No. 83-428
I N THE SUPREME COURT O THE STATE O MONTANA
F F
1984
I N MATTER OF DECLARING
C.L.R., Youth i n Need o f C a r e .
APPEAL FROM: D i s t r i c t Court of t h e Fourth J u d i c i a l D i s t r i c t ,
I n and f o r t h e County o f M i s s o u l a ,
The H o n o r a b l e J a n e s B. W h e e l i s , J u d g e p r e s i d i n g .
COUNSEL OF RECORD:
For Appellant:
Ferguson & M i t c h e l l , P a u l e t t e C. Ferguson,
M i s s o u l a , Montana
f.Iartha E . McClain a r g u e d f o r A p p e l l a n t , M i s s o u l a ,
Montana
For Respondent:
Bon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana
R o b e r t F.W. S m i t h a r g u e d , A s s t . A t t y . G e n e r a l , H e l e n a
R o b e r t L. Deschamps, 111, County A t t o r n e y , M i s s o u l a ,
Pion t a n a
R o b e r t T e r r a z a s a r g u e d , Deputy County A t t o r n e y ,
M i s s o u l a , Montana
M o r a l e s , V o l i n k a t y & Harr; James P . 0 , ' B r i e n a r g u e d
f o r t h e Youth, M i s s o u l a , Montana
- -- -
Submitted: A p r i l 1 9 , 1984
Decided: J u l y 3 1 , 1984
- --
Clerk
Mr. J u s t i c e J o h n Conway H a r r i s o n d e l i v e r e d t h e Opinion of
t h e Court.
William R. Sigler appeals an order issued by the
F o u r t h J u d i c i a l D i s t r i c t C o u r t , M i s s o u l a County, t e r m i n a t i n g
his parental rights of C.L.R. Be also appeals from the
denial of his motion for a stay in the proceedings. We
affirm.
From O c t o b e r 1 9 8 1 u n t i l F e b r u a r y 1 9 8 2 , K a t h y W i l k i n s o n
and W i l l i a m R u s s e l l S i g l e r l i v e d together with Wilkinsonls
son i n East Missoula, Montana. On F e b r u a r y 23, 1982, Paul
Wilkinson, Jr. died as a result of internal injuries
s u s t a i n e d f r o m b e i n g s t r u c k i n t h e abdomen. Wilkinson pled
g u i l t y t o n e g l i g e n t homicide f o r s a i d death. A jury found
S i g l e r g u i l t y of d e l i b e r a t e homicide f o r t h e c h i l d ' s d e a t h .
The c o u r t f o u n d him t o b e a d a n g e r o u s o f f e n d e r and g a v e him
a s i x t y year sentence. S e e S t a t e v. Sigler (Mont. 1984),
P. 2d , 41 S t . R e p . 1039.
At t h e t i m e of t h e a r r e s t of the parties, Wilkinson
d i s c o v e r e d s h e was p r e g n a n t . On O c t o b e r 2 5 , 1 9 8 2 , W i l k i n s o n
g a v e b i r t h t o C.L.R.; S i g l e r was t h e n a t u r a l f a t h e r . A t the
time of the birth, both Sigler and Wilkinson were
incarcerated. On October 25, 1982, the State filed a
petition for temporary investigative authority and
protective services. The c o u r t g r a n t e d t e m p o r a r y c u s t o d y o f
C.L.R. t o the State. On A p r i l 1 4 , 1 9 8 3 , t h e S t a t e f i l e d a
p e t i t i o n f o r t e m p o r a r y c u s t o d y o f C.L.R.
The t r i a l c o u r t held a h e a r i n g a t which b o t h p a r e n t s
s t i p u l a t e d t h a t C.L.R. was a Youth i n Need o f C a r e . A t the
hearing the State presented its treatment plans for
improving t h e p a r t i e s 1 p a r e n t i n g skills and to assure the
p r o p e r c a r e and t r e a t m e n t o f C . L . R . Testimony r e v e a l e d t h a t
it would be i m p o s s i b l e f o r S i g l e r t o p r o p e r l y p a r e n t C . L . R .
d u e t o h i s v i o l e n t n a t u r e and t h e f a c t he w i l l remain in
prison for a t l e a s t the next eighteen years. Following t h e
h e a r i n g , t h e c o u r t amended t h e p e t i t i o n , p u r s u a n t t o s e c t i o n
41-3-401(11), MCA, and t e r m i n a t e d S i g l e r ' s p a r e n t a l r i g h t s .
The c o u r t c o n c l u d e d t h a t no t r e a t m e n t p l a n wa.s f e a s i b l e f o r
Sigler. Therefore, the child's best interests dictated
termination of the parental relationship. The court
accepted t h e p l a n f o r Wilkinson b u t s t a t e d i f she f a i l e d t o
p r o p e r l y perform s a i d p l a n , h e r p a r e n t a l r i g h t s would a l s o
be t e r m i n a t e d .
Appellant r a i s e s the following issues:
(1) Did t h e D i s t r i c t C o u r t e r r i n t e r m i n a t i n g S i g l e r ' s
p a r e n t a l r i g h t s w i t h C.L.R.?
(2) Did the District Court e r r i n denying Sigler's
motion f o r a s t a y of p r o c e e d i n g u n t i l t h e pending c r i m i n a l
appeal terminated?
Appellant f i r s t contends t h a t t h e t r i a l court e r r e d i n
terminating his parental rights by failing to properly
follow t h e requirements a s set f o r t h i n s e c t i o n 41-3-609(1),
MCA. The p e r t i n e n t p a r t o f t h a t s e c t i o n r e a d s :
" C r i t e r i a f o r t e r m i n a t i o n . ( 1 ) The c o u r t
may order a termination of the
parent-child l e g a l r e l a t i ' o n s h i p upon a
finding t h a t the circumstances contained
i n subsection ( l ) ( a ) , ( l ) ( b ) , or ( l ) ( c ) ,
as follows, exist:
" ( c ) t h e c h i l d is a n a d j u d i c a t e d y o u t h i n
need of c a r e and b o t h of the following
exist:
" ( i ) an a p p r o p r i a t e t r e a t m e n t p l a n t h a t
h a s b e e n a p p r o v e d by t h e c o u r t h a s n o t
b e e n c o m p l i e d w i t h by t h e p a r e n t s o r h a s
n o t b e e n s u c c e s s f u l ; and
" ( i i ) t h e c o n d u c t o r c o n d i t i o n of t h e
p a r e n t s r e n d e r i n g them u n f i t i s u n l i k e l y
t o change w i t h i n a r e a s o n a b l e time."
Appellant argues t h a t t h i s language r e q u i r e s e s t a b l i s h i n g a
treatment plan prior t o t e r m i n a t i o n of p a r e n t a l r i g h t s . In
the instant case, the court terminated parental rights
without f i r s t establishing the necessary plan. The f a i l u r e
t o f o l l o w t h e p r o c e d u r a l r e q u i r e m e n t s c o n s t i t u t e s e r r o r and
r e q u i r e s t h e t r i a l c o u r t ' s o r d e r t o be s e t a s i d e f o r f u r t h e r
proceedings. We disagree.
The Montana L e g i s l a t u r e d e r i v e d t h e Parent-Chi1.d L e g a l
Relationship Termination Act of 1981, by-and-large from
s e c t i o n 19-4-101 e t seq., Colo. Rev. Stat. (1973). These
s t a t u t e s e s t a b l i s h the necessary procedures for termination
of the parental right. The a c t s e t s f o r t h i t s p u r p o s e in
section 41-3-602, MCA: "41-3-602. Purpose. This part
p r o v i d e s p r o c e d u r e s and c r i t e r i a by which the parent-child
legal relationship may be terminated by a court if the
r e l a t i o n s h i p is n o t i n t h e b e s t i n t e r e s t o f t h e c h i l d . .. "
(Emphasis added. )
Appellant argues that the act specifically requires
e s t a b l i s h m e n t of a t r e a t m e n t p l a n p r i o r t o t e r m i n a t i o n . He
cites several Colorado cases for support. In People in
I n t e r e s t of M.C.C. ( C o l o . 1 9 8 2 ) , 6 4 1 P.2d 306, t h e C o l o r a d o
Court of Appeals h e l d t h a t t h e s i n g l e f a c t t h a t t h e p a r e n t
was i n c a r c e r a t e d d o e s n o t , p e r s e , p r o h i b i t t h e c r e a t i o n a n d
imple m e n t a t i o n of a treatment plan. That court, remanded
the case for further proceedings. The t r i a l c o u r t f a i l e d t o
e s t a b l i s h a t r e a t m e n t p l a n p r i o r t o t e r m i n a t i o n of p a r e n t a l
rights. The father was incarcerated at the time of the
court action and insufficient findings existed to determine
if his criminal activities and incarceration made him
unavailable for the establishing of an appropriate treatment
plan.
The Colorado Supreme Court stated in People in
Interest of C.A.K. (Colo. 1982), 652 P.2d 603, 611: "[A]
treatment plan must be approved by the court prior to any
termination of parental rights ... In many cases, it would
be impossible to devise a plan, under which success could be
guaranteed. "
This is a case of first impression in the State of
Montana. All of the Colorado cases except People in
Interest of M.C.C., involve cases where the Court
established treatment plans. The court reversed People in
Interest of M.C.C., not specifically because of the failure
to establish a treatment plan, but because the trial court
failed to make sufficient findings to support its conclusion
that no appropriate treatment plan could be established.
However, the line of Colorado cases suggested a treatment
plan must be established prior to termination. No cases
exist as in the instant case where the facts clearly show
the impossibility of establishment of even a marginally
successful treatment plan.
The trial court set forth extensive findings and
conclusions to support its order to terminate the parental
rights of the appellant. Those findings included a graphic
description of appellant's brutal abuse of C.L.R.'s half
brother Paul Wilkinson, Jr., that lead to his death. The
court concluded its findings as follows:
"49. The s e r i o u s n e s s o f t h e a b u s e
i n f l i c t e d on P a u l W i l k i n s o n , J r . by ...
S i g l e r demonstrates t h e hopelessness of
any t y p e of t r e a t m e n t p l a n .
"50. Respondent S i g l e r ' s b r u t a l l y
v i o l e n t t r e a t m e n t of P a u l W i l k i n s o n , J r . ,
c r e a t e s an impermissible r i s k t o t h e
s a f e t y and w e l l - b e i n g o f C . L . R .
"51. Respondent S i g l e r ' s a c t i o n s have
c a u s e d t h e f o r e c l o s u r e of h i s r i g h t s t o
a s s e r t any i n t e r e s t i n t h i s c h i l d .
"52. Respondent S i g l e r h a s a h i s t o r y of
v i o l e n t behavior.
"53 Respondent S i g l e r is under a
long-term confinement ( 6 0 y e a r s ) i n t h e
S t a t e P r i s o n f o r d e l i b e r a t e homicide.
"54. Respondent S i g l e r c a u s e d t h e d e a t h
of t h e [ h a l f ] b r o t h e r o f C.L.R.
"55. The c o n d u c t and c o n d i t i o n o f ...
S i g l e r r e n d e r i n g him a b u s e [ s i c ] and
n e g l e c t f u l is u n l i k e l y t o change.
"56. I t is i n t h e b e s t i n t e r e s t of t h e
child t o terminate the parent-child l e g a l
r e l a t i o n s h i p between Respondent . . .
S i g l e r and C . L . R .
"Having f o u n d t h a t t h e c h i l d would n o t
r e c e i v e even m i n i m a l l y s a t i s f a c t o r y c a r e
and would be e x p o s e d t o e x t r e m e l y h i g h
c h a n c e s of n e g l e c t , a b u s e , and e v e n d e a t h
i f Respondent S i g l e r were e v e r allowed t o
care for the child, t h i s court orders, i n
a c c o r d a n c e w i t h s e c t i o n 41-3-609 Mont.
Code Ann., t h a t the parent-child legal
r e l a t i o n s h i p between William R u s s e l l
S i g l e r and C.L.R. is t e r m i n a t e d . "
The t r i a l court acted properly i n termination of t h e
p a r e n t a l r i g h t s of a p p e l l a n t , S i g l e r . However, we s o u n d a
stern warning that this Court w i l l not permit the
t e r m i n a t i o n of p a r e n t a l r i g h t s w i t h o u t f i r s t e s t a b l i s h i n g a
t r e a t m e n t p l a n u n l e s s a showing o f f a c t s c l e a r l y p r o v e s t h e
i m p o s s i b i l i t y of a n y w o r k a b l e p l a n .
W next turn t o appellant's l a s t issue, t h a t the court
e
e r r e d by d e n y i n g h i s m o t i o n f o r a s t a y i n t h e p r o c e e d i n g s .
S i g l e r contends t h a t i n order t o t e s t i f y a t h i s termination
of parental r i g h t s hearing, h e would jeopardize his Fifth
Amendment rights to remain s i l e n t . He contends the State
c o m p e l l e d him t o t e s t i f y b e c a u s e i f h e f a i l e d t o t e s t i f y , h e
r i s k e d t h e l o s s of h i s p a r e n t a l r i g h t s . Appellant set f o r t h
several cases where a violation of the Fifth Amendment
occurred due to compelled testimony. The F i f t h Amendment
p r o t e c t s persons against t e s t i f y i n g against themselves.
This protection covers not only criminal proceedings but
a l s o o t h e r p r o c e e d i n g s where compelled t e s t i m o n y c o u l d l e a d
to future prosecution. L e f k o w i t z v. Turley (1973), 414
U.S. 7 0 , 94 S . C t . 3 1 6 , 38 L.Ed.2d 274. We f a i l to find the
S t a t e compelled a p p e l l a n t t o t e s t i f y .
The key t o t h i s r e s t s w i t h d e t e r m i n i n g i f a p p e l l a n t i s
compelled to testify or merely required t o make tactical
d e c i s i o n s regarding t h e defense of h i s p o s i t i o n . The c a s e s
cited by appellant clearly illustrate i n s t a n c e s where had
the defendant f a i l e d t o t e s t i f y a t a proceeding, he would
have s u f f e r e d c e r t a i n s u b s t a n t i a l l o s s a s a r e s u l t of that
failure to testify.
The Family Court i n Matter of Roman (Fam.Ct.Ono.Co.
1 9 7 8 ) , 9 4 Misc.2d 7 9 6 , 4 0 5 N.Y.S.2d 899 d e a l t w i t h a s i m i l a r
issue. That c o u r t reasoned that if a person could remain
s i l e n t " u n l e s s he c h o o s e s t o s p e a k i n a n u n f e t t e r e d e x e r c i s e
of h i s own w i l l " t h e n no v i o l a t i o n o f t h e F i f t h Amendment
occurs. This c a s e involved an a c t i o n by t h e S t a t e o f N e w
York to establish that the child suffered abuse and/or
n e g l e c t a t t h e hands of t h e c h i l d ' s m o t h e r and h e r l i v e - i n
boyfriend. The c o u r t h e l d t h a t t h e s e p r o c e e d i n g s f a i l e d t o
infringe upon his Fifth Amendment rights even though
testimony at the proceeding could be used for criminal child
abuse charges. The court felt no compulsion occurred.
"This is not a situation where a failure
to testify will cause a penalty to be
exacted. See Lefkowitz v. Turley, 414
U.S. 70, 94 S.Ct. 316, 38 L.Ed.2d 274
(1973). Rather, as in a criminal case,
the decision to testify or not in the
presentation of a defense remains in the
unfettered discretion of the Respondent.
The decision is a tactical, not a
compelled one. A defense to the
allegations may be established by
alternative methods which do not require
the Respondent's testimony." 405 N.Y.S.2d
at 904.
We find in the instant case, that appellant suffered
no compulsion to testify, therefore no violation of the
Fifth Amendment occurred. Appellant clearly could remain
silent if he so desired without fear of certain penalty for
not testifying. Appellant's determination to testify hinged
upon a tactical decision and not penalty of certain loss of
parental rights, as he asserted. We therefore hold that the
court acted properly in not staying the proceedings until
appellant's criminal proceedings were terminated.
We affirm the District Court.
We concur:
V
Justices
Mr. Justice Fred J. Weber specially concurs as foll-ows:
I concur in affirming the District Court's order
terminating the parental rights of William R. Sigler. At
first reading, section 41-3-609(l) (c)(i), MCA appears to
require a finding that an appropriate treatment plan had not
been complied with by William R. Sigler before the court had
the authority to order a termination of the parent-child
legal relationship. I have concluded that the Parent-Child
Legal Relationship Termination Act of 1981, sections 41-3-601
to -612, MCA, does not require that conclusion.
In this case the District Court made a careful study and
review of the facts and the law. In addition to the portion
of section 41-3-609(1), MCA which is quoted in the majority
opinion, the District Court also specifically considered the
remaining portion of that section which in pertinent part
states:
"(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
relationshi~ will result in continued abuse or
neglect or ;hat 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:
" (a) emotional illness, mental illness . . .
of
the parent of such duration or nature as to render
the parent unlikely to care for the ongoing
physical, mental, and emotional needs of the child
... II
" (b) a history of violent behavior by the parent;
" (e) present judicial-ly-ordered long-term confine-
ment of the parent;
" (f) the injury or death of a sibling due to
proven parental abuse or neglect;
" (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 child . . ."
The District Court concluded as follows:
"The findings of fact in this case clearly
establish that the conduct and condition of
respondent Sigler rendering him unfit is unlikely
to change within a reasonable time. He has a
history of violent behavior; he is under a
long-term confinement (60 years); and he caused the
death of the child's brother by beatings and
abuse. "
With regard to the treatment plan itself on the part of
respondent Sigler, the District Court stated:
"There is absolutely no sense in putting Russell
Sigler into a training program when the chances for
success are miniscule and the costs of failure are
so high. Respondent's a.ctions have caused the
foreclosure of his right to assert any interest in
this child. A parent does not have the privilege
of inflicting brutal treatment upon his or her
child before the child may obtain the protection of
the State. Matter of T.Y.R., 598 P.2d 593, 595
(Mont. 1979); In re Miller, 242 P.2d 1060 (Wash.
1952)."
As appears from the quoted findings in the majority
opinion, the District Court did enter sufficient findings
showing that continuation of the parent-child relationship
would likely result in continued abuse or neglect and that
the condition of the respondent renders him unfit and unable
to give the child adequate parental care. In reaching this
conclusion, the court properly considered the requirements of
section 41-3-609 (2) & (3), MCA.
In substance, section 41-3-609 (1)(c)(i), MCA authorized
the court to terminate the parent-child legal relationship
when the parents have failed to comply with an appropriate
plan which has been approved by the District Court. In this
instance the District Court had specifically found that the
condition of respondent Sigler was such that the ~istrict
Court cannot and could not approve a treatment plan as
appropriate for Sigler. Our question then becomes whether,
where no treatment plan is appropriate under the facts of the
case, the court still must order some type of a treatment
plan in order to meet a. technical requirement of the statute.
Here the District Court made findings of fact pursuant
to the statutes and reached the conclusion that Sigler's
condition was such that the court could not approve any
treatment plan appropriate for him. At that point, I believe
the initial test under subsection (i) of 41-3-609 (1)(c), MCA
had been met. The District Court further concluded that the
conduct or condition rendering Sigler unfit is unlikely to
change within a reasonable time, thereby satisfying
subsection (ii) of 41-3-609 (1) ( c ) , MCA.
I conclude that the statutory tests have been met so
that the District Court had the power to order the
termination of the parent-child legal relationship without
the technical step of first requiring a treatment plan for
and compliance by Sigler. This gives particular meaning to
the latter portion of the statute which states, "The court
shall give primary consideration to the physical, mental, and
emotional conditions and needs of the child."
It is essential that we weigh very carefully all of the
facts and the law before terminating a parent's rights as was
done in this case. The statutory requirements which meet
these standards were carefully considered and followed by the
Mr. Justice Da.nie1 J. Shea, dissenting:
The statute, section 41-3-609 (1), MCA, is clear, and it
is mandatory. A "treatment plan" must be submitted for the
defendant in this circumstance, and absent this treatment
plan, and a failure to comply with the treatment plan, the
defendant's parental rights could not be terminated.
Here the State has failed to submit any treatment plan,
and yet this Court has sanctioned the termination of parental
rights. That this Court has the power to ignore this
mandatory statute is evidenced by the majority opinion in
this case. But whether this Court has the properly
constituted legal authority to ignore mandatory statutes, is
yet another question, and one not answered by the majority
opinion. The Court's perceived expediency problem, caused by
the nonmandatory 60-year prison sentence, should not he the
legal basis for ignoring a mandatory statutory requirement
aimed at fortifying parental rights.
Defendant has been victimized by the judiciary. The
60-year sentence imposed, although lawful., was not mandated
by statute. The trial court could have given a shorter
sentence to defendant. But because the trial court chose, in
its infinite discretion, to impose a long sentence, I fail to
see how a trial court could then use that discretionary act
as the basis for its decision to ignore the statute requiring
the State to set up a treatment plan for the defendant. Yet
that is precisely what the trial court has done and that is
precisely what the majority opinion has approved.
Defendant has been deprived of his parental rights
because he did not plea bargain with the State, and now must
face the consequences of that failure--a 60-year prison
sentence.
By c o n t r a s t , a c o d e f e n d a n t i n t h e c r i m i n a l c a s e , and t h e
mother of the child involved in this case, secured her
chances for a continuing parental rela.tionship by plea
bargaining with t h e S t a t e t o t e s t i f y a g a i n s t t h e defendant.
In helping secure the defendant's conviction, t h e mother,
although she did not r e c e i v e t h e p r e c i s e p l e a bargain t h a t
t h e S t a t e had a g r e e d on (see S t a t e v . Wilkinson (Mont. 1 9 8 4 ) ,
679 P.2d 767, 41 St.Rep. 456), by the light sentence
received, secured her rights to maintain her parental
rel-ationship with t h e c h i l d . The mother s e r v e d o n l y a few
months i n p r i s o n , i s now on p a r o l e , and t h e S t a t e , of c o u r s e ,
s u b m i t t e d a " t r e a t m e n t p l a n " f o r t h e mother which p e r m i t s h e r
t o maintain her p a r e n t a l relationship.
I would r e v e r s e t h e t r i a l c o u r t ' s d e c i s i o n and h o l d a s
section ,
41-3-609 (1) MCA, requires, that a treatment plan
must be provided f o r t h e defendant. Neither t h e D i s t r i c t
C o u r t n o r t h i s C o u r t h a s t h e r i g h t t o d e p r i v e d e f e n d a n t of
his parental rights b e f o r e a t r e a t m e n t p l a n h a s even been
s u b m i t t e d and a d o p t e d .