In the Matter of AK and KG

In the Matter of AK and KG, 2015 MT 116 (Apr. 28, 2015) (Baker, J.; McKinnon, J. dissenting) (4-1, aff’d)

Issue: (1) Whether the district court abused its discretion in terminating Father’s parental rights; and (2) whether the district court erred in concluding DPHHS complied with its statutory duty to provide reunification services.

Short Answer: (1) No, and (2) no.


Facts: After receiving reports that Father and Mother were putting their children at risk of abuse or neglect, a DPHHS child protection specialist prepared a 30-day “present danger plan” to protect the children. After determining the plan was insufficient, DPHHS petitioned for emergency protective services, adjudication as youths in need of care, and temporary legal custody. The children were placed with their grandmother while the department prepared treatment plans for both parents.

By December 2012, Mother was reunited with both children. Around the same time, the department discontinued visits between Father and AK on the advice of the children’s therapist. Six months later, AK was sleeping regularly and no longer demonstrating fear, anxiety, or aggressive behaviors.

Over the next two years, Mother maintained her relationship with the children and Father struggled to maintain his. In January 2014, DPHHS filed for termination of Father’s parental rights. In February 2014, after a hearing, the district court suspended visits between Father and his children.

Procedural Posture & Holding: In April 2014, the district court held a termination hearing. After hearing conflicting testimony, the district court found that Father had not complied with his treatment plan despite the department’s efforts to restore the parent-child relationship. The court found that neither therapist who recommended continued supervised contact between Father and A.K. had accounted for the psychological damage to A.K. following visits with Father or for Father’s inability to understand how his conduct affected A.K. The court held that clear and convincing evidence supported terminating Father’s parental rights. Father appeals, and the Supreme Court affirms.

Reasoning: (1) Father contends DPHHS favored Mother and was biased against him. He argues that DPHHS was required to dismiss the case against Mother six months after reports of abuse or neglect stopped, but did not do so to ensure she had an attorney to protect her parental interest against Father. Although DPHHS could have sought dismissal against Mother, the statute did not require that in these circumstances, and the record does not support Father’s contentions.

Father admits he did not complete every task in his treatment plan, but argues he completed those tasks that were necessary. The district court concluded that Father refused to accept responsibility for the removal of his children and had not made the changes necessary to have a healthy relationship with them. The record supports the district court’s finding that Father did not comply with his treatment plan.

Father points to the testimony of two expert witnesses who did not believe termination was appropriate to support his contention that the district court erred in finding his parental unfitness was unlikely to change in a reasonable time. Conflicting evidence does not preclude a finding that clear and convincing evidence supports a finding of fact. The district court found that neither expert accounted for the psychological damage to AK from Father’s visits, or Father’s inability to understand how his conduct affected AK.

(2) DPHHS has a statutory obligation to make reasonable efforts to reunite families it has separated. § 41-3-423(1), MCA. The district court found that the department made such efforts, and determined Father’s own behavior resulted in the unsuccessful reinstatement of visits and the ultimate failure of his treatment plan.

Justice McKinnon’s Dissent: Justice McKinnon does not agree that the department acted in good faith in developing and executing Father’s treatment plan, as the views the record as demonstrating that DPHHS’s aim was to protect Mother by removing Father from the children’s lives. The case against Mother should have been dismissed, and a parenting plan action should have been the next step. Instead, the department found itself an advocate in a custody battle, and that it viewed termination – not reunification – as the most likely outcome.