No. 02-129
IN THE SUPREME COURT OF THE STATE OF MONTANA
2003 MT 125
IN THE MATTER OF K.C.H.,
A Youth In Need Of Care.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and For the County of Yellowstone, Cause No. DN-2000-055
Honorable Diane G. Barz, Presiding
COUNSEL OF RECORD:
For Appellant:
Matthew L. Erekson, Attorney at Law, Billings, Montana
For Respondents:
Honorable Mike McGrath, Attorney General; Jim Wheelis, Assistant
Attorney General, Helena, Montana
Dennis Paxinos, County Attorney; Jeff R. Lynch, Deputy
County Attorney, Billings, Montana
Kevin E. Gillen, Attorney at Law, Billings, Montana (For Mother)
Patrick E. Kenney, Attorney at Law, Billings, Montana (Guardian ad Litem)
Submitted on Briefs: August 8, 2002
Decided: April 29, 2003
Filed:
__________________________________________
Clerk
Justice W. William Leaphart delivered the Opinion of the Court.
¶1 Appellant, the natural father of K.C.H., appeals the District Court’s Order of January
9, 2002 terminating his parental rights. We affirm.
¶2 Appellant raises several issues on appeal which we have tailored for clarity as
follows:
¶3 1. Whether the District Court erred in taking judicial notice of the natural mother’s
prior termination proceeding?
¶4 2. Whether the District Court erred in adjudicating K.C.H. as a “Youth in Need of
Care”?
¶5 3. Whether the District Court erred in terminating Appellant’s parental rights?
¶6 4. Whether § 41-3-301, MCA, the emergency protection service statute, is constitu-
tional?
Background
¶7 In April 2000, the Department of Public Health and Human Services (Department)
learned that R.B.-H. was due to deliver a child in June. R.B.-H. had previously been a party
to a termination proceeding which culminated in her relinquishing custody of her three
children to the Department on September 15, 1998. Approximately one month before
K.C.H.’s birth, R.B.-H and Appellant were interviewed by a social worker for the
Department. During the interview, Appellant stated that R.B.-H. would be the baby’s
primary care giver because the Appellant worked nights.
2
¶8 K.C.H. was born on June 9, 2000. At that time, social workers for the Department
placed a forty-eight hour hold on the child as permitted by the emergency service protection
statute, § 41-3-301, MCA. Two days later, the Department removed the child from the
hospital for emergency placement and subsequently the Department filed a Petition for
Temporary Custody. Soon thereafter, the District Court appointed counsel for both parents
and a guardian ad litem for K.C.H. Over the course of a year, the Department filed two
more petitions for Temporary Custody and Appellant signed off on two treatment plans.
K.C.H. has been in the custody of the Department since her birth.
¶9 After Appellant established his paternity of K.C.H., the District Court addressed his
motion for summary judgment which asserted that the emergency protective service statute,
§ 41-3-301, MCA, was unconstitutional. The District Court denied Appellant summary
judgment and ruled that the emergency service protective statute was constitutional. In June
2001, the District Court adjudicated K.C.H. as a “Youth in Need of Care,” pursuant to § 41-
3-102, MCA. Finally, in September 2001, the Department filed a Petition for Permanent
Legal Custody, Termination of Parental Rights and Right to Consent to Adoption. Appellant
then filed a Motion for a Directed Verdict. In response, the District Court entered its
Findings of Fact, Conclusions of Law, and Order terminating Appellant’s parental rights.
¶10 Following the judgment, the Appellant filed a Notice of Appeal, stating he appealed
“from the judgement and order of the Thirteenth District Court, Judge Diane Barz, presiding,
Order dated January 9, 2002.” We affirm the District Court’s Order in its entirety.
Discussion
3
¶11 The decision to terminate parental rights is a discretionary ruling reviewed for an
abuse of discretion. See In the Matter of C.P., 2001 MT 187, ¶ 9, 306 Mont. 238, ¶ 9, 32
P.3d 754, ¶ 9; In the Matter of J.M.J., 1999 MT 277, ¶ 16, 296 Mont. 510, ¶ 16, 989 P.2d
840, ¶ 16. The test for an abuse of discretion is “whether the trial court acted arbitrarily,
without employment of conscientious judgment, or exceeded the bounds of reason resulting
in substantial injustice.” In the Matter of C.P., ¶ 9 (citation omitted).
¶12 The standard of review of a district court’s findings of fact in a parental termination
case is whether the findings in question are clearly erroneous. See In the Matter of P.E.
(1997), 282 Mont. 52, 56, 934 P.2d 206, 209; In the Matter of J.L. (1996), 277 Mont. 284,
287, 922 P.2d 459, 461. The standard of review of a district court’s conclusions of law in
such cases is whether its conclusions are correct. See In the Matter of P.E. (1997), 282
Mont. at 56-57, 934 P.2d at 209; In the Matter of J.L., 277 Mont. at 287, 922 P.2d at 461.
I
¶13 Whether the District Court erred in taking judicial notice of the natural mother’s prior
termination proceeding?
¶14 Appellant claims that the District Court erred in taking judicial notice of the previous
proceeding against R.B.-H., which culminated in her relinquishing custody of her three
children in 1998. Appellant contends that the court records in that proceeding were sealed
and, therefore, the District Court took notice of facts that were not known and could not be
discovered by the Appellant. The Department points outs though, that Appellant was served
three petitions. Attached to each petition was a “Report to the Court.” Each report contained
4
over twenty pages detailing the Department’s interaction with R.B.-H. from 1991 until she
relinquished her parental rights to the three children in 1998. The Reports included
information regarding the removal of the three children from R.B.-H. and her relinquishment
of parental rights. Appellant, undoubtedly, was aware of the prior termination proceeding.
However, nothing in the present record indicates that he attempted to access the court records
of the proceeding even though § 41-3-205(2), MCA, permits a court to disclose confidential
records of termination of parental rights when disclosure is necessary for the fair resolution
of an issue before it.
¶15 Rule 201, M.R.Evid., authorizes a court to take judicial notice of certain facts. “A fact
to be judicially noticed must be one not subject to reasonable dispute in that it is . . . (2)
capable of accurate and ready determination by resort to sources whose accuracy cannot be
reasonably questioned.” Rule 201(b)(2), M.R.Evid. Rule 202 (b)(6), M.R.Evid., permits a
court to take judicial notice of law, including the “[r]ecords of any court of this state . . . .”
¶16 Under Rule 202(b)(6), M.R.Evid., the District Court was correct in taking judicial
notice of the proceeding involving R.B.-H. as it is a “record of a court of this state.” The fact
that Appellant could not access these records without petitioning the Court for their
disclosure does not make them entirely inaccessible. Therefore, the District Court did not
err in taking judicial notice of the prior termination proceeding.
II
¶17 Did the District Court err in adjudicating K.C.H. as a “Youth in Need of Care”?
5
¶18 Before terminating parental rights, the district court must first adjudicate the child as
a “Youth in Need of Care.” See § 41-3-609(1)(f), MCA. Under Montana Code, “[a] ‘[y]outh
in need of care’ means a youth who has been adjudicated or determined, after a hearing, to
be or to have been abused or neglected.” Section 41-3-102(23), MCA (1999). “‘Abused or
neglected’ means the state or condition of a child who has suffered child abuse or neglect.”
Section 41-3-102(3), MCA (1999). Child abuse or neglect is defined as either “actual harm
to a child’s health or welfare” or “substantial risk of harm to a child’s health or welfare.”
Section 41-3-102(7)(a)(i) and (ii), MCA (emphasis added).
¶19 The District Court’s order of June 11, 2001, in which it adjudicated K.C.H. a “Youth
in Need of Care,”concluded that K.C.H. was “in immediate or apparent danger of harm.”
Appellant argues that, because K.C.H. was removed from her parents at birth, she was never
abused or neglected by them, and thus the District Court erred in adjudicating K.C.H. as a
“Youth in Need of Care.” Appellant contends that actual, not prospective, abuse or neglect
is required for a child to be deemed a “Youth in Need of Care.” Appellant’s argument,
however, ignores the plain language of § 41-3-102(7)(a)(ii), MCA. This statute provides that
a “substantial risk of harm to a child’s health or welfare” constitutes child abuse.
¶20 Recently, this Court addressed the issue of prospective abuse in In the Matter of C.P.,
2001 MT 187, 306 Mont. 238, 32 P.3d 754, where we upheld the termination of a natural
mother’s parental rights and the adjudication of a ten-day-old newborn as a “Youth in Need
of Care.” In that case, the mother’s parental rights to C.P.’s sibling had been terminated one
month prior to C.P.’s birth. Although, like K.C.H., C.P. had not been actually abused or
6
neglected by his mother, testimony from trial indicated that the mother presented a
moderately high risk of child abuse. See C.P., ¶ 6. Ultimately, this Court concluded that
“[t]he primary basis for the termination of parental rights was the court’s reliance on the fact
that [the mother’s] parental rights to [the sibling], had been involuntarily terminated and the
circumstances related to the termination remained relevant to her ability to adequately care
for [her newborn],” C.P., ¶ 13. In affirming the termination of the mother’s parental rights,
we held that “the continuation of the parent-child relationship between [the mother] and
[child] will likely result in substantial risk of harm to [the child’s] health or welfare.” C.P.,
¶ 20.
¶21 Appellant’s statement that R.B.-H., K.C.H.’s natural mother, would be the child’s
primary care giver required the District Court to consider R.B.-H.’s circumstances even
though she is not party to this appeal. If there was any indication that the Appellant would
be the primary care giver, then the mother’s circumstances and the fact that she has been
party to previous termination proceedings would be less relevant. As it stands, though,
Appellant is on record as stating that R.B.-H. would be the child’s primary care giver. Thus,
the District Court was called upon to determine whether the termination of R.B.-H.’s
parental rights to K.C.H.’s three siblings remained relevant to her ability to adequately care
for K.C.H. Dr. Tranel, the licensed psychologist who performed psychological evaluations
on both parents, concluded that it was very unlikely that R.B.-H.’s “extensive limitations in
parenting performance ha[d] changed from the previous years when it had been determined
that she could not adequately provide for the needs of her young children.” The District
7
Court, in its findings, similarly found that R.B.-H. “displayed the identical symptoms of a
personality disorder in this case as she did in [the termination proceedings of K.C.H.’s three
siblings]: a pattern of detachment, lack of nurturing and warmth . . . just like her pattern with
the other three children.”
¶22 Therefore, because the circumstances related to the termination of R.B.-H.’s parental
rights to K.C.H.’s three siblings have not changed, and because she would be K.C.H.’s
primary care giver, there was a substantial risk of harm posed to the health and welfare of
K.C.H. The District Court did not err in finding that K.C.H. was “in immediate or apparent
harm.” Accordingly, we affirm the District Court’s adjudication of K.C.H. as a “Youth in
Need of Care.”
III
¶23 Whether the District Court erred in terminating Appellant’s parental rights?
¶24 Pursuant to § 41-3-609(f), MCA, once a child is adjudicated as a “Youth in Need of
Care,” parental rights may be terminated if both of the following exist: (1) an appropriate
treatment plan that has been approved by the court has not been complied with by the parent
or has not been successful; and (2) the conduct or condition of the parent rendering them
unfit is unlikely to change within a reasonable time. See § 41-3-443, MCA. Appellant
argues that neither of his treatment plans were appropriate and, therefore, the District Court
erred in terminating his parental rights to K.C.H.
¶25 Appellant maintains that his treatment plans were not “appropriate” because they did
not satisfy the requirements of § 41-3-443, MCA. This section provides that every treatment
8
plan must identify the “problems or conditions that resulted in the abuse or neglect of [the]
child.” Section 41-3-443(2), MCA. Again, Appellant hangs his hat on the fact that K.C.H.
was never actually abused and, consequently, his treatment plans necessarily failed to
address the “problems or conditions that resulted in the abuse or neglect of” K.C.H. While
the Appellant is correct that his treatment plans did not identify the “problems or conditions
that resulted in the abuse” because, as noted above, no actual abuse occurred, both of his
plans did identify the problems or conditions creating the substantial risk of harm to the
health and welfare of K.C.H., that is, the lack of a stable home and safe environment.
Because of the natural mother’s demonstrated inability to care for her children, Appellant’s
treatment plans put the onus on him to provide a safe environment for K.C.H. Both of
Appellant’s treatment plans listed one of his primary goals as to “provide a stable home [for]
his child with adequate housing and income.” Therefore, because Appellant’s treatment
plans did identify the threshold “problems or conditions” creating the substantial risk of harm
to the health and welfare of K.C.H., specifically that he, as opposed to R.B.-H., provide
K.C.H. a stable home with adequate housing and income, the plans were appropriate under
§ 41-3-443, MCA.
¶26 Appellant also contends that the District Court erred in concluding that he failed to
comply with his treatment plans; however, Appellant offers no evidence of his substantial
compliance with either plan. Again, the record is replete with evidence of his inability to
secure either a residence or a job, key requirements of both treatment plans. On several
occasions, social workers could not locate the Appellant at his listed address. Similarly,
9
Appellant did not provide the Department with any evidence of gainful employment, such
as pay stubs. The District Court did not abuse its discretion in determining that both
elements of § 41-3-609(f), MCA, were present and accordingly terminating Appellant’s
parental rights.
IV
¶27 Whether § 41-3-301, MCA, the emergency protection service statute, is constitu-
tional?
¶28 Appellant claims that § 41-3-301, MCA (1999), which allows the immediate removal
of the child from the family in emergency situations, is unconstitutional. The constitutional-
ity of this statute, however, is not an issue properly brought for appeal as this issue was not
addressed in the District Court’s final judgment, dated January 9, 2002, from which the
Appellant appeals. Instead, the District Court ruled on the constitutionality of the statute in
its denial of Appellant’s “Motion for Summary Judgment,” dated April 12, 2001.
¶29 Rule 4(c), M.R.App.P., requires that the notice of appeal designate the “judgment,
order or part thereof appealed from.” In State v. Spotted Blanket, 1998 MT 59, ¶ 12, 288
Mont. 126, ¶ 12, 955 P.2d 1347, ¶ 12, this Court held that it “will not consider an appeal
from an order not designated in the notice of appeal.” Therefore, this Court will not
consider any judgment other than the one listed in Appellant’s notice of appeal. Appellant’s
notice of appeal confined this appeal to “the judgement and order of the Thirteenth District
Court, Judge Diane Barz, presiding, Order dated January 9, 2002.” Consequently, the
Appellant has not preserved his right to appeal any ruling other than this judgment. Because
10
Appellant did not preserve an appeal of the April 12, 2000, Order, and the issues contained
therein, the constitutionality of the emergency protection service statute will not be addressed
by this Court.
¶30 Therefore, we uphold the District Court’s adjudication of K.C.H. as a “Youth in Need
of Care” and hold that it did not err in terminating Appellant’s parental rights.
/S/ W. WILLIAM LEAPHART
We concur:
/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ PATRICIA COTTER
/S/ JIM REGNIER
/S/ JIM RICE
11
Justice Terry N. Trieweiler dissenting.
¶31 I dissent from the majority Opinion.
¶32 The Appellant father had his daughter snatched from him at the hospital following her
birth without a prior court order and without any evidence of prior conduct by him which
would have endangered the child, but based simply on prior conduct of the child's mother
toward other children. He was prescribed a treatment program which could not have been
related to the reasons for which his daughter was taken because his daughter's abduction had
nothing to do with him or his parenting abilities. There was obviously nothing he could have
done to recover his child by completing the treatment program when he has never had a prior
opportunity to prove his suitability as a parent and his suitability as a parent was never
relevant in the first place. This case is simply another example of government bureaucracy
run amok and the court turning a blind eye based on some social worker's perception of a
child's best interests.
¶33 I dissent from the majority's refusal to consider the constitutionality of § 41-3-301,
MCA, as applied to the Appellant, and would conclude that as applied to him, it is
unconstitutional. The majority avoids that critical issue by elevating form over substance
to conclude that the District Court's decision regarding the statute's constitutionality was not
part of its final judgment. The majority relies on Rule 4(c), M.R.App.P. However, the
majority ignores Rule 2, M.R.App.P., which provides that this Court has jurisdiction to
consider the "verdict or decision, and any intermediate order [objected to] . . . which
involves the merits, or necessarily affects the judgment. . . ." The Appellant did challenge
12
the constitutionality of § 41-3-301, MCA, when he moved for summary judgment. That
motion was denied and its denial affected the judgment because it related to the legality of
the State's initial intervention in these people's lives.
¶34 The majority's construction of Rule 4(c), M.R.App.P., is akin to stating that a simple
notice of appeal from a judgment is insufficient to authorize review of evidentiary rulings
made during trial. That has never been a rule on appeal and if it was, would fly in the face
of "the philosophy of modern appellate practice that technical defects of procedure should
not bar a party from access to the courts." Wilhelm v. Owens Enterprises, Inc. (1990), 242
Mont. 285, 288, 790 P.2d 467, 469 (citing Tefft v. Tefft (Mont. 1981), 628 P.2d 1094, 1097,
38 St.Rep. 837, 840). If the majority was to review the Appellant's constitutional challenge,
it would have to conclude that as applied in this case, § 41-3-301, MCA, was unconstitu-
tional. However, in doing so, it would avoid future unconstitutional application of the statute
and breathe life into the liberty interest that parents have in their right to the custody of their
children. See Stanley v. Illinois (1972), 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed.2d
551. Because of that fundamental right, children cannot be taken from their parents, without
due process of law, except in the event of an emergency. See Santosky v. Kramer (1982),
455 U.S. 745, 753-54, 102 S.Ct. 1388, 1394-95, 71 L.Ed.2d 599. Here there was no
emergency. The Department of Public Health and Human Services received notice that the
mother of K. C. H. was going to deliver a baby on April 4, 2000, over two months prior to
that delivery. A social worker from the Department interviewed both parents on May 10,
2000, and learned everything which later formed the basis for the Department's petition. K.
13
C. H. was not born until June 9, 2000. No petition was filed with the court until four days
later–two days after she was taken from her parents–and no hearing was held for nearly three
weeks until June 29, 2000.
¶35 Section 41-3-301, MCA, was unconstitutional as applied to the Appellant under these
circumstances because he was denied the fundamental interest in the custody of his daughter
without a minimal effort to provide him due process and no emergency existed because the
facts which formed the basis for depriving him of his daughter were well known to the State
a month or more prior to the time she was actually snatched from him. This was a blatant
violation of his constitutional rights and this Court should say so. The consequence of its
refusal to do so is to encourage the State to act similarly in the future. That is a bad result
for a court entrusted with enforcing the constitutional rights of individuals, and a bad
example at a time when this country sees as its responsibility to bring freedom and justice
to the rest of the world.
¶36 In addition to the fact that K. C. H. was initially unlawfully taken from her father,
there was no legally consistent basis for terminating his rights. The majority concedes that
parental rights cannot be terminated in this case unless the child was adjudicated a "youth
in need of care" and that that requires a finding that the child has been abused or neglected.
The majority then concludes that abuse or neglect need not have actually occurred if there
was a prospect that the child would be abused or neglected. With that much, I agree.
However, the District Court and this Court then decide that the father's parental rights could
be terminated even though he had never abused nor neglected his daughter because there was
14
a prospect that the child's mother would abuse or neglect her. Even if that was a sufficient
basis for terminating the father's parental rights, they couldn't be terminated pursuant to §
41-3-609(1)(f), MCA, without an appropriate treatment plan which has been unsuccessful.
Here, the father's treatment plan related to his own housing situation, employment status, and
mental health, when none of those factors were reasons for finding that the child was abused
and neglected. In fact, at least one of them was completely inconsistent with the ostensible
reason for concluding that the father was vicariously responsible for potential abuse or
neglect. To establish abuse and neglect, the State argued, and this Court agrees, that the
mother would be the primary caregiver because the father works nights. Yet, to establish
that the father had not satisfactorily completed his treatment program, the State argues that
the father has been unable to establish employment.
¶37 What it boils down to in this case is that a father had his parental rights terminated
because the mother of his child had previously mistreated other children and he does not live
a lifestyle which is acceptable to the assigned social worker and this Court. It is mind
boggling to think that a person can have something as precious as parental rights terminated
on the basis of another's conduct and his economic status in spite of the fact that he has never
had an opportunity to care for the child. When asked, the State's social worker testified as
follows:
Q. Okay, has my client ever physically abused K.?
A. No.
Q. Has my client ever sexually abused K.?
15
A. No.
Q. Would you consider or describe my client's action as trying to abandon K.?
A. No.
Q. Has he neglected her?
A. He had never had–he has never cared for her.
Q. So, again, that is a no, H.A. hasn't neglected her?
A. No.
¶38 Section 41-3-443, MCA, requires that treatment plans identify the problems or
conditions that resulted in abuse or neglect. Presumably, therefore, the treatment plan must
be addressed to those problems or conditions. How could the father's treatment plan address
problems that the mother had or the condition of the mother's health? Specifically, how
could the father spend more time caring for the child when one of the conditions of the
treatment plan was that he obtain regular employment? The answer is obvious. The father's
parental rights were terminated because of the mother's prior history of abuse and neglect.
There is nothing that he could possibly have accomplished by way of a treatment plan which
would ever have changed that fact and his rights as a parent were doomed regardless of how
successfully he participated and completed the treatment plan.
¶39 Finally, the father was denied due process for a second time when the District Court,
on the day of his hearing, took judicial notice of prior proceedings involving the mother. He
did not participate in those proceedings. He had no reason to investigate those proceedings
prior to the date of his hearing. And, assuming he had investigated those proceedings, there
16
is no indication that all the evidence given to the District Court was part of any record that
he could have reviewed.
¶40 The majority's solution to the fact that the State's case was proven in part by evidence
to which the father had no opportunity to respond is to suggest that the problem was solved
by a "report to the court" attached to the State's petition which detailed prior contacts with
the child's mother. However, there is no indication that the information in the reports
represents all of the information of which the District Court took judicial notice or is even
representative. It should be assumed that the mother was represented in the prior proceeding
and that arguments were made or evidence presented on her behalf. However, that certainly
would not be concluded in the Department's report to the Court.
¶41 The majority criticizes the father for making no prior effort to access the prior
proceedings pursuant to § 41-3-205(2), MCA. However, there is no indication in the record
that he had any reason to access that information. The State did not ask the court to take
judicial notice of the information in the prior case until the day of the hearing.
¶42 The Court relies on Rule 201(b)(6), M.R.Evid., as authority for the District Court to
take judicial notice of law, including the "[r]ecords of any court of the state." However,
there is no indication in this record that the court's judicial notice was limited to records.
The County attorney asked the court to take judicial notice of "previous proceedings" in
which the mother's rights to three other children were terminated. He was not even able to
refer the court to the previous cause number. The court simply ruled that it would "take
judicial notice of all prior proceedings that this court handled personally in this matter." It
17
defies imagination how the father was supposed to respond to that kind of amorphous
"evidence" without even having prior notice that it would be offered.
¶43 This process was tainted from beginning to end. This father had his daughter taken
from him without prior notice or an opportunity to be heard before he ever had a chance to
care for her based on another person's conduct which had occurred years earlier and was
unrelated to the care or treatment of this child. He was then compelled to participate in a
treatment program which was doomed to failure because, no matter how successful, it could
not affect the primary reason for which his daughter was taken from him. Then the State
was allowed to prove its case in part by reference to evidence presented in another case in
which he had not participated, about which he had no prior information, and which he was
in no position to disprove. The fact that the majority would condone this process is simply
the most recent example of the judiciary's blind eye toward the whole termination process,
and its abuses. Although I have no doubt that the majority of this Court and everyone
involved are motivated by good intentions and of legitimate concern for the best interests of
this child, our laws and procedures are designed to assure that children are not taken from
parents based simply on their economic status or their lifestyle. After considering the
arguments of the State and the Court's rationale for affirming the District Court, I conclude
that the precautions built into our system have not worked as intended in this case.
Therefore, I dissent from the majority Opinion.
/S/ TERRY N. TRIEWEILER
18