                                                                                        February 16 2016


                                     DA 15-0368
                                                                                      Case Number: DA 15-0368

         IN THE SUPREME COURT OF THE STATE OF MONTANA
                                     2016 MT 35



IN THE MATTER OF:

J.H.,

          A Youth in Need of Care.


APPEAL FROM:      District Court of the Tenth Judicial District,
                  In and For the County of Fergus, Cause No. DN 12-07
                  Honorable Jon A. Oldenburg, Presiding Judge


COUNSEL OF RECORD:

           For Appellant:

                  Julie Brown, Montana Legal Justice, PLLC; Missoula, Montana

           For Appellee:

                  Timothy C. Fox, Montana Attorney General, Tammy A. Hinderman,
                  Assistant Attorney General; Helena, Montana

                  Jim Lippert, Jim Lippert Attorney at Law, P.C.; Big Timber, Montana
                  (Guardian Ad Litem)

                  Thomas P. Meissner, Fergus County Attorney; Lewistown, Montana



                                              Submitted on Briefs: January 20, 2016

                                                          Decided: February 16, 2016


Filed:

                  __________________________________________
                                    Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1     C.L. appeals from an order entered by the Tenth Judicial District Court, Fergus

County, approving the Department of Public Health and Human Service’s (Department)

proposed permanency plan, and granting the Department long-term custody of J.H.

¶2     We address the following issues:

       1. Did the District Court err by finding the Department made reasonable efforts
       to reunify J.H. with C.L.?

       2. Did the District Court err by finding that J.H.’s best interests were served by
       living with E.J., and not C.L.?

       3. Did the District Court err by approving the permanency plan without first
       holding an age-appropriate consultation with J.H.?

                 PROCEDURAL AND FACTUAL BACKGROUND

¶3     J.H., a seven-year-old boy, is the biological child of A.H. (Mother) and C.L.

(Father). Mother and Father were never married, a custody order or parenting plan was

never entered, and J.H. saw Father only occasionally. When this case originated, J.H.

was living in Lewistown, Montana, with Mother, Mother’s boyfriend, J.H.’s half-sister

B.S., J.H.’s maternal grandmother, and his grandmother’s boyfriend. Father was living in

Lancaster, Texas, with his girlfriend, their two children, and two of his girlfriend’s

children from a prior relationship.

¶4     In November 2012, the Department initiated a petition for Emergency Protective

Services, for Adjudication of J.H. as a Youth in Need of Care, and for Temporary Legal

Custody of J.H. The petition alleged Mother had abused and neglected J.H. by exposing

him to illegal drug use and failing to protect him from her abusive boyfriend. Father was

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served with the Department’s petition, and shortly thereafter signed and filed an

acknowledgement of service of the petition. Father expressed to Rose McLees (McLees),

the Department social worker assigned to J.H.’s case, that he wanted custody of J.H.

¶5     At the January 2013 show cause hearing, at which Father was not present, Mother

stipulated that J.H. was a Youth in Need of Care.       The District Court granted the

Department Temporary Legal Custody of J.H. for 180 days, including the initial plan to

reunite J.H. with Mother. Shortly after the show cause hearing, Mother and Father

participated by telephone in a Family Group Decision Making meeting with the

Department. Father stated he wanted custody of J.H., but Mother objected to placing J.H.

with Father. McLees stated she would not place J.H. with Father in Texas until Texas

child authorities conducted a home study pursuant to the Interstate Compact on the

Placement of Children (ICPC) and ensured Father’s home was a safe environment for

J.H.

¶6     The Department returned J.H. to Mother’s care in February 2013, but Mother

failed to comply with her treatment plan. J.H. was again removed from her care in July

2013 and returned to foster care, and the Department filed a petition to extend temporary

legal custody of J.H. At the hearing, McLees stated the Department would continue to

provide reunification services to Mother while simultaneously seeking a home study

under the ICPC to determine whether J.H. could be placed with Father in Texas. The

District Court granted the Department’s extension of temporary legal custody.

¶7     In September 2013, McLees asked Texas child protective services to conduct,

under the ICPC, a home study and determine whether placement with Father was viable.
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After obtaining the results of criminal and child protective services background checks on

Father, Texas authorities refused to conduct a home study. The background checks

revealed Father had committed multiple crimes from 2006 to 2010, including two charges

for selling dangerous drugs and an aggravated assault on his girlfriend involving a knife.

Further, an incident involving Father and a girlfriend had resulted in the loss of the

custody of two of his children to Texas child protective services.

¶8     The Department filed its first permanency plan proposal in January 2014, stating it

would continue to attempt reunification of J.H. with Mother but would seek termination

of her parental rights if she was noncompliant with her treatment plan. The concurrent

plan was to place J.H. with a relative, and if no suitable relative could be found, to

petition for long-term custody of J.H. and a permanent living arrangement in Montana.

The permanency plan did not include the option of placing J.H. with Father, although that

option had apparently not yet been ruled out by the Department. Meanwhile, Father filed

a Motion for Disposition and to Dismiss, requesting the District Court place J.H. with

Father as the non-custodial and non-offending parent. The District Court approved the

permanency plan, but declined to rule on Father’s motion at that time.

¶9     In March 2014, the Department petitioned to terminate Mother’s parental rights

and to extend temporary legal custody of J.H. The Department asserted that an extension

of custody was necessary because, although Texas had denied an ICPC placement with

Father, the Department needed additional time to determine if placement with Father

could still be achieved. Father had commissioned a private home study at his own

expense, and both the Department and the guardian ad litem had agreed to consider the
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results of the private home study. The District Court terminated Mother’s parental rights

and granted the Department’s extension of temporary legal custody, which Father did not

contest.

¶10    In September 2014, Texas child authorities approved J.H.’s maternal great aunt,

E.J., as a kinship placement for J.H., as well as for J.H.’s half-sister B.S., with whom J.H.

was very close. E.J. resided in Texas. In October 2014, the Department filed a petition

to extend temporary legal custody of J.H. Father’s private home study was not yet

complete and the Department wanted more time to determine whether placement with

Father was viable. In the meantime, the Department planned to move J.H. and B.S. to

live with E.J. in Texas, and stated that if the home study was not completed within three

months, or if the home study did not recommend placement with Father, the Department

would file for long-term custody of J.H. or for termination of Father’s parental rights. In

December 2014, J.H. and B.S. moved to live with their Great Aunt E.J. in Texas. In

January 2015, Father’s private home study was received. The study was inconclusive

and the evaluator was unable to recommend Father as a viable placement for J.H.

¶11    The Department then filed a petition for long-term custody of J.H. and a second

permanency plan, which sought placement of J.H. with E.J. under a guardianship. The

District Court held a hearing on the permanency plan in February 2015. Michelle Feller

(Feller), a licensed clinical professional counselor who counseled J.H. bi-weekly from

September 2013 until he moved to Texas, testified J.H. was very close with B.S., and that

it would be in J.H.’s best interests to stay with E.J., “for the reason of being with his

sister and for the reason of being in a safe, secure, consistent environment.” J.H.’s
                                          5
guardian ad litem testified J.H.’s relationship with B.S. was critical to his well-being, that

J.H. was “in an ideal place,” and that there was no reason why J.H. should not be with

E.J. An ICPC social worker in Texas reported J.H.’s placement with E.J. was going well,

and that E.J. was providing consistency, structure, and meeting J.H.’s basic needs. The

District Court approved the permanency plan but stated the approval did not preclude a

later determination that the child should be placed with Father.

¶12    The District Court later held a hearing on the petition for long-term custody and

Father’s motion to dismiss. The testimony largely mirrored that of the February 2015

permanency plan hearing. Additionally, E.J. testified she was committed to caring for the

children for the long term, explaining “[t]hey are mine. I mean I didn’t birth them, but

they are attached to me and I’m attached to them. It’s like a blessing. They’ve been

through so much.” The District Court granted the Department’s petition for long-term

custody until J.H. reached the age of 18, holding that J.H. remained a youth in need of

care, the Department made reasonable efforts to place J.H. with Father, it was contrary to

J.H.’s best interests to be placed with Father, and J.H.’s placement with E.J. was in his

best interests, particularly because B.S. also resides there. Father appeals.

                               STANDARD OF REVIEW

¶13    Whether a district court complied with the statutory requirements presents a

question of law that this Court reviews for correctness. In re H.T., 2015 MT 41, ¶ 10,

378 Mont. 206, 343 P.3d 159. We review a district court’s finding of fact for clear error.

In re R.M.T., 2011 MT 164, ¶ 27, 361 Mont. 159, 256 P.3d 935 (citation omitted). A

factual finding is clearly erroneous if it is not supported by substantial evidence, if the
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court misapprehended the effect of the evidence, or if review of the record convinces the

Court a mistake was made. In re C.J.M., 2012 MT 137, ¶ 10, 365 Mont. 298, 280 P.3d

899 (citation omitted). We view the evidence in the light most favorable to the prevailing

party when determining whether substantial credible evidence supports the district court’s

findings. In re B.D., 2015 MT 339, ¶ 5, 381 Mont. 505, 362 P.3d 636. A district court’s

decision will not be disturbed on appeal unless there is a mistake of law or a finding of

fact clearly erroneous that amounts to an abuse of discretion. In re M.N., 2011 MT 245,

¶ 14, 362 Mont. 186, 261 P.3d 1047 (citation omitted).

                                     DISCUSSION

¶14   Under § 41-3-445(8)(e)(v), MCA, a district court may approve a permanency plan

and grant long-term custody of the child in a planned permanent living arrangement if it

is established by a preponderance of the evidence that:

             (A) the child has been adjudicated a youth in need of care;

             (B) the department has made reasonable efforts to reunite
             the parent and child, further efforts by the department would
             likely be unproductive, and reunification of the child with the
             parent or guardian would be contrary to the best interests of
             the child;

             (C) there is a judicial finding that other more permanent
             placement options for the child have been considered and
             found to be inappropriate or not to be in the best interests of
             the child; and

             (D) the child has been in a placement in which the foster
             parent or relative has committed to the long-term care and to
             a relationship with the child, and it is in the best interests of
             the child to remain in that placement.


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¶15    Father argues the District Court violated the statute in two ways. First, Father

argues the Department did not engage in reasonable efforts to reunify J.H. with Father

because its efforts consisted solely of the ICPC request. Second, Father argues the

District Court’s finding that J.H.’s best interests were served by living with E.J., and not

Father, was clearly erroneous because it was not supported by substantial evidence.1

¶16 1. Did the District Court err by finding the Department engaged in reasonable
efforts to reunify J.H. with Father?

¶17    The determination of whether the Department made “reasonable efforts” to reunify

a family requires that “each case [] be evaluated on its own facts.” In re K.L., 2014 MT

28, ¶ 41, 373 Mont. 421, 318 P.3d 691. The term is not defined by statute, but “clearly

the statute does not require herculean efforts.” In re K.L., ¶ 41. Rather, “the child’s

health and safety are of paramount concern,” when determining what efforts are required.

Section 41-3-423(1), MCA; see also In re K.L., ¶ 41 (citing “the child’s need for

permanency and stability” in considering whether the Department’s efforts were

reasonable).




1
  We initially note that the parties do not dispute that the District Court’s order approving the
permanency plan and granting the Department long-term custody of J.H. is an appealable order.
The Montana Rules of Appellate Procedure designate as not appealable orders of temporary
custody in abuse and neglect proceedings. Mont. R. App. P. 6(5)(c); see also In re S.S., 2012
MT 78, ¶ 10, 364 Mont. 437, 276 P.3d 883. We have defined an appealable order as “one which
constitutes a final determination of the rights of the parties; any judgment, order or decree
leaving matters undetermined is interlocutory in nature and not a final judgment for purpose of
appeal.” In re Matter of D.A., 2003 MT 109, ¶ 13, 315 Mont. 340, 68 P.3d 735; see also
M. R. App. P. 4(1)(a). The long-term custody order and permanency plan entered herein give
the State the power to infringe upon Father’s fundamental liberty interest in parenting until J.H.
reaches 18, and cannot be said to be interlocutory.

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¶18    The parties and the Guardian ad litem also argue concerning the proper application

of the ICPC in this case. Under the ICPC, which Montana has joined by statute and for

which the Department has adopted by rule the regulations of the Association of

Administrators of the ICPC (AAICPC), neither a state court nor a child protective

services agency may send a child to another state until the public authorities in the

receiving state notify the sending state that “the proposed placement does not appear to

be contrary to the interests of the child.” Section 41-4-101, MCA, Art. III, § 4; Mont.

Admin. R. 37.50.901. An open dependency and neglect case requires compliance with

Article III of the ICPC unless (1) the court places the child with a parent from whom the

child was not removed, (2) the court has no evidence the parent is unfit and seeks none

from the receiving state, and (3) relinquishes jurisdiction over the child immediately upon

placement with the parent. AAICPC Reg. 3, §§ 2(b), 3(a). After finding a child is a

youth in need of care, a district court may dismiss the proceeding—ending the

Department’s obligations and the applicability of the ICPC—and order placement with

the noncustodial parent to protect the welfare of the child. Section 41-3-438(3)(d), MCA.

¶19    The Department argues its efforts were reasonable because as long as the case

remained open it was required to follow the ICPC, which precluded placement with

Father until Texas approved the placement. Father responds that the Department could

have simply agreed to dismiss the case, which would have made the ICPC inapplicable,

and placed J.H. with Father pursuant to § 41-3-438(3)(d), MCA. Father further argues

the Department did not “set out any goals or objectives that could have resulted in J.H.’s

placement with Father.” We agree with the Department.
                                         9
¶20      The very goal of the Department’s ICPC request to Texas child services was to

determine whether placing J.H. with Father was viable. When Texas denied the request

after conducting a criminal background check and child protective services background

check, the Department was left only two avenues to place J.H. with Father: dismissal of

the case under § 41-3-438(3)(d), MCA, to remove the applicability of the ICPC, or

establish Father met the exception under AAICPC Reg. 3, § 3(a). That exception could

not be satisfied because the District Court had evidence before it that Father was

potentially unfit, including that Father had dealt crack cocaine and was party to

a domestic violence incident involving a knife.2                 The Department investigated

the possibility of placing J.H. with Father—by dismissal under § 41-3-438(3)(d), MCA—

when it agreed to consider the results of the private home study commissioned by Father

This effort to reunite J.H. with Father also proved futile when the examiner of that study

could not recommend placement with Father. Although Father had apparently made

progress, the Department was understandably reluctant to agree that dismissal and

placement with Father would protect the welfare of J.H., given Father’s recent criminal

history and the failure to be approved by his private home study. At that point, the

Department had exhausted the three main avenues to place J.H. with Father, and began

seeking an alternative, stable, placement that was in J.H.’s best interests.            The

Department’s efforts to reunify J.H. with Father constituted reasonable efforts under

these facts.



2
    Father was still on felony probation for these offenses when this case began.
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¶21 2. Did the District Court err by finding that J.H.’s best interests were served by
living with E.J., and not Father?

¶22    Father argues the District Court was required to explicitly find he was an “unfit”

parent before it could determine whether J.H.’s best interests were served by living with

his Great Aunt E.J., and that there was no substantial evidence supporting the District

Court’s finding that it was in J.H.’s best interests to live with E.J., and not with Father.

The Department counters that a finding of “unfitness” is not required in a long-term

custody proceeding, and that the District Court’s findings were supported by substantial

evidence. We agree with the Department.

¶23    Nothing in the statutes or our precedents suggests a district court must explicitly

find a parent is unfit before it may determine the best interests of the child in a long-term

custody proceeding. It is correct that we have adopted the presumption that the best

interests of a child are served in the custody of the natural parents. In re Guardianship of

J.R.G., 218 Mont. 336, 342, 708 P.2d 263, 267 (1985). Further, § 41-3-445(8)(e)(v)(B),

MCA, requires that a district court find “reunification of the child with the parent or

guardian would be contrary to the best interests of the child,” thus codifying and applying

this presumption to long-term custody proceedings. But nowhere is it suggested a district

court must find more than this before ordering an alternative placement in a long-term

custody proceeding. We reject Father’s position that the District Court erred as a matter

of law by not explicitly finding that Father was “unfit” before determining it was in J.H.’s

best interests to be placed with E.J.



                                         11
¶24    Substantial evidence is evidence that a reasonable mind might accept as adequate

to support a conclusion, even if weak and conflicting. Siebken v. Voderberg, 2015 MT

296, ¶ 12, 381 Mont. 256, 359 P.3d 1073. It consists of more than a mere scintilla of

evidence but may be less than a preponderance. Marriage of Schmitz, 255 Mont. 159,

165, 841 P.2d 496, 500 (1992).

¶25    There was significantly more than a “scintilla” of evidence supporting the District

Court’s finding that J.H.’s best interests were served by a placement with E.J. and not

Father. Feller testified it was in J.H.’s best interests to stay with E.J., “for the reason of

being with his sister and for the reason of being in a safe, secure, consistent

environment.” The guardian ad litem testified it was critical J.H. reside in the same place

as B.S., calling the placement with E.J. an “ideal place” for J.H.’s well-being. E.J.

herself testified and committed to the long-term care of J.H. and B.S., stating “they are

attached to me, and I’m attached to them.” The Texas social worker reported E.J. was

providing consistency, structure, and meeting J.H.’s basic needs. In contrast, the District

Court had evidence before it that Father had sold crack-cocaine, been in a domestic

violence incident, and had been in a dispute that resulted in two of his children being

taken away by Texas child services. A reasonable mind could well weigh these facts and

conclude it was in J.H.’s best interests to live with E.J., and not with Father. The District

Court’s findings were therefore not clearly erroneous.

¶26    It is worth noting that Father’s parental rights to J.H. were not terminated in this

proceeding, that he lives relatively close to where J.H. is residing with E.J. in Texas, and

that he may well have an opportunity to further his relationship with J.H. in the future.
                                          12
¶27 3. Did the District Court err by approving the permanency plan without first
holding an age-appropriate consultation with J.H.?

¶28    Father argues the District Court failed to hold an age-appropriate consultation with

J.H. prior to approving the Department’s second permanency plan as required by

§ 41-3-445(4), MCA. However, Father failed to raise this issue before the District Court.

“[I]t is well settled that issues raised for the first time on appeal will not be reviewed.” In

re Transfer Terr. From Poplar Elem. Sch. Dist. No. 9 to Froid Elem. Sch. Dist. No. 65,

2015 MT 278, ¶ 18, 381 Mont. 145, ___ P.3d ___ (citation omitted). This issue is

therefore not properly before us for review. Poplar, ¶ 13.

¶29    Affirmed.


                                                   /S/ JIM RICE

We concur:

/S/ MICHAEL E WHEAT
/S/ LAURIE McKINNON
/S/ PATRICIA COTTER
/S/ BETH BAKER




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