in the matter of: j.s., youth in need of care. appellant’s
TRANSCRIPT
IN THE SUPREME COURT FOR THE STATE OF MONTANA
No. DA 21-0384
IN THE MATTER OF:
J.S.,
Youth In Need Of Care.
APPELLANT’S OPENING BRIEF
On Appeal from Montana’s Second Judicial District Court, Silver Bow County, The Honorable Robert J. Whelan Presiding
APPEARANCES:
ATTORNEYS FOR FATHER AND APPELLANT: GREGORY D. BIRDSONG Birdsong Law Office P.O. Box 4051 Santa Fe, NM 87502
ATTORNEYS FOR PLAINTIFF AND APPELLEE: Austin M. Knudsen Kathryn Fey Schulz Montana Attorney General’s Office P.O. Box 201401 Helena, MT 59620-1401
Eileen Joyce Silver Bow County Attorney’s Office 155 West Granite Street Butte, MT 59701
11/22/2021
Case Number: DA 21-0384
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TABLE OF CONTENTS
Table of Authorities .................................................................................................. ii
Statement of the Issues ............................................................................................... 1
Statement of the Case ................................................................................................. 1
Procedural History .................................................................................................. 1
Facts of the Case ..................................................................................................... 5
Standards of Review ................................................................................................ 20
Summary of the Argument ....................................................................................... 22
Argument.................................................................................................................. 24
1. The Department failed to provide C.G. with an appropriate treatment plan, failed to fulfill its responsibilities under the approved treatment plan, did not properly and timely modify C.G.’s treatment plan and did not act in good faith to preserve C.G.’s parental relationship with J.S. and facilitate reunification. ........ 25
2. The District Court committed reversible error when it determined that C.G.’s treatment plan was appropriate at the time the petition to terminate his parental rights was filed and that the condition rendering C.G. unfit to parent was unlikely to change in a reasonable time. .............................................................. 31
3. The district court’s order terminating C.G.’s parental rights was plain error…. .................................................................................................................. 36
Conclusion ............................................................................................................... 36
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TABLE OF AUTHORITIES
Montana Code Annotated
Mont. Code Ann. §41-3-102 ............................................................................. 25, 27
Mont. Code Ann. §41-3-422 .................................................................................... 21
Mont. Code Ann. §41-3-423 .................................................................................... 27
Mont. Code Ann. §41-3-443 .................................................................................... 27
Mont. Code Ann. §41-3-609 ....................................................................... 21, 27, 31
Montana Cases
Azure v. City of Billings (1979), 182 Mont. 234, 596 P.2d 460 .............................. 34
In re A.A., 2005 MT 119, ¶21, 327 Mont. 127 ........................................................ 26
In re A.N., 2000 MT 35, 298 Mont. 237 ..................................................... 26, 27, 32
In re A.N.W., 2006 MT 42, 331 Mont. 208 .............................................................. 21
In re B.J.J., 2019 MT 129, 396 Mont. 108 ....................................................... 21, 22
In re C.J.M., 2012 MT 137, 365 Mont. 298 ............................................................ 27
In re D.B., 2007 MT 246, 339 Mont. 240 ............................................. 21, 25, 26, 36
In re J.B., 2016 MT 68, 383 Mont. 48 ..................................................................... 21
In re J.B.K., 2004 MT 202, 322 Mont. 286 ............................................................. 26
In re J.M.W.E.H., 1998 MT 18, 287 Mont. 239....................................................... 21
In re J.S.W., 2013 MT 34, 369 Mont. 12, 303 ......................................................... 36
In re K.L., 2014 MT 28, 373 Mont. 421 .................................................................. 21
In re M.K.S., 2015 MT 146, 379 Mont. 293 ..................................................... 22, 36
In re M.M., (1995) 271 Mont. 52, 894 P.2d 298 ..................................................... 32
In re R.B., Jr., 217 Mont. 103 .................................................................................. 32
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In re X.B., 2018 MT 153, 392 Mont. 15 .................................................................. 33
Matter of Custody and Parental Rights of M.M., (1995) 271 Mont. 52, 894 P.2d 298 ........................................................................................................................ 26
Matter of G. S.(Mont. 1985), 698 P.2d 406, 42 St. Rep. 451 .................................. 34
Matter of R.H. (1991), 250 Mont. 164, 819 P.2d 152 ............................................. 27
State v. Daniels, 2003 MT 247, 120, 317 Mont. 331 ....................................... 22, 36
State v. Hallam (1978), 175 Mont. 492, 575 P.2d 55 .............................................. 34
Other Authority
People in Interest of M.C.C. (Colo.App.1982), 641 P.2d 306 ................................ 32
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STATEMENT OF THE ISSUES
1. Whether the Department failed to provide C.G. with an appropriate
treatment plan, failed to modify the treatment plan in a timely fashion, failed to
fulfil its responsibilities under the treatment plan, or failed to act in good faith to
preserve C.G.’s parental relationship with J.S.
2. Whether the district court’s determination that an appropriate treatment plan
had been approved, or the court’s finding that the condition or conduct rendering
C.G. unfit to parent was unlikely to change in a reasonable time was serious error
constituting an abuse of discretion.
3. Whether the Court should exercise its discretion to consider this case under
the Plain Error Doctrine.
STATEMENT OF THE CASE
Father and Appellant C.G. , appeals the Order, entered July 21, 2021 by the
Montana’s Second Judicial District Court, Silver Bow County, terminating his
parental rights to J.S. (6 years old). (Appendix A) The rights of the child’s birth
mother were relinquished.
Procedural History
The case originated November 3, 2017, when the Silver Bow County
Attorney filed a Petition for Emergency Protective Services (EPS), Adjudication as
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Youth in Need of Care (YINC), and Temporary Legal Custody (TLC) on behalf of
the Department of Health and Human Services (the Department) for J.S. (DC001).
and supported by the Affidavit of CPS Brittany Baxter. (DC002) The Department
advised the district court the children were not Native American and ICWA did not
apply. (Id.) The district court, Honorable Judge Brad Newman presiding, granted
EPS and set a show cause hearing. (DC003)1 December 4, 2017 C.G. filed a
response to the Petition in which he objected to the removal of J.S. and requested
the district court dismiss the Petition. (DC013)
December 6, 2017 the district court held the show cause hearing. (DC014)
C.J. stipulated to adjudication. (Id.) The district court adjudicated J.S. as YINC and
awarded the Department TLC. (Id.) January 4, 2018 the district court entered its
adjudication order. (DC020) December 12, 2017 the district court held a
disposition hearing January 10, 2018 at which time it approved a treatment plan.
(DC015)
January 3, 2018 C.G. filed a motion for the Department to appear and show
cause why it should not be held in contempt of court. (DC017) C.G. alleged the
Department had, since removal, scheduled then cancelled all but one visitation
1 The Honorable Judge Ed McLean assumed control of the case sometime between May 30, 2018 and July 18, 2018. (DC029, DC035) The Honorable Judge Robert Whelan assumed control of the case sometime between January 9, 2019 and January 15, 2019. (DC046, DC051)
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between C.G. and J.S. for the ostensible reason that criminal charges were pending
against C.G. (Id.) C.G. further argued that, “First, criminal charges are not a valid
reason for denying contact between a parent and child,” and “[s]econd, the
statement is false that criminal charges are pending.” (Id.) The Department did not
respond to the motion and the district court eventually dismissed the motion as
moot.
January 10, 2018 the district court conducted the treatment plan disposition
hearing, at which time the court was advised that C.G. had signed the proposed
treatment plan. (DC022) The district court approved the plan and ruled that C.G.’s
motion regarding the Department’s alleged misconduct was moot. (Id.) January 24,
2018 the district court entered its written order adopting the treatment plan.
(DC023)
The district court entered orders extending TLC on June 26, 2018 and
February 13, 2019. (DC039, DC061) July 16, 2019 the district court entered an
order continuing TLC “until the Petition to Extend TLC can be filed, and a hearing
held in the near future.” (DC065) No third petition to extend TLC was filed. C.G.
filed a response to the second petition to extend TLC in which he took issue with
several allegations set forth in CPS Debbie Mehring’s supporting affidavit,
including the objection that the Department continued to make the false allegation
that criminal charges were pending against C.G. (DC034, DC032) The Department
4
did not file a reply and the district court did not address C.G.’s objections.
(DC039) CPS Mehring perpetuated the allegation that criminal charges were
pending against C.G. in her affidavit in support of the Department’s motion for a
permanency plan. (DC042)
January 9, 2019, in her affidavit in support of the Department’s second
petition for extension of TLC, CPS Lee attested C.G. was in compliance with
every goal of his treatment plan. (DC049)
June 1, 2019 C.G. filed a motion advising the district court that he had
successfully completed every component of his treatment plan and requesting the
court order the Department “to make the statutorily-required reasonable efforts to
reunite him with his child. (DC63)
August 28, 2019 the Department petitioned for termination of C.G.’s
parental rights and permanent legal custody. (DC068)
October 23, 2019 the Department filed a motion to vacate the termination
hearing because “the Department is obtaining additional evaluations that are
necessary for the assessment of the case.” (DC080)
The district court held the termination hearing February 13, 2020 (DC096)
After hearing testimony and argument, the district court took the matter under
advisement and permitted parties to submit briefs. (Id.) February 20, 2020 C.G.
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filed his brief in opposition to the petition. (DC098) February 26, 2020 the
Department filed a response to C.G.’s brief. (DC101) February 28, 2020 the
Department filed the Notice of Entry of Judgment ( DC102) On March 15, 2020
C.G. filed his reply brief. (DC103) The district court entered its written order
terminating the parental rights of C.G. to J.S. on July 21, 2021 (Appendix A)
August 5, 2021 C.G. filed a notice of appeal. (DC113)
Facts of the Case
Affidavit of CPS Baxter – November 3, 2017. In the petition in support of
the Department’s Petition for Emergency Protective Services, Adjudication as
Youth in Need of Care and Temporary Legal Custody for J.S., CPS Brittany
Baxter alleged physical neglect of J.S. due to injuries to his half-sibling L.L.
(DC002)
After a lengthy recitation of the Department’s involvement with L.L.’s birth
mother and birth father – none of which pertained to C.G. – CPS Baxter reported:
“On 10/26/2017 the Department received an informational report that noted that
the children, L.L. (5) and J.S. (2) had been exposed to unreasonable risk of harm.”
(DC002) L.L. is reported to have come to school “with a deep gash on her
forehead, a cut under her nose, a cut under her chin, bruising on the left side of her
forehead and a small scratch under her right eye. Upon completion of a medical
exam at the CEC, the child also presented with fingerprint bruising on the upper
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parts of her arms and abnormal bruising to the sides of her hips.” (Id.) L.L. is
alleged to have said to CPS Baxter that C.G., her stepfather, caused the injuries to
her face when he became angry with her “for not reason.” (Id.) L.L. is alleged to
have said C.G. “picked her up by the back of her shirt and shoved her face first into
a metal desk that was overturned in her room.” (Id.) C.G. denied the allegation.
(Id.) CPS Baxter reports seeing marijuana paraphernalia on a dresser in another
bedroom, “…low enough that the children could have access to the
paraphernalia….” (Id.) CPS Baxter said the Department reported to law
enforcement and L.L., in a forensic interview, “retold the same story to the forensic
interviewer.” (DC002)
C.G.’s Answer – December 4, 2017. In his answer to the Department’s
Petition for EPS, YINC and TLC, C.G. denied that J.S. was at risk or neglect.
(DC013) C.G. maintained that the injuries to L.L. were accidental and that L.L.
was not being truthful when she said C.G. gets angry with her for no reason. (Id.)
C.G. argued that CPS Baxter knowingly and improperly tainted L.L.’s interview by
interviewing the child before taking her to a forensic interviewer and failing to
record her initial interview with the child. (Id.) C.G. also argues that the allegation
that J.S. was in imminent danger of being neglected or abused was unfounded
because the Department did not submit evidence that J.S.’s safety requirements
were unmet. (Id.)
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Show Cause Hearing – December 6, 2017. C.G. was present for the
hearing and was represented by counsel. (12/6/2017 Hrg. Tr. 5:25-6:2) The district
court was advised that ICWA did not apply. (Id. 6:8-12) C.G.’s attorney told the
court that C.G. did not agree with all of the allegations in the Petition but was
willing to stipulate to adjudication. (Id. 7:11-14) CPS Baxter conceded that, since
removal, the parents had only had one visit with the children despite being
scheduled for visits twice a week. (Id. 15:23-16:17) CPS Baxter confirmed she did
not record her interview with L.L. (Id. 18:8-12, 16-24)
C.G.’s Motion to Show Cause – January 3, 2018. C.G. reported that, since
removal, the Department had “scheduled, then cancelled, all but one visitation
between himself and J.S. on the pretense that “criminal charges are pending against
Birthfather.” (DC017) C.G. said that the statement was false in that no criminal
charges were pending against him and that, in any event, pending criminal charges
“are not a valid basis for denying contact between parent and child.” (Id.) C.G.
specifically claimed that denying him contact with J.S. over the Christmas holiday
on the false and invalid pretext was “unconscionable.” C.G. argued that “The child
lost time too.” (Id.)
Disposition Hearing – January 10, 2018. C.G. was not present for the
hearing. (DC022) The district court accepted the proposed treatment plan which
addresses five areas of treatment:
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1. Parenting: C.G. will complete an approved parenting class, have supervised visitation at least once a week, demonstrate what he has learned in parenting classes, contact J.S.’s providers every two months, and provide a written update to CPS on how the children are doing and how he can help meet their needs emotionally and developmentally.
2. Chemical Dependency and Mental Health: C.G. will complete a CD evaluation and follow the recommendations. C.G. will complete a mental health evaluation and follow the recommendations. CG will attend mental health counseling to work on his relationship and the effect it has on J.S. and to ensure he is emotionally stable to meet J.S.’s needs. C.G. will address blaming others for his behaviors – specifically blaming the mother or children for harming himself when he’s upset. C.G. will attend anger management to better deal with his frustration that leads him to become physically and verbally abusive to, and in the presence of, the children.
3. Home and Housing: C.G. will obtain and maintain a clean and stable home, will promptly notify the Department of any changes in address or phone number and not allow individuals into the home who are under the influence of drugs, abusing alcohol, have a history of sexual or violent crimes, or have a history of abuse to children.
4. Communication with DPHHS: C.G. will sign requested releases, have weekly meetings with his CPS, promptly advise the CPS of any barriers to successful completion of his treatment plan and apply for Medicaid.
5. Criminal Behavior: C.G. will “address any and all legal/criminal that may arise as they can be a barrier to parenting his child including reunification” and inform the CPS, in writing, of any pending criminal charges, warrants, fines community service, and any criminal investigations.
(DC023)
Affidavit of CPS Mehring – June 11, 2018. CPS Debbie Mehring swore an
affidavit in support of the Department’s first petition to extend TLC. (DC032) CPS
9
Mehring repeats, verbatim, the disputed allegations set forth in CPS Baxter’s
affidavit from November 2017 including the erroneous statement that “there is now
a criminal investigation pending.” (Id.)
With respect to C.G.’s treatment plan, CPS Mehring asserts that:
1. “C.G. is in compliance of the parenting component of his treatment plan, however, needs additional time to demonstrate his appropriate parenting skills.”
2. C.G. has completed his CD evaluation. CD admits to smoking cannabis daily as an alternative to mental health medications and has stated he will continue to smoke marijuana. The evaluator feels that treatment could be recommended but that, due to his views, C.G. is likely to continue to use marijuana to self-medicate. “C.G. is not in compliance with the CD/Mental health portion of his treatment plan.”
3. “C.G. is in compliance with [the Home and Housing] portion of his treatment plan.”
4. C.G. has not attended office appointments since April 20172 but has maintained regular telephone contact. “C.G. is struggling with compliance…needs to focus on his progress/barriers.”
5. “C.G. currently has pending criminal charges against him for the incident with his step-daughter L.L. C.G. has not reported any additional criminal issues. C.G. is in compliance….”
(DC032)
CPS Mehring summarizes that, “C.G. has made progress on his treatment
plan, however there are significant mental health issues as well as chemical
dependency issues that need to be addressed and determined if he can safely parent
his child.” (DC032)
2 It is unclear what date is intended here since the case didn’t originate until November 2017.
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C.G.’s Response to Petition – June 27, 2018. C.G. took issue with a
number of allegations in CPS Mehring’s affidavit. (DC034) C.G. asserted that he,
“does not use marijuana three to four times a day; and his prior level of use has
been reduced due to the Department’s notice to him that they felt it should. C.G. is
eager demonstrate his ability to parent his child and will do nearly anything he is
asked. Complete abstinence is not medically recommended. The Department’s
‘judgment’ should not be substituted for… his physician.” (Id.)
C.G. also objected to the Department’s “repeated allegations that there are
criminal charges” pending against him. (DC034) “There is no investigation. No
criminal charges have been filed. It is blatantly false and sanctionable for the
Department to continue to state that criminal charges are pending.” (Id.)
At the July 18, 2018 hearing on the petition to extend TLC, the Honorable
Judge Ed McLean presiding, the district court extended TLC without noting or
hearing argument on C.G.’s objections. (DC035)3
Affidavit of CPS Lee – January 9, 2019. CPS Denea Lee swore an
affidavit in support of the Department’s second petition to extend TLC. (DC049)
CPS Lee repeats, verbatim, the erroneous statements that “C.G. currently has
pending criminal charges against him for the incident with his step-daughter L.L.”
3 The Honorable Judge Ed McLean assumed control of the case sometime between May 30, 2018 and July 18, 2018. (DC029, DC035)
11
and “….there is now a criminal investigation pending.” (Id.) With respect to C.G.’s
treatment plan, CPS Lee asserts that C.G. was in compliance with every task of his
treatment plan:
1. C.G. has completed his parenting class, Safe Care service and “has been consistent with his supervised visits with his son…. C.G. is in compliance of the parenting component of his treatment plan, however, needs additional time to demonstrate his appropriate parenting skills.”
2. C.G. has completed his CD evaluation. C.G. admits to smoking cannabis daily as an alternative to mental health medications and has stated he will continue to smoke marijuana. The evaluator feels that treatment could be recommended but that, due to his views, C.G. is likely to continue to use marijuana to self-medicate. C.G. did a complete a mental health evaluation at WMMH on November 9, 2017 and continues to do therapy there. “C.G. is in compliance with the CD/Mental health portion of his treatment plan.”
3. “C.G. has maintained an environmentally safe home. He has an appropriate lock box for his medical marijuana. C.G. is in compliance with [the Home and Housing] portion of his treatment plan.”
4. “C.G. has been consistent with his bi-weekly appointments at the office. C.G. does have phone calls with the Department as well. C.G. is in compliance with [the Communication] portion of his treatment plan.”
5. “C.G. currently has pending criminal charges against him for the incident with his step-daughter L.L. C.G. has not reported any additional criminal issues. C.G. is in compliance with [the Legal/Criminal] portion of his treatment plan.”
(DC049)
CPS Mehring summarizes that, “The father has also made progress on his
treatment plan. While he has attended parenting classes there are still some
concerns regarding his ability to safely parent and focus on J.S.’s needs.” (DC049)
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Permanency Plan Hearing – January 16, 2019. The Honorable Judge
Robert J. Whelan presided over the January 16, 2019 Permanency Plan Hearing.
(DC053)4 CPS Denea Lee testified for the Department. (1/16/2019 Hrg. Tr. 5:6, et
seq.) CPS Lee said the children were doing well in placement with a “kind of
family friend” of both A.G. and C.G. (Id. 7:3-5) CPS Lee testified that visits were
“going really well… J.S. does well at visits with his father.” (Id. 7:22-24)
Hearing on 2d Petition to Extend TLC – January 23, 2019. CPS Denea
Lee testified in support of the petition. (1/23/2019 Hrg. Tr. 5:8 et seq.) CPS Lee
testified C.G. was exercising supervised parenting for two hours once a week. (Id.
7:18-21) CPS Lee said, “There have been a couple of concerns about C.G. kind of
directing play more than focusing on what J.S. needs or what J.S. wants. But,
outside of that, he shows up with appropriate snacks, he does spend time with him.
So, overall, visits go well.” (Id. 7:9-14)
C.G.’s Status Report and Motion – June 24, 2019. C.G. reported, “ On or
about January 24, 2018 the Court ordered the Birthfather’s Treatment Plan.
Although the Birthfather’s circumstances have changed substantially, the
Treatment Plan has not been modified.” (DC063) C.G. then examined the goals
and objectives of the treatment plan, item-by-item, maintaining that C.G. had
4 The Honorable Judge Robert Whelan assumed control of the case sometime between January 9, 2019 and January 15, 2019. (DC046, DC051)
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complied with everyone within the limits created by the Department’s lack of
diligence and good faith. (Id.) C.G. stated he “has had ongoing communication
with his caseworker. C.G. has completed every task assigned him. C.G. has
identified issues which are barriers to reunification. C.G. has not received any
assistance from the Department in resolving those barriers. Repeated requests for
information from the Department have gone unanswered as to what additional
tasks the Department desires so the Department will promote reunification.
C.G. said he “…has never wavered in his diligent pursuit of reunification.
He has attended every visit. He has completed every task. He has met with the
Department every week without fail, person or by telephone (when the CPS is in
attendance, which is not always the case.). A list of strengths and weaknesses has
never been created or disclosed to any party in the case. A list of concerns has not
been created since the Treatment Plan was drafted in January 2018.” (DC063)
After noting, again, that the “pending criminal charges” repeatedly reported
by the Department were spurious, C.G. made his prayer for relief:
Having successfully completed every Treatment Plan task, the Birthfather moves this Court to issue an Order requiring the Department to make the statutorily required reasonable efforts to reunify him with his child. The Department’s obfuscation and dilatory tactics to obstruct this Birthfather’s fundamental and constitutional right to raise his child should not be tolerated any longer.
(DC063)
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Affidavit of CPS Lee – August 20, 2019. CPS Denea Lee swore an
affidavit in support of the Department’s petition to terminate C.G.’s parental rights.
(DC069) In contrast to her January 2019 affidavit, CPS Lee alleges:
1. C.G. has stable housing. Though visits to the home show no evidence of other people living in the home, the Department has received reports of other people living there and of known drug users visiting the home. C.G. has failed this portion of his treatment plan.
2. C.G. has maintained contact with the Department and shows up for his meetings.
3. C.G. has been consistent with visitation and has completed requested parenting classes, but “he has failed to demonstrate any of the skills learned in those classes. C.G. took J.S. to play with another child during an unsupervised visit.
4. C.G. completed his CD evaluation in January 2018, after which the evaluator stated, “It is this writer’s opinion that C.G. would continue to smoke cannabis…. [T]here is no point in recommending treatment for him since he has no desire to change.” Though C.G. has a medical marijuana card and keeps his marijuana in a lock box, CPS Lee “has received calls from individuals who know C.G. and feel his use is more recreational and he smokes more than he is reporting to CPS. C.G. has failed this portion of his treatment plan.”
5. C.G. has demonstrated that he lacks impulse control and reacts without thinking when angry.” When a visitation was cancelled “due to weather and having no one able to help transport J.S…. C.G. took a video of himself driving by the foster parent’s home that same day and posted it on Facebook…. C.G. has failed this portion of his treatment plan.”
6. CPS Lee address the treatment plan task regarding legal or criminal goals or repeat the Department’s persistent allegation that C.G. has criminal charges pending. (DC069)
Termination Hearing – February 13, 2020. Judge Whelan presided over
the Termination Hearing. (DC096) C.G. was present. (DC096) CPS Deana Lee
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testified in conformity with her affidavit in support of the petition to terminate
C.G.’s parental rights. (2/13/2020 Hrg. Tr. (7:5-14:7, 38:1, et seq.)
Clinical Psychologist Susan Day, Ph.D. testified regarding an examination
she performed on C.G. in November 2019. (2/13/2020 Hrg. Tr. 14:23, et seq.) Dr.
Day said she reviewed CPS Baxter’s affidavit from November 2017, CPS Lee’s
affidavit from January 2019, a “biopsychosocial evaluation” performed in January
2018 and a clinical assessment by C.G.’s therapist written in November 2017. (Id.
17:10-20) Dr. Day said C.G. had “a tragic adult mental history. It’s amazing he’s
alive. He had abusive, neglectful parents, and he was placed in an institution at a
very young age, by age 5 or 6. And then throughout his childhood he was either in
residential care or having, you know, some type of behavior problems. He was
beaten severely by his caregivers, essentially.” (Id. 17:21-18:14) Dr. Day asserted
C.G. had spent “about ten years” in prison for burglary. (Id. 18:15-19)
Dr. Day testified that:
C.G. has a lot of things going on in his system from, you know, many brain injuries to emotional dysregulation and the neuro patterns, and then also that he’s smoking pot. So, it’s a bit of a mess to try to figure out what the exact diagnosis is.
(2/13/2020 Hrg. Tr. 19:20-20:3)
Dr. Day testified that C.G. readily admitted to struggling with his temper.
(2/13/2020 Hrg. Tr. 2:11) She administered the MMPI which showed C.G.
16
…produced elevation of scales that pertained to behavioral acting out problems. These people get into trouble with the criminal justice system. They have problems conforming their behavior to society’s expectations. They have, essentially, antisocial kind of characteristics and are interpersonally aggressive.
(2/13/2020 Hrg. Tr. 22:7-14)
Dr. Day testified that, based on her review of the affidavits and other
documents and her examination, she diagnosed C.G. with chronic PTSD, cannabis
use disorder and antisocial personality disorder. (2/13/2020 Hrg. Tr. 24:5) Dr. Day
said that C.G. “has had a substantial amount of head injuries and damage to his
brain…. And that’s something that’s not going to change with treatment, with
substances.” (Id. 24:13-15) Dr. Day said C.G.’s prognosis was, in her opinion,
poor. (Id. 25:9) “[H]e has a great amount of difficulty handling his impulses when
he’s upset, and he’s prone to be aggressive towards himself and other people.” (Id.
24:10-15)
Dr. Day advised the Department “pursue some other options rather than
reunification with C.G…. I saw him as someone who is really well meaning, wants
badly to be with and care for his son…. I don’t view his deficits as something he’s
choosing to do…. I just think he cannot manage himself and, in turn, can’t take
care of a child.” (2/13/2020 Hrg. Tr. 25:18-23) In Dr. Day’s opinion, the condition
that rendered C.G. incapable of parenting J.S. is unlikely to change within a
reasonable period of time. (Id. 26:5-9)
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On cross-examination, Dr. Day disclosed that she had never observed C.G.
parenting J.S., had not reviewed the parenting supervisor’s reports, and that the
November 19, 2019 interview with C.G. – lasting between two and a half and three
hours – was her only contact or interaction with C.G. (2/13/2020 Hrg. Tr. 30:10-
25) Dr. Day declined to testify to any degree of medical certainty that C.G. could
not parent a child, saying only that, “his risk factors make it more likely that the
child would be harmed or neglected.” (Id. 34:7-35:1) On redirect, Dr. Day reversed
course, testifying unequivocally that, in her expert opinion, C.G. does not have the
ability to parent his child. (Id.37:7-12)
CPS Ryan Sas testified regarding his involvement in the case after the
petition for termination of C.G.’s parental rights was filed. (2/13/2020 Hrg. Tr.
67:1 , et seq.)
Birth Father C.G. testified in opposition to the petition to terminate his
parental rights. (2/13/2020 103: , et seq.) C.G. testified that, while the Department
asked him to advise them of anyone else living in the home – which he did – he
had not been told that he was not allowed to have other people living in the home.
(Id. 105:5-8) C.G. testified that he started home visits in March 2019, “They did
two home visits. I did make a video of J.S. being home because I was overly
excited. I did make one wrong comment. They stopped the visits then and there,
and they never started them back up.” (Id. 105:18-22) C.G. admitted making a
18
video when the visitation was cancelled because of weather, but denied he acted
inappropriately:
I wasn’t mad. I was a little frustrated that, once again, during that month, this would be, like, the third time within a month’s period that I didn’t get to see my son on the assumptions that the people could not bring him to my scheduled visit because they didn’t have the vehicles and the transportation. So, I got a little frustrated, which I will admit. I made a video stating how my little car can make it up to Walkerville and a pickup truck with four-wheel drive couldn’t bring my son to a scheduled visit and that was it.
(2/13/2020 Hrg. Tr. 106:17-107:8)
C.G. testified that, for about a year and a half, he had been babysitting two
small children for a friend while she worked:
One, I started babysitting him when he was just shy of one. Right now, he’s two and a half. I’ve been babysitting his sister since she was five and a half. She’s a little over six now. Going on… two years. I have had no problems with them. I’ve been to their doctor’s appointments. I’ve administered their medications. Their mother has actually called me up… and asked me if I would go to the emergency room with her and her son because he was sick…. I get those kids almost the entire weekend…. I take the six-year-old to and from school. I drop her off at school and I pick her up from school every day.
(2/13/2020 Hrg. Tr. 110:1-25)
C.G. conceded that he has problems, but argued that,
I believe that I can be a really good parent. I believe that given time and with the proper help with the proper people…. I ain’t – how do I put this? I’ve come in my life at a kind of a crossroads to whereas you all say I have an anger problem. Well, yes, in some ways I do. I will not deny this. I’ve had it for a good portion of my life…. I’ve held a lot of things in. But in the last two years of me having my son, my son has actually -- how can I put this -- break barriers that I never thought I could do, overcome issues that I never thought I ever would. My
19
anger issues, thanks to my son, has actually come a long way. I don’t punch things anymore. I don’t get mad. And I won’t cuss you out no more. If I get mad or frustrated, I just walk away, go think about it and come back and talk to you later.
(2/13/2020 Hrg. Tr. 112:14-113:8)
Jamie Kish testified on C.G.’s behalf (2/13/2020 Hrg. Tr. 117:1, et seq.) Ms.
Kish testified that she had known C.G. for about a year and had observed him
caring for the two children he babysat. (Id.) “He does it really well, actually. He’s
got more patience for it probably than I do…. My kids are 20 and 22 now, and one
of them’s special needs…. I would actually leave her with C.G.” When asked if
she had ever seen C.G. get angry with the children, Ms. Kesh said, “He gets down
to their level to talk to them. One’s two and one’s six, and depending on the
situation, he’ll get down to their level and he’ll talk to them, and he’ll get them to
stop crying, calm down so that he can understand what they’re wanting or
needing…. And then he’ll talk to them, and it will be over with.” (Id. 19:14-22)
Adam Barnett testified on C.G.’s behalf as well, stating that, he had also seen C.G.
interact well with the friend’s children and that, in his opinion, C.G. was “an
awesome dad.” (Id.122:18, et seq.)
After hearing testimony and the recommendation of the Guardian ad Litem,
the district court took the matter advisement and gave C.G. permission to submit a
brief. (2/13/2020 Hrg. Tr. 126:19-25)
20
Findings of the District Court. In the Order entered July 21, 2021 the
district court recounted the relevant testimony of the witnesses and made the
following pertinent Findings of Fact in support of its decision to terminate C.?G.’s
parental rights:
1. The Department observed that C.G. did not have the ability to incorporate its advice into parenting.
2. Dr. Susan Day testified that C.G. “has issues with controlling his temper and aggressive behavior,” suffers from permanent brain damage and does not have the ability to parent.
3. The Department believes C.G.’s use of marijuana is excessive and alleges C.G. smokes marijuana in the presence of children.
4. The Department alleges C.G. lacked awareness of safety concerns in the home and concerns about inappropriate people being in the home.
5. Overall, C.G.’s treatment plan was unsuccessful because C.G. doesn’t have the ability to parent the child.
6. The condition rendering C.G. unfit to parent is unlikely to change in a reasonable time because of his permanent mental disability.
7. Clear and convincing evidence supports terminating C.G.’s parental rights because:
a. The treatment plan prepared for C.G. was appropriate and approved by the court, was not complied with, and the condition rendering C.G. unfit to parent is unlikely to change in a reasonable time.
(App. A)
STANDARDS OF REVIEW
In abuse and neglect cases, the burden of proof lies with the Department to
prove by clear and convincing evidence all required elements for termination of a
21
parent’s rights. Mont. Code Ann. §41-3-422(5)(a), In re K.L., 2014 MT 28, ¶14,
373 Mont. 421, 318 P.3d 691. The district court, as the fact finder, evaluates the
evidence and may order a termination of the parent-child legal relationship upon
findings established by clear and convincing evidence. Mont. Code Ann. §41-3-
609(1) (emphasis added). “The district court’s findings of fact and conclusions of
law summarize the court’s evaluation as to whether the Department has met its
burden of proof that a preponderance of the evidence is definite, clear, and
convincing.” In re B.J.J., 2019 MT 129, ¶10, 396 Mont. 108, 443 P.3d 488.
On appeal, the Montana Supreme Court reviews the district court’s decision
for an abuse of discretion. In re D.B., 2007 MT 246, ¶16, 339 Mont. 240, 168 P.3d
691. A district court has abused its discretion if an underlying element was
established by findings of fact that were clearly erroneous, or if a conclusion of law
is incorrect. Id., ¶18. 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
review of the record convinces the Court a mistake was made. In re J.B., 2016 MT
68, ¶10, 383 Mont. 48, 368 P.3d 715
A district court has discretion to weigh expert testimony and determine
witness credibility. In re J.M.W.E.H., 1998 MT 18, ¶34, 287 Mont. 239, 954 P.2d
26. The Court does not substitute its judgment as to the strength of the evidence for
that of the district court. In re A.N.W., 2006 MT 42, ¶29, 331 Mont. 208, 130 P.3d
22
619. Rather, the Court reviews the evidence considered by the district court to
determine whether, on the whole, a preponderance of the evidence is definite,
clear, and convincing. In re B.J.J., ¶10. (Emphasis added)
The Court may, at its discretion review an issue not raised before the district
court for plain error if the issue implicates a fundamental right and not reviewing
the asserted error may result in a manifest miscarriage of justice, leave unsettled
the question of fundamental fairness of the proceedings, or compromise the
integrity of the judicial process. State v. Daniels, 2003 MT 247, ¶20, 120, 317
Mont. 331, 77 P.3d 224, In re M.K.S., 2015 MT 146, ¶¶13-14, 379 Mont. 293, 350
P.3d 27.
SUMMARY OF THE ARGUMENT
The Department failed in its responsibility to provide C.G. with an
appropriate treatment plan, did not fulfill its responsibilities under the approved
treatment plan, did not properly modify C.G.’s treatment plan in a timely fashion,
and did not act in good faith to preserve C.G.’s parental relationship with J.S. The
treatment plan proposed by the Department did not identify or take into account
C.G.’s history of severe abuse. The Department passed the case from CPS to CPS,
perpetuating inaccurate and unconstructive observations and without any
meaningful review. In her affidavit in support of a second extension of TLC, CPS
Lee reported C.G. was in compliance with every goal of his treatment plan. C.G.
23
subsequently petitioned for reunification. In response, the Department petitioned
for termination of C.G.’s parental rights, and CPS Lee alleged that C.G. had failed
to comply with every goal of his treatment plan.
After filing the petition to terminate C.G.’s parental rights, the Department
expressed newfound concern C.G. might have emotional or mental deficits that
affected his treatment plan and requested a full psychiatric evaluation. When the
evaluation showed that C.G. suffered mental deficits, the Department did not
withdraw the petition for termination parental rights or propose a modified
treatment plan. C.G. was the victim of a game of “bait and switch” in which, after
completing every task set for him to the best of his ability, he was told his
“compliance” was not compliance and that it was impossible for him to complete
the treatment plan.
The district court abused its discretion when it determined that an
appropriate treatment plan had been approved and that the condition or conduct
rendering C.G. unfit to parent was unlikely to change in a reasonable time. The
court accepted, without question, the Department’s abrupt change of position
regarding C.G.’s compliance with his treatment plan, the Department’s thirteenth-
hour request for a psychiatric evaluation and the Department’s failure to modify
C.G.’s inappropriate treatment plan to accommodate his special needs. At the
termination hearing, the district court failed to recognize that the testimony of the
24
Department’s expert witness and the profile of C.G. she hypothesized were in
direct opposition to the observable history of the case and to C.G.’s documented
behavior and progress toward successfully completing his treatment plan.
ARGUMENT
It is possible that C.G. will be unable to complete an appropriate treatment
plan. That is not the issue before the Court. The issue before the Court is the
Department’s failure to act in good faith to give C.G. the opportunity to understand
what he needed to do and to give him the chance to do it. C.G. asks this Court to
remand this matter with instructions that the Department properly assess C.G.’s
ability to parent his child, accurately identify weaknesses, provide an appropriate
treatment plan and provide the support and guidance necessary for C.G. to
undertake that treatment plan.
Dr. Susan Day may be right in her assessment that C.G. cannot safely parent
his son and that the condition rendering him unfit to do so is permanent. That is not
the issue. The issue before the Court is whether Dr. Day’s short-term assessment
should have been given precedence over the preponderance of clear and
convincing evidence to the contrary that C.G. had no significant history of violence
or criminal behavior, had demonstrated a willingness and ability learn appropriate
behavior, and had appropriately cared for small children for over a year and a half.
C.G. asks this Court to remand this case to the District Court for further inquiry
25
into underlying facts pertaining to C.G.’s mental health, behavior, ability to learn
and demonstrate parenting skills, and the actual extent to which the abuse C.G.
suffered has impacted his ability to parent his son.
1. The Department failed to provide C.G. with an appropriate treatment plan, failed to fulfill its responsibilities under the approved treatment plan, did not properly and timely modify C.G.’s treatment plan and did not act in good faith to preserve C.G.’s parental relationship with J.S. and facilitate reunification.
The first determination the court must make before terminating parental
rights is whether there is an "appropriate" treatment plan in place. In re D.B., ¶31.
“The law places the burden on the State – not the parent – to prove that the
treatment plan is appropriate by clear and convincing evidence. Further, the State
has a duty to act in good faith in developing and executing a treatment plan to
preserve the parent-child relationship and the family unit.” In re D.B., ¶33
Montana law defines a treatment plan as “a written agreement between the
department and the parent or guardian or a court order that includes action that
must be taken to resolve the condition or conduct of the parent or guardian that
resulted in the need for protective services for the child. The treatment plan may
involve court services, the department, and other parties, if necessary, for
protective services.” Mont. Code Ann. §41-3-102(30)
Montana has “rejected any single, generalized definition of an ‘appropriate’
treatment plan, ‘because no bright line definition is possible in light of the unique
26
circumstances of each case.’" In re D.B., ¶32. (Quoting In re A.N., 2000 MT 35,
¶26, 298 Mont. 237, 995 P.2d 427). Instead, the Court considers a number of
factors to determine whether a treatment plan is appropriate under the
circumstances, “including (1) whether counsel represented the client, (2) whether
the parent stipulated to the plan, and (3) whether the plan addresses the particular
circumstances facing both the parent and the child.” In re A.A., 2005 MT 119, ¶21,
327 Mont. 127, 112 P.3d 993.
The fact the parent is represented by counsel and stipulates to the plan does
not, however, establish that the plan was appropriate. Matter of Custody and
Parental Rights of M.M., (1995) 271 Mont. 52, 57, 894 P.2d 298, 301. An
“appropriate” treatment plan must also take into consideration “the particular
problems facing both the parent and the child.” In re A.N., ¶27. The State must
show by clear and convincing evidence that, for example, the treatment plan was
customized to meet the needs of a disabled parent. In re J.B.K., 2004 MT 202, ¶26,
322 Mont. 286, 95 P.3d 699.
“The State’s burden to ensure appropriateness and [its] duty to act in good
faith does not end once the court has approved a treatment plan.” In re D.B. ¶33.
Once in place, treatment plan must be modified if a particular problem with a
parent or child arises after the plan was approved by the court. (“There must be
clear and convincing evidence which shows that the plan either anticipated the
27
disabled parent’s or child’s special needs or was modified to address the special
needs after they were diagnosed.” In re D.B., ¶ 35).
a. The Department conceded the original treatment plan was not appropriate when it requested the district court vacate the termination hearing in order to have C.G. undergo a psychiatric evaluation.
The Department bears the burden of proving by clear and convincing
evidence a treatment plan is appropriate. In re A.N., ¶24 (citing Matter of R.H.
(1991), 250 Mont. 164, 169, 819 P.2d 152, 155). Whether a treatment plan is
appropriate is a question of fact dependent upon the totality of the circumstances of
each case. In re A.N. ¶26. Relevant considerations include, inter alia, whether the
parent had the assistance of counsel, whether the parent stipulated to the treatment
plan, and whether the treatment plan is reasonably tailored to remedially address
the particular circumstances, conditions, problems, and needs of the parent and
child that combined to cause the child to be abused, neglected, or in danger of
abuse or neglect.A.N., ¶¶26-27, In re C.J.M., 2012 MT 137, ¶15, 365 Mont. 298,
280 P.3d 899.See also Mont. Code Ann. §41-3-102(34), §41-3-423(1), §41-3-443,
and §41-3-609.
In this case, Dr. Susan Day was asked to evaluate C.G. when, after the
petition for termination of parental rights had been filed, the Department became
concerned about whether C.G. had fully understood his obligations under the
parenting plan. Dr. Day testified at the termination hearing that C.G. had
28
experienced extreme emotional and physical abuse as a child in state care
including permanent brain damage. In light of Dr. Day’s diagnosis, it is axiomatic
that the “standard” treatment plan provided for C.G. in January 2017 was not
“reasonably tailored to remedially address” C.G.’s “particular circumstances,
conditions, problems, and needs.” When the Department proceeded with
termination of C.G.’s parental rights for “failure to complete an appropriate, court-
approved treatment plan” it failed in its responsibility to C.G. and to J.S.
b. The Department did not actively and effectively communicate concerns about his treatment plan to C.G. until after the petition to terminate his parental rights was filed.
The Department never effectively communicated its concerns with C.G.
When C.G.’s CD evaluator said that no treatment was recommended, there were
two appropriate responses available to the Department. The Department could have
contacted C.G.’s prescribing physician to determine whether he was using his
medical marijuana appropriately, or the Department could have simply told C.G.
that they considered his marijuana use to be an impediment to reunification with
his son. Instead, the Department simply noted the recommendation and took note
of gossip from acquaintances that C.G. was not – in the opinion of those
acquaintances – using marijuana appropriately.
When the Department had concerns about C.G.’s ability to appropriately
interact with his child, it could have recommended one of several counseling
29
alternatives to help C.G. understand and address their concerns. Instead, they
described C.G.’s visits as “going very well” and expressed mild concerns about the
interactions. When the Department had concerns about the people in C.G.’s home,
it again relied on gossip and rumors rather than make those concerns clear to C.G.
Nowhere was the Department’s communication failure more apparent than
in its ongoing failure to properly investigate whether C.G. had a criminal
investigation or charges pending. Despite repeated requests, the Department
maintained this false allegation for over two years.
Finally, and inexplicably, the Department failed to notice C.G.’s significant
mental and emotional deficits beyond requiring he attend anger management. It
was only after Dr. Day submitted her evaluation – and while the petition to
terminate parental rights was pending and a CPS met with C.G. to try to
communicate the requirements of his treatment plan to him that the Department
acknowledge that he had difficulty understanding the treatment plan as it was
presented to him two years earlier.
The Department’s failure to identify and accommodate C.G.’s special needs
arose solely due to poor communication by the Department and was in no C.G.’s
fault. It constitutes a violation of good faith and deprived C.G. of his right to an
appropriate treatment plan.
30
c. The Department did not take steps to modify C.G.’s treatment plan to accommodate his unique challenges even after Dr. Day’s evaluation.
It was only after filing the petition to terminate parental rights that the
Department took any steps to improve communication with C.G.’s regarding his
treatment plan. Unfortunately, those steps were limited to bringing C.G. into the
office and going over the treatment plan with him item by item. The fourth CPS on
the case, Ryan Sas came on after the petition for termination of parental rights was
filed. (2/13/2020 Hrg. Tr. 67:14-24) In October 2019, CPS Sas met with C.G. and
an advocate the Montana Independent Living Program and , “Alongside of filling
out the appropriate release forms, the three of us would sit and work through and
kind of address the treatment plan component by component in a way to facilitate
the understanding, and if I overspoke or misspoke that the third party would be
there to help relay that information to Chris in a way that he can understand.” CPS
Sas said he told C.G. that despite his previous failure to understand the treatment
plan, “he was going to be judged on how he performed with the treatment plan….”
(Id. 70:19-23) It was only after this meeting facilitated that CPS Sas became
concerned about C.G.’s mental capacity and “felt that the most appropriate step
would be to make a referral to have an assessment to rule out the possibility of any
sort of cognitive deficit that could prevent Chris from understanding his treatment
plan.” (Id. 76:19-23)
31
The Department did not testify to making any modification to C.G.’s
treatment plan as a result of its discovery that he had trouble understanding it, or as
a result of Dr. Day’s evaluation. Instead, the Department told C.G. to let them
know if there was something he didn’t understand. This stunning lack of
compassion is akin to advising a deaf person to let you know what he or she didn’t
hear. How, is a person with cognitive deficits supposed to know whether or not he
or she fully understands a complex provision in a treatment plan. The
Department’s failure to proactively assess C.G.’s treatment plan and modify it to
accommodate his deficits was a violation of its responsibility to act in good faith.
2. The District Court committed reversible error when it determined that C.G.’s treatment plan was appropriate at the time the petition to terminate his parental rights was filed and that the condition rendering C.G. unfit to parent was unlikely to change in a reasonable time.
Mont. Code Ann. §41-3-609(1)(f) provides that where, as in this case, the
child has been adjudicated a youth in need of care, termination of parental rights
requires the district court to find by clear and convincing evidence that: 1) the
parent failed to comply with, or failed to succeed at, an appropriate, court-ordered
treatment plan; and 2) that the conduct or condition rendering the parent unfit is
unlikely to change within a reasonable time.
Quoting Colorado’s interpretation of the act upon which Montana’s Parent-
Child Legal Relationship Act of 1981 was based, this Court has held, "The
32
termination of parental rights is a decision of paramount gravity, and the state must
exercise extreme caution in terminating such rights . . . Hence, strict compliance by
the trial court with the appropriate standards for termination of a parent-child
relationship is an absolute necessity . . . A trial court must adequately address and
resolve each specific requirement for termination . . . Such detailed resolution of
all issues essential to a decree of termination substantially lessens the risk that a
parent-child relationship will be severed erroneously." In re R.B., Jr., 217 Mont.
103. (Quoting People in Interest of M.C.C. (Colo.App.1982), 641 P.2d 306, 308).
The Court is asked to consider whether the district court correctly
determined the State had met its statutory obligation to show, by clear and
convincing evidence, that the treatment plan adopted in this case was appropriate
and that the conduct or condition rendering a parent unfit was unlikely to change
within a reasonable time.
a. The district court’s finding of fact that an appropriate treatment plan was approved was clearly erroneous.
Whether a treatment plan is appropriate is a question of fact dependent upon
the totality of the circumstances of each case. In re A.N., ¶26. The particular
problems facing both the parent and the child should be considered in determining
the appropriateness of a treatment plan. In re M.M., (1995) 271 Mont. 52, 56, 894
P.2d 298, 301. The Court has consistently held that a parent who does not object to
a treatment plan waives the right to argue on appeal that the plan was not
33
appropriate. In re X.B., 2018 MT 153, ¶24, 392 Mont. 15, 420 P.3d 538. In this
case, however, C.G. did repeatedly question the appropriateness of the treatment
plan at the termination hearing, challenging the Department’s interpretation of the
chemical dependency requirement, the housing requirement, the parenting
requirement and the communication requirement despite maintaining C.G. had
successfully completed his goals under the plan. These implicit objections are
sufficient to place the matter in the Court’s consideration.
The question here is not whether the Department or the district court
believed the treatment plan was appropriate at the time it was approved. The
concern is that, by the conclusion of the termination hearing, the testimony of Dr.
Susan Day and CPS Ryan Sas had established clear and convincing evidence that
C.G. suffered significant deficits. While the evidence may not have clearly
established for the district court that the treatment plan was inappropriate, it put the
question in dispute. The district court’s finding that the Department had shown, by
clear and convincing evidence, that an appropriate treatment plan was approved
was clearly erroneous.
b. The district court gave undue weight to the opinion of the expert witness in light of the nature and extent of her case review, her lack of deep
34
familiarity with the case and the strong evidence that her expert opinion was clearly erroneous.
An expert witness is allowed to rely upon the report and opinions of other
doctors, hearsay and facts he or she has garnered through independent
investigation. Matter of G. S.(Mont. 1985), 698 P.2d 406, 409-410, 42 St. Rep.
451, 455, Azure v. City of Billings (1979), 182 Mont. 234, 255, 596 P.2d 460, 471-
472, State v. Hallam (1978), 175 Mont. 492, 501, 575 P.2d 55, 61. The credibility
of the source of the opinion goes to its weight and not its admissibility. Azure, 596
P.2d at 472.
Dr. Susan Day testified that, based on her examination and review of the
records provided by the Department, C.G. would have a history of violence,
defiance of authority and criminal behavior. Therefore, in her opinion, the risk of
having C.G. parent a child was simply unacceptable. Dr. Day’s expert opinion
would be compelling if her behavioral profile was consistent C.G.’s history. But it
was not. Dr. Day reported that C.G., who was removed from abusive parents and
spent his childhood in a state home where he suffered additional abuse, had spent
10 years in prison for burglary. There was no report of crimes of violence. There
was a disputed allegation that C.G. pushed his stepdaughter into a desk. The
Department repeatedly – and falsely – alleged that a criminal investigation was
underway and criminal charges against C.G. were pending. It was reported early in
the case that C.G. would harm himself and blame others when he did so. While
35
some of these allegations, if true, give cause for concern, there was no evidence
that C.G. had the extensive history of criminal behavior, violence toward others or
defiance of authority predicted by Dr. Day.
On the contrary, C.G. consistently cooperated with all requests by the
Department, completed all evaluations and classes, followed treatment
recommendations and changed his lifestyle to accommodate concerns brought to
his attention. CPS Lee described his worst reaction to bad news as “upset.” She did
not testify that he flew into a rage, threatened or offered violence or acted out. The
most she said was that he “raised his voice.”
CPS Lee, who admitted she had observed few visitations, said there were
concerns about C.G.’s ability to interact with J.S. “on his own level.” Yet there was
significant testimonial evidence that C.G. had been an effective care provider for
two children – ages 6 years old, and 2 years old – for over a year and half. He took
them to school, doctor’s appointments and, according to the testimony of two
witnesses, was incredibly patient and effective at communicating with each child at
his or her level.
Dr. Day had no knowledge of C.G.’s care for these children. When
informed, she did not indicate an interest in whether C.G. behaved appropriately,
but simply said she would be concerned about the children’s safety. This succinctly
illustrates the myopic nature of Dr. Day’s expert opinion. It was informed only by
36
two affidavits, an early evaluation, a brief interview with C.G., and Dr. Day’s
experience with other patients. It was poorly founded and completely at odds with
all observable evidence of C.G.’s behavior. The district court’s failure to properly
weigh Dr. Day’s expert witness testimony against the strong, consistent evidence
to the contrary presented by lay witnesses from the Department as well as those
testifying on C.G.’s behalf was clearly erroneous.
3. The district court’s order terminating C.G.’s parental rights was plain error.
The Court may, at its discretion, review an issue not raised before the district
court for plain error if the issue implicates a fundamental right and not reviewing
the asserted error may result in a manifest miscarriage of justice, leave unsettled
the question of fundamental fairness of the proceedings, or compromise the
integrity of the judicial process. State v. Daniels, ¶20, In re M.K.S., ¶¶13-14. The
Court employs plain error review sparingly, on a case-by-case basis. In re J.S.W.,
2013 MT 34, ¶16, 369 Mont. 12, 303 P.3d 741. The circumstances of this case
merit plain error review at the Court’s discretion.
CONCLUSION
In In re D.B. the birth mother argued that her treatment plan was
inappropriate because it was not “not subsequently modified in writing to
acknowledge her ‘particular problems,’” 2008 MT 272, ¶33. The Montana
Supreme Court implicitly recognized that modification of the treatment plan was
37
necessary but held that, “While C.B.'s treatment plan was not amended in writing
after a neuropsychological evaluation revealed her cognitive difficulties, there was
ample testimony that the counselors assisting C.B. were aware of her diagnoses
and modified their methods of assistance in recognition of her difficulties.” In re
D.B., ¶37.
In reviewing this case, one cannot help but wonder, “What if?” What if the
Department had recognized the origin and extent of emotional and physical abuse
C.G. had suffered prior to Dr. Day’s evaluation? There can be no doubt such
knowledge would have resulted in a profoundly different treatment plan or – at a
minimum – a change in the Department’s “methods of assistance,” and that the
level of supervision and assistance offered by the Department would have been
much greater.
It is unfortunate that the Department was unable to keep a single CPS on
C.G.’s case during the removal period, forcing 4 different workers to try to
familiarize themselves with C.G. and J.S., assess the case history and evaluate
C.G.’s progress on the treatment plan while continuing to manage their other cases.
Department continuity might have resulted in more timely identification of C.G.’s
difficulties and take steps to modify his treatment plan to address those difficulties.
The Department’s incomplete, inaccurate and inconsistent communication, and its
failure to take meaningful action – even after filing a petition to terminate C.G.’s
38
parental rights and learning of his deficits – deprived C.G. of an effective treatment
plan and made success all but impossible.
It is also unfortunate that this case happened to arise during a time of judicial
transition resulting three different district court judges handling it over a two-year
period. Judicial continuity might have helped the district court recognize the
glaring deficiencies in C.G.’s treatment plan. Judicial continuity might also have
helped the court better recognize the wide disparity between Dr. Day’s expert
opinion and C.G.’s progress in working his treatment plan over the previous two
years, despite the plan’s shortcomings. If there had been judicial continuity, the
court likely would have ordered the Department to prepare and present a modified
treatment plan to better address C.G.’s unique needs. It’s failure to do so was
reversible error.
.
Respectfully submitted this November 21, 2021.
____________________________ Gregory D. Birdsong
Birdsong Law Office P.O. Box 4051 Santa Fe, NM 87502 406-529-6988 [email protected]
39
CERTIFICATE OF COMPLIANCE
Pursuant to Rule 11 of the Montana Rules of Appellate Procedure, I certify
that this principal brief is printed with a proportionately spaced Times New Roman
text typeface of 14 points; is double-spaced except for footnotes and for quoted and
indented material: and the word count calculated by Microsoft Word for Windows
is not more than 10,000 words, not averaging more than 280 words per page,
excluding certificate of service and certificate of compliance.
______________________________ Gregory D. Birdsong
*
CERTIFICATE OF SERVICE
I, Gregory Dee Birdsong, hereby certify that I have served true and accurate copies of the foregoing Brief - Appellant's Opening to the following on 11-21-2021:
Chad M. Wright (Attorney)P.O. Box 200147Helena MT 59620-0147Representing: C. E. G.Service Method: eService
Eileen Joyce (Govt Attorney)155 W. Granite StreetButte MT 59701Representing: State of MontanaService Method: eService
Kathryn Fey Schulz (Govt Attorney)215 North SandersP.O. Box 201401Helena MT 59620-1401Representing: State of MontanaService Method: eService
Austin Miles Knudsen (Govt Attorney)215 N. SandersHelena MT 59620Representing: State of MontanaService Method: eService
C. E. G.1305 Stuart AvenueButte MT 59701Service Method: E-mail DeliveryE-mail Address: [email protected]
Electronically Signed By: Gregory Dee Birdsong
Dated: 11-21-2021