110. 86-353 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

IN RE THE MATTER OF 

R.A.D. and J.D., 

Youths in Need of Care. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable Thomas McKittrick, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Matteucci & Falcon; Daniel L. Falcon, Great Falls, 

Montana 

Patrick F. Flaherty, Great Falls, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

John Paulson, Asst. Atty. General, Helena 

Patrick L. Paul, County Attorney, Great Falls, Montana 

Barbara Bell, Deputy County Atty., Great Falls 

E. June Lord, (for children), Great Falls, Montana 

Submitted on Briefs: Sept. 10, 1987 

Decided: March 18, 1988 

Clerk 
Mr. Justice L. C. Gulbrandson delivered the Opinion of the 

Court. 

These appeals arise from a termination of parental 

rights of E.D. (mother) and R.D. (father) by the District 

Court of the Eighth Judicial District, Cascade County, and 

awarding to the Department of Social and Rehabilitation 

Services permanent custody of the youths, R.A.D. and J.D., 

with the authority to consent to adoption. 

Defendants-appellants, natural parents of the youths, each 

appeal the rulings. 

We affirm in part and reverse and remand in part. 

The issues we are presented with on this appeal are as 

follows: 

1. Did the District Court abuse its discretion in 

denying the father1 s motion to dismiss for reasons of delay 

and pre jud.ice? 

2. Whether the District Court erred in allowing R.A.D. 

and J.D. to testify as competent witnesses? 

3. Whether the District Court abused its discretion in 

terminating the father's parental rights? 

4. Did the District Court err in denying the mother1 s 

motion to continue because she could not attend a hearing 

as she was committed at Warm Springs State Mental 

Hospital? 

A previous history of the mother and father should 

initially be noted. The two were married in 1978. The 

mother developed mental problems and was committed numerous 

times. On November 21, 1983, the father filed a petition for 

dissolution of marriage. His counsel at the time was Michael 

Smartt. From 1978 through 1983, the father was largely 

responsible for raising the children, R.A.D. and J.D., until 
they were placed in the custody of the Montana Department of 

Social and Rehabilitation Services (SRS) . On February 1, 1984, the deputy county attorney of 

Cascade County filed, on behalf of SRS, a petition for 

temporary investigative authority and protective services and 

temporary custody of R.A.D. and J.D. The petition alleged 

that the youths were abused and neglected or in danger of 

being abused and neglected pursuant to §§ 41-3-101 and 

41-3-102, MCA. An attached affidavit stated that SRS 

received a referral, sometime in January, that the father had 

sexually abused his two sons, R.A.D. and J.D. On January 27, 

1984, R.A.D. and J.D. told an SRS caseworker, Irene Johnson, 

that their father had sexual contact with them. The District 

Court ordered temporary investigative authority and temporary 

custody of R.A.D. and J.D. to SRS because there was probable 

cause that the youths were youths in need of care and in 

immediate or apparent danger of harm. Following a show cause 

hearing, the court made a specific conclusion of law in an 

order dated March 12, 1984, that the youths were abused and 

neglected within the meaning of the statutes. The father was 

directed to receive a psychological evaluation 

Both children were seen by Dr. Tom Krajacich to whom 

they related similar stories as they told Johnson. The 

father was seen by Dr. William Taylor on May 11, 1984, but 

Taylor did not conduct specific testing to evaluate a sexual 

abuser because he felt the father did not fit the personality 

profile of a sexual abuser. At a December 18, 1984 hearing 

both Kra j acich and Johnson stated they believed the children 

were telling the truth as to the sexual contacts. On 

December 26, 1984, the District Court issued an order that in 

the best interests of the youths, the father should be 

reevaluated by Dr. Phillip Russell of Billings and that 
" [tlhe parties . . . agreed to abide by the recommendations 

of Dr. Russell." 

Dr. Russell's evaluation occurred July 16, 1985. His 

most crucial conclusions are as follows: 

1. [The father] is, at least capable of 

perpetuating the alleged acts. 2. [Tlhe 

examiner had the impression that [the 

father] did not give a candid or honest 

account of his actual sexual 

experiences. 3. The statements from the 

victims in this case were given to 

competent and experienced professionals 

and appear to be bonafide reports of 

sexual abuse and have been substantiated 

by other behavioral indicators. . . It 

is the examiner's opinion that the 

sexual abuse reported by [R.A.D. and 

J.D. ] did, in fact, occur and was 

perpetuated by their father. 4. Due to 

[the father's] denial of the sexual 

abuse, he is, by definition untreatable 

for his sexual deviancy . . . and 5. 

[J.D. and R.A.D.] should not be returned 

to the custody of their father. 

A petition for permanent custody was filed by Cascade 

Deputy County Attorney Barbara Bell, counsel for SRS on 

August 26, 1985. From this petition, the court ordered that 

a hearing be held October ll., 1985. The State was granted a 

continuance to November 22, 1385 because Dr. Russell was 

unavailable. The mother, because she was residing at Warm 

Springs State Hospital at this time and wanted an opportunity 

to be present and testify, motioned the court for a 

continuance. In regard to this motion, the District Court 

stated: 

[Plarties stipulate that the hearing set 

for 11/22/85 @ 9:00 a.m. will go as 

scheduled, in regard to [the father] 

only. A hearing as to [the mother] will 

be held at a later date, due to [the 

mother] being at Warm Springs State 

Hospital. 
On November 22, 1985, a hearing was held in regard to 

the permanent custody of the youths limited to their father. 

Dr. Russell, Dr. Krajacich, Irene Johnson, Helen (Meg) 

Timblin, foster mother, and R.A.D. and J.D. testified for the 

State. Pam Tanner, a prior employee of SRS and foster parent 

who knew the father on a personal basis, testified for the 

father. 

The District Court ordered that another hearing would 

be held January 6, 1986. After three continuances were 

granted the mother because her attorney was unavailable due 

to conflicting criminal trials, the date of the second 

hearing was set for April 16, 1986. The mother's attorney 

made a motion for another continuance on April 14, 1986 

because the mother was not able to attend the hearing due to 

her mental condition according to her treating psychiatrist, 

Dr. Myron Meinhardt. At the April 16, 1986 hearing, the 

father1 s attorney made a motion to dismiss the case due to 

denial of due process. Both motions were denied. At the 

two-day hearing, the father testified in his own behalf, and 

a number of witnesses supported his testimony. The State 

called Dr. Meinhardt and the children's grandmother, Elanor. 

On June 5, 1986, the District Court entered its 

findings of fact, conclusions of law and order permanently 

terminating parental rights of and giving permanent custody 

to SRS with the right to consent to adoption. It is from 

this ruling that these appeals arise. 

We have recognized that family integrity is a 

constitutionally protected interest. Matter of J.L.B. 

(1979), 182 Mont. 100, 594 P.2d 1127. In J.L.B., we cited 

the language of the United States Supreme Court case of 

Stanley v. Illinois (1972), 405 U.S. 645, 651, 92 S.Ct. 1208, 

1212-1213, 31 L.Ed.2d 551, 558-559: 
The Court has frequently emphasized the 

importance of the family. The rights to 

conceive and to raise one's children 

have been deemed "essential", [citation 

omitted] "basic civil rights of man" 

[citation omitted] and " [r] ights far 

more precious . . . than property 

rights", [citation omitted]. "It is 

cardinal with us that the custody, care 

and nurture of the child reside first in 

the parents, whose primary function and 

freedom include preparation for 

obligations the state can neither supply 

nor hinder." [Citation omitted.] The 

integrity of the family unit has found 

protection in the Due Process Clause of 

the Fourteenth Amendment, [citation 

omitted], the Equal Protection Clause of 

the Fourteenth Amendment [citation 

omitted], and the Ninth Amendment. 

[Citation omitted.] 

J.L.B., 182 Mont. at 109, 594 P.2d at 1132. 

However, the right to maintaining the family unit is 

not absolute. Absent a clear showing of abuse of discretion 

by the District Court, we will not reverse. 

[TI his Court is mindful that the primary 

duty of deciding the proper custody of 

children is the task of the district 

court. As a result, all reasonable 

presumptions as to the correctness of 

the determination by the district court 

will be made. Foss v. Leifer, 170 Mont. 

97, 550 P.2d 1309, 33 St.Rep. 528 

(1976). Due to this presumption of 

correctness, the district court's 

findings will not be disturbed unless 

there is a mistake of law or a finding 

of fact not supported by credible 

evidence that would amount to a clear 

abuse of discretion. 

Matter of C.A.R. (Mont. 1984), 693 P.2d 1214, 1218, 41 
The father contends the District Court abused its 

discretion when it denied (by implication of the order issued 

June 5, 1986) his motion to dismiss for reasons of delay and 

prejudice. Granted, a number of motions to continue were 

allowed in this case, but S; 25-4-503, MCA, states that the 

District Court "[mlay, -- in its discretion, postpone a trial or 

proceeding upon other grounds than the absence of evidence 

under such conditions as the court may direct." (Emphasis 

added.) The District Court had the discretion to grant or 

deny any continuance for justified reasons under the law in 

Montana. 

The father claims that the continuances substantially 

prejudiced him because the District Court had bifurcated the 

trial on November 22, 1985 and the hearing was continued as 

to him only. We find this to be incorrect according to the 

record. On Monday, November 18, 1985 the following testimony 

occurred : 

Mr. Falcon (Counsel for the father) : 

[I] believe we can stipulate, if the 

parties will, that the hearing on Friday 

will be in regards to the State versus 

[the father's] activities, and will 

reserve until later all the issues 

dealing with [the mother] . 

Ms. Macek (Counsel for the 

mother): Your Honor, I would have no 

problem with that. The only motion to 

continue wanted was as far as [the 

mother] was concerned. 

Ms. Bell (Counsel for the State) : Your 

Honor, I believe Mr. Falcon has 

correctly stated the agreement we have 

reached. 

The record indicates the District Court noted the issue 

of the mother's rights were to be determined at a later date. 

The trial was therefore not "bifurcated" as the father 
argues. The court merely allowed testimony in regards to the 

father and reserved consideration of the mother's interest 

until a later date, ultimately April, 1986. 

The father contends that the court failed to hear and 

determine within twenty days whether R.A.D. and J.D. were 

abused, neglected or dependent. He argues that 

S 41-3-401 (2), MCA, required: 

Upon receipt of a petition, the court 

shall set a date for an adjudicatory 

hearing on the petition. Such petitions 

shall be given preference by the court in 

setting hearing dates and -must -- be heard 

within 20 days - of - the filing -- of the 

~etition: (Em~hasis added bv amellant.) 

This amendment was effective October 1, 1985 but the 

petition was filed February 1, 1984 when 5 41-3-401(2) 

provided only that l1[t]he court shall set a date for an 

adjudicatory hearing on the petition." The State argues that 

the father's motion to dismiss was made at the hearing to 

consider termination of the parental rights governed by 

S 41-3-607 (1) , MCA. This section requires consideration of 

termination of parental rights only after the petition for 

permanent custody is filed and has a 180-day limitation. 

The termination of a parent-child legal 

relationship shall be considered only 

after the filing of a petition pursuant 

to 41-3-401 alleging the factual grounds 

for termination. Termination of a 

parent-child legal relationship shall be 

considered at a dispositional hearing 

held pursuani - to 41-3-406, following or 

together with an adjudicatory hearing 

held pursuant to 41-3-404, within 180 

days after the filing -- of the petition. 

(Emphasis added.) 

Section 41-3-607 (1) , MCA. 

In his reply brief, appellant admits that the 180-day 

limitation is applicable. The petition for permanent custody 
was filed in this case on August 26, 1985. It is at this 

point that the 180-day ].imitation becomes effective. 

Nonetheless, a hearing was held by November 22, 1985, well 

within the 180-day time limitation. 

The father argues the statute amendments are procedural 

and can be applied to cases pending at that time and 

therefore the 20-day limitation and 180-day limitation should 

apply. He contends that § 1-2-109, MCA, which requires that 

"[nlo law . . . is retroactive unless expressly so declared" 

is not applicable in this case because of the "procedural" 

nature of the statute's time limitation. State ex rel. 

Johnson v. District Court of Fourth Judicial District (19661, 

148 Mont. 22, 417 P.2d 109, 11.2. In Boehm v. Alanon Club 

(Mont. 1986), 722 P.2d 1160, 1162, 43 St.Rep. 1341, 1344, 

this Court stated: 

The guiding principle in this area is 

5 1-2-109, MCA, which states: "No law 

contained in any of the statutes of 

Montana is retroactive unless expressly 

so declared." However, it has been held 

that where a statute is procedural, 

rather than substantive, 5 1-2-109 has no 

application, and the statute will be 

applied to a cause of action arising 

before its enactment. 

The State complied with the 180-day limitation. As to 

the 20-day limitation, if we agree with the father that this 

law should be retroactive, we must still affirm the court 

because the 1987 Legislature again amended 5 41-3-401 (2) so 

that no 20-day limitation is required. Under the facts of 

this case, we find that the District Court did not abuse its 

discretion in denying the motion to dismiss. 

The father claims that the District Court abused its 

discretion in allowing the testimony of R.A.D., who was five 

years old at the time of the alleged sexual abuse and six 
years old at the time of the hearing, and J.D., who was three 

years old at the time of the alleged sexual abuse and five 

years old at the hearing. Whether a child is competent to 

testify is a matter left largely to the discretion of the 

trial court. State v. Howie (Mont. 1987), P. 2d I 

, 44 St.Rep. 1711, 1716; State v. Rogers (Mont. 1984), 

692 P.2d 2, 5, 41 St.Rep. 2131, 2135, quoting State v. 

Campbell (1978), 176 Mont. 525, 529, 579 P.2d 1231, 1233. 

Rule 601 M.R.Evid. provides the general rule of competency as 

follows: " [El very person is competent to be a witness except 

as otherwise provided in these rules." For disqualification, 

Rule 601, M.R.Evid., states that a person is disqualified if 

he is not able to express himself to the judge or jury or is 

unable to understand the "duty of a witness to tell the 

truth. " 

The father contends that J.D. was incompetent to 

testify because: he admitted that he would say anything if 

asked or told to say it; he was unable to tell the difference 

between a boy and girl doll; he supplied inconsistent 

testimony in regards to "good touch, bad touch;" and he 

admitted that telling the truth was bad. As to R.A.D., the 

father contends he was incompetent because: he was unable to 

say how many brothers or sisters he had; he admitted on the 

stand he did not know what "good touch, bad touch" was; and 

he was inconsistent in regards to the number of times the 

incident occurred. 

From a reading of the record, it is clear that R.A.D. 

was referring to his foster brothers and sisters who were the 

children of his foster mother, Helen (Meg) Timblin. The 

District Court determined the competency of the children by 

asking questions in regards to the children's understanding 

of the need for them to tell the truth. The Court then 

allowed the attorneys to voir dire the youths and finally, 
the youths were allowed to testify as to the actual sexual 

contact. 

The judge found both children competent to testify. We 

find that despite the father's claims of inconsistencies, the 

children did know the difference between a truth and a lie 

and understood that they needed to be truthful on the stand. 

In State v. Phelps (Mont. 1985), 696 P.2d 447, 42 St.Rep. 

305, the five-year-old victim stated that he believed he was 

testifying not in the court room but in the police station 

and that the judge was a karate expert. We found that the 

youth could tell the difference between the truth and a lie 

and that was the gravamen ascertainment by the court to 

determine competency. In State v. D.B.S. (Mont. 1985), 700 

P.2d 630, 42 St. Rep. 770, we allowed a four-year-old incest 

victim to testify despite the fact that she was inconsistent 

as to when the alleged incident occurred. 

We should recognize that children, 

particularly four-year-olds are not 

governed by the clock and calendar 

. . . [and] are generally at a loss to 

apply times or dates to significant 

events in their lives. 

D.R.S, supra, 700 P.2d at 634. 

We note here that three and five-year-olds are al-so 

sometimes going to be inconsistent as to particular incidents 

or conversations of "good touch, bad touch," and even as to 

how many brothers and sisters they have as the father's 

counsel has argued. However, in this case, the testimony was 

sufficiently consistent as to the actual act by the father 

that the court properly allowed these children to testify. 

Dr. Krajacich and. Irene Johnson testified that the youths 

made statements very close to what they testified to in court 

in the prior two-year period of time. It is this 
consistency, rather than the minor inconsistencies stated by 

the father, that is important. 

After the youths were determined competent, they both 

testified that their father had sexually molested them, 

R.A.D. stated that his father touched him in his "private 

spot. " He also stated that his father engaged in oral 

contact on this private spot and demonstrated the activity on 

anatomically correct dolls. 

J.D. testified as to "good touch, bad touch" and 

adequately differentiated between the two by distinguishing a 

hug by his mother as a "good touch" and a hit by a State's 

attorney as a "bad touch." He then stated that his father 

had engaged in bad touch when "[hle sucked our peepee." 

From our review of the record, we conclude that the 

children were indeed competent to testify and that the 

testimony describing the incidents of sexual contact go 

directly to the father's next claim, that the District Court 

erred in terminating the father's parental rights. 

This final argument raised by the father is divided 

into two parts. First, he argues that he did not receive 

notice that the November 22, 1985 and April, 1986 hearings 

were going to be combined adjudicatory and dispositional 

hearings and that, again, the hearing on the S 41-3-401, MCA, 

petition was not held within the mandatory 20-day period. 

Secondly, the father argues that "on the merits" the District 

Court erred in terminating his parental rights. 

We have addressed the contention in regards to the 

20-day limitation in S 41-3-401(2) above and therefore will 

not reiterate our position. The father contends that the 

continuances granted deprived him of due process and the 

protection of SS 41-3-401 and 41-3-607, MCA and that the 

court improperly terminated his parental rights without a 

dispositional hearing pursuant to S 41-3-607, MCA. We have 
thoroughly scrutinized the record in this case and note that 

numerous continuances were granted. However, from this 

analysis, we determine that no denial of due process 

occurred. It is clear that the hearings of November 22, 1985 

and April 16 and 18, 1986 were combined adjudicatory and 

dispositional hearings. As to the claim that notice was not 

sufficient, 5 41-3-607, MCA, expressly allows this 

combination and does not require specific notice to the 

parties. In this instance, there was insufficient delay to 

constitute reversible error. 

The father contends that at the conclusion of the 

April, 1986 hearing, the District Court said "that [the 

father] was to be put back with his children after 

treatment." The court's statement in the record was: 

[I] lm going to review the reports again, 

and what I'm thinking of right now is 

ordering [the father] to receive some 

kind of treatment with the idea of, upon 

a successful completion of that 

treatment, to gradually reintroduce him 

to his family. 

This statement does not show the District Court was 

going to reunite the family. It only shows reunification was 

a consideration the court would contemplate. The court took 

the matter under advisement and although the final order was 

not issued until June 5, 1986, it was properly considered. 

The law is clear that in termination hearings, the 

findings of the court are presumed to be correct and will not 

be reversed absent a clear abuse of discretion. Matter of 

Declaring V.B., T.B., D.B. and B.B. Youths in Need of Care. 

(Mont. 1987), P.2d , 44 St.Rep. 1838; Matter of C.P. 

(Mont. 1386), 717 P.2d 1093, 1095, 43 St.Rep. 728, 730; 

Matter of C.L.A. (Mont. 1984), 685 P.2d 931, 41 St.Rep. 1444. 

For termination to occur the court is required to follow the 
criteria set forth in S 41-3-609, MCA. Matter of Declaring 

V.B., T.R., D.B. and R.B., Youths in Need of care, supra; 

Matter of C.A.R., supra. 

In this case, the District Court made the following 

findings of fact: 1. Dr. Krajacich, after over two years of 

evaluation, stated the youths had related to him that their 

father had sexually abused them; that the youths' stories 

over this period of time were consistent; and that the youths 

could not have been coached. 2. The youths made statements 

in open court to the effect that the father had sexually 

abused them. 3. The father continued to deny that he 

sexually abused R.A.D. and J.D. even though Dr. Russell, who 

evaluated the father, concluded that he was untruthful, 

repressed favorable information, and did indeed sexually 

abuse the youths. 4. The father was unwilling or unable to 

receive treatment as a sex offender and no party informed the 

court of any sex offender therapist or treatment program that 

would be willing to work with him. 5. Because the father 

had not received any treatment, although he stated he would 

be willing to receive treatment while contending that he did 

not need the treatment, the conditions that caused him to be 

unfit were unlikely to change within the foreseeable future. 

6. That continuation of the parent-child relationship would 

result in continued abuse and neglect and the youth's best 

interests would be served only if SRS supervised allowed 

contact. 

Section 41-3-609(1), MCA, states: 

The court may order a termination of the 

parent-child legal relationship upon a 

finding that the circumstances contained 

in subsection (1) (a), (1) (b) or (1) (c) , as follows, exists: [ I) a and (1) (b) do 

not apply in this case] 
(c) the child is an adjudicated youth in 

need of care and both of the following 

exist: 

(i) an appropriate treatment plan that 

has been approved by the court has not 

been complied with by the parents or has 

not been successful; and 

(ii) the conduct or condition of the 

parents rendering them unfit is unlikely 

to change within a reasonable time. 

(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 

relationship will likely result in 

continued abuse and neglect or that the 

conduct or the condition of the parents 

renders the parents unfit, unable, or 

unwilling to give the child adequate 

parental care. 

The specific findings of the court fol-lowed subsections 

(1) (c) (i) and (c) (ii) and (2) of S 41-3-609, MCA. Despite 

these findings, the father argues that " [t] here was no 

substantial credible evidence supporting the District Court's 

order, when properly scrutinized. " Upon scrutiny of the 

record, we find that the father did not attempt to enter into 

treatment or have the court approve an appropriate treatment 

program. He sought out no treatment for two and one-half 

years. He was evaluated by psychiatrists at court order 

only. Both Dr. Russell and Dr. Krajacich testified as to the 

difficulty in getting the father enrolled in treatment. 

Attempts were made by him to have the SRS pay for his 

psychological evaluations but similar requests for treatment 

are not present. 

Dr. Krajacich testified that it was "a good prognosis 

that maybe these boys could get back together with their 
family" but concluded that he believed the youths were 

sexually abused. Dr. Russell concluded that the father had 

sexually abused the youths. Irene Johnson agreed with the 

conclusion. The District Court's finding of sexual abuse was 

not clearly erroneous and therefore is upheld. 

Termination can occur if a child is "abused and 

neglected" defined as: 

[a] child whose normal physical or mental 

health or welfare is harmed or threatened 

with harm by the acts or omissions of his 

parent or other person responsible for 

his welfare. (Emphasis added.) 

Section 41-3-102 (2) , MCA. Harm includes acts when a parent 

"'commits or allows to be committed a sexual abuse against the 

child. . . " Section 41-3-102 (3) (b) , MCA. Matter - of 

C.A.R., supra, 693 P.2d at 1220. The District Court 

therefore was presented with clear and convincing evidence 

that the statutory criteria of S 41-3-609, MCA was met and 

had substantial evidence that shows it did not abuse its 

discretion in terminating the father's rights on the merits. 

The sole issue raised on appeal bl7 counsel for the 

mother concerns the District Court's failure to grant a 

continuance for the April, 1986 hearings. Counsel for the 

mother argues that the District Court had bifurcated the 

trial as to the mother and the father at the November 22, 

1985 hearing and that the trial court attorney for the mother 

was surprised to learn on April 16, 1986 that she would be 

required to proceed and represent the mother. It is clear 

from the record, as previously discussed, that the court did 

not bifurcate the trial on November 22, 1985. The April 16, 

1986 hearing was indeed the hearing "at a later date" to 

determine the mother's rights. 

The District Court granted the mother's counsel three 

continuances after the November 22, 1985 hearing and prior to 
the April 16, 1986 hearing. The law in this state is clear 

that a denial of a motion for continuance is within the sole 

discretion of the trial judge, In Re Marriage of Robbins 

(Mont. 1985), 711 P.2d 1347, 42 St.Rep. 1897; Rolich v. 

Bolich (1982), 199 Mont. 45, 647 P.2d 844. Section 25-4-503, 

MCA states that the District Court may postpone a trial or 

hearing in its discretion. 

There was testimony from the mother's psychiatrist that 

she was not responding well to treatment at Warm Springs and 

her court-ordered commitment could possibly be extended. 

There was no set date when she would definitely be released. 

Her counsel also could not assure the District Court when, if 

at all, the mother would be able to attend. 

Courts have held that a continuance may be warranted if 

a party is mentally incapacitated. Alvis v. Kimbrough (5th 

Cir. 1972), 455 F.2d 922; Thanos v. Mitchell (1959), 152 A.2d 

833. Other courts have held it is not an abuse of discretion 

for the court to deny a motion for continuance where the 

petitioner claimed mental illness and there was evidence that 

it was uncertain as to when he would ever be able to testify. 

See, Chambers v. Anderson County Dept. of Social Services 

(S.C. 1984), 311 S.E.2d 746; FJilliford v. Williford (Ga. 

1973), 198 S.E.2d 181. Testimony showed it was uncertain as 

to whether the mother would ever be able to testify and 

litigation was entering its second year at the time of the 

April 16, 1986 hearing. 

We find no reversible error under the arguments 

presented by appellate counsel. We do, however, remand this 

case. It is expressly stated in Rule 17(c), M.R.Civ.P.: 

[Tlhe court shall appoint - a guardian - ad 

litem for an infant or incompetent 

LDerson Kt oFherwise re~Fesented -- in an 

action or shall make suc; other order as 

it deems proper for the protection of 
the infant or incompetent person, or in 

any case where the court deems it 

expedient a guardian ad litem may be 

appointed to represent an infant or 

incompetent person, even though the 

infant or incompetent person may have a 

general guardian and may have appeared 

by him. (Emphasis added. ) 

From the record we can find no procedure by which the 

mother had a guardian ad litem named to represent her 

interests. Further, we can find no appropriate waiver of her 

rights to appear before the court on this matter pursuant to 

5 53-21-119 (2), MCA which states: 

(2) The right of the respondent to be 

physically present at a hearing may also 

be waived by his attorney and the friend 

of respondent with the concurrence of 

the professional person and the judge 

upon a finding supported by facts that: 

(a) the presence of the respondent at 

the hearing would be likely to seriously 

adversely affect his mental condition; 

and (b) an alternative location for the 

hearing in surroundings familiar to the 

respondent would not prevent such 

adverse effects on his mental condition. 

This section causes us concern because the act in which it is 

found seems to deal largelv with proceedings to determine 

involuntary capacity. Nonetheless, a reading of the express 

purpose of the act, S 53-21-101, MCA, shows the need for 

protection of the incompetent person's rights: 

The purpose of this part is to: . . . (4) 

assure that due process of law is 

accorded any person coming under the 

provision of this part. 

The District Court has an affirmative duty to assure 

that the rights of a party, who is alleged to be incompetent, 

are protected. Rule 17 (c) , M. R.Civ.P. requires appointment 
of a guardian ad litem for an incompetent person whose rights 

might be abrogated by a lack of proper representation. State 

ex rel. Perman v. District Court (Mont. 1984), 690 P.2d 419, 

41 St.Rep. 2002. 

The parties agree that at the time of entry of the 

order appealed from, the mother was under an order of 

commitment and was confined at the Montana State Hospital. 

It is unclear from the record whether, at the time of the 

hearing, the mother was adjudicated incompetent. Having had 

no guardian ad litem appointed for her, and in light of our 

discussion on the need to consider the constitutionally 

protected interest in maintaining family integrity, the 

District Court should have made a determination whether 

E.D.'s parental rights were adequately protected. The fact 

that the mother was represented at the hearing by appointed 

counsel does not meet the requirements of Rule 17(c), 

M.R.Civ.P., if, in fact, the mother was incompetent. 

The termination of the father's parental rights is 

affirmed. As to the mother's parental rights, this case is 

remanded to the District Court for determination as to 

whether, under the unique facts of the case, the rights of 

E.D. have been properly protected and whether a guardian ad 

litem is necessary to properly represent E.D. prior to the 

termination of her parental rights. 
We concur: