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No. 99-186
IN THE SUPREME COURT OF THE STATE OF MONTANA
2000 MT 39
298 Mont. 287
995 P. 2d 982
IN THE MATTER OF B.P. and A.P.,
Youths in Need of Care.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable W. Nels Swandal, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Timothy J. Whalen; Whalen & Whalen, Billings, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General; Jennifer Anders,
Assistant Attorney General; Helena, Montana
Matt C. Putzier, Deputy Gallatin County Attorney;
Bozeman, Montana
Leanne M. Schraudner; Schraudner & Hillier, Bozeman,
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Montana (for father)
Submitted on Briefs: December 2, 1999
Decided: February 15, 2000
Filed:
__________________________________________
Clerk
Justice Karla M. Gray delivered the Opinion of the Court.
¶1.Ronda Pavek (Ronda) appeals from the findings of facts, conclusions of law and order
entered by the Eighteenth Judicial District Court, Gallatin County, granting the petition of
the Montana Department of Public Health and Human Services (Department) for
temporary investigative authority and protective services relating to her minor children, B.
P. and A.P. We affirm.
¶2.We address the following issues:
¶3. May an appeal be taken from a district court's order granting temporary investigative
authority and protective services?
¶4. Did the District Court err in ordering protective services for B.P. and A.P. and in
removing them from Ronda's home?
¶5. Did the District Court err in refusing to remove the guardian ad litem?
¶6. Did the District Court violate Ronda's Fifth Amendment rights under the United States
Constitution?
¶7. Did the District Court infringe on Ronda's constitutional right of religious freedom?
BACKGROUND
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¶8.On January 15, 1999, a petition for temporary investigative authority (TIA) and
protective services regarding B.P. and A.P. was filed in the District Court on the
Department's behalf. The petition alleged that nine-and-one-half-year-old B.P. and five-
and-one-half-year-old A.P. were being harmed or threatened with harm affecting their
health or welfare. It was based on referrals from concerned citizens beginning in 1996--
and increasing in seriousness and frequency--and on an attached report from social worker
Joseph E. Albro (Albro). According to the petition, the referrals centered on "extremely
inappropriate behavior" of both the children and Ronda, who is divorced from the
children's father, Tim Pavek (Tim), and is their primary legal custodian. Specific concerns
were expressed that Ronda's personal mental health issues had prevented the children from
receiving adequate parenting and proper psychological and medical attention. According
to the Department, the children were showing increasing signs of emotional abuse which
might result in irreparable damage absent intervention by the Department.
¶9.The District Court appointed Mary Ann Brown (Brown) as the children's guardian ad
litem. Brown was directed to monitor the situation and file a report with the court.
¶10.A hearing on the Department's petition was held on February 4, 1999, and, on
February 8, 1999, the District Court entered its findings of fact, conclusions of law and
order. In pertinent part, the court determined that--as a result of Ronda's conduct and
actions--it was in the children's best interests to be immediately removed from Ronda's
home and placed in therapeutic foster care to obtain an accurate assessment of their
emotional and mental health. The court also found that the children should be enrolled in
public schools to develop social and interaction skills and that Ronda must undergo a
complete psychiatric examination before she could visit with the children. The District
Court concluded, in pertinent part, that "[t]he Department has presented evidence
sufficient and Ronda Pavek stipulated that sufficient evidence exists to support a probably
[sic] cause finding that the youths are abused or neglected or are in danger of being abused
or neglected, and for the issuance of an order for temporary investigative authority and
protective services pursuant to § 41-3-403, M.C.A." Accordingly, the District Court
granted the petition for temporary investigative authority and protective services for 90
days. The court also denied Ronda's request that Brown be removed as the children's
guardian ad litem.
¶11.Ronda appeals. Additional facts necessary for resolution of the issues before us will
be set forth below.
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DISCUSSION
¶12. May an appeal be taken from a district court's order granting temporary investigative
authority and protective services?
¶13.The parties in the present case did not directly raise the issue of whether an appeal
may be taken from an order granting temporary investigative authority and protective
services. Since the issue involves the threshold question of whether we have jurisdiction to
entertain an appeal, however, and for the purpose of clarifying that jurisdiction, we
examine the issue sua sponte.
¶14.This Court's jurisdiction is set forth in Article VII, Section 2 of the 1972 Montana
Constitution. Specifically, Article VII, Section 2(1), vests us with appellate jurisdiction
and Article VII, Section 2(3), authorizes us to make rules governing appellate procedure.
¶15.Pursuant to the referenced constitutional authority, we adopted the Montana Rules of
Appellate Procedure, which govern appeals to this Court from Montana district courts. See
Matter of Litigation Relating to Riot (1997), 283 Mont. 277, 280, 939 P.2d 1013, 1015.
Rule 1(b)(1), M.R.App.P., expressly provides that an appeal may be taken from a final
judgment entered in a district court action. A final judgment is one which constitutes a
final determination of the rights of the parties; any judgment, order or decree leaving
matters undetermined is interlocutory in nature and not a final judgment for purposes of
appeal. Litigation Relating to Riot, 283 Mont. at 280, 939 P.2d at 1015-16 (citation
omitted).
¶16.Subsections (2) and (3) of Rule 1(b), M.R.App.P., on the other hand, provide for
appeals from specified interlocutory orders. Accordingly, an appeal from an order
delineated in those subsections is properly before this Court. An appeal from an
interlocutory order not specified in subsection (2) or (3) of Rule 1(b), M.R.App.P., is
premature, however, and must be dismissed for lack of jurisdiction to entertain it.
Litigation Relating to Riot, 283 Mont. at 281, 939 P.2d at 1016 (citations omitted).
¶17.In an Opinion and Order in Matter of K.H. (1985), 216 Mont. 267, 268, 701 P.2d 720,
721, we indicated that an order for temporary investigative authority may be appealable
under Rule 1, M.R.App.P. We also stated, however, that relief "should properly be
pursued through a writ of certiorari, habeas corpus, or supervisory control." Matter of K.
H., 216 Mont. at 268, 701 P.2d at 721.
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¶18.Our statement in Matter of K.H. that an order for temporary investigative authority
may be appealable under Rule 1 was not accompanied by analysis or explanation. Thus, it
is appropriate to review Rule 1, M.R.App.P., to determine whether orders granting
temporary investigative authority and protective services are appealable. Moreover, since
Rule 1 has been amended only once since Matter of K.H. and the amendments did not
relate to the question before us here (see Sup. Ct. Order amending Rule 1, M.R.App.P.,
dated June 16, 1986, effective January 19, 1987), we review the current version of Rule 1,
M.R.App.P.
¶19.Rule 1(b), M.R.App.P., sets forth the judgments and orders from which an appeal may
be taken in civil cases and provides as follows:
(b) In civil cases a party aggrieved may appeal from a judgment or order, except when
expressly made final by law, in the following cases:
(1) From a final judgment entered in an action or special proceeding commenced in a
district court, or brought into a district court from another court or administrative body.
(2) From an order granting a new trial; or refusing to permit an action to be maintained as
a class action; or granting or dissolving an injunction; or refusing to grant or dissolve an
injunction; or dissolving or refusing to dissolve an attachment; from an order changing or
refusing to change the place of trial when the county designated in the complaint is not the
proper county; from an order appointing or refusing to appoint a receiver, or giving
directions with respect to a receivership, or refusing to vacate an order appointing or
affecting a receiver; from an order directing the delivery, transfer, or surrender of
property; from any special order made after final judgment; and from such interlocutory
judgments or orders, in actions for partition as determine the rights and interests of the
respective parties and direct partition to be made. In any of the cases mentioned in this
subdivision the supreme court, or a justice thereof, may stay all proceedings under the
order appealed from, on such conditions as may seem proper.
(3) From a judgment or order granting or refusing to grant, revoking or refusing to revoke,
letters testamentary, or of administration, or of guardianship; or admitting or refusing to
admit a will to probate, or against or in favor of the validity of a will, or revoking or
refusing to revoke the probate thereof; or against or in favor of setting apart property, or
making an allowance for a widow or child; or against or in favor of directing the partition,
sale, or conveyance of real property, or settling an account of an executor, or
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administrator, or guardian; or refusing, allowing, directing the distribution or partition of
any estate, or any part thereof, or the payment of a debt, claim, legacy, or distributive
share; or confirming or refusing to confirm a report of an appraiser setting apart a
homestead.
Beginning with Rule 1(b)(1), it is clear that an order for temporary investigative authority
and protective services is not a "final judgment." Indeed, it is ordinarily the first order
entered in an abuse and neglect proceeding which ultimately may encompass numerous
orders and culminate in an order terminating parental rights. See §§ 41-3-401 through 41-
3-612, MCA (1997).
¶20.As discussed and set forth above, Rule 1(b)(2), M.R.App.P., authorizes an appeal
from certain specified interlocutory orders. A close review of the specific orders from
which an appeal may be taken under Rule 1(b)(2) discloses that those orders do not
include an order for temporary investigative authority and protective services. Thus, while
we can only speculate about the basis for the Court's statement in Matter of K.H., 216
Mont. at 268, 701 P.2d at 721, that such an order "may be an appealable order within Rule
1," we conclude that Rule 1(b)(2), M.R.App.P., does not authorize an appeal from an order
granting temporary investigative authority and protective services.
¶21.Rule 1(b)(3), M.R.App.P., authorizes an appeal from additional specified interlocutory
orders. Scrutiny of those delineated orders reveals that they generally relate to probate and
estate matters, family allowances, and actions for partition. The only conceivable basis
upon which an order for temporary investigative authority and protective services could be
appealable under Rule 1(b)(3) is pursuant to the language permitting an appeal from an
order "making an allowance for a widow or a child[.]" Given the context in which that
phrase appears, however, and that the phrase encompasses both widows and children, we
conclude that it relates to allowances for children in probate or estate proceedings and
does not authorize an appeal from an interlocutory order granting temporary investigative
authority and protective services.
¶22.We hold, therefore, that an interlocutory order granting temporary investigative
authority and protective services is not appealable under Rule 1, M.R.App.P.
¶23.In light of the unique circumstances presented here, however, we exercise the
authority which the Court has retained under Rule 3, M.R.App.P., to suspend the rules of
appellate procedure. Suspension of the appeal parameters set forth in Rule 1 is supported
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by factors unique to this case. First, both parties apparently relied upon this Court's
statement in Matter of K.H. indicating that an order for temporary investigative authority
is appealable, since no motion to dismiss this appeal as premature was made. As a result,
ten months elapsed between the District Court's order removing the children from Ronda's
home and the final submission of this matter to us on appeal, at which time we noted the
jurisdictional issue relating to appeal of a TIA order. This represents a significant period
of uncertainty in the lives of the children here involved and we are extremely reluctant to
have such a lengthy period be for naught, especially given the likelihood of a petition for
writ of certiorari, habeas corpus, or supervisory control concerning the same issues
presented here should we dismiss this appeal. Therefore, we proceed to consider the merits
of the appeal.
¶24.. Did the District Court err in ordering protective services for B.P. and A.P. and in
removing them from Ronda's home?
¶25.Ronda concedes that she stipulated to the Department's temporary investigative
authority at the hearing on the Department's petition. She asserts error on several bases,
however, with regard to the District Court's order for protective services for B.P. and A.P.
and for their removal from her home.
¶26.A petition for temporary investigative authority and protective services properly may
be filed "[i]n a case in which it appears that a youth is abused or neglected or is in danger
of being abused or neglected." Section 41-3-402(1), MCA. The petition must state the
authority requested and facts establishing probable cause that the youth is abused or
neglected or in danger of being abused or neglected, and must be accompanied by an
affidavit or department report stating in detail the facts on which the request is based.
Sections 41-3-402(2) and (3), MCA.
¶27.Ronda first asserts that the petition did not allege abuse or neglect or danger of abuse
or neglect of the children. At the outset, we observe that nothing in § 41-3-402, MCA,
expressly requires an allegation of abuse or neglect. Moreover, while it is true that the
Department's petition does not expressly allege "abuse or neglect" or "in danger of being
abused or neglected," it does allege that "there is harm or threatened harm to [the
children's] health or welfare as defined in Section 41-3-102, MCA[.]" Section 41-3-102(6)
(a), MCA (1997), defines child abuse or neglect as "harm to a child's health or welfare" or
"threatened harm to a child's health or welfare." Thus, the allegation at issue in the
Department's petition merely substituted the statutory definitions for child abuse or neglect
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for the words "abuse or neglect." The statute does not require more.
¶28.Ronda next contends that the petition contains conclusory statements which purport to
constitute danger of abuse or neglect, but no evidence in support of the statements.
However, § 41-3-402(2), MCA, requires only that the petition state the facts establishing
probable cause that a child is abused or neglected or in danger of being abused or
neglected. There is no statutory requirement that the petition contain the evidence the
Department would present in support of its petition. Moreover, Ronda stipulated to
probable cause that the children were in danger of being abused or neglected and to the 90-
day TIA at the hearing.
¶29.Ronda also argues that her stipulation authorized the District Court to order the TIA
but did not authorize protective services for B.P. and A.P. or their removal from her home.
As a result, she contends the court was required to rule on the request for protective
services based on the evidence of record and the record does not support the need for
protective services. After close scrutiny of the record, we agree that Ronda's stipulation
was limited to the TIA. We turn, therefore, to the question of whether the record before us
contains sufficient evidence to support the District Court's order for protective services
and removal of the children from Ronda's home.
¶30.Procedures on a petition for protective services are governed by statute in Montana.
The hearing on such a petition focuses primarily on the questions of removal from the
home and the children's need for protection, the Department has the burden of establishing
probable cause for the issuance of an order of protection, and the court may consider all
relevant evidence. See § 41-3-403(1)(c), MCA.
¶31.At the hearing on the petition in this case, Brown testified in person and the court's
attention was directed to her reports in this case and the parents' dissolution case, which
the court observed it had read. Brown had worked with the family as the children's
guardian ad litem since January of 1997 and, in her opinion, B.P. and A.P. were both
"medically abused" by Ronda via her refusal to allow continued treatment of their
attention deficit disorder with hyperactivity diagnoses and her termination of a long list of
physicians, psychiatrists, psychologists and counselors whenever they did not agree with
Ronda's perspective about the children's care. In addition, Brown documented numerous
examples of Ronda allowing B.P. to self-medicate and failing to provide both children
with sufficient medications--or advise their father with regard to their medications--when
the children visited him.
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¶32.Moreover, Brown documented numerous instances of emotional abuse of the children
by Ronda. Much of the abuse related to Ronda's attempts to sabotage their visits with their
father and to continue to denigrate the father's homosexuality to the children. Indeed,
Brown reported that Ronda made repeated, unsubstantiated allegations of physical and
sexual abuse of B.P. by Tim and an incident of suspected physical abuse of A.P. by Tim,
also unsubstantiated. According to Brown, Ronda repeatedly lied to the children about
their father and even told them he was not paying child support when, in fact, he was.
¶33.Brown also was concerned about the children's isolation from the world and Ronda's
total control over them. The children are home schooled and have few, if any, friends. The
few friendships they had were halted or minimized when Ronda refused to cooperate in
getting the children together with their friends.
¶34.Finally, Brown focused on the extreme behavior exhibited by B.P. and A.P. and
Ronda's nearly total failure to control, or attempt to control, that behavior. The children act
out both verbally and physically in public and are abusive to each other and to bystanders.
Their language is inappropriate; they throw things at children, at Brown and at law
enforcement personnel; and A.P. hisses like an animal. Delta Airlines will no longer allow
the children to fly on their planes to visit their father because of this uncontrollable
behavior and the airline's inability to protect either the children or other passengers. In
sum, to quote Brown, "these children do not know how to function in a civilized setting."
¶35.Brown made a number of recommendations to the District Court. She recommended
therapeutic foster care, psychological evaluations for both children and Ronda, psychiatric
therapy for both children, enrollment in a public school or appropriate private school for
the children and supervised visitations between Ronda and the children only when Ronda's
psychologist believes it is appropriate. The District Court expressly found Brown's
testimony to be credible and her recommendations to be in the best interests of the family.
¶36.Dr. James Feist, a pediatrician who had treated B.P. since birth, also testified at the
hearing. He expressed substantial concerns about B.P.'s significant behavioral problems,
including poor impulse control, very aggressive behaviors, talking out or physically acting
out "when crossed," and the like. He related that he had been encouraging monitored day
treatment for B.P. all along and that Ronda had resisted. He also had tried medicines on a
recurring basis for behavioral control, but Ronda had been resistant to that as well. In
addition, Dr. Feist testified that he continued to encourage that B.P. see a child
psychiatrist, but Ronda did not agree. He had "no real good feeling" about B.P.'s progress
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with behavioral problems, academics or interactions with his young sister, A.P. Dr. Feist
was against continued home schooling for B.P. because such a setting did not allow for
evaluation and help by trained professionals regarding behavior, academics, and
socialization. In Dr. Feist's opinion, B.P. might need therapeutic foster care to get an
unbiased view of how he is functioning and to see what level of help he needs.
¶37.The fact that Ronda may have believed when she went into the District Court hearing
that she would retain custody of the children in her home during the 90-day TIA to which
she stipulated did not preclude the court from ordering otherwise if it concluded that the
best interests of the children required such a result. The court had authority under § 41-3-
403(3)(d), MCA (1997), to temporarily remove the children from Ronda's home and place
them in a temporary medical facility or other facility for their protection, to serve their
best interests. This Court has repeatedly recognized that the best interests of the children
are paramount and take precedence over parental rights in child abuse and neglect
proceedings. See, e.g., Matter of C.M. (1997), 281 Mont. 183, 187, 932 P.2d 1063,1066.
¶38.We hold that the Department carried its burden of establishing probable cause for the
issuance of an order of protection, and that the record in this case includes sufficient
evidence to support the District Court's order for protective services and removal from
Ronda's home.
¶39. Did the District Court err in refusing to remove the guardian ad litem?
¶40.Ronda requested the removal of Mary Ann Brown as guardian ad litem on the basis
that Brown was biased and did not have a good relationship with Ronda's children. Ronda
argues that the District Court erred in denying her request.
¶41.A guardian ad litem is charged with representing the child's best interests and has the
following general duties:
(a) to conduct investigations that the guardian ad litem considers necessary to ascertain the
facts constituting the alleged abuse or neglect;
(b) to interview or observe the child who is the subject of the proceeding;
(c) to have access to court, medical, psychological, law enforcement, social services, and
school records pertaining to the child and the child's siblings and parents or custodians;
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(d) to make written reports to the court concerning the child's welfare;
(e) to appear and participate in all proceedings to the degree necessary to adequately
represent the child and make recommendations to the court concerning the child's welfare;
(f) to perform other duties as directed by the court.
Section 41-3-303(2), MCA (1997).
¶42.Ronda has presented no evidence that Brown was not performing the duties of her
appointment pursuant to § 41-3-303(2), MCA (1997). Moreover, Ronda's allegations of
bias and the absence of a good relationship between Brown and the children are otherwise
unsupported in the record, and are controverted by Brown's own testimony that she had a
good relationship with B.P. when he was not with Ronda. We hold that the District Court
did not err in denying Ronda's request for Brown's removal as guardian ad litem.
¶43. Did the District Court violate Ronda's Fifth Amendment rights under the United
States Constitution?
¶44.Ronda argues that the District Court violated her Fifth Amendment privilege against
self-incrimination when it ordered her to submit to a psychiatric evaluation, participate in
counseling, and follow through with the therapist's recommendations. We disagree.
¶45.The Fifth Amendment to the United States Constitution prohibits a person from being
compelled "in any criminal case to be a witness against himself." Nothing of record in this
case suggests any criminal liability attending Ronda's participation in counseling. A child
abuse and neglect proceeding is not a criminal case.
¶46.In a child abuse and neglect proceeding such as this one, the court is specifically
authorized by statute to order medical and psychological evaluations of, and counseling
services for, the parents. Section 41-3-403(3)(b) and (c), MCA (1997). We hold that
Ronda has not established a violation of her Fifth Amendment rights under the United
States Constitution.
¶47. Did the District Court infringe on Ronda's constitutional right of religious freedom?
¶48.Ronda claims that the District Court violated her right to religious freedom by
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removing the children from her care and custody and ordering that she not be allowed to
see them pending her psychiatric examination. She asserts that the court thus took away
her ability to participate in and control the children's religious upbringing. She bases her
argument on the principle that termination of a parent's right to care and custody of her
children affects a fundamental liberty interest, citing Matter of R.B. (1985), 217 Mont. 99,
103, 703 P.2d 846, 848.
¶49.The District Court did not terminate Ronda's parental rights in the proceeding
presently on appeal. It merely entered a TIA order, to which Ronda stipulated, and ordered
temporary protective services in the children's best interests. In a child abuse and neglect
proceeding, the best interests of the children take precedence over parental rights. Matter
of C.M., 281 Mont. at 187, 932 P.2d at 1066.
¶50.There is no evidence in the record to suggest that the District Court was hostile to
Ronda's religious views or that its order was in any way based upon those views. Rather,
the record indicates that the court's order was based upon evidence that the children were
emotionally disturbed and threatened with harm. The court temporarily restricted Ronda's
access to the children and ordered that they be enrolled in public schools to allow them to
develop social skills, learn how to interact with other children, and have their behavior
easily observed. Meanwhile, Ronda remains free to pursue her religious beliefs. We
conclude that Ronda has not established an infringement on her constitutional right to
religious freedom.
¶51.Affirmed.
/S/ KARLA M. GRAY
We concur:
S/ J. A. TURNAGE
/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
/S/ JIM REGNIER
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