                                                                                            March 5 2013


                                           DA 12-0532

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                           2013 MT 60



IN THE MATTER OF:

M.J.,

         A Youth in Need of Care.



APPEAL FROM:            District Court of the Eighth Judicial District,
                        In and For the County of Cascade, Cause No. CDN-12-030
                        Honorable Kenneth R. Neill, Presiding Judge


COUNSEL OF RECORD:

                 For Appellant:

                        Elizabeth Thomas, Attorney at Law, Missoula, Montana

                 For Appellee:

                        Timothy C. Fox, Montana Attorney General, Micheal S. Wellenstein,
                        Assistant Attorney General, Helena, Montana

                        Theresa L. Diekhans, Child Protection Unit, Great Falls, Montana

                        John Parker, Cascade County Attorney, Great Falls, Montana



                                                     Submitted on Briefs:   February 13, 2013

                                                                Decided:    March 5, 2013




Filed:

                        __________________________________________
                                          Clerk
Justice Laurie McKinnon delivered the Opinion of the Court.

¶1     O.J., M.J.’s mother, appeals the order entered by the Eighth Judicial District

Court, Cascade County, finding M.J. to be a youth in need of care and granting custody

of M.J. to M.J. Sr., M.J.’s father. We affirm.

¶2     O.J. raises the following issues on appeal:

¶3     1.     Did the District Court err in finding the child a youth in need of care?

¶4     2.     Did the District Court err when it dismissed the abuse and neglect

proceeding and granted custody to the father under § 41-3-438(3)(d), MCA?

                         Factual and Procedural Background

¶5     M.J. was born with numerous medical issues and hospitalized for the first three

months of his life. M.J. suffers from liver disease, gastric reflux disease, cycocel trite,

cloudy corneas, a partial occipital infarct, hearing and visual impairments, seizures, and

brain damage. The suspected cause of M.J.’s medical problems was maternal drug use.

At the time of M.J.’s birth, O.J. tested positive for methamphetamine. While O.J. denied

methamphetamine use despite the test result, O.J. admitted to marijuana use during the

pregnancy.

¶6     In addition to being treated in Great Falls, Montana, M.J. has seen a pediatric eye

specialist and a gastrointestinal specialist in Billings, Montana, and has been transported

to a neo-ICU unit in Seattle, Washington, for treatment, and later to a Seattle hospital for

a biopsy of his liver. M.J.’s prognosis is guarded and M.J. will require ongoing pediatric

specialty care beyond what is available in Montana. M.J. will need a parent who can



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provide constant care and has training by medical professionals in understanding how to

care for M.J.

¶7     Concerns arose when M.J. was scheduled to be discharged approximately three

months after birth. O.J. had not been consistently visiting M.J. and she had indicated that

she would not seek follow up medical care for M.J. O.J. was defiant to hospital staff and

nurse directives and would not provide her home address to the hospital. When O.J.

finally provided her address, she could not be located by Child Protective Service

workers, nor could she be reached by phone. M.J. was released into M.J. Sr.’s care the

following day.

¶8     On April 9, 2012, the Department of Public Health and Human Services

(Department) filed a Petition for Emergency Protective Services, Adjudication as Youth

in Need of Care and Temporary Legal Custody.             The District Court granted the

Department temporary protective services and set a show cause hearing on the

Department’s petition for June 26, 2012.

¶9     O.J. did not appear at the show cause hearing. O.J.’s counsel represented that he

had no contact with O.J. The Department indicated that until two weeks prior to the

hearing, they had kept in good contact with O.J. O.J.’s counsel acknowledged that O.J.

waived her right to contest the show cause hearing as O.J. had not filed a response to the

petition; however, counsel objected to the District Court adjudicating M.J. a youth in

need of care. M.J. Sr. was present for the show cause hearing, waived his right to a

hearing, and stipulated to a finding that M.J. was a youth in need of care. M.J. Sr. wanted

the case to move quickly so M.J.’s medical needs could be addressed. M.J. Sr. is an

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airman in the Air Force. He wanted to obtain custody of M.J. so that he could transfer to

a location with medical facilities that could address M.J.’s needs. The District Court set

an adjudicatory and dispositional hearing for July 24, 2012.

¶10    At the July 24, 2012 hearing, O.J. appeared with counsel. O.J.’s counsel requested

a continuance, representing that he had only met O.J. moments before the hearing.

M.J. Sr. appeared and again expressed his desire to have things move quickly so he could

transfer to an air base with better medical facilities.        The District Court reset the

adjudication and dispositional hearing for August 7, 2012.

¶11    O.J. failed to appear at the August 7, 2012 hearing. The court conducted the

hearing and received testimony from Dr. Deborah Garrity, M.J.’s treating physician;

Child Protective Specialist Anne Sinnott; and M.J. Sr.               Sinnott described the

Department’s efforts to assist O.J. in her parenting of M.J. Specifically, Sinnott related

that O.J. never progressed beyond supervised visits with M.J. because O.J. failed to

appreciate the magnitude of M.J.’s medical needs. O.J. disagreed with the opinions of

medical staff and did not understand why the Department had to be involved. Sinnott

explained that O.J. had not attempted to really understand M.J.’s issues and what it would

take to parent M.J. Examples of O.J.’s inability to follow medical directives were O.J.

refusing to leave M.J. in the incubator, and refusing to wear a hospital gown.

¶12    Dr. Garrity and Sinnott described M.J. Sr.’s involvement with M.J. as very good.

M.J. Sr. followed medical staff directions, understood the demands parenting M.J. would

require, and displayed competency in dealing with both M.J.’s medical issues and

receiving the necessary medical training. M.J. Sr. explained to the District Court that

                                             4
granting custody of M.J. to M.J. Sr. was necessary for M.J. Sr. to be granted a transfer to

an air base with appropriate medical facilities. Dr. Garrity concurred that M.J.’s survival

depended on appropriate medical services, and that Montana could not provide the type

of medical care M.J. needed. Sinnott also believed M.J. Sr. had demonstrated he could

appropriately parent M.J. and provide for M.J.’s medical needs.

¶13    At the conclusion of the adjudicatory hearing, the District Court found, based upon

a preponderance of the evidence, that M.J. was a youth in need of care. The District

Court next conducted a disposition hearing, and again Dr. Garrity and Sinnott testified.

Dr. Garrity testified to the best interests of M.J. as follows:

       I am completely comfortable with recommending that [M.J.’s] dad be the
       primary caretaker of this baby. He’s presented himself to be a complete
       class act in taking care of this complicated baby from the first day I met
       him. He’s been responsive to any suggestions we have as far as getting him
       to appointments or things to do to help care for this baby. And so it’s my
       opinion that [M.J.] Sr. be made the primary parent for this baby.

¶14    Dr. Garrity testified that it is in the best interest of M.J. to live in Arizona with

M.J. Sr. where he can receive adequate medical care.              Sinnott concurred in this

recommendation, as did the appointed guardian ad litem. The guardian ad litem believed

the District Court should grant custody to M.J. Sr. because the Air Force was willing to

assign M.J. Sr. to an air base that had a major medical center that could properly care for

M.J. Based upon this testimony, the District Court dismissed the petition and awarded

custody of M.J. to M.J. Sr. O.J. appeals.

                                    Standard of Review




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¶15    The parties have articulated different standards of review in their briefs. O.J. has

set forth an abuse of discretion standard citing In re K.J.B., 2007 MT 216, ¶ 22, 339

Mont. 28, 168 P.3d 629, and In re V.F.A., 2005 MT 76, ¶ 6, 326 Mont. 383, 109 P.3d

749. The State argues that this Court should review a district court’s findings of fact to

determine if they are clearly erroneous and conclusions of law to determine if they are

correct. In re A.R., 2005 MT 23, ¶ 15, 326 Mont. 7, 107 P. 3d 457.

¶16    We recently addressed the standard of review to apply in youth in need of care

proceedings in In re K.H., 2012 MT 175, 366 Mont 18, 285 P.3d 474, and noted that the

“standard of review does not depend on whether the district court grants or denies a

petition to adjudicate a youth in need of care.” K.H., ¶ 19. The standard of review was

explained as follows:

       We review a district court’s decision to terminate parental rights to
       determine whether the court abused its discretion. We review a district
       court’s specific findings to determine whether they are clearly erroneous.
       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, upon
       reviewing the record, this Court is left with the definite and firm conviction
       that the district court made a mistake. In reviewing a district court’s
       conclusions of law, we determine if they are correct.

K.H., ¶ 19 (citing In re E.K., 2001 MT 279, ¶ 31, 307 Mont 328, 37 P.3d 690). Thus, we

review the district court’s findings for clear error, its conclusions of law for correctness,

and the court’s ultimate decision regarding adjudication and disposition for abuse of

discretion.

¶17    A court abuses its discretion when it acts “arbitrarily, without employment of

conscientious judgment or in excess of the bounds of reason, resulting in substantial


                                             6
injustice.” K.H., ¶ 19 (citing In re A.J.W., 2010 MT 42, ¶ 12, 355 Mont. 264, 227 P.3d

1012; In re C.J.K., 2005 MT 67, ¶ 13, 326 Mont. 289, 109 P.3d 232). Further, “[t]his

Court does not substitute its judgment for that of the trial court regarding the credibility

or weight to be given to the evidence, nor does this Court review the record to determine

whether evidence would support a different finding.” K.H., ¶ 19 (citing In re I.B., 2011

MT 82, ¶ 36, 360 Mont. 132, 255 P.3d 56; K.J.B., ¶ 23).

                                         Issue 1.

¶18    Did the District Court err in finding the child a youth in need of care?

¶19    In order to adjudicate a child a youth in need of care, the State must prove, by a

preponderance of the evidence, that the child has been abused, neglected or abandoned.

Section 41-3-437(2), MCA; I.B., ¶ 20; In re B.S., 2009 MT 98, ¶ 22, 350 Mont. 86, 206

P.3d 565.

¶20    O.J. argues that the record does not support a determination that she had minimal

involvement with M.J. or that she was unwilling to learn what was required to care for

M.J. The District Court, however, found that O.J. abused and neglected M.J. by using

drugs during her pregnancy, and that her drug use could have led to the medical

complications and special needs of M.J.          This was based upon the testimony of

Dr. Garrity that the suspected cause of M.J.’s medical problems was maternal drug use.

Clearly the origins of M.J.’s medical problems could not definitively be established.

However, the use of methamphetamines and marijuana during pregnancy, facts which are

supported by a preponderance of the evidence, is evidence of O.J.’s neglect regardless of

a definitive correlation being made to M.J.’s medical problems.

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¶21     The District Court also found that O.J. failed to appreciate the severity of M.J.’s

medical needs and that O.J. was unwilling to learn what was required to care for M.J.

Substantial evidence from the adjudicatory hearing exists to support these factual

findings. Further, the District Court did not abuse its discretion in finding M.J. a youth in

need of care. To the contrary, the District Court employed appropriate discretion in

considering competing arguments and making a determination which was supported by

the evidence. The record supports the District Court’s finding that M.J. was a youth in

need of care. O.J. has failed to show that the finding is clearly erroneous or that the

District Court abused its discretion in granting the petition.

                                           Issue 2.

¶22     Did the District Court err when it dismissed the abuse and neglect proceeding and
        granted custody to the father under § 41-3-438(3)(d), MCA?

¶23     A district court has several dispositional options once a child is found to be a

youth in need of care. Those options are set forth in § 41-3-438, MCA. The provision

invoked in the instant proceedings was § 41-3-438(3)(d), MCA. It provides in pertinent

part:

               (3) If a child is found to be a youth in need of care under 41-3-437,
        the court may enter its judgment, making any of the following dispositions
        to protect the welfare of the child:

                                           .   .   .

                (d) order the placement of the child with the noncustodial parent,
        superseding any existing custodial order, and dismiss the proceeding with
        no further obligation on the part of the department to provide services to the
        parent with whom the child is placed or to work toward reunification of the
        child with the parent or guardian from whom the child was removed in the
        initial proceeding. . . .

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Section 41-3-438(3)(d), MCA.

¶24    O.J. argues that the District Court abused its discretion in placing M.J. out of state.

Such a placement, O.J. argues, inhibits her abilities to parent and maintain a continuing

relationship with M.J. O.J. argues that it is in the best interests of M.J. to maintain a

relationship with his mother.

¶25    The District Court was presented with a situation where an infant arguably would not

even survive if medical care at a different facility were not secured. Fortunately, M.J. Sr. had the

ability to relocate to another air base which would allow access to more advanced medical care

and thereby improve M.J.’s chance of survival. The District Court determined that O.J. was

unwilling to learn how to care for M.J. or take steps to improve her ability to properly parent

M.J. O.J. did not even attend the adjudication and disposition hearing for her child. The record

clearly demonstrates that the District Court properly considered the welfare of M.J., and made a

conscious, deliberate decision in awarding custody of M.J. to his father. Further, as the District

Court dismissed the petition, and thereby terminated the Department’s involvement in these

proceedings, the proper forum for O.J. to challenge custody of M.J. is in a parenting plan action.

In re S.S., 2012 MT 78, ¶ 17, 364 Mont. 437, 276 P.3d 883.

¶26    Affirmed.

                                                     /S/ LAURIE McKINNON

We Concur:

/S/ PATRICIA COTTER
/S/ MICHAEL E WHEAT
/S/ BETH BAKER
/S/ BRIAN MORRIS



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