In Re ANW

No. 04-882

IN THE SUPREME COURT OF THE STATE OF MONTANA

2006 MT 42

_______________________________________

IN THE MATTER OF DECLARING A.N.W.,
A Youth in Need of Care.

J.Q.,
Appellant.

______________________________________

APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead, Cause No. DN 2002-012(C)
The Honorable Katherine R. Curtis, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Robert B. Allison, Attorney at Law, Kalispell, Montana

For Respondent:

Hon. Mike McGrath, Attorney General; Ilka Becker, Assistant Attorney
General, Helena, Montana

Ed Corrigan, Flathead County Attorney; Peter Steele, Deputy County
Attorney, Kalispell, Montana

____________________________________

Submitted on Briefs: November 15, 2005
Decided: February 28, 2006

Filed:

______________________________________
Clerk
Justice Brian Morris delivered the Opinion of the Court.

¶1 J.Q. appeals from the Eleventh Judicial District Court, Flathead County’s order

terminating his parental rights to his daughter, A.N.W., and awarding permanent legal

custody, with the right to consent to adoption, to the Montana Department of Public

Health and Human Services (Department). We affirm.

¶2 We address the following issues on appeal:

¶3 1. Did District Court Judge Stadler’s action in conducting a show cause hearing

and entering an order granting the Department emergency protective services and

temporary investigative authority (TIA) after he signed an order recusing himself

invalidate the subsequent parental termination proceeding?

¶4 2. Did the District Court afford J.Q. a fundamentally fair procedure when it ended

the youth in need of care hearing before J.Q. could cross-examine the CASA volunteer

and present two additional witnesses?

¶5 3. Did the District Court’s failure to bifurcate the dispositional hearing from the

youth in need of care hearing violate J.Q.’s right to a fundamentally fair process?

¶6 4. Did the District Court improperly consider documented evidence regarding

J.Q.’s parole status that the Department filed after the termination hearing’s conclusion

when the evidence accurately reflected J.Q.’s parole status and confirmed his parole

officer’s testimony at the hearing?

¶7 5. Do the Department’s alleged failures to comply with all of the statutory and

court imposed deadlines surrounding J.Q.’s treatment plan affect the disposition of the

case absent a showing of prejudice to J.Q.?

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¶8 6. Did the District Court abuse its discretion when it terminated J.Q.’s parental

rights?

PROCEDURAL AND FACTUAL BACKGROUND

¶9 J.Q. and his wife, R.W., initiated proceedings to dissolve their marriage in 2000.

The custody of their only daughter, A.N.W., represented the major issue in the

dissolution. J.Q. revealed during the dissolution proceedings that he had a sexual

relationship with a step daughter from a prior marriage from the time the girl was four

years old until she was 17. J.Q. admitted also to being sexually attracted to his wife’s

niece from the time the niece turned 13 until she was 19. J.Q.’s prior deviant sexual

behavior toward his young female family members prompted the District Court to order

the Department to supervise all of J.Q.’s visitation with A.N.W. during the dissolution

process. R.W. died in May of 2000, before the court resolved the parenting plan.

¶10 The Department placed A.N.W. in the care of her maternal grandmother following

R.W.’s death. The Department moved A.N.W. after less than a year, however, based on

evidence that her two male cousins had sexually abused the five-year old while she was

living with her grandmother. The Department petitioned for TIA in November of 2000,

and placed A.N.W. with her maternal uncle and aunt, N.F. and D.F., in Washington state.

N.F. and D.F. subsequently petitioned for, and the Department granted them,

guardianship over A.N.W. J.Q. challenged the guardianship proceeding and the District

Court set aside the guardianship in March of 2002.

¶11 The District Court’s decision to set aside the guardianship prompted the

Department to petition the District Court for emergency protective services and TIA on

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April 4, 2002. The Department alleged that J.Q.’s prior admissions regarding his long-

term sexual relationship with his adopted daughter and his long-time sexual attraction to

his young niece left A.N.W. in danger of being abused and neglected without proper

protection. District Court Judge Stewart E. Stadler scheduled the show cause hearing for

April 12, 2002.

¶12 Judge Stadler informed the parties before the hearing that he had presided in the

earlier dissolution and guardianship proceedings, and, consequently, he deemed himself

disqualified from presiding over the case. He had signed a relinquishment and

acceptance order the previous day that disqualified him and had invited Judge Katherine

R. Curtis to assume jurisdiction. Judge Curtis also had signed the order.

¶13 Judge Curtis was not available to preside at the hearing, however, and the third

judge in the Eleventh Judicial District was in trial. Judge Stadler reminded J.Q. that he

had a right to a hearing within ten days and then explained J.Q.’s options: either stipulate

to an extension or proceed and Judge Stadler would “be the one that makes the . . .

probable cause determination.” J.Q.’s counsel responded that he had no choice but to

proceed because J.Q. would not relinquish his right to a hearing within ten days.

¶14 Judge Stadler conducted the hearing and ruled from the bench in granting the

Department emergency protective services and TIA. Judge Stadler signed a written order

to that effect on April 25, 2002. The clerk of court earlier had filed the relinquishment

and acceptance order on April 15, 2002.

¶15 The Department next petitioned the District Court to adjudicate A.N.W. a youth in

need of care and to grant the Department temporary legal custody (TLC). The District

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Court, Judge Curtis now presiding, scheduled a one-day hearing on the Department’s

petition for July 1, 2002. At the end of a full day of testimony, the Court warned the

parties that it had limited time for the hearing to continue to the next day. Judge Curtis

concluded the hearing the following day for lack of time after A.N.W.’s appointed

counsel and the court examined the CASA volunteer. The court did not allow J.Q. or the

Department to cross-examine the CASA volunteer and the court did not allow J.Q. to

present testimony from his remaining two witnesses.

¶16 The District Court entered its order on July 22, 2002, adjudicating A.N.W. a youth

in need of care and granting the Department TLC for six months. The court also ordered

the Department to prepare a treatment plan for J.Q. and to present the court with a written

report by December 2, 2002. The Department filed the report on December 10, 2002.

¶17 On November 13, 2002, the Department moved for the District Court to approve

its proposed treatment plan for J.Q. The following week the Department also sought to

extend its TLC for an additional six months. The District Court held a hearing on the

Department’s two motions on December 18, 2002. The hearing did not conclude that

day, so the court scheduled it to resume on January 16, 2003. The court also granted the

Department continued TLC pending the outcome of the hearing.

¶18 In the meantime, the state of Wisconsin issued an arrest warrant for J.Q. relating to

24 separate felony offenses of failure to pay child support for another child. The Flathead

County Sheriff’s Department arrested J.Q. pursuant to the Wisconsin warrant on January

3, 2003. The District Court completed the hearing on the treatment plan and TLC

extension as scheduled on January 16, 2003. J.Q. appeared in custody with his counsel.

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¶19 The District Court once more extended the Department’s TLC until July 16, 2003,

and ordered the Department to file a written report by June 16, 2003. The court’s January

29, 2003, order also approved the treatment plan under the condition the Department

incorporate eleven specific changes to the plan. The court ordered J.Q. to abide by the

amended treatment plan’s terms and conditions upon his release from custody.

¶20 The Department petitioned the District Court again on June 5, 2003, to extend its

TLC for an additional six months. The Department asserted that J.Q. remained

incarcerated in Wisconsin and was not expected to be released until October of 2003 at

the earliest. The Department further stated that it would support J.Q. in completing his

court-approved treatment plan if he were released within a reasonable period of time. If

J.Q. remained incarcerated, however, the Department informed the court that it would be

compelled to petition for termination of his parental rights. The District Court held a

hearing on the petition and again extended TLC on June 20, 2003. Neither J.Q. nor his

attorney appeared at the hearing. The District Court noted in its order extending TLC

that J.Q.’s counsel apparently had not been served with notice of the hearing.

¶21 A Wisconsin jury convicted J.Q. on August 4, 2003, and the judge sentenced him

concurrently to four years in Wisconsin state prison, followed by ten years on probation.

J.Q. remained incarcerated in Wisconsin throughout the rest of the termination

proceedings in Montana.

¶22 The Department finally petitioned the District Court on November 17, 2003, to

terminate J.Q.’s parental rights and to grant the Department permanent legal custody of

A.N.W. The petition alleged alternative bases for termination. The Department alleged

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first that the evidence would establish that the statutory grounds for termination contained

in § 41-3-609(1)(f), MCA--the child has been adjudicated a youth in need of care, a failed

treatment plan, and the condition rendering the parent unfit is unlikely to change--were

met. The petition also alleged that § 41-3-609(4)(c), MCA, relieved the Department of

its obligation to provide J.Q. with a treatment plan due to J.Q.’s continued incarceration

for more than one year. J.Q.’s continued incarceration made him unfit or unable to parent

and this impediment was unlikely to change within a reasonable period due to his

incarceration and thus termination would be in A.N.W.’s best interest. The Department

nevertheless attached a copy of J.Q.’s treatment plan to the petition. The amended

treatment plan did not comply with all of the eleven changes the District Court had set

forth in its order of January 29, 2003.

¶23 The District Court scheduled a hearing on the Department’s termination petition

for March 11, 2004. J.Q. moved to continue this hearing date on the grounds that the

treatment plan appended to the petition to terminate did not reflect accurately the changes

upon which the District Court conditioned its January 29, 2003, order. The District Court

denied the continuance.

¶24 J.Q. appeared via telephone from Wisconsin and his counsel appeared in person on

March 11, 2004. J.Q. renewed his motion for a continuance on the same grounds as he

argued previously. The Department conceded that the treatment plan attached to the

termination petition contained some discrepancies from the changes the District Court

had ordered in January 2003. The Department conceded further that J.Q. had not

received or signed a copy of the amended treatment plan before it served the petition for

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termination on J.Q. The Department asserted that these problems with the treatment plan

proved inconsequential, however, because § 41-3-609(4)(c), MCA, rendered a treatment

plan unnecessary in light of J.Q.’s continued incarceration beyond a one-year term.

¶25 The Department then withdrew its objection to J.Q.’s motion for a continuance so

it could amend further the treatment plan to comply with the court’s January 2003 written

order and provide J.Q. a copy. The District Court continued the termination hearing until

April 13, 2004. The Department filed a revised treatment plan on March 19, 2004, and

informed the court that it had mailed a copy of this treatment plan to J.Q. on March 11,

2004.

¶26 The District Court proceeded with the rescheduled termination hearing on April

13, 2004. The court entered its findings of fact, conclusions of law and order that

terminated J.Q.’s parental rights on July 7, 2004. The District Court found that J.Q. was

incarcerated in Wisconsin on a four-year term of commitment and had been incarcerated

for more than one year at the time of the termination hearing. The court further found

that J.Q.’s incarceration relieved the Department of its requirement to implement a court-

approved treatment plan for J.Q. based upon § 41-3-609(4)(c), MCA.

¶27 The District Court further noted that it had approved a treatment plan, subject to

certain modifications, in January of 2003. J.Q. “was given ample opportunity to comply

with a very reasonable treatment plan,” and failed to comply with more than ten different

provisions of the plan. The court also found that A.N.W. had been in foster care for over

22 months by the date of the hearing. The District Court concluded that terminating

J.Q.’s parental rights was in A.N.W.’s best interests and granted permanent custody, with

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the right to consent to adoption, to the Department. J.Q. appeals.

STANDARD OF REVIEW

¶28 We review a district court’s findings of fact to determine whether those findings

are clearly erroneous. In re Custody and Parental Rights of M.A.D., 2003 MT 10, ¶ 12,

314 Mont. 38, ¶ 12, 62 P.3d 717, ¶ 12. We review the court’s conclusions of law to

determine whether the court correctly interpreted and applied the law. In re M.A.D., ¶ 12.

¶29 We review a district court’s ultimate decision to terminate parental rights to

determine whether the court abused its discretion. A district court abused its discretion

only if it acted arbitrarily, without employment of conscientious judgment, or exceeded

the bounds of reason resulting in substantial injustice. In re M.A.D., ¶ 12. This Court

should not reweigh conflicting evidence or substitute its judgment regarding the strength

of the evidence for that of the district court. In re A.F., 2003 MT 254, ¶ 24, 317 Mont.

367, ¶ 24, 77 P.3d 266, ¶ 24.

DISCUSSION

ISSUE ONE

¶30 Did District Court Judge Stadler’s action in conducting a show cause hearing and
entering an order granting the Department emergency protective services and TIA after
he signed an order recusing himself invalidate the subsequent parental termination
proceeding?

¶31 Judge Stadler informed the parties that he deemed himself disqualified from

presiding over the initial show cause hearing because of his involvement in the earlier

dissolution proceedings. The previous day he had signed a relinquishment and

acceptance order that transferred the case to Judge Curtis. The parties’ arguments focus

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on the procedural consideration of when the recusal order became effective. J.Q. asserts

that Judge Stadler’s disqualification became effective when Judge Stadler signed it on

April 11, 2002. The Department responds that Judge Stadler retained his authority to

preside until the recusal order was filed three days after the hearing. We conclude that

Judge Stadler’s decision to preside over the hearing does not affect the disposition of this

case, however, regardless of when the recusal order became effective.

¶32 We have said that “procedural defects in a temporary custody hearing do not

invalidate subsequent permanent legal custody proceedings.” Matter of S.P. (1990), 241

Mont. 190, 196, 786 P.2d 642, 646. The hearing here served to determine whether

A.N.W. needed emergency protective services and to determine whether to grant TIA to

the Department. The hearing did not affect A.N.W.’s permanent legal custody or J.Q.’s

parental rights. The TIA and emergency protective services hearing represents an early

step in the process that the Department could have circumvented. For example, § 41-3-

422(1)(c), MCA, allows the Department to petition immediately for temporary legal

custody without first seeking TIA. Thus, we conclude that Judge Stadler’s action in

conducting the TIA and emergency protective services hearing after he had recused

himself does not warrant reversal in light of the fundamentally fair procedures afforded to

J.Q. in the youth in need of care and termination proceedings. See In re S.C., 2005 MT

241, ¶ 29, 328 Mont. 476, ¶ 29, 121 P.3d 552, ¶ 29.

ISSUE TWO

¶33 Did the District Court afford J.Q. a fundamentally fair procedure when it ended
the youth in need of care hearing before J.Q. could cross-examine the CASA volunteer
and present two additional witnesses?

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¶34 J.Q. contends that the District Court violated his due process rights when it refused

to allow him to cross-examine the CASA volunteer and call two additional witnesses at

the youth in need of care hearing. A parent's right to the care and custody of a child

represents a fundamental liberty interest, and consequently, the state must provide

fundamentally fair procedures at all stages in the proceedings to terminate parental rights.

In re V.F.A., 2005 MT 76, ¶ 6, 326 Mont. 383, ¶ 6, 109 P.3d 749, ¶ 6. Proceedings

involving the termination of the parent-child relationship must meet due process

requisites guaranteed by the Montana and United States Constitutions. In re A.S., 2004

MT 62, ¶ 12, 320 Mont. 268, ¶ 12, 87 P.3d 408, ¶ 12. Fundamental fairness and due

process require that a parent not be placed at an unfair disadvantage during the

termination proceedings. In re A.S., ¶ 12; Matter of A.S.A. (1993), 258 Mont. 194, 198,

852 P.2d 127, 129; In re A.R., 2004 MT 22, ¶ 11, 319 Mont. 340, ¶ 11, 83 P.3d 1287, ¶

11.

¶35 As a practical matter, however, pre-termination hearings entitle the parent to less

process than the actual termination proceedings. In In re A.M., 2001 MT 60, ¶ 50, 304

Mont. 379, ¶ 50, 22 P.3d 185, ¶ 50, we refused to extend a parent’s right to court-

appointed counsel to a pre-termination proceeding. Similarly, in Matter of A.B. (1989),

239 Mont. 344, 348-49, 780 P.2d 622, 625, we held that parents do not have a statutory

or constitutional right to appointed counsel at every stage of child protective proceedings

that result in termination of parental rights. Compare § 41-3-607(4), MCA (2003),

(requiring appointed counsel whenever the Department actually petitions to terminate

parental rights).

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¶36 In In re custody of M.W., 2001 MT 78, 305 Mont. 80, 23 P.3d 206, a father

appealed the termination of his parental rights on the grounds that the District Court

violated his due process rights when it did not allow him to challenge the State’s

evidence regarding his daughter’s permanency plan. The father appeared without a

lawyer and the court did not afford him the opportunity to question any witnesses or

present any evidence concerning his child’s placement. We concluded that due process

did not require the court to provide the father “an opportunity to scrutinize and challenge

the evidence and witnesses presented. . . .” at such a pre-termination hearing. In re

custody of M.W., ¶ 27.

¶37 The District Court afforded J.Q. sufficient opportunity to scrutinize and challenge

the evidence at the pre-termination hearing to adjudicate A.N.W. a youth in need of care.

Although the hearing concluded before J.Q. could cross-examine the CASA volunteer

and present two additional witnesses, the transcript demonstrates that J.Q. dominated the

day and a half hearing. The court initially scheduled the hearing for July 1, 2002, and

extended it by half a day. J.Q. knew the hearing was scheduled for one day and chose to

spend his time cross-examining the Department’s witnesses at length. In fact, J.Q. cross-

examined the witnesses for a period equal to the combined total questioning of these

witnesses by the Department’s counsel and A.N.W.’s counsel. The District Court did not

place J.Q. at a disadvantage during the pre-termination youth in need of care proceedings.

¶38 Moreover, J.Q. fails to assert how the District Court’s refusal to continue the

hearing prejudiced him. He simply alleges that the District Court’s action violated his

due process rights. He does not allege that allowing him to call the additional witnesses

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or cross-examine the CASA volunteer would provide the court any relevant information

that would affect its decision. We conclude the hearing to adjudicate A.N.W. a youth in

need of care constituted a fundamentally fair process. In re V.F.A., ¶ 6. The District

Court judge’s decision to terminate the hearing after a day and a half under these

circumstances does not warrant reversal. In re S.C., ¶ 29.

ISSUE THREE

¶39 Did the District Court’s failure to bifurcate the dispositional hearing from the
youth in need of care hearing violate J.Q.’s right to a fundamentally fair process?

¶40 J.Q. asserts that the District Court’s failure to bifurcate the youth in need of care

adjudication and the TLC disposition violated § 41-3-438(2), MCA. The Department

does not dispute that District Court failed to bifurcate the proceedings, but maintains that

the proceedings satisfied the statutory requirements because the court addressed the

dispositional issues apart from adjudicatory issues. The Department asserts further that

J.Q.’s failure to object to the lack of bifurcation before the District Court precludes him

from raising the issue on appeal. We agree with the Department on this point.

¶41 This Court does not consider an issue presented for the first time on appeal. In re

T.E., 2002 MT 195, ¶ 20, 311 Mont. 148, ¶ 20, 54 P.3d 38, ¶ 20. We have determined

that we will not fault a district court for failing to address statutory deficiencies that are

not brought to its attention during the proceedings because doing so would encourage

litigants to withhold objections rather than raise the issues appropriately in the district

court. In Re T.E., ¶ 23. For example, in In re M.W., 2002 MT 126, 310 Mont. 103, 49

P.3d 31, we declined to address the father’s argument that the district court’s failure to

13
hold a permanency plan hearing within the statutory deadline denied him fundamentally

fair procedures when he had not objected in the district court. J.Q. likewise did not

object to the converged hearing in the District Court and we decline to consider the issue

for the first time on appeal. In re M.W., ¶¶ 22-23.

ISSUE FOUR

¶42 Did the District Court improperly consider documented evidence regarding J.Q.’s
parole status that the Department filed after the termination hearing’s conclusion when
the evidence accurately reflected J.Q.’s parole status and confirmed his parole officer’s
testimony at the hearing?

¶43 The Department filed a document from the Wisconsin parole commission

following the conclusion of the termination proceeding that advised that J.Q. had been

denied parole. J.Q. alleges that the District Court improperly considered this document

in light of the fact the District Court did not “reopen the case.”

¶44 J.Q.’s Wisconsin parole officer testified telephonically at the April 13, 2004,

proceeding. She stated that it was “doubtful” the parole commissioner would grant J.Q.

parole that month because J.Q. had not completed a pre-parole plan. The parole

commissioner denied J.Q. parole after his April 28, 2004, parole hearing. The

Department filed a document from the Wisconsin parole commission on May 5, 2004,

reflecting J.Q.’s continued incarceration. The District Court issued its findings of fact

and conclusions of law on July 6, 2004, and included in its conclusions that J.Q. “will not

be paroled in April [2004].”

¶45 We fail to see--and J.Q. fails to allege--how the Department’s filing of a document

that reflected accurately J.Q.’s parole status in Wisconsin after the April 13, 2004,

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termination hearing prejudiced J.Q. The fact that J.Q.’s parole officer had provided

identical information at the hearing highlights the lack of prejudice to J.Q. Consequently,

the District Court’s actions do not warrant reversal. In re S.C., ¶ 29.

ISSUE FIVE

¶46 Do the Department’s alleged failures to comply with all of the statutory and court
imposed deadlines surrounding J.Q.’s treatment plan affect the disposition of the case
absent a showing of prejudice to J.Q.?

¶47 J.Q. alleges three errors the Department made regarding the treatment plan

involving time delays as set forth in the procedural and factual background. See ¶¶ 16,

19, 22-25, supra. J.Q. fails once again to demonstrate how the delays prejudiced him.

¶48 The Department did not petition to terminate J.Q.’s parental rights on the lone

assertion that J.Q. failed to comply with the treatment plan. The Department premised its

petition to terminate alternatively on § 41-3-609(1)(f)(i) and (ii), MCA, and § 41-3-

609(4)(c), MCA. The petition to terminate J.Q.’s parental rights included both bases and

thus provided J.Q. adequate notice that his prolonged incarceration represented an

additional premise by which the Department sought termination.

¶49 J.Q.’s situation contrasts with In re A.T., 2003 MT 154, ¶¶ 24-25, 316 Mont. 255,

¶¶ 24-25, 70 P.3d 1247, ¶¶ 24-25, where we reversed the district court’s decision to

terminate the incarcerated father’s parental rights because the Department had failed to

include § 41-3-609(4)(c), MCA, in its termination petition. J.Q.’s prolonged

incarceration and the Department’s inclusion of § 41-3-609(4)(c) in its termination

petition provided the District Court with grounds to terminate J.Q.’s parental rights

independent of his failure to comply with a treatment plan. Section 41-3-609(4)(c),

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MCA; see also ¶ 51, infra. As a result, we need not address errors in the treatment plans

alleged by J.Q.

ISSUE SIX

¶50 Did the District Court abuse its discretion when it terminated J.Q.’s parental
rights?

¶51 The District Court must address adequately each applicable statutory requirement

before it terminates an individual’s parental rights. In re A.M., ¶ 34. The Department has

the burden of proving by clear and convincing evidence that the statutory criteria for

termination have been met. In re A.M., ¶ 34. The Legislature and this Court have held

consistently that the best interest of the child standard is paramount and “must take

precedence over parental rights” when the District Court considers the criteria for

terminating parental rights. In re R.T., 2005 MT 173, ¶ 13, 327 Mont. 498, ¶ 13, 116

P.3d 783, ¶ 13. The court should give primary consideration to the child’s physical,

mental, and emotional conditions and needs when it addresses the child’s best interest.

Section 41-3-609(3), MCA.

¶52 The Department included §41-3-609(1)(f), MCA, in its petition to terminate J.Q.’s

parental rights to A.N.W. The petition alleged that J.Q.’s continued incarceration

satisfied the statutory requirements for termination under this subsection, via application

of §§ 41-3-609(4)(c) and 2(d), MCA. The statute provides that the Department may

forego a treatment plan if the “parent is or will be incarcerated for more than 1 year” and

if reunification is not in the best interest of the child. Section 41-3-609(4)(c), MCA. J.Q.

does not dispute that at the time of the termination hearing he had been incarcerated for

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over a year, and his sentence does not end until January 2007.

¶53 J.Q. testified that he had known about the outstanding child support obligation for

“almost ten years,” but admitted he did nothing to prevent his incarceration. In fact, he

stated “[i]f I had it to do over again I would do it exactly as I have.” The District Court

found in the termination proceeding that “to be available for ANW, [J.Q.] could have

taken care of this responsibility in a legal manner, but instead his choice to ignore his

responsibility has resulted in his being incarcerated, convicted and imprisoned.”

¶54 Section 41-3-604(1), MCA, entitled “[w]hen petition to terminate parental rights

required” presumes that if a child has been in foster care for 15 of the most recent 22

months, it is in the best interests of the child to terminate parental rights. J.Q. does not

dispute that A.N.W. has been in her aunt and uncle’s care since May 2001--a period of 56

continuous months to date.

¶55 Additional evidence abounds that terminating J.Q.’s parental rights best serves

A.N.W.’s interests. J.Q. has not had significant contact with his daughter for more than

five and a half years. J.Q. admittedly has been incarcerated for almost two of those years,

but he has not written or called A.N.W. since June 2003. J.Q. steadfastly has resisted the

Department’s attempts to formulate a treatment plan to address the Department’s concern

regarding his past pedophilic behavior with his former step daughter. J.Q. objected to all

of the Department’s proposed plans on procedural grounds, even though his prolonged

incarceration relieved the Department of the requirement to formulate a treatment plan.

Section 41-3-609(4)(c), MCA. And J.Q. made no effort to comply with any of the

provisions of the treatment plan that he did not contest.

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¶56 A.N.W. already has experienced more turmoil than we hope most people suffer in

a lifetime. By the time she was six years old, A.N.W. had lived in three households. She

has endured her parents’ divorce, her mother’s death, and her father’s incarceration.

When she was five years old, A.N.W.’s male cousins further deprived her of her

childhood by sexually abusing her. The sexual abuse forced A.N.W. to uproot after she

had begun to bond with her maternal grandmother following her mother’s death.

¶57 Despite these challenges, A.N.W. has found a secure and loving home with her

maternal aunt and uncle, D.F. and N.F., in Washington. A.N.W. has integrated herself

fully in that family over the past four and a half years. A.N.W. views D.F. and N.F.’s

two boys as her brothers, has a half brother (an older son of R.W.) living nearby who is

involved in her life, and refers to D.F. and N.F. as “mom and dad.” The ten-year-old

participates in Girl Scouts, soccer, and basketball. She earns good grades and her

teachers’ consistent praise. Five people testified at the termination hearing that

remaining with her aunt and uncle best serves A.N.W.’s interest.

¶58 D.F. and N.F. first employed Dr. Klemetson to counsel A.N.W. following her

mother’s death. The family requested the counselor’s services again around the time

when reunification with J.Q. seemed likely (prior to his incarceration) due to A.N.W.’s

apparent anxiety surrounding the reunification. Dr. Klemetson expressed her uneasiness

at the prospect of reunifying A.N.W. with her father “given her father’s past behavior.”

¶59 A Department supervisor, Diane Piorek, also emphasized the need for stability in

A.N.W.’s life. A.N.W.’s CASA representative – a person appointed for sole purpose of

furthering A.N.W.’s best interests – similarly advocated for A.N.W. to remain where she

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is: “What is in [A.N.W.’s] best interests is for her to become well adjusted and maintain

the environment she’s in and to have some stability.”

¶60 Mary Widner, a social worker the Department assigned to A.N.W., echoed similar

concerns and noted that A.N.W. “is thriving” in her present home. Finally, Kori Taylor,

the Department’s social worker most recently assigned to the case, emphasized the

potential irreparable effects of removing A.N.W. from the life she has made with her new

family:

[b]ecause although she has the love, security and stability within this –
within this family unit – or the love and stability, the nurturing and the care,
she doesn’t have the security to know that this is where she’s gonna stay.
And that – even if he’s offered the opportunity to work a treatment plan,
we’re looking at a considerable period of time before that can even start and
take place, and then a considerable amount of time that it would take for
him to complete that plan. And she’s already waited for this security of
permanency for three, four years.

¶61 The abundant testimony that maintaining her current placement serves A.N.W.’s

physical, mental, and emotional conditions and needs provides substantial evidence that

the District Court did not act arbitrarily or without conscientious reason when it

terminated J.Q.’s parental rights. Moreover, the uncontroverted facts that J.Q.’s sentence

runs until 2007, and that A.N.W. has been in foster care for more 56 consecutive months,

provide clear and convincing evidence that the Department has met the statutory criteria

for termination. The District Court did not abuse its discretion when it terminated J.Q.’s

parental rights.

¶62 Affirmed.

/S/ BRIAN MORRIS

19
We Concur:

/S/ PATRICIA COTTER
/S/ W. WILLIAM LEAPHART
/S/ JOHN WARNER
/S/ JIM RICE

Justice Jim Rice specially concurring.

¶63 I join the Court=s opinion and offer the following as additional grounds for affirming the

District Court.

¶64 Regarding Issue 1, Appellant offered no authority in support of his argument. Appellant

advanced about one page of argument and offered as authority only a citation to Daniels v.

Thomas, Dean & Hoskins, Inc. (1990), 246 Mont. 125, 804 P.2d 359, for the minor point that

jurisdiction cannot be conferred by stipulation. This Court has repeatedly held that such briefing

is a violation of the appellate rules and has enforced the rules by refusing to take up unsupported

arguments. As we recently stated:

[Peterson] advances no authority under which these asserted facts would
constitute sufficient prejudice to warrant reversal, however. Rule 23(a)(4),

20
 M.R.App.P., requires an appellant to support arguments with citations to the
record and to relevant authorities; an appellant cannot meet the burden of
establishing error absent such citations. See State v. Bailey, 2004 MT 87, ¶ 26,
320 Mont. 501, ¶ 26, 87 P.3d 1032, ¶ 26 (citation omitted).

....

Alternatively, Peterson asserts a defendant’s constitutional right to due
process is violated when the prosecution fails to produce relevant documents that
could be used to cross-examine key government witnesses. He cites Davis v.
Alaska (1974), 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347, and Kyles v. Whitley
(1995), 514 U.S. 419, 115 S. Ct. 1555, 131 L. Ed. 2d 490, in support of this
assertion, but neither discusses nor applies those cases to the present case. It is not
this Court’s obligation to develop parties’ arguments for them. State v. Flowers,
2004 MT 37, ¶ 44, 320 Mont. 49, ¶ 44, 86 P.3d 3, ¶ 44 (citation omitted).

City of Billings v. Peterson, 2004 MT 232, ¶¶ 36, 45, 322 Mont. 444, ¶¶ 36, 45, 97 P.3d 532, ¶¶

36, 45. Our criticism of Peterson—failing to cite “relevant authorities . . . an appellant cannot

meet the burden of establishing error absent such citations”; “[h]e cites [cases] in support of this

assertion, but neither discusses nor applies those cases to the present case”; and “[i]t is not this

Court’s obligation to develop parties’ arguments for them” with regard to his due process

argument—are even more applicable to J.Q. than it was to Peterson.

¶65 The same principle applies with regard to Appellant’s argument under Issue 2, as

Appellant has cited no authority whatsoever, offering only that he “was denied fundamental due

process.” We have commonly applied Rule 23’s requirement of developed arguments supported

by authority even more fastidiously to constitutional issues. See, e.g., Peterson, ¶ 45; Estate of

Spencer, 2002 MT 304, ¶ 20, 313 Mont. 40, ¶ 20, 59 P.3d 1160, ¶ 20 (court declined to address

“violation of constitutional due process” when the argument was not sufficiently developed).

We addressed an almost identical situation in State v. Fina (1995), 273 Mont. 171, 902 P.2d 30:

21
 No analysis or authority is presented to support this particular contention. Fina
also asserts parenthetically that Anderson’s statements were “hardly hearsay;”
again, no analysis or authority is advanced for this assertion. Similarly, Fina’s
statement that “we believe [the restriction on cross-examination] impairs the due
process rights of George Fina” is unsupported by analysis or authority as
required by Rule 23(a)(4), M.R.App.P. Counsel’s general statement that the
District Court erred in this regard, “based upon case decisions cited in this
section of our brief,” is totally inadequate to permit this Court to address the issue
as raised, given that “this section” of Fina’s brief is seventeen pages in length and
addresses seven subissues.

Fina, 273 Mont. at 181, 902 P.2d at 36 (emphasis added). J.Q’s argument offers no more than

Fina’s passing reference to an impairment of a constitutional right. Thus, the Court would be

justified by treating it in the same manner and declining to take up this issue as well, affirming

the District Court.

/S/ JIM RICE

Chief Justice Karla M. Gray, concurring in part and dissenting in part.

¶66 I concur in portions of the Court’s opinion in this matter, but respectfully dissent

from other portions and from the result the Court reaches. Because it is my view that the

District Court violated J.Q.’s due process rights at the hearing in July of 2002, I would

conclude under Issue Two that the District Court erred in adjudicating A.N.W. a youth in

need of care. As a result, I would further conclude in Issue Six that the Department did

not establish the § 41-3-609(1)(f), MCA, criteria for terminating parental rights. On that

basis, I would hold that the District Court erred in terminating J.Q.’s parental rights and

reverse.

22
¶67 I concur in the Court’s resolution of Issues Three, Four and Five. With regard to

these issues, I write primarily to express my continuing frustration with the

Department’s—and trial courts’—failures to comply with the explicit statutory mandates

set forth by the Montana Legislature for the conduct of abuse and neglect proceedings.

At the outset, I observe that the record in this case reveals numerous instances of the

Department’s failure to abide by court-imposed deadlines for the filing of documents and

reports and the District Court’s failure to require it to comply. While I am aware that the

Department handles a large number of abuse and neglect cases, the timely disposition of

these cases is of vital importance in protecting the rights of both children and parents.

Timeliness is of special import for parents involved in these cases when viewed in light

of § 41-3-604(1), MCA, which provides that, when a child has been in foster care under

the custody of the Department for 15 of the most recent 22 months, “the best interests of

the child must be presumed to be served by termination of parental rights.” In my view,

it is exceedingly unfair to a parent for the Department to drag its feet during pre-

termination phases of a case involving an allegedly abused and neglected child, and then

rely on § 41-3-604(1), MCA, to argue that termination of parental rights is in the best

interests of the child.

¶68 Furthermore, the Department does not dispute that it requested—in a single

petition—that the District Court adjudicate A.N.W. a youth in need of care and grant it

TLC, and that the District Court conducted one hearing on both the adjudicatory and

dispositional issues without properly structuring the hearing to address the issues

separately. Indeed, the Department implicitly concedes that it and the District Court

23
failed to ensure that “[t]he hearing process [was] scheduled and structured so that

dispositional issues are specifically addressed apart from adjudicatory issues,” as required

by § 41-3-438(2)(a), MCA. It contends, however, that “[a]lthough the court did not

specifically bifurcate the hearing on the [Department’s] petition . . . [,] the hearing

addressed those issues relevant to disposition.”

¶69 Such an argument ignores both the mandatory requirements established by the

Montana Legislature for the conduct of hearings on the adjudicatory and dispositional

phases of an abuse and neglect proceeding, and the Department’s obligation to ensure

that these cases are conducted in strict compliance with those statutory requirements.

Such an argument also ignores repeated warnings by this Court that the statutory

requirements must be met. See, e.g., Matter of F.H. (1994), 266 Mont. 36, 40, 878 P.2d

890, 893; Inquiry into M.M. (1995), 274 Mont. 166, 174, 906 P.2d 675, 680. Sadly, the

Department’s argument here continues the same untenable, but apparently intransigent,

attitude toward these cases that I have noted in prior cases. See, e.g., In re S.C., 2005 MT

241, ¶ 50, 328 Mont. 476, ¶ 50, 121 P.3d 552, ¶ 50 (Gray, C.J., concurring and

dissenting) (“we continue to ‘caution’ [the Department] about compliance with the law.

Our cautions apparently fall on deaf ears”); Inquiry into M.M., 274 Mont. at 178, 906

P.2d at 682 (Gray, J., dissenting) (“[o]ne can hardly say that [the Department] has heeded

our strong condemnation and stern warning[s]”); Matter of F.H., 266 Mont. at 42, 878

P.2d at 894 (Gray, J., dissenting) (“where we previously have warned [the Department’s]

predecessor agency regarding its failure to comply with the law, I cannot agree with the

24
Court that it is sufficient to characterize [the Department’s] conduct as unconscionable

and issue another warning”).

¶70 That said, however, it is clear from the record that J.Q. failed to object in the

District Court to the failure to hold a bifurcated hearing and I abide by our well-

established rule that we do not address issues on appeal which were not raised in the trial

court. Consequently, I join in the Court’s refusal to address the substantive merits of

Issue Three, adding a fervent hope that the enactment of § 41-3-425, MCA (providing for

the right to counsel in all proceedings involving any petition filed pursuant to § 41-3-422,

MCA), and the Montana Public Defender Act will result in better representation for

parents, thereby finally forcing the Department and the trial courts to follow the law. I

also join the Court’s opinion on Issues Four and Five, because J.Q. has failed to establish

that the alleged errors raised therein resulted in prejudice to him.

¶71 With regard to Issue One, however, I would address the parties’ arguments

relating to whether Judge Stadler had authority to conduct the show cause hearing and

enter the subsequent order granting the Department TIA, and conclude that he did not. It

is my view that a discussion of this issue is appropriate in light of the disadvantage placed

on parents in such a situation by having to choose between going forward with a hearing

before a judge who has expressed a bias or prejudice sufficient to disqualify him or her

from presiding over the case or stipulating to a continuance which will further delay

resolution of the proceeding. Moreover, while I ultimately agree with the Court that this

issue is not dispositive of this case, addressing the issue here will provide guidance to the

district courts and counsel in addressing matters of judicial disqualification.

25
¶72 Judge Stadler deemed himself disqualified from presiding over this case and

signed a relinquishment and acceptance order the day before the show cause hearing;

Judge Curtis also signed the order accepting jurisdiction over the case the day before the

hearing. The parties dispute the point at which Judge Stadler’s order became effective—

upon the signing of the order or upon the filing of the order with the clerk of court.

¶73 We have held that, for purposes of commencing time periods in which parties to a

case must take further action, a judgment or order takes effect from the date on which it is

filed with the clerk of court. Firefighters, Local No. 8 v. District Court, 2002 MT 17, ¶

18, 308 Mont. 183, ¶ 18, 40 P.3d 396, ¶ 18. However, the filing of a judgment or order

by the clerk of court is merely a ministerial function and does not affect the validity of

the court’s ruling. Firefighters, Local No. 8, ¶¶ 17-18. As a result, a district court’s

judgment or order is effective and binding on the parties from the time it is rendered by

the court. Firefighters, Local No. 8, ¶ 18. As such an order is binding on the parties, so

must it be binding on the judge who renders it.

¶74 “It is the policy of our system that no judge should be allowed to sit when he is

laboring under bias or prejudice toward one or more of the parties litigant.” In re

Woodside-Florence Irr. Dist. (1948), 121 Mont. 346, 353, 194 P.2d 241, 245. In

furtherance of this policy, Montana law provides procedures by which a judge may be

disqualified from presiding over a case either upon motion of a party or by the judge sua

sponte. See, e.g., §§ 3-1-803 through -805, MCA. Where a party moves to disqualify a

judge under § 3-1-805, MCA, the judge is without authority to act further in any judicial

capacity except to complete certain ministerial duties. We further have stated that “by

26
analogy and by necessity we think that there could be no more power left in the judge

who makes the call [to recuse] voluntarily in the one case than if he were deprived of

jurisdiction by the filing of an affidavit of prejudice.” State ex rel. Moser v. Dist. Court

(1944), 116 Mont. 305, 314, 151 P.2d 1002, 1007. Thus, where a judge is disqualified

from a case—either sua sponte or by motion of a party—any subsequent judgment

rendered by that judge in the case is null and void. See Woodside-Florence, 121 Mont. at

356, 194 P.2d at 246.

¶75 I would conclude that Judge Stadler’s sua sponte recusal was effective when he

signed the relinquishment and acceptance order—and another judge assumed

jurisdiction—on April 11, 2002. From that point, he had no power or authority to sit or

act in judgment on the case. I would further conclude, therefore, that Judge Stadler’s

subsequent order granting the Department emergency protective services and TIA was

null and void. However, the absence of a court order granting TIA does not preclude the

Department from subsequently petitioning for TLC or termination of parental rights. See

§§ 41-3-422(1)(c) and (d), MCA. Consequently, I agree with the Court that Judge

Stadler’s lack of authority to preside over the show cause hearing and grant the

Department TIA is not dispositive of this case.

¶76 I strenuously disagree, however, with the Court’s statement at the end of ¶ 32 that

reversal of this case is not warranted “in light of the fundamentally fair procedures

afforded to J.Q. in the youth in need of care and termination proceedings.” This leads

directly to my fundamental disagreement with the Court’s overall resolution of this case.

In this regard, I dissent from the Court’s determination in Issue Two that J.Q. received

27
fundamentally fair procedures at the hearing to adjudicate A.N.W. a youth in need of

care. In my view, the District Court violated J.Q.’s due process rights when it ended the

hearing without allowing him to cross-examine the CASA volunteer or present testimony

from two of his witnesses, and this due process violation requires reversal of the District

Court’s youth in need of care adjudication.

¶77 I begin by agreeing entirely with the Court’s statements in ¶ 34 that a natural

parent’s right to the care and custody of his or her child is a fundamental liberty interest

which must be protected by fundamentally fair procedures during all stages in

proceedings involving the termination of the parent/child relationship. See, e.g., In re

A.S., 2004 MT 62, ¶ 12, 320 Mont. 268, ¶ 12, 87 P.3d 408, ¶ 12; In re B.N.Y., 2003 MT

241, ¶ 21, 317 Mont. 291, ¶ 21, 77 P.3d 189, ¶ 21. Consequently, proceedings involving

the termination of the parent/child relationship must meet the requisites of due process as

guaranteed by the Montana and United States Constitutions, which require that a parent

not be placed at an unfair disadvantage during the proceedings. In re A.S., ¶ 12; In re

B.N.Y., ¶ 21.

¶78 I disagree, however, with the remainder of the Court’s approach to, and resolution

of, Issue Two. The Court begins by observing that we have held a parent has neither a

statutory nor constitutional right to appointed counsel during pre-termination phases of

abuse and neglect proceedings. While this may be true, J.Q. does not raise an

appointment of counsel argument and, thus, the cases cited by the Court have no

application here.

28
¶79 The Court also observes that we have held parents do not have a due process right

to scrutinize and challenge the evidence presented by the Department at a permanency

plan hearing. See In re M.W., ¶ 27. In the same paragraph as cited by the Court for this

proposition, however, we further stated that “the issue of a child’s placement is separate

from the issue of terminating parental rights.” In re M.W., ¶ 27. A permanency plan

hearing does not relate to, or result in an adjudication on, issues concerning a person’s

capabilities to parent a child, and does not require the same degree of due process

considerations as is required in other phases of a termination proceeding.

¶80 Due process requires fundamental fairness which, in turn, requires fair procedures.

In re B.N.Y., ¶ 21. Thus, due process requires notice of an action which may deprive a

person of a liberty interest and the opportunity to be heard regarding that action. See

State v. Niederklopfer, 2000 MT 187, ¶ 10, 300 Mont. 397, ¶ 10, 6 P.3d 448, ¶ 10. This

includes the opportunity to be heard at a meaningful time and in a meaningful manner.

Smith v. Board of Horse Racing, 1998 MT 91, ¶ 11, 288 Mont. 249, ¶ 11, 956 P.2d 752, ¶

11. The due process guarantee requires that a person be given an opportunity to explain,

argue and rebut any information which may lead to the deprivation of a liberty interest.

Bauer v. State, 1999 MT 185, ¶ 22, 295 Mont. 306, ¶ 22, 983 P.2d 955, ¶ 22.

¶81 We all agree that, as a parent, J.Q. has a fundamental liberty interest in the care

and custody of his child, A.N.W. As a result, he was entitled to procedural due process

during the course of these abuse and neglect proceedings which involved a potential

deprivation of his liberty interest as a parent. In other words, he was entitled to the

opportunity to explain, argue and rebut information produced by the Department. When

29
the District Court concluded the youth in need of care proceeding without allowing J.Q.

to cross-examine the CASA volunteer or present testimony from two of his witnesses, it

denied J.Q. the opportunity to do so, denied him a fundamentally fair procedure and,

therefore, denied him his right to due process.

¶82 The Department argues that, even if the District Court erred in this regard, the

error was harmless in light of the ample evidence that A.N.W. should be adjudicated a

youth in need of care, because the error occurred early in the proceeding, and because

J.Q. was given the opportunity to examine the Department’s witnesses and call his

witnesses at the final termination hearing. The Department’s arguments constitute yet

another sad commentary on its approach to abuse and neglect proceedings, in that they

totally ignore the import of a district court’s adjudication that a child is a youth in need of

care. For example, the Department may not require a parent to complete a treatment plan

unless a district court adjudicates the child a youth in need of care. See § 41-3-443(1)(c),

MCA. Such an adjudication is a prerequisite for granting the Department TLC. See §

41-3-442(1), MCA. Additionally, a youth in need of care adjudication is a threshold

requirement for a court to terminate parental rights pursuant to § 41-3-609(1)(f), MCA,

which is the most common basis on which the Department petitions for termination of

parental rights. Clearly, a youth in need of care adjudication is a critical juncture in an

abuse and neglect proceeding which requires fundamentally fair procedures. J.Q. did not

receive fundamentally fair procedures at the adjudicatory hearing in this case and such

error was not harmless.

30
¶83 Furthermore, the Montana Legislature requires district courts to give highest

preference to abuse and neglect cases when scheduling hearing dates. See § 41-3-422(3),

MCA. Thus, notwithstanding other cases on the docket, except perhaps criminal cases

subject to speedy trial limits, courts are required to give priority to abuse and neglect

proceedings to ensure a parent the opportunity to be heard at a meaningful time and in a

meaningful manner with regard to the liberty interest at stake. When the District Court

ended the adjudicatory hearing on the second day, the court denied J.Q.’s request to

cross-examine the CASA volunteer and present additional witnesses by stating:

Nope. We have used about four more hours for this hearing than we had
set aside for it, and [the] Court has another hearing in less than an hour, and
the [C]ourt and staff wants lunch, so that’s the way it’s going to be.

When J.Q. further objected to the District Court ending the hearing before he could

present his entire case, the court stated that “the fact of the matter is this hearing was

scheduled for a period of one day. The fact of the matter is it’s taken a day and a half,

and that’s all I have.” In my view, by denying J.Q. the ability to cross-examine the

CASA volunteer and present the testimony of his witnesses, the District Court failed to

give the youth in need of care hearing the priority required by law, thereby failing to

ensure J.Q. the opportunity to be heard at a meaningful time and in a meaningful manner.

¶84 I would conclude that the District Court violated J.Q.’s right to procedural due

process at the hearing to adjudicate A.N.W. a youth in need of care. Consequently, I

would reverse the District Court’s youth in need of care adjudication, and I dissent from

the Court’s failure to do so.

31
¶85 Finally, because it is my view that the District Court erred in adjudicating A.N.W.

a youth in need of care based on its violation of J.Q.’s due process rights at the hearing, I

also must dissent from the Court’s holding in Issue Six that the District Court did not

abuse its discretion in terminating J.Q.’s parental rights.

¶86 The Department petitioned to terminate J.Q.’s parental rights based on § 41-3-

609(1)(f), MCA, which provides that the district court may order the termination of

parental rights upon a finding that

the child is an adjudicated youth in need of care and both of the following
exist:
(i) an appropriate treatment plan that has been approved by the court
has not been complied with by the parents or has not been successful; and
(ii) the conduct or condition of the parents rendering them unfit is
unlikely to change within a reasonable time.

The Department contended that the statutory requirements for termination were met

because J.Q. had failed to comply with his court-approved treatment plan and, pursuant to

§ 41-3-609(2)(d), MCA, the conduct or condition rendering J.Q. unfit to parent was

unlikely to change within a reasonable time as a result of his present judicially ordered

long-term confinement. The Department also argued, in the alternative, that the

treatment plan required by § 41-3-609(1)(f)(i), MCA, was not necessary pursuant to § 41-

3-609(4)(c), MCA, because of J.Q.’s continued incarceration in Wisconsin. The District

Court agreed and terminated his parental rights on both bases.

¶87 It is well-established that “[t]he 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” § 41-3-609(1)(f), MCA. In re B.N.Y., ¶ 22. This is true even where a

32
treatment plan is not required pursuant to § 41-3-609(4)(c), MCA, because § 41-3-

609(4)(c), MCA, negates the treatment plan portion of § 41-3-609(1)(f)(i), MCA, but not

the threshold requirement that the child be adjudicated a youth in need of care in § 41-3-

609(1)(f), MCA.

¶88 As stated above, it is my view that the District Court violated J.Q.’s due process

rights at the adjudicatory hearing by failing to afford him a full opportunity to be heard

and a fundamentally fair procedure. Therefore, the court’s order adjudicating A.N.W. a

youth in need of care should be reversed. Absent a valid youth in need of care

adjudication, the District Court could not terminate J.Q.’s parental rights pursuant to §

41-3-609(1)(f), MCA. As a result, I would conclude that the District Court erred in

determining the Department had met its burden of satisfying the criteria for termination

set forth in § 41-3-609(1)(f), MCA, and hold that the District Court abused its discretion

in terminating J.Q.’s parental rights.

¶89 I would reverse. I dissent from the Court’s failure to do so.

/S/ KARLA M. GRAY

Justice James C. Nelson joins in the foregoing concurring and dissenting opinion of Chief Justice
Karla M. Gray.

/S/ JAMES C. NELSON

33