MATTER OF INQUIRY INTO M M
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No. 95-011 IN THE SUPREME COURT OF THE STATE OF MONTANA 1995 IN THE MATTER OF INQUIRY INTO M.M., A.D., and L.D., Youths in Need of Care. APPEAL FROM: District Court of the Tenth Judicial In and for the County of Fergus, The Honorable Byron L. Robb, Judge District, presiding. COUNSEL OF RECORD: For Appellant: Torger For S. Oaas, Attorney at Law, Lewistown, Montana Respondent: Honorable Joseph P. Mazurek, Attorney General; Cregg Coughlin, Assistant Attorney General, Helena, Montana Thomas P. Meissner, Montana Jon A. Oldenburg, Montana County Attorney Submitted Attorney, at on Briefs: Decided: .P !9 Clebk ,! P Law, Lewistown, Lewistown, October November 19, 21, 1995 1995 Chief Justice J. P.D., of the her the of M.M., A.D. District rights. 1. Did admitting the hearsay of appeals testimony Did District the the Court. decision County, terminating on appeal: Court commit reversible of P.D.'s Court District of Fergus issues testimony the minor err in affording err in refusing error by weight to children? undue Gwen Glidewell? the continuance Opinion and L.D., Court, following the Did the We affirm. raises 3. delivered Judicial P.D. 2. Turnage, mother Tenth parental the A. District in order the Court to District a rebuttal in produce to terminating grant P.D. to witness a Gwen Glidewell? 4. rights Did absent P.D.'s wedlock the existence three to P.D. of different fathers. the parental publication, their of the Department Public Tenth authority nor of out child filed A.D. were January received M.M. plan? born 1987 support and fathers of and respond, L.D. and a default were judgment July from a relinquishment of of any his served by terminated rights. 1, of Health 1993, Family the Fergus Services District protective County (DFS, and Human Services, Judicial and sought between parental treatment and L.D., to failed parental A.D. The On February the M.M., The father P.D.'s a court-approved fathers has neither rights. err of daughters, three 1990. Court Court services Attorney, now part or DPHHS), for for of filed temporary M.M., A.D. on behalf the of Department a petition in investigative and L.D. The petition was M.M., A.D. granted in response and DFS's L.D. the be granted the terminated P.D.'s of M.M., parental the the of Fergus 16, custody parental rights L.D. Other issues, facts, will hearsay the District testimony be set We review the court 364, in abused 370-71, rulings 712. 712 its 842 absent 707, a manifest of evidence, a character to have (quoting Lauman v. Section 41-3-609, Court custody of her disposition of below. error rulings We will of the affected Lee reversible by (1981), not admitting reverse Mason, if 255 Mont. evidentiary 842 P.2d upon at an error in question was not of Mason, 842 P.2d at result." 192 Mont. determine (1992), be predicated evidence the to Ditzel discretion. cannot where the L.D. children? 712. "a reversal and District as necessary Mason v. abuse DFS to termination to evidentiary discretion. for 1 minor court P.2d Additionally, admission such district a petition DFS permanent the forth commit P.D.'s of Court A.D. the as relevant Court of M.M., hearing, appeals Issue Did of filed and also and granted P.D. neglect District Attorney rights 21 and 1993. County through rights. the parental 20 and following a hearing, legal June A.D. abuse P.D.'s permanent Following of on February 1993, termination allegations Following petition On May 3, for to 84, 90, 626 P.2d the criteria 830, 834). termination of parental MCA rights: (1993), sets forth for The court may order a termination child legal relationship upon a finding following circumstances exist: of the parentthat any of the ici the child is an adjudicated youth in need of and both of the following exist: an appropriate treatment plan that has been ii) approved by the court has not been complied with by the parents or has not been successful; and (ii) the conduct or condition of the parents rendering them unfit is unlikely to change within a reasonable time [. 1 [Emphasis added.] care Pursuant to the (1993), health §§ term "youth or welfare of a person 102 (8)) 41-3-102(2) 41-3-102(17), is in need harmed responsible MCA (1993), of care" or threatened for defines the and includes to MCA a child harm by acts child's "harm 41-3-102(5), welfare. whose or omissions Section a child's health 41-3- or welfare" as: the harm that occurs whenever the parent or other person responsible for the child's welfare: or allows to be inflicted upon the (a) inflicts child physical or mental injury; (b) commits or allows to be committed sexual abuse or exploitation; (c) causes failure to thrive or otherwise fails to supply the child with adequate food or fails to supply or adequate health care, clothing, shelter, education, though financially able to do so or offered financial or other reasonable means to do SOL.] [Emphasis added.] P.D. rights because sexually were argues it abused sexually insists that found they that did nothing she that she had While by at least to of that implicit some knowledge it. the admits that She finally 4 sexual in the her her term abuse argues her to at that the "a11ow" occurred the be daughters acquaintances, abuses the parental children that two of her male know prevent terminated allowed P.D. not she had did Court She claims occurred. idea District or exploited. abused that the she times is the and yet prosecu- tion's only evidence was the hearsay to by her of at for have to hearsay P.D. s that This has Care or held that sufficient to Matter while District the The court children with Such a finding satisfies the sexual to the not have no abuse found notice persons is was by the the court what was occurring supported requirements if not by the of evidence P.D. abuse knew of ultimate not and repeatedly or safe presented that her her determina- know of (b), a parent in Need of stated and competent 5 41-3-102(5) 5 that its she did of added.] 1220. specifically "even threat- omissions of Youths 1214, to or or omissions found that acts the MCA (1993), harm requirement 693 P.2d irrelevant who were or that [Emphasis and P.J.R., Court the abuse, to be committed "include acts satisfy 184, "allows welfare." of C.A.R. 174, failed to presents P.D. (b), welfare previously Second, she exceptions 41-3-102(S) child's 214 Mont. tion. made hearsay knowledge and neglect (1984), of the actual Section for See In the knowledge occurred should First, the phrase the are daughters' and therefore requires health responsible neglect. that abuse a child's or guardian that any of the argument. committed. of a person Court satisfy abuse statements maintains rule exploitation" states harm do not assertion or been explicitly ened the with her abuse acts P.D. sexual trial. We disagree sexual repeating a therapist daughters. from admitted authority the her daughters exclusions been she knew that of testimony P.D.'s statements or that the abuse, left the caretakers." at trial MCA (1993). and Finally, failed P.D. to detect does the not challenge abuse supervision. Regardless sexual there and left that abuse, M.M., hearsay abuse M.M., P.D.'s of the of to challenged children in youths in abuse, her daughters' a finding care. The disputed knowledge District need of any she support of the that inappropriate of P.D.'s Because evidence with to need establish sexual finding knowledge youths were the court's evidence children. and L.D. knowledge P.D.'s are only her her sufficient goes A.D. admitting is and L.D. evidence sexual that A.D. of the Court care error was harmless. of the found regardless by the Mason, of court in 842 P.2d at 712. Issue Did the testimony District of time. lived lived social undue weight. affording and her about undue weight to a short as an period falsely against lifestyle and living the while Court P.D.'s they arrangements. that incredible P.D.'s for described the District claims children testimony habits that P.D. exposed gave Glidewell's on cross-examination, witness who friends, had testimony Glidewell a motive to was testify her. In nonjury trials, or her discretion of Mont. 523, 518, P.D. Glidewell's argues his in testified together. acquaintances, which with Glidewell P.D. err Gwen Glidewell? Glidewell of Court 2 the the credibility of a witness testimony should be afforded district court. Keebler v. In this 807 P.2d 1354, 1357. 6 is left Harding case, and the weight to the sound (1991), the District 247 court in was presented the best and weigh well's determined the role of judgment for We as well that this of conclude discretion as the to all of After the the Glidewell witness. the District continuance to is not our such did Court circumstances. not to be a credible, abuse reliable err in refusing to produce a rebuttal its witness. 3 witness Court order in the It Issue Did Glide- and substitute under District evidence testimony, evidence Court the hearing witnesses' was a credible District that in finding other reweigh the hear testimony. Glidewell Court that to conflicting testimony, court position grant P.D. to a Gwen Glidewell? At the in close order to of trial, Particularly, Glidewell's mother, reputation for We review Montana 121, Rail 125. one witness truth In this which additional Gwen counsel wished to call Gwen as to to trial court determine v. if Byard (1993), case, tended and honesty. was given discredit testify Gwen's and honesty. to Link a continuance to Glidewell, discretionary continuances requested testimony P.D.'s Cindy truth attorney additional prepare Glidewell. for P.D.'s sufficient impeachment P.D. the The court notice court 260 had already to impeach rulings abused Mont. presented that of Gwen Glidewell's was unnecessary. 7 331, its as motions discretion. 337, 860 P.Zd P.D.'s testimony from reputation Gwen Glidewell's determined testimony such for trial testimony counsel and that We conclude that the District trial Court counsel's did not for motion abuse its a continuance. Issue Did rights the District absent Section Court the 41-3-609, in of in denying P.D. s 4 err existence discretion terminating P.D.'s a court-approved MCA (1993), states, in The court may order a termination child legal relationship upon a finding following circumstances exist: parental treatment relevant plan? part: of the parentthat any of the ici the child is an adjudicated youth in need of and both of the following exist: an appropriate treatment plan that has been (i) approved by the court has not been complied with by the parents or has not been successful; and (ii) the conduct or condition of the parents rendering them unfit is unlikely to change within a [Emphasis added.] reasonable time[. 1 care In this P.D. the case, refused District DFS prepared to sign Court, the but and executed a treatment The treatment plan. was never officially plan signed plan; however, was filed by the with District Judge While all parties there for the District involved Court apparently was a court-approved Status Report on Service never approved proceeded treatment Treatment under plan in the the place. Agreement, treatment plan, assumption that In a Request P.D.'s counsel stated: It is the understanding of your Petitioner that a service treatment agreement was presented to [P.D.] in that she has either the original or a copy of such And apparently a duplicate original of the document. and later agreement was signed by the DFS, lP.D.1, approved by the Court. 2. 3. LP.D.1 nearly all agreement. P.D. and her counsel plan was in terms of this treatment with believes that she has successfully of the requirements of the service [Emphasis added.] the reveals that treatment P.D. plan P.D. which rights P.D. claims her parental statutes to protect involving abused despite the court procedural Youths in Care upheld court-approved Rights (1993), 262 Mont. incarcerated, Matter of M.D., 183, refused to Custody approval of the parent's incarceration of M.D., treatment the the 864 P.2d and was 39, that and B.K., 890, rights of the in case, 786. held interest 878 P.Zd Custody Need Care was offender In that due the and of plan. necessary a parent the We held with 892. absent sexual treatment not matters J.K. recommended at neglect best a Youth In and "In F.H., Matter place, consistently parental noncompliance 9 abuse of proposed plan plan. in children. 36, the 783. complete sign any children's M.S., 864 P.2d to the a/k/a/ a treatment we have of In her circumstances. Matter termination terminate plan the 266 Mont. plan. refused and of the the under the the (1994), treatment Parental program In of treatment of protect record proceedings. approve children error." Need of We have may comply the of cannot interpreted interest to requirements court be terminated best required these a court-approved and neglected a district the first consistently court-approved A review the not a was governed that did cannot has she complete on appeal it that plan. to without Court that she believed rights This and treatment because that believed place failed now argues parental that clearly completed treatment the court to the treatment recommendations. In the Matter of the Custodv of M.D., 864 P.2d at 786-87. While P.D. treatment plan therein. In was of M.D., that the not light absence of to for in MCA, does order for MCA, allows parent's ings or risk not the to approve the the Matter decision we observe parent sign plan our requirements very of F.H., of the in the is with 878 P.2d District that 5 41-3plan 41-3-609, or without to termination the DPHHS to proceed- whom they 890. Court. Justic as any treatment warning at except clarify Section children Chief 10 plan a court- case To a plan. the we conclude that MCA. reiterate statutory Custody treatment every a treatment of to in such We also harm place opinions, the the case, the the rights. 41-3-609(4), that approval of sign contained of proceedings, be in 5 Matter of this approval to requirements the parental should in court grave In termination require strict See In We affirm court by our previous signature. by the in P.D.'s plan court abide protect. formal refused the and circumstances provided caused she fulfill decision future treatment specifically to our terminating We note, 609, of facts confusion incarcerated, and refused and the a bar approved not R seek to we concur: Ju tifes Justice Charles While E. Erdmann specially I have joined the reluctance. Justice requirements majority of 5 41-3-609(l) those requirements court approved Gray, not warrant (c), errors. Justice same basis that from this Court "signals" share those followed in Legislature this are by DFS in this Justice the if with 12, cautions Nelson's the petition this was no error Court does of F.H. held interests that despite that of F.H. repeated I the 1994. prior best 12 courts the The existence of requirements improper not Justice in that to of has the procedures. only because the actions in matter. the interests has done so. DFS did opinion must district to the issuance contained that Although rights. to the statutory the majority concurring in this if Court procedures allowing not condoning case occurred on July reviewing an exception exception of tolerating F.H. this noting certain parental requirements involved, I have joined of terminating Court-created effect that there in In the Matter here, has established procedural children best Gray dissented does fact had gone unheeded by DFS (now DFHHS). did not adopt disregard the children's she statutory on In the Matter this some concerns. The Legislature be that 36, 878 P.2d 890, in which may protect the case since relies procedural the met in this In determining court was with MCA, and the obvious plan. a district on it reviews the majority reversal, 266 Mont. (1994), opinion, in her dissent, were not treatment concurring. have taken of In the Matter the benefit of Gray's dissent and case prior to filing The difficulty creation very cases of in the children exception DFHHS is are reversed DFHHS to area, in charged or judicially-created for this DFHHS should with heed and dissenting opinions errors In the With however, the the statutory warning the reason F.H., is are endangered the continuation there is for the that the when these of little this incentive requirements. contained reversal on the a= Justice 13 the of future. in or risk Matter to protect remanded. exception, comply and no doubt in both basis the majority of procedural Justice Karla M. Gray, I respectfully not be a party dissent to the DPHHS) to comply the District termination requires 609(l) refusal that MCA, to to address absence of repeated a approved parental P.D.'s to require the I will DFS (now I would reverse rights without parental because law plain us. permits no other upon plan, of both Court's the from requirement the the Court's clear the the of and statute. that "and § 41-3- this nor away MCA, authorizes cc), point. 4, regarding the a finding care issue attention in of Neither treatment alter and to the language in discussing contained 41-3-609(l) simple the misdirect plan is before record language of case apply statute to treatment need this court-approved rights in the statutory Section in we the efforts mandatory youth issue only (cl, refusal because mandates. of plan opinion case. The dispositive It Court's legislative treatment this the continued clear Court's in from Court's with a court-approved result dissenting a court child is followinq to an a court- terminate adjudicated exist:" (i) an appropriate treatment plan that has been aooroved bv the court has not been complied with by the parents or has not been successful; and (ii) the conduct or condition of the parents rendering them unfit is unlikely to change within a reasonable [Emphasis added.] time. A straightforward conclusion that 5 41-3-609(l) approved reading the (c) (i) appropriate of threshold and the statute mandate (ii), MCA, treatment plan. 14 of is can the the Unless result remaining existence and until only in criteria of a in a court- such a plan exists, the criteria "no compliance/not never rationale come play. The legislature's that intent are clear: complying treatment plan In treatment has been case, plan the by the District permits only the District Court legal erred imposed on deleting from 5 41-3-609(l) approved plan clearly it Court into herrings," what P.D. refused that the the to Nothing Court: parental by so, the In judicially of doing that statutory requirement In the rights. the contravenes that that could the draw require a courtof course, legislature's Court attempts of (c) (i), from the 15 the court. plan a mere MCA, requires truth. that statement is Next, the Court, District but means that "red away notes do so. By suggest is Court this parent with to the with of attention the the that a number reader's First, that by be farther the was filed 5 41-3-609(l) presents The problem plan. the plan signing" Court requires. signed" the "official the to so clearly does not "officially all the Thus, this MCA, therein. a course, hoping sign statute observation, and is such law observes Court's by § l-2-101, and directly apparently from not No appropriate violates MCA, in authority. 1n charting Court cc), contained intrudes constitutional by conduct exists. P.D.'s Court the an appropriate clear. conclusion this and court. Court in terminating otherwise, responsibility the equally one valid intent against by the is to change" a parent's only approved record approved law concluding can be measured that this and "unlikely into underlying successfully successful" the of this District ministerial or contemplates. act The legislature's be approved The mandate by a court legislature termination is initial DFS cannot without court rights to it be agreed to a clear court's is not role by "officially the as important the to merely DFS' agency is of parent Court this does its from goes some length proceedings, all court-approved complete the governed these What this involve the approved plan by of most stop out operated treatment plan of clear so, statutory that the decision-making court's role discretion in is to areas relationship under existed the fails "belief" the during the and treatment to point in is regarding proceedings 16 language. some phases that are that P.D. which the that District a "failed to she believed irrelevant this It of the belief existence in to detract mistaken plan matters out two efforts statutory that, These proceedings." throughout these apply to point parties' The fundamental with to parties Court the be and child. not requirements by if intent unbridled the areas appropriate; agency given not is involved--must legislative plan; children promulgated court. stamp" agency important plan is the state of parent(s) it regarding the these treatment failure attention on at treatment "rubber as terminating world--that But the statement signing" that in approved is DFS is act by DFS nonsubstantive. protection whether filed statutes the by the determine affirmatively requirement the to or not plan nor while regarding be permitted by a court ensure that, Thus, reviewed must ministerial involvement. DFS--whether treatment throughout decisions vested, the neither recognized of parental in which that case of here. does a not court- Court. In such a case, the challenge the would parent address not the District the record outcome absence in of Nor of the case the fact treatment the District *0 Court which that in pertinent her conduct the be measured In the Matter in fact, the Court. requirements phases of plan as to we to As a matter treatment could In earlier here. court-approved us. District complete during Court, object the to later preserved did existed she believed proceedings been P.D. to this before plan failed right in had not be properly clear P.D. any raised it treatment statutorily-required against not is that plan if because and would this waived basis; issue a court-approved is have on that the Court would of law, existed compliance and success. Finally, In the by citing Matter of the to Custody of M.D., of the Court celebrate its now nearly two-decade enacted by the legislature and its concomitant is that ignore the with a law. While tepid it shaking of true its "reiteration" district courts of nor district courts are seriously than should which they? they With an agency mandates, it from ill-chosen this have the of becomes taken addition the State harder of Court and harder and insupportable 17 ends this its for path, opinion DFS the nor from Court because via a perhaps, to attorneys any warnings. allowed law as to DFS to "warning" opinion is the at agency previous Montana and to DFS--and, take of every seems to herald to apply the the and finger Montana--neither to and B.K. permission the "warning" likely J.K. refusal collective of a long-standing the old F.H., more And this to to why Court in avoid break in every legal away "next case agency legal requirements case. lawyers And blithely is so "warned" with legal the law with to look DFS' 329, agency with regard imposed 4%hour services 1115. it same law." In Seventeen cites to in its follow will, in F.H. (19941, Of at the Court is, to "in comply strongly the Court's Court that it must comply agency 1977, this Court In re Gore (1977), In that case, children) here, the 36, 40, our the cases in of to the law of in its conduct 890, terms," law . . and that F.H. 18 and stern say that for the regards in DFS' which it not we of hardly warning! this case continued operates! same reasons are or Matter One can 893. Court to DFS cases _I' punishing under the warning future condemnation these which a stern one can hardly of We noted requirements we "sound strong in Matter a home. guise to 878 P.2d very protective the the punish the emergency procedure no uncertain predecessor 1115. we said importance, 174 Mont. a legislatively- from one of in terms, actions an at statutory with to "strongly SRS (DFS' ignored for adhere later, 266 Mont. equal this law. 570 P.2d DFS has heeded dissented here: Gore, no uncertain least refusal to years opinion strictly say that re which as "strictly had a duty in under that their cases children the in agency children SRS had removed as written a state removing that clear allow requirement after that the at early to protecting petition fair to back of the filing not impunity. As 1110, is be applied predecessor disregard 570 P.2d it continues its mandates. condemned" 321, Court DFS and that finally the important has argue should ignore It will I I dissent permitted as a matter of law ignore both and the Finally, law the misplaced. serve In only and this Court's that plan reliance existed. parental rights could 5 41-3-609(4) (b), plan not incarcerated for practical M.D. to the applied to the As a result, exception I the is to her pending follow the law. for this Court to by DFS. The and maintained are met. 30 days, continue to resolution the pending further I would remand of an appropriate present status quo proceedings for the during 19 of Montana. DFS is required this case of reverse the the which for the legal District is not the law District children by DFS (now DPHHS), plan case. children violation regarding filing treatment to statutory P.D.'s of the is incarcerated. children resolution properly the in which countenance exception the returning proceeding of nor to about The appropriate that applies the appropriate order M.D. about Court not was was not concern for is Custody of and concern a District to Court Court's room of is 786. existed Custody plan statutory P.D. there "the Matter 783, Here, we relied because treatment I' plan of his parent that a specific record. Matter which there Indeed, of neither share M.D., that finds 864 P.2d treatment facts upon of argued treatment incarcerationL.1 Custody is court-approved We disagreed, and such 186, of M.D., a court-approved court 1 year no parent that the 183, court-approved one, terminated. the of this be than 262 Mont. In Matter in provides more others--to of Custody incarcerated if considering (1993), as not MCA, DFS--and on Matter The required is encourage Court. case, treatment to be mandates within Court's timely consideration as the law and for such Justice James joins W. William Leaphart Karla M. Gray. join dissenting C. Nelson, Justice in and dissent F.H. -I I Matter of in agreeing turns out case While Justice issued District Court's entered over Accordingly, could to two DPHHS' have and should denying the petition instead, requiring the of out Fact failure to to compliance with Matter of hope warning least, -to this F.H. of in P.D.'s statute. that point parental the Law that § 41-3-609(l) at was nevertheless opinion with the the of Conclusions addressed terminate in me, at here, our comply for analysis Matter a further that and after her in back actions months have been and, correct in opinion camel's DPHHS' in dissent perhaps, points Findings her has not; broke Erdmann subsequently that, was correct Court's It that straw the She is with -- suffice. the foregoin dissent. and she signed DFS (DPHHS) would is the her F.H., While nevertheless as it and proceedings dissenting. Gray here. misplaced, procedures thereafter requires Justice Justice I other were case. (c), in rights time MCA, by and,
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