In re E.J.G.
| Citation | 499 P.3d 1174 (Table) |
| Decision Date | 07 December 2021 |
| Docket Number | DA 21-0269 |
| Parties | In the MATTER OF: E.J.G. and C.R.G., youths in need of care. |
| Court | United States State Supreme Court of Montana |
For Appellant: Taryn Gray, Driscoll Hathaway Law Group, Missoula, Montana
For Appellee: Austin Knudsen, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana, Eileen Joyce, Butte-Silver Bow County Attorney, Mark Vucurovich, Special Deputy County Attorney, Butte, Montana
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, 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 K.E.T. appeals from the Second Judicial District Court's decisions to terminate her parental rights to E.J.G. and C.R.G. pursuant to § 41-3-609(1)(f), MCA. We affirm.
¶3 E.J.G. and C.R.G. are twins who were seven years old when removed from K.E.T.’s care. K.E.T. adopted the children in February 2019 and is their paternal grandmother. The children's birth parents’ rights were terminated due to abuse and neglect stemming from the parents’ ongoing drug use.
¶4 On November 15, 2019, the Department of Public Health and Human Services (Department) filed a Petition for Emergency Protective Services, Adjudication of Child as Youth in Need of Care, and Temporary Legal Custody of E.J.G. and C.R.G. The supporting affidavit alleged the children were in immediate danger because of K.E.T.’s "out of control mental health and lack of protective capacities." The affidavit cited a previous report from October 2018 wherein E.J.G. alleged an unknown male visitor had sexually abused her while she was in K.E.T.’s care.1 K.E.T.’s abuse and neglect included having her son, the children's birth father, watch the children, even though he remained an active methamphetamine user.
¶5 K.E.T. told the investigator she suffered from high anxiety, which resulted in her sleeping for long periods during the day. Reports indicated another relative was taking the children to school because K.E.T. was not getting up and that the children were afraid to wake her due to her anger. K.E.T. also reportedly hit C.R.G. and failed to address the children's mental health needs. She failed to consistently administer C.R.G.’s medication and did not sign the children up for recommended mental health services to address their trauma.
¶6 The Department's Immediate Danger Assessment from November 7, 2019, also reported K.E.T. behaved erratically and aggressively with investigators, prompting them to call police to the home for safety.
¶7 The show cause hearing was postponed over a month and a half due to K.E.T.’s refusal to answer the door for service. Upon Department motion, the District Court allowed service by publication. Following the hearing, the court issued its February 10, 2020 order ruling the children were youths in need of care and continuing the Department's custody for six months.
¶8 On April 22, 2020, the court approved K.E.T.’s stipulated treatment plan. A primary goal was K.E.T. achieving and maintaining safe and stable housing, which the plan articulated as a "safe home environment." The plan described a safe environment including K.E.T. protecting the children and keeping the home free from persons using drugs and alcohol. The plan also required K.E.T. to demonstrate she understood the children's trauma, to take responsibility for how her choices had adversely affected the children, and to address her own mental health.
¶9 K.E.T. stipulated to a six-month extension of the Department's custody in June 2020. The court granted the extension to allow K.E.T. more time for plan completion. At that time, K.E.T. had yet to complete her mental health evaluation.
¶10 At the end of the six-month extension, the Department petitioned for termination of K.E.T.’s parental rights citing her failure to successfully complete the treatment plan and that her conduct or condition causing the neglect and abuse was unlikely to change within a reasonable time pursuant to § 41-3-609(1)(f), MCA. The nature of K.E.T.’s neglect was her "inability to manage her own mental health needs in order to parent the child[ren] and keep the child[ren] safe."
¶11 On March 30, 2021, the District Court held a termination hearing. The court heard testimony from the children's counselor, who had also conducted family therapy with K.E.T.; the Department's caseworker; and K.E.T.
¶12 The District Court terminated K.E.T.’s rights in its May 4, 2021 order. The court held that clear and convincing evidence showed K.E.T. had failed to demonstrate improved parenting skills and understanding of the children's trauma, refused responsibility for how her actions adversely impacted the children, and ignored therapeutic suggestions to assist her with meeting the children's needs. The court held termination of K.E.T.’s rights was in the best interests of the children.
¶13 "We review a district court's decision to terminate parental rights for an abuse of discretion, considering the applicable standards of Title 41, chapter 3, MCA...." In re D.D. , 2021 MT 66, ¶ 9, 403 Mont. 376, 482 P.3d 1176. A court abuses its discretion if its decision rests on clearly erroneous factual findings or incorrect conclusions of law, or if it otherwise "acts arbitrarily, without employment of conscientious judgment, or exceeds the bounds of reason resulting in substantial injustice." In re D.D. , ¶ 9.
¶14 On appeal, K.E.T. argues the District Court erred in finding she was unsuccessful in her treatment plan. K.E.T. contests the court's conclusions that she failed to obtain safe and stable housing and was unlikely to change within a reasonable time.
¶15 A court may terminate parental rights if clear and convincing evidence demonstrates the child is an adjudicated youth in need of care; the parent was noncompliant with or unsuccessful in an appropriate, court-approved treatment plan; and the parent's unfit conduct or condition is unlikely to change within a reasonable time. In re X.M. , 2018 MT 264, ¶ 18, 393 Mont. 210, 429 P.3d 920 (citing § 41-3-609(1)(f)(i), (ii), MCA ).
¶16 Clear and convincing evidence means a definite preponderance of the evidence or establishing a particular issue by a clear preponderance of proof, but it does not require conclusive evidence. In re T.D.H. , 2015 MT 244, ¶ 28, 380 Mont. 401, 356 P.3d 457.
¶17 Successful treatment plan completion requires the parent effectuate the purposes for which the plan was designed. In re A.K. , 2015 MT 116, ¶ 28, 379 Mont. 41, 347 P.3d 711.
¶18 Here, testimony and investigators’ affidavits provided substantial evidence K.E.T. failed the purposes of her treatment plan by refusing accountability, not prioritizing the children's safety and emotional needs, and not following therapeutic recommendations.
¶19 A principal issue was that K.E.T. brought another person to a visitation, who the children believed to be their father. Testimony and reports by the children's counselor and investigators show the children experienced fear and an eroded sense of safety around K.E.T. after the visitation. Because of the trauma this incident caused, visitations with K.E.T. were discontinued at the children's counselor's recommendation. The court's findings also emphasized the counselor's testimony about K.E.T.’s continued "explosive anger episodes." The court noted the counselor's opinion that the children would experience permanent trauma and mental health issues if reunification efforts with K.E.T. continued.
¶20 At the hearing, K.E.T.’s own testimony confirmed her refusal to acknowledge how her actions had impacted the children. Regardless of evidence she submitted showing the children's father could not have been the person in the car, the record establishes she brought another person to a visitation, who was hidden in the backseat. K.E.T. remained adamant the children's fears were irrational because the person in the car could not be their father. However, her testimony supports the court's finding that she refused to recognize how her conduct contributed to the children's fear and eroded sense of safety.
¶21 K.E.T.’s testimony demonstrates she failed to understand her conduct was counter to protective parental care and support for the children's mental and emotional needs. The Department's affidavit supporting termination also indicated K.E.T.’s interactions with the children at visitations were not always appropriate. Evidence in the record repeatedly references K.E.T.’s impulsive, aggressive, and overly combative responses to Department and counselor interventions and suggestions for help.
¶22 In In re A.K. , we upheld termination of parental rights on similar conclusions that a parent's deflection of blame, refusal to accept full responsibility for the children's removal, and failure to demonstrate changes necessary to foster a healthy relationship with the children constituted noncompliance with the treatment plan. In re A.K. , ¶ 29.
¶23 The court's findings were not clearly erroneous. The children's needs for safety and mental health treatment and K.E.T.’s inability to demonstrate an understanding of their needs or accountability for her actions such that she could provide adequate parental care and protection are established in the record by a clear preponderance of proof.
¶24 K.E.T. also argues the court erred in holding such...
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