                                                                                           August 17 2010


                                          DA 10-0092

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2010 MT 176N



IN THE MATTER OF:

T.H.,

         A Youth in Need of Care.



APPEAL FROM:            District Court of the Sixth Judicial District,
                        In and For the County of Park, Cause No. DN 08-17
                        Honorable Laurie McKinnon, Presiding Judge


COUNSEL OF RECORD:

                 For Appellants:

                        Elizabeth Thomas, Attorney at Law, Missoula, Montana

                        Joseph P. Howard, Attorney at Law, Great Falls, Montana

                 For Appellee:

                        Steve Bullock, Montana Attorney General; Mardell Ployhar, Assistant
                        Attorney General, Helena, Montana

                        Brett D. Linneweber, Park County Attorney, Livingston, Montana



                                                    Submitted on Briefs: June 23, 2010

                                                                Decided: August 17, 2010




Filed:

                        __________________________________________
                                          Clerk
Justice Michael E Wheat delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal

Operating Rules, as amended in 2006, the following memorandum decision shall not be cited

as precedent. It shall be filed as a public document with the Clerk of the Supreme Court and

its case title, Supreme Court 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     The Sixth Judicial District Court, Park County, terminated the parental rights of R.H.

and A.G, the parents of T.H. R.H. and A.G. appeal. We affirm. The issues on appeal are

whether the District Court erred by not strictly following statutory requirements and whether

the District Court abused its discretion when it terminated R.H.’s and A.G.’s parental rights.

¶3     On December 1, 2008, when T.H. was approximately four months old, T.H.’s mother,

A.G., brought T.H. to the emergency room in Livingston because T.H. had not been moving

her right leg. An x-ray revealed that T.H.’s femur was broken. Dr. Peggy O’Hara, the

emergency room physician, suspected that the fracture had been caused by child abuse, so

she contacted the Department of Public Health and Human Services (DPHHS). Because of

her suspicions, Dr. O’Hara took more x-rays, which revealed that T.H. had two broken ribs

and a broken clavicle.

¶4     On December 5, DPHHS filed a petition for immediate protection and emergency

services for adjudication as a youth in need of care and for temporary legal custody. The

District Court granted immediate protection and emergency protective services and

scheduled a show cause hearing on the petition for adjudication.

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¶5     Prior to the show cause hearing, Gail McCormick, the court appointed guardian ad

litem, filed a detailed report, in which she concluded:

       [There is] great cause for concern for the safety of this child in the immediate
       family environment. No one in the family is taking any responsibility for the
       injuries inflicted upon this baby, and obviously no one protected this baby
       from this neglect and abuse. I am especially concerned about the time lapse in
       getting medical help when the baby could not use her right leg . . . . If we
       don’t take appropriate actions now for the protection of this child, she could
       suffer permanent disability or death.

¶6     On January 6, 2009, the District Court held a show cause hearing at which both

parents stipulated that T.H. was a youth in need of care. A dispositional hearing was

scheduled for March 10.

¶7     On March 6, DPHHS filed a petition for termination of parental rights. In the

petition, DPHHS moved for termination, alleging T.H.’s parents abused and neglected her

chronically and severely, committed aggravated assault, and committed neglect that resulted

in serious bodily injury or death—all conditions for termination under § 41-3-609(1)(d),

MCA. In its petition, DPHHS noted that the parents had stipulated to adjudication of T.H. as

a youth in need of care and asserted it had obtained medical findings that showed T.H. had

been abused and neglected. DPHHS also stated: “No further efforts for reunification with

respect to the parents and the youth are necessary or in the best interests of the youth.”

¶8     The petition contained an affidavit from a DPHHS social worker, who stated that

T.H.’s injuries were consistent with child abuse and that T.H.’s supervised contacts with her

parents did not go well because the parents did not exhibit remorse or sadness about the

child’s injuries. She concluded that a treatment plan would not be successful because the

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parents had severely neglected and chronically abused T.H. and because they refused to

admit that they had caused her injuries or neglected her.

¶9     The District Court filed an order vacating the disposition hearing and setting a hearing

on the State’s petition for termination of parental rights. The court ordered that no further

efforts for reunification were necessary or in the best interests of the youth pending a hearing

on the matter.

¶10    Several witnesses testified at the hearing on the petition to terminate R.H.’s and

A.G.’s parental rights, including A.G. and R.H. A.G. testified that she noticed that T.H. was

having problems with her leg on the evening of November 29. She decided to wait to take

T.H. to the emergency room because although T.H.’s leg appeared slightly swollen, A.G.

wanted to see if T.H.’s leg would improve. A.G. admitted that she did not think that T.H.’s

leg was fractured by being wrapped up in a blanket, like she originally told the social worker

at the hospital. A.G. said she had no knowledge of T.H.’s other fractures until they were

discovered on an x-ray.

¶11    R.H. testified that he noticed a change in T.H.’s behavior on the night of November

29 when T.H. did not seem to be kicking her right leg. He did not notice any swelling in

T.H.’s leg. R.H. testified that he and A.G. waited until Monday to take T.H. to the

emergency room because on Sunday, T.H. appeared to be kicking her leg slightly.

¶12    The DPHHS social workers testified about their observations of the interactions

between T.H. and her parents at the emergency room and on supervised visits. They testified

that T.H.’s health, welfare, and safety were adversely affected due to numerous incidents of

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physical abuse and severe medical neglect; T.H. would be in danger of being abused or

neglected if she was returned to her parents; A.G. and R.H. did not meet T.H.’s physical,

psychological, or medical needs; A.G. and R.H. were grossly negligent; A.G. and R.H.

committed psychological abuse and neglect; and, aggravated circumstances listed in § 41-3-

423(2)(a), MCA, including torture, chronic abuse, severe neglect, and aggravated assault had

been established. The social workers also testified that neither parent had accepted any

responsibility for T.H.’s injuries, thus they were unlikely to change within a reasonable time.

They said termination of R.H.’s and A.G.’s parental rights was in T.H’s best interest because

the risk of T.H. dying if she was returned to her parents’ care was too great.

¶13       A police detective testified that he had interviewed both of the parents separately and

neither parent was able to provide him with a plausible explanation for T.H.’s injuries. Dr.

Mark Schulein, T.H.’s pediatrician, testified that he had seen T.H. for three wellness checks

while she was in her parents’ care. At the last wellness check, Dr. Schulein was concerned

that T.H. was not gaining enough weight and said she was suffering from mild failure to

thrive.

¶14       Dr. Jeffrey Scott Prince, a pediatric radiologist, reviewed T.H.’s x-rays and testified

that T.H. had undergone at least two different episodes of injury. He testified that the femur

fracture was approximately ten days old, rather than three days old as the parents had

claimed. He said that a femur is a very strong bone that could only be fractured with a high

degree of force. Dr. Prince testified that the rib and clavicle fractures were approximately

three weeks old and were extremely uncommon in children. He testified that T.H.’s fractures

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would have been very painful, and it would have been obvious to her caregivers that she was

exhibiting the symptoms of pain. Dr. Prince concluded that T.H.’s injuries were not

consistent with accidental injuries and were consistent with abuse.

¶15    Dr. O’Hara testified that T.H. appeared to be in distress during her initial examination

at the emergency room. She concluded that none of the explanations A.G. and R.H. had

provided for T.H.’s injuries were plausible, and that T.H.’s fractures had been caused by

abuse. She concluded that the parents’ failure to seek medical attention for the fractures

constituted medical neglect.

¶16    Dr. Karen Mielke, a child abuse specialist, testified that rib fractures like T.H.’s are

very uncommon and almost always caused by shaking. She explained that the fracture of the

clavicle would have been caused by a direct blow to the shoulder. Dr. Mielke concluded that

T.H. had suffered from failure to thrive and medical neglect when she was in her parents’

care; her injuries were caused by chronic child abuse; T.H. was likely shaken by one of her

parents; and T.H. did not receive the level of care needed by her parents. She concluded that

T.H. faced “significant risk of serious bodily injury or death” if she was returned to her

parents. Finally, McCormick, the guardian ad litem, testified that A.G. and R.H.’s parental

rights should be terminated.

¶17    The District Court issued findings of fact, conclusions of law, and an order

terminating parental rights. The District Court found: the fractures would have been painful

and observable to a care provider; the parents’ delay in seeking medical attention for each of

T.H.’s injuries constituted chronic, severe neglect and abuse; the parents delayed seeking

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medical attention because they hoped evidence of the injuries would subside; T.H.’s

fractures were caused by physical abuse; and the parents never provided a reasonable

explanation for T.H.’s injuries or showed any remorse. Based on these findings, the District

Court concluded that the parents had subjected T.H. to aggravated circumstances which

constitute chronic abuse and chronic, severe neglect, which are grounds to terminate parental

rights under §§ 41-3-609(1)(d) and 41-3-423(2)(a), MCA.

¶18    On appeal, R.H. and A.G. argue that the District Court failed to follow statutory

requirements and violated their right to a fundamentally fair procedure in three ways: (1) it

violated their due process rights by failing to hold an adjudicatory hearing that met the

requirements of §§ 41-3-437 and 41-3-438, MCA, specifically failing to issue a written

order1 and failing to hold a dispositional hearing; (2) it determined that reunification efforts

were not necessary without holding a hearing as is required by § 41-3-423(5), MCA2; and,

(3) it based its termination of parental rights on insufficient findings not supported by clear

and convincing evidence as is required by § 41-3-609(1)(d), MCA.

¶19    A district court’s findings are clearly erroneous if they are not supported by

substantial evidence, if the district court misapprehended the evidence, or if we come away

from our review with a definite and firm conviction that the district court made a mistake.


1
  R.H. and A.G. failed to object to the lack of written findings. We will not address this argument.
A party must notify the court at the time the objectionable conduct is at issue to properly preserve an
issue for appeal. In the Matter of A.T., 2006 MT 35, ¶ 15, 331 Mont. 155, 130 P.3d 1249.
2
 R.H. and A.G. failed to object to the lack of hearing for the finding that reunification efforts were
not necessary. We will not hear arguments on appeal for alleged errors that the district court did not
have an opportunity to correct. In the Matter of D.H., 2001 MT 200, ¶ 41, 306 Mont. 278, 33 P.3d
616.
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Interstate Production Credit v. DeSaye, 250 Mont. 320, 323, 820 P.2d 1285, 1287 (1991).

Because parental rights are a fundamental liberty interest, an order terminating these rights

must be supported by clear and convincing evidence. In re Adoption of K.P.M., 2009 MT

31, ¶ 10, 349 Mont. 170, 201 P.3d 833; See § 41-3-609(1), MCA. The three part DeSaye test

is used to determine if a finding of fact is clearly erroneous in a case where clear and

convincing evidence is the standard of proof. K.P.M., ¶ 10. We review a district court’s

order terminating parental rights for an abuse of discretion. In the Matter of J.C., 2008 MT

127, ¶ 33, 343 Mont. 30, 183 P.3d 22.

¶20    Upon the filing of a petition, an adjudicatory hearing must be held to determine if the

minor is a youth in need of care. Section 41-3-437, MCA. Parties may stipulate to whether

the child meets the definition of a youth in need of care. Section 41-3-434(1), MCA. A

dispositional hearing must be held within 20 days after an adjudicatory order has been

entered, unless the petition is stipulated to by the parties. Section 41-3-438(1), MCA; In the

Matter of B.B., 2006 MT 66, ¶ 23, 331 Mont. 407, 133 P.3d 215.

¶21    The District Court may terminate a parent-child relationship upon a finding

established by clear and convincing evidence that the parent has subjected a child to any of

the circumstances listed in § 41-3-423(2)(a) or (c), MCA, which includes chronic abuse,

chronic and severe neglect, or committing aggravated assault against a child. Section 41-3-

609(1)(d), MCA.

¶22    We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our

1996 Internal Operating Rules, as amended in 2006, which provides for memorandum

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opinions. It is manifest on the face of the briefs and the record before us that the appeal is

without merit because the legal issues are controlled by settled Montana law. R.H. and A.G.

stipulated that T.H. met the definition of a youth in need of care, therefore a dispositional

hearing was not required under § 41-3-438(1), MCA. See In re B.B., ¶ 33. Moreover, the

overwhelming evidence in the record clearly and convincingly supports the District Court’s

finding that R.H. and A.G. had chronically abused and chronically and severely neglected

T.H. It did not abuse its discretion when it terminated their parental rights.

¶23    Affirmed.

                                                  /S/ MICHAEL E WHEAT


We Concur:

/S/ MIKE McGRATH
/S/ PATRICIA COTTER
/S/ JAMES C. NELSON
/S/ BRIAN MORRIS




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