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

Case: In the Matter of: I.D., T.D., and L.D., Youths in Need of Care (2025 MT 299)
Court: Supreme Court of Montana
Date: December 29, 2025

1. Introduction

This appeal arises from a multi-year child protection matter in Cascade County involving J.F. (Mother) and her three children (I.D., T.D., and L.D.). After serious injury concerns for infant T.D., the Montana Department of Public Health and Human Services (the Department) obtained emergency protective services and temporary legal custody, pursued reunification through a court-approved treatment plan, and—after repeated extensions and an evolving record—petitioned for guardianship with the children’s caretaker, S.H.

The case reached the Supreme Court of Montana on two central issues:

• Reasonable efforts / futility: Whether the District Court clearly erred in finding that the Department made reasonable efforts to reunite the family and that further efforts would likely be unproductive under § 41-3-444(2)(d), MCA.
• Burden and parental “unfitness”: Whether guardianship under § 41-3-444, MCA requires (a) proof by clear and convincing evidence and/or (b) an express finding that the parent is “unfit.”

2. Summary of the Opinion

The Court emphasized that guardianship is statutorily distinct from termination of parental rights: the Legislature included an “unfitness” concept and a clear-and-convincing burden in the termination statute, but not in the guardianship statute. The Court also upheld the District Court’s fact-bound determinations that, after years of services, Mother’s parenting capacity and the children’s needs (including their need for permanency and expressed preferences) supported guardianship with S.H.

3. Analysis

A. Precedents Cited

In re S.S., 2022 MT 75

This decision provided the principal doctrinal scaffolding in three ways:

• Standard of review framework: The Court reiterated that factual findings are reviewed for clear error and that “substantial evidence” is evidence a reasonable mind might accept, even if weak or conflicting (quoted in this Opinion from In re S.S.).
• Guardianship burden point: The Opinion leaned on In re S.S. to reject the contention that § 41-3-444, MCA requires proof by clear and convincing evidence, quoting the earlier case’s observation that the statute “does not impose a ‘clear and convincing evidence’ burden.”
• Reunification futility relevance: The Court used In re S.S. to show that treatment plan compliance can be relevant to the “unproductive” inquiry, while also making clear that guardianship does not import the termination statute’s “unsuccessful treatment plan” element.

In re Custody of & the Parental Rights of T.Z. & J.Z., 2000 MT 205

Cited for the well-established clear-error test on appeal. Its influence here is methodological: it frames how deferentially the Supreme Court reviews the District Court’s factual determinations about efforts, safety, and the likely productivity of further services.

In re J.H., 2016 MT 35

The Opinion relied on In re J.H. in two complementary ways:

• Case-specific nature of reasonable efforts: “Reasonable efforts” depends on the unique facts of each case, supporting a holistic evaluation rather than a checklist approach.
• Substantial evidence can be conflicting: The Court invoked In re J.H. for the proposition that substantial evidence may exist even when the record contains weak and conflicting proof—important given disputed testimony about Mother’s parenting capacity and the implications of I.D.’s disclosure.

In re R.J.F., 2019 MT 113

The Court used In re R.J.F. to define and limit the Department’s reunification obligations:

• The Department must act in good faith to develop and implement plans and services, but is not required to undertake “herculean efforts.”
• Parents bear an engagement obligation: they must avail themselves of offered services and successfully complete the plan, reinforcing that reasonable efforts is a two-way street.

In re R.L., 2019 MT 267

In re R.L. was cited for the proposition that reasonable efforts are not “static” and must be assessed in the real-world context of the case’s evolving circumstances. Here, it supported the Court’s refusal to isolate the Department’s omission of a specific service (attachment therapy with I.D.) from the broader three-and-a-half-year reunification record and the child-safety overlay.

In re K.L., 2014 MT 28

The Court invoked In re K.L. to emphasize that a child’s need for permanency and stability is a relevant consideration when assessing whether the Department made reasonable efforts. This provided doctrinal support for the Opinion’s repeated focus on the children having spent most of their lives in state custody and the system’s obligation not to prolong uncertainty indefinitely.

State v. Running Wolf, 2020 MT 24

This case anchored the Court’s statutory-interpretation methodology: courts must interpret statutes as written and may not insert omitted requirements. The Opinion used this principle—along with § 1-2-101, MCA—to reject Mother’s attempt to graft a termination-style “unfit parent” prerequisite onto § 41-3-444, MCA.

In re T.M.M., 234 Mont. 283 (1988)

Cited for the trial court’s institutional advantage in weighing evidence. The Opinion relied on it to justify deference to a judge who presided over the case for more than three years and actively scrutinized the Department’s position before ruling.

B. Legal Reasoning

1) The “reasonable efforts” finding was supported despite a disputed service gap

The statutory touchstone was § 41-3-444(2)(d), MCA (guardianship findings), read in light of § 41-3-423(1), MCA (reasonable efforts while prioritizing child health and safety). Mother argued the Department undermined reunification after I.D.’s sexual abuse disclosure by pausing/reducing visits, changing supervisors, and not initiating attachment therapy with I.D.

The Court’s reasoning was pragmatic and safety-centered:

• Visitation and supervision decisions: The Court accepted that swapping out the original supervisor (a potential witness) and temporarily pausing visits based on physical symptoms and medical advice reflected the Department’s duty to prioritize safety.
• Attachment therapy omission: The District Court was “troubled” by the non-pursuit, but the Supreme Court held it was not clear error to find the Department’s overall efforts reasonable given testimony that the child’s therapist was not prepared to begin at that time and that compelling I.D. could be counterproductive or traumatizing.
• Whole-record assessment: The Court emphasized the length of the case (over three years), the breadth of services (anger management, PCIT, attachment therapy with T.D., therapy, medication management, visitation supports, and transportation assistance), and the repeated extensions before guardianship was sought.

2) “Further efforts would likely be unproductive” did not require treatment-plan noncompliance

The Court highlighted a key statutory distinction: unlike termination proceedings, guardianship under § 41-3-444, MCA does not require a finding that a treatment plan was unsuccessful. While treatment-plan compliance is relevant, it is not dispositive. Even with the Department’s concession that Mother completed her plan, the Court upheld the finding of likely futility based on testimony that the underlying safety and parenting-capacity concerns persisted (especially the ability to manage all children and handle L.D.’s extraordinary behavioral needs).

Notably, the Court treated “productivity” as an outcomes-oriented inquiry: whether additional services were likely to achieve safe reunification in a timeframe consistent with the children’s need for permanency, not whether the parent could check every service box.

3) Guardianship does not require an “unfit parent” finding

Mother attempted to analogize § 41-3-444(2)(d), MCA (“further efforts… likely unproductive”) to termination law under § 41-3-609(1)(f)(ii), MCA (parent “unfit” and unlikely to change). The Court rejected this importation exercise on textual grounds:

• Under § 1-2-101, MCA and State v. Running Wolf, courts cannot insert statutory language or requirements.
• The Legislature explicitly used “unfit” terminology and heightened requirements in the termination statute, but not in § 41-3-444, MCA.

The decision thus crystallizes a clean doctrinal line: guardianship findings are those the guardianship statute lists, without an implied constitutional-like or termination-like “unfitness” predicate being judicially added.

4) No clear-and-convincing burden is imposed by § 41-3-444, MCA

The Court relied on statutory structure and precedent:

• § 41-3-422(5), MCA expressly assigns burdens for certain proceedings (probable cause for emergency actions; preponderance for adjudication and custody; clear and convincing for termination), but is silent on guardianship.
• § 41-3-444, MCA likewise does not specify a heightened burden.
• In re S.S. had already rejected the clear-and-convincing argument for guardianship.

The Opinion stops short of expressly announcing “preponderance” as the guardianship burden; instead it holds only what is necessary to decide the appeal: clear and convincing is not required, and the District Court’s findings were supported under substantial-evidence review.

C. Impact

1) A clarifying rule for Montana guardianship practice

The most durable effect of the Opinion is doctrinal clarity: litigants may not transform § 41-3-444, MCA guardianship proceedings into termination-by-proxy by demanding (a) an express “unfit parent” finding or (b) clear-and-convincing proof. Trial courts are to apply the statute’s enumerated findings, especially reasonable efforts, futility, and best interests.

2) Reasonable efforts remains holistic—and safety can narrow services

The Court’s approach suggests that “reasonable efforts” will continue to be assessed on the whole record across the life of the case, and that service decisions constrained by credible safety concerns (including medical recommendations and a child’s mental health considerations) can still fall within reasonableness even when they reduce contact or delay a relational intervention.

3) Emphasis on permanency and sibling cohesion

The Opinion reinforces permanency as a meaningful factor in both the “reasonable efforts” and “unproductive” analyses, consistent with In re K.L.. It also highlights a practical best-interests consideration: keeping full siblings together when the record supports that separation is unwarranted.

4) Litigation strategy: completion is not the same as success

Parents and practitioners should take note that “treatment plan completion” may not defeat guardianship when the court finds that the conditions making the children unsafe persist. Conversely, agencies should expect close judicial scrutiny when arguing “completion but not success” and must tie persistent conditions to concrete evidence of ongoing risk, parenting incapacity, or child harm.

4. Complex Concepts Simplified

• Guardianship vs. termination: Guardianship assigns legal authority for a child’s care to a guardian without permanently severing the parent-child legal relationship the way termination does. Because it is not termination, courts will not automatically import termination-specific findings like “unfitness.”
• “Reasonable efforts”: The Department must make good-faith efforts to help reunify the family (services, referrals, assistance), but it need not do everything imaginable and must still prioritize child safety.
• “Further efforts… likely unproductive”: A forward-looking judgment about whether additional reunification work is likely to achieve safe reunification within a reasonable timeframe, considering the child’s need for stability and what the case history shows.
• “Substantial evidence” and “clear error” review: On appeal, the question is not whether another judge could have ruled differently, but whether the trial court had enough evidence that a reasonable person could accept to support its findings.
• Burdens of proof: “Clear and convincing” is a higher standard typically reserved for termination; the Court held that the guardianship statute does not impose that higher burden.
• ICWA mention: The hearing was continued to verify whether the Indian Child Welfare Act applied; after confirmation the children were not eligible for tribal enrollment, ICWA did not govern this case.

5. Conclusion

2025 MT 299 affirms a guardianship after years of reunification efforts and, more importantly, sharpens Montana doctrine on what guardianship requires—and what it does not. The Supreme Court held that § 41-3-444, MCA does not require an explicit finding that a parent is “unfit,” and it does not impose a clear-and-convincing evidence burden. Substantively, the Court endorsed a whole-record, child-safety- and permanency-informed evaluation of reasonable efforts and futility, deferring to the trial judge’s long-running oversight and credibility calls.