No. 88-571
IN T'HE SUPREME: COURT OF ?'HE STATE OF MONTANA
1990
I N THE: MATTFlK OF DECLARING
S . P . , C.P., H.M., J.M., K.M.,
Y.M., Youths in need of care.
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APPEAL FROM: District Court of the Fourth Judicial District,':,. C,
In and for the County of Missoula, t
The Honorable James B. Wheelis, Judge presiding. N 2
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COUNSEL OF RECORD: -
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For Appellant: u-'
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James P. O'Brien, (C.M.-Natural Father) , ~is&ula,
Montana
Christopher Daly, (B.N.-Grandmother), Missoula, Montana
For Respondent:
Kon. Marc Racicot, Attorney General; Kathy Seeley,
Asst. Atty. General, Helena, Montana
Robert I,. Deschamps, 111, County Attorney; Diane
Conner, Deputy, Missoula, Montana
William Boggs, (Guardian Ad Litem), Missoula, Montana
Kristine Davenport, (Intervenors J.K. & N.K.), Missoula,
Montana
Paulette Ferguson, (J.R.-Grandmother), Missoula, Montana
Morgan Modine, (Intervenor J.S.), Missoula, Montana
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Submitted: December 1, 1989
Decided: February 1, 1990
Fi.led :
Justice John Conway Harrison delivered the Opinion of the Court.
This matter comes to us on appeal from a Missoula County
District Court decision in which the parental rights of the natural
father, C.M. were terminated. After finding H.M., J.M., Y.M., and
K.M., youths in need of care, Judge Wheelis in his August 31, 1988
order, declared the parent-child relationship between C.M. and his
four small children terminated, awarding permanent custody to the
Department of Family Services (Department). The children were
ordered permanently placed with foster parents J.K. and N.K. The
Department, in consultation with the Ks and the children's Guardian
Ad Litem, was granted the right to supervise or restrict contact
between the children and C.M. and other relatives.
The maternal grandmother, B.N., also appeals the District
Court order. She alleges that the District Court abused its
discretion when it awarded permanent custody to the Ks rather than
herself.
We find the District Court's order to be in the best interests
of the children and, therefore, we affirm.
C.M., the natural father, presents two issues:
1. Did the District Court have subject matter
jurisdiction to declare the M children
dependent youths within the meaning of
Montana's child abuse, neglect and dependency
statutes?
2. Do the best interests of the M children
require termination of C.M.'s parental rights?
B.N., the maternal grandmother, presents three additional
issues:
1. Did the District Court abuse its
discretion in not awarding permanent custody
to the maternal grandmother?
2. Should 5 41-3-406, MCA, be interpreted to
give relatives priority over non-relatives in
custody proceedings?
3. Does permanent placement with concomitant
governmental support of the Ks as foster
parents violate the First Amendment to the
United States Constitution?
The natural mother, D l was first married to J.P., by whom she
had a daughter, S.P. and a son, C.P. After divorcing her first
husband, D married C.M. and the couple had the four children at
issue in this case: H.M., J.M., Y .M. and K.M. During this marriage
C.M. was convicted of sexually abusing D's daughter from her first
marriage. C.M. served over two years in the Oregon State
Penitentiary for that crime. D subsequently divorced C.M. and
began living with J.S. It is not clear from the record whether D
and J.S. were actually married.
J.S. and D and her six children from her two previous
marriages eventually moved to iss sou la, Montana. On or about
October 24, 1986, D was killed and J.S. later confessed to
murdering her.
The State, through the Department, placed the four M children
in a Missoula receiving home since their natural father was in
prison, their natural mother was dead, and their stepfather had
confessed to murdering her. The two older children, S.P. and C.P.,
were eventually returned to their natural father, J.P., in
California.
As is the normal procedure, the Department began legal
proceedings to obtain temporary investigatory authority (TIA) and
protective services. At the first hearing held in mid-November,
1986, the Department orally moved to amend the TIA, asking that the
children be declared youths in need of care and that the Department
be given temporary legal custody. Several parties were
represented: Montana Social and Rehabilitative Services (of which
the newly-named Department of Family Services is now a part)
requested temporary investigative authority for the purpose of
determining immediate temporary disposition and eventual permanent
placement of the four M children; an attorney acting as the
children's Guardian Ad Litem; B.N., the maternal grandmother from
Arkansas requesting custody of the four M children; J.K. and N.K.,
of Florence, Montana, interested parties and friends of the
deceased mother, D l requesting custody of the four M children;
J.S.R., C.M.'s mother and the children's paternal grandmother from
Missouri, also requesting custody; C.M., the children's natural
father who came from Oregon to ensure his parental rights
continued; and J.S., the stepfather. Later, D's sister and the
children's aunt, J.R., also sought custody, but eventually joined
in asking that her mother, B.N. (maternal grandmother), be given
the children.
Following the November 1986 hearing, Judge Wheelis declared
the four M children to be youths in need of care and temporarily
placed the children with the Ks.
On August 18 and November 13, 1987, the court held a separate
hearing in order to put a treatment plan in place for C.M. In
accordance with Part 6, Chapter 3 of Title 41, regarding
termination of the parent-child legal relationship, the treatment
plan for C.M. was approved by the court. C.M. began but did not
finish Phase I of the treatment plan.
After the final hearing held in June and July of 1988,
permanent custody of the children was given to the Department,
permanent placement granted to the Ks, and C.M.Is parental rights
terminated in an August 1988 order. These determinations resulted
from five days of hearings with testimony from many witnesses,
ranging from medical experts to the parties themselves, and a
plethora of exhibits.
Of the several parties only two appeal. C.M. appeals that
part of the order terminating his parental rights and the maternal
grandmother appeals the fact she was awarded neither permanent
custody nor permanent placement of the children. Additional facts
will be discussed as necessary.
STANDARD OF REVIEW
The same standard of review applies to both termination of
parental rights and custodial determinations. In both instances
the District Court1s decision is afforded I1all reasonable
presumptions as to the correctness of the determination1' and
therefore such decision will not be disturbed on appeal I1unless
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.It In the Matter of R.A.D. (Mont. 1988), 753 P.2d
862, 865, 45 St.Rep. 496, 499.
Thus, regarding both C.M.'s parental rights' claims and the
maternal grandmother's custody objections, we apply the same
standard of review. That is, we presume the District Court's
determinations on both matters to be correct, unless such
determinations are not supported by credible evidence.
ISSUE I: Subject matter jurisdiction
C.M. contends that the District Court did not have subject
matter jurisdiction to declare the M children dependent youths
within the meaning of the child abuse, neglect and dependency
statutes. These statutes are found in Chapter 3 of Title 41, MCA.
C.M. bases his argument on the fact that certain procedural
irregularities occurred. Initially, C.M. appeared pro se, and the
District Court denied his request for a court-appointed attorney.
At this preliminary hearing held November 14 through November 19,
1986, the Department requested temporary investigative authority
and a determination of temporary disposition of the M children.
On the second day of the November, 1986, hearings, the District
Court permitted the Department to amend the pleadings. The
amendments asked that the M children be declared youths in need of
care under § 41-3-102(10), MCA, and that the Department be granted
temporary legal custody of the children. At that time no objection
was made and the court granted the amendments.
On the third day of the hearing C.M. acknowledged that the
court had authorized an attorney to help prosecute the case.
However, the attorney refused to be entered as attorney of record
since two days of testimony had already taken place. On his own,
C.M. made two objections stating, "[I] understand that there would
have been a question of personal judgment, parental jurisdiction,
that I have raised in this matter if I would have known of it --
if I would have known or if I would have had an attorney. The
second matter of question is of service and time." C.M. objected
to the lack of personal service he received and the fact that he
had only four days rather than five to appear and respond.
The court treated C.M. Is objections as a motion to stay
proceedings and refused it. Testimony continued. The result of
the hearing was that the M children were declared youths in need
of care and temporarily placed with the Ks, with temporary custody
vested in the Department. The Department received temporary
investigative authority, and C.M. was granted limited contact with
the children subject to the Department1s supervision and
restrictions.
Another hearing was held on August 17, 1987 in which the
Departmentbroughttwo motions, one seeking approval of a treatment
plan for C.M. and a second for change in custody. C.M. was
represented by counsel at this juncture. The hearing was continued
until November 13, 1987. When asked if he would continue to seek
custody of his children, C.M. replied :
I have to answer this very honestly. I think
until I go through this program and I get the
psychiatric treatment which I need, I donlt
know that the children being with me
permanently is any answer right now. They are
loved. They are taken care of. They are
disciplined. They have a home environment
[with their foster parents].
Although C.Metssubject matter jurisdiction argument is hard
to follow, he seems to base his claim on two allegations. First,
the State's service on him was defective and resulted in improper
notice. Second, by allowing the Department to orally amend their
pleadings, the District Court was deprived of subject matter
jurisdiction.
We first examine the question of service. According to his
own testimony, C.M. was personally sewed in Oregon by his parole
officer. Under the Montana Rules of Civil Procedure this is a
perfectly acceptable means of obtaining out-of-state personal
service. Rule 4D (3), M.R.Civ.P., provides that service on a
person outside this State may be made in the manner provided for
service within the State. Rule 4D (l)(a) provides that such
service be made by any "person over the age of 18 not a party to
the action." C.M.Is parole officer who made the service is over
18 and not a party to the action. Service of process is
sufficient.
C.M.'s complaint that the service did not allow him the five
dayst notice to which he was entitled has little merit. The show
cause order was sewed on C.M. on Friday, November 7, 1986, and the
show cause hearing was set for November 14, 1986. Because Tuesday,
November 11, 1986 was a legal holiday, C.M. did not receive five
days1 notice of the hearing on the abuse, neglect or dependency
petition as required by 5 41-3-401(4), MCA. While it is true C.M.
received one day less than the statutorily required notice, he was
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not substantially harmed by the error. This is evidenced by the
fact that he was able to attend the hearing and represent his
interests there.
This Court has previously refused to overturn a judgment where
failure to give proper notice did not prejudice the appealing
party. See ~illiams Superior Homes, Inc. (1966), 148 Mont. 38,
v.
417 P.2d 92. ~bviously,C.M. was not prejudiced by receiving four
rather than five days' notice. I1[L]ack of notice does not
automatically entitle a party to relief, but is a consideration to
be weighed by the court in exercising its discretion.'' In re
Marriage of Neneman (1985), 217 Mont. 155, 160, 703 P.2d 164, 167.
In addition, this was a temporary custody hearing not the
final permanent custody hearing. Such procedural defects in a
temporary custody hearing do not invalidate subsequent permanent
legal custody proceedings. Matter of M. E .M. (1984), 209 Mont . 192,
196, 679 P.2d 1241, 1243.
Turning to the issue of the oral amendments, we find
appellant's argument to be completely without merit. Again, C.M.Is
argument lacks clarity. Rather than restating C.M.'s indiscernible
allegations regarding lack of subject matter jurisdiction caused
by the court's allowing oral amendments to the petition, suffice
it to say we find that the District Court followed the statutory
scheme. By following the statutory scheme, the court did properly
obtain subject matter jurisdiction and such jurisdiction did
continue throughout the proceedings.
This action was originally filed on October 21, 1986, as a
Petition for Temporary ~nvestigative Authority and Protective
services under the provisions of Chapter 3, Title 41, MCA. The
petition was brought by the Missoula County Attorney's office and
stated, in compliance with 3 41-3-401, MCA, the four children were
abused, neglected or dependent or in danger of becoming abused,
neglected or dependent. The petition was supported by an affidavit
sworn by a social worker from the Missoula County Office of Human
Services and a Report to the Court containing pertinent
information, including the full names, ages and addresses of the
children and the names and addresses of their parents; the names
and addresses of all persons who were necessary parties to the
action along with their relationships to said children; and the
nature of the alleged abuse, neglect or dependency. This conforms
to the requirements of 3 41-3-401(9), MCA, as the two accompanying
documents were incorporated by reference into the petition. The
petition asked for temporary investigative authority and protective
services of the Department, that the court order a show cause
hearing, that a guardian ad litem be appointed for the children,
and any other relief the court might in its discretion order.
Section 41-3-401(10), MCA.
Upon receipt of the petition Judge Wheelis, acting in
accordance with S 41-3-401(2), MCA, set a date for an adjudicatory
hearing on the petition. The hearing, labeled a show cause
hearing, was set for Friday, November 14, 1986. This was within
the mandatory twenty days as prescribed by the section at that
time. (The requirement that an adjudicatory hearing be held within
twenty days of filing of the petition has since been amended out
of 5 41-3-401 (2), MCA. )
As discussed above, C.M., as a parent, received notice of the
hearing, albeit only four days1 notice, in accordance with § 41-
3-401(4), MCA. At the same time the petition was filed, the date
for the adjudicatory hearing was set and notice was sent to C.M.,
thus meeting all pertinent provisions of § 41-3-401, MCA.
Section 41-3-402, (1985) MCA, which dovetails with 5 -401,
sets out the criteria for a petition for temporary investigative
authority and protective services. Again, all provisions of 5 41-
3-402, MCA, were met: the county attorney filed a petition for
temporary investigative authority and protective services
(subsection (1)); the petition specifically stated the authority
requested and the facts establishing probable cause were set out
(subsection (2)) ; and the petition was supported by the above-
mentioned Report to the Court (subsection (3)).
Upon the Missoula County Attorney's filing of the petition for
temporary investigative authority and protective services, the
Missoula District Court issued an order granting the relief
necessary for immediate protection of the M children, in accordance
with the provisions of 541-3-403 (1)(a), MCA. The order provided
for a show cause hearing within twenty days, as required by 841-
3-403 (1)(c), MCA, and was served in accordance with 541-3-
403 (1)(b), MCA. Furthermore, the court granted relief in
substantially the same form as provided for in subsection (2) of
5 41-3-403, MCA, thus meeting all requirements of the statute.
Obviously, both the County Attorney and the District Court adhered
very closely to the law in presenting the petition and issuing the
order.
On November 14-19, 1986, the adjudicatory hearing was held,
resulting in temporary disposition of the children to the Ks.
Again, the provisions of the statute controlling such proceedings,
5 41-3-404, were strictly followed.
On the second day of this hearing the county attorney moved
to orally amend the petition, asking that the M children be
declared youths in need of care as dependent youths under 5 41-3-
102(10), MCA, and that the Department be granted temporary custody
of the children. No objections being heard at the time, the judge
granted the motion to amend. At the conclusion of the hearing,
both requests in the motion were granted by Judge Wheelis.
Eleven months later, C.M. moved for a new trial, or, in the
alternative, that Judge Wheelis' December 15, 1986 ind dings of Fact
and ~onclusionsof Law be amended, striking all references to the
children as dependent youths. C.M. argued then, as he does now,
that the petition for temporary investigative authority and
protective services does not contemplate or provide for
adjudication of allegedly abused, neglected or dependent children,
and by allowing the two above-mentioned oral amendments the
District Court somehow did not have subject matter jurisdiction.
Now, as then, the argument's logic fails.
Section 41-3-401(11), MCA, clearly states that abuse, neglect
and dependency petitions ''may be modified for different relief
any time within the discretion of the Court." (Emphasis added.)
In allowing the oral modification of the petition, the court
properly availed itself of the discretion granted by the statute.
Moreover, Rule 15 (b), M.R. Civ.P., allows amendments of the
pleadings to conform to the evidence, and Montana case law supports
this rule. This Court has upheld amendments made on the day of
trial and even during trial. See, for example, Kearns v. McIntyre
construction Co. (1977), 173 Mont. 239, 567 P.2d 433 and Keaster
v. ~ o z i k(1981), 191 Mont. 293, 623 P.2d 1376.
C.M. Is claim that by allowing the oral amendments the court
deprived him of his right to demand that the State prove by clear
and convincing evidence that the children were abused, neglected
or dependent is completely without merit. The oral amendments did
not prejudice C.M.: the Department's theory was not changed, the
facts noticed in the pleading were not changed, and the type of
relief requested did not change. It must be remembered that this
was only the adjudicatory hearing. For the children's well-being
it was essential that the court make a temporary disposition as
quickly as possible. By going ahead with the hearing on the
petition as orally modified the court was able to act in the best
interests of the children. Final dispositional hearing was not
held until June 27, 1988, over a year and half after the
adjudicatory hearing, giving C.M. ample time to dispute and present
evidence that his children were abused, neglected or dependent.
The record is replete with evidence that the children were
indeed abused, neglected and dependent within the clear meaning of
the statute. C.M. himself testified at the final dispositional
hearing that he favored permanent legal custody with the Ks. There
is no reason to believe that the trial court abused its discretion
and the orders issued in this case will stand.
ISSUE 11: ~erminationof C.M.'s Parental Rights
C.M. argues that the best interests of the children do not
require termination of his parental rights. In support of this
argument C.M. points to limited instances in the transcript where
the foster mother testified she would have no objection to C.M.
having supervised contact and a psychologist testified that some
contact between the children and their natural father would pose
little risk to the children.
However, the child psychologist who counseled the four M
children recommended no visitation between C.M. and the children.
The child psychologist stated that terminating C.M.'s rights would
help the children and it would be in their best interests to allow
the Ks to adopt them. C.M.'s evaluating psychologist also stated
terminating C.M.'s parental rights may, in the long run, be
beneficial to C.M.
Once again there is substantial, credible evidence to support
the District Court's finding of fact that it is in the children's
best interests that C.M. not have the right to visit or contact the
children. Therefore, we will not overturn the decision on appeal.
ISSUE 111: Not Awarding Custody to the Maternal
Grandmother and Status of the Current Law
B.N., the maternal grandmother, argues that the ~istrictCourt
abused its discretion by not awarding her permanent custody of the
children. B.N. asserts that the District Court's findings of fact
on this issue are clearly erroneous because the findings concerning
her were based almost solely on the opinions of a witness who had
no firsthand knowledge of B.N. and who admitted she relied almost
totally on the "bad pressu reported by B.N. 's adversaries. We find
this assertion to be totally without foundation.
Contrary to B.N.'s allegations, most of the District Court's
findings pertaining to her were established by her own testimony,
not by the expert she claims the court relied on almost
exclusively. B.N. herself testified that she is 65 years old,
divorced and diabetic; that she completed only the 8th grade in
school with some additional training later in life; and that each
of her nine children quit school before graduating and that several
left home before age sixteen. Other of the District Court's
findings of fact were established by other witnesses. For example,
B.N.'s failure to keep promises and making inappropriate comments
to the children was testified to by N.K., the children's foster
mother.
Again, there was substantial credible evidence to support the
District Court's findings that it was in the best interests of the
children to place them with the Ks rather than the maternal
grandmother. There is no abuse of discretion.
B.N. next argues that the current law not giving relatives
priority over nonrelatives should be reversed. The controlling
statute in this matter states that following the dispositional
hearing the court may I1[t]ransfer legal custody to . . . a relative
or any other individual who . . . is found by the court to be
qualified to receive and care for the youth ... Section 41-
3-406, MCA.
This Court has often upheld custody given to nonrelatives over
relatives, and in all cases, the paramount consideration is the
best interests of the children. Matter of M.N. (1982), 199 Mont.
407, 410, 649 P.2d 749, 751, and cases cited therein. Moreover,
I1[A] grandmother does not, by virtue of her status as a
grandparent, have any superior right of adoption or custody to that
of a nonrelative.I1 Matter of M.N., 199 Mont. at 409, 649 P.2d at
750.
Appellant B.N. is asking us to overrule our previous line of
cases and to assume the legislative function of rewriting the
statute. We will do neither. section 41-3-406, MCA, and the cases
interpreting it are good law. As noted in Matter of M.N., the
section is not mandatory but gives discretion to the district court
whether to award custody to a relative. Matter of M.N., 199 Mont.
at 410, 649 P.2d at 751.
ISSUE IV: Placement of the children with
Christian Foster Parents
Lastly, B.N. contends by placing the children with the Ks, who
maintain their own ministry, the State violated the establishment
clause of the First Amendment prohibiting government support of
religion. As with her other arguments, B.N. Is position is
untenable.
The United States Supreme Court set forth the standard to
determine whether state aid constitutes the establishment of
religion in Lemon v. Kurtzman (1971), 403 U.S. 602, 91 S.Ct. 2105,
29 L.Ed.2d 745. According to the three-prong test delineated in
Lemon, state aid is constitutional if: (1) it has a secular
purpose, (2) its primary effect neither advances nor inhibits
religion, and (3) it does not foster excessive government
entanglement in religion. Lemon, at 612-13, 91 S.Ct. at 2111, 29
L.Ed.2d at 755.
Here, the aid provided to the Ks for foster care meets all
three requirements of the Lemon test. First, its purpose, to
provide parental care for the M children is clearly secular.
Second, the primary effect of the foster care placement and
attendant payments is that the children now have a safe, loving
and secure home and parents, which does not advance nor inhibit
religion. Third, the placement and payments do not excessively
entangle the State in religion. As the Department's social worker
testified, the State makes foster care payments to foster parents
to reimburse their expenses. Foster parents, whether ministers or
not, may then do as they wish with that money and do not have to
account for the money. Placement with and payment to the Ks for
foster care of the four M children in no way violates the First
Amendment.
We affirm the decision of the District Court.
We c o n c u r :