In Re MAW

NO. 92-028
IN THE SUPREME COURT OF THE STATE OF MONTANA
1992

IN RE THE MATTER OF
M.A.W. and K.M.W.,
Youths in Need of Care.

APPEAL FROM: District Court of the Sixteenth Judicial District,
In and for the County of Rosebud,
The Honorable Joe L. Hegel, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
John Houtz, Attorney at Law, Forsyth, Montana
Marcey F. Schwarz, Schwarz and Gustafson, Billings,
Montana
For Respondent:
Hon. Marc Racicot, Attorney General, Helena, Montana
Patricia J. Jordan, Assistant Attorney General,
Helena, Montana
John S. Forsythe, County Attorney, Forsyth, Montana
Garry P. Bunke, Attorney at Law, Miles City, Montana

Submitted on Briefs: June 11, 1992

Filed:
Justice Fred J. Weber delivered the Opinion of the Court.

After a hearing, the District Court for the Sixteenth Judicial
District, Rosebud County, terminated the parental rights of the
mother and the father (who were divorced at the time of the
hearing) to their children, M.A.W. and K.M.W. The mother has not
appealed the termination of her parental rights as to either child
and is not a party to this action. The father appeals the
termination of his parental rights as to K.M.W. only. We affirm.
The issues for our review are:
1. Were the statutory requirements for termination of
parental rights met?
2. Did the District Court err in denying disclosure of
evidence to the father?
3. Did the District Court err in refusing to replace Garry
Bunke as guardian at litem after he began to work part-time as a
deputy county attorney in another county?
4. Was the District Court biased in favor of the county?
5. Did the District Court err in declining to allow the
child to testify?
Two daughters were born of the marriage, M.A.W. and K.M.W. In
June of 1987, the father contacted Barb Rolston, a Department of
Family Services (DFS) community social worker, because he was
concerned about physical and emotional abuse by the mother of
K.M.W. On June 22, 1987, the father filed a petition for
dissolution of marriage and a supporting affidavit requesting that
the court issue a temporary restraining order against the mother to
2
keep her away from the children. In his affidavit, the father
averred that the mother had threatened to physically harm the
children.
In January of 1988, the District Court requested that Barb
Rolston look into the home situation of each parent in connection
with the divorce action. Barb Rolston testified that before she
could complete her home study the mother made a referral about
possible sexual abuse of K.M.W. by the father's sister, Lynnette.
Barb testified that when she first tried to interview K.M.W., "she
had one of her screaming tantrums and I think either the next day
or two days after, I received a referral from the Public Health
Nurse regarding medical neglect." At that point, pursuant to court
order, the DFS removed the children from the home and placed them
in foster care.
At the hearing in June 1991, the foster mother testified that
K.M.W. was two years old and M.A.W. was less than one year old when
they came to live with her. She testified that "they were both
very maladjusted children, quite upset, not physically cared for.l1
She testified that K.M.W. had constant nightmares and awoke several
times a night screaming. The foster mother testified that K.M.W.
would act out different abuses that she had been through including
acting out things being put into her vagina, her hands being tied
up and trying to have sex with her little sister, M.A.W. The
foster mother testified further as follows.
Q. Now, how would she act these things out; would she
physically do these sorts of things to herself?
A. Right, right. And she would even, her voice would
3
 even change as she began to say things that she was
repeating and go through the motions of what had
happened. She would hold her hands together and I'd ask
her, W h y do you have your hands together?" "They are
tied up." And I would ask her questions with each thing
she did and she would respond.

Q. Now, you stated there was some acting out sexually
with [M.A.W.]; what did you observe there?
A. She was constantly trying to insert things into
[M.A.W. Is] vagina; whether it was a shampoo bottle
sitting on the side of the tub or whatever she could .
..

The foster mother testified that K.M.W. told her that the "bad man"
did these things to her and that "Mommy was the bad man".
In its June 1988 order declaring the marriage dissolved, the
District Court found that the mother was not fit to care for her
children and awarded physical and residential custody of the
children to the father subject to continuing supervision by the
DFS. The District Court specifically ordered that the father
should not permit the children to have any unsupervised visitation
with the mother.
Notwithstanding the order forbidding the same, two weeks later
on June 24, 1988, DFS was informed that the father had left the
children with the mother for approximately two days. Investigation
by a social worker for DFS and Detective Skillen disclosed the
children in the unsupervised custody of the mother, in direct
contradiction to the order of the District Court. On June 28,
1988, the DFS filed a petition for temporary investigative
authority. The children were removed fromthe mother's custody and
4
placed in licensed foster care.
On the b a s i s of the DFSf allegations that K.M.W. and M . A . W .
were abused, or in danger of being abused and neglected, within the
meaning of 5 41-3-102, MCA, the District Court granted the DFS
temporary investigative authority. On August 19, 1988, an amended
petition was filed, rewesting continuation of the temporary
investigative authority and temporary custody of the children for
six months. Both the father and the mother consented to this
request. The father had moved to Idaho during 1988 and the mother
had moved to Utah. Following a hearing, temporary custody was
granted to the DFS. A treatment plan was developed by the DFS and
approved by the court on January 26, 1989.
The January 1989 treatment plan required that the father
complete the following items:
1. Enter and successfully complete a recognized
parenting education program;
2, Undergo a complete psychological evaluation and
comply with recommended treatment;
3. Enter into counseling with a professional mental
health counselor to deal with the client's lack of
assertiveness; to develop firm and effective methods of
discipline; to understand the children's needs as victims
of sexual offense; as well as physical and emotional
abuse; and to deal with other issues identified in the
evaluation;
4. Complete a chemical dependency evaluation with a
recognized chemical dependency counselor, and complete a
treatment program if recommended;
5. Arrange for a home visit to be done by the local
social service agency and for a copy to be forwarded to
the Department of Family Services;
6. Request assistance from the local agency to arrange
and coordinate services for the [above listed
 objectives];
7. Cooperate with the recommendations and requests of
the local agency;
8. Contact the children on a monthly basis, by writing
letters to them;
9. Confer with the supervising social worker regarding
his own and children's current status.
On September 12, 1989, Barb Rolston filed a report with the
court indicating that Idaho had denied placement of the children
with the father because he did not have a place to live and had not
completed any of the treatment plan, Ms. Rolston indicated that
the father's visits had been sporadic. Her report further stated:
[The father] continues to be too passive to parent or
protect his daughters. Because [the mother] has
threatened to kidnap the girls and she is able to get
information from [the father's] mother, [the father's]
only requirement prior to visiting the girls was to agree
to tell no one where they were, When his relatives
started writing to the foster homes, [the father]
indicated he didn't see what it could hurt to tell them.
While he denies any alcohol problems, he has not
completed an alcohol evaluation and he continues to be
involved with other people who do have alcohol problems.
... [the father] will need extensive counseling to be
able to comprehend the effects of their abuse on the
girls, to parent them effectively, and to protect them
from further abuse.
[K.M.W.] has been in a therapeutic foster home
specializing in sexually abused children since November
7, 1988. until recently she was uncooperative in therapy
and exhibited a great deal of anger. Since joint
sessions with [M.A.W.] began in June, [K.M.W.] has
progressed more rapidly in therapy. She will need to be
in the program at least another six months.

Both children continue to need specialized therapeutic
foster care. Neither parent has obtained adequate
housing nor completed court approved treatment plans.
Each girl has made separate and consistent allegations of
sexual abuse by [the mother]. She continues to deny the
 abuse and is therefore a poor candidate for therapy.
Based on that report, on September 19, 1989, the DFS filed a
petition for temporary legal custody of both children. K.M.W. was
four years old at the time of the petition. M.A.W. was two and one
half years old at the time of the petition. The District Court
granted the DFS temporary legal custody of the children in its
order of September 21, 1989.
Pursuant to another petition by the DFS, on November 20, 1989,
the District Court held a hearing in which the father, his current

wife Billie Jo, and Barb Rolston all testified. The father
testified as follows:
Q. [Father], do you realize that we are at a critical
time as far as the kids are concerned right now?
A. Very much so.
Q. The professionals are saying that a decision has to
be made as to permanent custody within the next six
months?
A. Yes.
Q. You understand that?
A. Yes, I do.
Q. And that if you can't get your living situation to
a point where they feel they can safely place one or both
of the children with you, they will recommend placement
outside the family?
A. Yes, I do understand that.

Q. And you understand that no one is blaming you for
the sexual molesting?
A. Yes, 1 understand that now.
 Q. But do you also understand that just the fact that
it happened that if [the mother] did this that that
leaves the children with severe scars?
A. Very much so. It leaves me with severe scars
knowing that it happened to them and I didn't know it was
going on.
Q. No one is asking that you take counseling for sexual
abuse because you did it; you understand that?

Q. It's because you need that to be able to deal with
the children and also your own emotions?
A. Yes, I understand that.
Q. You are willing to submit to such counseling?
A. Yes, I am.
The court found that it was not in the best interests of the
children to be returned to the parental home of either the mother
or the father; that the mother had made no attempt to comply with
the court approved treatment plan; and that the father had only
partially complied with the treatment plan. In its order dated
February 8, 1990, the District Court ordered the father to make
substantial progress on the treatment plan within 90 days, and in
pertinent part stated:
Now, the criteria for determination are that there
was an appropriate treatment plan that's not been
complied with. The second part of that is that the
conduct or condition of the parents rendering them unfit
is unlikely to change within a reasonable period of time.
And for whatever the parents including the father, have
not complied.
I think it's the position of [DFS] that two years is
a reasonable time. The Court is affording an additional
90 days for substantial progress and with the entire
treatment plan to be completed in six months.
This will be avvroximatelv 2 1/2 vears and althoush
 there are verv fundamental riqhts as far as the rishts of
natural ~arents. those riqhts are secondary to the riqhts
of the children and what is in the best interest of the
children.
And at this point, it is imperative that the best
interest of the children be served by permanency within
a very -- within a fairly short period of time at this
time. (Emphasis supplied.)
On May 24, 1990, Barb Rolston filed another report with the
District Court. That report showed that the father had failed to
schedule any of the required treatment for six weeks,
notwithstanding the requirement on the part of the District Court.
The report demonstrated that the father had not participated in
parenting classes; and that both the father and his wife, Billie
Jo, chose not to follow K.M.W. Is daily schedule or familiar
discipline procedures, which created some of K.M.W.'s inappropriate
behaviors. Ms. Rolston further noted that X.M.W. wanted to live
with her father and that she would "effectively undermine any
attempt to place her with another family." Ms. Rolston recommended
that K.M.W. be placed with her father as soon as possible.
On June 8, 1990, the deputy county attorney, Gary Ryder, filed
a stipulation between the county and the father, that K.M.W. would
be placed with him and that he would assume full financial
responsibility for her care. Immediately upon being placed in the
father's home, which then was in Idaho, five year old K.M.W.
sexually assaulted her stepmother's baby girl (Baby C). This was
reported to the Rosebud County Attorney by a relative of the
father's. The Idaho Department of Health and Welfare social worker
who had worked with the father since January revealed that she had
never been informed of the incident with Baby C. Furthermore, the
father failed to follow through with the Idaho welfare services.
K.M.W. was removed from his home again and returned to foster care
in Montana.
After K.M.W. was returned to foster care in Montana, Ms.
Rolston reported that the father remained in only sporadic contact
with K.M.W. and failed to keep a number of promises which he had
made to her. Ms. Rolston concluded that K.M.W. had fewer problems
in foster care than she had prior to her Idaho visit and that she
had began asking for a new daddy. She concluded that K.M.W. would
adjust to an adoptive placement and that because she may revert to
inappropriate sexual behaviors if her situation is too stressed or
unstructured, she needed to be in a stable environment, which the
father had never provided for her. Ms. Rolston testified to the
pattern of conduct on the part of the father which extended over
the past three years, stating in pertinent part:
Over the past three years [the father] has continued to
demonstrate a pattern of denial and inappropriate
responses that endangered not only his own daughters, but
other young children as well. Aware of services
available to deal with his family's crises he has not
sought assistance. He has left his young daughters in
their natural mother's care, knowing she had molested
them; he enrolled [K.M.W. ] in a pre-school without
advising staff to protect other children; he left his
already exhausted wife to deal with issues of protecting
her own child from [K.M.W. 1. The birth of another child
in that home creates another potential victim to protect.
The reconciliation is too recent to be considered
stabilized and Billie Jo has expressed serious
reservations about parenting [K.M.W.].
Ms. Rolston recommended that the father's parental rights be
terminated and that K.M.W. be permanently placed as soon as
possible. On December 31, 1990, a petition for the termination of
the parental rights of the father was based upon the failure of the
treatment plan. Following a hearing held on June 17, 18 and 19,
1991, the petition was granted. The father filed a motion for a
new trial, which was denied. He now appeals the termination of his
rights as to X.M.W.

Were the statutory requirements for termination of parental
rights met?
Section 41-3-609, MCA, provides the criteria required for the
termination of parental rights. It provides (in part):
(1) The court may order a termination of the
parent-child legal relationship upon a finding that any
of the following circumstances exist:

(c) 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; or

(d) the parent has failed to successfully complete
a treatment plan approved by the court within the time
periods allowed for the child to be in foster care under
41-3-410 unless it orders other permanent legal custody
under 41-3-410.

(2) In determining whether the conduct or condition
of the parents is unlikely to change within a reasonable
time, the court must enter a finding that continuation of
the parent-child legal relationship will likely result in
continued abuse or neglect or that the conduct or the
condition of the parents renders the parents unfit,
unable, or unwilling to give the child adequate parental
 care. In making such determinations, the court shall
consider but is not limited to the following:

(g) any reasonable efforts by protective service
agencles that have been unable to rehabilitate the
parent.

(3) In considering any of the factors in subsection
(2) in terminating the parent-child relationship, the
court shall give primary consideration to the physical,
mental, and emotional conditions and needs of the chile.

The State has the burden of showing by clear and convincing
evidence that the statutory criteria for the termination of
parental rights have been met. Matter of A.W. (1991), 247 Mont.
2 6 8 , 806 P.2d 520. A presumption of correctness is afforded the
district court's determination, and the decision to terminate
parental rights will not be disturbed on appeal unless there is a
mistake of law or a finding of fact not supported by substantial
credible evidence that would amount to a clear abuse of discretion.
Matter of S.P. (1990), 241 Mont. 190, 194, 786 P.2d 642, 644.
The father vehemently argues that he completed the treatment
program. The record demonstrates that the father failed to comply
with the January 1989 treatment plan in several respects. In
particular, the father failed to enter into counseling with a
professional counselor to deal with his lack of assertiveness, to
develop firm and effective methods of discipline, to understand the
children as victims of sexual offense as well as physical and
emotional abuse, and to deal with other issues identified in the
evaluation. The father emphasizes that K.M.W. had expressed her
desire to live with him and stated in letters to h i m h o w much she
12
loved him. He submitted copies of phone bills as evidence of his
telephone calls to K.M.W., and photographs of his current home in
Idaho as evidence that he had a proper home for K.M.W. to live in.
The father acknowledges that he made a mistake in allowing the
mother to be with the two children in an unsupervised capacity in
1988. With regard to the sexual assault of Baby C by K.M.W., the
father contends that by sitting K.M.W. down and talking to her
about it, he properly handled the situation. He maintains that the
testimony of Billie Jo and his mother that he is a good father who
loves his children is further evidence that his parental rights
should not be terminated.
Ms. Rolston of the DFS, testified at length as to the severe
problems on the part of K.M.W. and the inability of the father to
deal with such problems. In pertinent part she testified:
[Questioning By Guardian Ad Litem Bunke]:
Q: Does it appear to you that a lot of these moves
relate to his lack of assertiveness with other people?
A: One of the evaluators indicated that [the father]
takes the path with least resistance and I think that if
something comes up that presents an issue then [the
father] moves on, either to get away from that issue or
because it's the easiest thing to do.
Q: And in dealing with his children, does assertiveness
become an issue or a problem, especially as it relates to
[K.M.W. and M.A.W.]?
A: [K.M.W.] is probablythe most manipulative preschool
child I have ever seen. She is very intelligent, very,
very, very, controlling. And I don't think [the father]
would stand a chance of being the head of the household
with [K.M.W].
[By Father's Attorney]:
Q: Now, someone has describe these children as having
 special needs. Would you describe them as having special
needs?
A: Yes.
Q: And would you describe what some of these special
needs are. For example, maybe you can begin with
[K.M.W.].
A: [K.M.W.],
consistency. . .. . . . requires a high level of
She -- [K.M.W.] required over six
months to become comfortable with me as a therapist.
I've never had a child who was that fearful in my sixteen
years of practice with children. She is a very easily
frightened child, needs security, needs to know that
there's predictability in her environment. She can't
tolerate instability. That's not good for any children.
But [K.M.W.'s] needs -- it's higher than most children.
And it appears to be related to her traumatic experiences
prior to placement. She needs to have parents who --
because of that need for consistency and stability, she
needs to have parents who can anticipate concerns in her
environment, who can realize that she will be upset and
prepare her for any kind of change. Without that, she's
probably going to regress to the level of behavior that
she had when we got her, which was screaming and
withdrawing whenever she became uncomfortable. And I'm
not talking about a child simply screaming for a few
minutes. This is a child who would scream for incredible
lengths of time. . . . In addition to those behaviors
that are a real concern, she will continue to require a
high level of supervision. She continues to be sexually
aroused by other children. And because of her age and
developmental state, she's not able to completely handle
those feelings on her own. So she'll require parents who
understand and can supervise her so that she doesn't --
is not placed in a situation where she may be sexually
aroused by other children and, hence, display sexual
behavior toward them. P think it's really important to
understand that if we place children with other children
and inadequate supervision when they are -- when they do
have an arousal pattern, we really victimize them as well
as the other child. ...
Ms. Rolston also testified that the family assessment revealed
things that the father had not shared with them. For instance, she
testified that when K.M.W. was placed in his care, the father did
not follow the schedule provided for K.M.W. to follow for even one
day. She testified that when K.M.W. was not in the father's care
he moved without telling the DFS where he was going and failed to
contact K.M.W. within two days as he had promised her. Instead it
took three weeks before he contacted her. When he did contact
K.M.W., he made promises to send her things and then failed to keep
his promises.
The District Court determined that K.M.W. was abused or
neglected as defined in 5 41-3-102, MCA, and also adjudicated her
to be a youth in need of care as required under 5 41-3-609(1)(c),
MCA. In regard to the treatment plan, and the failure on the part
of the father to complete the same, the District Court made the
following finding:
15. [The father] has failed to complete his
treatment plan in that he has failed to maintain the
required contact with the social worker, Barbara Ralston
(sic); he has failed to maintain regular contact with the
children; he has failed to obtain specialized treatment
to increase his awareness and ability to cope with the
behaviors of a child who has been sexually abused and who
may sexually abuse others; he has failed to obtain
assertiveness training to bolster his ability to parent
an intelligent, manipulative child or an out of control
child, both with special needs.
We have carefully reviewed the extensive transcript and
conclude that there is substantial, if not overwhelming evidence
that the father did not comply with critical parts of the January
1989 treatment plan. In particular, while he did receive some
psychological evaluation, he failed to complete any treatment as
recommended by such evaluations. In addition, he failed to enter
into counseling with a professional counselor to deal with his own
lack of assertiveness and to develop the effective methods of
discipline which were required. In addition, such counseling would
have helped him to understand the children's needs as victims of
sexual offense and the physical and emotional abuse and to deal
with other issues identified in the evaluation. Unfortunately, the
father continues to deny various aspects of the sexual offenses
against his children and the need for treatment. In that regard,
the District Court made the following finding:
16. After [the father] made some progress on the
treatment plan, in the late Spring of 1990, at the
request of [K.M.W.] and on the recommendation of the
treating professionals, [K.M.W.] was temporarily placed
with her father, [he] and his current wife, Billie Jo.
The placement resulted in some competitive behavior,
yelling and screaming, of [K.M.W. ] and her new stepsister
[Baby C]. Ultimately, [K.M.W.] sexually assaulted [Baby
C], a younger child, twice. Billie Jo, who had attended
special classes for non-offending parents of sexually
abused children, wanted to report the incidents to DFS
and seek appropriate assistance. [The father], asked
Billie Jo not to report the incident as he was afraid
that DFS would remove [K.M.W.]. Billie Jo acquiesced in
this decision and the matters were handled by [the
father] and Billie Jo talking to the children and telling
them that they should not do such things. DFS discovered
the abuse through other family members, immediately
investigated. [K.M.W.] was removed from her father's
home in late July 1990 and returned to her specialized
foster care home on August 3, 1990. JK.M.W.l was
removed, not because of her actinq out, but because of
her father's denial and apparent inability or
unwillinqness to seek apwro~riate assistance to help
IK.M.W.1 with her special needs. (Emphasis added).
The father contends that the Idaho report demonstrates that he
and Billie Jo had followed their treatment plan and that a
multitude of other documents establish attendance at parenting
classes, classes involving care and treatment of sexually abused
children, and other things that Idaho requested. However, as the
District Court pointed out, the father's testimony throughout this
entire process has wavered with respect to whether he will even
admit that there has been sexual abuse and testified that he would
comply "if it was necessaryt'. The record contains uncontradicted
evidence that K.M.W. was seriously sexually abused. However, in
spite of the DFS' constant prodding of the father in an attempt to
get him to comply with the plan, he still refused to do so.
Since K.M.W. has returned to her foster home, the father's
contact with her has again been sporadic and he has continued to
break promises to her. The District Court granted the father an
additional six months to complete the treatment plan, which allowed
him a total of more than 2 1/2 years to comply. We agree with the
District Court's conclusion that there is overwhelming evidence
that the father did not fully comply with the treatment plan and
that the condition is unlikely to change within a reasonable period
of time. We therefore hold that the District Court properly
ordered a termination of the parent-child legal relationship under
9 41-3-609, MCA. The record clearly demonstrates that K.M.W. is an
adjudicated youth in need of care and that an appropriate treatment
plan had been approved by the court and was not complied with by
the father, and that the conduct or condition of the father
rendering him unfit is unlikely to change within a reasonable time.
Although we affirm the District Court's decision to terminate
parental rights for the reasons stated above, we also point out
that the District Court could have terminated the father's parental
rights in this case under 941-3-410, MCA. That section provides
(in part) :
 The court may terminate parental rights under 41-3-609 (2)
or order other permanent legal custody that will provide
for the permanent placement of the child when legal
custody of a youth has been transferred to the department
under this part and:

(2) the child has been in an out-of-home placement
for a cumulative total period of 2 years or longer
pursuant to court order, the parent has been unable to
remedy the circumstances that cause the child to be in an
out-of-home placement, and there is a substantial
likelihood that the parent will not be capable of
exercising proper and effective parental care and control
in the near future.
K.M.W. has been in out-of-home placement for more than two years.
Furthermore, as already discussed, the record supports the District
Court's finding that the father has failed to comply with the
treatment plan and there is a substantial likelihood that he will
not be capable of exercising proper and effective parental care and
control in the near future.
We recognize the dilemma in which the District Court was
placed in reaching its decision on this issue. The father has
testified at length as to his love of K.M.W. Notwithstanding such
love, he has demonstrated his inability to recognize the sexual
abuse perpetrated upon his daughter and the extent of the damage
which that has caused her, both psychologically and emotionally.
As a result, he has not in good faith completed a program which
would allow him to deal with this aspect of his daughter's care.
Evidence of a loving relationship does not counter balance the
extensive need for care on the part of K.M.W. in order that she may
develop, notwithstanding the mistreatment she has received. The
best interests of K.M.W. clearly outweigh the claim on the part of
18
the father.
We hold that the statutory requirements for terminating the

parental rights of the father were met by the District Court.

Did the District Court err in denying disclosure of evidence
to the father?
On April 19, 1991, the father moved for sanctions under Rule
36(b) (2) (B), stating that he had been denied preliminary discovery

by the county attorney's office. The State responded by an
objection to the disclosure of reports prepared by foster parents,
claiming the reports were privileged information. Following that
objection, in May 1991, the father moved for an Itin camerau
inspection of the entire DFS file.
In its pretrial order dated June 6, 1991, the District Court
stated that the father's attorney had requested an Itin camerav1
inspection of the entire DFS file by the attorneys for the father.
An "in cameraw inspection by definition is made by the court--not
counsel for defendant. While acknowledging this fact, the court
suggested that counsel describe the type of documents in which the
father was interested so the DFS had an opportunity to advise the
court of the parts of the voluminous file which were deemed
confidential and should not be disclosed. The court suggested that
after the "in cameratt
examination it would then determine what was
relevant and necessary to the father. The court emphasized that
the father had not in any way identified what he was looking for.
The court ordered the DFS to bring the file to the court for trial
so that the court could properly reconsider the motion. At trial
the father's counsel failed to furnish any type of identifying
information and the motion for inspection of the voluminous files
was denied.
Subsequently the father moved for a new trial. One of the
grounds was the denial of inspection of the DFS file. In its order
denying the father's motion for a new trial, the court stated:
With respect to Counsel's request for disclosure of
evidence, the Court has two explanations. First, it was
the Court's understanding at the pretrial conference that
the Respondent-Father had everything that he needed,
Counsel should file a prompt motion specifying the
particular information needed, the Department could then
mark the information in the voluminous file and also mark
any information in the relevant portions of the file, it
considered confidential. The Court would then examine
the file and decide which information was relevant and
should be disclosed. Second, when the request for
examination of the Department of Family Services file was
repeated by counsel, it did not specify the information
requested or delimit it in any way. Counsel for the
Respondent-Father wanted to conduct an "in camera"
inspection of the entire file himself. It appeared to
the Court that counsel was merely on a fishing expedition
and did not approve the same.
The applicable statute on this issue is 5 41-3-205, MCA, which in
pertinent part provides:
(1) The case records of the department of social and
rehabilitation services ... and the court concerning
actions taken under this chapter and all records
concerning reports of child abuse and neglect shall be
kept confidential except as provided by this section.
Any person who permits or encourages the unauthorized
dissemination of their contents is guilty of a
misdemeanor.
(2) Records may be disclosed to a court for in
camera inspection if relevant to an issue before it. The
court may permit public disclosure if it finds such
disclosure to be necessary for the fair resolution of an
issue before it.
The dissent focuses on the impossibility of the father and his
counsel identifying the information needed when they did not know
what information was contained in the file. The District Court

did not require an impossibility on the part of the father or his
counsel, but made a practical decision. The court was presented
with a lengthy file. District courts have control over the
presentation of evidence so as to avoid needless consumption of
time. Rule 611 (a)(2), M.R. Evid. Further, district courts have
inherent discretionary power to control discovery; such power is
based upon the court's authority to control trial administration.
Massaro v. Dunham (19791, 184 Mont. 400, 603 P.2d 249.
It is essential to look at the record with regard to the
events as they took place. The record shows that the father's
counsel did not request an "in cameratfinspection by the court.
Instead he continued to request that as counsel for the father he
should be allowed to conduct an "in cameraM inspection of the
entire file. Such inspection was by definition impossible; the
court correctly noted that it was not appropriate under the above
statute. The record further demonstrates there was no attempt by
counsel for the father to in any way delineate the nature of the
information desired. This failure to even attempt to comply with
the court's concern underscores the court's *'fishing expeditionN
analysis. As the court pointed out at the pretrial conference, it
understood that the father had everything which he needed to try
the case.
As requested by the court, counsel could have listed the
materials which had been furnished to him and thereby identify
information which he did not need. With little effort, counsel
could have stated that information was desired only as to K.M.W.
This would have significantly diminished the volume of material
needed for review. In addition, he could have eliminated such
elements as the following: reports of foster parents, reports of
personnel employed by the various divisions of the State of
Montana, reports by personnel in the state of Idaho, reports by law
enforcement personnel, and reports of psychologists or other
medical personnel. We emphasize that after being warned of the
necessity to limit or identify the information required, counsel
refused to do anything of that nature. The District Court
concluded counsel was merely on a fishing expedition and therefore
refused to approve it.
Under the statute the District Court is given the discretion
to determine if the evidence is relevant to an issue before it. It
is given the discretion as to whether to conduct the "in camera"
examination at all. In view of the failure on the part of counsel
for the father to attempt to limit or specify the information
requested in any manner, we conclude that the father has failed to
prove the District Court was clearly erroneous in denying
disclosure of access to the entire files. We therefore hold that
the District Court did not err in denying disclosure of evidence to
the father.
I11
Did the District Court err in refusing to replace Garry Bunke
as guardian at litem after he began to work part-time as a deputy
county attorney in another county?
T h e f a t h e r contends t h a t t h e District Court erred in allowing

Garry Bunke to remain as guardian ad litem in this case after he
became deputy county attorney in an adjoining county. The father
maintains that a conflict of interest arose at that point because
as guardian at litem, Garry Bunke would no longer be able to remain
neutral but would rather, be clouded by the position he should take
as an attorney for the State. The State maintains that there was
no natural or apparent conflict between representing the State in
one county and a child in another.
In its order denying the father's motion to appoint an
unbiased guardian ad litem, the District Court stated:
The Respondent-father's attorney, Mr. Houtz, alleges that
the guardian ad litem, Mr. Bunke, is not sufficiently
neutral, because Mr. Bunke is also a Deputy Custer County
Attorney and because at the pretrial, Mr. Bunke indicated
that he went along with the contentions of the state.
This is insufficient evidence that Mr. Bunke is anything
less than an impartial guardian ad litem. Mr. Bunke has
been a Deputy County Attorney for two and one-half years.
Prior to that, he was a defense counsel and frequently
represented parents and children in such matters. Just
because he agrees with the Rosebud County Attorney in
this case does not mean he is not adequately representing
the children.
We agree with the District Court's reasoning. Furthermore, 3
41-5-512, MCA, provides that the court may not appoint an employee
or representative of a party as a guardian ad litern. First, at the
time that Mr. Bunke was appointed as guardian ad litem, he was not
a deputy county attorney. Second, as Deputy Custer County
Attorney, Mr. Bunke is not an employee or representative of the DFS
or Rosebud County. He is an employee of Custer County. Therefore,
the District Court did not err in refusing to replace Mr. Bunke as
guardian ad litem.

Was the District Court biased in favor of the county?
In the 9 hearing on the petition for temporary legal
custody, the District Court stated:
The Court will continue the temporary custody with
the Department for a period of six months and the Court
would implore the father to complete his treatment plan
and would indicate that he has 90 days within which to
substantially or make substantial progress and this is to
be monitored by the Department of Family Services.

If the father is not making substantial progress at
that point, the Court would urge the Department then to
make a decision as to whether or not to move, petition
the Court for termination of all parental rights.
This is not something that the Court seeks and the
Court certainly can empathize with the natural father in
this situation and also as stated by the County Attorney,
but one of the primary needs of the children is for
stability and continuity and the children are at such an
age where a decision has to be reached.
The father maintains that in the above language, the District
Court ordered the Rosebud County Attorney to file a petition for
termination of the father's parental rights, committing reversible
error. We disagree.
Read in context with the rest of the court's decision, there
is no indication that the court ordered a petition to be filed
against the father, or that the court had prejudged the case.
Rather, the court empathized with the father and attempted to spur
him into action to try to keep his family together. We hold that
there is no evidence that the District Court was biased in favor of
Rosebud County.
 v
Did the District Court err in declining to allow the child to
testify?
On May 7, 1991, the father moved to allow K . M . W . to testify
that she desired to live with her father. The State opposed the
motion arguing that K . M . W . t s wishes were irrelevant to the issue of
whether the father successfulLy complied with the treatment plan,
and that K . M . W . was not competent to testify.
The District Court denied the father's motion on the basis
that the parties had stipulated that K.M.W. would say that she
desired to live with her father. In the making of its findings and
conclusions the District Court clearly recognized that K . M . W
desired to live with her father.
In addition the District Court also mentioned that the parties
also stipulated that the father's counsel could observe the
interaction between K.M.W. and her therapist if they wished to do
so, in order to avoid further traumatization of the child. The
District Court concluded that the threatened harm to the child
outweighed any possible relevance the testimony as to custody would
have.
We agree with the District Courtts reasoning. We hold that
the District Court did not abuse its discretion in refusing to have
K.M.W. testify.
Affirmed .
We Concur:

Justices
Justice Terry N. ~rieweiler,concurring in part and dissenting in
part.

I concur with those parts of the majority opinion which
resolve issues numbered 111, IV, and V. I specially concur with
the result arrived at in the majority opinion relating to Issue I,
although 1 strongly disagree with much of what is said in that p a r t
of the opinion. T join Justice Gray's dissent to the majority's
conclusion under Issue 11.
After personally reviewing t h e testimony upon which the
District Court relied before terminating the parental rights of
Jack Watson, I strongly disagree with the majority's
characterization that there is overwhelming evidence that he failed
to comply with critical parts of the treatment plan he was ordered
to follow. There was evidence that in at least one respect he did
not comply with a comprehensive and detailed set of obligations
imposed upon him.
I also disagree with the majority's statement that he failed
to complete treatment that was recommended as a result of the
evaluations that he underwent. He submitted to psychological
evaluations and alcohol abuse evaluations. The conclusions from
those who evaluated him was that he had no psychological
abnormality which required treatment and that he was not abusing
alcohol.
I also disagree with the majority s statement that Mr. Watson
continues to deny various aspects of the sexual offenses against
his children. He testified repeatedly during the hearing that
while it was initially difficult to acknowledge that his children
had been abused while living in his home and under his care, he was

now completely resigned to the fact that abuse had occurred and
that his children suffered severe personality disorders because of
that abuse.
Finally, I disagree with the majority's statement that in
spite of prodding, Mr. Watson has refused to comply with his
treatment plan. It is true that because of relocation, the
unavailability of many of the services that were necessary, and
instability in his own personal life, it took him longer to comply
with the program than would have been desirable. However, I
conclude from my review of the evidence in this case, that prior to
June 1990 when K.M.W. was last placed in her father's custody, he
had complied in most significant respects with the treatment plan
that had been designed for him.
My interpretation of 5 41-3-609, MCA, is that a district court
may order termination of a parent-child relationship where:
1. The child has been adjudicated a youth in need of care,
and
2. A treatment plan has not been complied with, and
3. A condition rendering a parent unfit is unlikely to
change within a reasonable time.
In determining whether a parent is unfit, I conclude that all
that needs to be shown under 41-3-609, MCA, is that some
condition of the parent renders him unable to give the child
adequate parental care.
 Although I do not agree with the characterization of the
evidence set forth in the majority opinion, I do agree that the
State offered sufficient evidence to create factual issues on each
of these necessary elements. Furthermore, while based on my own
review of the transcript, I may not have resolved those factual
issues in the same manner as the District Court did, I acknowledge
that there was a sufficient basis in the record for the District
Court to make the findings that it made, and I recognize the unique
position that a District Judge is in to resolve factual issues. In
spite of these conclusions, I believe the result in this case is
unfortunate.
Jack Watson is a father whose daughters were sexually abused
by his former spouse. He neither participated in the abuse, nor
was he aware that it was occurring. When he first had reason to
suspect that his daughters had been abused, he reported his
suspicions to the Department of Family Services, which eventually
removed his children from his home.
As a result of their sexual abuse, his daughters have
developed personality disorders to such an extent that their care
requires skills over and above those possessed by the average
parent.
Even though he had never personally abused nor neglected his
daughters, Jack Watson was ordered to comply with a treatment
program in order to retain his rights as a parent. The treatment
program was comprehensive. It required evaluation and counseling.
 I am sure that Jack Watson, based upon his training and
instincts as a parent, felt that since he was not the offender that
the treatment program made no sense and was imposed upon him by
people who had little understanding of his personal relationship
with his daughters. However, it is apparent to me from my review
of the record that he made an effort to technically comply with the
program without any conviction that the treatment program would
benefit either his daughters or him. It is also clear to me from
my review of the testimony that he believes he did comply with the
treatment program.
Yet, there was evidence that in one respect he did not comply.
He did not enter into counseling for the specific purpose of
dealing with his alleged lack of assertiveness or to develop
effective methods of disciplining his daughter and understanding
her special needs as a victim of abuse. Whether or not that was a
practical requirement, and whether or not it was reasonable to
expect there would be any benefit to Jack Watson or his daughters
from such counseling, was not an issue in the District Court, and
has not been raised as an issue in this Court. Therefore, I
conclude that there was a factual basis in the record from which
the District Court could find that K.M.W.'s father did not follow
the treatment plan.
The second requirement under § 41-3-609, MCA, for termination

of parental rights is that a condition renders the parent unfit to
care for his child and that the condition is unlikely to change
within a reasonable time. It is the consideration of this factor
which makes this case unique among those cases I have seen dealing
with the termination of parental rights. From everything 1 have
seen in this record, Jack Watson is a loving parent who cares for
his daughters and is loved by them. There is no evidence that he
has ever mistreated his daughters. Yet, because of his former
wife's mistreatment of his daughters, they have demonstrated severe
emotional problems which require care and understanding beyond that
which the average parent is capable of giving. Therefore, under
the unique circumstances of this case, there was, through the
testimony of Barb Rolston and Marty Jones, what I believe to be a
bare minimum of the credible evidence necessary to sustain the
District Court's finding that this father, even though otherwise
qualified to be a parent, was unfit to care for K.M.W. who had such
unique and special needs.
My interpretation of 5 41-3-609(2), MCA, is that a parent may
be found unfit to care for his or her child and unlikely to change
within a reasonable time if the court finds that the conduct or
condition of the parent renders him unable to give the child
adequate parental care. While I f i n d no evidence anywhere i n t h i s
record t o support a conclusion that Jack Watson ever abused or
neglected either of his daughters, I do find sufficient evidence,
through the testimony of the previous witnesses, for the District
Court to find that Jack Watson was unable to provide adequate care
for his daughter K.M.W. I must emphasize that reading the same
testimony that the District Court heard and observed, I would not
necessarily resolve the factual dispute as the District Court did.
However, it is not my right to resolve that factual dispute when
the District Court, f r o m its perspective, was in a better position
to do so.
I feel the result of this decision is unfortunate. It should
be of concern to everyone who believes in the fundamental
importance of family relationships that a parent-child relationship
can be terminated, not because of something the parent has done
wrong, but because the parent's skills are average or even below
average. That is, in effect, the result of the holding in this
case. The father, whose rights are being terminated in this case,
is as good a parent and as able to care for his children as most
parents. His only inadequacy, at least according to most of the
evidence that was presented, is that he has not developed special
skills beyond those possessed by the average parent which would
enable him to deal with the damage inflicted on his children by his
former spouse. Because of the importance and sanctity with which
I regard the parent-child relationship, and because of the degree
to which the very nature of the relationship can compensate for a
parent s inadequacies, I have serious r e s e r v a t i o n s about the wisdom
of the public policy as set forth in our statutory law which would
permit termination of the parent child relationship under these
circumstances, However, where the legislature's intent is clear,
as it is in this case, and where the constitutionality of what the
legislature did is not an issue, it is not for this Court to ignore
the stated public policy and establish its own.
 For these reasons, although I strongly disagree with its
characterization of the evidence in this case, I reluctantly concur
with the result of the majority opinion.

I concur in the foregoing concurrence and dissent of Justice
Trieweiler.
Justice Karla M, Gray dissenting.

I respectfully dissent from the majority opinion on Issue 11.
This case concerns one of the most fundamental and important
rights recognized by the law: the right of a parent to parent his
children. Here, in an effort to stave off termination of that
right by the State of Montana, the father requested records and
files of the Department of Family Services (DFS) in order that he
might obtain and utilize any relevant information contained therein
in his "defenseg1 the action to terminate his parental rights.
to
The majority affirms the District Court's imposition of a
precondition to an in camera inspection which, as a practical
matter, is an impossibility. More importantly, it affirms a
precondition not provided for in the controlling statute, and does
so without citation to any authority. I cannot agree.
The District Court required the following in denying the
father's request for an in camera inspection:
Counsel who seek discovery of documents contained in the
DFS file must specify or describe the documents they are
particularly interested in. ...The Respondent-father
has not sufficiently identified what he is looking for.
The court went on to say that it would reconsider the motion at the
time of trial ' i counsel can sufficiently identify particular
'f
documents, types of documents, time frames, and other identifying
information.
The majority attempts to reconstruct the record by suggesting
that the court requested counsel to list the materials he already
possessed, thereby identifying unneeded information. Such an
effort by counsel would not have met the court's requirement to
specify, describe or identify the information being sought, as
quoted above. Similarly, the majority's listing of materials the
father "could have eliminated" is nothing more than speculation by
this Court and, again, not responsive to the District Court's
Memorandum and Order dated June 6, 1991. In any event, some of the
majorityls listed items might well have been relevant and,
therefore, sought by the father if contained in the DFS file.
The Pact is that neither the District Court nor the majority
suggest how the father could have complied with the District
courtls precondition. It strikes me that such a precondition
requires an impossibility; neitherthe father nor his counsel could
possibly know with particularity what documents and information the
file contained. In this regard, the majority requires an
impossible act in contravention of the statutory maxim of
jurisprudence that "[tlhe law never requires impo~sibilities.~~
Section 1-3-222, MCA.
More importantly, nothing in the statute permitting disclosure
of DFS files, 5 41-3-205, MCA, requires the act imposed by the
District Court and affirmed by the majority. To that extent, the
majority violates its most basic duty, as stated in S 1-2-101, MCA:
to ascertain and declare what is contained in a statute and to
refrain from inserting that which is not found therein.
Section 41-3-205, MCA, is clear and straightforward: DFS
records may be disclosed to a court for camera inspection if
relevant to an issue before it. It is undisputed that the records
concerning the father's children may contain information relevant
to defending against the State's effort to terminate his parental
rights. Indeed, the District Court recognized and stated that the
records may contain relevant information which should be disclosed
pursuant to the statute.
Here, the statutory procedure has not occurred; it was
foreclosed by imposition of the precondition. There has been no b
camera examination and no release of relevant information to a
parent seriously and vigorously contestingtermination ofthe right
to parent his children. The majority concludes that the District
Court's imposition of a precondition that the father specify what
information he needed from the file, a requirement not contained in
the statute, did not constitute an erroneous denial of access to
the record. Nothing could be further from the truth. I dissent.
 February 2, 1993

CERTIFICATE OF SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:

JOHN HOUTZ
Attorney at Law
P.O. Box 1230
Forsyth, MT 59327

Marcey F. Schwarz
SCHWARZ & GUSTAFSON, P.C.
P.O. Box 21386
Billings, MT 59104

HON. MARC RACICOT, Attorney General
Patricia J. Jordan, Assistant
Justice Bldg.
Helena, MT 59620

John Forsythe
County Attorney
Drawer M
Forsyth, MT 59327

Barb Rolston
Department of Family Services
P.O. Box 241
Forsyth, MT 59327

GARRY P. BUNKE
Attorney at Law
P.O. Box 1407
Miles City, MT 59301

ED SMITH
CLERK OF THE SUPREME COURT
ST MONTANA