In re BNY, 03-049.

• Decision Date: 11 September 2003
• Docket Number: No. 03-049.,03-049.
• Citation: 317 Mont. 291,2003 MT 241,77 P.3d 189
• Parties: In the Matter of B.N.Y., A Youth in Need of Care.
• Court: Montana Supreme Court

77 P.3d 189

2003 MT 241

317 Mont. 291

In the Matter of B.N.Y., A Youth in Need of Care.

No. 03-049.

Supreme Court of Montana.

Submitted on Briefs May 22, 2003.

Decided September 11, 2003.

For Appellant: Patrick T. Gallagher, Skakles and Gallagher, Anaconda, Montana.

For Respondent: Honorable Mike McGrath, Attorney General; John Paulson, Assistant Attorney General, Helena, Montana, Ross Richardson, Henningson, Vucurovich & Richardson, Butte, Montana, Mary Kay Starin, Attorney at Law, Butte, Montana (Guardian At Litem).

Justice JIM RICE delivered the Opinion of the Court.

¶ 1 R.W., the natural mother of B.N.Y, appeals from the Findings of Fact, Conclusions of Law and Order entered by the Second Judicial District Court, Silver Bow County, terminating her parental rights to B.N.Y. We reverse.

¶ 2 R.W. raises three issues on appeal which we restate as follows:

¶ 3 1. Did the District Court violate R.W.'s due process rights? ¶ 4 2. Did the District Court err in ordering the treatment plan prepared by the Department of Public Health and Human Services (Department)?

¶ 5 3. Did the District Court err in finding that B.N.Y.'s condition was a result of abuse and neglect by R.W. and that R.W. was currently unfit and unable or unwilling to give B.N.Y. adequate parental care?

¶ 6 Because we find the first issue dispositive, we do not reach Appellant's second and third issues.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 7 B.N.Y. was born March 5, 1990, and at the time of the termination proceedings, was twelve years old. K.Y., B.N.Y.'s natural father, relinquished his parental rights during the course of the proceedings below and is not a party to this appeal. B.N.Y. has been in the temporary legal custody of the Department since July 20, 2000.

¶ 8 The Department first became concerned about B.N.Y.'s welfare in February 1992, after receiving a referral that R.W. left B.N.Y., then twenty-three months old, in the care of a babysitter while suffering from a severe fever and vomiting. From 1992 until 1998, the Department received numerous referrals concerning B.N.Y., including several from B.N.Y.'s teachers who reported concerns of physical abuse and neglect, as well as concerns about B.N.Y.'s disruptive behaviors.

¶ 9 When B.N.Y. was seven years old, R.W. left her in the care of Cherie Guidoni (Guidoni), B.N.Y.'s paternal cousin. On June 26, 1998, Guidoni petitioned the Fifth Judicial District Court, Beaverhead County, for guardianship of B.N.Y. and, with the consent of both R.W. and K.Y., was appointed guardian on July 1, 1998.

¶ 10 While in Guidoni's custody, B.N.Y. exhibited numerous behavioral problems for which Guidoni sought assistance from the Children's Comprehensive Services (CCS) program in Butte, Montana. An examining psychiatrist at CCS diagnosed B.N.Y. with reactive attachment disorder and a depressive disorder, and she was subsequently admitted to the residential treatment program there.

¶ 11 B.N.Y.'s treating physician, Dr. Bruce Smith, ordered the cessation of contact between R.W. and B.N.Y. due to B.N.Y.'s increased behavioral problems after visits with her mother. R.W. thereafter petitioned the Fifth Judicial District Court, Beaverhead County, to terminate the guardianship. The District Court recognized R.W.'s legal right to terminate the guardianship, but rather than dissolve the guardianship immediately, chose to "phase out" the guardianship over a period of months, finding that a phasing out would be in the best interest of B.N.Y. and provide the Department time to initiate abuse and neglect proceedings, if appropriate. The District Court stated:

If indeed the facts establish grounds for intervention to preserve the present de facto custody, it should be done judicially by a petition for investigative authority by the Department ... and not b[e] a private guardian in whom the mother has lost confidence.

¶ 12 The Department did not thereafter file a petition for temporary investigative authority, as envisioned by the District Court, but, rather, filed a petition for temporary legal custody in the Second Judicial District Court, Silver Bow County, on June 26, 2000. On July 20, 2000, the District Court conducted a hearing on the Department's petition in which Jennifer Hoerauf (Hoerauf), a community social worker for the Department, testified. After hearing Hoerauf's testimony, the court granted the Department's petition, despite R.W.'s absence from the hearing, and without making a finding of abuse or neglect by a preponderance of the evidence.

¶ 13 Although R.W. was not represented by counsel at that time, she remarkably filed a motion to dismiss the Department's petition which correctly noted that no previous abuse and neglect proceeding had been initiated under § 41-3-401, MCA (1999), and that the court had not entered a finding of abuse and neglect. The District Court did not rule on R.W.'s motion. ¶ 14 On the recommendation of her therapist and CCS, B.N.Y. was transferred to Intermountain Children's Home (Intermountain) in Helena, Montana, in December 2000 for further treatment. Like CCS, Intermountain is a residential facility for children suffering from extreme behavioral and emotional disorders.

¶ 15 Shortly after B.N.Y. was transferred to Intermountain, the Department began a series of attempts to engage R.W. in a treatment plan. On May 21, 2001, the court ordered the Department's proposed treatment plan, the purpose of which was to determine whether reunification of mother and child was possible. The treatment plan was scheduled to last only until July 30, 2001. Although the District Court would eventually conclude that the plan was unsuccessful, R.W. complied with all of its terms.

¶ 16 On March 25, 2002, following a hearing held on the Department's request for continuance of temporary legal custody and the mother's motions for replacement of counsel, the District Court entered findings of fact, conclusions of law, and an order, and for the first time, adjudicated B.N.Y. a youth in need of care. The court found:

There has been sufficient evidence presented to establish, by a preponderance of the evidence, that the above-named child is a Youth in Need of Care as defined in Mont.Code Ann. § 41-3-102 (2001), such that the Court should enter an order of adjudication and temporary legal custody.

¶ 17 On July 26, 2002, the Department petitioned for permanent legal custody and termination of parental rights. After hearing, the District Court entered findings of fact, conclusions of law and order terminating R.W.'s parental rights on the grounds that the treatment plan was unsuccessful, that the conduct or condition of R.W. was unlikely to change within a reasonable time, and that B.N.Y.'s best interests would be served by terminating the parent-child relationship. From this order, R.W. appeals.

STANDARD OF REVIEW

¶ 18 The decision to terminate parental rights is a discretionary ruling which we review to determine whether the District Court abused its discretion. In re J.W., 2001 MT 86, ¶ 7, 305 Mont. 149, ¶ 7, 23 P.3d 916, ¶ 7. We will affirm findings of fact in parental right termination cases unless the findings are clearly erroneous; that is, they are not supported by substantial evidence, the District Court misapprehended the effect of the evidence, or a review of the record leaves us with the definite and firm conviction that the court made a mistake. In re A.N. and C.N., 2000 MT 35, ¶ 22, 298 Mont. 237, ¶ 22, 995 P.2d 427, ¶ 22. We review conclusions of law in a termination proceeding to determine if those conclusions are correct. In re E.W., 1998 MT 135, ¶ 11, 289 Mont. 190, ¶ 11, 959 P.2d 951, ¶ 11.

DISCUSSION

¶ 19 Did the District Court violate R.W.'s due process rights?

¶ 20 As she asserted in the District Court, R.W. argues on appeal that the District Court failed to properly adjudicate B.N.Y. a youth in need of care prior to ordering the treatment plan, thereby violating her rights to due process of law and requiring reversal of the order terminating her parental rights to B.N.Y.

¶ 21 A natural parent's right to care and custody of a child is a fundamental liberty interest which courts must protect with fundamentally fair procedures at all stages of the proceedings for the termination of parental rights. In re T.C. and W.C., 2001 MT 264, ¶ 22, 307 Mont. 244, ¶ 22, 37 P.3d 70, ¶ 22; In re A.F.-C., 2001 MT 283, ¶ 31, 307 Mont. 358, ¶ 31, 37 P.3d 724, ¶ 31. Accordingly, procedures employed to terminate the relationship between a parent and child must meet the requisites of the Due Process Clause of the Fourteenth Amendment. Lassiter v. Dept. of Social Services (1981), 452 U.S. 18, 24-32, 101 S.Ct. 2153, 2158-62, 68 L.Ed.2d 640, 648. Although "due process" cannot be precisely defined, the phrase requires "fundamental fairness." Lassiter, 452 U.S. at 24-25,101 S.Ct. at 2158,68 L.Ed.2d at 648. Fundamental fairness requires fair procedures. In re A.F.-C., ¶ 50. We have repeatedly held that prior to terminating parental rights, the District Court must adequately address each applicable statutory requirement. In re A.M., 2001 MT 60, ¶ 34, 304 Mont. 379, ¶ 34, 22 P.3d 185, ¶ 34; In re E.W., ¶ 12; In re J.W., ¶ 7.

¶ 22 Section 41-3-609(1)(f), MCA, authorizes a court to terminate parental rights upon finding that a child has been adjudicated a youth in need of care, an appropriate court-approved treatment plan has not been complied with or has not been successful, and the conduct or condition rendering the parent unfit is unlikely to change within a reasonable time. The adjudication of a child as a youth in need of care is a threshold requirement without which a court may not grant temporary legal custody, order a court ordered treatment plan, or terminate a person's parental rights under the statute. Sections 41-3-406(1)(c), 41-3-420(1), and 41-3-609(1)(f), MCA. In In re T.C., we held that "before a court may address the treatment plan, the court must first judge the child as a ...