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                                                                 No. 97-511

                            IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                               1999 MT 281

                                                               296 Mont. 535

                                                                989 P.2d 860



IN RE THE MATTER OF

E.A.T. and T.A.T.,

Youths in Need of Care.




                                                           APPEAL FROM: District Court of the Eighteenth Judicial
                                                           District,

In and for the County of Gallatin,

The Honorable Thomas A. Olson, Judge presiding.




COUNSEL OF RECORD:

For Appellant:

Brock Albin, Albin Law Firm; Bozeman, Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General; Tammy K. Plubell,

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Assistant Attorney General; Helena, Montana

Marty Lambert, Gallatin County Attorney; Gary Balaz,

Deputy County Attorney; Bozeman, Montana



Submitted on Briefs: June 17, 1999

Decided: November 23, 1999

Filed:




__________________________________________

Clerk

Justice Terry N. Trieweiler delivered the opinion of the Court.

      1. ¶ The Department of Public Health and Human Services (DPHHS) brought this
           action in the District Court for the Eighteenth Judicial District in Gallatin County to
           terminate the parental rights of Lee (the father) and Nicki (the mother). The District
           Court terminated the parental rights of Lee and Nicki and awarded permanent
           custody of E.A.T., with the right to consent to his adoption, to DPHHS. Nicki
           appeals from the judgment of the District Court terminating her parental rights. Both
           Lee and Nicki appeal from the judgment of the District Court awarding custody of E.
           A.T. to DPHHS. We affirm the judgment of the District Court.
      2.   ¶ The following issues are presented on appeal:
      3.   ¶ 1. Did the District Court abuse its discretion by terminating the parental rights of
           Nicki?
      4.   ¶ 2. Did the District Court abuse its discretion by terminating parental rights without
           considering other options, such as a guardianship?
      5.   ¶ 3. Did the District Court abuse its discretion by permanently placing E.A.T. with
           the DPHHS and not with E.A.T.'s grandmother Eva, following termination of Lee's
           and Nicki's parental rights?

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                                                     FACTUAL BACKGROUND

     6. ¶ Appellants Nicki and Lee are the parents of two sons, E.A.T., born June 8, 1994,
          and T.A.T., born February 28, 1997. E.A.T. is the subject of this appeal.
     7.   ¶ On September 21, 1995, DPHHS received a referral regarding a September 20,
          1995 emergency room visit during which the emergency room doctor discovered
          fresh tears and bruising around 15-month-old E.A.T's rectal area. On September 29,
          1995, after conducting interviews with E.A.T.'s parents Nicki and Lee, DPHHS
          removed E.A.T. from their home and placed him in protective custody with a foster
          parent.
     8.   ¶ On October 2, 1995, DPHHS filed a petition for temporary investigative authority
          based on allegations that E.A.T. had been sexually abused. At the October 12, 1995
          hearing to consider DPHHS's petition for temporary investigative authority, the
          Appellants consented to a six-month temporary investigative authority for DPHHS.
          Additionally, the court ordered the parties to draft a treatment plan. The parties filed
          the court ordered treatment plan on October 24, 1995.
     9.   ¶ On April 12, 1996, after E.A.T. had spent more than six months in foster care,
          DPHHS filed a petition for temporary custody of E.A.T., alleging that the
          Appellants had not complied with their court ordered treatment plans. On May 20,
          1996, the court held a hearing to consider the petition for temporary custody and
          after which it ordered that E.A.T. be returned to Nicki, and ordered that Lee be
          excluded from the home. Lee was only permitted supervised visitation with E.A.T.
          Nicki was required to continue with her treatment plan and Lee was ordered to
          complete a sex offender evaluation, following which the court intended to
          reconsider the case. Additionally, the court granted DPHHS the authority to enter
          Nicki's home to monitor E.A.T. and to place E.A.T. in protective custody should an
          emergency arise.
 10.      ¶ On June 7, 1996, after E.A.T. had been in Nicki's care for approximately two
          weeks, DPHHS social workers discovered Lee's car in a parking lot in the vicinity
          of Nicki's home. Accompanied by a Gallatin County Sheriff's Deputy, the DPHHS
          social workers went to Nicki's home. The Deputy asked Nicki if Lee was in the
          home and she denied his presence. However, upon searching Nicki's home, Lee was
          discovered hiding in the bedroom closet. Nicki later testified that she knew of Lee's
          presence in her home and that she had asked him to stay with her that night, in direct
          violation of the court's order.
 11.      ¶ Because of Nicki's violation of the court's order to exclude Lee from their home
          and not allow any unsupervised contact with E.A.T., DPHHS removed E.A.T. from

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     the home that night and returned him to the protective custody of the foster parents.
     The next morning, on June 8, 1996, DPHHS brought E.A.T. to a pediatrician, Dr.
     McInnis, for examination. It was Dr. McInnis' opinion that there had possibly been
     recent sexual abuse. E.A.T. was referred to Dr. Johnson, a pediatrician with special
     training in the area of child sexual abuse. Dr. Johnson examined E.A.T. on June 12,
     1996. Dr Johnson's opinion was that E.A.T.'s physical condition was consistent with
     recent sexual abuse.
 12. ¶ On August 21, 1996, DPHHS filed a petition to terminate Lee's and Nicki's
     parental rights to E.A.T. On August 30, 1996, Eva, E.A.T.'s maternal grandmother,
     petitioned and was granted leave to be added as a party to this matter. A hearing was
     held to consider DPHHS's petition to terminate parental rights on September 18
     through 20, 1996.
 13. ¶ On June 27, 1997, the District Court entered its Findings of Fact, Conclusions of
     Law and Order terminating both Lee's and Nicki's parental rights to E.A.T.
     Specifically, the court found that: (1) E.A.T. had been sexually abused by Lee; (2) E.
     A.T. would not be safe in Nicki's care because she is unable or unwilling to protect
     E.A.T. from Lee; (3) the conduct and condition of both Lee and Nicki, renders them
     unfit to be parents and is unlikely to change within a reasonable time; and (4)
     Nicki's questionable adherence to her treatment plan suggests that she is not serious
     about parenting E.A.T.
 14. ¶ On August 21, 1997, the District Court entered its Supplementary Order granting
     DPHHS permanent legal custody of E.A.T., with the right to consent to his adoption.

                                                       STANDARD OF REVIEW

 15. ¶ The standard of review for a district court's findings of fact in a parental rights
     termination case is whether the findings are clearly erroneous. In re the Matter of J.
     M.W.E.H., 1998 MT 18, ¶ 27, 287 Mont. 239, ¶ 27, 954 P.2d 26, ¶ 27. A finding is
     clearly erroneous if it is not supported by substantial evidence, if the trial court
     misapprehended the effect of the evidence, or if this Court is left with a definite and
     firm conviction that the District Court made a mistake. In re J.M.W.E.H, ¶ 27. We
     review conclusions of law in a termination proceeding to determine if those
     conclusions are correct. In re E.W., C.W. and A.W., 1998 MT 135, ¶ 11, 289 Mont.
     190, ¶ 11, 959 P.2d 951, ¶ 11.
 16. ¶ This court has recognized 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. In re E.W., C.W. and A.W., ¶ 12. Moreover, the party seeking

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     termination must present clear and convincing evidence to the district court that the
     prerequisite statutory criteria for termination have been met. In re E.W., C.W. and A.
     W., ¶ 12.
 17. ¶ In the context of parental rights termination cases, we have defined clear and
     convincing evidence as:

        [S]imply a requirement that a preponderance of the 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. This requirement does not
        call for unanswerable or conclusive evidence.

        In re E.W., C.W. and A.W., ¶ 13.

                                                                      ISSUE 1

 18. ¶ Did the District Court abuse its discretion by terminating Nicki's parental rights to
     E.A.T.?
 19. ¶ Nicki makes several arguments to support her contention that the District Court
     abused its discretion by terminating her parental rights to E.A.T. She argues that
     there was no clear and convincing evidence that sexual abuse occurred. Based solely
     upon her contention that the District Court erred in finding that sexual abuse had
     occurred, Nicki also makes the following arguments: (1) the court erred when it
     found that she could not protect E.A.T.; (2) the court erred when it found that the
     condition that caused her to be unfit was unlikely to change; and (3) the court erred
     when it found that she failed to comply with her treatment plan.
 20. ¶ First, Nicki argues that the District Court abused its discretion by terminating her
     rights absent clear and convincing evidence that sexual abuse of E.A.T. occurred.
     Nicki contends that the court misapprehended the effect of the testimony of Dr.
     Johnson. She argues that "Dr. Johnson simply was highly suspicious of sexual
     abuse. If the court concluded that sexual abuse occurred, it has done so
     erroneously." Nicki's theory is that E.A.T. received the two reported injuries to his
     rectal area, not as a result of sexual abuse, but because he was constipated. She
     testified that ever since E.A.T. was little, he has suffered from constipation.
     However, she offered no medical proof or evidence to support this assertion.
 21. ¶ Dr. Johnson, a pediatrician specially trained in child sexual abuse, testified to the
     following:



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        [T]he extent of the fissures that we saw. . . are almost always caused by some force
        extending from the outside. And so we think of sodomy. . . . These fissures,
        although they were in the positions that constipated stools can cause, were well
        beyond those that we see with constipation . . . .

        Q. And how probable is it that actual constipation could cause fissures of that type?

        A. Well, it's not probable. It's not impossible.

 22. ¶ In its conclusions of law, the District Court stated that "[t]he court accepts the
        testimony of Dr. Johnson as to the extent of the sexual injury to E.[A.]T.", and "[t]
        he court finds that E.[A.]T. has been sexually abused by Lee T."
 23.    ¶ Nicki additionally argues that the District Court misapprehended the effect of the
        other evidence regarding sexual abuse. She testified that she was not convinced that
        Lee sexually abused E.A.T. and Lee testified that he did not sexually abuse E.A.T.
        She asserts that "[t]he strength of the case that sexual abuse occurred is the
        following: E.A.T. had tears on his anus on two occasions after being near Lee. The
        foster parents saw no evidence of constipation or bleeding while they had E.A.T. in
        their care."
 24.    ¶ However, as DPHHS points out, in addition to these facts, the record reflects that
        the District Court found Dr. Johnson's testimony, that she was highly suspicious of
        sexual abuse, compelling. Additionally, Dr. Johnson found the ease with which E.A.
        T. submitted to an examination of his rectal area most unusual. She testified that it
        indicated that he had been placed in such a position many times.
 25.    ¶ In the context of parental rights termination cases, we have defined the term "clear
        and convincing evidence" as that quality of proof "more than a preponderance but
        not beyond a reasonable doubt." In re J.M.W.E.H, ¶ 33. We have held that clear and
        convincing evidence "does not call for unanswerable or conclusive evidence." In re
        J.M.W.E.H, ¶ 33.
 26.    ¶ Applying these rules to the instant case, the fact that Dr. Johnson testified that she
        was "highly suspicious," and not definite, does not preclude the court from relying
        on her testimony. That "suspicion" in combination with other testimony given by
        Dr. Johnson regarding the physical evidence was sufficient to satisfy the State's
        burden of proof. It is not the role of this Court to substitute our evaluation of the
        evidence for that of the trial court, or pass upon the credibility of witnesses. In re J.
        M.W.E.H., ¶ 34.
 27.    ¶ Having extensively reviewed the record, we conclude that the District Court's

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     findings regarding the sexual abuse of E.A.T. by Lee are supported by clear and
     convincing evidence and are not clearly erroneous.
 28. ¶ Because we conclude that there was clear and convincing evidence that Lee
     sexually abused E.A.T., Nicki's remaining three arguments regarding the
     termination of her parental rights which are predicated on her primary argument also
     fail. We conclude that the District Court did not abuse its discretion by terminating
     Nicki's parental rights to E.A.T.

                                                                      ISSUE 2

 29. ¶ Did the District Court abuse its discretion by terminating Nicki's parental rights to
     E.A.T. without considering other options, such as a guardianship?
 30. ¶ Nicki contends that the District Court abused its discretion by terminating her
     parental rights without considering other options. Nicki asserts that a guardianship
     should have been considered prior to the court's termination of her parental rights.
 31. ¶ While it is true that the State of Montana's policy regarding child abuse and
     neglect is to preserve and protect family unity, it is also this state's policy to provide
     for the protection of children whose health and welfare are or may be adversely
     affected and further threatened by the conduct of those responsible for their care and
     protection. Section 41-3-101, MCA.
 32. ¶ This Court has recognized that family integrity is a constitutionally protected
     interest. Matter of M.R.L., (1980) 186 Mont. 468, 472, 608 P.2d 134, 137. We have
     also noted, however, that family unity need not be preserved at the expense of the
     child's best interest. Matter of M.R.L., 186 Mont. at 472, 608 P.2d at 137. Further,
     we have declared that:

        [T]he right to maintain the family unit is not absolute and although the children's
        best interests and welfare generally are served by maintaining the family unit with
        custody retained by the natural parents, the children's best interest and welfare, not
        that of the natural parent, is the paramount consideration.

        Matter of C.G. (1988), 230 Mont. 117, 120, 747 P.2d 1369, 1371 (emphasis added).

 33. ¶ Additionally, the specific criteria for which a court may order termination of the
        parent-child legal relationship are enumerated in § 41-3-609(1), MCA. No limitation
        is placed upon a court which requires consideration of other options, such as a
        guardianship, prior to terminating parental rights. See § 41-3-609(1), MCA. The role


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     of courts in applying a statute has always been "to ascertain and declare what is in
     terms or in substance contained therein, not to insert what has been omitted or to
     omit what has been inserted." Section 1_2_101, MCA. Statutory language must be
     construed according to its plain meaning and if the language is clear and
     unambiguous, no further interpretation is required. See Lovell v. State Comp. Mut.
     Ins. Fund (1993), 260 Mont. 279, 285, 860 P.2d 95, 99.
 34. ¶ In its Supplementary Order, dated August 21, 1997, the District Court granted
     DPHHS permanent legal custody of E.A.T., with the right to consent to his
     adoption. We conclude that the District Court did not abuse its discretion by doing
     so. We further conclude that the court was not required to consider a guardianship
     prior to terminating Nicki's and Lee's parental rights.

                                                                      ISSUE 3

 35. ¶ Did the District Court abuse its discretion by permanently placing E.A.T. with
     DPHHS, and not E.A.T.'s maternal grandmother Eva, following termination of Lee's
     and Nicki's parental rights?
 36. ¶ Nicki and Lee argue that the court should have given preference to E.A.T.'s
     extended family, specifically, E.A.T.'s maternal grandmother Eva, when ordering
     the permanent placement of E.A.T. after terminating Nicki's and Lee's parental
     rights. Both Appellants cite § 41-3-101(4), MCA, as authority for their contention
     that the court is required to give preference to extended family for out-of-home
     placement of children. Section 41-3-101(4), MCA, provides:

        In implementing the policy of this section, whenever it is necessary to remove a
        child from the child's home, the department shall, when it is in the best interests of
        the child and when the home is approved by the department, place the child with the
        child's extended family, including adult siblings, grandparents, great-grandparents,
        aunts, and uncles, prior to placing the child in an alternative protective or residential
        facility.

        (Emphasis added.) This statutory language is clearly directed at the department
        (DPHHS), and not the court.

 37. ¶ Section 41-3-607, MCA, provides that:

        If termination of a parent_child legal relationship is ordered, the court may transfer


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        permanent legal custody of the child, with the right to consent to the child's
        adoption, to:

        (a) the department;

        (b) a licensed child_placing agency; or

        (c) another individual who has been approved by the department and has received
        consent for the transfer of custody from the department or agency that has custody
        of the child.

 38. ¶ This Court has often held that a district court has discretionary authority to transfer
     legal custody to any qualified individual, including a nonrelative, in order to protect
     the welfare of the youth. Matter of J.J.G. (1994), 266 Mont. 274, 286, 880 P.2d 808,
     815; Matter of S.P. (1990), 241 Mont. 190, 201, 786 P.2d 642, 648. Moreover, we
     have held that a grandmother does not, by virtue of her status as a grandparent, have
     any superior right of adoption or custody to that of a nonrelative. Matter of S.P.
     (1990), 241Mont. at 201, 786 P.2d 648.
 39. ¶ The District Court's record reflects its consideration of Eva as a possible guardian
     or permanent caretaker in this matter. The court allowed Eva to become a party to
     this matter and present her case at the hearing on the petition to terminate parental
     rights. The court stated as follows in its findings of fact:

        [Eva] believes she can adequately care for E.[A.]T., and protect him. She said she
        would provide supervised visitation for Nicki and that she would not allow Nicki to
        remove E.[A.]T. from her home.

 40. ¶ Additionally, the court made the following finding of fact in regards to the
        testimony of E.A.T.'s guardian ad litem:

        Mrs. Nybo [E.A.T.'s guardian ad litem] also recommended against E.[A.]T. being
        placed with Mrs. T. She bases this recommendation on her discussions with Nicki
        about Nicki's childhood neglect, and prior DPHHS involvement with Mrs. T.'s
        parenting of Nicki. She states that Mrs. T. lied to her about there being any prior
        DPHHS involvement, and also lied to her about the number of visitations she had
        with E.[A.]T. She was concerned that E.[A.]T. had received bite marks while Mrs.
        T. was babysitting him and another grandchild. However, she did not interview Mrs.


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        T. concerning this event.

 41. ¶ The District Court's findings reflect its consideration of E.A.T.'s maternal
     grandmother as a possible custodian in this matter. However, the District Court
     entered its order directing that the permanent custody of E.A.T. be placed with
     DPHHS and granting DPHHS the right to consent to E.A.T.'s adoption. We
     conclude that there was sufficient credible evidence in the record to support the
     District Court's judgment not to grant Eva permanent custody of E.A.T. We further
     conclude that the District Court did not abuse its discretion when it awarded
     permanent custody of E.A.T., with right to consent to his adoption, to DPHHS.
 42. ¶ While conceding that she has no standing to assert a constitutional violation on
     Eva's behalf (Eva did not appeal the District Court's decision granting permanent
     custody to DPHHS), Nicki additionally contends the District Court's refusal to grant
     Eva permanent custody of E.A.T. was "a violation of her liberty interests in E.A.T.'s
     society" and a violation of E.A.T.'s "due process, statutory, and substantive due
     process rights to his mother's society."
 43. ¶ Because we have upheld the District Court's termination of Nicki's parental rights,
     § 41-3-611, MCA, governs:

        (1) An order for the termination of the parent-child legal relationship divests the
        child and the parents of all legal rights, powers, immunities, duties, and obligations
        with respect to each other as provided in Title 40, chapter 6, part 2, and Title 41,
        chapter 3, part 2, except the right of the child to inherit from the parent.

        ....

        (3) After the termination of a parent-child legal relationship, the former parent is
        neither entitled to any notice of proceedings for the adoption of the child nor has any
        right to object to the adoption or to participate in any other placement proceedings
        held pursuant to 41-3-610.

        Based upon this statutory language, we conclude that Nicki does not have standing
        to object to the court's placement of E.A.T. with DPHHS, nor any subsequent
        adoptive placement of E.A.T. Additionally, based upon this same statutory
        language, as well as § 41-3-303(2), MCA, which describes the role of the guardian
        ad litem as: "charged with the representation of the child's best interests," we
        conclude that Nicki does not have standing to assert a violation of E.A.T.'s rights.


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  44. ¶ Accordingly, the District Court's decision to terminate Nicki's parental rights to E.
         A.T., and the District Court's decision to award DPHHS permanent legal custody of
         E.A.T. with the right to consent to his adoption, are affirmed.

/S/ TERRY N. TRIEWEILER



We Concur:

/S/ J. A. TURNAGE

/S/ JIM REGNIER

/S/ JAMES C. NELSON

/S/ W. WILLIAM LEAPHART




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