12/02/2025
DA 25-0073
Case Number: DA 25-0073
IN THE SUPREME COURT OF THE STATE OF MONTANA
2025 MT 274
IN THE MATTER OF:
J.D.,
A Youth in Need of Care.
APPEAL FROM: District Court of the Fifth Judicial District,
In and For the County of Beaverhead, Cause No. DN-1-2023-875
Honorable Luke Berger, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Allen P. Lanning, Law Office of Allen P. Lanning, PC, Great Falls,
Montana
For Appellee:
Austin Knudsen, Montana Attorney General, Mardell Ployhar,
Assistant Attorney General, Helena, Montana
Sky Jones, Beaverhead County Attorney, Dillon, Montana
Submitted on Briefs: August 20, 2025
Decided: December 2, 2025
Filed:
Clerk
Justice Ingrid Gustafson delivered the Opinion of the Court.
¶1 S.M. (Mother) appeals from the April 19, 2023 Order adjudicating J.D. as a youth
in need of care (YINC) and the December 11, 2024 Decree of Guardianship entered by the
Fifth Judicial District Court, Beaverhead County. We restate and address the following
dispositive issue:
Did the District Court abuse its discretion when it adjudicated J.D. as a YINC?
¶2 We reverse and vacate the April 19, 2023 Order adjudicating J.D. as a YINC and
the December 11, 2024 Decree of Guardianship.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 The Department of Public Health and Human Services, Child and Family Services
Division (the Department) removed J.D. after receiving a report that Mother was arrested
on February 7, 2023, for allegedly making multiple inappropriate calls, over a period of
two years, to the Beaverhead County Sheriff Department dispatch. J.D. was 14 years old
at the time of Mother’s arrest and did not have another adult with legal custody to care for
him. Mother’s sister, T.M., lived in Butte and Mother identified her as a possible placement
for J.D. The Department placed J.D. with T.M. on an emergency basis.
¶4 Children Protection Specialist (CPS) Brenda Kirkley interviewed Mother while she
was in custody and when she was released on February 28, 2023. CPS Kirkley stated that
Mother informed her that Mother believed she had been under hypnosis, that Mother used
Narcan to “knock off the hypnosis,” and that Mother yelled at CPS Kirkley, accused the
government of conspiring against her, and had trouble communicating in a clear manner,
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as well as difficulty regulating emotions. Mother reported she was not under the influence
of drugs and a urinalysis confirmed she was not.
¶5 CPS Kirkley also received reports from the Beaverhead County Detention Center
that Mother had been acting erratically by screaming, banging on pipes, and being
uncooperative with officers while in custody. A review of the Department’s prior
involvement with Mother reflected concerns regarding Mother’s mental health.
¶6 On March 8, 2023, the Department filed a petition for emergency protective
services, adjudication of J.D. as a YINC, and temporary legal custody. The Department
supported its petition with an affidavit from CPS Kirkley explaining that the Department
believed J.D. had been neglected and required immediate protection due to the status of
Mother’s mental health. The District Court issued an order granting the Department’s
requested relief and the Department continued J.D.’s placement with T.M.
¶7 At the March 21, 2023 show cause hearing, although Mother denied the
Department’s allegations, she stipulated to cause. The District Court scheduled an
adjudicatory hearing for mid-April 2023 so Mother could complete the mental health
evaluation requested by the public defender representing Mother in her criminal case.
¶8 The District Court held a contested adjudication hearing on April 18, 2023. The
Department presented testimony from CPS Kirkley and Chief of Police Jeremy Alvarez.
Mother testified on her own behalf. CPS Kirkley testified that she was familiar with the
Montana Safety Assessment and Management System (SAMS) used by the Department to
assess when a family condition becomes a true safety threat requiring intervention, but CPS
Kirkley could not remember SAMS’s five criteria for assessment. As to the present danger
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criteria requirement, that is, an “[i]mmediate, significant and clearly observable family
condition (or threat to child safety) that is . . . actively occurring . . . and will likely result
in severe (serious) harm to a child, requiring immediate protective response,” Child and
Family Services Policy Manual, § 201-2 (DPHHS 2015), https://perma.cc/43P4-F24S,
CPS Kirkley testified that Mother had thrown objects at J.D. and, at some unknown time
in the past, Mother may have physically assaulted J.D. but CPS Kirkley admitted that she
was unaware of any injuries to J.D. When asked about the immediate or imminent harm
criteria requirement, that is, the belief that danger will remain active resulting in
“circumstances that reasonably could result in severe harm to a vulnerable child now or
within days,” Child and Family Services Policy Manual, § 201-2 (DPHHS 2015),
https://perma.cc/43P4-F24S, CPS Kirkley advised that she believed J.D. had told a
different CPS worker that Mother had thrown coffee cups at him 5 months earlier in
September 2022. When questioned about severity, that is, “the effects of maltreatment that
have already occurred and/or the potential for harsh effects based on the vulnerability of a
child and the family behavior, condition, or situation that is out of control,” Child and
Family Services Policy Manual, § 201-2 (DPHHS 2015), https://perma.cc/43P4-F24S,
CPS Kirkley testified she had observed Mother demonstrate concerning mental health
symptoms of rapid mood escalation and being “in an alternate reality” but did not tie these
observations to conduct directed at or involving J.D. Regarding J.D.’s level of
vulnerability and self-protective capacities, that is, J.D.’s dependence on others for
protection, Child and Family Services Policy Manual, § 201-2 (DPHHS 2015),
https://perma.cc/43P4-F24S, CPS Kirkley admitted that J.D. had protective capacities of
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his own and was not dependent on others for some of his basic needs. Finally, when asked
about out-of-control family conditions, which are conditions affecting a child that “are
unrestrained; unmanaged; without limits or monitoring; not subject to influence,
manipulation or internal power; are out of the family’s control,” Child and Family Services
Policy Manual, § 201-2 (DPHHS 2015), https://perma.cc/43P4-F24S, CPS Kirkley again
reiterated her prior testimony about her observations of Mother’s mental health related
behaviors. CPS Kirkley did not, however, tie these behaviors to a negative effect on J.D.
or indicate how these behaviors were unmanaged or out-of-control in relation to Mother’s
parenting of J.D. Upon conclusion of the testimony, J.D.’s counsel advised the court that
J.D. was not scared of or uncomfortable with his mom.
¶9 The District Court issued an order on April 19, 2023, adjudicating J.D. a YINC.
The District Court’s primary concern was J.D.’s well-being if returned to Mother’s care
because the witnesses’ testimony indicated Mother was unstable due to her mental health.
The court recognized that while J.D. was self-sufficient to a certain extent, he was still a
youth who needed a parent to ensure he attended school and had access to basic life
necessities such as food, medical attention, and shelter. The adjudication order granted the
Department temporary legal custody of J.D. for six months. The Department continued
J.D.’s placement with T.M.
STANDARD OF REVIEW
¶10 We review a district court’s decision to grant or deny a petition to adjudicate a YINC
for abuse of discretion. In re K.H., 2012 MT 175, ¶ 19, 366 Mont. 18, 285 P.3d 474. “A
court abuses discretion when it acts arbitrarily, without employment of conscientious
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judgment or in excess of the bounds of reason, resulting in substantial injustice.” In re
A.J.W., 2010 MT 42, ¶ 12, 355 Mont. 264, 227 P.3d 1012 (citation omitted). We review a
district court’s findings of fact for clear error, its conclusions of law for correctness, and
the court’s ultimate decision regarding adjudication for abuse of discretion. In re K.H.,
¶ 19. “A finding of fact is clearly erroneous when it is not supported by substantial
evidence, the court misapprehended the effect of the evidence, or review of the record
convinces this Court a mistake was made.” In re L.B., 2025 MT 6, ¶ 8, 420 Mont. 192,
562 P.3d 497 (citation omitted). “Substantial evidence is evidence that a reasonable mind
might accept as adequate to support a conclusion, even if weak and conflicting.” In re J.H.,
2016 MT 35, ¶ 24, 382 Mont. 214, 367 P.3d 339 (citation omitted). When determining if
substantial evidence supports the district court’s findings, the evidence is viewed in the
light most favorable to the prevailing party. In re J.H., ¶ 13.
DISCUSSION
¶11 Did the District Court abuse its discretion when it adjudicated J.D. as a YINC?
¶12 The District Court’s finding of abuse and neglect is not supported by substantial
evidence. Accordingly, we reverse and vacate the District Court’s April 19, 2023
adjudication of J.D. as a YINC and, likewise, vacate the subsequent guardianship order.
¶13 Pursuant to § 41-3-101(1)(d), MCA,1 no forced removal of a child from the child’s
family is warranted, unless the Department has reasonable cause to suspect the child is at
imminent risk of harm. The statutory threshold for adjudication of a YINC requires the
1
Unless otherwise noted, all statutory citations are to the 2023 version of the Montana Code Annotated.
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Department to prove by a preponderance of the evidence that the child has been abused,
neglected, or abandoned. Sections 41-3-437(2), -102(36), MCA. “Child abuse or neglect”
is defined as “actual physical or psychological harm to a child,” a “substantial risk
of physical or psychological harm to a child,” or abandonment of a child. Section
41-3-102(7), MCA. “Physical or psychological harm” means “harm that occurs whenever
the parent or other person responsible for the child’s welfare inflicts or allows to be
inflicted on the child physical abuse, physical neglect, or psychological abuse or neglect.”
Section 41-3-102(23), MCA. “Psychological abuse or neglect” is defined as “severe
maltreatment, through acts or omissions, that is injurious to the child’s intellectual or
psychological capacity to function and that is identified as psychological abuse or neglect
by a licensed [professional].” Section 41-3-102(25)(a), MCA (emphasis added).
¶14 The District Court determined the nature of the abuse or neglect set forth by the
Department in this case to be “physical neglect.” Physical neglect is defined as:
(a) failure to provide basic necessities, including but not limited to appropriate and
adequate nutrition, protective shelter from the elements, and appropriate clothing
related to weather conditions;
(b) failure to provide cleanliness and general supervision, or both;
(c) exposing or allowing the child to be exposed to an unreasonable physical or
psychological risk to the child;
(d) allowing sexual abuse or exploitation of the child; or
(e) causing malnutrition or a failure to thrive.
Section 41-3-102(22), MCA. The District Court’s finding of physical neglect was
premised on Mother’s mental health and her alleged failure to provide basic necessities to
J.D., as well as the unreasonable physical and psychological risk Mother’s mental health
allegedly presented to J.D.
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¶15 Abuse and neglect proceedings balance two important and opposing state interests:
the state’s duty to protect children whose health and welfare may be adversely affected by
the conduct of those responsible for them, and the fundamental presumption that a child’s
best interests are ordinarily served by preserving the family unit, which makes state
intervention a grave and cautious undertaking. See § 41-3-101(1), MCA. In accordance
with state policy and to properly address whether a youth is a YINC, the Department has
implemented the SAMS model to ensure that safety assessments guide decision making
throughout the life of a case. See Matter of B.H., 2020 MT 4, ¶ 34, 398 Mont. 275,
456 P.3d 233; Child and Family Services Policy Manual, § 201-2 (DPHHS 2015),
https://perma.cc/43P4-F24S.
¶16 Upon receipt of a report that a child is or has been abused or neglected, our statutory
scheme provides that the Department “shall promptly assess the information contained in
the report and make a determination regarding the level of response required.” Section
41-3-202(1)(a), MCA. If the Department determines that an investigation and safety and
risk assessment are warranted in response, “a child protection specialist shall
promptly conduct a thorough investigation into the circumstances surrounding the
allegations . . . and perform a safety and risk assessment to determine whether the living
arrangement presents an unsafe environment for the child.” Section 41-3-202(c), MCA.
A safety and risk assessment requires a CPS to assess “(a) the existing threat or threats to
the child’s safety; (b) the protective capabilities of the parent or guardian; (c) any particular
vulnerabilities of the child; (d) any interventions required to protect the child; and (e) the
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likelihood of future physical or psychological harm to the child.” Section 41-3-102(30),
MCA.
¶17 The Department utilizes SAMS to accomplish the statutorily required “safety and
risk assessment.” SAMS employs a “safety threshold” throughout the assessment process
to determine when a family condition becomes a true safety threat requiring intervention.
Child and Family Services Policy Manual, § 201-2 (DPHHS 2015), https://perma.cc/43P4-F24S. The safety threshold guides child protection specialists in deciding whether a child
is safe or unsafe by evaluating whether five criteria are met: (1) the potential harm is severe,
(2) the harm is imminent, (3) the danger is clearly observable, (4) the child is vulnerable
and dependent on others for protection, and (5) the family conditions are out of control or
unmanaged. Child and Family Services Policy Manual, § 201-2 (DPHHS 2015),
https://perma.cc/43P4-F24S. The threshold is applied throughout the life of the case to
distinguish between risk and actual danger, ensuring that intervention occurs only when
these safety conditions are clearly present. Child and Family Services Policy Manual,
§ 201-2 (DPHHS 2015), https://perma.cc/43P4-F24S.
¶18 The SAMS model emphasizes that safety decisions must be based on clear,
consistent assessments of present and impending safety threats—not isolated incidents—
and that removal is justified only when no home safety plan can control such threats. Child
and Family Services Policy Manual, § 201-2 (DPHHS 2015), https://perma.cc/43P4-F24S.
SAMS further requires the Department to use precise procedures, sound judgment, and
family-centered, strength-based practices to enhance caregiver protective capacities before
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resorting to separation. Child and Family Services Policy Manual, § 201-2 (DPHHS 2015),
https://perma.cc/43P4-F24S.
¶19 By ignoring the SAMS safety threshold and removing J.D. absent any real or
imminent danger, the Department abandoned the safeguards it specifically designed to
prevent unnecessary family disruption and it ultimately provided insufficient evidence to
establish J.D. as a YINC.
¶20 This Court’s precedent “instructs a district court to look to a parent’s past conduct
to inform the exercise of its discretion in abuse and neglect proceedings.” In re K.H., ¶ 38.
The focus of our analysis therefore must be the effect of the parent’s conduct on the child,
and whether that conduct has resulted in, or presents a substantial risk of, abuse or neglect.
See In re K.H., ¶¶ 38-39; In re G.S., 2002 MT 245, ¶ 43, 312 Mont. 108, 59 P.3d 1063;
In re I.B., 2011 MT 82, ¶¶ 22-23, 360 Mont. 132, 255 P.3d 56. Thus, the focus in this case
is the effect of Mother’s conduct on J.D. and whether the Department proved at the
adjudication hearing, by a preponderance of evidence, that Mother’s conduct resulted in,
or presented a substantial risk of, either (1) a failure to provide J.D. with basic necessities,
or (2) an exposure of J.D. to unreasonable physical or psychological risk.
¶21 Mother had raised J.D. on her own since his birth and provided for all of J.D.’s
ordinary needs in a relatively stable manner before removal, including providing housing,
food, having stable income and employment, providing clothing, and sharing household
chores with him. At the time of the adjudication hearing, there was no evidence of J.D.’s
physical or emotional needs not being met. At the adjudication hearing, other than attesting
to a general concern for J.D.’s safety stemming from Mother’s unrelated behaviors, the
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Department failed to establish actual physical or psychological harm to J.D., or a
substantial risk of physical or psychological harm to J.D.2 While the Department’s initial
intervention may have been warranted when Mother was first arrested, the Department is
obligated to continuously assess its cases and withdraw its involvement when a caregiver’s
protective capacities become sufficient. See § 41-3-423(1)(b)(i), (ix), MCA (requiring the
Department to monitor progress and continuously conduct comprehensive assessments of
the family’s circumstances “with a focus on safe reunification as the most desirable goal”).
At the time of the adjudication, Mother was maintaining a three-bedroom townhouse as a
residence, had an income as a part-time delivery driver, and there were no allegations that
she was not providing for J.D.’s basic necessities. J.D. was an independent and competent
teenager, capable of taking on many of his own needs, including cooking, laundry, and
getting to and from school. None of the SAMS safety conditions were clearly present, let
alone all five as is necessary to warrant removal under the Department’s own policies.
¶22 CPS Kirkley’s affidavit and the testimony presented at the adjudication hearing did
raise concerns over Mother’s mental health. However, the mere fact that a parent has a
mental illness or disorder does not support a finding of abuse or neglect. While it is true
that Mother exhibited abnormal conduct as a result of her mental health issues, our statutory
scheme requires more than exhibiting abnormal conduct in relation to a mental health
2
The District Court acknowledged at the conclusion of the hearing, “I have just got a general concern about the safety and risk if returned at this point with the youth.” However, while we can appreciate a general concern, such is not “reasonable cause to suspect that the child is at imminent risk of harm” as required by § 41-3-101(1)(d), MCA, and is insufficient to adjudicate a child as a YINC under our statutory scheme.
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condition. To adjudicate J.D. as a YINC, the Department was required to show that the
abnormal conduct resulted in physical or psychological harm, or a substantial risk of such
harm, to J.D.
¶23 Here, Mother’s rambling testimony and her various statements about Narcan,
hypnosis, and conspiracy theories all occurred outside of J.D.’s presence, are unrelated to
J.D., and appear to have had no effect on J.D. Further, while Mother’s admission that she
may have inflicted physical pain on J.D. once in the past could raise valid concerns, the
Department failed to establish this was anything other than a remote occurrence and it
failed to substantiate any physical or mental harm to J.D. that resulted from the incident.
Mother also explained that she had been undergoing changes in her medication at the time
and it appears that she self-reported the incident to her doctor and had arranged for J.D. to
stay with her sister temporarily—evidencing an appropriate understanding of her mental
health issues and protective capacities to adequately care for J.D even while experiencing
exacerbated mental health symptoms. Additionally, while the cup throwing incident raises
similar concerns, the cups were Styrofoam and, once again, there was no nexus between
Mother’s conduct and any demonstrated physical or psychological harm to J.D. To be sure,
J.D. stated that he does not fear his mother and the Department utterly failed to show
“severe maltreatment, through acts or omissions, that [were] injurious to [J.D.’s]
intellectual or psychological capacity to function.” Section 41-3-102(25)(a), MCA.
¶24 The only fact that potentially shows an actual effect of Mother’s mental health
symptomatology on J.D. is J.D.’s school attendance record. CPS Kirkley testified that J.D.
missed approximately 15 days of school. The District Court found this fact, along with
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Mother’s inability to explain the absences, to support its finding of abuse or neglect.
However, Mother’s testimony specifically referenced Covid as a basis for the high number
of absences. Being that 36% of Montana students missed 10% or more of the 2022-2023
school year,3 J.D.’s 15 absences, which constitute only 8.7% of scheduled school days,4
can hardly be considered excessive or indicative of abuse or neglect without some context
and relation to Mother’s mental health and conduct. Further, there was no showing that
J.D.’s absences had resulted in any educational difficulties or deficits—there was no
evidence of J.D. failing any classes, engaging in any disruptive or inappropriate school
behaviors, or not appropriately advancing in his education or meeting academic
requirements.
¶25 Mother’s testimony regarding her “clashing” with the school and her statement that
J.D. was not supposed to meet with the school counselor also fail to demonstrate abuse or
neglect. Rather, these facts show that Mother was actively involved in J.D.’s education.
As a parent, Mother has a fundamental right to make decisions regarding the care of J.D.,
including, among other things, his upbringing, education, health care, and mental health.
Stand Up Mont. v. Missoula Cnty. Pub. Schs., 2022 MT 153, ¶ 28, 409 Mont. 330, 514 P.3d
1062; § 40-6-701, MCA. While the government has a compelling interest in protecting
children from abuse and neglect, there are no facts showing that Mother’s conduct towards
3
Chronic Absenteeism, U.S. Dep’t of Educ., https://perma.cc/4PN8-ZYXR (last visited Oct. 7, 2025).
4
Dillon School District 10’s 2022-2023 School Calendar included 172 school days. Dillon Elementary School District #10, 2022-2023 Dillon Elementary School District #10 District Calendar (revised 6-7-2022), Dillon Schools, June 7, 2022, https://perma.cc/3BTC-Z9LT.
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the school had any negative effect on J.D. or his education. Accordingly, J.D.’s absences
and Mother’s involvement with the school fail to demonstrate abuse or neglect.
¶26 Mother’s excessive calls to the Dillon Police Department also fail to demonstrate
abuse or neglect. Mother’s inability to explain the calls does suggest a lack of appreciation
for the consequences of her conduct, which may put Mother at risk of repeating the offense
in the future. However, while it is possible Mother could be rendered unable to care for
J.D. if she were once again detained, J.D. is now 17 years old and the potential need for
safety intervention at some unknown point in the future does not substantiate abuse or
neglect, nor does it warrant immediate removal. See § 41-3-102(7)(a) (defining child abuse
or neglect as “actual physical or psychological harm,” “a substantial risk of such harm,”
or abandonment (emphasis added)); § 41-3-101(1)(d) (declaring it state policy to “ensure
that there is no forced removal of a child from the family . . . unless the department has
reasonable cause to suspect that the child is at imminent risk of harm” (emphasis added)).
¶27 The Department argues that Mother’s mental health has subjected J.D. to the real
possibility of physical and psychological harm and that a court need not wait until a child’s
emotional or psychological scars are beyond repair and observable. The Department is
correct; courts need not wait until harm is beyond repair. However, this does not mean that
abuse or neglect can be established upon the mere possibility of harm occurring in the
future. Rather, the law requires a “substantial risk of physical or psychological harm to a
child.” Section 41-3-102(7)(a)(ii), MCA (emphasis added). Additionally, removal
requires reasonable cause to suspect an imminent risk of harm. Section 41-3-101(1)(d),
MCA (emphasis added). The focus of our inquiry remains not on the abnormality of the
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parent’s conduct, but the effect of the conduct on the child, and whether it creates a
substantial risk of physical or psychological harm to the child for which there is reasonable
cause to suspect the harm to be imminent. See In re I.B., ¶¶ 22-23; §§ 41-3-102(7)(a)(ii),
-101(1)(d), MCA.
¶28 Our case law addressing a substantial risk of harm as a basis for abuse or neglect is
limited, but informative. This Court has upheld the adjudications of newborns, who have
no self-protective capacities, as YINCs based on a substantial risk of harm, rather than
actual abuse or neglect, where the parents’ parental rights were previously terminated as to
a sibling of the newborn and the circumstances related to the prior termination have not
changed. In re K.C.H., 2003 MT 125, ¶ 22, 316 Mont. 13, 68 P.3d 788; In re C.P.,
2001 MT 187, ¶ 20, 306 Mont. 238, 32 P.3d 754.
¶29 We also upheld the adjudication of a YINC where a parent’s conduct clearly placed
the child’s life at risk. In re I.B., ¶ 23. In In re I.B., a child’s doctor had ordered the child’s
parents to use a specific feeding method to feed the child due to the child’s respiratory
condition. In re I.B., ¶ 22. The doctor and the family’s social worker reviewed the method
with the parents, explained why the method was necessary, and emphasized that a failure
to follow the method would put the child at risk of choking or aspirating vomit. In re I.B.,
¶ 22. However, the parents disregarded the order and warnings, and a social worker
conducting a home visit found the child, who was of an age with no self-protective
capacities, with a bottle propped up in its mouth in the very manner the doctor specifically
instructed the parents not to do. In re I.B., ¶¶ 22-23. While the mother asserted that she
propped the bottle up so that she could clean the house to impress the social worker, we
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found this excuse only further demonstrated the parents’ inability or refusal to understand
the life-threatening risks presented by their conduct. In re I.B., ¶ 23. We ultimately held
that substantial evidence supported the district court’s adjudication of the child as a YINC.
In re I.B., ¶ 23.
¶30 In addition to upholding adjudications of a YINC based on a substantial risk of
physical harm, we have also upheld the adjudication of a YINC based upon a substantial
risk of psychological harm. In re D.T.H., 2001 MT 138, ¶ 14, 305 Mont. 502, 29 P.3d
1003. In In re D.T.H., a 15-year-old girl conceived a child with her stepfather. In re
D.T.H., ¶ 3. The child’s father (the mother’s stepfather) ultimately divorced the child’s
grandmother, married the mother, and moved in with the mother and the child. In re
D.T.H., ¶ 3. The family’s social worker testified that the child had not been subjected to
any actual abuse or neglect, but went on to provide that the relationship between the mother
and father raised serious concerns regarding the father’s inclination to commit sexual
offenses against children. In re D.T.H., ¶ 4. The social worker further testified that the
sexual abuse experienced by the mother, along with the mother’s inability to recognize the
impropriety of her sexual relationship with the father, made the mother unable to
adequately parent and protect the child from harm. In re D.T.H., ¶ 4. A psychosexual
exam of the father was also presented, and though the exam concluded that the father did
not pose a significant sexual abuse risk to the child based on the child’s gender, the social
worker who conducted the exam testified that the father should not have access to
children—including both the child and the mother—based on the father being an untreated
sex offender. In re D.T.H., ¶ 16. The social worker also testified that the family unit
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exhibited extremely poor boundaries and that the child’s continued exposure to the family
would prevent the child from developing the boundaries necessary to develop healthy
relationships throughout the course of their lifetime. In re D.T.H., ¶ 17. We found this
evidence sufficient to support the district court’s finding that the child had little hope of
normal emotional, moral, and psychological development under their current conditions
and was therefore at a substantial risk of harm while in the mother’s care. In re D.T.H.,
¶ 19.
¶31 While these cases provide some insight into what establishes a substantial risk
supporting the adjudication of a YINC, they do little to guide us on what fails to establish
such a risk. To this end, a review of reversals in other jurisdictions is informative. See
In re K.M., 75 A.3d 224 (D.C. App. 2013) (reversing a district court’s finding of neglect
where a mother suffered delusions and paranoia, and expert testimony provided what
“could” happen to “a child” as a result of the mother’s condition, but no facts established
that the mother’s child was at risk of suffering a specific emotional or psychological injury
as a result of the mother’s mental illness); In re David M., 36 Cal. Rptr. 3d 411, 416 (Cal.
App. 4th Dist. 2005) (reversing a district court’s finding of neglect that had been based on,
among other things, the mental health of both parents and the mother’s drug use due to the
record lacking “any evidence of a specific, defined risk to either [child] resulting from
mother’s or father’s mental illness, or mother’s substance abuse,” and the presented harms
as being “merely speculative”); In re Dahlia G., 10 N.Y.S.3d 113, 116 (N.Y. App. Div. 2d
Dept. 2015) (reversing a finding of neglect of a 3-month old child who was present when
the father engaged in an act of domestic violence against the mother based on there being
17
“no evidence that the child saw, or was aware of, what happened, or that his emotional
condition was impaired or placed in imminent danger of impairment by it”); S.S. v. Dept.
of Child. Fams., 81 So. 3d 618, 623 (Fla. Dist. Ct. App. 2012) (reversing a finding of
children being at risk of imminent harm based on, among other things, mother’s
psychological instability where evidence established that the mother engaged in self-harm
and substance abuse but there was no expert testimony establishing a “likelihood that [the
mother’s psychological instability] will substantially impair the [children’s] physical,
mental, or emotional health”). From these collective cases, it follows that an adjudication
based on a substantial risk of harm cannot stand where evidence shows only speculative or
generalized concerns, rather than specific, concrete, and imminent threats of harm to a child
caused by the parent’s conduct.
¶32 Here, unlike In re I.B. and In re D.T.H., J.D. was of an age to have significant
self-protective capacities and there are no facts showing that Mother’s mental health and
delusional behaviors placed J.D.’s physical, emotional, or mental health at substantial risk
of harm. Rather, the facts of this case more closely resemble those in which adjudications
were reversed being that there is simply no evidence of a specific, defined risk to J.D.
caused by Mother’s mental health, only the mere existence of Mother’s mental health
disorder and the District Court’s “general concern.”
¶33 It is apparent Mother has suffered from mental health issues for some time. Despite
this, she has raised J.D. and adequately provided for J.D.’s basic necessities and emotional
needs. J.D. has appropriately advanced through school with no licensed professional
identifying him with any physical or mental health problems. At the time of removal, J.D.
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was 14 years old and by virtue of his age had protective capacities of his own—he exhibited
the ability to dress and care for his personal appearance by himself, he exhibited the ability
to prepare his own food and do laundry should he need to, to abide by a general schedule,
to use a telephone, and seek assistance if something unusual occurred. Not only did J.D.
have a good relationship with Mother, but he also had a good relationship with his
grandmother and aunt, as well as the ability to call them for assistance.
¶34 While the Dissent notes various risk factors for teens in general, whether or not there
could be merit in another case to the point that there is a risk of an unsupervised teenager
getting into trouble, such does not apply to the facts of this case nor the application of the
law to the facts of this case. While the record establishes an alleged “cause”—Mother’s
mental health and delusional behaviors—the record lacks evidence of an “effect” on J.D.
The District Court only expressed a generalized concern over risks to J.D.’s health and
well-being and failed to identify a specific, non-speculative, imminent risk. Accordingly,
the record fails to establish a causal relationship between Mother’s mental health and a
substantial risk of physical or psychological harm to J.D. Being that there was no
substantial risk of harm, there was no probable cause supporting an imminent risk of harm,
as required under § 41-3-101(1)(d), MCA. Under these circumstances, there was
insufficient evidence to adjudicate J.D. as a YINC and his removal from Mother’s home
was unwarranted.
¶35 As the District Court’s finding of abuse and neglect was not supported by substantial
evidence, the District Court’s order adjudicating J.D. as a YINC and its subsequent
dispositional order imposing a guardianship of J.D. warrant reversal and vacation.
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Accordingly, it is not necessary for us to address Mother’s additional claims, in which she
asserts the Department failed to make reasonable efforts to prevent J.D.’s removal and
reunify her with J.D., and that the Department’s minimal efforts failed to comport with
federal protections under the Americans with Disabilities Act (ADA).
CONCLUSION
¶36 There was insufficient evidence to adjudicate J.D. as a YINC. As such, we reverse
and vacate the District Court’s April 19, 2023 order adjudicating J.D. as a YINC and,
likewise, vacate the District Court’s subsequent December 11, 2024 Decree of
Guardianship.
/S/ INGRID GUSTAFSON
We Concur:
/S/ JAMES JEREMIAH SHEA
/S/ LAURIE McKINNON
/S/ BETH BAKER
/S/ KATHERINE M. BIDEGARAY
Chief Justice Cory J. Swanson, dissenting.
¶37 Youth in need of care cases are difficult and fact-intensive, and this one is a close
call. If this Court conducted de novo review over the District Court’s adjudication
decisions, then perhaps I would be persuaded to agree with the Court. But we have a
standard of review that is deferential to a district court because we recognize the difficulty
of assessing the conduct of parents, their effect on their children, and many other factors
involved in making decisions on child abuse and neglect cases. The standard of review is
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clearly erroneous for factual findings, and abuse of discretion for the court’s decision on
whether to declare a child a youth in need of care. Matter of B.J.J., 2019 MT 129, ¶ 9,
396 Mont. 108, 443 P.3d 488. Here, the District Court’s findings were not clearly
erroneous, and the court did not abuse its discretion. I therefore respectfully dissent.
¶38 The Opinion is correct, the central question of this YINC determination is whether
Mother was able to provide for J.D.’s basic necessities in light of her ongoing mental illness
struggles. The District Court spent a sufficient amount of time reviewing the records,
listening to witnesses, and observing Mother’s conduct in the courtroom and through the
entire proceedings. We should give the court’s determinations the sufficient weight and
deference required by law. Interestingly, the Opinion correctly states we instruct district
courts to observe a “parent’s past conduct to inform the exercise of its discretion” in these
cases. Opinion, ¶ 20. The District Court followed our guidance, and we now find fault in
its doing so.
¶39 For instance, we acknowledge the Department was justified in getting involved in
this matter and removing J.D. when Mother was arrested and showing significant mental
health concerns. Opinion, ¶ 21. We hold, however, since Mother was doing fine by the
time of the adjudication hearing (only 5 weeks later), the petition should have been
dismissed. The Court overlooks two salient facts upon which the District Court relied.
First, the Mother was doing better in part because the Department had sought permission
for emergency services to remove J.D. and assist Mother with mental health care. Second,
Mother was not actually on the road to long-term stability. She had “a history of having
episodes where she has thrown things at her son, including plates, books, etc.,” and
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“consistently demonstrate[d] out-of-control mental health” where she would “escalate
rapidly,” resulting in a concerning outburst. At the time of the adjudication hearing, she
refused to engage in mental health services to address her mental health. Her episode of
lucidity around the time of the adjudication hearing was not the result of long-term mental
stability, but a transitory condition in the midst of a sustained state of mental illness. So,
the Department’s temporary aid was just that, and without Mother’s willingness to address
her long-term mental stability, the District Court was correct to determine J.D. was still at
risk of neglect.
¶40 A second instance of the Opinion second-guessing the District Court without
applying our standard of review, including in the light most favorable to the prevailing
party below, Opinion ¶ 10, is when it discounts the District Court’s concerns about
Mother’s emotional instability; off-label use of Narcan to treat her “hypnosis”; delusional
statements about being threatened by the CIA, abducted by aliens, and having a device
implanted in her brain; irrational and repeated calls to the police department; and admitted
prior abuse of J.D. Opinion, ¶¶ 23, 26. The Opinion states these observed concerns
happened outside of J.D.’s presence and are unrelated to J.D. One can’t help but think the
District Court reasonably determined these concerns were in fact related to J.D., due to the
simple fact a mother experiencing this level of distress is not able to provide for the basic
needs of her 14-year-old son.
¶41 The final point worth making is the error of dismissing signs of parental neglect
when the child is a 14-year-old boy. As a former county attorney, I experienced no end of
frustration with the Department when it downplayed the needs of teenagers who had
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essentially become feral, surfing on whatever couch happened to be available in a small
community, due to the complete lack of responsibility of neglectful parents. While a
teenage boy or girl may be more self-sufficient than a toddler, they may also confront risks
unique to their ages, such as substance abuse or sexual abuse by older teenagers or young
adults. See generally Kevin M Simon et al., Adolescent Substance Use Disorders, 1.6 New
England J. of Med. Evid., June 2022 https://perma.cc/8HFT-ULPD (risk factors for
adolescent substance use disorder include familial instability and mental health conditions,
high residential mobility, and history of trauma); Christine Banvard-Fox et al., Sexual
Assault in Adolescents, 47.2 Primary Care: Clinics in Office Practice, June 2020, at 2,
https://perma.cc/2JKB-FWAU (“It is estimated that two-thirds of minors who have
experienced sexual abuse were 12 to 17 years old when it first occurred.”). They are also
the prime targeting age for human sex traffickers. See Hannabeth Franchino-Olsen,
Vulnerabilities Relevant for Commercial Sexual Exploitation of Children/Domestic Minor
Sex Trafficking: A Systematic Review of Risk Factors, 22.1 Trauma, Violence & Abuse,
Jan. 2021, at 99, 100 https://perma.cc/6XDW-FNDG (average age of a victim estimated
between 11 to 14 years old). In other words, they still need a functioning parent, and the
Department still owes them a realistic safety assessment. When a district court makes a
finding based upon evidence which is substantial (as it was in this case), then we should
review it according to the correct standard. I would affirm.
/S/ CORY J. SWANSON
Justice Jim Rice joins the dissenting Opinion of Chief Justice Cory J. Swanson.
/S/ JIM RICE
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