NO. 91-264
IN THE SUPREME COURT OF THE STATE OF MONTANA
1992
IN THE MATTER OF D.S., H.S., R.S.,
R.S., J.S., R.S., and K . S . ,
Youths in Need of Care.
APPEAL FROM: District Court of the Fifth Judicial District,
In and for the County of Beaverhead,
The Honorable Frank M. Davis, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Thomas A. Dooling, Dooling Law Office, Dillon,
Montana.
For Respondent:
Hon. Marc Racicot, Attorney General, Helena,
Montana : Jennifer Anders, Assistant Attorney
General, Helena, Montana; Thcmas R. Scott, County
Attorney, Dillon, Montana; Andrew P. Suenram,
Attorney at Law, Dillon, Montana.
Submitted on Briefs: February 6, 1992
Decided: June 25, 1992
Filed:
Cuerk
Justice Fred J. Weber delivered the Opinion of the Court.
The Montana Fifth Judicial District Court, Beaverhead County,
terminated the parental rights of James K. Streckert and Ida E.
Streckert (Streckerts), the natural parents of D.S , H. S. . , R. S.,
R.S., J.S., R . S . , and K . S . Streckerts appeal. We affirm.
The issues raised on appeal are restated as follows:
1. Did the District Court deny the Streckerts due process by
taking judicial notice of collateral proceedings and incorporating
findings from the temporary custody proceeding into its order
terminating the Streckerts' parental rights?
2. Did the State meet the statutory criteria for terminating
Streckerts' parental rights under 5 41-3-609, MCA?
In October 1989, the Department of Family Services (DFS)
received complaints of educational neglect from school officials
due to the Streckert children's excessive absences. In November
1989, the DFS received reports of possible sexual abuse, and
petitioned the court for temporary investigative authority. The
Streckerts were unrepresented at this hearing in December 1989,
wherein the District Court appointed Guardians ad litem for the
children and granted the DFS temporary investigative authority. On
March 22, 1990, the court heard the State's petition for temporary
custody of the Streckert children, and granted DFS temporary
custody. The court ordered D.S. removed to foster care with the
other children remaining in the Streckert home. The Streckerts
were not represented at this hearing. In April 1990, the court
approved the treatment plan proposed by the DFS. The Streckerts
2
refused to sign the plan. Further, evidence from the final hearing
reveals that the Streckerts failed to comply with the plan.
After working with the Streckerts for over ten months, the
state of Montana, through the DFS had petitioned the court to
terminate the parental rights of appellants James and Ida Streckert
on February 13, 1991. The court conducted a hearing on this
petition March 15, 20 and 21, 1991. Court appointed counsel
represented the Streckerts during the termination hearing.
The facts set forth in this opinion are summaries of the
testimony presented in the course of the final termination hearing,
wherein the Streckerts were represented by counsel. Dr. Richard
Thomas, a licensed professional counselor testified that the oldest
boy, D.S., was sexually abusing his younger siblings, and that the
Streckerts were aware of this abuse yet did not accept the
seriousness of D.S.'s sexual activities. Marjorie Montrose, the
primary social worker, presented testimony that the Streckerts did
not appreciate the impact this sexual abuse had on the younger
children and failed to intervene. Further, both Thomas and
Montrose testified that the Streckerts did not effectively
participate in the treatment of D.S. or the other children. They
missed scheduled meetings and when present they did not
constructively use the counseling sessions. Streckerts used these
sessions to air grievances with the DFS rather than address their
problems.
Deputy Sheriff William Briggs testified D.S. was stealing
bicycles, and then dismantling, reassembling and repainting the
3
bikes in the shop behind the Streckert house. The Streckerts
refused to acknowledge or address the thievery by D.S. In
addition, Deputy Briggs caught R.S., shoplifting. He testified
that Mr. Streckert ~ogiggled~~ he learned of the thievery of
when
R.S, one of his younger children.
Neighbors, law enforcement, and social workers all testified
that the Streckerts' house was filthy. Women from the local church
attempted to work with Mrs. Streckert to improve her housekeeping
skills, and a neighbor testified that she laundered the Streckerts'
clothes for a month. Despite this encouragement, Mrs. Streckert
made no attempt to keep the house habitable. Mrs. Streckert worked
neither out of the home nor in the home; rather, she spent her days
watching television. Mr. Streckert's former employer testified
that Mr. Streckert was a "first rate'' mechanic. Nonetheless, Mr.
Streckert chose not to work and depended on the church to pay his
rent.
Montrose testified that although the Streckerts made no
improvement in their home as required by the plan, in her opinion
the habitability of the home was not as important as the negative
emotional and psychological influence that the Streckerts had on
their children.
Uncontradicted testimony demonstrated the inability of the
Streckerts to learn parenting skills. R.S.'s teacher testified
that she kept food at school to feed R.S. The Streckerts' neighbor
testified that she fed the Streckert children daily. The
children's clothes as well as the children themselves were filthy.
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The foster parents of the five younger children testified that when
they were placed into foster care, the children were unaccustomed
to bathing, that they had an eighth of an inch of "greasy, scaly,
cruddy stuff on their hair" which took over a week of bathing to
wash out. The younger boys were hungry when they arrived. The
children were unaccustomed to eating with utensils and did not know
how to brush their teeth. In addition, the physician examining the
children after they were placed with foster parents testified that
R.S. needed dental care, suffered from a severe ear infection which
blocked his hearing, and had untreated speech problems. A neighbor
testified that the Streckerts treated their children with animal
medication.
Social workers Montrose and Riley testified that despite the
DFSIs efforts, Streckerts refused to comply with the treatment
plan. This testimony was confirmed by Dr. Thomas who testified
that in his opinion the treatment plan was appropriate, and that
the Streckerts failed to comply. Thomas testified that the
Streckerts' behavior was both inappropriate and manipulative.
Further, he concluded that any continued treatment would be
detrimental to the children. Finally, he testified that it was in
the best interest of the children to permanently separate them from
their parents.
Social workers Montrose and Riley testified that even if the
Streckerts engaged in long term treatment, it was unlikely that
they would successfully complete the treatment plan. They further
testified that any further delay in permanent placement would be
5
detrimental to the children. Accordingly, they recommended
immediate termination of parental rights. The Streckerts denied
all evidence presented by the State: however, the court
specifically found their continued denial was not credible.
On April 1, 1991, the District Court terminated the
Streckerts' parental rights. In its findings, the District Court
took judicial notice of the two collateral proceedings and
incorporated the findings from the temporary custody proceeding
into its termination order. The Streckerts appeal from this order
terminating their parental rights.
Did the District Court deny the Streckerts due process by
taking judicial notice of collateral proceedings and incorporating
findings from the temporary custody proceeding into its order
terminating the Streckerts' parental rights?
This Court has previously determined that due process
requirements are satisfied when the State appoints counsel prior to
termination hearings. Matter of M.F. J.F. L R.W. (1982), 201 Mont.
277, 286, 653 P.2d 1205, 1209-1210. Likewise, we have held that
due process does not require appointment of counsel for parents
during temporary custody hearings. Matter of T.C. L R.C. (1989),
240 Mont. 308, 314-315, 7 8 4 P.2d 392, 395-396. Thus, the State was
not required to provide Streckerts with counsel at the proceeding
granting the DFS temporary investigative authority or the hearing
granting the DFS temporary custody of the Streckert children.
In its final order the District Court took judicial notice of
6
these prior proceedings and incorporated findings from the
temporary custody hearing into its order terminating parental
custody. A district court should not take judicial notice of a
hearing at which parties were not represented by counsel. Normally
the taking of such judicial notice would violate the due process
rights of the parties. Matter of M.F., J.F. & R.F., 201 Mont. at
286, 653 P.2d at 1209-1210.
While the District Court was incorrect in taking judicial
notice of prior proceedings and incorporating those findings into
its final order, we conclude that the due process rights of the
Streckerts were not violated. It was unnecessary for the District
Court to make any reference to the temporary custody proceedings.
All of the extensive findings of the District Court in connection
with its final order terminating parental rights are supported by
evidence submitted in the course of the final hearing. There was
no necessity to refer back to collateral proceedings at which the
Streckerts were not represented. We emphasize that the District
Court should not have made any attempt to incorporate the temporary
custody hearing matters, at which the Streckerts were
unrepresented, into the proceedings which resulted in the
termination of parental rights. However, where the evidence
presented, without objection, substantiates all of the findings and
conclusions of the District Court in its order terminating parental
rights, we conclude there has been no denial of due process as to
the Streckerts.
We hold that due process was not denied to the Streckerts by
the District Court's reference to the collateral proceedings and
incorporation of findings from the same.
I1
Did the State meet the statutory criteria for terminating
Streckerts' parental rights under § 41-3-609, MCA?
Section 41-3-609, MCA states in part:
(1) The court may order a termination of the parent-child
legal relationship upon a finding that any of the
following circumstances exist . ..
(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. .. .
The District Court determined that the State proved the
termination criteria under F, 41-3-609, MCA, by clear and convincing
evidence. We will not set aside the trial court's findings unless
they are clearly erroneous. Rule 52(a), M.R.Civ.P.
First, the Streckerts assert that the court used vague
criteria within the Montana statute to terminate custody. Next,
they contend that the court based its decision on an intolerance of
Streckerts' religious beliefs and the Streckerts' inability to
provide their children with middle class luxuries. Finally, they
claim the court had insufficient evidence from which to determine
the Streckerts were W n f it" parents.
These allegations are not supported in any manner by the
record in this case. On the contrary, the court's finding that the
Streckerts are unfit parents is supported by the testimony of all
8
witnesses at the final hearing save the testimony of James and Ida
Streckert themselves. Here, the record shows that D.S., H.S.,
R.S., R.S., J.S., R . S . , and K . S . were adjudicated youths in need of
care, that the Streckerts had not complied with the court approved
treatment plan, and that the Streckerts' conduct causing the
problem could not be rectified within a reasonable time.
We hold that the State met the statutory criteria necessary to
terminate Streckerts' parental rights under 5 41-3-609, MCA.
Affirmed.
We concur:
Justices
9
Justice William E. Hunt, Sr., dissenting.
I dissent. Today the decision by the Court effectively
sanctions a violation of an individual's due process rights by the
State. It is flatly wrong for the District Court to incorporate
judicial notice of temporary custody hearings, where counsel is not
present or mandatory, into its final order terminating parental
custody rights. To do s o , and prevent the parents from having the
right to counsel, is to create the grave risk of an erroneous
decision. In reaching its conclusion, the majority sadly forsakes
a fair adjudication of the rights of all the persons, both parents
and children. A parental termination case merits the utmost
protection of the parents' rights to be adequately represented.
The court should not use the evidence against the parents to judge
the legitimacy of their interest based on hearing without counsel.
In attempting to justify what appears to be a proper and just
conclusion, the majority is led into unconstitutional methods to
reach its ends.
The majority contends the violation of due process is
negligible in its effect because the evidence supports its
conclusion, and is thus permissible. The violation of the
Streckerts' right to counsel should not be swept under the analysis
of the evidence, nor should it be dismissed as negligible.
Substantiality of evidence has never been an adequate reason to
sustain a violation of an individual's right to counsel. The
majority writes, "[n]ormally the taking of such judicial notice
10
would violate the due process rights of the parties." The use of
the word "normally" makes the right to due process appear arbitrary
and contingent on social norms proscribed only by the majority
today. This has never been the case. The review of a due process
violation should be an unequivocal constant which is not subject to
erratic determination based on norms. At times, the court has
committed itself to a balance test, concluding, for example, that
a violation may be outweighed by compelling state interests. The
Court's discretion to forego that analysis today goes beyond
permissible limits. Even in the shadow of evidence supporting the
majority's conclusion, a violation of the due process rights of an
individual should never be sanctioned.
I would remand this case to the District Court for findings of
fact, conclusions of law, and order based on procedures that afford
the parents due process so that there is no sanction of a violation
of an individual's due process rights by the State.
/
Justices Karla M. Gray and Terry N. Trieweiler concur in the
foregoing dissent of Justice Hun
1
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June 25, 1992
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:
Thomas A. Dooling
DOOLING LAW OFFICE, P.C.
P.O. Box 1339
Dillon, MT 59725
HON. MARC RACICOT, Attorney General
Jennifer Anders, Assistant
Justice Bldg.
Helena, MT 59620
Marge Montrose
Montana Department of Family Services
Courthouse
Dillon, MT 59725
Thomas R. Scott
Beaverhead County Attorney
Courthouse
Dillon. MT 59725
Andrew Suenam
Attorney at Law
310 E. Sebree
Dillon, MT 59725
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA