In the Matter of JH

In the Matter of JH, 2016 MT 35 (Feb. 16, 2016) (Rice, J.) (5-0, aff’d)

Issue: (1) Whether the district court erred by finding the Department made reasonable efforts to reunify JH with his father; (2) whether the district court erred by finding that JH’s best interests were served by living with his aunt, EJ, and not his father; and (3) whether the district court erred by approving a permanency plan without first holding an age-appropriate consultation with JH.

Short Answer: (1) No; (2) no; and (3) no.

Affirmed

Facts: JH, seven years old, is the child of AH (mother) and CL (father). Mother and father never married, no custody order or parenting plan was ever entered, and JH saw his father only occasionally. When this case began, JH was living in Lewistown with his mother, mother’s boyfriend, his half-sister, his maternal grandmother, and his grandmother’s boyfriend. JH’s father was living in Texas with his girlfriend, their two children, and two of his girlfriend’s children from a previous relationship.

The Department petitioned for emergency protective services, alleging mother had abused and neglected JH by exposing him to illegal drug use and failing to protect him from her abusive boyfriend. Father was served, and told the social worker assigned to JH’s case that he wanted custody of JH.

Mother objected to placing JH with father, and the social worker said she would not place him there until Texas child authorities conducted a home study to ensure father’s home was safe for JH. Texas refused to conduct a home study after running a background check on father and finding he had committed multiple crimes from 2006-2010, and had previously lost custody of two of his children to Texas child protective services. Father commissioned a home study at his own expense, and moved the district court to place JH with him.

Mother’s parental rights were terminated in March 2014, and the district court extended the Department’s temporary legal custody of JH. In September 2014, Texas child authorities approved JH’s maternal great aunt, EJ, as a kinship placement for JH and JH’s half-sister, BS, with whom JH was very close. JH and BS moved to Texas in December 2014 to live with EJ. In January 2015, father’s private home study was received, and the evaluator was unable to recommend placing JH with his father.

The Department petitioned for a permanency plan placing JH with EJ under a guardianship, and the district court held a hearing in February 2015. A counselor and JH’s GAL testified that being with BS was very important to JH’s well-being. A Texas social worker reported that JH’s placement with EJ was going well. The district court approved the plan but did not preclude a later determination that JH should be placed with his father.

Procedural Posture & Holding: The district court later held a hearing on the Department’s petition for long-term custody and Father’s motion to dismiss. The testimony mirrored that at the February 2015 hearing, and EJ also appeared and testified, saying the children were a “blessing.” The district court granted the Department’s petition for long-term custody until JH reached 18. Father appeals and the Supreme Court affirms.

Reasoning: (1) When Texas denied the request to conduct a home study after the criminal background check and child protective services background check, the Department had two ways to place J.H. with Father: dismiss the case under § 41-3-438(3)(d), MCA, to remove the applicability of the ICPC, or establish Father met the exception under AAICPC Reg. 3, § 3(a). That exception could not be satisfied because of the evidence that Father was potentially unfit, having dealt crack cocaine and been party to a domestic violence incident involving a knife. The Department then waited for the result of the private home study, but that study did not recommend placing JH with Father. The Department’s efforts were reasonable.

(2) It is not necessary for a district court to find that a parent is unfit before determining the child’s best interests in a long-term custody proceeding. Significantly more than a scintilla of evidence supported the district court’s finding that JH’s best interests were served by placement with EJ rather than with Father. Moreover, Father’s parental rights were not terminated. He lives relatively close to EJ and may have an opportunity to develop his relationship with JH in the future.

(3) Father failed to raise the issue of an age-appropriate consultation before the district court, and it is therefore not properly before the Court on appeal.