DA 19-0231

IN THE SUPREME COURT OF THE STATE OF MONTANA

2020 MT 64

IN THE MATTER OF:

A.B.,

 A Youth in Need of Care.

APPEAL FROM: District Court of the Fourth Judicial District,

In and For the County of Missoula, Cause No. DN-16-159

Honorable John W. Larson, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Shannon Hathaway, Montana Legal Justice, PLLC, Missoula, Montana

For Appellee:

Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant 

Attorney General, Helena, Montana

Kirsten Pabst, Missoula County Attorney, Diane Conner, Deputy County 

Attorney, Missoula, Montana

Submitted on Briefs: January 22, 2020

 Decided: March 24, 2020

Filed:

__________________________________________

Clerk

'ig-6--4c

03/25/2020

Case Number: DA 19-0231
2

Justice Beth Baker delivered the Opinion of the Court. 

¶1 R.B. (“Mother”) appeals the order of the Fourth Judicial District Court, 

Missoula County, terminating her parental rights to her son, A.B. Mother argues that the 

District Court erred in concluding that her conduct was unlikely to change within a 

reasonable time and in finding that termination of parental rights, rather than guardianship, 

was in A.B.’s best interests. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 On October 5, 2016, probation officers arrived at the house of A.B.’s birth father 

(“Father”) to arrest him for a probation violation. The officers reported to the 

Department of Child and Family Services (“Department”) that Father1and Mother’s infant 

son, A.B., was present during drug use, that Mother had used morphine that day, and that 

Mother had a loaded syringe on the bathroom counter. The Department determined that 

A.B. was in immediate danger due to both parents demonstrating “out of control behavior 

due to their addictive drug use” and because A.B. was an “extremely vulnerable child due 

to his age and dependence on his caregivers to meet all of his basic needs.” A.B. was 

eleven months old at the time. Mother stated that her mother, D.F. (“Grandmother”), could 

care for A.B. and that she had left A.B. with Grandmother in the past. The Department 

implemented a 30-day voluntary out-of-home protection plan that placed A.B. with his

Grandmother and required Mother to submit to weekly urinalysis (“UA”) testing, obtain a 

1 Father relinquished and the District Court terminated his parental rights on February 6, 2019. 

Because termination of Father’s parental rights is not at issue in this appeal, we discuss the facts 

relevant to the termination of Mother’s parental rights. 
3

chemical dependency evaluation, and maintain contact with the investigating Child 

Protection Specialist (“CPS”). 

¶3 On November 4, 2016, the Department filed a petition for adjudication of youth in 

need of care and a petition for temporary legal custody. Mother was admitted to Family 

Drug Treatment Court (“Treatment Court”). The Treatment Court ordered Mother to 

obtain a chemical dependency evaluation; abstain from using alcohol or unprescribed 

drugs; and submit to random UA testing. The District Court adjudicated A.B. a youth in 

need of care, granted the Department temporary legal custody, approved interim treatment 

plans, and ordered Mother to complete UA testing. Mother obtained a chemical 

dependency evaluation on December 27, 2016. The evaluator recommended inpatient 

treatment due to Mother’s long-term use of morphine and methamphetamine. The 

Treatment Court assisted Mother in applying to Recovery Center Missoula, a chemical 

dependency center. 

¶4 At a status hearing in January 2017, Grandmother reported that Mother was doing 

well and that A.B. interacted very well with her. The court noted that Mother had missed 

several UAs and that those she provided were consistently positive for methamphetamine. 

At a status hearing in April 2017, Grandmother reported that Mother was undergoing 

inpatient treatment, had detoxed, and was actively participating in the treatment.

Grandmother also reported that A.B. was doing well. 

¶5 The District Court approved Mother’s treatment plan on May 3, 2017. The 

treatment plan required Mother to complete parenting classes; regularly attend supervised 

and unsupervised visits with A.B.; attend addictions counseling and follow the
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recommendations of the chemical dependency evaluator; not use or possess any alcohol or

unprescribed drugs; submit to random substances testing; and avoid exposing A.B. to any 

alcohol or drugs.

¶6 The court extended temporary legal custody to the Department and would do so 

throughout the proceedings. Between May and July 2017, Mother was discharged from 

inpatient treatment for noncompliance. She began using methamphetamine again and 

missed UAs. The District Court emphasized that it was important for Mother to visit A.B. 

despite her relapse. Mother then began another outpatient treatment program but stopped 

participating within a month. Mother was suspended from Treatment Court due to missed 

UA testing and failure to appear for a hearing. In mid-August 2017, Mother stopped seeing 

Diane McLaverty, her therapist at Courage to Change Missoula. In September 2017, 

Mother reported she had reengaged in treatment and was visiting A.B. However, Mother 

had not submitted to UAs and the District Court warned her that she needed to commit to 

treatment and visits by the end of October 2017. A.B.’s Court Appointed Special Advocate 

(“CASA”) reported that Grandmother believed Mother was still using illegal drugs. 

Grandmother continued facilitating visits with Mother and A.B. for some time, but by late 

September, Mother stopped attending visits.

¶7 The Department filed a Motion to Approve Permanency Plan on November 9, 2017. 

In the motion, the Department indicated that A.B. was placed with Grandmother, that he 

was well-bonded, had no special needs, and was happy and excited when he saw Mother. 

The Department also stated that Mother no longer was completing UAs, was still using 

substances, and saw A.B. only occasionally. The Permanency Plan called for reunification 
5

with Mother if she successfully completed the treatment plan within a reasonable time and 

if reunification was in A.B.’s best interests. It simultaneously called for adoption if 

reunification was not in the best interests of A.B. The Permanency Plan did not mention 

guardianship as an option.

¶8 On January 11, 2018, the Department reported that Mother was again visiting A.B. 

regularly. The Department informed the court that A.B. had been out of his parents’ care 

for over fifteen months, giving rise to a presumption that termination was in A.B.’s best 

interests, but the Department requested an exception to the presumption for “two or, at 

most, three months to see if we can work with the mother and see if we can give some 

additional time to work on reunification.” The District Court granted the exception and 

acknowledged that A.B. was doing well in his placement, was not suffering, and that the 

extension would give Mother an “extra opportunity” for reunification.

¶9 Mother continued to test positive for methamphetamine. Mother’s counselor again 

recommended she attend inpatient treatment. At a March 2018 status hearing, the 

District Court encouraged Mother to engage in her treatment plan and consider all inpatient 

treatment opportunities. Grandmother stated that she believed Mother was using drugs 

but was doing well with her visits and had continued to participate in parenting coaching. 

The District Court stated at the status hearing that its inclination was to “go to a 

guardianship in this thing” and that guardianship would be an incentive for Mother to 

“fully perform all of the parenting obligations that are outlined.”

¶10 Mother continued to test positive for methamphetamine through July 2018. A 

second chemical dependency evaluation observed that despite Department intervention and 
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the offered outpatient treatment, Mother continued to use drugs. The evaluation concluded 

that if Mother did not participate in a structured treatment environment, she would remain

at high risk to continue using. The counselor recommended that Mother complete inpatient 

treatment, which she did not do. 

¶11 On August 22, 2018, the Department filed a petition to terminate parental rights 

(“Termination Petition”) requesting permanent legal custody of A.B. with the right to 

consent to adoption. The Department asserted that Mother had continued to use 

methamphetamine and failed to seek inpatient chemical dependency treatment; that 

Mother’s conduct or condition rendered her unfit or unwilling to provide adequate parental 

care to A.B.; and that the conduct or condition was unlikely to change in a reasonable 

amount of time. It requested that A.B.’s Permanency Plan be amended to include adoption 

by Grandmother and stated that the amended plan would be in A.B.’s best interests. The 

Department asserted that adoption would ensure that A.B.’s physical, emotional, and 

medical needs would be met in the future. The Department did not support guardianship, 

stating it would “undermine the idea of permanency for [A.B.], given his very young age 

and circumstances.” All other parties voiced objections to the Termination Petition, as well 

as to the Department’s proposed amended plan. 

¶12 In October 2018, the CASA reported that A.B. continued to do well in 

Grandmother’s care and that there were no concerns for A.B.’s physical or mental 

development. The CASA stated, “This CASA believes reunification with the child is not 

in the child’s best interest.” The CASA reported concern that the Department would 

terminate Mother’s parental rights and believed it was in A.B.’s best interests to remain 
7

with his Grandmother under guardianship, noting it would mean “hope” for Mother’s 

recovery.

¶13 Mother continued to avoid UAs and test positive for methamphetamine throughout 

the following months. Her counselor again upgraded her level of recommended chemical 

dependency treatment from outpatient to inpatient. She was placed on probationary status 

with the Treatment Court due to noncompliance and ultimately did not attend inpatient 

treatment.

¶14 Mother, Father, and Grandmother filed a joint brief in support of a private 

guardianship, asserting that Grandmother could maintain a positive and safe relationship 

between A.B. and Mother as she had done for two years.

¶15 The District Court conducted the termination hearing on February 6, 2019. The 

court heard testimony from Mother; Darren Ashby, a licensed addictions counselor; CPS 

Kate Larcom, Child and Family Services Child Welfare Manager; Candace Miera, 

Licensed Addictions Counselor with the Recovery Center; Rylie Shade, visit coach with 

Evolution Services; CPS Miranda Sanderson; Mother’s sister; and Grandmother. 

¶16 Mother testified that A.B. had been living and doing well in Grandmother’s care for 

two years and that she signed a consent for Grandmother to have guardianship of A.B. She 

acknowledged that she continued to use methamphetamine and only submitted one clean 

UA sample in May 2018. She stated that she did not “believe inpatient [treatment] would 

be the right fit” for her; she was doing the work she was supposed to do, just “not in the 

time frame that was allotted.” Mother stated that she preferred guardianship over 
8

termination, that she and Grandmother co-parented very well, and that if Grandmother was 

unavailable to parent, then Mother’s sister would fill in that role as co-guardian. 

¶17 Rylie Shade, a visit coach at Evolution Services who worked with Mother to 

improve her parenting skills, stated that Mother attended nearly all of her supervised visits 

with A.B. and showed great progress with her parenting. Shade believed that Mother was 

able to meet A.B.’s emotional and physical needs and that they had a “very special bond.” 

She testified that if Mother reported that she was using, she would not go to Grandmother’s 

house to be around A.B. She testified that she and Mother had many conversations 

regarding her use of methamphetamine and how that could affect A.B. She testified that a 

large concern for her was that Mother needed to see A.B. more consistently, and that when 

Mother was using, she would not visit her son. She believed a guardianship would be in 

A.B.’s best interests instead of termination. She testified that A.B. and Grandmother had 

a strong bond and that Grandmother would put A.B.’s needs first, even if that contrasted 

with Mother’s wishes.

¶18 Regional CPS Supervisor Kate Larcom testified that she had supervised the social 

workers assigned to Mother’s case since December 2016 and participated in ongoing 

decision-making meetings concerning A.B.’s Permanency Plan. Based on her experience 

and discussions with the CPSs, the Department determined that it was in the best interests 

of A.B. to proceed with adoption in the Permanency Plan. CPS Larcom testified that when 

the Department determined that adoption was preferable to guardianship, it assessed 

substantial relationships, A.B.’s age, A.B.’s wishes, the parents’ wishes, the need for a 

subsidy, and the needs of A.B., as outlined in the CFS manual. According to CPS Larcom, 
9

adoptions are more permanent than guardianships and do not leave A.B.’s placement open 

to litigation to dissolve a guardianship, thus providing A.B. with stability. Adoptions also 

have the potential to provide financial assistance that guardianships do not. CPS Larcom

testified that she had experience where youths were involved in guardianships. She stated 

that she had seen how litigation surrounding guardianships impacts children and that foster 

children often feel they have little voice in their permanency plans. CPS Larcom testified 

that if proceedings to dissolve a guardianship are initiated, the Department comes back into 

the picture and further disrupts the children’s lives with renewed evaluations and 

interference. 

¶19 The Department believed that adoption was in A.B.’s best interests because Mother 

had ample opportunities to complete her treatment plan and had not been successful.

CPS Larcom testified that the parents’ and Grandmother’s focus for requesting 

guardianship was based on Mother’s needs and not necessarily A.B.’s best interests. CPS 

Larcom explained that Grandmother expressed that she was concerned that termination, 

rather than guardianship, would impact Mother’s mental health and she feared Mother 

would overdose. According to the Department, “what’s in the child’s best interests is 

different than what the family feels is in the child’s best interests. And I believe 

it’s – they’re looking out for what’s in the family’s best interests, which is absolutely 

within their role and that’s where the – discrepancy is.” According to CPS Larcom, if the 

Department had the facts to support a guardianship, it already would have done so.

¶20 CPS Miranda Sanderson, the social worker assigned to A.B.’s case since 2017, also 

testified at the termination hearing and agreed with CPS Larcom. CPS Sanderson
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explained that Mother failed to complete her treatment plan and, in her opinion, would not

make the required changes in a reasonable period of time to address her methamphetamine 

use and to safely parent A.B. She also believed that the motivation behind guardianship 

was concern for Mother and not for A.B.’s best interests. She further testified that granting 

a guardianship would continue to enable Mother and reward her for not following the 

treatment plan. She testified that she saw no motivation from Mother to parent full-time 

because of her drug use. She testified that she believed A.B. needed permanency, and 

adoption by Grandmother was the only form of permanency she recommended because 

there were too many unknowns with guardianship.

¶21 Grandmother and Mother’s sister testified in favor of guardianship. Grandmother 

stated that it was important for Mother to continue to try to parent, and that was why 

guardianship was preferable to termination of Mother’s parental rights. Grandmother 

testified that Mother and A.B. were absolutely bonded and Mother “truly has A.B.’s best 

interests at heart despite the fact that she is encompassed with addiction.” She did not think 

that Mother would subject A.B. to litigation in a guardianship. She testified that she had 

already provided A.B. with a sense of permanency and would continue to do so. She said

that she was financially capable of supporting him, and she wanted a guardianship instead 

of termination of Mother’s rights. 

¶22 On March 18, 2019, the District Court issued its findings of fact, conclusions of law,

and order terminating Mother’s parental rights and granting the Department permanent 

legal custody with the right to consent to adoption. The court found that the Department 

made reasonable efforts to finalize the Permanency Plan, including developing treatment 
11

plans for Mother and offering her evaluations and services. The court found that Mother

was still using methamphetamine, had twenty-one months to comply with her courtapproved treatment plan, and did not comply. The court found that the excessive use of 

methamphetamine affected Mother’s ability to care and provide for the child and that it 

was unlikely to change within a reasonable time. 

STANDARDS OF REVIEW

¶23 This Court reviews a district court’s termination of parental rights for an abuse of 

discretion. In re R.J.F., 2019 MT 113, ¶ 20, 395 Mont. 454, 443 P.3d 387 (citing In re A.S., 

2016 MT 156, ¶ 11, 384 Mont. 41, 373 P.3d 848). This Court will not disturb a district 

court’s decision on appeal unless “there is a mistake of law or a finding of fact not 

supported by substantial evidence that would amount to a clear abuse of discretion.” 

In re D.B., 2012 MT 231, ¶ 17, 366 Mont. 392, 288 P.3d 160. An abuse of discretion 

occurs when the district court acted arbitrarily, without employment of conscientious 

judgment, or exceeded the bounds of reason resulting in substantial injustice. 

In re D.B. & D.B., 2007 MT 246, ¶ 16, 339 Mont. 240, 168 P.3d 691. A district court has 

abused its discretion if its findings of fact are clearly erroneous or its conclusions of law 

are incorrect. In re D.B., ¶ 16. “A factual finding 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. 
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DISCUSSION

¶24 A district court may order the termination of the parent-child legal relationship if 

there is clear and convincing evidence that the child was adjudicated a youth in need of 

care, that the parent failed to comply with an appropriate treatment plan, and if the 

condition or conduct that rendered the parent unfit is unlikely to change within a reasonable 

time. Section 41-3-609(1)(f), MCA. When considering any of the relevant factors in 

determining the likelihood of that change, the court must give primary consideration to the 

physical, mental, and emotional conditions and needs of the child. 

Section 41-3-609(3), MCA. 

¶25 Mother argues that the District Court erred in terminating her parental rights because 

the Department failed to prove by clear and convincing evidence that every requirement of 

the termination statute has been satisfied. She argues that: (1) the District Court 

erroneously concluded that Mother’s conduct was unlikely to change within a reasonable 

time; and (2) it was not in A.B.’s best interests to terminate Mother’s parental rights 

because substantial evidence showed that guardianship was in A.B.’s best interests.

¶26 1. Did the District Court err when it found that the conduct or condition rendering 

Mother unfit to parent was unlikely to change within a reasonable time?

¶27 To determine that the condition or conduct that rendered a parent unfit is unlikely 

to change within a reasonable time, thus supporting termination, the court must find that 

the parent’s conduct or condition renders the parent unfit, unable, or unwilling to give the 

child adequate parental care. Section 41-3-609(2), MCA. The court should consider the 

excessive use of a narcotic or dangerous drug that affects the parent’s ability to care and 
13

provide for the child. Section 41-3-609(2)(c), MCA. Under this statute, the question is not 

merely whether a parent has made progress or would make some progress in the future, but 

whether the parent is likely to make enough progress within a reasonable time to overcome 

the circumstances rendering her unfit to parent. In re D.F., 2007 MT 147, ¶ 43, 

337 Mont. 461, 161 P.3d 825 (citing § 41-3-609(1)(f)(ii), MCA). To determine whether 

the conduct or condition is likely to change, the court is “required to assess the past and 

present conduct of the parent. We do not have a crystal ball to look into to make this 

determination, so it must, to some extent, be based on a person’s past conduct.” 

In re S.C.L., 2019 MT 61, ¶ 9, 395 Mont. 127, 437 P.3d 122 (citations omitted). 

¶28 Mother had many conversations with the court and with her counselors regarding 

her methamphetamine use and how it affected her ability to parent. Mother stated that 

when she was using, she would not visit A.B., and other testimony confirmed this. She 

admits that although she continued to struggle with relapse, she was honest about her 

relapses and showed that she wanted to continue to try to parent. Shade, Mother’s 

parenting coach from Evolution Services, testified that Mother was successful in her 

parenting abilities, and Grandmother testified that Mother and A.B. had a good bond and 

that Mother would visit frequently. 

¶29 The District Court found that Mother continued to use methamphetamine and did 

not successfully attend inpatient treatment as recommended by her counselors. The 

District Court granted an extension to allow Mother to work on her treatment, noting 

“we’re giving Mother an extra opportunity.” However, Mother had only one clean UA in 

over two years of Department involvement despite the various evaluations, counseling, and 
14

inpatient treatment offered to her. The evidence showed that when Mother was using, she 

avoided visiting A.B. The District Court did not clearly err by finding clear and convincing

evidence that the conduct or condition rendering Mother unfit to parent was unlikely to 

change within a reasonable time.

¶30 2. Did the District Court abuse its discretion when it found that Mother did not 

overcome the presumption that termination was in A.B.’s best interests and terminated her 

parental rights instead of granting guardianship?

¶31 If a child is out of the home for fifteen of the most recent twenty-two months, the 

Department must file a petition for termination unless a specific exception applies.

Sections 41-3-604(1)(a)-(c), MCA. Mother argues that she is entitled to the exception in

(1)(a), which eliminates the mandatory filing if the child is being cared for by a relative. 

But as the Department argues and we have held, it retains discretion to file even when an 

exception applies. See In re C.W.E., 2016 MT 2, ¶¶ 14-15, 382 Mont. 65, 364 P.3d 1238.

¶32 There is a presumption that termination is in the child’s best interests if the child 

has been in an out-of-home placement for fifteen out of the most recent twenty-two months. 

Section 41-3-604(1), MCA. The parties do not dispute that the presumption has arisen.

A.B. was in out-of-home placement with Grandmother for almost all of the most recent 

twenty-two months when the Department filed its Termination Petition. 

¶33 The District Court found that Mother did not overcome the presumption that 

termination of her parental rights was in A.B.’s best interests based on Mother’s extensive 

history of drug use and her failure to make sufficient progress in her treatment plan. The 

court found, based on the testimony presented, that Mother was unwilling to address her 

addiction and its impact on her ability to parent A.B. The court found that Mother failed 
15

to complete the recommended inpatient chemical dependency treatment and did not 

achieve and maintain sobriety. The Court considered A.B.’s need for a stable, consistent, 

and safe primary caregiver and determined that Mother could not provide that role for A.B. 

within a reasonable time, and it was not persuaded that guardianship was in A.B.’s best 

interests. 

¶34 The District Court found that it was in A.B.’s best interests to terminate Mother’s 

parental rights. It considered CPS Larcom’s testimony that adoption grants greater stability 

to the child because there is no future risk of litigation over guardianship. It found further 

that Mother had not given priority to A.B.’s stability and permanency and concluded that 

A.B. should not be left subject to Mother’s right to challenge his placement in the future. 

The court weighed the evidence before it and found that granting guardianship without 

terminating Mother’s parental rights would “subordinate the child’s needs for permanency 

to meet the mother’s timeline of becoming able to parent sometime in the next 15 years, 

which is not reasonable.” 

¶35 Mother asserts that overwhelming evidence showed that termination was not in 

A.B.’s best interests because he was in a stable, safe placement with Grandmother; Mother 

maintained consistent visits with A.B.; Mother and A.B. had a significant bond; and the 

family and other witnesses testified against termination. Mother argues that the 

Department failed to present testimony or evidence demonstrating her substance use 

negatively impacted A.B. She asserts that the court failed to consider this evidence, instead 

focusing on Mother’s failure to maintain sobriety and engage in treatment. Mother argues 
16

that the District Court erred when it found that the only form of permanency was through 

adoption and instead asserts that A.B.’s best interests would be served by guardianship.

¶36 Finally, Mother asserts that the District Court failed to consider the credible 

testimony in support of guardianship presented by the CASA, Shade, and the family. 

Mother asserts that the Department’s witnesses who testified that termination was in A.B.’s 

best interests based their testimony on generalities regarding Mother’s methamphetamine 

use, the general possibility that A.B. may need financial support in the future, and the 

possibility that a guardianship may subject A.B. to future litigation. She points to the 

testimony that A.B.’s health and safety needs were being met by Grandmother and that the 

family desired guardianship.

¶37 The Department contends that the District Court correctly applied the presumption 

in favor of termination and that Mother did not overcome that presumption. The 

Department argues that the request for guardianship was really an argument that 

guardianship was better for Mother, not for A.B. CPSs Larcom and Sanderson both 

testified that the Department discussed guardianship and termination as options, ultimately 

deciding to pursue termination because, in their view, the parties were seeking 

guardianship for Mother’s best interests, not for A.B.’s. The Department asserted that it 

was in A.B.’s best interests to terminate parental rights because of Mother’s continued drug 

use and failure to make sufficient progress in her treatment plan. It asserted that Mother 

was not able to meet A.B.’s basic needs. The Department’s role is to determine what is 

best for the child, not what is best for the family, and the Department believed that adoption 

was more in A.B.’s best interests based on the CPSs’ experience. 
17

¶38 “Children cannot always afford to wait for their parents to be able to parent.” 

In re L.S., 2003 MT 12, ¶ 15, 314 Mont. 42, 63 P.3d 497. We have held that if a district 

court finds the statutory criteria supporting termination are met, “no limitation requires the 

district court to consider other options prior to terminating parental rights.” In re T.S., 

2013 MT 274, ¶ 30, 372 Mont. 79, 310 P.3d 538. “[T]he statute’s permissive language 

gives district courts discretion in deciding whether to terminate parental rights.” 

In re C.M., 2015 MT 292, ¶ 35, 381 Mont. 230, 359 P.3d 1081. A child’s need for a 

permanent, stable, and loving home supersedes a parent’s right to parent the child. 

In re D.A., 2008 MT 247, ¶ 21, 344 Mont. 513, 189 P.3d 631 (citing In re A.T., 

2006 MT 35, ¶ 20, 331 Mont. 155, 130 P.3d 1249).

¶39 The District Court thoughtfully considered guardianship as well as termination and 

ultimately determined that termination and adoption were in A.B.’s best interests. This 

was supported by the court’s experience with Mother for the prior three years, testimony 

regarding guardianship and its challenges, and its determination that Mother and 

Grandmother sought guardianship for Mother’s needs, not for A.B.’s. This determination, 

based on the record before it, was within the court’s discretion.

¶40 Based on its history with the case, its familiarity with the family through the years 

of court proceedings, and the testimony it received at the termination hearing, the 

District Court found that the reasons for guardianship were not in A.B.’s best interests and 

that the evidence supported termination. Reviewing the testimony and evidence presented 

in the District Court in the light most favorable to the prevailing party, we cannot conclude

that the court abused its discretion when it found that Mother failed to overcome the 
18

presumption that termination was in A.B.’s best interests and that adoption was preferable 

to guardianship. We are not in a position to evaluate the evidence for a different outcome;

we determine only whether the court abused its discretion. Woerner v. Woerner, 

2014 MT 134, ¶ 29, 375 Mont. 153, 325 P.3d 1244 (citations omitted). The court did not 

act arbitrarily, without employment of conscientious judgment, or exceed the bounds of 

reason resulting in substantial injustice. In re D.B. & D.B., ¶ 16. It had substantial, credible 

evidence which it did not misapprehend to support its determination that it was in A.B.’s 

best interests to terminate Mother’s parental rights. 

CONCLUSION

¶41 The District Court did not err when it determined that Mother’s condition or conduct 

rendering her unfit to parent was unlikely to change within a reasonable time. It did not 

abuse its discretion when it determined that termination was in A.B.’s best interests and 

that Mother did not overcome the presumption in favor of termination. We affirm.

/S/ BETH BAKER

We concur: 

/S/ MIKE McGRATH

/S/ JIM RICE

/S/ JAMES JEREMIAH SHEA

/S/ INGRID GUSTAFSON

/S/ LAURIE McKINNON

/S/ DIRK M. SANDEFUR
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Justice Ingrid Gustafson, concurring. 

¶42 Based on the standard of review—abuse of discretion—I concur with the majority’s 

opinion that the District Court did not abuse its discretion in terminating Mother’s parental 

rights. I write, however, to point out my concerns regarding this case and to provide 

information as to myths surrounding guardianships in child dependency cases.

¶43 While under our standard of review, I concur the District Court did not abuse its 

discretion in terminating Mother’s rights, I do believe the circumstances of this case would 

have been more appropriately resolved through a guardianship as was advocated for by 

Grandmother (the adoptive placement), Mother, Father, the guardian ad litem, and the 

CASA worker.

¶44 There is little debate that children generally do better when they maintain regular, 

ongoing contact with their family of origin. Montana’s own child dependency policy 

supports this. It is the policy of the state of Montana to “provide for the protection of 

children whose health and welfare are or may be adversely affected and further threatened 

by the conduct of those responsible for the children’s care and protection” and to “achieve 

these purposes in a family environment and preserve the unity and welfare of the family

whenever possible.” Section 41-3-101(1)(a)-(b), MCA (emphasis added). The loss a child 

experiences when separated from a parent is profound and can last into adulthood. See

Vivek Sankaran, Christopher Church & Monique Mitchell, A Cure Worse Than the 

Disease? The Impact of Removal on Children and Their Families, 102 Marq. L. Rev. 1161, 

1165-69 (2019); see also Erin Sugrue, Alia Innovations, Evidence Base for Avoiding 
20

Family Separation in Child Welfare Practice: An Analysis of Current Research – July 2019

(2019), https://perma.cc/CU4D-JTM6. The factor most closely associated with positive 

outcomes for children is when they remain safely connected to their families. Logically 

then, it is counterproductive to terminate a parent’s rights when such does not increase the 

overall safety or stability of the child and is not in the best interest of the child’s family.

¶45 Montana has long included guardianship as a permanency option, which advances 

its overarching policy of preserving the unity and welfare of the family in child dependency 

cases. Sections 41-3-444, -445(8), MCA. In 1999, HB 180—a bill requested by the 

Department to authorize guardianship as a permanency option—was adopted. See 

1999 Mont. Laws ch. 428. Pursuant to the legislative history, the primary purposes of 

HB 180, initially codified at § 41-3-421, MCA (1999), and now renumbered as § 41-3-444, 

MCA, was to increase permanent placement options for a child; promote reunification;

provide an alternative for children for whom there is no compelling reason to terminate 

parental rights, yet cannot live at home; provide for situations where a child has strong 

bonds with the parent or other reasons when parental rights are not terminated, but 

permanent placement with the parents is not possible; allow children to stay in families 

when relationships have been formed; look at placement through the eyes of a child; and 

to ensure those becoming permanent guardians are committed to a long-term relationship 

with the child.

¶46 In 1994 with the passage of the Social Security Act Amendments of 1994, Pub. L. 

No. 103-432, § 208, 108 Stat. 4398, 4457-59—and later expanded in 1997 through the 

Adoption and Safe Families Act of 1997, Pub. L. No. 105-89, § 301, 111 Stat. 2115, 
21

2127-28—States were able to conduct child welfare demonstration projects involving the 

waiver of certain requirements of Titles IV-B and IV-E of the Social Security Act. The 

waivers granted States flexibility in using Federal funding for alternate services and 

supports—including subsidized guardianships—that promote safety, permanence, and 

well-being for children within the child protection system. Unfortunately, since becoming 

one of eleven original states to have implemented a subsidized guardianship demonstration

and thereafter opting to continue with its guardianship assistance program (GAP) 1 under 

the Fostering Connections to Success and Increasing Adoptions Act of 2008, Pub. L. 

No. 110-351, § 101, 122 Stat. 3949, 3950-53, see Children’s Bureau, U.S. Dep’t of Health 

& Human Servs., Synthesis of Findings: Subsidized Guardianship Child Welfare Waiver 

Demonstrations 2 (2011), https://perma.cc/CNC6-CYER, it appears Montana has 

underutilized guardianships as an effective permanency option. 

¶47 As partially demonstrated in this case, a variety of myths and misconceptions exist 

regarding the safety, permanency, and effectiveness of guardianships. These myths and 

misconceptions include but are not necessarily limited to: guardianships are not permanent 

and have higher re-entry rates in the child welfare system; guardianships result in worse 

outcomes for children; Montana will not approve subsidy payments for guardianships;

1 GAPs provide financial support for children exiting foster care to permanent guardianships with 

kin. They have steadily expanded such that as of September 2017, 36 states and the District of 

Columbia had approved GAPs. Assistant Sec’y for Planning & Evaluation, U.S. Dep’t of Health 

& Human Servs., Title IV-E GAP Programs: A Work in Progress 1 (2017), 

https://perma.cc/R5CQ/BMQL.
22

guardianships can be easily undone; and guardianships are only appropriate for older 

children.

Guardianships Are as Permanent as Adoption. 

¶48 Research has shown the availability of guardianships increases overall family 

permanence. Research relating to subsidized guardianships has found no appreciable 

differences in stability among comparable groups of children exiting to adoption as 

compared to those exiting to guardianship. Children’s Bureau, U.S. Dep’t of Health & 

Human Servs., Synthesis of Findings: Subsidized Guardianship Child Welfare Waiver 

Demonstrations 19-20 (2011), https://perma.cc/CNC6-CYER.

¶49 The Department’s most recent Reports Oriented Management (ROM) data2is 

consistent with these research findings in that re-entry rates into the child dependency 

system were lower for children exiting to guardianship than those for children exiting to 

adoption over the last five years. The ROM data shows children exiting to guardianship 

on average spent 348 days less time in foster care prior to guardianship finalization than 

those in foster care prior to adoption finalization. Resoundingly, the research suggests 

permanency is more closely tied to the child’s relationship with his/her placement than to 

an ultimate legal designation. Children’s Bureau, U.S. Dep’t of Health & Human Servs., 

Synthesis of Findings: Subsidized Guardianship Child Welfare Waiver Demonstrations

18-20 (2011), https://perma.cc/CNC6-CYER.

2 Available through the Department and soon to be available on the Department’s website.
23

Guardianships Do Not Result in Worse Outcomes for Children. 

¶50 Research relating to subsidized guardianships has found no appreciable differences 

in child well-being—school performance, safety, engagement in risky behaviors, access to 

and satisfaction with services and supports, and overall quality of life—among comparable 

groups of adopted and guardianship children. See Children’s Bureau, U.S. Dep’t of Health 

& Human Servs., Synthesis of Findings: Subsidized Guardianship Child Welfare Waiver 

Demonstrations 20 (2011), https://perma.cc/CNC6-CYER. Further, research shows 

subsequent abuse and neglect—re-entry into the child welfare system—is lower among 

children discharged to guardianship as compared to adopted children. Leslie Cohen & 

Mark Testa, Children & Family Research Ctr., Subsidized Guardianship and Permanence

(2004), https://perma.cc/28FD-W626. In subsidized guardianship waiver demonstrations, 

research indicates guardianship significantly decreases the time to permanency, see 

Children’s Bureau, U.S. Dep’t of Health & Human Servs., Synthesis of Findings: 

Subsidized Guardianship Child Welfare Waiver Demonstrations 18 (2011), 

https://perma.cc/CNC6-CYER, an area identified by federal audit of the Montana 

Department as needing substantial improvement. The Department has not demonstrated 

outcomes for children exiting to guardianship to be any worse than those exiting to 

adoption in Montana. In fact, evidence from Montana demonstrated children who exited 

care to adoption are not safer nor do they have better well-being outcomes than children 

who exited care to guardianship. James Bell Assocs., Children’s Bureau, U.S. Dep’t of 

Health & Human Servs., Profiles of the Title IV-E Child Welfare Waiver Demonstration 
24

Projects: Volume 1: Demonstrations Active between Federal Fiscal Years 1996 and 2012

113 (2013), https://perma.cc/5KEU-5BNF.

Montana Will Subsidize Guardianships. 

¶51 As discussed above, Montana was one of eleven states to have originally 

implemented a subsidized guardianship waiver demonstration, following which it elected 

to continue with a GAP post the initial demonstration period. Contrary to CPS Larcom’s 

testimony, the Department has not, under its current Child and Family Services Division 

Administrator, denied any request for a guardianship subsidy, even if the child is not IV-E 

eligible, nor has the idea that adoptions are more permanent than guardianships been a “hot 

topic” of Montana’s federal review as intimated to by CPS Larcom.

3 As discussed above, 

the legislative history of § 41-3-421, MCA (1999), now § 41-3-444, MCA, indicates 

guardianship was added to promote safety, permanence, and well-being for children within 

the child protection system, and to this end, the Legislature also provided a means for 

subsidizing guardianships.

Guardianships Are Not Only Appropriate for Older Children. 

¶52 Pursuant to § 41-3-445(8), MCA, Montana’s permanency options include: 

reunification, permanent placement with the noncustodial parent, adoption, guardianship,

and long-term custody in a planned permanent living arrangement. While there is statutory 

preference for reunification with a parent, there is no statutory preferred permanency option 

3 While it is accurate Montana’s federal review identified deficiencies in meeting timely 

permanency standards, the deficiencies relate to the average time a child spends in care prior to 

adoption, rather than a conclusion that adoption in Montana is more permanent than guardianship.
25

between guardianships and adoptions. When initially adopted, § 41-3-421, MCA (1999),

now § 41-3-444, MCA, permitted a guardianship only if the child was at least 12 years old 

or in a group of siblings at least one of whom was at least 12 years old. Recognizing a 

child’s age should not preclude the safety, permanency, and well-being a guardianship 

could offer, this age limitation, at the request of the Department, was eliminated nearly 

twenty years ago in 2001. See 2001 Mont. Laws ch. 281, § 15 (codified as § 41-3-444, 

MCA). 

Guardianship Are Not Easily Undone. 

¶53 With some frequency CPS workers express the idea that guardianships are easily 

undone merely by a parent filing a request to terminate the guardianship after dismissal of 

the child dependency case. In this case, CPS Larcom testified her main objection to a 

guardianship in this case was that it “would leave the child open to continued litigation for 

the next 15 years” as a parent could potentially seek to dissolve a guardianship.

4 The 

incidence of termination of guardianships is very rare, and the incidence of termination of 

guardianships not supported by the Department are even more rare. It does not appear the 

Department has even been involved in any contested legal actions over the past five years 

involving a parent petitioning to dissolve a previously ordered guardianship. CPS 

Larcom’s testimony actually highlighted the infrequency and unlikelihood of this 

occurring. CPS Larcom, who has worked for the Department as a social worker, a CPS 

4

It is noted this idea is incongruous with the Department’s offering Mother a guardianship earlier 

in the case. When Mother was earlier offered the option of guardianship, no concern was expressed 

that she would engage in years of litigation to undo the guardianship in the future.
26

supervisor, and now as a regional child welfare manager—working a total of 11 years for 

the Department—testified she had never seen a scenario where a parent attempted to undo 

a guardianship, was denied by the court, and then came back again. The risk of 15 years 

of litigation in this case seems far exaggerated. CPS Larcom, after considerable prompting 

by the State, did testify about one particular guardianship termination action in which the 

Department took no position. From this isolated case, it is not possible to conclude with 

any reliability that A.B. was at risk of 15 years of future litigation or that future litigation 

would actually be contrary to A.B.’s best interests. Here, Mother and Grandmother are 

co-parenting, and it is clear their intention is to continue to do so. Mother has a strong 

bond with A.B., and if Mother and Grandmother believe Mother is able to appropriately 

parent in the future, it is likely A.B. will return to Mother’s care regardless of the legal 

designation of his adoption by Grandmother. While not an abuse of discretion, termination 

of Mother’s parental rights to avoid the very remote chance of future litigation in this case 

did little, if anything, to improve A.B.’s safety, permanency, or well-being.

¶54 On a broader basis though, guardianships granted pursuant to § 41-3-444, MCA, are 

not easily revoked. A parent would have to file a petition to revoke the guardianship. The 

court must hold a hearing on the request and the Department, the guardian, and other 

persons directly interested in the welfare of the child must be provided notice of the 

hearing. § 41-3-444(6), MCA. The parent petitioner would then have to establish at 

hearing that it is in the child’s best interest to revoke the guardianship. This, by its nature, 

would require not only that the parent petitioner demonstrate she or he had successfully 

addressed the condition rendering him or her unable to parent when the guardianship was 
27

established, but also that at the time of the hearing, it is in the child’s best interests to revoke 

the guardianship and restore custody to the parent rather than to the Department. 

Section 41-3-444, MCA. If the parent is able to meet this high evidentiary hurdle, why 

would the Department desire the child to be maintained in a situation that no longer meets

his or her best interests? 

¶55 Further, I believe the Opinion, to some extent, misconstrues Mother’s argument on 

appeal. Mother does not assert she is capable of parenting A.B. on a full-time basis, nor 

does she seriously contest the District Court’s finding that the condition rendering her 

unable to parent on a full-time basis is not expected to resolve in a reasonable period of 

time. Rather, Mother argues that given the particular circumstances here—her strong bond 

with A.B., her near daily interaction with A.B., her current and expected co-parenting of 

A.B., and the overall family dynamic—granting Grandmother’s petition for a guardianship, 

rather than terminating her parental rights and Grandmother then adopting A.B., is in 

A.B.’s best interests. 

¶56 In this case, A.B. resides with Grandmother and has done so for over two years.

Despite this, A.B. has a strong, close bond with Mother, who provides significant parenting 

to A.B. When asked about the impact on A.B. if his ties to his mother were permanently 

severed, CPS Larcom admitted “mother should have continued contact with A.B.”—yet 

the Department advocated for a disposition, which is arguably designed to eliminate a 

relationship between A.B. and his Mother. Grandmother and Mother testified they have 

been co-parenting A.B. and CPS Larcom testified Grandmother is assertive enough to 

challenge Mother and look out for A.B.’s best interests. Grandmother has, throughout the
28

duration of the case, proven she is able to keep A.B. safe, while maintaining a positive and 

safe relationship with Mother, and she undoubtedly would continue to do so whether the 

legal relationship be that of guardian or adoptive parent. It is unrefuted Mother has 

participated in the care of A.B. and made substantial gains in parenting skills. Mother and 

Grandmother—who is the Department’s identified adoptive placement and who the 

Department believes has the capacity to determine A.B.’s best interest and to act to meet 

those interests—agree that given time, Mother could regain her ability to parent A.B. and 

that, if she does so, it would be in A.B.’s best interest to return to Mother’s care. While 

Grandmother expressed concern for her daughter that termination of Mother’s parental 

rights was not in Mother’s best interests, there was no evidence Grandmother would forego 

A.B.’s best interests merely because she also has concerns for her own daughter. All 

members of A.B.s family, including Grandmother, Mother, and Father, as well as A.B.’s 

visit coach, the Guardian Ad Litem, and the CASA worker believe guardianship, rather 

than termination, is in A.B.’s best interest.

¶57 The testimony of CPS Larcom and CPS Sanderson expressing a preference for 

adoption over guardianship seems related to a generalized belief—which is now being 

shown to be unfounded by the emerging research—that adoption is the preferred 

permanency option to a guardianship, rather than to an individualized consideration of 

A.B.’s best interests under the circumstances of this case. CPS Larcom testified that in her 

professional opinion adoption is the best permanency option, “All my training and 

experience, in the child welfare systems, says that the primary consideration, as an 

alternative plan [to reunification], should be adoption.” Unfortunately, the testimony of 
29

the CPS workers also demonstrates a desire to sanction Mother for failing to adequately 

address her substance use disorder. CPS Larcom admitted guardianship would have been 

available to Mother a year prior because she was “far more engaged in her treatment” but 

was now not being offered. CPS Sanderson actually testified that not terminating Mother’s 

rights would “almost reward [Mother], in a way, for not following her treatment plan. That 

her - - she would continue to still have her rights.” This testimony not only discounts the 

concept that what is in this family’s best interest is quite likely in A.B.’s best interests, it 

also shows a fundamental lack of understanding of the disease of addiction.

¶58 With very little to no risk Mother would ever seek to dissolve the guardianship,

5

termination of Mother’s parental rights—such that Grandmother is now his mother and 

Mother is now his sister—provided no real benefit to A.B. in terms of stability, 

permanency, and well-being, while simultaneously disrupting the best interests of his 

family. Further, in the event of Grandmother’s death or incapacity, the termination of 

Mother’s parental rights would eliminate Mother as a future placement option—even if at 

that time, she continues to have a strong parental bond with A.B., is a safe and appropriate 

caregiver, and is the Department’s preferred placement.

6

5 CPS Larcom identified Father as her primary concern for future litigation to dissolve the 

guardianship. Father’s parental rights have been terminated and he has not appealed the 

termination. Mother and Grandmother both testified Mother would not file in court to regain 

custody of A.B.

6 Department policy precludes placement with individuals whose parental rights to their children 

have been terminated.
30

¶59 It is, at best, incongruous for the Department to assert Grandmother is the primary 

caregiver best suited for making decisions on behalf of A.B. and determining A.B.’s best 

interests and providing for them, but then not defer determination of what is in A.B.’s best 

interest—preservation of his Mother’s parental rights—to her and instead force an adoption 

upon her. Here, there is no doubt Mother will continue to be engaged in A.B.’s life as she 

has been over the duration of this case. In the event Mother regains the ability to parent on 

a full-time basis, Grandmother will most likely return A.B. to her care, regardless of the 

legal termination of Mother’s parental rights. Under the circumstances created by the 

Department here, it is unlikely Grandmother will seek further assistance from the 

Department, even if she were in need of such. Rather than seek termination of Mother’s 

parental rights, I believe it would have been far more prudent for the Department to work 

with A.B.’s family, not against them, to accomplish the guardianship.

/S/ INGRID GUSTAFSON

Justice Dirk Sandefur and Justice Laurie McKinnon join in the concurring Opinion of 

Justice Gustafson. 

/S/ DIRK M. SANDEFUR

/S/ LAURIE McKINNON