In re T.S.B.

• Decision Date: 29 January 2008
• Docket Number: No. DA 07-0372.,DA 07-0372.
• Citation: 177 P.3d 429,341 Mont. 204,2008 MT 23
• Parties: In the Matter of T.S.B., Youth in Need of Care.
• Court: Montana Supreme Court

177 P.3d 429

2008 MT 23

341 Mont. 204

In the Matter of T.S.B., Youth in Need of Care.

No. DA 07-0372.

Supreme Court of Montana.

Submitted on Briefs November 28, 2007.

Decided January 29, 2008.

For Appellant: Jim Wheelis, Chief Appellate Defender; Joslyn M. Hunt, Assistant Appellate Defender, Helena, Montana.

For Appellee: Honorable Mike McGrath, Attorney General; C. Mark Fowler, Assistant Attorney General, Helena Montana, Brant Light, County Attorney; Sarah Corbally, Assistant Attorney General, Child Protection Unit, Great Falls, Montana, Charlotte Gray, Great Falls, Montana (Guardian ad litem), Vincent Van Der Hagen, Office of the State Public Defender, Great Falls, Montana (Mother).

Justice W. WILLIAM LEAPHARTdelivered the Opinion of the Court.

¶ 1 C.B. II (hereinafter "C.B."), the father of T.S.B., appeals from the order of the District Court for the Eighth Judicial District, Cascade County, terminating his parental rights to T.S.B. We affirm.

¶ 2 The issues on appeal are as follows:

1. Did the District Court's termination of C.B.'s parental rights to T.S.B., pursuant to §§ 41-3-609(1)(d) and 41-3-423(2)(e), MCA, violate C.B.'s constitutional right to due process?

2. Did the District Court abuse its discretion in terminating C.B.'s parental rights to T.S.B.?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 3 C.B. and J.B. are the parents of seven children: C.B. III, A.B., C.B. V, T.I3., K.J.B., T.S.B., and a stillborn son, C.B. IV. J.B., the mother, suffers from a disorder known as velocardiofacial syndrome (VCFS). VCFS can cause a number of conditions including heart defects, poor muscle tone, cleft palate, a curved esophagus, bowel problems, immune deficiency, and impaired vision and hearing. VCFS can also manifest itself in the form of cognitive problems, including learning difficulties. J.B. is cognitively impaired and of limited intellectual capacity. All of C.B. and J.B.'s children, including T.S.B., were born with VCFS.

¶ 4 T.S.B. was born on February 21, 2007. On February 24, 2007, the Department of Public Health and Human Services (DPHHS) placed T.S.B. into protective custody with a foster care provider. On February 26, 2007, Deputy Cascade County Attorney Sarah Corbally, on behalf of the State and DPHHS, filed a Petition for Emergency Protective Services, Determination that Reasonable Efforts are not Required, Termination of Parental Rights, and Permanent Legal Custody with the District Court.

¶ 5 C.B. and J.B. previously had their parental rights terminated with respect to their five other living children: C.B. HI on October 2, 1996; C.B. V and A.B. on January 14, 2000; T.B. on December 4, 2003; and K.J.B. on December 19, 2006. These terminations were grounded in C.B.'s and J.B.'s inability to safely parent. We recently affirmed the termination of C.B.'s and J.B.'s parental rights as to K.J.B. in In re K.J.B., 2007 MT 216, 339 Mont. 28, 168 P.3d 629, and conducted an extensive review of the circumstances that led to that termination, as well as the termination of C.B.'s and J.B.'s parental rights with respect to the other four children.

¶ 6 The District Court issued an order on February 27, 2007, determining that the State established probable cause to believe that T.S.B. was a youth in need of care, and granting DPHHS emergency protective services of T.S.B. on the ground that letting T.S.B. remain with her parents would be contrary to her welfare, based on the involuntary termination of C.B.'s and J.B.'s parental rights with respect to T.S.B.'s five siblings due to inability to safely parent. The District Court also ordered a show cause hearing, which it eventually set for April 19, 2007. The court reserved, for the show cause hearing, the State's request for a finding that reasonable efforts for reunification of T.S.B. with her parents not be required, as well as the State's request for termination of parental rights and permanent legal custody of T.S.B. The District Court subsequently appointed a guardian ad litem for T.S.B.

¶ 7 C.B. filed a Motion to Dismiss and for Hearing on this Motion, arguing that the State's petition was unconstitutional for violating the Due Process Clause of the Montana and United States Constitutions. C.B. argued that §§ 41-3-609(1)(d) and 41-3-423(2)(e), MCA, violated due process by impermissibly shifting the burden of proof onto the parents.

¶ 8 The District Court held the show cause hearing on April 19, 2007, but first addressed C.B.'s motion to dismiss. The District Court denied his motion on the ground that §§ 41-3-423(2)(e) and 41-3-609(1)(d), MCA, are constitutional, as the Statutes still afforded C.B. and J.B. due process and fundamental fairness by "appointing Counsel, giving them the required notice, an opportunity to be heard, and an opportunity to cross-examine any of the State's witnesses."

¶ 9 The court then addressed the State's petition, and heard testimony from five witnesses for the State: Sahrita Holum; Lee Smith; Dr. Donna Zook, Ph.D.; Dr. Jennifer Hall, M.D.; and Jana Hayes.

¶ 10 Sahrita Holum, a DPHHS social worker, testified that DPHHS removed T.S.B. from her parents' custody due to a high risk of physical neglect based upon the five previous terminations. She remarked that she was concerned about how J.B. and C.B. handled the child and stated that J.B. seemed to rely on C.B. for redirection. Holum also explained that her biggest concern was that the parents never once contacted her to check and see how T.S.B. was doing.

¶ 11 Dr. Donna Zook, a licensed psychologist who evaluated both J.B. and C.B. on several occasions in 2006 after the birth of K.J.B., testified that C.B.'s ability to parent was "quite inadequate" and that his parenting prognosis was extremely poor. Dr. Zook stated that. C.B. "presented both in the interview and on the objective instruments that he is the perfect parent, that he has absolutely no problems in life. He has no personality issues, no problems that create stress' or distress in his life ...." Dr. Zook also remarked that C.B. tended to "lack emotional expression or emotional connectedness with his child" and exclusively referred to K.J.B. as "my kid." Dr. Zook went on to state that C.B.'s "depiction of his life just totally defies the reality of his situation, not having problems, not having any kind of issue, personal issues that need fixing, treatment, whatever." Dr. Zook concluded that these problems would make it difficult for C.B. to recognize, let alone meet, the developmental needs of a child. Dr. Zook seriously doubted whether C.B.'s problems could be remedied, given past failures with parenting services. Dr. Zook opined that even if C.B.'s parenting problems could be remedied, it would take an extremely long time to accomplish.

¶ 12 Dr. Zook stated that J.B. "believes that she is without problems, that she is a perfect person, she doesn't have any issues, doesn't have anything disturbing or distressful in her life." Dr. Zook also stated that J.B. tended to defer to. C.B. and believed his parenting to be perfect. Dr. Zook further explained that J.B. "also expects the child to satisfy her needs. [C.B.] expects an ideal child, and [J.B.] expects the child to be ideal to [C.B.] ..." and that "[t]he child is there to support and to gratify [J.B.'s] needs." Dr. Zook believed that this behavior would place a child at risk of abuse and neglect. She ultimately concluded that she did not believe J.B. could benefit from services and be able to safely parent in the reasonable future. She expressed, as to both C.B. and J.B., that it would take a complete rebuilding of their personalities to change their parenting.

¶ 13 Dr. Jennifer Hall, T.S.B.'s pediatrician, testified that T.S.B. suffered from VCFS, had feeding issues due to poor muscle tone in her throat, and that she had a heart defect. Dr. Hall stated that T.S.B. was at risk for learning problems, language delay, and behavioral problems, and that she will require on-going specialized treatment. Dr. Hall stated that as a result of these conditions, T.S.B. will require a higher level of care and that she will suffer from these problems for her entire life. On cross-examination, Dr. Hall stated that C.B. did seem interested in parenting T.S.B., and that he expected to be allowed to do so. She also stated that C.B. seemed to have affection and love for T.S.B. and wanted to care for her. Nonetheless, Dr. Hall also testified that she was concerned with C.B.'s and J.B.'s ability to feed T.S.B. and that it was uncommon for parents to have that much difficulty with feeding their baby.

¶ 14 Although these witnesses were crossed-examined, the parents did not call any witnesses of their own. The court also admitted into evidence the previous orders regarding termination of parental rights for C.B. and J.B.'s five other children.

¶ 15 Based on the evidence and testimony presented, the District Court concluded that DPHHS was not required to make reasonable efforts to reunify T.S.B. with her parents, that clear and convincing evidence showed that C.B. and J.B. were unable to safely and adequately care for T.S.B. within a reasonable amount of time, that clear and convincing evidence showed that continuation of the parent-child legal relationship between T.S.B. and her parents would likely result in ongoing abuse and/or neglect, and that the best interest of T.S.B.'s physical, mental, and emotion condition would be served by terminating the parent-child legal relationship with C.B. and J.B. Accordingly, the District Court terminated the parent-child relationship, and granted permanent legal custody to DPHHS.

¶ 16 The District Court entered its order on April 26, 2007. The District Court held a permanency plan hearing on May 17, 2007, and, that same day, entered an order approving the permanency plan for T.S.B. This appeal followed.

STANDARD OF REVIEW

¶ 17 We review a district court's decision to terminate an individual's parental rights to determine whether the...