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

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

1. Introduction

This appeal arises from a long-running child protection case in Cascade County involving three siblings—I.D., T.D., and L.D.—who were adjudicated youths in need of care after one-month-old T.D. presented at the emergency room with multiple unexplained fractures. The Department of Public Health and Human Services (the “Department”) removed the children, implemented treatment plans for the parents, and pursued reunification over several years through repeated extensions of temporary legal custody.

After a trial return to Mother’s care failed and the children returned to placement (eventually with S.H., Mother’s former foster parent), the Department changed the permanency plan from reunification to guardianship. Complicating the case, after a March 2024 supervised visit, I.D. made a sexual abuse disclosure involving Mother’s partner (S.G.), leading to pauses and restrictions on visitation and further strain in Mother–child relationships.

Parties: J.F. (Mother, appellant) vs. Department of Public Health and Human Services (appellee); the children’s interests were represented by a guardian ad litem (GAL).

Issues on appeal: (1) whether the District Court clearly erred in finding the Department made “reasonable efforts” and that further efforts would likely be unproductive under § 41-3-444(2)(d), MCA; and (2) whether guardianship required an “unfitness” finding and/or a heightened burden of proof (clear and convincing evidence).

2. Summary of the Opinion

The Montana Supreme Court affirmed the guardianship order. It held that substantial evidence supported the District Court’s findings that the Department made reasonable efforts to reunify the family and that further reunification efforts would likely be unproductive. The Court further held that § 41-3-444, MCA does not require a finding that the parent is “unfit” before ordering guardianship, and it does not impose a “clear and convincing evidence” burden on the Department in guardianship proceedings.

3. Analysis

3.1 Precedents Cited

The Court’s analysis relies on an interlocking set of Montana standards governing (a) appellate review, (b) “reasonable efforts” in child protection matters, and (c) statutory interpretation.

• In re S.S., 2022 MT 75
  
  • Review framework: Cited for the standard that findings are reviewed for clear error and conclusions of law for correctness, and for the definition of “substantial evidence.”
  • Guardianship burden point: The Court quoted its prior rejection of a “clear and convincing” burden in guardianship cases, emphasizing that § 41-3-444, MCA “does not impose a ‘clear and convincing evidence’ burden.” This precedent effectively foreclosed Mother’s request to elevate the Department’s burden.
  • Reunification unproductiveness: Used to show that treatment-plan compliance is relevant to (but not dispositive of) whether further reunification efforts would likely be unproductive.
• In re Custody of & the Parental Rights of T.Z. & J.Z., 2000 MT 205
  
  • Clear error test: Reinforced the three-part clear-error inquiry (lack of substantial evidence, misapprehension of evidence, or firm conviction of mistake).
• In re J.H., 2016 MT 35
  
  • “Substantial evidence” definition: Quoted via In re S.S. as “evidence that a reasonable mind might accept as adequate.”
  • Reasonable-efforts flexibility: Cited for the proposition that reasonable efforts must be analyzed under the “unique facts of each case,” supporting the Court’s rejection of a rigid checklist approach to services (e.g., attachment therapy for I.D.).
• In re R.J.F., 2019 MT 113
  
  • Content of “reasonable efforts”: The Court relied on this case for the Department’s obligations to develop and implement treatment plans in good faith and assist parents.
  • Limits on the Department: The opinion reiterated that the Department need not make “herculean efforts” and that parents must avail themselves of and engage in services—an important lens through which the Court viewed periods of Mother’s inconsistent engagement.
• In re R.L., 2019 MT 267
  
  • Reasonable efforts are not “static”: Used to underscore that reasonableness depends on evolving circumstances—particularly relevant where the Department adjusted visitation and service decisions after a sexual abuse disclosure and in light of child safety considerations.
• In re K.L., 2014 MT 28
  
  • Permanency consideration: Cited to emphasize that the child’s need for permanency and stability is a relevant component in evaluating “reasonable efforts,” supporting the trial court’s and Supreme Court’s focus on the children’s long time in care and need for stable placement.
• State v. Running Wolf, 2020 MT 24
  
  • Statutory interpretation discipline: Invoked with § 1-2-101, MCA to justify refusing to read an “unfitness” requirement into the guardianship statute.
• In re T.M.M., 234 Mont. 283
  
  • Trial court’s vantage point: Cited for deference to the district court’s ability to weigh evidence—especially significant here because the judge presided over the case for more than three years and repeatedly monitored progress, setbacks, and the Department’s evolving position.

3.2 Legal Reasoning

A. The statutory guardianship findings and “reasonable efforts”

Guardianship for a child in the Department’s custody is authorized under § 41-3-444(1), MCA. Before granting the petition, the court must find, among other required facts, that the Department made reasonable reunification efforts, that further efforts would likely be unproductive, and that reunification would be contrary to the child’s best interests. § 41-3-444(2)(d), MCA.

The Court applied the familiar “reasonable efforts” framework: the Department must act in good faith to develop and implement treatment plans and services while balancing child health and safety. § 41-3-423(1), MCA. On this record, the Court emphasized:

• the multi-year provision of services (therapy, medication management, PCIT, attachment therapy for T.D., visitation, anger management);
• assistance with logistics (transportation supports, scheduling help) during periods of Mother’s inconsistent engagement;
• the Department’s duty to prioritize safety in response to I.D.’s disclosure and medical recommendations, including pausing visits briefly, changing supervisors, and reducing visit duration.

A key dispute was the Department’s failure to initiate attachment therapy between Mother and I.D. despite one provider’s recommendation and a hearing continuance that arguably created time. The District Court expressed concern, but the Supreme Court accepted the trial court’s reasoning that: (i) a therapist (Freer) was not willing to start attachment therapy “at this time” and emphasized timing/well-being; and (ii) the record supported a conclusion that attachment therapy was unlikely to overcome I.D.’s entrenched opposition to reunification while Mother remained in a relationship with S.G.

B. “Further efforts would likely be unproductive” is not defeated by checklist completion

The Court treated “unproductiveness” as a practical, forward-looking question: whether more time and services are likely to change the conditions preventing safe reunification. Mother’s completion of her treatment plan mattered, but the Court held it was not determinative. The Department conceded completion, yet argued the plan was not “successful” in remedying core safety and parenting concerns—especially Mother’s ability to safely manage all children, address L.D.’s severe behavioral issues, and consistently meet children’s needs.

The Supreme Court refused to reweigh conflicting testimony (including a visit supervisor who believed Mother could parent safely), and instead affirmed based on substantial evidence supporting the District Court’s finding that the underlying conditions “continue” despite services.

C. No “unfitness” finding is required for guardianship under the statute

Mother attempted to import the termination statute’s “unfitness” language into guardianship by analogizing § 41-3-444(2)(d), MCA (unproductive reunification efforts) to § 41-3-609(1)(f)(ii), MCA (termination requires that the condition rendering the parent “unfit” is unlikely to change within a reasonable time). The Court rejected the analogy as a matter of statutory interpretation: the Legislature included “unfit” in termination but omitted it in guardianship; courts must not insert omitted requirements. § 1-2-101, MCA; State v. Running Wolf, 2020 MT 24.

This is a structural point: guardianship, as applied here, was framed as a permanency arrangement short of termination—indeed, the District Court explicitly did not find termination of parental rights to be in the children’s best interests.

D. No “clear and convincing evidence” burden was imposed

Mother also sought a heightened burden of proof. The Court relied on the statutes and In re S.S., 2022 MT 75 to conclude:

• § 41-3-422(5), MCA specifies burdens for certain petitions (e.g., clear and convincing for termination), but does not specify guardianship;
• § 41-3-444, MCA likewise does not set a clear-and-convincing standard;
• the Court would not add a burden that the Legislature did not enact.

3.3 Impact

The decision’s most consequential clarification is doctrinal: guardianship under § 41-3-444, MCA is not governed by termination-style prerequisites. Specifically:

• Guardianship is confirmed as a distinct permanency pathway with its own statutory findings—courts need not (and should not) graft an “unfitness” finding onto it.
• No judicially-created heightened burden: litigants should expect guardianship to proceed under the statute’s required findings without a clear-and-convincing overlay absent legislative amendment.
• “Treatment plan completed” ≠ “safe reunification achieved”: the case strengthens the practical lesson that task completion does not compel reunification if the record supports ongoing safety/parenting deficits and unproductive future efforts.
• Reasonable efforts remain contextual and safety-bounded: the Department may adjust visitation and service planning in response to disclosures and clinical recommendations without automatically failing the “reasonable efforts” requirement, so long as the overall record supports good faith reunification work.
• Appellate deference is reinforced: where the district court has supervised the case for years and made credibility and best-interest determinations, the Supreme Court will generally not reweigh evidence if substantial evidence supports the findings.

Practically, the opinion may encourage more frequent reliance on guardianship (as opposed to termination) in cases where the child needs permanency but termination is not pursued or not found to be in the child’s best interest—while still requiring meaningful findings on reasonable efforts, unproductiveness, and best interests.

4. Complex Concepts Simplified

• Youth in Need of Care (YINC): A legal status after the court finds, based on statutory criteria and evidence, that a child is abused/neglected or at risk and needs court protection and services.
• Treatment plan: A court-approved set of tasks/services aimed at fixing the problems that brought the case into court (e.g., therapy, parenting services). Completing tasks is important, but the court also looks at whether the underlying safety concerns are actually remedied.
• Reasonable efforts: The Department must act in good faith to help reunify the family, but it does not have to do everything imaginable (“herculean efforts”), and it must still prioritize child safety.
• “Further efforts would likely be unproductive”: A forward-looking finding that more services/time are unlikely to achieve safe reunification within a reasonable period, especially when children need permanency.
• Guardianship vs. termination of parental rights: Termination permanently ends the legal parent-child relationship and requires clear and convincing evidence under Montana’s statutory framework. Guardianship is a different permanency option under a different statute; here, it provided stability without terminating Mother’s parental rights.
• Standards of review (clear error / substantial evidence): On appeal, the Supreme Court does not decide the case anew. It asks whether the trial court’s findings are supported by substantial evidence and are not clearly erroneous.

5. Conclusion

Matter of L.D., YINCC solidifies that Montana guardianship under § 41-3-444, MCA is not a “termination-lite” proceeding: it does not require an express “unfitness” finding and does not impose a clear-and-convincing evidence burden absent statutory text. The Court reaffirmed a fact-specific, safety-centered approach to “reasonable efforts,” and it endorsed the principle that permanency can be ordered—even after treatment-plan completion—when substantial evidence shows ongoing safety concerns and that further reunification efforts would likely be unproductive.