KO. 01-533 

fN THE SCPKEME C:O11R'T OF TL1E STATE OF h/lO'.:TANA 

.,.~ , .,- $> ,_ , ,.. .'~ t> . ',.a,# 

M.W. AND L.W. 

Youths in Xeed of Care 

APPEAL FROM: District Court of thc Eig\i~eenil~ Judicial District, 

In and for the County of Gallatin, 

The l-lonorahle Mike Salvagni, Judgc presiding. 

For Appellant (Father): 

Jennifer Wendt Rordy, The Angel Lam i ~rm, Bozernan, Montana 

For Kespondenl: 

Hon. Mike McGratli, Attorney General; Micheal S. Wellenstein, 

Assistant Attolney General, Helena, Montana 

Marty Larilben, Gallatin County Attorney: Gary Balaz, Deputy County 

Attorney, Bozernan, Montana 

Submitted 011 Briefs: I>ecemhcr 20. 200! 

Decided June 13. 2002 

Filed: 
Justice Terry X. 'i'riesveiler delivered the C!pinion ofthe Cout-t. 

1 P.W., the fathel- of34.W. and L-iV.; appcais fiom ci~c Findings oEFact, Conclusions 

of Law and Order issued by the 1)istrict Court Lbr the Eighteenth .ludicial District in Gallatin 

County9 which awarded long-term custody of M.W. to the 1)e~artmcnt of Public Health and 

Human Sewices (DPHHS). We affirm the order of the District Court. 

72 The sole issue on appeal is whether P.W. was denied fundamentally fair procedures 

in the proceedings by which the District Court awarded long-term custody of M.W. to 

DPHHS. 

FACTUAL AND PROCEDURAL BACKGROUND 

413 P.W. is the natural father of M.W. and L.W. M.W. mJas born on September 30, 19886. 

L.W. was born on April 16, 1984. P.W. is divorced froin the children's natural mother, R.B., 

who had not seen her children for the nine years prior to these proceedings, and does not 

appeal kom the District Court's order. The children have resided solely with P.W. 

714 DPHHS removedM.W. and L.W. from P.W.'s care on July 19,1999, and placed them 

in protective custody. On July 23, IC)'f9, DPHHS filed apetition for temporary legal custody 

pursuant to $3 41-3-401 and -406. MC'A (1999), based on DPHHS' involvement with the 

children beginning in May of 1995. 'I'he District Court ordered M.W. and L..kV. to remain 

in protective custody pending a hearing set for August 6, 1999. At that hearing, both P.W. 

and R.B. agreed to grant DPft1-IS temporary custody, based on their inability to care for the 

children's special needs. The District Court declared M.W. and L.W. to be youths in need 

of care and granted DPHHS temporary legal custod~ of the cl~~ldren for slr months 
715 On February 4, 2000, DPiiitiS filed a pelition for extensio~i of its temporary legal 

ciistod~ which was set to expire on Febru~ry 6,2000. Neither P.iV. nor R.B. objected, and 

the guardian ad liten? supported the extension. On February 17, 2000> the District Court 

grantcd the extension thr another six months. 

?I6 On September 1,2000, DPI-1HS filed a petition for long-term custody, and requested: 

(1) that a pernlanency hearing be held; (2) that following that hearing, the District Court 

grant DPHHS long-term custody of M.W. and L.W.; and (3) that long-ten custody become 

the permanency plan for the children. DPHHS explained that the children were not ready to 

return to their parents' care based on the severity of their ongoing psychological and 

enlotional problems. 011 Septcmbcr 12; 2000, the District Court ordered temporary legal 

custody to continue "from A~~gust 17, 2000, uiltil the hearing on the [long-term custody] 

petition." The hearing was originally set for November 14,2000, but was reschedttled by the 

District Court for December 4,2000, because of a scheduling conflict. 

'17 At the start of the December 4, 2000, hearing, DPHHS moved for a continuance, 

based on its previous belief that the parents were going to agree to the long-term custody 

petition. Based on that belief, DPHHS did not subpoena the children's therapists as 

witncsses. The basis for DPHFIS' petition for long-tenn custody was not the parents' refusal 

or failure to comply with their treatmentplans, but that pursuant to 9 41 -3-412(6)(c)(ij, kICA 

(I 90C)), the cl~ildren had cmotiona! or mental handicaps so severe that the children could not 

function in a hmily setting. Therefore, testimony from the children's therapists would have 

been neccssary to determine the extent of the children's emotional or mental handicaps. 
"8 P.W. objected to the conllnrrance as highly prejudicial. The District Court denied 

DPHIIS' motion for a continuance, stating: 

[Tlhe Department and the County Attorney's office has had adequate and 

sufficient time to be prepared for the hearing today, There's not been a 

pennaneney plan hearing within the twelve months required by law ifwe have 

to do that. So we're going to proceed. If the Court were to continue this, the 

Co~trt could not hear this case in December, and I'm not certain if the Court 

could hear it in January so we're proceeding. 

DPHHS, therefore, presented its case w~th one ~c~tncss, theState soc~al worker asstgned to 

the casc. The social worker testified that P. W. had completed h~s parenting plan, yet believed 

that neither parent mas capable of providing for the needs of the children. Following the 

social worker's testimony, the DPHHS attorney stated, "1 don't have further questions for Ms. 

Bennett at this time." P.W., in turn, moved to dismiss the petition based on DPHHS' failure 

to meet its burden ofproof. DPHHS argued that it had not rested its case and that given the 

nature of the hearing, the guardian ad litem should be perm~tted to test~fy before any decision 

\vas made. Furthermore, DPkI-lf IS argued that the guard~an's testimonq could be rehed upon 

to satisfy its burden of proof. 

9 The District Court denied P.W.'s motion to dismiss and the guardian was allowed to 

test~fy. The guard~an testified that she had not had any contact with the children directly, nor 

had she spoken directly wth either of the ch~ldren's prlmary therapists. Howe\er, based on 

her contact with P.W., P.W.'s therapist, R.B. by telephone, "the guardian program," the prior 

guardian. and the soclal worker, she recotnmc~idcd that DPHHS be awarded long-term 

custody of both childrcn. 
:;I U P.W, raiscd a hearsay objection because ofthe guardian's lack of direct contact with 

any professional who could prove the children's rnerrtai or- emotional handicaps. The Court 

c\ crr~llcd the objectroo, siatrng. 

Sectior1.11-3-303(3) says that "lnformatjon contained in a report filed by the 

guardian ad litem or testimony regarding a report filed by the guardian ad litem 

is not hearsay when it is used to form the basis of the guardian ad liten?'s 

opinion as to thc best interests of the child." 

71 1 In response: P.W. challenged the constitutionality of 3 41-3-303(3), MCA (1099), as 

a kiolation of his nght to confront the expert wttnesses on mhom the guardlan had based her 

opinions. Gtven the significance of the legal issue, the District Court admitted that the 

constitutional issue would habe to be resolbed before a final dccis~on could be madc. In the 

rnterim, the Drstrict Cout-t heard the guardian's testiinony subject to P.W 's objcctton, and 

reserved its ruhng on the objectron pending further briefing. The guardian's attorney also 

called P.W. as a mitncss. He testified that although h~s children continued to have sebere 

mental and emotiorral problems, he would be able to obtain the prot'essional help required 

to assist his children. 

71 2 During F'. W.'s case-in-chief, P.IV.'s therapist testified that P. W. was capable of caring 

for M.W. in a family setting pursuant to a reunificatiolt plan which she and P.W. had 

debeloped at the social worker's suggestion. At the coticlusion of test~mony, P IV. renewed 

his motion to disn~iss. In ruling on the motion, the District Court eorrsidercd the 

ramifications of its ciccision. The following exchange occurred: 

P.W.'s Counsel: If you recall a year and a half ago when w-e first came, hc 

[P.W.] was willing to submit - he's always wanted their 
[DPLIII-XS] help and their services. i-ie realizes this isn't a 

nornlal fanlily where the kids go off to school, come 

home, eat dinner type of situation. But as rhe Court 

observed and he strongly kels, they have not gotten 

better in a year and a halfof total loss of his control so he 

wants at least some of the control hack. 

Cout-t: I understand that but it's either the Department or no 

P.W.'s Counsel: Based on the fact they didn't present the necessarq 

testimony, yes. 

Court: KO, no, let's set that aside. If the Court dismisses the 

petition, the Department [DPHHS] is out of it: they're out 

of it. 

P.W.'s Counsel: They [P.W.] can provide services without the Court 

inten ention. 

Court: \$'ell, but there's noth~ng that says that they mould. 

P.W.'s Counsel: True. 

Court: ?I hey're [DPHHS] out of it for all pract~eal purposes, 

legal putposes; they're out of rt. .And I'm not hearing hrm 

say that he vvants tltem out of it. 

P.W.'s Counsel: Your Honor, he uould~i't be saying that to tell you the 

truth. 

'The District Court denied P.W.'s renewed motion to dismiss. 'The District Court granted 

fYW. \isitation rights to M.W. in thc form of one telephone call per week and one in-person 

visit every montlt 

:/I 3 The parties briefed the constitutional issue and on Janriary26,2001, the District Court 

issued a Memorandum and Order sustaining P.W.'s objection to the use of the hearsay 

testimony by the guardian. It held that: 
['i'jl~e ianguttgc ufS4 I -3-303(3), which allows the hearsay preseni2ition by the 

guardian ad litcm of what would otherwise be considered expert testimon)!; 

violates Articie 11, Seeti011 24, of the Montana Constitution as that section is 

applied to the objectionable evidence before the Court, in that it is a 

funda~nentally unfiir violation ofa parent's right to confrontation. 

Based on that determination, the District Court ordered: 

Considering that this issue is an issue of first impression and with the 

intent to determine the best interests ofthe youth on the merits of this matter, 

the Depal-tment shall be given another opportunity to present its case to the 

Court. 

'114 A second hearing mas held on February 28.2001. At that hearing, both P.W. and R.B. 

agreed that DPIIHS should have long-term custody of L.W. With respect to M.W., P.W. 

objected to giving DPHHS another opportunity to present its casc whcn it had Fdldtled to 

sustarn its burden of proof at the December 4, 2000, hear~ng. I he Distrtet Court denled 

P.W.'s objection. DPtIHS then called M.W-.Is former and present therapists to testlfy, as well 

as the group home manager of the facility where M.W-. was then residing. On March 28, 

200 1, the District Court entered its Findings of Fact, Conclusions of Law and Order, and 

granted long-term custody of M. W. and L.W. to DPMHS. The District Court concluded that 

M.U7. "cannot function in a family setting residing with his father." The District Court 

allowed P.W. continued visitation. 

'/ 15 On May 24, 2001. P.W. appealed the Dlstrict Court's Find~ngs of Fact, Concl~lsions 

of La~v and Order of Match 28, 2001. and that portlon of the Memorandun1 and Order 

entered January 20,2001. uliere the Distrlct Court ailo~cd DPHHS "another opportun~ik to 

present its casc." 
SIANl),AR.D OF REVIEW 

71 16 WC review i. adistrict court's conclusions of law to dcterminc whether tliey arc correct. 

i\4cirteu of D.li (19941, 26.1 Vlont. 521, 525. 872 P.2d 803, 805. This Court has recognized 

that "a natural parent's right to rare and c~~stody of a child is a funda~~~cntal liberty interest, 

which must be protected by furtdanrentally fair proccdures." Matter ofli.H. (19881, 217 

Mont. 90, 103, 703 P.2d 846, 848. 

"17 Furthemlore, whet1 determining custody, the district court is "bound to give primary 

considcration to the physical, mental, and emotional conditions and needs of the children." 

~bfatter 0fC.M. (1997), 281 Mont. 183, 187,932 P.2d 1063, 1066. The best interests of the 

child are paramount in child custody cases arid must take prcccdence over parcntal rights. 

C.,\f,, 281 Mont. at 187, 032 P.2d at 1066; Mcirter ofH.iV. (1990), 245 Mont. 51 I, 517-IS? 

802 P.2d 1244, 1248. 

DISCUSSION 

2 18 The sole issue on appeal is whether P.UT. was denied fundamentally fair procedures 

in the proceedings by which the District Court awarded long-tern1 custody of M.W. to 

DPIIHS. 

0 To begin, we should note that although P.CV. originally challenged DPI1HS' pctition 

for loftg-tern1 custody with rcspect to both M.U . and L.W., mc Interpret thts appeal as related 

ttl~iy to M.LV. At the February 28.2001, hearing, P W. conccdcd that DPJ-JHS should hale 

long-term custody of l..llr Furthermore, at the concluston of P.W.'s br~cf filed for thrs 

appcal. P W. requests th~s Court to "rcberse the distr~ct court's grant of long term custody of 
M.W. to the Oepartrncnt of 13ublic Health and fluman Services," Accordingly, we will !!mil 

our review to kf.W 

#2O P.Lt', alleges that lie aas denled filndamentally fa11 procedures III ti\e areas. 

Specifically, P tl: contends tliat, (1) the D~stnct Court failed to hold a permanency plan 

hearing uithln the statutory deadline, (2) DPHHS failed to submit a statutorily-required prehearing report to the District Court; (3) DPHHS failed to develop a plan with any elements 

of pernlanc~icy; (4) DPI-LIIS tried to terminate P.W.'s parental rtgllts without satisfying the 

requisite statutoryerttena and burden ofproof; and (5) the D~striet Court enoneously granted 

DPHHS a second chance to prove its ease. We will address each claim in turn. 

2 P.W. first eolitends that tlie District Court Failed to hold a permanency plan hearing 

within the statutory deadline. Section 41-3-41 2(1), MCA (1 999), provided in pertinent part: 

A permanency plan hearing must be held by the court no later than 12 

months after the initial court finding that the child has been subjected to abuse 

or neglect or 12 months after the child's first 60 days of removal from the 

home, whichever comes first; unless thc proceeding has bcen dismissed, the 

child was not removed from the home, or the child has been returned to the 

child's parent or guardian. 

On July 19, 1999, M.L\i. mas removed from the home of P.W. On July 23,1999, the District 

Court found probable cause to belleve that .V.\V. had been abused or neglected or Lcas in 

danger ofbelng abused or neglected. Tliercfore, by law, the perinanencj plan hearing sl~ould 

have occurred prior to July 23,2000. On September 1, 20001 IIPf~iEIS petitioned the District 

Court to schedule a permanency plan hearing, and award long-term custody.' The D~str~ct 

' However, P.W. did not file a motion to disniiss based on DPHHS' failure to timcly 

file the petition for long-tcnn custody. In Appellant's hricl; P.Lt'. concedes, "P.W. did not raise 
C:ou~-r set a Ilearing datc for November 14> 200O7 and subsequentiy rcscheduied that hearing 

for Dcceinbcr 4; 2000. 'Ihereforc. it is undisputed that rhc permanency plan hearing in rllis 

case occurred after the statutory deadline. 

722 P.W. now contends that the District Court's failure to hold a timely permanency plan 

hearing deprived him of a fundamentally fair procedure. f-lo\vever, before making that 

argument to this Court. it was necessary that he make the same argument to the District Court 

as well as advise the District Court of the appropriate remedy. P.W. failed to do so. 

7\23 Prior to the hearing, in his Proposed Findings of Fact, Conclusions of Law, and Order 

filed on December 1, 2000, P.LV. statcd in a proposed conclusion of Ian: 

Section 41 -3-4 12(1), MCA, requires the Courl to conduct a permanency 

plan hearing no later than 12 months after its initial finding that a child is 

abused or neglected, or 14 months after a child has been removed, whieltever 

comes first. Neither of these deadlines was met in this case. 

However, P.W. dtd not suggest to the Dlstrict Court that it was without authority to proceed 

for that reason and did not request dismissal of the petition. Objections primarily serve two 

purposes: (1) to give the district court an opportunity to correct the problem and (2) to 

preserve the issue for appeal. State v. Bird, 2001 MT 2,7 54, 308 Mont. 75, Ti 54, 43 P.3d 

260,E 54. P.W.'s proposed conclusion merely brought the problem to the District Court's 

attention. It made no suggestion holv to correct the problem. Therefore: the proposed 

conelt~sion of law did not, by itsel6 constitute a proper objection. 

the Department's untimeliness in filing the petition as grounds to dismiss the proceeding in the 

court below, and is not now asking this Court to do so on that basis." 

I0 
42-4 1 nest contends that he uas denled a tundamentally Ta~r procedure =11cn IIPHHS 

tBllcd to subrnrt the statutoniy-rcqu~red prc-hear~ng rcporr at least thrce days prior to the 

p:rn:"'ancncy plan hearmg. Sect~on 41 -3-412(2), klCA (1999 ), pro\ lded: 

(2j At least 3 days prior to the permanency plan hearing, the department 

and the guardian ad litem shall each sublitit a report regarding the child to the 

court for review. The report must contain the: 

(a) efforts and progress demonstrated by the child's parent or guardian 

to complete a treatment plan; 

(b) extent to which the parent or guardian cooperated and used the 

services provided; 

(c) status of the child. including tlie child's mental, physical, and 

psychological health; and 

(d) plan for permanency for the child, including specific times for 

achieving the plan. 

725 It is undisputed that DPL-IIIS failed to submit the required pre-hearing rcport. 

ttone\er, l~ke the D~strict Court's fallure to hold a ttmely permanency plan hearmg. P.W. 

failed to properly object to UPHIIS' course of conduct either at the hearing or in a prehearing 

motlon. At the heartng, the Dlstrict Court qncstloned DPHHS about the absence of the 

report: 

Court: You're pctitioning the Court to develop a permanency plan, 

however, there was no permanency plan and now I'm talking 

about this case. Where is the report regarding the child for the 

Court to review with respect to a permanency plan? Where is 

the report, The statute requires the Lkpartment to do that. 

DPHHS: Yes, it does 

Court: 1C'here is that? 

DPHHS: One has not been done 

Court: It should have been done at least three days before today. 
DPIIHS: Ycc. Thatagain is something that i should have reminded rl-rem 

to do because I read the same statute. 

Desprte the fact that the C'ot!r& ra~siid the issue and LlI'HIiS acknumledged ~ts error, P.\V 

fiiilcd to state an objection at that time and demonstrate or ever1 allcgc resulting prejudice. 

*26 As with the timeliness of the hearing, P.W. did raise the issue as a proposed 

conclusion of law in his Proposed Findings of Fact, Conclusions of Law, and Order. stating: 

Sectioi141-3-412(2), MCA, requires both the Department and the guardian ad 

litem to each submit a report to the Court at least 3 days before the hearing. 

The Department and guardian both failed to do so. 

However, once again, no specitic relief was requested and, as before, we conclude that thc 

proposed conclusion was an insufficient objection by which to preserve this issue for appeal. 

'j27 The third alleged denial of a funda~nentally fair procedure was DPHHS' Failure to 

develop a plan with any elements of per~llanency that would enable M.W. to move toward 

a settled placement. P.W. complains of the frequency with which M.W. was transferred 

between treatment facilities and the inability of IlPHFiS to "stick to a plan of actioi~." 

DPHHS, on the other hand, contends that M.W.'s niovemetllbetween treatment facilities was 

first and foremost in response to his best interests and to treat his severe emotional and 

behavioral needs. In addition, DPIII-1S notes that it is sometinles difficult to place children 

due to waiting lists that exist at various treatment facilities. 

1/28 We cortclude there was substantial evidence that M.LV. has reasonably progressed 

toward a settled placement. M.LV. was initially placed at Billings Deaconess Clinic. On 

August 16, 1999, ltc was admitted into Cltildren's Comprehensive Service (CCS) in Butte, 
Montarra. Dr. Jeffrey CVatson. a licensed protessionai counscior at C'CS, testified that M.W. 

had improvcd during his stay at CCS and was now less aggressive. On December 22,2000, 

hI.LV. was rnoved to Skyview Group Home in Missoula, Montana. Bret Gilleo, M.W.'s 

Skyvieu therapist, testified of b1.W.'~ progress. stating, "[Illis behaviors arc not as severe as 

they were when lie first came in and he's only bee11 thcre a little over two months and staff 

have been able to redircct hirn a little better. They're finding some of the cause for [M.W.'s] 

problcrns and some of the things that work well with him to help him redirect." When asked 

to give an estimate as to how much longer M.W. would need specialized care, Gilleo 

estimated that it would take from a year to a year and a half at a minimum. Finally, the 

Citizcn's Review Board, a citizen board ofthc Eightecnth Judicial District, found that M.W.'s 

placement at Skyview was the "safest, most appropriate and least restrictive" placement and 

that "progress has been made toward achieving permancney." Given the substantial evidence 

in tlic record and our recognition that it often takes multiple facilities and a hit of trial-anderror to find the appropriate treatment facility, we agree that M.W. has madc reasonable 

progress toward a settled placement. 

'129 P.W. next contends that because [>PI-IHS repeatedly disallowed contact between P. W, 

and Lf.W., it attempted to terminate P.LV.'s parental rights without adequate grounds and 

without meeting the necessary burden of proof. From June until Septeniber 2000, DPHHS 

worked toward reunification of M.W. and P.W., and trrgcd libcral visitation. P.W. and his 

ihcrapist, with the social worker's approval and input, developed a plan for M.W.'s return 

home. Howcver, after L)PHftS filed the petitio~l for long-te~m custody on September 1. 
2000, DPtiHS refused to perinit contact between P.W. and M.W., based on the 

recn~ninendations of "tl, W.'s CC'S trcatmcnt team which observed marked progress in Rl.LV.'s 

therapy when he had no contact with P.\Y. and regression follobvi~ig contact. 

4130 Whether therc was any merit to DPHHS' actions M-ith respect to terminating visitation 

followi~ig September 1,2000. however, is moot based on the District Court's reinstatement 

of visitation at the December 4, 2000, hearing. Where this Court can no longer grant 

effective relief, the issue is moot. Slirzmrock ~Vtotors, Ittc. v. Ford Motor Co., 1999 MT 2 1, 

ri 10,203 Mont. 188, !/ 19, 974 P.2d 1150, 10, Accordingly, we move to the next issue. 

*I31 P.U7. claims that he was denied a fundamentally fair procedure when the District 

Court allowed DPtiEiS a second opportunity at the Fcbruary 28,2001, hearing to prove that 

M.W. had severe mental and emotional handicaps which required long-tenn custody with 

DPtIHS. P.W. contends that DPHHS sought to repeatedly litigate the issue, "until it could 

get its act together sufficiently to support its allegations." Because DPHHS failed to present 

any evidence that supported long-term custody at the first hearing and failed to meet its 

burden, P.W. contends that the petition should have been dismissed. 

732 We disagree. At the December 4,2000, hearing, P.W. objectedto the constitutionality 

of S 41-3-303(3), MCA, based on its violation of his right to confront certain experts whose 

statements were influential in forming the basis ibr the guardian's recornmcndations 

regarding the children. The District Court reservcd ruling on f'.\V.'s objection until after the 

parties briefed the issue, but allowed the guardian to testify in the interim. Subsequently, the 
District Court sustained P.W.'s objection: and i~eld that the guardian's report and icsiirilony 

violated P.lV.'s right to confrontation. The District Court then held: 

Considering that this is an issue of first impression and with the intent to 

detcmine the best intercs& of the youths orr the merits of this matter, the 

Llepartment shall be given another opportunity to present its case to the Court. 

second hearing was then set for February 28.2001 

733 At the February 28,2001, hearing, P.W. v as pro\ ided the opportrrn~ty to confront and 

cross-examine kf.W.'s therapists. We agrec with the District Court that a dismissal of the 

petition after the December 3, 2000, hearing, and after the District Court sustained P.W.'s 

objection, would have required that the Court overlook the best interests of the child. While 

fundamentally fair procedures are guaranteed, a district court has a corresponding duty to 

consider the best ~nterests of the ch~ld. Substantla1 evidence ill thc record extstcd to shou 

that M. W. continued to suffer both emotionally and mentally. P.W. h~mself admltted that he 

alone \vas not capable ofdealing with his children's needs. Furthermore, aside from the fact 

that substantix evidence was offered directly which had previously been offered indirectly 

but then excluded, prejudice to P.W. has not been demonstrated. Since it mas P.W. who 

objected to the form of the evidence as first offered and since it was originally offered in a 

form authorized by statute, we conclude that k1.W.'~ best interests were paramount. 

$94 For the forego~ng reasons, %%c affirm the judgment of the Distrlct Court 
We Concur: