Guardianship Under § 41-3-444, MCA Requires No “Unfitness” Finding and Imposes No Clear-and-Convincing Burden

I. Introduction

In Matters of I.D., T.D., and L.D., Youths in Need of Care, 2025 MT 299, the Montana Supreme Court affirmed an Eighth Judicial District Court order granting the Montana Department of Public Health and Human Services (the “Department”) a guardianship of three children over their mother’s objection.

The case arose from a multi-year Youth in Need of Care proceeding initiated after an infant, T.D., presented with unexplained fractures. The children spent most of their lives in state custody, experienced multiple placements, and ultimately stabilized with a long-term caregiver (S.H.). Although Mother substantially completed formal treatment-plan tasks, the Department petitioned for guardianship rather than termination, alleging it had made reasonable reunification efforts, further efforts would likely be unproductive, and guardianship served the children’s best interests under § 41-3-444, MCA.

The appeal presented two central legal disputes: (1) whether the District Court clearly erred in finding “reasonable efforts” and “likely unproductive” further efforts under § 41-3-444(2)(d), MCA; and (2) whether guardianship requires (a) a finding that the parent is “unfit,” and/or (b) proof by clear and convincing evidence.

II. Summary of the Opinion

The Court affirmed. It held that substantial evidence supported the District Court’s findings that the Department made reasonable efforts to reunite the family and that further efforts would likely be unproductive. It also held that § 41-3-444, MCA does not require a finding of parental “unfitness” before ordering guardianship and does not impose a clear-and-convincing-evidence burden on the Department. The Court declined to insert omitted requirements into the statute and relied on its prior statement that § 41-3-444 contains no clear-and-convincing standard.

III. Analysis

A. Precedents Cited

• In re S.S., 2022 MT 75
  The Court used In re S.S. for multiple controlling points: (1) the standard of review (clear error for factual findings; substantial evidence definition; viewing evidence in the light most favorable to the prevailing party); (2) the relevance of treatment-plan compliance to the “likely unproductive” inquiry; and (3) critically, a prior rejection (in a footnote) of the argument that § 41-3-444 requires proof by clear and convincing evidence. This opinion effectively cements that reading by treating it as settled and dispositive.
• In re Custody of & the Parental Rights of T.Z. & J.Z., 2000 MT 205
  Cited for the clear-error framework and deference to district court factfinding. Its practical influence here is to constrain appellate reweighing where the record contains conflicting testimony about parenting capacity, safety concerns, and the children’s preferences.
• In re J.H., 2016 MT 35
  The Court drew on In re J.H. both for the definition of “substantial evidence” (“even if weak and conflicting”) and for the proposition that “reasonable efforts” is a fact-intensive, case-specific inquiry. This enabled the Court to treat the Department’s overall multi-year service array as sufficient despite one acknowledged gap (non-pursuit of attachment therapy with I.D.).
• In re R.J.F., 2019 MT 113
  The Court relied on In re R.J.F. to define “reasonable efforts” as good-faith development and implementation of treatment plans and assistance with completion, while reiterating that the Department need not perform “herculean efforts.” It also emphasized the reciprocal duty: a parent must avail herself of services and engage successfully. This precedent underwrote the Court’s acceptance that inconsistent engagement and ongoing safety concerns can make additional services unreasonable or futile.
• In re R.L., 2019 MT 267
  Cited for the principle that “reasonable efforts” is not static and depends on circumstance—particularly where a parent’s actions impede reunification. Though the facts differ, the citation supports flexibility and contextual judgment rather than rigid checklists of services.
• In re K.L., 2014 MT 28
  Used to emphasize that “reasonable efforts” analysis includes the child’s need for permanency and stability. Here, the children’s long time in custody and their bonding to the caregiver functioned as a legally relevant consideration, not merely a policy preference.
• State v. Running Wolf, 2020 MT 24 and § 1-2-101, MCA
  These authorities supplied the interpretive anchor: courts must not “insert what has been omitted.” They were decisive against Mother’s attempt to import a termination-style “unfitness” finding into the guardianship statute.
• In re T.M.M., 234 Mont. 283
  Cited for the proposition that the district court is best positioned to weigh evidence—supporting deference where the judge presided for years, scrutinized the Department’s shifting concerns, and made credibility-sensitive determinations.

B. Legal Reasoning

1. “Reasonable efforts” under § 41-3-444(2)(d), MCA is evaluated holistically and with child safety as a limiting principle

The Court framed the statutory requirement: before guardianship, the district court must find the Department made reasonable efforts, further efforts would likely be unproductive, and reunification would be contrary to the child’s best interests. The opinion then applied the long-standing “reasonable efforts” doctrine (as articulated in In re R.J.F. and In re J.H.) to the full record of services—visitation, anger management, PCIT, attachment therapy (for one child), mental health therapy, medication management, and practical supports (transportation, scheduling).

A key doctrinal move was treating safety and well-being as constraints on reunification work. Even though the District Court was “troubled” by the Department’s failure to initiate attachment therapy between Mother and I.D., the Supreme Court accepted that: (a) a child’s therapist was not willing to begin it “at this time” for well-being/timing reasons; (b) the child was refusing contact; and (c) the Department may prioritize health and safety under § 41-3-423(1)(c), MCA. The Court thus treated the attachment-therapy omission as a non-fatal imperfection rather than a violation negating overall reasonable efforts.

2. “Likely unproductive” further efforts does not require treatment-plan failure—and can be supported even where plan tasks are completed

Mother argued that completion of a treatment plan should bar a finding that further efforts would be unproductive. The Court rejected that approach by distinguishing guardianship from termination: unlike § 41-3-609(1)(f)(i), MCA (termination), § 41-3-444(2), MCA (guardianship) does not require a finding that a treatment plan was “unsuccessful.”

The Court treated treatment-plan completion as relevant but not dispositive. It accepted the Department’s framing that the plan may be “completed” yet not “successful” in resolving the underlying safety and parenting-capacity concerns—particularly the ability to manage multiple children simultaneously and address one child’s extraordinary behavioral needs. Applying the substantial-evidence lens (from In re S.S. and In re J.H.), it refused to reweigh conflicting testimony and held that the Department’s witnesses provided adequate support for the “likely unproductive” finding.

3. No “unfit parent” finding is required for guardianship under § 41-3-444, MCA

Mother attempted to import the termination statute’s “unfit” language into guardianship by analogy. The Court’s analysis was textual: “unfit” appears in § 41-3-609(1)(f)(ii), MCA (termination), but not in § 41-3-444, MCA (guardianship). Under § 1-2-101, MCA and State v. Running Wolf, the judiciary may not insert that omitted requirement. The result is a clean rule: a guardianship may be ordered upon the findings enumerated in § 41-3-444(2), MCA without a separate “unfitness” determination.

4. No clear-and-convincing burden applies to § 41-3-444 guardianships

The Court noted that § 41-3-422(5), MCA specifies burdens for certain proceedings (including clear and convincing evidence for termination), but neither § 41-3-422 nor § 41-3-444 specifies a burden for guardianship. The Court declined to “insert” a clear-and-convincing requirement, and it relied on In re S.S. (footnote) stating that § 41-3-444 “does not impose” such a burden. Thus, while the opinion does not affirmatively announce a particular burden (e.g., preponderance) as a universal rule, it squarely forecloses the clear-and-convincing standard as a statutory mandate for § 41-3-444 guardianships.

C. Impact

• Clarifies the doctrinal boundary between guardianship and termination.
  By refusing to graft “unfitness” and termination-style evidentiary burdens onto § 41-3-444, the Court reinforces that guardianship is a distinct permanency option—potentially easier to obtain than termination—while still requiring best-interests and reasonable-efforts findings.
• Strengthens a “function over form” view of treatment plans.
  The opinion validates the Department’s argument that the critical question is not whether tasks were checked off but whether parenting capacity and child safety have materially improved. This may influence future litigation strategies: parties will likely focus on demonstrable parenting functionality and child outcomes rather than task completion alone.
• Affirms agency discretion to pause/limit reunification services when child well-being is at risk.
  The Court’s acceptance of the Department’s visit modifications and the non-pursuit of attachment therapy (where a therapist hesitated and the child resisted) signals that “reasonable efforts” does not compel services that professionals believe may retraumatize a child or be counterproductive.
• Elevates permanency considerations within “reasonable efforts.”
  By explicitly tying reasonable efforts to the child’s need for stability (via In re K.L.), the Court continues a trend that prolonged cases can justify shifting from reunification to permanency when the record supports stagnation or regression in parental capacity.

IV. Complex Concepts Simplified

• “Reasonable efforts” (not “herculean efforts”): The Department must act in good faith to offer and help implement services aimed at reunification, but it is not required to do everything imaginable. The parent also must participate and benefit in a way that addresses the child-safety concerns.
• “Further efforts would likely be unproductive”: The court is not asking whether additional services are possible in theory; it is asking whether more time and more services are likely to change the reunification outcome within a timeframe consistent with the child’s needs for stability.
• Guardianship vs. termination: Termination permanently ends the legal parent-child relationship and requires heightened procedural protections expressly set by statute. Guardianship is a permanency arrangement that can leave parental rights intact while transferring decision-making authority to a guardian; its statutory findings are different, and the Court refused to import termination requirements.
• “Substantial evidence” and appellate deference: On appeal, the question is not whether some evidence supports Mother; it is whether a reasonable person could accept the evidence supporting the District Court’s findings—even if the record is conflicting.
• Statutory interpretation—“don’t insert what’s omitted”: Courts apply the law as written. If the Legislature included “unfitness” in the termination statute but not in the guardianship statute, courts generally will not add it.

V. Conclusion

Matters of I.D., T.D., and L.D., Youths in Need of Care confirms that Montana guardianships under § 41-3-444, MCA stand on the statute’s own findings, not termination-law analogies. The Department need not prove parental “unfitness,” and § 41-3-444 does not impose a clear-and-convincing-evidence requirement. The decision also underscores that “reasonable efforts” is a holistic, child-centered inquiry constrained by safety and permanency needs—and that treatment-plan completion may not matter if the underlying conditions making return unsafe remain.