                                                                                        05/19/2020


                                     DA 19-0425
                                                                                    Case Number: DA 19-0425

         IN THE SUPREME COURT OF THE STATE OF MONTANA
                                     2020 MT 126



IN THE MATTER OF:

D.D.,

          A Youth in Need of Care.


APPEAL FROM:      District Court of the Eighth Judicial District,
                  In and For the County of Cascade, Cause No. ADN 19-1(B)
                  Honorable Elizabeth Best, Presiding Judge


COUNSEL OF RECORD:

           For Appellant:

                  Jennifer Dwyer, Avignone, Banick & Williams, Bozeman, Montana

           For Appellee:

                  Timothy C. Fox, Montana Attorney General, Damon Martin, Assistant
                  Attorneys General, Helena, Montana

                  Joshua A. Racki, Cascade County Attorney, Great Falls, Montana



                                              Submitted on Briefs: April 15, 2020

                                                         Decided: May 19, 2020


Filed:

                                r--6ta•--df
                  __________________________________________
                                    Clerk
Justice Ingrid Gustafson delivered the Opinion of the Court.

¶1       A.B.-A. (Mother) appeals from the termination of her parental rights to her child

D.D. issued July 3, 2019, by the Eighth Judicial District Court, Cascade County. We

reverse.1

¶2       We restate the issue on appeal as follows:

         Whether D.D. was properly determined to be an abused or neglected child.

                    FACTUAL AND PROCEDURAL BACKGROUND

¶3       Mother has a substantial history of chemical dependency issues, requiring

intervention from the Department of Public Health and Human Services, Child and Family

Services Division (the Department), in relation to her various children. Prior to this cause,

the Department filed for intervention in 2015 regarding D.D. due to physical neglect,

related to Mother’s use of methamphetamine. At the outset of investigating that case, D.D.

reported to the CPS worker that he missed school as he had to stay home to take care of his

baby brother, C.S., as Mother slept all day.               In addition to Mother’s use of

methamphetamine, C.S.’s father also admitted methamphetamine use. Both C.S. and D.D.

were removed from Mother’s care on May 8, 2015. D.D. was placed with his birth Father,

R.D. Mother and C.S.’s father then completed treatment plans and C.S. was returned to

their care. Mother and R.D. agreed D.D., then 12 years old, would remain in R.D.’s care

and continue to reside with him and the cause was closed December 10, 2015. In


1
    We note there is companion case DA 19-0426 (In re C.S.) in which we issue a separate opinion.

                                                 2
May 2016, the Department received a report of domestic violence involving Mother, and

C.S. was removed from her care on May 5, 2016. At that time, the State also filed a petition

with regard to D.D.—DDN-16-153—in which it acknowledged “Birth Father [R.D.] has

custody of [D.D.], and he has not visited Birth Mother in some time.” The CPS affidavit

in support of this petition did not contain any allegations of abuse or neglect by Mother in

relation to D.D. Mother again completed a treatment plan and C.S. was returned to her

care on April 10, 2017, and that cause was then closed. Within weeks, Mother relapsed on

methamphetamine, and C.S. was again removed in June 2017. That cause was closed on

August 31, 2018, after Mother completed inpatient treatment, and C.S. later returned to

Mother’s care. Apparently recognizing D.D. did not reside in Mother’s home, but rather

continued to reside with his father, R.D., the Department only brought its intervention

petition in relation to C.S. On December 5, 2018, the Department received another report

alleging Mother was using methamphetamine and domestic violence was occurring in her

home. C.S. was again removed from Mother’s care. At the time, D.D. was residing in

Helena with his Father and was not in Mother’s care and had not been so since May 8,

2015.

¶4      On January 4, 2019, the Department filed its Petition for Emergency Protective

Services (EPS), Adjudication of Youth as Youth in Need of Care (YINC), Request for

Finding of No Reasonable Efforts and Motion for Permanent Legal Custody, Termination

of Parental Rights and Request for Hearing, wherein the Department alleged physical

neglect and sought a finding from the court that it be relieved of the obligation to provide
                                             3
reasonable efforts to preserve and reunify the family under § 41-3-423(2)(a), MCA. The

Department contended a treatment plan was not required as Mother met the criteria of

§ 41-3-609(1)(d), MCA, by subjecting C.S. and D.D. to the aggravating circumstance of

chronic, severe neglect, as provided in § 41-3-423(2)(a), MCA, by her continued pattern

of relapse and domestic violence. The CPS worker’s affidavit in support of the petition

acknowledged D.D.’s father was his “primary caregiver” and admitted: “The only child

currently living in the home with [Mother] is C.S. Both of her other children are living

with birth fathers.”2 The supporting affidavit set forth no allegations of abuse of neglect

in relation to D.D. since May 8, 2015, when he was removed from Mother’s care and placed

with his birth father in the prior action—ADN-15-130. Oddly, despite prior representations

to the contrary in the Department’s motions to close the prior causes and despite the CPS

workers’ supporting affidavits to the contrary when requesting the court close the prior

causes, the State also alleged Mother had failed to successfully comply with her treatment

plans previously ordered in her three prior DN cases—ADN-15-132, DDN-16-155, and

BDN-17-185.

¶5     The District Court held hearings on the State’s petition on April 25, 2019, and

June 20, 2019. At the close of the June 20 hearing, the State admitted, “[D.D.] resides in




2
  It is noted Mother has a third child, E.F. The Department included E.F. in its 2015 and 2016
actions. Like D.D., E.F. has been in the care of his father since dismissal of the 2015 case, and
like D.D., has had limited contact with Mother. E.F was not included in the litigation from which
Mother now appeals.

                                               4
Helena. He was not a participant in the BDN 2017 case, because he was residing with his

father. And, what contact he’s having with his mother was minimal at best, and he wasn’t

at risk. [C.S.] has been a child at issue in each of these cases.” Ultimately, the District

Court implicitly determined D.D. was an abused or neglected child, found the Department

need not make reasonable efforts to provide preservation or reunification services, and

terminated Mother’s parental rights to both D.D. and C.S. Mother appeals.

                               STANDARD OF REVIEW
¶6     This Court reviews a district court’s decision to terminate parental rights for an

abuse of discretion. In re B.J.J., 2019 MT 129, ¶ 9, 396 Mont. 108, 443 P.3d 488; In re

A.S., 2016 MT 156, ¶ 11, 384 Mont. 41, 373 P.3d 848; In re K.A., 2016 MT 27, ¶ 19,

382 Mont. 165, 365 P.3d 478. The Department has the burden of proving by clear and

convincing evidence that the statutory criteria for termination have been met. In re B.J.J.,

¶ 9. In the context of parental rights cases, clear and convincing evidence is the requirement

that a preponderance of the evidence be definite, clear, and convincing. In re B.J.J., ¶ 9;

In re K.L., 2014 MT 28, ¶ 14, 373 Mont. 421, 318 P.3d 691. This Court reviews a district

court’s findings of fact for clear error and conclusions of law for correctness. In re B.J.J.,

¶ 9; In re M.V.R., 2016 MT 309, ¶ 23, 385 Mont. 448, 384 P.3d 1058. “A factual finding

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 this Court

a mistake was made.” In re B.J.J., ¶ 9. “To reverse a district court’s evidentiary ruling for

an abuse of discretion, this Court must determine the district court either acted arbitrarily

                                              5
without employment of conscientious judgment or exceeded the bounds of reason resulting

in substantial injustice.” In re B.J.J., ¶ 9 (quoting In re I.M., 2018 MT 61, ¶ 13, 391 Mont.

42, 414 P.3d 797).

                                      DISCUSSION

¶7     Whether D.D. was properly determined to be an abused or neglected child.

¶8     Mother asserts the District Court did not hold fundamentally fair procedures,

erroneously finding D.D. to be a YINC based upon a stipulation Mother did not make. The

State counters that adjudication of a child as a YINC is only required when termination is

sought pursuant to § 41-3-609(1)(f), MCA. The State asserts termination pursuant to

§ 41-3-609(1)(a) through (e), MCA, only requires there be a “determination” that a child

is abused or neglected. The State also asserts, “[t]he fact that D.D. was residing in another

city did not mean he was unaffected by his mother’s continual relapses.”

¶9     As the care and custody of a child is a fundamental liberty interest protected by

fundamentally fair procedures, termination procedures must satisfy the Due Process Clause

of the Fourteenth Amendment. In re C.J., 2010 MT 179, ¶ 26, 357 Mont. 219, 237 P.3d

1282. Sections 41-3-601 through -612, MCA, provide the procedures and criteria by which

the parent-child relationship may be terminated. These provisions are only operative when

there has first been a determination that a child has been abused or neglected as defined in

§ 41-3-102, MCA, or adjudicated as a YINC, depending upon which statutory basis is

asserted for the termination. The threshold consideration when involuntary termination is

sought pursuant to § 41-3-609(1)(f), MCA, is whether the child has been adjudicated a
                                             6
YINC.     An involuntary termination, however, sought pursuant to §§ 41-3-609(1)(d)

and -423(2)(a), MCA, does not require that the child be adjudicated as a YINC, only that

it be determined the child was abused or neglected. See In re C.B., 2019 MT 294, ¶ 25,

398 Mont. 176, 454 P.3d 1195. Thus, the issue herein is whether the District Court properly

determined D.D. to be abused or neglected while providing Mother fundamentally fair

procedures.

¶10     “Child abuse or neglect” is defined as “(i) actual physical harm or psychological

harm to a child; (ii) substantial risk of physical or psychological harm to a child; or

(iii) abandonment.” Section 41-3-102(7)(a)(i)-(iii), MCA. “‘Physical or psychological

harm to a child’ means the harm that occurs whenever the parent or other person

responsible for the child’s welfare” subjects the child to one of the events or conditions

enumerated in § 41-3-102(21)(a)(i)-(vi), MCA. “A person responsible for a child’s

welfare” means “the child’s parent . . . who resides in the same home in which the child

resides.” Section 41-3-102(2)(a), MCA (emphasis added). 3

¶11     The Department’s policies go hand-in-hand with these statutory provisions. The

Department’s Philosophy Statement provides:



3
  The dissent misinterprets the plain language of § 41-3-102(2)(a), MCA. Further, the dissent
asserts Mother did not reside in the same home as D.D. because she neglected her responsibility
to provide for his welfare. Such assertion, ignores the Department’s dismissal of the 2015 case as
Mother had successfully completed her treatment plan and addressed the issues which initiated the
Department’s involvement, and it also ignores that D.D. was not residing with Mother as she
agreed to and followed a de facto parenting plan, which provided for D.D.’s ongoing safety, care,
protection, and welfare by residing with his father.

                                                7
        It is the Division’s mission to keep children safe and families strong. Safety
        of the child takes precedence over all other decisions surrounding child
        protective services. At the time of investigation, a child may be considered
        safe when there is an absence of serious threat of harm or when the threat of
        serious harm to a child is controlled by a response to an unsafe situation; in
        other words, a child may be considered safe when no present or impending
        dangers are identified through the investigation/assessment protocols and
        policies.

Child    and    Family     Services    Policy       Manual,   §   201-2   (DPHHS         2015),

https://perma.cc/YV9G-NNDM.           Department policy 202-3 provides, “[a]ll reports

indicating reasonable cause to suspect that a child is abused, neglected, or abandoned by a

person responsible for the child's care must be assessed.” Child and Family Services

Policy Manual, § 202-3 (DPHHS 2015), https://perma.cc/6ZNV-H6AT (emphasis added).

The policy explains: “Person responsible for a child’s welfare means the child’s parent,

guardian, foster parent or an adult who resides in the same home in which the child resides.”

Child    and    Family     Services    Policy       Manual,   §   202-3   (DPHHS         2015),

https://perma.cc/6ZNV-H6AT (emphasis added). Importantly, the policy clarifies: “[T]he

Division does not have legal authority to investigate alleged abuse or neglect when the

alleged perpetrator of the abuse or neglect is not a person responsible for the welfare

of the child who is the subject of the alleged abuse or neglect.” Child and Family

Services Policy Manual, § 202-3 (DPHHS 2015), https://perma.cc/6ZNV-H6AT (emphasis

in original).   Investigation of a report of child abuse and neglect against a person

responsible for the child’s welfare then requires the Department to establish the “Safety

Threshold” to be met—a present, immediate, observable danger to a vulnerable child,

                                                8
which is not controlled. Child and Family Services Policy Manual, § 201-2 (DPHHS

2015), https://perma.cc/YV9G-NNDM.

¶12    Here, since May 2015, a de facto parenting plan has existed, whereby D.D. has

resided with his father on a continuous basis in another city. D.D. does not reside in the

same home as Mother and has not done so since May 8, 2015. Mother’s neglect of D.D.

was resolved upon D.D.’s placement with his father and dismissal of the 2015 case—

ADN-15-130.       At the outset of this cause—under the Department’s philosophy and

policies—there was no present, immediate, observable danger to D.D.—who at 16 years

of age was not shown to be vulnerable—which was not controlled.4 The threat of harm to

D.D. was absent or controlled by D.D. being 16 years old and residing with his father in

another city. The State cannot rely upon an adjudication as a YINC or a determination of

being abused and neglected made in a prior case—which was dismissed on the basis the

offending parent completed his/her treatment plan and addressed the safety concerns which

initiated the case—to support termination of parental rights in a subsequent litigation. Such

would be fundamentally unfair and violate a parent’s due process rights.

¶13    The District Court erred in determining D.D. to be an abused or neglected child in

this cause—the threshold determination required to terminate parental rights. As such, the



4
  The dissent asserts “common sense” as support for its assertion D.D. was a neglected child. But
it is clear any neglectful behavior on Mother’s part, which resulted in initiation of this cause, did
not result in an immediate, observable danger to D.D., now 17 years old and living in another city.
If the Department followed the “common sense” asserted by the dissent, it would be overwhelmed
seeking termination of non-custodial parents on the basis of neglect.

                                                 9
District Court also erred in terminating Mother’s parental rights to D.D. Thus, we reverse

the termination of Mother’s parental rights to D.D.

                                     CONCLUSION

¶14    It is clear Mother’s inability to successfully address her ongoing substance use

disorder has no doubt significantly affected D.D. It is possible he may continue to choose

not to have a relationship with her even if she is able to successfully address her substance

use disorder in the future. That will be his choice. Regardless, under the circumstances

here, D.D. was not residing with Mother at the time of her alleged neglectful conduct and,

given the agreed upon de facto parenting plan, was not at risk of doing so. As such, D.D.

was not an abused or neglected child as provided in § 41-3-102(2)(a), (7)(a)(i)-(iii), and

(21)(a)(i)-(vi), MCA. Thus, the termination of Mother’s parental rights to D.D. is reversed.

¶15    Reversed.


                                                  /S/ INGRID GUSTAFSON


We concur:

/S/ JAMES JEREMIAH SHEA
/S/ LAURIE McKINNON
/S/ DIRK M. SANDEFUR



Justice Beth Baker, dissenting.

¶16    How can not parenting one’s child for four years not be neglect?


                                             10
¶17    We construe a statute “to give effect to [its] purpose . . . and avoid an absurd result.”

State v. Nelson, 2014 MT 135, ¶ 17, 375 Mont. 164, 334 P.3d 345. Analyzing whether

Mother abused or neglected D.D., the Court leaves out words in § 41-3-102(2)(a), MCA,

that are critical to its construction and necessary to give effect to its plain meaning. That

subsection of the statute states in full: “‘A person responsible for a child’s welfare’

means: (a) the child’s parent, guardian, or foster parent or an adult who resides in the same

home in which the child resides.” The Court’s ellipses (Opinion, ¶ 10) lead it to read the

statute to require that a natural parent must reside in the same home in order to be

responsible for the parent’s own child. Such an interpretation of the statute is at odds with

the law, with ordinary grammatical construction, and with common sense.

¶18    First, since statehood, Montana law has obligated parents to provide support and

education of their children. See § 40-6-211, MCA. “A parent’s duty to support and

maintain a child is not abrogated by the child’s abandoning the parent’s home or by any

other voluntary act unless a court has determined the child to be an emancipated minor not

in need of parental support.” Section 40-6-215(3), MCA. Both historic and modern state

law recognize the parent’s responsibility for her child’s welfare until the child is

emancipated and self-supporting (see § 40-6-214, MCA; V.L.-S. v. M.S. (In re M.A.S.),

2011 MT 313, 363 Mont. 96, 266 P.3d 1267) or the parent’s rights have been relinquished

or terminated (see generally Title 41, chapter 3; Title 42, MCA). See also Chrestenson v.

Chrestenson, 180 Mont. 96, 99, 589 P.2d 148, 150 (1979) (parents obligated for support

until child becomes adult at age 18). The constitutionally protected status of the integrity
                                              11
of the family unit bestows a parent with fundamental rights, In re B.H., 2020 MT 4, ¶ 39,

398 Mont. 275, 456 P.3d 233. And it imposes corollary obligations that protect the child’s

likewise fundamental rights. See In re C.H., 210 Mont. 184, 683 P.2d 931 (1984). The

fundamental right to parent may be limited by the State’s responsibility to protect the

welfare of children.      In re A.J.C., 2018 MT 234, 393 Mont. 9, 427 P.3d 59.

Title 41, chapter 3, MCA, implements that responsibility, and we must construe it to

effectuate the statute’s purpose. Construed as a whole, Montana statutes make clear that a

child’s parent is responsible for the child’s welfare.

¶19    Second, in ascertaining a statute’s plain meaning, “we have ‘long adhered to

ordinary rules of grammar.’”      Bates v. Neva, 2014 MT 336, ¶ 15, 377 Mont. 350,

339 P.3d 1265. Under rules of grammatical construction, the series-qualifier canon of

statutory interpretation presumes “that when there is a straightforward, parallel

construction that involves all nouns or verbs in a series, a prepositive or

postpositive modifier normally applies to the entire series.”        Series-qualifier canon,

Black's Law Dictionary 1574 (10th ed. 2014).             This presumption applies, however,

“only where the items in the series have parallel construction. If the items do not have

parallel construction because a modifier is interspersed between them, the result is that the

pre-positive modifier applies only to the first item in the series and does not carry over.”

Bates, ¶ 16 (internal citations omitted).          In Bates, we held that a phrase in the

Montana Human Rights Act referring to “housing accommodation or improved or

unimproved property” did not limit “improved or unimproved property” to housing
                                              12
property because “housing” did not modify “improved or unimproved property.”

Bates, ¶ 16. Because of the like placements of “or” in § 41-3-102(2)(a), MCA, the same

principle applies to the post-positive modifier here.             The statute refers to a

“parent, guardian, or foster parent or an adult who resides in the same home in which the

child resides.”    Section 41-3-102(2)(a), MCA (emphasis added).             Under ordinary

grammatical rules, residing in the same home refers only to an “adult” other than a parent,

guardian, or foster parent (each of whom is obligated by law for the child’s welfare).

¶20    The Court also emphasizes the Department’s dismissal of the prior youth in need of

care proceedings after D.D. went to live with his father in 2015. Opinion, ¶ 12. But

§ 41-3-423(2)(a), MCA, permits the trial court to find reunification services unnecessary

if it finds that the parent has “subjected a child to aggravated circumstances,

including . . . chronic, severe neglect of a child.” (Emphasis added.) “A showing that the

prior aggravated circumstances are relevant to the child at issue is not required.” In re L.N.,

2014 MT 187, ¶ 23, 375 Mont. 480, 329 P.3d 598. Dismissal of the prior case involving

D.D. does not render clearly erroneous the District Court’s finding that Mother had

subjected a child to chronic, severe neglect.

¶21    Finally, there is common sense. Mother did not reside in the same home as D.D.

because she had neglected her responsibility to provide for his welfare. She continued to

neglect him from the time he was removed from her care in 2015 until the Department

sought termination of her rights.


                                                13
¶22   Today’s Opinion eschews common sense and renders the child abuse and neglect

statutes absurd. The District Court’s order terminating Mother’s parental rights should be

affirmed.


                                                /S/ BETH BAKER




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