No. 83-374
IN THE SUPR.EME COURT OF THE STATE OF MONTANA
1984
IN THE MATTER OF
C.L.A. and J.A., Youth in Need of Care.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Robert H. Wilson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Patten and Renz; Jeffrey T. Renz argued, Billings,
Montana
For Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana
Robert Smith argued for fundamental issues of right
to a jury trial, Asst. Atty. General, Helena, Montana
Harold F. Hanser, County Attorney, Billings, Montana
Greg Mullowney argued, Deputy County Attorney, Billings
Olsen, Christensen, Gannett & Naller; Damon Gannett
argued as guardian ad litem, Billings, Montana
Submitted: February 29, 1984
Decided: August 2 , 1984
, 984
Filed:
The Honorable Thomas M. McKittrick, District Judge, delivered
the Opinion of the Court.
Natural parents, Richard and Judy Allmer, appeal from an
order of the Yellowstone County District Court findinq their
minor children, five-year-old C.L.A. and three-year-old J.A.,
"youths in need of care," and terminating the parents' rights
in the children. On July 15, 1981, the Department of Social
and Rehabilitation Services took possession of the children
pursuant to a trial court order for temporary investigative
authority, authorized under section 41-3-402, MCA. On April
15, 1982, the State petitioned the trial court for permanent
custody and authority to assent to adopt. The petition
alleged basically that the parents were unable and unwilling
to properly care for the children.
The parents timely filed a jury demand with the trial
court. The trial court denied the demand, citing section
41-3-607 (4), MCA. The cause was tried before the court
sitting without a jury on November 23, 1982. The trial court
consolidated the adjudicatory and disposition hearings under
section 41-3-607(1), MCA, found both youths to be "in need of
care," found that the parents had not complied with the
approved treatment plan, found them to be beyond
rehabilitation, and terminated their parental riqhts.
Parents appeal from these findings and conclusions. We
affirm.
The parents present three issues for review. First,
whether the parents were entitled to have a jury determine
whether their children, C.L.A. and J.A., are abused,
dependent, or neglected. Second, whether the findings and
conclusions of the trial court are supported by substantial
evidence. Third, whether the trial court abused its
discretion when it refused to allow the parents to
cross-examine the State's witnesses regarding the ultimate
placement of the children.
C.L.A. and J.A. are the fifth and sixth children born to
the Allmers, and Judy Allmer was pregnant at the time of the
hearing. All. four older sibl-ings have been taken from the
Allmers by order of the court.
The facts of the case are derived for the most part from
the testimony of the psychologist, social workers, and
special education teacher, all of whom were retained by the
State and had substantial contact with the Allmer family.
Their testimony will be set forth in detail in discussing the
second issue.
The first issue, whether the parents had a right to a
jury trial, is strictly a question of la-w. The trial court
denied the parent's demand for a jury trial, relying on
section 41-3-607 (4), MCA. That section provides that "there
is no right to a jury trial at proceedings held to consider
the termination of a parent-child legal relationship." The
parents argue that section is unconstitutional pursuant to
Art. 11, 26 of the Montana Constitutj-on, which provides
that "the right to a trial by jury is secured to all and
shall remain inviolable." That provision was adopted as part
of the original 1889 Constitution and was recodified in the
1972 Constitution. The question is whether that right
extends to civil parent-child termination proceedings which
are controlled by sections 41-3-401, et seg., MCA.
The rule in Montana is that our state constitution only
guarantees the right to a jury trial in the class of cases in
which the right was enjoyed when the constitution was
adopted. Montana Ore Purchasing Co. v. Montana Consolidated
Copper and Silver Mining Co. (1902), 27 Mont. 288, 306, 70 P.
1114; State ex rel. Jackson v. Kennie (1900), 24 Mont. 45,
56-57, 60 P . X 589. Rut in the class of cases where the
right is preserved, it "shall remain inviolable" and cannot
be revoked by legislative act. Chessman v. Hale (1905), 31
Mont. 577, 79 P. 254.
When our Constitution was first sdopted in 1.889, there
was no right to a jury trial in civil proceedings for
termination of the parent-child relationship because there
existed no such proceeding. There were only criminal
sanctions which could be imposed on abusive or neglectful
parents. Ch. I, $3 11, 1888 Compiled Statutes of Montana.
The parents argue that the present civil proceedings
"evolved" from that criminal statute, and therefore derived
the "inviolable" right to a jury trial from a right that
existed in 1888, before the Constitution was adopted. We
disagree. The more likely predecessor of the present day
civil proceedings (sections 41-3-401, et seq., MCA) was
Section 290, Civil Codes of 1895. That section provided for
a civil action by the child or county against the parent for
any "abuse of parental authority," and if abuse was
established, the child could be "freed from the dominion of
the parent . . ."
The resulting statutory scheme is that there existed
criminal sanctions a-gainst the parents in 1888, with a right
to a jury trial; our first constitution was adopted in 1889
preserving all existing rights to trial by jury; the 1895
statute creating a civil cause of action by the child or
county against the parents, with no express provision
regarding a jury trial; and our present day statutes that
provide for a civil action to terminate the parent-child
relationship, provide expressly that the civil action shall
"not foreclose criminal proceedings," and provide there shall
be no right to a jury trial. Therefore, because there was no
right to a jury trial for civil proceedings to terminate
parental rights when our Constitution was adopted in 1889 and
recodified in 1972, such a right could not be brought within
the protective arms of Art. 11, 5 26.
There is a second question regarding the jury trial
issue. That is whether section 41-3-607 (4), FICA,
specifically the language ". . . at proceedings held to
consider the termination . . ." of parental rights, refers
not to the ad judicatory hearing (section 41-3-404) where it
is determined whether the child or children are "in need of
care," but only to the dispositional hearing (section
41-3-406) where the parental rights may actually be
terminated, if the children have been adjudged "in need of
care. "
There are three reasons why this construction of section
41-3-607 seems too restrictive. First, the "plain language"
of the adjudicatory hearing statute, section 41-3-404,
expressly provides that ". . . the court shall determine
whether the youth is in need of care . . ." Second, section
41-3-607(1) provides the trial court with the option of
consolidating the adjudicatory and dispositional hearings,
making it unlikely that the legislature intended to allow a
jury trial at one stage of the proceedings and not at the
other. The trial court d i d in fact consolidate the two
hearings in this case. Third, the "plain language" of the
jury trial statute, section 41-3-607, refers specifically to
more than one proceeding, al-so making it unlikely tha-t the
legislature intended to provide for a jury trial at the
ad-judicatory hearing, but not at the dispositional hearing.
The second issue is whether the findings and conclusions
sf the trial court are supported by substantial evidence. As
a matter of background, the State implemented a
rehabilitation plan for the parents. Under the plan, the
parents were being encouraged and instructed on increasing
their interaction with the children, as well as personal
hygiene, proper diet and clothing for the children, general
housekeeping and meal preparation, and other basic needs the
children were not receivinq. At the adjudicatory and
dispositional hearings, the trial. court found both youths,
C.L.A. and J.A., to be "in need of care," found that the
parents had not compl-ied with the approved treatment plan,
found the parents to be beyond rehabilitation, and terminated
their parental rights. The findings are presumed correct and
will not be reversed absent a clear abuse of discretion. -
Tn
Re Gore (1977) 174 Mont. 321, 570 P.2d 1110.
--
The evidence as a whole paints a dismal picture for the
parents, and consequently, for the children. Both parents
are very poorly educated and neither is capable of holding a
steady job. At the time of trial-, they were living in a
trailer at the county landfill in Colstrip, where they earned
a living by "picking beer cans" and turning them in for small
cash. The trailer had no running water or toilet facilities.
The State presented seven witnesses at trial. Dr.
Richard Agosto, a clinical psychologist who examined both the
parents and the children, in and out of the home, testified
as to the psychological findings he made. He found the
father to have an I.Q. of 71, the mother 80. The father was
found to be totally non-receptive to constructive input, and
refused to recognize or admit to any child-rearing
deficiencies. The mother is more communicative with
outsiders, as well as with the children, but Dr. Agosto found
a "serious lack of desire or ability to interact" with the
children, something that is "vital" to normal development.
Dr. Agosto performed extensive tests on the children as
well and found substantial "development lags" in both. The
older child, C.L.A., was not speaking words at age three and
one half, and J.A. was functioning at the level of a six
month old child when he was one year. Although Dr. Agosto
discerned some of J.A.'s developmental lags to be "innate"
(mental retardation), he concluded that the serious lack of
stimulation and interaction between the parents and the
children was the major cause of the underdevelopment. He
also concluded that the parents were unlikely to respond to
any further rehabilitative plans.
The other six witnesses were social workers who had also
had extensive contact with the parents and the children.
They included social counselors, a homemaker, and a specjal
education teacher. In a nutshell, their testimony was that
the parents were not able to properly care for themselves,
let alone the children. The parents had no conception of
proper hygiene, nutrition, health care, or financial
budgeting. Their visits to the home found it to be filthy,
"with a portable potty" (unemptied) in the middle of the
living room, greasy car engine parts in J.A.'s bedroom, and
the whole family appearing unbathed and in soiled clothes.
More than one of the workers also testified that the parents
not only failed to comply with much of the rehabilitation
plan, they were not "particularly receptive" to the input of
the workers. The father, Richard Allmer, was negative and
refused to attend parenting classes, even though the State
provided transportation.
We hold there was substantial evidence to support the
findings and conclusions of the trial court that both
children are in need of care, the parents did not complv with
the treatment plan, and the parents are beyond
rehabilitation.
The final issue is whether the trial court committed
reversible error by not allowing the parents to cross-examine
Dr. Agosto regarding "the best interest(s)" of the children,
especially J.A. Cf., section 41-3-406, MCA. The parents
contend that J.A.'s development problems are innate and not
attributable to their deficiences. Therefore they contend
they should have been able to cross-examine Dr. Agosto
regarding their contention that J.A., as a retarded child,
would be better off staying with them, his natural parents.
We aqree that the trial court should have allowed
cross-examination regarding the "best interest ls)" of J.A.,
but we do not agree it was prejudicial error.
The trial court must hear evidence regarding the "best
interest (s)" of the chil-dren during the dispositional
hearing. Section 41-3-406, MCA. Because the trial court
consolidated that hearing with the adjudicatory hearing under
section 41-3-607(1), MCA, there was only one hearing.
Therefore, it was error to exclude that evidence. However,
it was not prejudicial error in light of the substantial
evidence that the parents were seriously hindering the growth
and development of the children, they were not complying with
the rehabilitation plan for the children, and were not
receptive to rehabilitation for themselves. The trial court
had ample e v i d e n c e upon which t o d e c i d - e w h e t h e r one o r b o t h
of t h e c h i l d r e n s h o u l d s t a v w i t h t h e p a r e n t s .
The judgment i s a f f i r m e d i n
/ ~ i s t r i c t udge, d i t t i n g f o r
J
J u s t i c e L. C. Gulhrandson
W e Concur:
Chief J u s t l c e
Justices