Guardianship Need Not Be Considered Absent a Petition Once Statutory Grounds for Termination Are Met

1. Introduction

This appeal arose from a child-protection case involving E.A. (“Mother”) and her son W.B.A., a youth adjudicated in need of care after repeated safety concerns. The Montana Department of Public Health and Human Services, Child and Family Services Division (“the Department”), became involved with Mother as early as 2013 and later with W.B.A. beginning during pregnancy.

W.B.A. was removed in 2023 after reports of neglect and safety risks tied to domestic violence, unstable and unsafe household conditions, and Mother’s mental health and substance-use issues. The court approved a treatment plan in October 2023. After extended temporary legal custody and uneven progress, the Department petitioned to terminate Mother’s parental rights in August 2024. Following a three-day hearing, the District Court terminated Mother’s rights and granted the Department permanent legal custody.

Key issues on appeal:

• Whether the District Court abused its discretion by not considering permanent guardianship as an alternative to termination when no guardianship petition was filed.
• Whether the District Court clearly erred in finding statutory grounds for termination—particularly noncompletion of the treatment plan and that Mother’s unfitness was unlikely to change within a reasonable time.
• How “reasonable efforts” and the “15 of the most recent 22 months” presumption were applied in light of statutory updates.

2. Summary of the Opinion

The Supreme Court affirmed the termination order. It held that the District Court was not required to consider guardianship sua sponte because neither the Department nor the guardian ad litem/CASA petitioned for guardianship. Once the Department proved statutory grounds for termination by clear and convincing evidence, the statutes did not obligate the court to explore guardianship on its own.

On the merits, the Court concluded substantial credible evidence supported termination under § 41-3-609(1)(f), MCA (failure to successfully complete a treatment plan and unfitness unlikely to change within a reasonable time). Because one statutory ground is sufficient, the Court did not reach Mother’s separate challenge to the chronic, severe neglect basis.

3. Analysis

3.1 Precedents Cited

A. Standard of review and burdens

• In re A.L.P., 2020 MT 87 — Cited for the abuse-of-discretion standard in termination appeals.
• In re D.L.L., 2025 MT 98 — Defines abuse of discretion in this context (clearly erroneous facts, erroneous law, arbitrariness, or actions exceeding reason resulting in substantial injustice).
• In re D.F., 2007 MT 147 — Places the burden on the appellant to show district court error.

B. Due process and evidentiary burden

• In re E.Z.C., 2013 MT 123 — Emphasizes that parental rights are a fundamental liberty interest requiring fundamentally fair proceedings; also supplies the Court’s definition of “clear and convincing evidence.”
• In re T.S., 2013 MT 274 — Cited for statutory-criteria framing and, critically, for the rule that once termination criteria are met, the court is not required to consider guardianship as a permanent option (discussed further below).

C. Guardianship versus termination (the core dispute)

• In re A.B., 2020 MT 64 — Reinforces that, absent a petition for guardianship, “no limitation requires the district court to consider other options prior to terminating parental rights,” and that termination is discretionary once statutory criteria are satisfied.
• In re T.S., 2013 MT 274 — The controlling authority Mother sought to revisit; the Court declined, noting post-2013 statutory changes cited by Mother did not alter the guardianship petition requirement.

D. Issue preservation and arguments raised for the first time on appeal

• In re T.E., 2002 MT 195 — Used to reject Mother’s newly raised argument that the Department’s decision to seek termination over guardianship was reviewable as an agency decision; the Supreme Court reiterated it generally will not consider issues raised for the first time on appeal.
• Winchell v. Mont. Dep't Nat. Res. & Conservation, 1999 MT 11 — Mentioned only as part of Mother’s unpreserved agency-review theory.

E. Treatment plan compliance and “unlikely to change” findings

• In re A.N., 2000 MT 35 and In re D.V., 2003 MT 160 — Stand for the proposition that partial compliance with a treatment plan is insufficient; complete compliance is required.
• In re J.W., 2001 MT 86 — “Well-intentioned efforts” do not equal completion or success; also used for the requirement that the parent must not only comply but be successful in remedying the unfitness.
• In re R.B.O., 277 Mont. 272 — Cited for the same “success in resolving the conduct or condition” principle.
• In re M.T., 2002 MT 174 (In re M.T. I) — Used for the proposition that the court evaluates whether conditions are likely to change within a reasonable time by considering the parent’s past and present conduct.

F. “Reasonable efforts” doctrine

• In re M.T., 2020 MT 262 (In re M.T. II) — Explains that reasonable efforts are fact-dependent and assessed under the totality of circumstances; also includes the oft-cited point that the Department’s duty is “reasonable,” not “herculean.”
• In re C.M., 2019 MT 227 — Cited (via In re M.T. II) for the clarification that reasonable efforts are not a separate, freestanding prerequisite to termination; rather, they can support findings relevant to termination (e.g., “unlikely to change”).
• In re T.D.H., 2015 MT 244 — Emphasizes that the parent retains ultimate responsibility for treatment plan compliance.
• In re A.M.G., 2022 MT 175 — The Department need not “endlessly pursue an unwilling parent.”
• In re D.L., 2019 MT 267 — Reinforces the parent’s obligation to avail themselves of services arranged or referred by the Department and to engage sufficiently to complete the plan.

G. Best interests and sufficiency of a single statutory basis

• In re D.H., 2001 MT 200 — Cited for the paramountcy of the child’s best interests when in conflict with parental rights.
• In re S.T., 2008 MT 19 — Confirms that where multiple statutory grounds are found, any one correctly relied upon is sufficient to support termination.

3.2 Legal Reasoning

A. Guardianship is not a mandatory alternative absent a guardianship petition

Mother’s lead argument was procedural: she contended the District Court should have considered permanent guardianship as an alternative to termination even though no one petitioned for it. The Court resolved this by straightforward statutory-and-precedent application:

• § 41-3-444(1), MCA authorizes a district court to appoint a guardian upon petition of the Department or a guardian ad litem.
• Under In re A.B., 2020 MT 64 (quoting In re T.S., 2013 MT 274), the absence of such a petition means the court is not required to consider guardianship “prior to terminating parental rights.”

Mother tried to re-litigate In re T.S. by arguing that legislation enacted after 2013 reflected a “fundamental shift” in Montana’s child-protection statutes. The Court rejected this attempt because the changes Mother cited did not address guardianship or modify the procedural mechanism requiring a petition. As a result, once the Department met its burden on termination grounds, the court had no obligation to reach for guardianship on its own initiative.

B. Termination upheld on treatment plan noncompletion and “unlikely to change”

The District Court had relied on two statutory bases: chronic, severe neglect and treatment plan failure with unfitness unlikely to change. The Supreme Court affirmed on the latter alone:

• The record supported findings of long-running and recurrent drivers of unfitness: substance use, mental health instability, unsafe housing, domestic violence, and unsafe individuals in the home.
• The Court emphasized Montana law requiring more than “efforts” or “partial compliance” (In re A.N.; In re D.V.; In re J.W.). The parent must be successful in resolving the condition rendering them unfit (In re J.W.; In re R.B.O.).
• The “unlikely to change within a reasonable time” determination properly looked to Mother’s past and present conduct (In re M.T. I), including admissions about substance influence for “half of” the child’s life and uncertainty about sustained sobriety and future relationship decisions.

The Court also treated the “15 of the most recent 22 months” presumption (§ 41-3-604(1), MCA) as supportive context, not as a substitute for evidence. It tied the lengthy custodial period to Mother’s delayed engagement—finding meaningful improvement only after the termination petition was filed.

C. “Reasonable efforts” after 2023 statutory changes

Mother argued the District Court failed to examine the Department’s efforts under the “new reasonable efforts standard,” referencing § 41-3-423(1)(b), MCA (as amended in 2023). The Supreme Court responded in two moves:

• It reaffirmed that reasonable efforts remain fact-dependent and assessed under the totality of the circumstances (In re M.T. II), and that the Department’s obligation is “reasonable,” not “herculean” (In re M.T. II).
• It reiterated that reasonable efforts are not a separate element required for termination; they may support predicate findings such as whether a parent is unlikely to change in a reasonable time (In re M.T. II citing In re C.M.).

On the facts, the Court listed concrete Department actions (contact attempts, referrals, testing opportunities, parenting supports, supervised visitation arrangements, gas vouchers, and sibling placement stability) and deferred to the District Court’s familiarity with the case’s history.

D. Claimed accommodations and participation of extended family

Mother argued that reunification efforts were unreasonable because the Department did not involve her adoptive father as a visitation supervisor and did not provide “special accommodation” for her mental illnesses. The Court rejected both:

• It found no showing that excluding the adoptive father was unreasonable, particularly where the child did not want that arrangement.
• It found no showing that the treatment plan was challenged or that specific disability-based accommodation issues (including any specific reference to ADA requirements) were timely presented when the plan was proposed and adopted; the Court thus treated the argument as unsupported by the procedural record.

3.3 Impact

Although noncitable, the opinion has practical, recurring significance in Montana child-welfare litigation because it demonstrates (and reinforces through citation to binding cases) several operational rules:

• Guardianship is not an automatic “less restrictive alternative.” Absent a guardianship petition under § 41-3-444(1), MCA, district courts are not required to canvass guardianship before terminating parental rights once statutory termination criteria are proved (In re A.B.; In re T.S.). Practically, parties seeking guardianship must affirmatively plead it through the proper statutory mechanism.
• “Reasonable efforts” arguments must be tethered to concrete facts and preserved. The Department must be reasonable, not “herculean,” and it need not chase an unwilling parent indefinitely (In re M.T. II; In re A.M.G.).
• Treatment plan compliance is measured by sustained change, not late-stage momentum. The opinion underscores that improvement after a termination petition may be weighed against prior months of nonengagement and an established history of relapse or instability, especially where expert testimony supports a poor prognosis.
• One valid statutory ground is enough. Appellate litigation strategy matters: if any one basis is affirmed, the termination stands (In re S.T.).

4. Complex Concepts Simplified

• Youth in Need of Care (YINC): A legal status for a child when the court finds abuse, neglect, or similar conditions requiring state intervention and court supervision.
• Treatment plan: A court-approved set of tasks/services for a parent designed to remedy problems that led to state involvement (e.g., sobriety monitoring, mental health treatment, parenting education, safe housing). Montana cases require not just participation but successful remediation.
• Clear and convincing evidence: A heightened civil proof standard—more than “more likely than not,” less than “beyond a reasonable doubt”—requiring evidence that is definite and highly persuasive (In re E.Z.C.).
• Abuse of discretion (appellate review): The Supreme Court does not re-try the case. It asks whether the district court’s findings were clearly erroneous, its legal conclusions wrong, or whether it acted arbitrarily or unreasonably (In re D.L.L.).
• Reasonable efforts: Steps the Department takes to prevent removal and to reunify families. The efforts must be reasonable under the circumstances, not perfect; the parent still bears ultimate responsibility to engage (In re M.T. II; In re T.D.H.).
• “15 of the most recent 22 months” presumption: A statutory presumption that termination may be in the child’s best interests after prolonged state custody (§ 41-3-604(1), MCA). It does not replace proof but can weigh in the best-interests analysis when the timeline reflects parental nonremediation.
• Guardianship vs. termination: Guardianship can provide permanency without severing the parent-child legal relationship, but Montana’s child-protection framework requires a guardianship petition by the Department or guardian ad litem; courts are not required to devise guardianship sua sponte when termination criteria are met (In re A.B.; In re T.S.).

5. Conclusion

Matter of W.B.A. affirms a termination order by applying settled Montana law: when the Department proves statutory grounds for termination by clear and convincing evidence—here, treatment plan noncompletion and unfitness unlikely to change—termination may be ordered, and the district court is not obligated to consider permanent guardianship in the absence of a guardianship petition. The opinion also underscores two recurring lessons in child-protection litigation: reasonable efforts are judged under the totality of circumstances (and are not “herculean”), and durable, timely behavioral change—not late or partial compliance—drives the “reasonable time” and best-interests determinations.