony to the effect that other
individuals, to whom D. B. allowed unsupervised access to her children, also had inflicted
sexual abuse upon them with impunity. S. B., moreover, testified that he and his wife left
the children at home alone for long periods in order to accept construction work in other
cities.
¶28 Given this evidence, we conclude that the District Court did not clearly err in finding
that D. B.’s unfitness to parent her children would not change within a reasonable time. We
therefore hold that, based on its supported statutory findings, the District Court did not abuse
its discretion in terminating D. B.’s parental rights to the children at issue in this case.
¶29 2. Did the District Court abuse its discretion when it terminated both the mother’s
and the father’s parental rights to W. B.?
¶30 Appellants argue that the evidence regarding the abuse allegedly inflicted on W. B.
was insufficient to support the District Court’s finding that W.B., in particular, was a youth
in need of care. We disagree.
¶31 As noted previously, both S. B. and D. B. stipulated that all their minor children were
youths in need of care. Moreover, the District Court found that W. B. had been a secondary
victim of the abuse which S. B. inflicted on his sisters. Ms. Bogart, the children’s therapist,
testified that W. B. suffered anxiety and emotional trauma which originated in his father’s
abuse of his sisters, manifesting in regressive behavior, insomnia, and night-terrors. Ms.
Bogart further opined that the family situation as a whole inhibited W. B.’s normal
development in childhood. We have previously held that § 41-3-101, et seq., MCA, grants
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to the district court the authority to make a determination of neglect and abuse as to all
children in a family based on the policy that abuse of one child has a detrimental effect on
the other children's development. See In the Matter of T. Y. K. (1979), 183 Mont. 91, 95-96,
598 P.2d 593, 595-96 (“a parent does not have the privilege of inflicting brutal treatment
upon each of his children in succession before they may individually obtain the protection
of the state”).
¶32 Thus, on the facts presented by this case, in which the Department has clearly
demonstrated the emotional harm which S. B.’s abuse of his daughters was causing his son,
we conclude that the District Court did not abuse its discretion in terminating both
Appellants’ rights to W. B. based on the continuing sexual abuse which his sisters endured.
¶33 3. Did the District Court clearly err when it failed to approve a second treatment
plan for D. B. after the District Court granted the Department an extension of its
temporary legal custody of the children?
¶34 Appellants argue that, because several deadlines in the original treatment plan had
already passed when the District Court extended the Department’s temporary legal custody
of the children, the District Court erred when it did not likewise extend the original treatment
plan’s deadlines. We disagree.
¶35 We note, first, that the Department sought an extension of its temporary legal custody
on the grounds that Appellants required more time to complete their respective treatment
plans, and that Appellants stipulated to this fact in documents supporting the Department’s
motion. This action was consistent with the statutory preference for resolution of parenting
problems and reunification of the family over termination of parental rights, insofar as
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reunification is in the best interests of the children at issue. See §§ 41-3-101 and -102(25),
MCA. Secondly, we note that Appellants requested no modification of the treatment plan’s
deadlines when the Department’s extension was granted, and that this issue appears to have
been raised for the first time before the District Court at the termination hearing. Third, it
is clear from the order which terminated S. B.’s and D. B.’s parental rights that the District
Court considered all their efforts to complete their treatment plans, not merely those which
preceded the deadlines set forth therein, which appears to have been the intent of the parties
in entering the stipulation. After all, the Department’s stated reason in petitioning for an
extension of its temporary legal custody was to allow Appellants more time to complete their
treatment plans. Finally, Appellants have failed to cite any authority whatsoever which
would oblige a District Court to modify a treatment plan when a parent has failed to meet its
deadlines, as is the case here. We therefore conclude that the District Court did not abuse
its discretion by not modifying the treatment plan in the manner advanced by Appellants.
¶36 4. Did the District Court err with regard to the father’s treatment plan?
¶37 Appellants argue that the District Court erred both in failing to approve the treatment
plan which the Department offered to S. B. and in basing its decision to terminate his
parental rights on this treatment plan. We disagree.
¶38 The District Court terminated S. B.’s parental rights pursuant to § 41-3-609(1)(f),
MCA.3 As we noted previously, § 41-3-609(1)(f)(i), MCA, requires, in the first instance, “an
3
Although the District Court stated its belief that S. B.’s parental rights could have
been terminated without offering him a treatment plan, presumably under §§ 41-3-
609(1)(d) and 41-3-423(2)(a), MCA, regarding the minor daughters, and §§ 41-3-
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appropriate treatment plan that has been approved by the court.” This is precisely what
Appellants claim was lacking.
¶39 As a factual matter, their assertion is clearly wrong. The District Court both approved
the Department’s plan for S. B. prepared by the Department, and ordered him to complete
it. Furthermore, S. B. himself stipulated to the fact that the Department had offered him a
treatment plan, and confirmed this stipulation in his testimony at the termination hearing.
He further testified to the fact that the District Court had ordered him to complete the plan.
We thus conclude that the District Court did not clearly err in terminating S. B.’s parental
rights based on his failure to comply with the treatment plan.
¶40 5. Did the District Court err in finding that the social worker did not have a conflict
of interest with the mother such as to warrant reversal?
¶41 D. B. argues that because the Department’s social worker, Amy Rau, was the
complaining witness in a criminal complaint against D. B., she had a conflict of interest
which impeded D. B. in completing her treatment plan, and which warrants reversal. We
disagree.
¶42 The criminal complaint to which D. B. refers arose out of a disturbance which D. B.
caused at the Department office. The record reflects that Ms. Rau summoned the police, and
was later formally listed as the complaining witness when charges of disorderly conduct and
attempted assault were filed against D. B. The District Court found that the restraining order
609(1)(f) and 41-3-609(4)(c), MCA, regarding W. B., the District Court did not base its
decision on these statutes. Therefore, we will not address its statement, or Appellants’
argument in opposition thereto, in this opinion.
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which was subsequently issued as a condition of D. B.’s release in this criminal matter
forbade her from going to the Department’s Hamilton office without the prior consent of the
municipal court, but did not impede her ability to progress in her treatment plan. This
finding is not challenged by Appellants on appeal. Given that D. B.’s plan did not require
her to report to the Department’s Hamilton office or prevent her from communicating with
Ms. Rau in places or by means other than those proscribed by the restraining order, we
conclude that the District Court did not clearly err in finding no conflict of interest between
Ms. Rau and D. B. arising out of this matter.
¶43 For the foregoing reasons, we affirm.
/S/ JIM RICE
We concur:
/S/ KARLA M. GRAY
/S/ JIM REGNIER
/S/ W. WILLIAM LEAPHART
/S/ JOHN WARNER
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