No. 95-011
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
IN THE MATTER OF INQUIRY
INTO M.M., A.D., and L.D.,
Youths in Need of Care.
APPEAL FROM: District Court of the Tenth Judicial District,
In and for the County of Fergus,
The Honorable Byron L. Robb, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Torger S. Oaas, Attorney at Law, Lewistown, Montana
For Respondent:
Honorable Joseph P. Mazurek, Attorney General;
Cregg Coughlin, Assistant Attorney General, Helena,
Montana
Thomas P. Meissner, County Attorney, Lewistown,
Montana
Jon A. Oldenburg, Attorney at Law, Lewistown,
Montana
Submitted on Briefs: October 19, 1995
Decided: November 21, 1995
.P
!9 ,! P
Clebk
Chief Justice J. A. Turnage, delivered the Opinion of the Court.
P.D., the mother of M.M., A.D. and L.D., appeals the decision
of the Tenth Judicial District Court, Fergus County, terminating
her parental rights. We affirm.
P.D. raises the following issues on appeal:
1. Did the District Court commit reversible error by
admitting hearsay testimony of P.D.'s minor children?
2. Did the District Court err in affording undue weight to
the testimony of Gwen Glidewell?
3. Did the District Court err in refusing to grant P.D. a
continuance in order to produce a rebuttal witness to Gwen
Glidewell?
4. Did the District Court err in terminating P.D.'s parental
rights absent the existence of a court-approved treatment plan?
P.D.'s three daughters, M.M., A.D. and L.D., were born out of
wedlock to three different fathers between January 1987 and July
1990. P.D. has neither sought nor received child support from any
of the fathers. The father of M.M. filed a relinquishment of his
parental rights. The fathers of A.D. and L.D. were served by
publication, failed to respond, and a default judgment terminated
their parental rights.
On February 1, 1993, the Fergus County Attorney, on behalf of
the Department of Family Services (DFS, now part of the Department
of Public Health and Human Services, or DPHHS), filed a petition in
the Tenth Judicial District Court for temporary investigative
authority and protective services for M.M., A.D. and L.D. The
petition was in response to allegations of abuse and neglect of
M.M., A.D. and L.D. Following a hearing, the District Court
granted DFS's petition on February 16, 1993.
On May 3, 1993, the Fergus County Attorney filed a petition
for the termination of P.D.'s parental rights and also for DFS to
be granted permanent legal custody of M.M., A.D. and L.D.
Following the June 20 through 21 hearing, the District Court
terminated P.D.'s parental rights and granted DFS permanent custody
of M.M., A.D. and L.D. P.D. appeals the termination of her
parental rights. Other facts, as relevant to the disposition of
the following issues, will be set forth as necessary below.
Issue 1
Did the District Court commit reversible error by admitting
hearsay testimony of P.D.'s minor children?
We review district court evidentiary rulings to determine if
the court abused its discretion. Mason v. Ditzel (1992), 255 Mont.
364, 370-71, 842 P.2d 707, 712. We will not reverse evidentiary
rulings absent a manifest abuse of discretion. Mason, 842 P.2d at
712. Additionally, "a reversal cannot be predicated upon an error
in admission of evidence, where the evidence in question was not of
such a character to have affected the result." Mason, 842 P.2d at
712 (quoting Lauman v. Lee (1981), 192 Mont. 84, 90, 626 P.2d 830,
834).
Section 41-3-609, MCA (1993), sets forth the criteria for
termination of parental rights:
The court may order a termination of the parent-
child legal relationship upon a finding that any of the
following circumstances exist:
ici the child is an adjudicated youth in need of
care and both of the following exist:
ii) 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 [. 1 [Emphasis added.]
Pursuant to §§ 41-3-102(17), 41-3-102(2) and 41-3-102(5), MCA
(1993), the term "youth in need of care" includes a child whose
health or welfare is harmed or threatened harm by acts or omissions
of a person responsible for the child's welfare. Section 41-3-
102 (8)) MCA (1993), defines "harm to a child's health or welfare"
as:
the harm that occurs whenever the parent or other person
responsible for the child's welfare:
(a) inflicts or allows to be inflicted upon the
child physical or mental injury;
(b) commits or allows to be committed sexual abuse
or exploitation;
(c) causes failure to thrive or otherwise fails to
supply the child with adequate food or fails to supply
clothing, shelter, education, or adequate health care,
though financially able to do so or offered financial or
other reasonable means to do SOL.] [Emphasis added.]
P.D. argues that the District Court terminated her parental
rights because it found that she had allowed her children to be
sexually abused or exploited. While P.D. admits that her daughters
were sexually abused by at least two of her male acquaintances, she
insists that she did not know of the sexual abuses at the times
they occurred. She claims that implicit in the term "a11ow" is the
idea that she had some knowledge that the abuse occurred and yet
did nothing to prevent it. She finally argues that the prosecu-
4
tion's only evidence that she knew that the sexual abuse occurred
was the hearsay testimony of a therapist repeating statements made
to her by P.D.'s daughters. P.D. maintains that the hearsay
statements of her daughters do not satisfy any of the exceptions to
or exclusions from the hearsay rule and therefore should not have
been admitted at trial.
We disagree with P.D.‘s argument. First, P.D. presents no
authority for her assertion that the phrase "allows to be committed
sexual abuse or exploitation" requires actual knowledge that the
acts have been committed. Section 41-3-102(S) (b), MCA (1993),
explicitly states that abuse and neglect "include harm or threat-
ened harm to a child's health or welfare by the acts or omissions
of a person responsible for the child's welfare." [Emphasis added.]
This Court has previously held that acts or omissions of a parent
or guardian are sufficient to satisfy the requirement of abuse and
neglect. See In the Matter of C.A.R. and P.J.R., Youths in Need of
Care (1984), 214 Mont. 174, 184, 693 P.2d 1214, 1220.
Second, while the District Court found that P.D. knew of her
daughters' sexual abuse, the court specifically stated that her
knowledge of the abuse was irrelevant to its ultimate determina-
tion. The court found that "even if she did not know of the abuse,
she failed to notice what was occurring and repeatedly left the
children with persons who were not competent or safe caretakers."
Such a finding is supported by the evidence presented at trial and
satisfies the requirements of 5 41-3-102(5) (b), MCA (1993).
5
Finally, P.D. does not challenge the court's finding that she
failed to detect the abuse and left her children with inappropriate
supervision. Regardless of P.D.'s knowledge of her daughters'
sexual abuse, there is sufficient evidence to support a finding
that M.M., A.D. and L.D. are youths in need of care. The disputed
hearsay evidence goes only to establish P.D.'s knowledge of the
sexual abuse of her children. Because the District Court found
that M.M., A.D. and L.D. were youths in need of care regardless of
P.D.'s knowledge of the sexual abuse, any error by the court in
admitting the challenged evidence was harmless. Mason, 842 P.2d at
712.
Issue 2
Did the District Court err in affording undue weight to the
testimony of Gwen Glidewell?
Glidewell lived with P.D. and her children for a short period
of time. Glidewell testified about P.D.'s lifestyle while they
lived together. Glidewell's testimony described P.D.'s friends,
acquaintances, social habits and living arrangements.
P.D. argues that the District Court gave Glidewell's testimony
undue weight. P.D. claims that on cross-examination, Glidewell was
exposed as an incredible witness who had a motive to testify
falsely against her.
In nonjury trials, the credibility of a witness and the weight
which his or her testimony should be afforded is left to the sound
discretion of the district court. Keebler v. Harding (1991), 247
Mont. 518, 523, 807 P.2d 1354, 1357. In this case, the District
6
court was in the best position to hear all of the evidence
presented and weigh conflicting testimony. After hearing Glide-
well's testimony, as well as the other witnesses' testimony, the
court determined that Glidewell was a credible witness. It is not
the role of this Court to reweigh the evidence and substitute our
judgment for that of the District Court under such circumstances.
We conclude that the District Court did not abuse its
discretion in finding Glidewell to be a credible, reliable witness.
Issue 3
Did the District Court err in refusing to grant P.D. a
continuance in order to produce a rebuttal witness to Gwen
Glidewell?
At the close of trial, P.D.'s attorney requested a continuance
in order to prepare additional testimony to discredit Gwen
Glidewell. Particularly, P.D.'s counsel wished to call Gwen
Glidewell's mother, Cindy Glidewell, to testify as to Gwen's
reputation for truth and honesty.
We review discretionary trial court rulings such as motions
for continuances to determine if the court abused its discretion.
Montana Rail Link v. Byard (1993), 260 Mont. 331, 337, 860 P.Zd
121, 125. In this case, P.D. had already presented testimony from
one witness which tended to impeach Gwen Glidewell's reputation for
truth and honesty. The court determined that P.D.'s trial counsel
was given sufficient notice of Gwen Glidewell's testimony and that
additional impeachment testimony was unnecessary. We conclude that
7
the District Court did not abuse its discretion in denying P.D.‘s
trial counsel's motion for a continuance.
Issue 4
Did the District Court err in terminating P.D.'s parental
rights absent the existence of a court-approved treatment plan?
Section 41-3-609, MCA (1993), states, in relevant part:
The court may order a termination of the parent-
child legal relationship upon a finding that any of the
following circumstances exist:
ici 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[. 1 [Emphasis added.]
In this case, DFS prepared and executed a treatment plan; however,
P.D. refused to sign the plan. The treatment plan was filed with
the District Court, but was never officially signed by the District
Judge
While the District Court never approved the treatment plan,
all parties involved apparently proceeded under the assumption that
there was a court-approved treatment plan in place. In a Request
for Status Report on Service Treatment Agreement, P.D.'s counsel
stated:
2. It is the understanding of your Petitioner that a
service treatment agreement was presented to [P.D.] in
that she has either the original or a copy of such
document. And apparently a duplicate original of the
agreement was signed by the DFS, lP.D.1, and later
approved by the Court.
3. LP.D.1 believes that she has successfully completed
nearly all of the requirements of the service treatment
agreement. [Emphasis added.]
P.D. and her counsel clearly believed that a court-approved
treatment plan was in place and that she was required to comply
with the terms of this treatment plan. A review of the record
reveals that P.D. failed to complete the requirements of the
treatment plan which she believed governed these proceedings.
P.D. now argues on appeal that the court cannot terminate her
parental rights because it did not first approve a treatment plan.
P.D. claims that without a court-approved treatment plan in place,
her parental rights cannot be terminated under any circumstances.
This Court has consistently interpreted abuse and neglect
statutes to protect the best interest of the children. "In matters
involving abused and neglected children we have consistently held
that a district court may protect the children's best interest
despite procedural error." In the Matter of F.H., J.K. and B.K.,
Youths in Need of Care (1994), 266 Mont. 36, 39, 878 P.Zd 890, 892.
We have upheld the termination of parental rights absent a
court-approved treatment plan. In the Matter of the Custody and
Parental Rights of M.D., a/k/a/ M.S., a Youth in Need of Care
(1993), 262 Mont. 183, 864 P.2d 783. In that case, the parent was
incarcerated, refused to complete the recommended sexual offender
program and refused to sign the proposed treatment plan. In the
Matter of the Custody of M.D., 864 P.2d at 786. We held that court
approval of the treatment plan was not necessary due to the
parent's incarceration and noncompliance with the treatment
9
recommendations. In the Matter of the Custodv of M.D., 864 P.2d at
786-87.
While P.D. was not incarcerated, she refused to sign the
treatment plan and refused to fulfill the requirements contained
therein. In light of our decision in In the Matter of the Custody
of M.D., and the facts and circumstances of this case, we conclude
that the absence of formal court approval of the treatment plan is
not a bar to terminating P.D.'s parental rights.
We note, for future termination proceedings, that a court-
approved treatment plan should be in place in every case except as
specifically provided in 5 41-3-609(4), MCA. To clarify any
confusion caused by our previous opinions, we observe that 5 41-3-
609, MCA, does not require that the parent sign the treatment plan
in order for the court to approve such a plan. Section 41-3-609,
MCA, allows court approval of a treatment plan with or without the
parent's signature. We also reiterate our warning to DPHHS to
abide by the strict statutory requirements in termination proceed-
ings or risk grave harm to the very children whom they seek to
protect. See In the Matter of F.H., 878 P.2d at 890.
We affirm the decision of the District Court.
R
Chief Justic
10
we concur:
Ju tifes
Justice Charles E. Erdmann specially concurring.
While I have joined the majority opinion, it was with some
reluctance. Justice Gray, in her dissent, reviews the statutory
requirements of 5 41-3-609(l) (c), MCA, and the obvious fact that
those requirements were not met in this case since there was no
court approved treatment plan. In determining that this error does
not warrant reversal, the majority relies on In the Matter of F.H.
(1994), 266 Mont. 36, 878 P.2d 890, in which this Court held that
a district court may protect the children's best interests despite
procedural errors. Justice Gray dissented in In the Matter of F.H.
on the same basis that she does here, noting that repeated
"signals" from this Court had gone unheeded by DFS (now DFHHS). I
share those concerns.
The Legislature has established certain procedures that must
be followed in terminating parental rights. Although the
Legislature did not adopt an exception allowing district courts to
disregard procedural requirements if the best interests of the
children are involved, this Court has done so. The existence of
this Court-created exception to the statutory requirements has the
effect of tolerating if not condoning improper procedures.
I have joined with the majority only because the actions taken
by DFS in this case occurred prior to the issuance of In the Matter
of F.H. on July 12, 1994. DFS did not have the benefit of
reviewing the cautions contained in Justice Gray's dissent and
Justice Nelson's concurring opinion in that case prior to filing
the petition in this matter.
12
The difficulty in this area, and no doubt the reason for the
creation of the exception in In the Matter of F.H., is that the
very children DFHHS is charged to protect are endangered when these
cases are reversed or remanded. With the continuation of this
judicially-created exception, however, there is little incentive
for DFHHS to comply with the statutory requirements.
DFHHS should heed the warning contained in both the majority
and dissenting opinions or risk reversal on the basis of procedural
errors in the future.
a=
Justice
13
Justice Karla M. Gray, dissenting
I respectfully dissent from the Court's opinion because I will
not be a party to the Court's continued refusal to require DFS (now
DPHHS) to comply with clear legislative mandates. I would reverse
the District Court's termination of P.D.'s parental rights without
a court-approved treatment plan because the law permits no other
result in this case.
The dispositive issue in this case is simple and to the point.
It requires only that we apply the plain language of § 41-3-
609(l) (cl, MCA, to the record before us. Neither this Court's
refusal to address the statute in discussing issue 4, regarding the
absence of a court-approved treatment plan, nor the Court's
repeated efforts to misdirect attention away from clear and
mandatory statutory language alter the requirement of a court-
approved treatment plan contained in the statute.
Section 41-3-609(l) cc), MCA, authorizes a court to terminate
parental rights upon a finding that the child is an adjudicated
youth in need of care "and both of the followinq exist:"
(i) an appropriate treatment plan that has been aooroved
bv 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. [Emphasis added.]
A straightforward reading of the statute can result only in a
conclusion that the threshold mandate of the remaining criteria in
5 41-3-609(l) (c) (i) and (ii), MCA, is the existence of a court-
approved appropriate treatment plan. Unless and until such a plan
14
exists, the "no compliance/not successful" and "unlikely to change"
criteria never come into play. The legislature's intent and the
rationale underlying that intent are clear: a parent's conduct in
successfully complying can be measured only against an appropriate
treatment plan that has been approved by the court.
In this case, the record is equally clear. No appropriate
treatment plan approved by the District Court exists. Thus, the
law permits only one valid legal conclusion by this Court: that
the District Court erred in terminating P.D.'s parental rights. In
concluding otherwise, this Court violates the statutory
responsibility imposed on it by § l-2-101, MCA, by judicially
deleting from 5 41-3-609(l) cc), MCA, the requirement of a court-
approved plan clearly contained therein. In doing so, of course,
the Court intrudes into and directly contravenes the legislature's
constitutional authority.
1n charting such a course, the Court presents a number of "red
herrings," apparently hoping to draw the reader's attention away
from what the law so clearly requires. First, the Court notes that
P.D. refused to sign the plan. The problem with this statement is
that the statute does not require that the parent do so. Next, the
Court observes that the plan was filed with the District Court, but
not "officially signed" by that court. By means of this
observation, the Court attempts to suggest that the District
Court's "official signing" of the plan is a mere ministerial act
and is all that 5 41-3-609(l) (c) (i), MCA, requires or contemplates.
Nothing could be farther from the truth.
15
The legislature's mandate that the treatment plan filed by DFS
be approved by a court is neither ministerial nor nonsubstantive.
The legislature recognized throughout the statutes regarding
termination of parental rights that, while DFS is the state agency
in which initial decisions regarding the protection of children is
vested, DFS cannot be permitted to act in these important areas
without court involvement. Thus, the treatment plan promulgated by
DFS--whether or not agreed to by the parent(s) involved--must be
reviewed by a court to determine whether it is appropriate; if so,
it must be affirmatively approved by the court. The statutory
requirement is a clear statement of legislative intent that the
court's role is not to merely "rubber stamp" agency decision-making
by "officially signing" DFS' treatment plan; the court's role is to
ensure that the agency is not given unbridled discretion in areas
as important as terminating the most fundamental relationship in
the world--that of parent and child.
But this Court does not stop with these two efforts to detract
attention from its failure to apply clear statutory language. It
goes on at some length to point out that, during some phases of the
proceedings, all parties operated under the mistaken belief that a
court-approved treatment plan existed and that P.D. "failed to
complete the requirements of the treatment plan which she believed
governed these proceedings." These matters are irrelevant here.
What this Court fails to point out is that this case does not
involve the parties' "belief" regarding existence of a court-
approved plan throughout the proceedings in the District Court. In
16
such a case, the parent would have waived any right to later
challenge the outcome on that basis; if raised in this Court, we
would not address the issue because it had not been preserved in
the District Court and would not be properly before us. In fact,
the record in this case is clear that P.D. did object to the
absence of a court-approved treatment plan in the District Court.
Nor is the fact that P.D. failed to complete the requirements
of the treatment plan she believed existed during earlier phases of
the District Court proceedings pertinent here. As a matter of law,
*0 statutorily-required court-approved treatment plan existed
against which her conduct could be measured as to compliance and
success.
Finally, by citing to In the Matter of F.H., J.K. and B.K. and
In the Matter of the Custody of M.D., the Court seems to herald and
celebrate its now nearly two-decade old refusal to apply the law as
enacted by the legislature and its concomitant permission to DFS to
ignore the law. While it is true that the Court ends its opinion
with a tepid shaking of its collective finger at DFS via a
"reiteration" of a long-standing "warning" to DFS--and, perhaps, to
the district courts of Montana--neither the agency nor attorneys
nor district courts are likely to take this "warning" any more
seriously than they have taken the previous warnings. And why
should they? With the addition of every opinion from this Court in
which an agency of the State of Montana is allowed to avoid legal
mandates, it becomes harder and harder for the Court to break away
from this ill-chosen and insupportable path, because in every "next
17
case” agency lawyers will argue that it is not fair that clear
legal requirements should finally be applied as written in their
case. And so the Court continues to allow a state agency to
blithely ignore the law with impunity.
It is important to look back at the cases in which this Court
has "warned" DFS and its predecessor agency that it must comply
with legal mandates. As early as 1977, this Court "strongly
condemned" DFS' disregard of the law. In re Gore (1977), 174 Mont.
321, 329, 570 P.2d 1110, 1115. In that case, SRS (DFS' predecessor
agency with regard to protecting children) ignored a legislatively-
imposed 4%hour filing requirement for an emergency protective
services petition after removing children from a home. We noted
that SRS had removed the children under the guise of the law and
that it had a duty to "strictly adhere to the requirements of that
same law." In re Gore, 570 P.2d at 1115.
Seventeen years later, in one of the cases to which the Court
cites in its opinion here, we said we "sound a stern warning to DFS
to strictly follow the statutory procedure in future cases or we
will, in no uncertain terms, punish its conduct . . _I' Matter of
F.H. (19941, 266 Mont. 36, 40, 878 P.2d 890, 893. One can hardly
say that DFS has heeded our strong condemnation and stern warning!
Of at least equal importance, one can hardly say that in this case
the Court is, "in no uncertain terms," punishing DFS' continued
refusal to comply with the very law under which it operates! I
dissented strongly in Matter of F.H. for the same reasons I dissent
here: the Court's actions in these regards are not permitted as a
18
matter of law and serve only to encourage DFS--and others--to
ignore both the law and this Court.
Finally, the Court's reliance on Matter of Custody of M.D., is
misplaced. In that case, as in this one, no court-approved
treatment plan existed. The incarcerated parent argued that his
parental rights could not be terminated. We disagreed, because
5 41-3-609(4) (b), MCA, provides that a court-approved treatment
plan is not required if the court finds that "the parent is
incarcerated for more than 1 year and such treatment plan is not
practical considering the incarcerationL.1 I' Matter of Custody of
M.D. (1993), 262 Mont. 183, 186, 864 P.2d 783, 786.
In Matter of Custody of M.D., a specific statutory exception
to the court-approved treatment plan existed and was properly
applied to the facts of record. Here, P.D. was not incarcerated.
As a result, neither Matter of Custody of M.D. nor the statutory
exception upon which we relied there applies to the present case.
I share the Court's concern about the children of Montana.
Indeed, there is room for concern about returning P.D.'s children
to her pending a District Court proceeding in which DFS is required
to follow the law. The appropriate resolution of this case is not
for this Court to continue to countenance the violation of the law
by DFS. The appropriate resolution is to reverse the District
Court and order that the status quo regarding the children be
maintained pending further proceedings during which legal mandates
are met. I would remand for the filing by DFS (now DPHHS), within
30 days, of an appropriate treatment plan for the District Court's
19
timely consideration and for such other procedures and proceedings
as the law requires thereafter
Justice W. William Leaphart joins the foregoin
Justice Karla M. Gray.
Justice James C. Nelson, dissenting.
I join Justice Gray in her dissent. She was correct in
dissenting in Matter of F.H., and she is correct in her analysis
and dissent here. While agreeing with her dissent in Matter of
F.H.
-I I nevertheless signed the Court's opinion in the hope --
misplaced, as it turns out -- that, perhaps, a further warning to
DFS (DPHHS) would suffice. It has not; and, for me, at least, this
case is the straw that broke the camel's back
While Justice Erdmann points out that Matter of F.H. was
issued subsequently to DPHHS' actions here, nevertheless the
District Court's Findings of Fact and Conclusions of Law were
entered over two months after our opinion in that case.
Accordingly, DPHHS' failure to comply with § 41-3-609(l) (c), MCA,
could have and should have been addressed at that point in time by
denying the petition to terminate P.D.'s parental rights and,
instead, requiring compliance with the statute.