No. 81-232
I N THE SUPREBE COURT O THE STATE O IIONTANA
F F
1981
I N THE MATTER O J . H . ,
F
a youth.
Appeal from: D i s t r i c t Court of t h e E i g h t h J u d i c i a l D i s t r i c t ,
I n and f o r t h e County o f C a s c a d e
H o n o r a b l e J o e l G. Roth, 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:
R o b e r t M. Kampfer a r g u e d , Great F a l l s , Montana
F o r Respondent:
J. F r e d Bourdeau, County A t t o r n e y , Great F a l l s , Montana
B a r b a r a B e l l a r g u e d , Deputy County A t t o r n e y , G r e a t F a l l s ,
Montana
Cameron F e r g u s o n , G r e a t F a l l s , Montana
Bonnie S u t h e r l a n d , Great F a l l s , Montana
Submitted: December 2 , 1951
Decided: M# 4
. Justice John Conway darrison delivered the Opinion of
the Court.
H.H., the father of J.H., appeals a decision of the
highth Judicial District, in and for the County of Cascade,
finding that J.H. is a youtn in need of care as an abused or
neglected child.
n October 22, 1980, the Department of Social and
Kel~abilitation Services filed a petition in the District
Court alleging that J.H. was a youtn in need of care.
Hearings were held November 18 and December 4 , 1980.
'l'estimony of the child indicated that he had been sexually
abused by his father a couple of times a month since the age
of five or six. The boy's mother and a social worker also
testified about sexual abuse of the son that the father had
discussed with them.
The father testified he £el t his sexual contact witn
his son was beneficial, as exposing him to homosexuality at
a young aye would make it distasteful for him and prevent
him from becoming homosexual. He noted that he had "helped"
many young men in the community with this problem.
During the December 4, 1980, hearing, the father
moved to dismiss because he had been declared incompetent to
proceed in a collateral criminal (deviant sexual conduct)
action, presumably was not competent to proceed in this
action, and, therefore, could not adequately protect his
interests. His motion was denied.
Prior to the instant case, the boy plead true to
attempted arson. A dispositional hearing was held, and J.H.
was placed at Yellowstone Boys Ranch until the age of
eighteen. Thus, the court determined there was no need for
a dispositional hearing in this case, and on January 19,
1981, t h e c o u r t r u l e d t h a t J . H . was a y o u t n i n n e e d o f c a r e
a s an abused or n e g l e c t e d c h i l d . The f a t h e r a p p e a l s .
F i v e i s s u e s a r e r a i s e d on a p p e a l :
1. May a wife testify about her husband's sexual
abus e of t h e i r s o n ?
2. Is s e c t i o n 4 1 - 3 - 4 0 4 ( 3 ) , MCA, unconstitutionally
void f o r vagueness?
3. Is t h e r e s u f f i c i e n t e v i d e n c e t o s u p p o r t t h e t r i a l
c o u r t ' s finding t h a t J.H. i s a y o u t n i n need of c a r e a s a n
aDused o r n e g l e c t e d c h i l d ?
4. Is it proper t o hold a youth i n need of care
p r o c e e d i n g e v e n t h o u g h t h e f a t h e r was u n f i t t o p r o c e e d i n a
c o l l a t e r a l criminal case?
5. Should a d i s p o s i t i o n a l h e a r i n g have been h e l d ?
SPOUSAL P R I V I L E G E
May a w i f e t e s t i f y a b o u t h e r h u s b a n d ' s sexual abuse
of t h e i r son? W h o l d t h a t t h e w i f e may t e s t i f y .
e
S e c t i o n 26-1-802, MCA, provides:
"Spousal p r i v i l e q e . A husband c a n n o t be
examingd-for o r a - a i n s t h i s w i f e w i t h o u t h e r
q
c o n s e n t o r a w i f e f o r or a g a i n s t h e r husband
w i t h o u t h i s c o n s e n t ; nor can e i t h e r , d u r i n g
the marriage or afterward, be, without t h e
c o n s e n t o f t h e o t h e r , examined a s t o any
c o m m u n i c a t i o n made by o n e t o t h e o t h e r d u r i n g
t h e marriage; but t h i s exception does not
a p p l y t o a c i v i l a c t i o n o r p r o c e e d i n g by o n e
against the other or t o a criminal action or
p r o c e e d i n g f o r a c r i m e c o m m i t t e d by o n e
against the other."
The p u r p o s e o f t h e spousal p r i v i l e g e is t o p r o t e c t
the sanctity of the marriage and home. S t a t e v. Taylor
( 1 9 7 3 ) , 1 6 3 Mont. 1 0 6 , 515 P.2d 6 9 5 . However, o n c e a f a m i l y
member h a s been s e x u a l l y a b u s e d , t h e s a n c t i t y of t h e home
and t h e r e a s o n f o r t h e r u l e h a v e b e e n d e s t r o y e d .
Sexual abuse of the son by the father is also a
"special wrong to the wife and has 'particularly and
directly' affected her in a manner other than that suffered
by the public in general." Chamberlain v. State (Wyo.
1960), 348 P.2d 280, 284. Thus, the "wrong" against the
child is "nothing more nor less than a 'wrong' against the
other [spouse]." Chamberlain, 348 P.2d at 284. As such, it
falls into one of the exceptions to the spousal privilege.
Section 26-1-802, MCA.
In Chamberlain v. State, supra, the court noted:
"Each of the states, territories and posses-
sions of our country, as well as the Philli-
pine Islands, now has statutes relating to
competency of a spouse to testify against the
other in criminal cases, but they are not
uniform. In attempting some general classi-
fication of these laws, we find statutes of
several jurisdictions making the spouse com-
petent, but not compellable, to testify; a
few states where they may be compelled to
testify; and a large majority where such
testimony is permissible when the accused is
charged with violence or crime against the
other spouse. Witnin the last group are some
states which allow the testimony when the
crime, violence or injury is committed
against a minor child of the witness. It
also appears that about one-fourth of the
jurisdictions have statutes which read sub-
stantially the same as our own statute. See
2 Wigmore on Evidence, 3d ed., S488 and 1957
Supp.
"In 97 C.J.S. Witnesses S101, p. 504, it is
said:
"'Under statutory exceptions permitting
husband or wife to testify against the other
in a prosecution for a crime committed by one
against the other, the right of one spouse to
testify against the other exists in cases of
violence against the person, and has by some
authorities been limited to such offenses,
such authorities construing statutes of this
character as merely declaratory of the common
law, although other authorities take the view
that under such statutory exception a wife is
competent to testify against her husband in a
prosecution for any crime of his by which she
is particularly and directly injured or
affected, the statutue being construed as
rendering one spouse competent against the
other in the latter's prosecution for any
offense against the marriage relation or
status, although holding one spouse incom-
petent to testify against the other where the
crime is clearly one not against the person
or property of the other, or even against the
marital status.
"'Statutes permitting either spouse to
testify against the other in all cases in
which an injury has been done by either
against the person or property of either are
not limited to cases wherein there is a
physical injury the the person of a spouse,
but includes prosecutions for crimes
especially injuring one spouse, although
involving no physical injury.'
"In 8 Wigmore on Evidence, 3d ed., S2239, p.
251, commenting on the exception to the rule
of exclusion which was recognized at common
law, it is said:
I1 1 * * *
Just how far the concession went, in
concrete cases, was never precisely settled.
It was given varying definition at different
times; it certainly extended to causes
involving corporal violence to the wife; and
it certainly did not extend to all wrongs
done to the wife. In modern statutes the
spirit of the exception has usually been
invoked to establish the exception for both
husband and wife in all causes involvina a d
"crime against the other", or a "personal
wrong".' (Emphasis supplied.)" 348 P.2d at
282-283.
Since 1960, the time of the Chamberlain opinion,
there has been a continual growth in the jurisdictions
recognizing an exception in cases such as this. See:
People v. Gibson (1957), 152 Cal.App.2d 149, 312 P.2d 705;
Jordan v. People (1966), 161 Colo. 54, 419 P.2d 656;
Balltrip v. People (1965), 157 Colo. 108, 401 P.2d 259;
State v. Whitaker (1975), 112 Ariz. 537, 544 P.2d 219;
United States v. Allery (8th Cir. 1975), 526 F.2d 1362;
Commonwealth v. Maroney (1964), 414 Pa. 161, 199 A.2d 424;
Garcia v. State (Tex.Crim.App. 1978), 573 S.W.2d 12.
In a majority of child abuse cases, a parent is the
perpetrator. Evidentiary Problems in Criminal Child Abuse
Prosecution, 63 Geo. L. J. 257, 258 (1974). Often, spouses
are the only witnesses in these cases. To discourage sexual
or other abuses of children, spouses should be allowed to
testify against each other in child abuse proceedings. See,
United States v. Allery (8th Cir. 1975), 526 F.2d 1362,
1366-1367.
In any event, part of the testimony the father finds
objectionable concerns husband-wife communications with
third parties present. Other "objectionable" testimony
involves the wife's feelings, rather than actual husband-
wife communications. Both are exceptions to the spousal
privilege. Thompson v. Steinkamp (1947), 120 Mont. 475, 187
P.2d 1018; State v. Houchin (1967), 149 Mont. 503, 428 P.2d
971; cf ., State v. Roberts (1981), - Mont . -, 633 P.2d
1214, 38 St.Rep. 1551.
Thus, we hold that the wife may testify about the
husband's sexual abuse of their son.
11. CONSTITUTIONALITY OF SECTION 41-3-404, MCA
Is section 41-3-404(3), MCA, unconstitutionally void
for vagueness?
Section 41-3-404(3), MCA, provides:
"(3) In all civil and criminal proceedings
relating to abuse, neglect, or dependency,
none of the privileges related to the
examination or treatment of the child and
granted in Title 26, chapter 1, part 8,
except the attorney-client privilege granted
by 26-1-803, apply."
The father claims that it is unclear whether section
41-3-404(3), MCA, allows parents to testify in youth in need
of care proceedings, and it is therefore unconstitutionally
void for vagueness. We find no vagueness in the above
statute. It provides that, with the exception of the
attorney-client privilege granted under section 26-1-803,
MCA, no exceptions are granted in civil and criminal
proceedings related to abuse, negligence or dependency
actions.
Having found previously that under section 26-1-802,
MCA, that a wife may testify against her husband in a sexual
abuse hearing, we have, therefore, determined that the above
statute is not unconstitutionally void due to vagueness.
111. SUFFICIENCY OF THE EVIDENCE
Is there sufficient evidence to support the trial
court's findings that J.H. is a youth in need of care as an
abused or neglected child? We find sufficient evidence.
Findings of fact of the trial court shall not be set
aside unless clearly erroneous. Rule 52(a), M.R.Civ.P.
Testimony here indicates that there had been a pattern of
abuse by the father in the home. Further, the father
believes his actions are beneficial, and he consequently has
no incentive to change. We therefore conclude that the
findings of the trial court were not clearly erroneous and
that J.H. is a youth in need of care as an abused or
neglected child.
IV. FATHER'S COMPETENCE
Due to the unusual nature of this case, it is
necessary to point out that the testimony given by the
father in this matter was at a hearing to determine whether
his son was abused and neglected. The father was present
with counsel, and at the end of the proceedings requested
through counsel that he be allowed to make a presentation to
the court. The father was sworn and testified, giving some
sixty-three pages of testimony concerning the family
situation. No objections were made to this testimony.
The trial judge had an opportunity to observe the
father and weigh his testimony as it concerned the hearing
with regard to the son. While the father claims that since
he had been declared unfit to proceed in a collateral
criminal action, he is also unfit to proceed in this civil
action, the record in no way indicates that he has been
declared an incompetent. In fact, the record does not
reveal any loss of status which would prevent him from
proceeding in this matter. In addition, section 53-21-
141(1), PICA, provides that, "[ulnless specifically stated in
an order by the court, a person involuntarily committed to a
facility for a period of evaluation or treatment does not
forfeit any legal right or suffer any legal. disability. . ."
There is nothing in the record to indicate that the father
was declared unfit to proceed in anything except the
criminal proceeding. Therefore, he retains his right to
proceed in a civil action.
Further , the party asserting incompetence has the
burden of proving it, Hodges v. Hodges (1967), 150 Mont.
413, 435 P.2d 784, and a person is presumed competent to
testify unless the court finds otherwise. See, Rule 601,
Mont.R.Evid. Thus, with no affirmative showing of
incompetence to proceed in this civil action, we presume the
father was competent.
Finally, the father could have requested a guardian
ad litem to be appointed if he felt his attorney was not
properly representing him. See, Rule 17(c), M.R.Civ.P.
Therefore, we hold that it was proper in this case to
proceed with the youth in need of care proceeding despite
the fact that the father was declared unfit to proceed in a
collateral criminal action.
V. DISPOSITIONAL HEARING
Should a dispositional hearing have been held? We
hold that a hearing should have been held, but failure in
this case to hold one was harmless error.
Montana statute, section 41-3-404(4)(b), MCA, clearly
mandates a dispositional hearing:
"If the court determines that the youth is an
abused, neglected, or dependent child, the
court shall set a date for a dispositional
hearing and order any necessary or required
investigations. The dispositional hearing
shall be scheduled as soon as practicable.
The court may issue a temporary dispositional
order pending the dispositional hearing. The
temporary dispositional order may provide for
any of the forms of relief listed in 41-3-
403(2) ."
In this case one dispositional hearing had already
been held in the arson case, and J.H. was placed at
Yellowstone Boys Ranch. Since the trial court held that
J.H. was a youth in need of care, it is unlikely that he
would have been removed from Yellowstone Boys Ranch even if
a second dispositional hearing had been held. Failure to
hold a dispositional hearing cannot be condoned by this
Court, but in this case the error was harmless.
A£ f i r m e d .
W e concur:
A - 4 , & na
& d
C h i e f Justice