110. 86-353
I N THE SUPREME COURT OF THE STATE OF M N A A
O T N
1988
I N RE THE MATTER OF
R.A.D. and J . D . ,
Youths i n Need o f C a r e .
APPEAL FROM: D i s t r i c t Court of t h e Eighth 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 C o u n t y o f C a s c a d e ,
The H o n o r a b l e Thomas M c K i t t r i c k , J u d g e p r e s i d i n g .
COUNSEL OF RECORD:
For Appellant:
M a t t e u c c i & F a l c o n ; D a n i e l L. F a l c o n , G r e a t F a l l s ,
Montana
P a t r i c k F. F l a h e r t y , G r e a t F a l l s , Montana
For Respondent:
Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana
John Paulson, A s s t . Atty. General, Helena
P a t r i c k L. P a u l , 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 , Deputy County A t t y . , G r e a t F a l l s
E. J u n e L o r d , ( f o r c h i l d r e n ) , G r e a t F a l l s , Montana
Submitted on B r i e f s : Sept. 1 0 , 1987
Decided: March 1 8 , 1 9 8 8
Clerk
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.
These appeals arise from a termination of parental
rights of E.D. (mother) and R.D. (father) by the District
Court of the Eighth Judicial District, Cascade County, and
awarding to the Department of Social and Rehabilitation
Services permanent custody of the youths, R.A.D. and J.D.,
with the authority to consent to adoption.
Defendants-appellants, natural parents of the youths, each
appeal the rulings.
We affirm in part and reverse and remand in part.
The issues we are presented with on this appeal are as
follows:
1. Did the District Court abuse its discretion in
denying the father1 motion to dismiss for reasons of delay
s
and pre jud.ice?
2. Whether the District Court erred in allowing R.A.D.
and J.D. to testify as competent witnesses?
3. Whether the District Court abused its discretion in
terminating the father's parental rights?
4. Did the District Court err in denying the mother1s
motion to continue because she could not attend a hearing
as she was committed at Warm Springs State Mental
Hospital?
A previous history of the mother and father should
initially be noted. The two were married in 1978. The
mother developed mental problems and was committed numerous
times. On November 21, 1983, the father filed a petition for
dissolution of marriage. His counsel at the time was Michael
Smartt. From 1978 through 1983, the father was largely
responsible for raising the children, R.A.D. and J.D., until
they were placed in the custody of the Montana Department of
Social and Rehabilitation Services (SRS).
On February 1, 1984, the deputy county attorney of
Cascade County filed, on behalf of SRS, a petition for
temporary investigative authority and protective services and
temporary custody of R.A.D. and J.D. The petition alleged
that the youths were abused and neglected or in danger of
being abused and neglected pursuant to § § 41-3-101 and
41-3-102, MCA. An attached affidavit stated that SRS
received a referral, sometime in January, that the father had
sexually abused his two sons, R.A.D. and J.D. On January 27,
1984, R.A.D. and J.D. told an SRS caseworker, Irene Johnson,
that their father had sexual contact with them. The District
Court ordered temporary investigative authority and temporary
custody of R.A.D. and J.D. to SRS because there was probable
cause that the youths were youths in need of care and in
immediate or apparent danger of harm. Following a show cause
hearing, the court made a specific conclusion of law in an
order dated March 12, 1984, that the youths were abused and
neglected within the meaning of the statutes. The father was
directed to receive a psychological evaluation
Both children were seen by Dr. Tom Krajacich to whom
they related similar stories as they told Johnson. The
father was seen by Dr. William Taylor on May 11, 1984, but
Taylor did not conduct specific testing to evaluate a sexual
abuser because he felt the father did not fit the personality
profile of a sexual abuser. At a December 18, 1984 hearing
both Krajacich and Johnson stated they believed the children
were telling the truth as to the sexual contacts. On
December 26, 1984, the District Court issued an order that in
the best interests of the youths, the father should be
reevaluated by Dr. Phillip Russell of Billings and that
" [tlhe parties ... agreed to abide by the recommendations
of Dr. Russell."
Dr. Russell's evaluation occurred July 16, 1985. His
most crucial conclusions are as follows:
1. [The father] is, at least capable of
perpetuating the alleged acts. 2. [Tlhe
examiner had the impression that [the
father] did not give a candid or honest
account of his actual sexual
experiences. 3. The statements from the
victims in this case were given to
competent and experienced professionals
and appear to be bonafide reports of
sexual abuse and have been substantiated
by other behavioral indicators. .. It
is the examiner's opinion that the
sexual abuse reported by [R.A.D. and
J.D. ] did, in fact, occur and was
perpetuated by their father. 4. Due to
[the father's] denial of the sexual
abuse, he is, by definition untreatable
for his sexual deviancy ... and 5.
[J.D. and R.A.D.] should not be returned
to the custody of their father.
A petition for permanent custody was filed by Cascade
Deputy County Attorney Barbara Bell, counsel for SRS on
August 26, 1985. From this petition, the court ordered that
a hearing be held October ll., 1985. The State was granted a
continuance to November 22, 1385 because Dr. Russell was
unavailable. The mother, because she was residing at Warm
Springs State Hospital at this time and wanted an opportunity
to be present and testify, motioned the court for a
continuance. In regard to this motion, the District Court
stated:
[Plarties stipulate that the hearing set
for 11/22/85 @ 9:00 a.m. will go as
scheduled, in regard to [the father]
only. A hearing as to [the mother] will
be held at a later date, due to [the
mother] being at Warm Springs State
Hospital.
On November 22, 1985, a hearing was held in regard to
the permanent custody of the youths limited to their father.
Dr. Russell, Dr. Krajacich, Irene Johnson, Helen (Meg)
Timblin, foster mother, and R.A.D. and J.D. testified for the
State. Pam Tanner, a prior employee of SRS and foster parent
who knew the father on a personal basis, testified for the
father.
The District Court ordered that another hearing would
be held January 6, 1986. After three continuances were
granted the mother because her attorney was unavailable due
to conflicting criminal trials, the date of the second
hearing was set for April 16, 1986. The mother's attorney
made a motion for another continuance on April 14, 1986
because the mother was not able to attend the hearing due to
her mental condition according to her treating psychiatrist,
Dr. Myron Meinhardt. At the April 16, 1986 hearing, the
father1 attorney made a motion to dismiss the case due to
s
denial of due process. Both motions were denied. At the
two-day hearing, the father testified in his own behalf, and
a number of witnesses supported his testimony. The State
called Dr. Meinhardt and the children's grandmother, Elanor.
On June 5, 1986, the District Court entered its
findings of fact, conclusions of law and order permanently
terminating parental rights of and giving permanent custody
to SRS with the right to consent to adoption. It is from
this ruling that these appeals arise.
We have recognized that family integrity is a
constitutionally protected interest. Matter of J.L.B.
(1979), 182 Mont. 100, 594 P.2d 1127. In J.L.B., we cited
the language of the United States Supreme Court case of
Stanley v. Illinois (1972), 405 U.S. 645, 651, 92 S.Ct. 1208,
1212-1213, 31 L.Ed.2d 551, 558-559:
The Court has frequently emphasized the
importance of the family. The rights to
conceive and to raise one's children
have been deemed "essential", [citation
omitted] "basic civil rights of man"
[citation omitted] and " [r]ights far
more precious ... than property
rights", [citation omitted]. "It is
cardinal with us that the custody, care
and nurture of the child reside first in
the parents, whose primary function and
freedom include preparation for
obligations the state can neither supply
nor hinder." [Citation omitted.] The
integrity of the family unit has found
protection in the Due Process Clause of
the Fourteenth Amendment, [citation
omitted], the Equal Protection Clause of
the Fourteenth Amendment [citation
omitted], and the Ninth Amendment.
[Citation omitted.]
J.L.B., 182 Mont. at 109, 594 P.2d at 1132.
However, the right to maintaining the family unit is
not absolute. Absent a clear showing of abuse of discretion
by the District Court, we will not reverse.
[TIhis Court is mindful that the primary
duty of deciding the proper custody of
children is the task of the district
court. As a result, all reasonable
presumptions as to the correctness of
the determination by the district court
will be made. Foss v. Leifer, 170 Mont.
97, 550 P.2d 1309, 33 St.Rep. 528
(1976). Due to this presumption of
correctness, the district court's
findings will not be disturbed unless
there is a mistake of law or a finding
of fact not supported by credible
evidence that would amount to a clear
abuse of discretion.
Matter of C.A.R. (Mont. 1984), 693 P.2d 1214, 1218, 41
The father contends the District Court abused its
discretion when it denied (by implication of the order issued
June 5, 1986) his motion to dismiss for reasons of delay and
prejudice. Granted, a number of motions to continue were
allowed in this case, but S; 25-4-503, MCA, states that the
District Court "[mlay, - - discretion, postpone a trial or
in its
proceeding upon other grounds than the absence of evidence
under such conditions as the court may direct." (Emphasis
added.) The District Court had the discretion to grant or
deny any continuance for justified reasons under the law in
Montana.
The father claims that the continuances substantially
prejudiced him because the District Court had bifurcated the
trial on November 22, 1985 and the hearing was continued as
to him only. We find this to be incorrect according to the
record. On Monday, November 18, 1985 the following testimony
occurred :
Mr. Falcon (Counsel for the father):
[I] believe we can stipulate, if the
parties will, that the hearing on Friday
will be in regards to the State versus
[the father's] activities, and will
reserve until later all the issues
dealing with [the mother] .
Ms. Macek (Counsel for the
mother): Your Honor, I would have no
problem with that. The only motion to
continue wanted was as far as [the
mother] was concerned.
Ms. Bell (Counsel for the State) : Your
Honor, I believe Mr. Falcon has
correctly stated the agreement we have
reached.
The record indicates the District Court noted the issue
of the mother's rights were to be determined at a later date.
The trial was therefore not "bifurcated" as the father
argues. The court merely allowed testimony in regards to the
father and reserved consideration of the mother's interest
until a later date, ultimately April, 1986.
The father contends that the court failed to hear and
determine within twenty days whether R.A.D. and J.D. were
abused, neglected or dependent. He argues that
S 41-3-401 (2), MCA, required:
Upon receipt of a petition, the court
shall set a date for an adjudicatory
hearing on the petition. Such petitions
shall be given preference by the court in
--
setting hearing dates and -must be heard
within 20 days - - filing - -
of the of the
~tto:
eiin (Em~hasis added bv amellant.)
This amendment was effective October 1, 1985 but the
petition was filed February 1, 1984 when 5 41-3-401(2)
provided only that l1[t]he court shall set a date for an
adjudicatory hearing on the petition." The State argues that
the father's motion to dismiss was made at the hearing to
consider termination of the parental rights governed by
S 41-3-607 (1), MCA. This section requires consideration of
termination of parental rights only after the petition for
permanent custody is filed and has a 180-day limitation.
The termination of a parent-child legal
relationship shall be considered only
after the filing of a petition pursuant
to 41-3-401 alleging the factual grounds
for termination. Termination of a
parent-child legal relationship shall be
considered at a dispositional hearing
held pursuani - 41-3-406, following or
to
together with an adjudicatory hearing
held pursuant t o 41-3-404, within 180
days after the filing - - petition.
of the
(Emphasis added.)
Section 41-3-607 (1), MCA.
In his reply brief, appellant admits that the 180-day
limitation is applicable. The petition for permanent custody
was filed in this case on August 26, 1985. It is at this
point that the 180-day ].imitation becomes effective.
Nonetheless, a hearing was held by November 22, 1985, well
within the 180-day time limitation.
The father argues the statute amendments are procedural
and can be applied to cases pending at that time and
therefore the 20-day limitation and 180-day limitation should
apply. He contends that § 1-2-109, MCA, which requires that
"[nlo law . . . is retroactive unless expressly so declared"
is not applicable in this case because of the "procedural"
nature of the statute's time limitation. State ex rel.
Johnson v. District Court of Fourth Judicial District (19661,
148 Mont. 22, 417 P.2d 109, 11.2. In Boehm v. Alanon Club
(Mont. 1986), 722 P.2d 1160, 1162, 43 St.Rep. 1341, 1344,
this Court stated:
The guiding principle in this area is
5 1-2-109, MCA, which states: "No law
contained in any of the statutes of
Montana is retroactive unless expressly
so declared." However, it has been held
that where a statute is procedural,
rather than substantive, 5 1-2-109 has no
application, and the statute will be
applied to a cause of action arising
before its enactment.
The State complied with the 180-day limitation. As to
the 20-day limitation, if we agree with the father that this
law should be retroactive, we must still affirm the court
because the 1987 Legislature again amended 5 41-3-401 (2) so
that no 20-day limitation is required. Under the facts of
this case, we find that the District Court did not abuse its
discretion in denying the motion to dismiss.
The father claims that the District Court abused its
discretion in allowing the testimony of R.A.D., who was five
years old at the time of the alleged sexual abuse and six
years old at the time of the hearing, and J.D., who was three
years old at the time of the alleged sexual abuse and five
years old at the hearing. Whether a child is competent to
testify is a matter left largely to the discretion of the
trial court. State v. Howie (Mont. 1987), P. 2d I
, 44 St.Rep. 1711, 1716; State v. Rogers (Mont. 1984),
692 P.2d 2, 5, 41 St.Rep. 2131, 2135, quoting State v.
Campbell (1978), 176 Mont. 525, 529, 579 P.2d 1231, 1233.
Rule 601 M.R.Evid. provides the general rule of competency as
follows: " [Elvery person is competent to be a witness except
as otherwise provided in these rules." For disqualification,
Rule 601, M.R.Evid., states that a person is disqualified if
he is not able to express himself to the judge or jury or is
unable to understand the "duty of a witness to tell the
truth. "
The father contends that J.D. was incompetent to
testify because: he admitted that he would say anything if
asked or told to say it; he was unable to tell the difference
between a boy and girl doll; he supplied inconsistent
testimony in regards to "good touch, bad touch;" and he
admitted that telling the truth was bad. As to R.A.D., the
father contends he was incompetent because: he was unable to
say how many brothers or sisters he had; he admitted on the
stand he did not know what "good touch, bad touch" was; and
he was inconsistent in regards to the number of times the
incident occurred.
From a reading of the record, it is clear that R.A.D.
was referring to his foster brothers and sisters who were the
children of his foster mother, Helen (Meg) Timblin. The
District Court determined the competency of the children by
asking questions in regards to the children's understanding
of the need for them to tell the truth. The Court then
allowed the attorneys to voir dire the youths and finally,
the youths were allowed to testify as to the actual sexual
contact.
The judge found both children competent to testify. We
find that despite the father's claims of inconsistencies, the
children did know the difference between a truth and a lie
and understood that they needed to be truthful on the stand.
In State v. Phelps (Mont. 1985), 696 P.2d 447, 42 St.Rep.
305, the five-year-old victim stated that he believed he was
testifying not in the court room but in the police station
and that the judge was a karate expert. We found that the
youth could tell the difference between the truth and a lie
and that was the gravamen ascertainment by the court to
determine competency. In State v. D.B.S. (Mont. 1985), 700
P.2d 630, 42 St. Rep. 770, we allowed a four-year-old incest
victim to testify despite the fact that she was inconsistent
as to when the alleged incident occurred.
We should recognize that children,
particularly four-year-olds are not
governed by the clock and calendar
. .. [and] are generally at a loss to
apply times or dates to significant
events in their lives.
D.R.S, supra, 700 P.2d at 634.
We note here that three and five-year-olds are al-so
sometimes going to be inconsistent as to particular incidents
or conversations of "good touch, bad touch," and even as to
how many brothers and sisters they have as the father's
counsel has argued. However, in this case, the testimony was
sufficiently consistent as to the actual act by the father
that the court properly allowed these children to testify.
Dr. Krajacich and. Irene Johnson testified that the youths
made statements very close to what they testified to in court
in the prior two-year period of time. It is this
consistency, rather than the minor inconsistencies stated by
the father, that is important.
After the youths were determined competent, they both
testified that their father had sexually molested them,
R.A.D. stated that his father touched him in his "private
spot. " He also stated that his father engaged in oral
contact on this private spot and demonstrated the activity on
anatomically correct dolls.
J.D. testified as to "good touch, bad touch" and
adequately differentiated between the two by distinguishing a
hug by his mother as a "good touch" and a hit by a State's
attorney as a "bad touch." He then stated that his father
had engaged in bad touch when "[hle sucked our peepee."
From our review of the record, we conclude that the
children were indeed competent to testify and that the
testimony describing the incidents of sexual contact go
directly to the father's next claim, that the District Court
erred in terminating the father's parental rights.
This final argument raised by the father is divided
into two parts. First, he argues that he did not receive
notice that the November 22, 1985 and April, 1986 hearings
were going to be combined adjudicatory and dispositional
hearings and that, again, the hearing on the S 41-3-401, MCA,
petition was not held within the mandatory 20-day period.
Secondly, the father argues that "on the merits" the District
Court erred in terminating his parental rights.
We have addressed the contention in regards to the
20-day limitation in S 41-3-401(2) above and therefore will
not reiterate our position. The father contends that the
continuances granted deprived him of due process and the
protection of SS 41-3-401 and 41-3-607, MCA and that the
court improperly terminated his parental rights without a
dispositional hearing pursuant to S 41-3-607, MCA. We have
thoroughly scrutinized the record in this case and note that
numerous continuances were granted. However, from this
analysis, we determine that no denial of due process
occurred. It is clear that the hearings of November 22, 1985
and April 16 and 18, 1986 were combined adjudicatory and
dispositional hearings. As to the claim that notice was not
sufficient, 5 41-3-607, MCA, expressly allows this
combination and does not require specific notice to the
parties. In this instance, there was insufficient delay to
constitute reversible error.
The father contends that at the conclusion of the
April, 1986 hearing, the District Court said "that [the
father] was to be put back with his children after
treatment." The court's statement in the record was:
[I]lm going to review the reports again,
and what I'm thinking of right now is
ordering [the father] to receive some
kind of treatment with the idea of, upon
a successful completion of that
treatment, to gradually reintroduce him
to his family.
This statement does not show the District Court was
going to reunite the family. It only shows reunification was
a consideration the court would contemplate. The court took
the matter under advisement and although the final order was
not issued until June 5, 1986, it was properly considered.
The law is clear that in termination hearings, the
findings of the court are presumed to be correct and will not
be reversed absent a clear abuse of discretion. Matter of
Declaring V.B., T.B., D.B. and B.B. Youths in Need of Care.
(Mont. 1987), P.2d , 44 St.Rep. 1838; Matter of C.P.
(Mont. 1386), 717 P.2d 1093, 1095, 43 St.Rep. 728, 730;
Matter of C.L.A. (Mont. 1984), 685 P.2d 931, 41 St.Rep. 1444.
For termination to occur the court is required to follow the
criteria set forth in S 41-3-609, MCA. Matter of Declaring
V.B., T.R., D.B. and R.B., Youths in Need of care, supra;
Matter of C.A.R., supra.
In this case, the District Court made the following
findings of fact: 1. Dr. Krajacich, after over two years of
evaluation, stated the youths had related to him that their
father had sexually abused them; that the youths' stories
over this period of time were consistent; and that the youths
could not have been coached. 2. The youths made statements
in open court to the effect that the father had sexually
abused them. 3. The father continued to deny that he
sexually abused R.A.D. and J.D. even though Dr. Russell, who
evaluated the father, concluded that he was untruthful,
repressed favorable information, and did indeed sexually
abuse the youths. 4. The father was unwilling or unable to
receive treatment as a sex offender and no party informed the
court of any sex offender therapist or treatment program that
would be willing to work with him. 5. Because the father
had not received any treatment, although he stated he would
be willing to receive treatment while contending that he did
not need the treatment, the conditions that caused him to be
unfit were unlikely to change within the foreseeable future.
6. That continuation of the parent-child relationship would
result in continued abuse and neglect and the youth's best
interests would be served only if SRS supervised allowed
contact.
Section 41-3-609(1), MCA, states:
The court may order a termination of the
parent-child legal relationship upon a
finding that the circumstances contained
in subsection (1)(a), (1)(b) or (1) (c),
as follows, exists: [ I ) a and (1)(b) do
not apply in this case]
(c) the child is an adjudicated youth in
need of care and both of the following
exist:
(i) an appropriate treatment plan that
has been 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.
(2) In determining whether the conduct
or condition of the parents is unlikely
to change within a reasonable time, the
court must enter a finding that
continuation of the parent-child legal
relationship will likely result in
continued abuse and neglect or that the
conduct or the condition of the parents
renders the parents unfit, unable, or
unwilling to give the child adequate
parental care.
The specific findings of the court fol-lowed subsections
(1) (c)(i) and (c)(ii) and (2) of S 41-3-609, MCA. Despite
these findings, the father argues that " [t] here was no
substantial credible evidence supporting the District Court's
order, when properly scrutinized." Upon scrutiny of the
record, we find that the father did not attempt to enter into
treatment or have the court approve an appropriate treatment
program. He sought out no treatment for two and one-half
years. He was evaluated by psychiatrists at court order
only. Both Dr. Russell and Dr. Krajacich testified as to the
difficulty in getting the father enrolled in treatment.
Attempts were made by him to have the SRS pay for his
psychological evaluations but similar requests for treatment
are not present.
Dr. Krajacich testified that it was "a good prognosis
that maybe these boys could get back together with their
family" but concluded that he believed the youths were
sexually abused. Dr. Russell concluded that the father had
sexually abused the youths. Irene Johnson agreed with the
conclusion. The District Court's finding of sexual abuse was
not clearly erroneous and therefore is upheld.
Termination can occur if a child is "abused and
neglected" defined as:
[a] child whose normal physical or mental
health or welfare is harmed or threatened
with harm by the acts or omissions of his
parent or other person responsible for
his welfare. (Emphasis added.)
Section 41-3-102 (2), MCA. Harm includes acts when a parent
"'commits or allows to be committed a sexual abuse against the
child. .. " Section 41-3-102 (3) (b), MCA. Matter -
of
C.A.R., supra, 693 P.2d at 1220. The District Court
therefore was presented with clear and convincing evidence
that the statutory criteria of S 41-3-609, MCA was met and
had substantial evidence that shows it did not abuse its
discretion in terminating the father's rights on the merits.
The sole issue raised on appeal b 7 counsel for the
l
mother concerns the District Court's failure to grant a
continuance for the April, 1986 hearings. Counsel for the
mother argues that the District Court had bifurcated the
trial as to the mother and the father at the November 22,
1985 hearing and that the trial court attorney for the mother
was surprised to learn on April 16, 1986 that she would be
required to proceed and represent the mother. It is clear
from the record, as previously discussed, that the court did
not bifurcate the trial on November 22, 1985. The April 16,
1986 hearing was indeed the hearing "at a later date" to
determine the mother's rights.
The District Court granted the mother's counsel three
continuances after the November 22, 1985 hearing and prior to
the April 16, 1986 hearing. The law in this state is clear
that a denial of a motion for continuance is within the sole
discretion of the trial judge, In Re Marriage of Robbins
(Mont. 1985), 711 P.2d 1347, 42 St.Rep. 1897; Rolich v.
Bolich (1982), 199 Mont. 45, 647 P.2d 844. Section 25-4-503,
MCA states that the District Court may postpone a trial or
hearing in its discretion.
There was testimony from the mother's psychiatrist that
she was not responding well to treatment at Warm Springs and
her court-ordered commitment could possibly be extended.
There was no set date when she would definitely be released.
Her counsel also could not assure the District Court when, if
at all, the mother would be able to attend.
Courts have held that a continuance may be warranted if
a party is mentally incapacitated. Alvis v. Kimbrough (5th
Cir. 1972), 455 F.2d 922; Thanos v. Mitchell (1959), 152 A.2d
833. Other courts have held it is not an abuse of discretion
for the court to deny a motion for continuance where the
petitioner claimed mental illness and there was evidence that
it was uncertain as to when he would ever be able to testify.
See, Chambers v. Anderson County Dept. of Social Services
(S.C. 1984), 311 S.E.2d 746; FJilliford v. Williford (Ga.
1973), 198 S.E.2d 181. Testimony showed it was uncertain as
to whether the mother would ever be able to testify and
litigation was entering its second year at the time of the
April 16, 1986 hearing.
We find no reversible error under the arguments
presented by appellate counsel. We do, however, remand this
case. It is expressly stated in Rule 17(c), M.R.Civ.P.:
[Tlhe court shall appoint - guardian -
a ad
litem for an infant or incompetent
Derson K t oFherwise re~Fesented - -
L -
in an
action or shall make suc; other order as
it deems proper for the protection of
the infant or incompetent person, or in
any case where the court deems it
expedient a guardian ad litem may be
appointed to represent an infant or
incompetent person, even though the
infant or incompetent person may have a
general guardian and may have appeared
by him. (Emphasis added. )
From the record we can find no procedure by which the
mother had a guardian ad litem named to represent her
interests. Further, we can find no appropriate waiver of her
rights to appear before the court on this matter pursuant to
5 53-21-119 ( 2 ) , MCA which states:
(2) The right of the respondent to be
physically present at a hearing may also
be waived by his attorney and the friend
of respondent with the concurrence of
the professional person and the judge
upon a finding supported by facts that:
(a) the presence of the respondent at
the hearing would be likely to seriously
adversely affect his mental condition;
and ( b ) an alternative location for the
hearing in surroundings familiar to the
respondent would not prevent such
adverse effects on his mental condition.
This section causes us concern because the act in which it is
found seems to deal largelv with proceedings to determine
involuntary capacity. Nonetheless, a reading of the express
purpose of the act, S 53-21-101, MCA, shows the need for
protection of the incompetent person's rights:
The purpose of this part is to: . ..(4)
assure that due process of law is
accorded any person coming under the
provision of this part.
The District Court has an affirmative duty to assure
that the rights of a party, who is alleged to be incompetent,
are protected. Rule 17 (c), M. R.Civ.P. requires appointment
of a guardian ad litem for an incompetent person whose rights
might be abrogated by a lack of proper representation. State
ex rel. Perman v. District Court (Mont. 1984), 690 P.2d 419,
41 St.Rep. 2002.
The parties agree that at the time of entry of the
order appealed from, the mother was under an order of
commitment and was confined at the Montana State Hospital.
It is unclear from the record whether, at the time of the
hearing, the mother was adjudicated incompetent. Having had
no guardian ad litem appointed for her, and in light of our
discussion on the need to consider the constitutionally
protected interest in maintaining family integrity, the
District Court should have made a determination whether
E.D.'s parental rights were adequately protected. The fact
that the mother was represented at the hearing by appointed
counsel does not meet the requirements of Rule 17(c),
M.R.Civ.P., if, in fact, the mother was incompetent.
The termination of the father's parental rights is
affirmed. As to the mother's parental rights, this case is
remanded to the District Court for determination as to
whether, under the unique facts of the case, the rights of
E.D. have been properly protected and whether a guardian ad
litem is necessary to properly represent E.D. prior to the
termination of her parental rights.
We concur: