DA 15-0769

IN THE SUPREME COURT OF THE STATE OF MONTANA

2016 MT 203

IN THE MATTER OF:

A.G. and T.G.,

 Youths in Need of Care.

APPEAL FROM: District Court of the Eighteenth Judicial District,

In and For the County of Gallatin, Cause No. DN 11-9C and DN 14-41C

Honorable John C. Brown, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Kathryn McEnery, McEnery Law Office, P.C., Hot Springs, Montana

For Appellee:

Timothy C. Fox, Montana Attorney General, Micheal S. Wellenstein, 

Assistant Attorney General, Helena, Montana 

Martin Lambert, Gallatin County Attorney, Bozeman, Montana

Submitted on Briefs: June 8, 2016

 Decided: August 23, 2016

Filed:

__________________________________________

Clerk

08/23/2016
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Justice Laurie McKinnon delivered the Opinion of the Court. 

¶1 J.G. (Father) appeals from two orders entered by the Eighteenth Judicial District 

Court, Gallatin County, terminating his parental rights to his daughter A.G. and son T.G. 

We affirm.

¶2 Father presents the following issue for review: Did the Department of Health and 

Human Services (the Department) make reasonable efforts to prevent the necessity of 

removing A.G. and T.G. as required by § 41-3-423, MCA?

FACTUAL AND PROCEDURAL BACKGROUND

¶3 Father and K.G. (Mother) have two minor children together, A.G., born in 2009, 

and T.G., born in 2014. In 2009, K.G. was intoxicated, operating a motor vehicle, and 

involved in an accident while A.G. was in the vehicle. As a result, the Department 

entered into a voluntary services agreement with Mother to work with her chemical 

dependency issues and parenting of A.G., then only two months old. On February 16, 

2010, Mother left A.G. in her unlocked vehicle parked in a lot while she was in a store 

shopping. As a result, a police officer cited Mother with endangering the welfare of a 

child and the Department and Mother entered into a second voluntary services agreement. 

On February 24, 2011, a police officer arrested Father for assaulting Mother in A.G.’s 

presence. Both parents were intoxicated. Father was charged with Aggravated Assault. 

The Department entered into a third voluntary services agreement with the family. 

¶4 On June 21, 2011, the Department removed A.G. because Mother was attempting 

to drive to North Dakota under the influence of drugs and alcohol with A.G. in the 

vehicle. Mother pled guilty to endangering the welfare of a child and DUI. On June 24, 
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2011, the Department filed a petition for emergency protective services and temporary 

legal custody of A.G. Mother stipulated, but Father contested A.G.’s adjudication as a 

youth in need of care and the Department’s petition for emergency protective services. 

After conducting a hearing, the District Court adjudicated A.G. a youth in need of care 

and granted the Department temporary legal custody for six months. The District Court 

approved a treatment plan and Father signed it on January 9, 2012. The District Court 

extended temporary legal custody several times. 

¶5 On April 30, 2013, the Department placed A.G. with Father for a trial home visit 

in North Dakota. The visit was successful and Father successfully completed his 

treatment plan. On June 25, 2013, Mother relinquished her parental rights to A.G. On 

August 2, 2013, the District Court sentenced Mother to thirteen months commitment to

Department of Corrections with five years suspended for criminal endangerment and 

DUI, both felonies, in connection with an incident wherein Mother left an unrelated child 

unattended in a vehicle in hot weather. On November 18, 2013, the District Court 

terminated Mother’s parental rights to A.G. On December 17, 2013, the District Court 

ordered permanent placement of A.G. with Father and the dependent and neglect 

proceeding concerning A.G. was dismissed. A child protection specialist involved in the 

case cautioned Father that if Father and Mother resumed their relationship and Mother 

resumed drinking alcohol, Father needed to protect A.G. Father agreed that protecting 

A.G. was his priority. 

¶6 Upon discharge from her period of commitment, Mother and Father resumed their 

relationship in North Dakota, Mother resumed drinking alcohol, and the parties married. 
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Thereafter, Father routinely left A.G. in Mother’s care without supervision of Mother’s 

parenting. Father, however, contacted North Dakota police and asked them to remove 

Mother because she was drunk and out of control in Father’s home. Mother returned to 

Montana because she violated her probation by drinking alcohol in North Dakota. She

again drank when she returned to Montana. Father and A.G. then moved back to 

Montana to live with Mother. 

¶7 On May 14, 2014, Father bought Mother a bottle of wine to drink, even though he 

knew Mother was pregnant. Father admitted he understood that Mother consuming large 

amounts of alcohol while pregnant can harm the fetus. Father also admitted that he 

advised Mother to stay in the vehicle and bought her the alcohol because she was drunk 

and pregnant and he was embarrassed. That night, A.G. was not home and Mother and 

Father drank and watched movies together. According to Father, Mother “got a little 

physical” and he locked himself in the bedroom. Neighbors contacted police when they 

heard Mother and Father arguing. Mother picked the bedroom door lock and Father 

locked himself in the bathroom until police arrived. When police arrived they believed 

Mother was intoxicated. They observed alcohol bottles, noticed that Mother was slurring 

her words, struggling to balance, and leaning on the walls for support. Both Mother and 

Father were arrested—Father because he had an outstanding warrant and Mother for 

violating her probation by drinking alcohol. Police contacted the Department. The 

Department removed A.G. and placed her in kinship care. Again, the Department filed a 

petition for emergency protective services and temporary legal custody “based on the 

Father’s physical neglect of A.G., including exposure to alcohol abuse, domestic 
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violence, and failure to protect against [Mother] whose parental rights to A.G. were 

terminated.”

¶8 In June 2014, while Mother was five months pregnant, a motorist found her drunk 

and lying in a roadway. The motorist tried to take her home, but Mother could not 

describe to him where she lived. He took her to his house instead, where she became 

aggressive and he contacted police. Police arrived and took Mother to the hospital. 

Mother went from the hospital to jail where a breath test indicated she had a blood 

alcohol content of .238. Mother’s probation officer contacted the Department. Mother’s 

probation officer also listened to a recording of a phone call Mother made to Father while 

she was incarcerated wherein Father indicated he planned to flee the state with A.G. 

¶9 Later that month, a neighbor observed Father with A.G. According to the 

neighbor, Father and A.G. were alone at a pond, although he was not allowed 

unsupervised visits with A.G. at the time. Father was intoxicated and repeatedly dunking 

A.G. underwater. The neighbor explained that A.G. was crying, choking, and reminding 

her father that she did not know how to swim, but Father continued dunking and throwing 

her into the water. The neighbor contacted the Department. Afterwards, Father left a 

message on the neighbor’s husband’s phone saying he was so angry he could “kill 

someone” and warning that his wife should “stay[] the fuck out of [his] life.” The 

neighbor and her husband obtained an order of protection against Father. 

¶10 T.G. was born in September 2014, and the Department removed him the following 

day before Mother and Father could leave the hospital with him. The reasons listed for 

T.G.’s removal were Mother and Father’s history of domestic violence, alcohol abuse, 
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A.G.’s pending dependent and neglect case, the Department’s prior history with Mother 

and Father, and T.G.’s vulnerability as a newborn. T.G. was placed in foster care for 

several days and then in kinship care with A.G. On October 3, 2014, the Department 

filed for emergency protective services and temporary legal custody of T.G. 

¶11 After conducting a hearing, the District Court adjudicated A.G. a youth in need of 

care. In its findings of fact and conclusions of law, issued November 10, 2014, the 

District Court concluded that the Department had made reasonable efforts to prevent 

A.G.’s removal:

[I]ncluding providing the Father a Treatment Plan and services in the prior 

DN; providing reunification services in the prior DN; placing A.G. in 

kinship placement in this case; and arranging for supervised parenting time 

in this case. The Court make[s] this determination recognizing per 

§ 41-3-423, MCA, the child’s health and safety are of paramount concern in 

making reasonable efforts.

Mother and Father stipulated to T.G. being a youth in need of care. The District Court 

concluded reasonable efforts had been made; however, “no services could have been 

provided to the family which would have prevented or eliminated the need” for T.G.’s 

removal. The District Court approved a treatment plan and Father signed it on 

November 26, 2014. The District Court also granted the Department temporary legal 

custody of A.G. and T.G. for six months. 

¶12 Also on November 26, 2014, the Department placed A.G. and T.G. with Mother 

and Father for a trial home visit. On December 23, 2014, police and the Department 

were contacted after A.G., aged five, and her cousin, also five, were found walking 

around town unsupervised. When found, the two said they had been sleeping in a park 
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and someone’s dad had dropped them off there. The children were taken home, where 

Mother was found intoxicated. Police were contacted and arrested Mother for violating 

her probation. The Department removed A.G. and T.G. from their trial home visit. 

¶13 Father did not successfully complete his treatment plan. On May 26, 2015, the 

Department filed a petition to terminate Father’s parental rights to A.G. and T.G. Mother 

relinquished her rights to T.G. On November 30, 2015, the District Court terminated 

Mother’s parental rights to T.G. The District Court held a termination hearing for Father. 

Father failed to appear. On December 1, 2015, the District Court terminated Father’s 

parental rights to A.G. and T.G. In its orders terminating Father’s parental rights, the 

District Court concluded reasonable efforts had been made given the need to protect the 

children’s health and safety.

¶14 Father appeals. 

STANDARDS OF REVIEW

¶15 We review a district court’s decision to terminate parental rights for an abuse of 

discretion. In re C.J.M., 2012 MT 137, ¶ 10, 365 Mont. 298, 280 P.3d 899 (citation 

omitted). We review a district court’s findings of fact for clear error and its conclusions 

of law for correctness. C.J.M., ¶ 10 (citations omitted). 

DISCUSSION

¶16 Did the Department make reasonable efforts to prevent the necessity of removing 

A.G. and T.G. as required by § 41-3-423, MCA?

¶17 “It is the policy in Montana to protect children whose health and welfare may be 

threatened by those persons responsible for their care, but this protection must be 
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provided in a manner that preserves the family environment, if possible.” In re C.J., 

2010 MT 179, ¶ 23, 357 Mont. 219, 237 P.3d 1282, citing § 41-3-101(1)(a)-(b), MCA. 

Section 41-3-423(1), MCA, provides:

The department shall make reasonable efforts to prevent the necessity of 

removal of a child from the child’s home and to reunify families that have 

been separated by the state. Reasonable efforts include but are not limited 

to voluntary protective services agreements, development of individual 

written case plans specifying state efforts to reunify families, placement in 

the least disruptive setting possible, provision of services pursuant to a case 

plan, and periodic review of each case to ensure timely progress toward 

reunification or permanent placement. In determining preservation or 

reunification services to be provided and in making reasonable efforts at 

providing preservation or reunification services, the child’s health and 

safety are of paramount concern. 

We have stated that this statute “obligates the Department to make ‘reasonable efforts’ to 

reunify families; however, the statute does not define the term and indeed it would be 

impossible to do so, as each case must be evaluated on its own facts. But clearly the 

statute does not require herculean efforts.” In re K.L., 2014 MT 28, ¶ 41, 373 Mont. 421, 

318 P.3d 691. We similarly understand that “reasonable efforts” are required to prevent 

the necessity of removal; however, these efforts must be tailored to the facts of each case 

and clearly “herculean efforts” are not required. 

¶18 Father argues § 41-2-423, MCA, requires the Department “make reasonable 

efforts prior to the removal in each and every case” and, here, the Department failed to 

make reasonable efforts prior to removing A.G. in May 2014 and prior to removing T.G., 

the day after he was born. The Department counters that the children’s health and safety 

required their removal and nothing could have been done to prevent it. We agree with 

the Department. The Department removed A.G. in May 2014 after Father bought Mother 
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alcohol during her pregnancy with T.G. and a neighbor contacted police when they could 

hear Mother and Father arguing. Both parents were subsequently arrested. The 

Department removed T.G. when he was two days old because he was vulnerable and 

there were no viable options to assure his in-home safety amid Mother and Father’s 

repeated instances of alcohol abuse and domestic violence.

¶19 Here, the Department had been involved with and receiving referrals regarding 

this family since A.G. was two months old. The Department entered into three voluntary 

services agreements before removing A.G. for the first time. The Department provided 

treatment plans and services during the first removal. Father was successful, Father and 

A.G. were reunified, and the first proceeding was dismissed. Father was cautioned to 

prioritize A.G.’s protection, including protecting her from Mother and he agreed that 

A.G.’s safety was a priority. Father reinitiated his relationship with Mother and married 

her knowing Mother was an alcoholic and drinking. He recognized that Mother’s 

parental rights to A.G. had been terminated and that Mother had multiple citations for 

endangering the welfare of his children. In spite of this history, Father allowed Mother to 

care for A.G. without supervision. Father also recognized that Mother was drinking 

during her pregnancy and that this could harm the fetus. Nonetheless, Father purchased 

alcohol for Mother and consumed alcohol with Mother during her pregnancy with T.G. 

¶20 Reasonable efforts must be reasonable under the circumstances. What may have 

been reasonable prior to removing A.G. the first time—providing three separate 

voluntary services agreements—was not reasonable for the Department prior to removing 

A.G. for the second time and removing T.G. shortly after his birth. Father argues “the 
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Department made no efforts whatsoever” to prevent A.G.’s removal in May 2014, but 

fails to assert what efforts the Department could have utilized when Father was arrested 

that evening on an outstanding warrant. Conversely, we believe it would have been 

unreasonable for the Department not to resume responsibility for A.G. at that point 

because Mother’s rights had been terminated and Father was taken into custody, leaving 

no one responsible for A.G.’s health and safety. Father also fails to assert what efforts 

the Department could have utilized to assure T.G.’s safety after his birth. We believe it 

would have been unreasonable for the Department to allow Mother and Father to leave 

the hospital with T.G. knowing T.G.’s vulnerability as a newborn and that Mother and 

Father had exposed him to alcohol and domestic violence prior to his birth. 

¶21 In consideration of the paramount importance of A.G. and T.G.’s health and safety 

and given the evidence of extensive interaction between the Department and this family 

from the time A.G. was two months old until Father’s termination, we conclude the 

District Court correctly determined that the Department made reasonable efforts to 

prevent the necessity of their removal.

CONCLUSION

¶22 Affirmed.

/S/ LAURIE McKINNON

We Concur: 

/S/ MIKE McGRATH

/S/ BETH BAKER

/S/ MICHAEL E WHEAT

/S/ PATRICIA COTTER