No. 14286 

### IN

### THE SUPREME (BURT OF THE STATE OF MONTANA 1978



### INTHEMATTER OFDMILARING T.E.R. Youth in Need of Care.

Appeal fram: District

### Court of the Tenth JudicialDistrict, Honorable 

### LRRoy L. McKimn, Judge presiding. Counsel of mrd: For Appellant: William E. Berger argued, Lewistown, Montana For Respondent: Hon. Mike Greely, Attorney General, Helena, Montana WilliamSpoja, 

### Jr.

## ,CountyAttorney, Ledstawn, I%ntana Timothy O'Hare, Deputy 

### CountyAttorney, argued, Lewistown,

Montana K. MbertFoster argued, Lewistown, Montana



## PFp 979 Filed: Skmitted: November 

### 21, 1978 Decided: 

## FEi3i,

# *79'79

### Mr. Justice John Conway Harrison delivered the Opinion of the Court.

This is an appeal by the parents of a minor child from

a judgment and order entered October 17, 1977, in the Youth Court of the Tenth Judicial District, Fergus County, the Honorable LeRoy L. McKinnon presiding. The judgment declared T.E.R. tobe a Youth inNeed of Care and awarded permanent custody of T.E.R. to the Department of Social and Rehabilitation Services of the Stateof Montana (SRS) with authority to consent to her adoption. On October 29, 1975, James Longin, the principal at T.E.R.'s school, notified Roberta Knopp, a child welfare caseworker, that T.E.R. might be the victim of child abuse. Subsequent toher investigation, Ms. Knopp offered "protective services" which consisted of regular visits to the child's home. Over the course of the next year and a half, shemaintained contactwith T.E.R., noticing, on occasion,

a number of bruises which she suspected tobe the result of

some abuse. Among other things, testimony indicated that T.E.R. is bright for her age but not

### well adjusted. In February 1977, shortly before her twelfth birthday and while attending the fourth grade, she exhibited this poor adjustment by damaging two ceiling tiles ina restroom ather school. The school's principal, who had been working with T.E.R. and her parents periodically for two years, wrote her parents detailing the incident and suggested certain changes in their treatment of T.E.R.A few weeks after this incident, Ms. Knopp placed T.E.R. in 24 hour day care because her stepfather had been hospitalized and her mother was working outside the home ata job which required her presence 24 hours each day. After
a month had passed under this arrangement, Ms. Knopp told T.E.R. that shewould be taking her back home shortly. T.E.R. reacted tothis suggestionwith some alarm and, after

some prodding, told Ms. Knopp of recent incidents of sexual abuse by her stepfather. The incidents had allegedly increased infrequency since her mother had taken the job which kept her away from the family home. On Monday, April 15, 1977, two days after their talk, Ms. Knopp took T.E.R. to a doctor who performed a pelvic examination. The doctor told Ms. Knopp that therewas evidence of sexual contact and Ms. Knopp immediately placed T.E.R. ina foster home inHarlowton, Montana. One week later, on Monday, April 22, 1977, the deputy county attorney forFergus County, filed a petition foryouth hearing, alleging that

### T.E.R. 

### was a youth inneed of supervision because of theFebruary incident atschool and because she

was "habitually disobedient and beyond parental control". On May 4, 1977, a hearing was held atwhich T.E.R. was represented by an attorney, the Statewas represented by the deputy county attorney, and T.E.R.'s parents represented themselves. On motion of the attorney representing the child, the petition

### was orally amended toinclude allegations that T.E.R. 

### was a youth inneed of 

### care. T.E.R. gave her statement inchambers, outside thepresence of her parents. While she

### was testifying, her stepfather apparently suffered a heart attack and was taken tothe hospital. Atthat 

### time, the deputy county attorney moved that the hearing be continued until the State could filean amended petition inserting the charge that T.E.R. 

### was a youth in need of care and have the amended petitions served on all parties. This was done on June 2, 1977.Subsequent hearings, on July 7 and August 4, primarily addressed allegations of physical and sexual abuse by T.E.R.'~ stepfather. T.E.R.'s stepfather denied these allegations and, through his attorney, attempted toprove that T.E.R. had a reputation foruntruthfulness and that if she had been sexually active, itwould have been with neighborhood boys. On appeal theparents present four issues for our consideration. They can be summarized and stated as follows: 1. Whether the Youth Court erred inallowing the child to testify outside the presence of her parents as to the alleged sexual and physical abuse by her stepfather. 2. Whether the Youth Court abused its discretion in making a finding of sexual abuse based primarily on the child's disputed testimony. 3. Whether the Youth Court erred by considering T.E.R.'s report cards, submitted subsequent tothe hearing by the Department of Social and Rehabilitation Services. 4. Whether the Statefollowed proper procedures in taking T.E.R. into custody and maintaining custody pending theYouth Court's ultimate determination on thepetition allegingher tobe a youth inneed of care. T.E.R. testified on two occasions; both 

### times she was permitted totestify outside the presence of her parents. On the firstoccasion, attheMay 4 hearing, she was questioned by the attorney appointed torepresent her and by the deputy county attorney. It was while this testimony was being given that T.E.R.'s stepfather suffered a heart attack inthe courtroom where he was waiting with T.E.R.'s mother. The second time T.E.R. was questioned was atthe ~uly 7 hearing. On that occasion the attorney for theparents was given the opportunity tocross-examine.The parents argue that the allegations made by T.E.R. inthe course of her testimony amounted to charging her stepfather with criminal conduct and that he was therefore constitutionally entitled toconfront his accuser. We do not agree. Atthe outset it should be noted that a "petition alleging abuse, neglect, or dependency is a civil actionbrought inthe name of the stateof Montana. 

# .

# ." Section 10-1310(3), R.C.M. 1947, now section 41-3-401(3) MCA. The overriding policy which underlies allactions involving potentially abused children is "toprovide for the protection of childrenwhose health and welfare are adversely affected and further threatened by the conduct of those responsible for their care and protection." Section 10- 1303, R.C.M. 1947, now section 41-3-101(2) MCA. Under circumstances such asthose presented in the instant case, itmay be necessary for a child's testimony tobe taken outside the presence of "those responsible for their care and protection." We therefore hold that a childmay testify outside the presence of his parents ina case involving allegations of abuse and neglect, subject tocross-examination by the parents' attorney, when the presiding judge determines that it is themost likelymethod of discovering thewhole truth astothe alleged abuse or neglect. The next issue presented refers to the court's Finding of Fact No. 12: "12. That the step-father has fondled the said youth, and has attempted tohave sexual relations with her on many occasions when themother was not in the home." The parents argue that thejudge erred inmaking such a finding in light of testimony adduced atthe hearing that T.E.R. has lied attimes to avoid punishment and that she does not wish to livewith her stepfather. However, ourreview of the testimony does not reveal that the Youth Court clearly abused itsdiscretion inarriving atthis determination. Where testimony is directly conflicting

### we presume thatthejudge's findings 

### are correctbecause he was present when the testimony was given and had the opportunity to observe the demeanor of the witnesses. Hellickson v. Barrett Mobile Home Transp. (1973), 161Mont. 455, 460, 507 P.2d 523, 526. As a result, 

### we do not find that the Youth Court abused its discretion inmaking a finding of sexual abuse based primarily on the child's disputed testimony. The parents' third issue concerns T.E.R.'s school report card which was submitted to the judge for his consideration some 

### timeafter the conclusion of the August 4 hearing. In facthe did not receive the report card until sometime inOctober. As evidence, the report card falls within Rule 803(6),Mont.R.Evid., which excepts records of regularly conducted activity from the hearsay prohibition. The factthatthe report card was brought to the judge's attention after the conclusion of the hearing is somewhat disturbingbut does not amount toreversible error. First, the report card 

### was not inexistence atthe time the hearing concluded. Second, the best interests of the child require

some degree of flexibilityinprocedure to insure that all evidence pertaining to the best interests of the child may be considered. In addition, counsel for the parents knew of this report card and has never questioned its authenticity. We find under the circumstances of the instant

case that theYouth Court did not 

### err inconsidering T.E.R.'s report card. The finalissueraised by theparents concerns the procedure by which T.E.R. 

### was taken from her home by Ms.Knopp, the caseworker from SRS. What did not appear from the record as itwas submitted to this Court, but what has been made a part of therecord pursuant to stipulation of theparties during oral argument, 

### is that a proceeding was held on ~pril 20, 1977. Atthat 

### time T.E.R.'s mother agreed to the shelter care arrangement proposed by Ms. Knopp, tobe implemented pending determination of this

### matter by the Youth Court. Thus, toprevent any possible embarrassment to T.E.R.'s parents, theparties then proceeded pursuant tothe statutory provisions regarding youths inneed of supervision rather than youths inneed of care. Initially, this had the effect of establishing for the stepfather a prima facie showing of denial of due process. Atthe May 4 hearing, he had only received notice that allegations had been made that T.E.R. was a youth inneed of supervision. The true concern of the parties, however, 

### was that T.E.R. might be a youth in need of carebecause of sexual abuse. Had the stepfather not suffered a heart attack during that hearing, the State may not have had an opportunity to cure the alleged defects with respect todue process prior toa finaldetermination by the Youth Court. But subsequent tothat hearing, the stepfather had been apprised of the true nature of the allegations involved inthe case. He was given the opportunity to testify, and he 

### was represented by counsel. In addition, he was able through his counsel tocross-examine T.E.R. with respect toher allegations. Therefore, though theprocedures involved inthis casewere highly unusual and not condoned by this Court, we find that T.E.R.'s stepfather

was ultimately afforded due process.Beyond that, however, something more stands out. These proceedings focused primarily on allegations of improper conduct on the part of the stepfather. These allegations were found tobe supported by a preponderance of the evidence, and theYouth Court was therefore correct infinding T.E.R.'s stepfather tobe "an unfit person tohave custody; thatby reason of his dominance inthe family the youth is unable to avoid his abuse." However, a careful review of the record does not reveal that the Youth Court adequately considered the rights of T.E.R.'s mother inawarding permanent custody of T.E.R. to SRS with authority toconsent toher adoption. In addition totheir rights 

### as a couple, parents may have individual rights withrespect totheir children. The record inthe instant case reveals that themother's rights were afforded

no more than superficial consideration. Therefore, the order of theYouth Court isvacated tothe extent that it applies toT.E.R.'s mother, and the case isremanded to the Youth Court for further proceedings todetermine the future status of themother's parental rights.

We concur: 

# U 7&',4, 

# &&,,&&q Chief Justice