No. 13472
I N THE SUPREME COURT O THE STATE O M N A A
F F OTN
I N THE MATTER O DECLARING
F
DAWN ALISA, SANDRA LEA and
LILLIAN MARIE SWAN, YOUTHS I N N E O CARE
ED F
Appeal from: D i s t r i c t Court o f t h e Eighth J u d i c i a l D i s t r i c t ,
H o n o r a b l e R. J. N e l s o n , J u d g e p r e s i d i n g .
C o u n s e l o f Record:
For Appellant:
E. F. G i a n o t t i a r g u e d , G r e a t F a l l s , Montana
For Respondent :
J . F r e d Bourdeau, County A t t o r n e y , G r e a t F a l l s , Montana
Randy Gray a r g u e d , G r e a t F a l l s , Montana
Thomas Mahan a r g u e d , H e l e n a , Montana
Submitted: A p r i l 27, 1977
Decided :
Filed: 18 1977
Clerk
M r . J u s t i c e John Conway Harrison d e l i v e r e d t h e Opinion of t h e
Court.
This i s an appeal from an order of t h e d i s t r i c t c o u r t ,
Cascade County, awarding permanent custody of a p p e l l a n t ' s t h r e e
minor c h i l d r e n t o t h e Montana Department of S o c i a l and Rehabili-
t a t i o n Services (SRS) a s youths i n need of c a r e .
Appellant, H e n r i e t t a Swan, i s t h e n a t u r a l mother of Dawn
A l i s a , Sandra Lea, and L i l l i a n Marie Swan. H e n r i e t t a Swan has
a long h i s t o r y of i n a b i l i t y t o c a r e f o r h e r c h i l d r e n , p a r t i a l l y
caused by emotional problems and severe alcoholism.
On February 26, 1976, SRS f i l e d a p e t i t i o n f o r permanent
custody and a u t h o r i t y t o a s s e n t t o t h e adoption of t h e c h i l d r e n .
A hearing on t h i s p e t i t i o n was held on May 10. Testimony was
heard from two SRS employees, Mary Morris and Mildred Lucero, who
were acquainted with H e n r i e t t a Swan and h e r c h i l d r e n . Much of
t h i s testimony was hearsay evidence which was admitted i n t o evidence
over defense c o u n s e l ' s objection. H e n r i e t t a Swan was n o t c a l l e d
t o t e s t i f y a t t h i s hearing.
The record i r i d i c a e s c e r t a i n w r i t t e n r e p o r t s prepared by
SRS and o t h e r s t a t e agencies were considered by t h e c o u r t i n i t s
decision. These r e p o r t s concerned H e n r i e t t a Swan's a b i l i t y t o
c a r e f o r h e r c h i l d r e n , an a n a l y s i s of t h e c h i l d r e n ' s adjustment
t o t h e i r f o s t e r home, and p o l i c e r e p o r t s . filthough t h e s e r e p o r t s
were a v a i l a b l e a t t h e time of t h e hearing, they were n o t o f f e r e d
a s evidence by SRS. Subsequent t o t h e hearing, a medical r e p o r t
prepared by D r . Hamilton P i e r c e was f i l e d with t h e c o u r t . It
appears t h i s r e p o r t was a l s o considered by t h e c o u r t .
The district court entered an order on June 1, awarding
permanent custody of the children to SRS as .youths in need
of care.
The sole issue presented upon appeal is whether hearsay
evidence is admissible in a custody hearing.
The petition for permanent custody was brought by SRS
pursuant to sections 10-1300 through 1322, R.C.M. 1947. Section
10-1310(3) states:
"A petition alleging abuse, neglect or dependency,
is a civil action brought in the name of the state
of Montana. The Rules of Civil Procedure shall apply
except as herein modified, Proceedings under a
petition shall not be a bar to criminal prosecution."
The instant case is a civil action and therefore all
Montana Rules of Civil Procedure are applicable, including the
hearsay rule. The hearsay rule appears in section 93-401-2,
R.C.M. 1947, and states:
"Testimony confined to personal knowledge. A
witness can testify to those facts only which he
knows of his own knowledge; that is, which are derived
from his own perceptions, except in those few express
cases in which his opinions or inferences, or the
declarations of others, are admissible."
This Court recently defined hearsay in State v. Newman,
162 Mont. 450, 457, 513 P.2d 258:
"'Hearsay' is testimony or 'ievidence of someone's
words or conduct outside the court, when offered
in court to prove the truth of the thing being
asserted, and thus resting for its value upon the
credibility of the out-of-court asserter."
Appellant is correct in her contention the record is
replete with oral and written hearsay evidence, admitted over
proper objection. Blatant examples of hearsay, such as the
following exchange, are found throughout the testimony of Mary
Morris and Mildred Lucero:
"Q. Do you recall any time when the visitation was
arranged and Mrs. Swan did not spend that visitation
time with the children? A. Not by my direct observation.
The children would say, you know, 1 we went with so and so,'
but not from my direct observation.
"Q. Did you talk to the children, then, following these
visitations? A. Yes.
"Q. And what did they tell you?
"MR. GIANOTTI : Objection, hearsay.
''THE COURT: Overruled.
"THE WITNESS: The children would say they were with
Tiny, meaning an aunt, or :they were with Ronnie, or
they were with Mrs. Lahr and her children, you know,
Situations vary .I1
In addition, the reports which were submitted to the court
by SRS and Dr. Pierce contained written hearsay that did not
fall under any of the recognized exceptions to the hearsay rule;
The underlying purpose of sections 10-1300 et?seq., is to
ascertain the best interests of the children subject to the
proceedings and act in accordance with those findings. Bonser
v. County of Cascade, 162 Mont. 1, 507 P,2d 1064; In re Bad
Yellow Hair, 162 Mont. 107, 509 P.2d 9; In re Olson, 164 Mont.
431, 524 P.2d 779. In keeping with that purpose however, the
Rules of Civil Procedure, including the hearsay rule, must be
strictly followed. See Sanchez v. Sanchez, 55 C.2d 118, 358 P.2d
533. Any relaxing of these procedural rules could create a custody
\
procedure ripe for abuse.
As to written hearsay contained in the reports submitted to
the court, this jurisdiction has long followed the rule that
unsworn statements made out of court with no opportunity afforded
to confront the writer and question him as to their veracity are
hearsay. State v. Nelson, Mont . , 560 P.2d 897, 34 St.
Rep. 80; Pessl v, Bridger Bowl, 164 Mont. 389, 524 P.2d 1101.
SKS argues t h e r e p o r t s in question a r e admissible under
a s t a t u t o r y exception t o t h e hearsay r u l e , s e c t i o n 93-901-1,
R.C.M. 1947. That s t a t u t e provides:
" w r i t t e n r e p o r t s o r - f i n d i n g s of f a c t made by o f f i c e r s
of t h i s s t a t e , on a matter w i t h i n t h e scope of t h e i r
duty a s defined by s t a t u t e , s h a l l , i n so f a r a s r e l e v a n t ,
be admitted a s evidence of t h e matter s t a t e d therein."
W f i n d no merit i n t h i s contention.
e
The r e p o r t s submitted t o t h e c o u r t by M r s . Morris, t h e
SRS s o c i a l worker, contain a conglomeration of m a t e r i a l prepared
by h e r , a food stamp e l i g i b i l i t y t e c h n i c i a n , a Great F a l l s p o l i c e
o f f i c e r , and t h e f o s t e r mother of t h e Swan c h i l d r e n . The r e p o r t s
a r e inadmissible a s they contain m a t e r i a l t h a t i s hearsay upon
hearsay. S t a t e v. Nelson, supra.
Many of the r e p o r t s submitted were n o t business records a s
contemplated by s e c t i o n 93-801-2, R.C.M. 1947. Neither were they
admissible under s e c t i o n 93-901-1, t h e Uniform O f f i c i a l Reports
a s Evidence Act. Richardson v. Farmers Union O i l Co., 131 Mont.
535, 312 P.2d 134. Unsworn r e p o r t s where t h e r e i s no r i g h t t o
cross-examine come w i t h i n t h e hearsay r u l e and a r e inadmissible.
S h i l l i n g s t a d v. Nelson, 141Mont. 412, 378 P.2d 393. The admis-
s i o n of t h e r e p o r t s over o b j e c t i o n was e r r o r .
The decision of t h e d i s t r i c t court i s reversed. This cause
i s remanded t o t h a t c o u r t f o r f u r t h e r c o n s i d e r a t i o n i n conformity
with t h i s opinion.
a
We Concur:
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&
Chief Justice -