Matter of S.M., YINC

09/27/2022
DA 21-0622
Case Number: DA 21-0622
IN THE SUPREME COURT OF THE STATE OF MONTANA
2022 MT 187NIN THE MATTER OF:
S.M.,
A Youth in Need of Care.
APPEAL FROM: District Court of the Second Judicial District,
In and For the County of Butte-Silver Bow, Cause No. DN-20-13
Honorable Robert J. Whelan, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Jennifer Dwyer, Avignone, Banick & Williams, Bozeman, Montana
For Appellee:
Austin Knudsen, Montana Attorney General, Katie F. Schulz,
Assistant Attorney General, Helena, Montana
Eileen Joyce, Butte-Silver Bow County Attorney, Mark Vucurovich,
Special Deputy County Attorney, Butte, Montana
Submitted on Briefs: July 27, 2022
Decided: September 27, 2022
Filed:
__________________________________________
Clerk
Justice Laurie McKinnon delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), 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 Birth Mother appeals the June 22, 2021 Order of the Montana Second Judicial
District Court, Butte-Silver Bow County, terminating her parental rights to S.M. We
affirm.
¶3 In early September 2009, Birth Mother was arrested for disorderly conduct
following a domestic violence dispute. At that time, the Department of Health and Human
Services (the Department) placed S.M.’s half sibling, A.H., in foster care. While A.H. was
in foster care for two years, Birth Mother did not complete her court ordered treatment
plan. On September 15, 2011, the District Court involuntarily terminated Birth Mother’s
parental rights because she failed to complete her treatment plan.
¶4 On March 2, 2020, the Anaconda Police Department reported that S.M. and Birth
Mother had been located after S.M. was listed as a missing person on February 28, 2020.
The police arrested Birth Mother for violation of probation. Upon picking up S.M. from
the police station, the Child Protection Specialist (CPS) discovered that S.M. had a cough
and had not been eating well. S.M. later tested positive for influenza. The Department
filed a petition for Emergency Protective Services (EPS), adjudication of S.M. as a Youth
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in Need of Care (YINC), and Temporary Legal Custody (TLC) with the District Court on
March 12, 2020. The Department alleged physical and emotional neglect of S.M. as well
as psychological abuse in the home due to Birth Mother’s potential drug use, Birth
Mother’s residential instability, and Birth Mother’s mental health problems. Subsequently,
the Department placed S.M. in kinship care with his maternal aunt in Billings.
¶5 The District Court held a show cause hearing on March 12, 2020, and granted EPS
the following day. The District Court ordered Birth Mother to appear at the April 8, 2020
show cause hearing. However, Birth Mother’s counsel moved to continue the adjudication
hearing to allow her more time to consult with her counsel because Birth Mother expressed
that she intended to contest the petition regarding adjudication of S.M. as a YINC.
¶6 On April 24, 2020, the Department filed a motion to continue the adjudication
hearing regarding Birth Mother because the Department had not yet perfected service on
her since her whereabouts were unknown.
¶7 The District Court held a hearing on April 29, 2020, regarding Birth Father, who
was not present at the hearing but served by publication. Birth Mother also did not appear
because she was in quarantine due to a COVID-19 infection. At the hearing, CPS Outland
testified that returning S.M. to the home would place him at “a substantial risk of harm.”
CPS Outland was asked whether she had any contact with S.M.’s parents regarding
visitation. Counsel for Birth Mother objected to the question on the basis that Birth Mother
had not been served and asked the District Court not to discuss information concerning her.
The District Court sustained the objection and stated that it will “confine this matter to the
birth father” and “will proceed to adjudication with regards to birth father at this time.”
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The District Court entered an order adjudicating S.M. a YINC and granting TLC
“RE: BIRTH FATHER.” In this order, the District Court distinguished that the upcoming
disposition hearing would be conducted at the same time as Birth Mother’s adjudication
hearing.
¶8 Birth Mother was served by publication on May 19, 2020, and the District Court
conducted its show cause hearing on June 3, 2020. Birth Mother appeared and stipulated
to EPS but moved to continue the YINC adjudication because she hoped to reach a
stipulation with the Department and wanted time to address her religious convictions.
¶9 On June 16, 2020, Birth Mother’s first counsel filed a motion to withdraw due to
“irretrievable breakdown in communications” with Birth Mother. The following day, Birth
Mother appeared at the adjudication hearing without representation. At this hearing, the
Department mistakenly told the District Court that Birth Mother stipulated to adjudication
at the last hearing. The District Court erroneously agreed with the Department. Birth
Mother also told the District Court that she did not “understand all the terminology” and
that she appeared at the hearing so she could obtain new counsel. On June 22, 2020, notice
of substitution of counsel was filed.
¶10 The District Court entered an order on June 29, 2020, continuing EPS, adjudicating
S.M. a YINC, and granting TLC “RE: BIRTH MOTHER.” The District Court entered this
order believing that Birth Mother had stipulated based on the Department’s position at the
previous hearing. However, nothing in the record indicates that Birth Mother stipulated to
adjudication of S.M. as a YINC.
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¶11 On July 1, 2020, the District Court conducted a dispositional hearing for both
parents. Neither parent was present, but Birth Mother’s new counsel appeared. Birth
Mother’s new counsel moved to continue the hearing to allow her additional time to discuss
the case with Birth Mother. The District Court asked the Department whether both parties
had been adjudicated. The Department once again responded that both parents had been
adjudicated. Birth Mother’s new counsel did not object. The District Court granted the
continuance.
¶12 At the July 15, 2020 hearing, the District Court acknowledged that it did not have
records indicating Birth Mother had her adjudication. Again, the Department responded
that the District Court held an adjudication regarding Birth Mother on June 17, 2020. Birth
Mother’s new attorney stated that she agreed with the Department’s position regarding the
adjudication. Additionally, CPS Sas testified at this hearing that Birth Mother had not been
working on her treatment plan and that he has had difficulty reaching Birth Mother over
the phone.
¶13 The District Court conducted a hearing on August 26, 2020, regarding Birth
Mother’s treatment plan. Birth Mother’s counsel informed the District Court that Birth
Mother wanted to transfer the case to Billings. After CPS Outland testified about
components of the treatment plan, the District Court approved the treatment plan because
Birth Mother had failed to maintain consistent contact with the Department.
¶14 The Department petitioned the District Court on November 19, 2020, to extend TLC
of S.M. because Birth Mother had not complied with her treatment plan. The District Court
held a hearing on December 2, 2020. CPS Dale testified that Birth Mother did not have
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stable housing, that she stopped attending mental health care, that she enrolled in random
urinalysis testing but had not been tested, and that she involved herself in an abusive
relationship. CPS Dale further testified that Birth Mother had contacted CPS by email four
to five times and once in person since S.M. had been in foster care. Birth Mother did not
appear at this hearing.
¶15 On January 27, 2021, the District Court conducted a hearing regarding Birth
Father’s parental rights. The guardian ad litem (GAL) submitted a report to the District
Court advocating that Birth Mother’s parental rights also be terminated and that she
supported S.M.’s current kinship foster placement becoming his adoptive family. The
GAL stated, in her report, that Birth Mother had only called S.M. once and had never seen
him in person for the 11 months he had been in foster care. The District Court terminated
Birth Father’s parental rights on February 1, 2021.
¶16 The Department filed a petition to terminate Birth Mother’s parental rights on
March 31, 2021, based on three theories: (1) Birth Mother abandoned S.M., (2) the 2011
prior involuntary termination of Birth Mother’s parental rights constituted aggravated
circumstances that are relevant to S.M.’s case, and (3) Birth Mother failed to complete her
treatment plan.
¶17 Following two continuances requested by Birth Mother, the District Court held a
termination hearing for her on June 9, 2021. Birth Mother appeared and testified that she
opposed adjudication of S.M. as a YINC and termination of her rights. She stated that she
had complied with substance testing with her probation officer, moved into sober living,
and had a mental health evaluation. CPS Dale also testified that the facts leading to the
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2011 termination of Birth Mother’s parental rights to A.H. were consistent with what
occurred in S.M.’s case. Birth Mother requested that TLC be extended for another six
months so she could complete her treatment plan.
¶18 On June 22, 2021, the District Court entered an order terminating Birth Mother’s
parental rights and granting permanent legal custody to the Department. Birth Mother
appeals the termination of her parental rights, raising three issues. She argues that she was
denied due process in the termination proceeding, that the District Court abused its
discretion when it concluded that she abandoned S.M., and that the District Court abused
its discretion when it found that her prior involuntary termination constituted aggravated
circumstances.
¶19 We review a district court’s decision to terminate parental rights for an abuse of
discretion. In re D.D., 2021 MT 66, ¶ 9, 403 Mont. 376, 482 P.3d 1176. A district court
abuses its discretion when it acts arbitrarily, without employing conscientious judgment,
or exceeds the bounds of reason, resulting in substantial injustice. In re D.D., ¶ 9. We
review findings of fact for clear error and conclusions of law for correctness. In re E.Z.C.,
2013 MT 123, ¶ 19, 370 Mont. 116, 300 P.3d 1174. A finding of fact 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 us that the district court made a mistake. In
re A.B., 2020 MT 64, ¶ 23, 399 Mont. 219, 460 P.3d 405.
¶20 The Department may only terminate an individual’s parental rights if certain
conditions are satisfied by clear and convincing evidence. Section 41-3-609(1), MCA.
Clear and convincing evidence is “simply a requirement that a preponderance of the
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evidence be definite, clear, and convincing, or that a particular issue must be clearly
established by a preponderance of the evidence or by a clear preponderance of the proof.”
In re K.L., 2014 MT 28, ¶ 14, 373 Mont. 421, 318 P.3d 691. When reviewing a district
court’s findings, we do not consider whether the evidence could support a different finding,
nor do we substitute its judgment for that of the factfinder regarding the weight given to
the evidence. In re A.K., 2015 MT 116, ¶ 31, 379 Mont. 41, 347 P.3d 711.
¶21 First, Birth Mother contends that the District Court denied her due process and
fundamentally fair proceedings when it denied her motion to continue the adjudication
hearing and when it proceeded with an adjudication hearing “as to” Birth Father only. She
contends that this deprived her of due process rights because her presence at the
adjudication hearing must serve as a jurisdictional prerequisite to termination of her
parental rights. Birth Mother further asserts that the District Court abused its discretion
when it proceeded with adjudication in Birth Mother’s absence and without proper notice,
which as a result, disadvantaged her at the termination proceedings because the Department
was able to adjudicate S.M. a YINC in an uncontested hearing.
¶22 A natural parent’s right to the care and custody of her children “is a fundamental
liberty interest which must be protected by fundamentally fair proceedings.” In re A.H.,
2015 MT 75, ¶ 1, 378 Mont. 351, 344 P.3d 403. While the right to parent is a fundamental
right, this Court has consistently stated that a child’s physical, mental, and emotional needs
are paramount in any determination and “take precedence over the parental rights.” In re
X.M., 2018 MT 264, ¶ 21, 393 Mont. 210, 429 P.3d 290; In re K.J.B., 2007 MT 216, ¶ 24,
339 Mont. 28, 168 P.3d 629 (citing § 41-3-609(3), MCA).
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¶23 An adjudication that a child is a YINC is a requirement for TLC under
§ 41-3-442(1), MCA, and for a termination of parental rights under § 41-3-609(1)(f), MCA.
In re J.C., 2008 MT 127, ¶ 39, 343 Mont. 30, 183 P.3d 22. By definition, a “youth in need
of care [. . . ] is a youth who has been adjudicated or determined, after a hearing, to be or
to have been abused or neglected.” Section 41-3-102(35), MCA. We have repeatedly
referred to the YINC adjudication as a jurisdictional prerequisite, or “threshold
requirement,” to the termination of parental rights. In re B.N.Y., 2003 MT 241, ¶ 22, 317
Mont. 291, 77 P.3d 189; In re M.O., M.O. and M.O., 2003 MT 4, ¶ 12, 314 Mont. 13, 62
P.3d 265. Moreover, this Court has held that a child is not determined to be a YINC “as
to” any parent or anyone. In re K.B., 2016 MT 73, ¶ 19, 383 Mont. 85, 386 P.3d 722.
Instead, a child shall be adjudicated as a YINC if he or she is being or has been abused,
neglected, or abandoned. In re K.B., ¶ 19.
¶24 The District Court erred when it proceeded with an adjudicatory hearing “as to”
Birth Father and when it mistakenly concluded that Birth Mother stipulated to adjudication
of S.M. as a YINC. We have established that a child is not adjudicated as to any parent
and have advised district courts against following such a practice. Nonetheless, the District
Court adjudicated S.M. as to Birth Father and improperly stated in multiple orders that
Birth Mother stipulated to adjudication. At the hearing on June 17, 2020, the District Court
and the Department mistakenly agreed that Birth Mother had stipulated at the previous
hearing. Also, during this hearing, Birth Mother was unable to correct the Department’s
or District Court’s mistakes because she did “not understand all the terminology.” The
District Court never conducted a second adjudication hearing “as to” Birth Mother, but
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rather issued an order declaring S.M. a YINC regarding Birth Mother on June 29, 2020.
As a result, Birth Mother was prejudiced because the Department adjudicated S.M. a YINC
without opposition. Birth Mother was deprived due process because she was entitled to
notice and an opportunity to be heard at a YINC adjudication hearing concerning her son.
¶25 Since the District Court never properly adjudicated S.M., it lacked the jurisdictional
prerequisite to order TLC, order a treatment plan for Birth Mother, or terminate Birth
Mother’s parental rights for failing to complete a treatment plan. Accordingly, we hold
that the District Court’s errors violated Birth Mother’s due process rights.
¶26 The Department contends that the District Court’s errors were merely procedural
and subject to harmless error review because the errors would have no impact on the result
of the case. Applying harmless error to dependency proceedings is based on the “well
established [principle]. . . that 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 B.J.T.H., 2015 MT 6, ¶ 21, 378 Mont. 14, 340 P.3d
557 (citations omitted). However, a YINC adjudication following proper notice to Birth
Mother is a jurisdictional or threshold requirement for termination of her parental rights
pursuant to § 41-3-609 (1)(f), MCA. The error cannot be harmless. Notwithstanding, this
error alone does not provide a basis for reversing termination of her parental rights.
¶27 Second, Birth Mother contends that the District Court erred because there was
insufficient evidence and findings to terminate her parental rights pursuant to
§§ 41-3-609(1)(d) and 41-3-423(2)(a)-(e), MCA. She argues the District Court’s findings
of fact and conclusions of law are silent about her prior involuntary termination, the
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circumstances related to that prior termination, or the relevance of those circumstances to
the current case. Birth Mother argues that the parties did not offer the 2011 order into
evidence and the District Court did not take judicial notice of the prior involuntary
termination.
¶28 A district court may terminate parental rights based on clear and convincing
evidence of aggravated circumstances. Section 41-3-423(2)(a)-(e), MCA. An aggravated
circumstance under § 41-3-423(2)(e), MCA, includes prior involuntary termination of a
previous child, which relates to the termination of parental rights regarding the parent’s
ability to adequately care for the child at issue. Parental termination under
§ 41-3-609(1)(d), MCA, requires a court to take judicial notice of prior terminations and
the facts and circumstances surrounding those orders. In re T.S.B., 2008 MT 23, ¶ 35, 341
Mont. 204, 177 P.3d 429; M. R. Evid. 201, 202. Judicial notice of prior terminations is
necessary if a district court is to determine whether those terminations are relevant to the
parent’s ability to care for the child currently at issue. In re T.S.B., ¶ 35. Circumstances
surrounding previous involuntary terminations remain relevant unless the circumstances
have changed. In re I.T., 2015 MT 43, ¶ 13, 378 Mont. 239, 343 P.3d 1192.
¶29 The District Court’s written order on June 22, 2021, omitted any grounds for
terminating Birth Mother’s parental rights for aggravated circumstances. The order merely
stated that clear and convincing evidence established that Birth Mother had parental rights
to another child involuntarily terminated in a prior case, which related to Birth Mother’s
current ability to care for S.M. The order failed to include any references to facts or
circumstances from the prior termination to determine if the previous termination relates
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to S.M.’s case. The record shows that Birth Mother failed to complete her treatment plan
in the current case, but there is no evidence of any facts or circumstances that resulted in
Birth Mother’s failure to complete her treatment plan in 2011. It is not enough that CPS
Dale acknowledged that the 2011 termination was from Yellowstone County and that she
believed that the termination is consistent with what occurred here. The record also lacks
any findings that the District Court took judicial notice of the 2011 involuntary termination.
Therefore, the District Court erred when it based Birth Mother’s termination on a prior
involuntary termination without taking judicial notice of the 2011 order and without
making any factual findings that the circumstances from the previous termination are
relevant to the parent’s ability to adequately care for the child at issue. However, this error
alone does not provide a basis for reversing termination of her parental rights.
¶30 Lastly, Birth Mother contends that the District Court abused its discretion when it
found and concluded that Birth Mother abandoned S.M. She argues that the evidence
presented throughout the case undermined any conclusion that she did not intend to resume
care of S.M. in the future. Birth Mother asserts that she tried to arrange visitation with
S.M. through the Department and with S.M.’s caretaker and that she had been trying for
months to comply with her treatment plan.
¶31 A district court has authority to terminate a parent-child relationship if clear and
convincing evidence establishes that the parent has abandoned the child. Sections
41-3--609(1)(b)-423(2)(e), MCA. Under § 41-3-102(a)(i), MCA, a district court may find
a child to be abandoned if it concludes that the parent left a child under circumstances that
make reasonable the belief that the parent does not intend to resume care of the child in the
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future. No requisite time frame applies to this definition of abandonment. In re Matter of
A.E., 255 Mont. 56, 60, 840 P.2d 572, 575 (1992). Types of circumstances that create the
reasonable belief that the parent has failed to manifest intent to resume care of the child
include failure to maintain regular contact with the child, making little to no effort to
establish a relationship with the child, and failure to provide any sort of financial or other
types of care. In re T.H., 2005 MT 237, ¶ 30, 328 Mont. 428, 121 P.3d 541; In re M.J.C.,
2014 MT 122, ¶ 7, 375 Mont. 106, 324 P.3d 1198. Moreover, this Court has held that
noncompliance with a court-ordered treatment plan can indicate that the parent had no
intention of caring for the child in the future. In re M.J.C., ¶ 12.
¶32 Based upon our review of the record, we conclude that the District Court did not
abuse its discretion when it found that the Department presented clear and convincing
evidence that supported termination of Birth Mother’s parental rights based on
abandonment. Birth Mother had “very minimal contact” with the Department. CPS
workers had difficulty contacting Birth Mother throughout the TLC period. CPS Outland
had no success in contacting Birth Mother. CPS Sas informed the District Court that Birth
Mother had not had any visitations with S.M. and had limited phone contact with S.M.’s
caretaker. CPS Sas reported that he made multiple attempts to contact Birth Mother over
the phone, but her phone was either disconnected or she failed to return the calls. Notably,
she failed to show up for a scheduled appointment with CPS Dale to visit S.M. for his
birthday. As of the hearing on June 9, 2021, Birth Mother had not seen S.M. since March 4,
2020. The GAL noted in her report that Birth Mother had only called S.M. once and had
never had a visitation with him in the 11 months that he had been in foster care. Further,
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Birth Mother has not complied with any component of her treatment plan, indicating no
intent to care for S.M. in the future.
¶33 The record reflects that Birth Mother abandoned S.M. because she left S.M. under
circumstances that demonstrate that she did not intend to resume care of S.M. Therefore,
we agree that clear and convincing evidence supports the District Court’s termination of
Birth Mother’s parental rights under an abandonment theory pursuant to §§ 41-3-609(1)(d)
and 41-3-102(1)(a)(i), MCA.
¶34 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our
Internal Operating Rules, which provides for memorandum opinions. In the opinion of the
Court, the case presents a question controlled by settled law or by the clear application of
applicable standards of review.
¶35 Affirmed.
/S/ LAURIE McKINNON
We Concur:
/S/ MIKE McGRATH
/S/ JAMES JEREMIAH SHEA
/S/ INGRID GUSTAFSON
/S/ BETH BAKER
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