No. 14286 

IN THE SUPREME (BURT OF THE STATE OF MONTANA 

1978 

IN THE MATTER OF DMILARING 

T.E.R. Youth in Need of Care. 

Appeal fram: District Court of the Tenth Judicial District, 

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 

William Spoja, Jr. , County Attorney, Ledstawn, I%ntana 

Timothy O'Hare, Deputy County Attorney, argued, Lewistown, 

Montana 

K. Mbert Foster argued, Lewistown, Montana 

PFp 979 Filed : 

Skmitted: November 21, 1978 

Decided: FEi3 i, * 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. to be a Youth in Need of Care and awarded 

permanent custody of T.E.R. to the Department of Social and 

Rehabilitation Services of the State of 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 to her 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, 

she maintained contact with T.E.R., noticing, on occasion, 

a number of bruises which she suspected to be 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 in a restroom at her 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 at 
a job which required her presence 24 hours each day. After 

a month had passed under this arrangement, Ms. Knopp told 

T.E.R. that she would be taking her back home shortly. 

T.E.R. reacted to this suggestion with some alarm and, after 

some prodding, told Ms. Knopp of recent incidents of sexual 

abuse by her stepfather. The incidents had allegedly increased in frequency 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 there was 

evidence of sexual contact and Ms. Knopp immediately placed 

T.E.R. in a foster home in Harlowton, Montana. One week 

later, on Monday, April 22, 1977, the deputy county attorney 

for Fergus County, filed a petition for youth hearing, 

alleging that T.E.R. was a youth in need of supervision 

because of the February incident at school and because she 

was "habitually disobedient and beyond parental control". 

On May 4, 1977, a hearing was held at which T.E.R. was 

represented by an attorney, the State was 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 to include allegations that T.E.R. was a youth in need of care. T.E.R. gave 

her statement in chambers, outside the presence of her 

parents. While she was testifying, her stepfather apparently suffered a heart attack and was taken to the hospital. 

At that time, the deputy county attorney moved that the 

hearing be continued until the State could file an 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 to prove that T.E.R. 

had a reputation for untruthfulness and that if she had been 

sexually active, it would have been with neighborhood boys. 

On appeal the parents present four issues for our consideration. They can be summarized and stated as follows: 

1. Whether the Youth Court erred in allowing 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 to the hearing by the 

Department of Social and Rehabilitation Services. 

4. Whether the State followed proper procedures in 

taking T.E.R. into custody and maintaining custody pending 

the Youth Court's ultimate determination on the petition 

alleging her to be a youth in need of care. 

T.E.R. testified on two occasions; both times she was 

permitted to testify outside the presence of her parents. 

On the first occasion, at the May 4 hearing, she was questioned by the attorney appointed to represent 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 

in the courtroom where he was waiting with T.E.R.'s mother. 

The second time T.E.R. was questioned was at the ~uly 7 

hearing. On that occasion the attorney for the parents was 

given the opportunity to cross-examine. 
The parents argue that the allegations made by T.E.R. 

in the course of her testimony amounted to charging her 

stepfather with criminal conduct and that he was therefore 

constitutionally entitled to confront his accuser. We do 

not agree. At the outset it should be noted that a "petition alleging abuse, neglect, or dependency is a civil 

action brought in the name of the state of Montana. . ." 

Section 10-1310(3), R.C.M. 1947, now section 41-3-401(3) 

MCA. The overriding policy which underlies all actions 

involving potentially abused children is "to provide for the 

protection of children whose 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 as those presented in the instant case, 

it may be necessary for a child's testimony to be taken 

outside the presence of "those responsible for their care 

and protection." We therefore hold that a child may testify 

outside the presence of his parents in a case involving 

allegations of abuse and neglect, subject to cross-examination by the parents' attorney, when the presiding judge 

determines that it is the most likely method of discovering 

the whole truth as to the 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 to have sexual relations with her on many occasions when the mother 

was not in the home." 

The parents argue that the judge erred in making such a 

finding in light of testimony adduced at the hearing that 

T.E.R. has lied at times to avoid punishment and that she 

does not wish to live with her stepfather. However, our 
review of the testimony does not reveal that the Youth Court 

clearly abused its discretion in arriving at this determination. Where testimony is directly conflicting we presume 

that the judge's findings are correct because 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), 161 Mont. 455, 460, 507 P.2d 

523, 526. As a result, we do not find that the Youth Court 

abused its discretion in making 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 time after the conclusion of the August 4 

hearing. In fact he did not receive the report card until 

sometime in October. 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 fact that the report card was brought to the judge's 

attention after the conclusion of the hearing is somewhat 

disturbing but does not amount to reversible error. First, 

the report card was not in existence at the time the hearing 

concluded. Second, the best interests of the child require 

some degree of flexibility in procedure 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 the Youth Court did not err in considering T.E.R.'s 

report card. 

The final issue raised by the parents 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 it was submitted to this Court, but what has 

been made a part of the record pursuant to stipulation of 

the parties during oral argument, is that a proceeding was 

held on ~pril 20, 1977. At that time T.E.R.'s mother agreed 

to the shelter care arrangement proposed by Ms. Knopp, to be 

implemented pending determination of this matter by the 

Youth Court. Thus, to prevent any possible embarrassment to 

T.E.R.'s parents, the parties then proceeded pursuant to the 

statutory provisions regarding youths in need of supervision 

rather than youths in need of care. Initially, this had the 

effect of establishing for the stepfather a prima facie 

showing of denial of due process. At the May 4 hearing, he 

had only received notice that allegations had been made that 

T.E.R. was a youth in need of supervision. The true concern 

of the parties, however, was that T.E.R. might be a youth in 

need of care because 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 to due process prior to a final determination 

by the Youth Court. But subsequent to that hearing, the 

stepfather had been apprised of the true nature of the 

allegations involved in the case. He was given the opportunity to testify, and he was represented by counsel. In 

addition, he was able through his counsel to cross-examine 

T.E.R. with respect to her allegations. Therefore, though 

the procedures involved in this case were 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 to be supported by a preponderance of the evidence, and the Youth Court was therefore correct in finding 

T.E.R.'s stepfather to be "an unfit person to have custody; 

that by reason of his dominance in the 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 in awarding permanent custody of T.E.R. to 

SRS with authority to consent to her adoption. In addition 

to their rights as a couple, parents may have individual 

rights with respect to their children. The record in the 

instant case reveals that the mother's rights were afforded 

no more than superficial consideration. Therefore, the 

order of the Youth Court is vacated to the extent that it 

applies to T.E.R.'s mother, and the case is remanded to the 

Youth Court for further proceedings to determine the future 

status of the mother's parental rights. 

We concur: U 

7&',4, &&,,&&q Chief Justice