No. 02-366
IN THE SUPREME COURT OF THE STATE OF MONTANA
2003 MT 4
IN RE THE MATTER OF
M.O., M.O. and M.O.,
Youths in Need of Care.
APPEAL FROM: District Court of the Nineteenth Judicial District,
In and for the County of Lincoln,
The Honorable Michael C. Prezeau, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Amy N. Guth, Attorney at Law, Libby, Montana
For Respondent:
Hon. Mike McGrath, Attorney General; Tammy K. Plubell,
Assistant Attorney General, Helena, Montana
Bernard G. Cassidy, Lincoln County Attorney, Libby, Montana
Submitted on Briefs: October 24, 2002
Decided: January 16, 2003
Filed:
__________________________________________
Clerk
Chief Justice Karla M. Gray delivered the Opinion of the Court.
¶1 L.K. appeals from the judgment entered by the Nineteenth
Judicial District Court, Lincoln County, on its findings of fact,
conclusions of law and order terminating her parental rights to her
three children. We reverse.
¶2 The sole issue on appeal is whether the District Court abused
its discretion in terminating L.K.’s parental rights pursuant to §
41-3-609(1)(f), MCA.
BACKGROUND
¶3 On July 20, 1999, the Montana Department of Public Health and
Human Services (Department) filed a petition in the District Court
seeking temporary investigative authority (TIA) over L.K.’s three
children based on allegations that the children were--or were in
danger of being--abused or neglected as defined in § 41-3-102, MCA.
The District Court appointed a guardian ad litem for the children
and scheduled a show cause hearing on August 18, 1999, on the
petition. L.K. appeared at the show cause hearing, but was not
represented by counsel. On being questioned by the court, L.K.
responded that she understood what the Department was requesting
via the petition for TIA and initially stated that she did not
oppose the Department’s request. Later during the hearing,
however, and at the suggestion of the children’s guardian ad litem,
L.K. informed the District Court that she disagreed with some of
the factual allegations in the petition and reserved her right to
object to those allegations in the future. In response, the court
stated:
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Exactly. This stuff is not proven as far as I’m
concerned. So far it’s just allegations. And if we get
to the point where it has to be proven then I’ll hear
testimony from witnesses who are under oath. And I’ll
make sure I get the facts straight.
The parties also entered into a treatment plan agreement prior to
the close of the hearing. The District Court subsequently entered
a written order granting TIA to the Department for a 90-day period
and scheduling a review hearing for November 22, 1999.
¶4 At the review hearing, the Department requested the District
Court to extend the TIA for an additional 90-day period and L.K.
objected. The court heard testimony regarding L.K.’s compliance
with the treatment plan, following which it granted the
Department’s request to extend the TIA. A review hearing was
scheduled for February 14, 2000.
¶5 On February 9, 2000, the Department filed a petition for
temporary legal custody (TLC) and a show cause hearing on the
petition was scheduled for February 28, 2000. At the February 14,
2000, review hearing on the TIA, the Department requested the
District Court to extend the TIA for an additional two weeks
pending the TLC show cause hearing. The children’s guardian ad
litem requested that, rather than extending the TIA, the court
continue the TIA review hearing to February 28, 2000. The District
Court orally continued the review hearing, stating that “in the
meantime the status quo will be continued.” The court’s written
order following the hearing extended the TIA for two weeks and
scheduled a review hearing for February 28, 2000.
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¶6 On February 28, 2000, the parties appeared for the joint TIA
review and TLC show cause hearing. The guardian ad litem observed
that Montana law required L.K. be served with the TLC petition and
order to show cause at least five days prior to a show cause
hearing, and she had been served only three days prior to the
February 28, 2000, hearing. As a result, the District Court orally
continued the hearing until March 27, 2000, and extended the TIA
for an additional 30 days pending that hearing. The court’s
subsequent written order extended the TIA and scheduled a review
hearing for March 27, 2000, but did not mention the TLC show cause
hearing. The review hearing subsequently was rescheduled for April
3, 2000.
¶7 The District Court opened the April 3, 2000, hearing by
stating that it was the time set for a review hearing. The court
went on to state that the Department “is requesting an additional
period of temporary custody of the children for six months . . . .”
The court then asked L.K., who was not represented by counsel,
whether she opposed a six-month extension of temporary legal
custody and she responded she was not opposed. At this point,
counsel for the Department stated
[y]our Honor, also for the sake of clarity, we are here
today on a review of a TIA. We haven’t filed a Petition
for a TLC. If [L.K.] has no objection to that, we could
file the Petition and the Court could order the TLC
without the need for another hearing.
After brief discussion, counsel for the Department clarified that a
TLC petition had been filed and stated “what we would be asking for
is the temporary legal custody to be awarded at this time . . . .”
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The District Court observed that L.K. had indicated no opposition
to an order granting TLC and stated it would enter such an order.
The court did not hear any testimony or receive any evidence in
support of the Department’s petition for TLC. The court entered
its written order granting TLC of the children to the Department on
April 4, 2000.
¶8 The District Court extended the TLC twice; first for two
weeks, then for six months. On April 23, 2001, the Department
filed a petition to terminate L.K.’s parental rights to her three
children. The TLC was extended a third time pending a hearing on
the termination petition. The termination hearing was held on
November 8, 2001. Following the hearing, the District Court
entered its findings of fact, conclusions of law and order
terminating L.K.’s parental rights to her three children and
awarding permanent legal custody of the children to the Department.
In its findings of fact, the court stated that
[o]n April 3, 2000, the Court found that the Youths were
abused, dependent or neglected, or in danger of being
abused, neglected, and dependent and adjudicated the
Youths in Need of Care. At that time, the Court granted
Temporary Legal Custody to [the Department] for a period
of six (6) months.
Similarly, in its conclusions of law, the court concluded that the
children “were adjudicated as Youths in Need of Care . . . on April
3, 2000.”
¶9 The District Court subsequently entered judgment on its
findings of fact, conclusions of law and order. L.K. appeals.
STANDARD OF REVIEW
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¶10 A decision on whether to terminate parental rights is within
the sound discretion of the district court and will not be
overturned absent an abuse of that discretion. In re T.C., 2001 MT
264, ¶ 13, 307 Mont. 244, ¶ 13, 37 P.3d 70, ¶ 13 (citation
omitted). In reviewing whether the district court abused its
discretion, however, we review the court’s findings of fact to
determine whether they are clearly erroneous and its conclusions of
law to determine whether they are correct. In re T.C., ¶ 13
(citations omitted).
DISCUSSION
¶11 Did the District Court abuse its discretion in terminating
L.K.’s parental rights pursuant to § 41-3-609(1)(f), MCA?
¶12 Section 41-3-609(1)(f), MCA, authorizes a court to terminate
parental rights upon finding that a child has been adjudicated a
youth in need of care, an appropriate court-approved treatment plan
has not been complied with or has not been successful, and the
conduct or condition rendering the parent unfit is unlikely to
change within a reasonable time. The adjudication of a child as a
youth in need of care is a threshold requirement without which a
court may not terminate a person’s parental rights under the
statute. In re T.C., ¶ 15; Matter of M.J.W., 1998 MT 142, ¶ 11,
289 Mont. 232, ¶ 11, 961 P.2d 105, ¶ 11.
¶13 Here, the District Court found that the three criteria set
forth in § 41-3-609(1)(f), MCA, existed and concluded, on that
basis, that L.K.’s parental rights should be terminated. L.K.
contends that the District Court failed to conduct an adjudicatory
hearing and, consequently, its finding that her children had been
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adjudicated youths in need of care on April 3, 2000, is clearly
erroneous and its conclusion that her parental rights should be
terminated is incorrect. In response, the Department argues that
the court conducted an adjudicatory hearing on April 3, 2000,
following which it appropriately adjudicated the children as youths
in need of care in its order granting TLC.
¶14 At the time of the April 3, 2000, hearing, § 41-3-401(2), MCA
(1999), provided that, upon receiving a petition for TLC, a
district court “shall set a date for an adjudicatory hearing on the
petition.” In addition, § 41-3-404, MCA (1999), further provided
that
(1) In the adjudicatory hearing . . . the court shall
determine by a preponderance of the evidence whether the
youth is a youth in need of care and ascertain, as far as
possible, the cause.
(2) The court shall hear evidence regarding the residence
of the youth, the whereabouts of the parents, guardian,
or nearest adult relative, and any other matters the
court considers relevant in determining the status of the
youth.
. . . .
A court may adjudicate a child a youth in need of care only after
conducting an adjudicatory hearing. In re T.C., ¶ 18; Matter of
M.J.W., ¶ 12.
¶15 As stated above, the District Court heard no testimony and
received no evidence at the April 3, 2000, hearing. This absence
of evidence clearly violated the § 41-3-404, MCA (1999),
requirements that the court “shall hear evidence . . .” and base
its youth in need of care determination on that evidence.
Furthermore, the court neither made nor could have made--given the
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absence of any evidence--a determination that a preponderance of
the evidence established the children were youths in need of care
as required by § 41-3-404(1), MCA (1999). We conclude that the
April 3, 2000, hearing did not constitute an adjudicatory hearing
as contemplated by § 41-3-404, MCA (1999).
¶16 The Department argues that the District Court had evidence
before it on which it could base a youth in need of care
determination. It asserts that the report to the court prepared by
Jeff Wedel (Wedel), a Department social worker, and filed in
conjunction with--and in support of--the TLC petition, as well as
Wedel’s supplemental report to the court filed prior to the
hearing, provided sufficient evidence to support the court’s
determination. However, the Department cites no authority for its
assertion that reports filed prior to the adjudicatory hearing
fulfill the requirement that the court “shall hear evidence . . .”
at the hearing. In the absence of such authority, required by Rule
23(a)(4), M.R.App.P., we decline to address the Department’s
argument in this regard. In any event, both of Wedel’s reports
focus primarily on L.K.’s compliance with her treatment plan.
Neither report contains evidence supporting the Department’s
allegation--or on which the District Court could determine by a
preponderance of the evidence--that the children were youths in
need of care.
¶17 The Department also argues that it was not necessary for the
District Court to hear evidence at the April 3, 2000, hearing
because L.K. did not object to the TLC petition. We disagree.
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¶18 With regard to L.K.’s purported failure to object to the TLC
petition at the April 3, 2000, hearing, it is important to note
that the District Court opened the hearing by correctly stating
that it was a review hearing. As set forth above, the order
scheduling the hearing included only the TIA review. The court
then misinformed L.K. that the Department was requesting an
extension of a previously granted TLC and asked whether she
objected to such an extension. L.K., unrepresented by counsel who
presumably would have caught--and corrected--the court’s shift from
a TIA extension to an extension of TLC which had not previously
been granted, stated she did not.
¶19 Once the parties clarified that no TLC had been granted yet,
L.K. was not asked whether she objected to the Department receiving
TLC. Nor was L.K., who earlier had reserved her right to contest
factual allegations in the Department’s initial petition for TIA,
asked whether she agreed the children were youths in need of care.
Furthermore, a district court’s adoption of a stipulation between
the parties that TLC should be granted--even assuming such a
stipulation had existed in this case--does not equate to an
adjudication by the court that the children were youths in need of
care. See In re T.C., ¶ 18. As stated above, such an adjudication
may only be made after the court conducts an adjudicatory hearing.
In re T.C., ¶ 18; Matter of M.J.W., ¶ 12. We conclude an
adjudicatory hearing was never held in this case and, consequently,
L.K.’s children were never adjudicated youths in need of care.
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¶20 Absent an adjudicatory hearing and adjudication, the District
Court’s later findings of fact that it adjudicated the children
youths in need of care on April 3, 2000, and that the three
criteria for termination of parental rights set forth in § 41-3-
609(1)(f), MCA, existed are clearly erroneous and the requisite
statutory basis for termination of parental rights is lacking. We
hold, therefore, that the District Court abused its discretion in
terminating L.K.’s parental rights pursuant to § 41-3-609(1)(f),
MCA.
¶21 Reversed.
/S/ KARLA M. GRAY
We concur
/S/ W. WILLIAM LEAPHART
/S/ JIM REGNIER
/S/ JIM RICE
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