No. 95-011 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1995 

IN THE MATTER OF INQUIRY 

INTO M.M., A.D., and L.D., 

Youths in Need of Care. 

APPEAL FROM: District Court of the Tenth Judicial District, 

In and for the County of Fergus, 

The Honorable Byron L. Robb, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Torger S. Oaas, Attorney at Law, Lewistown, Montana 

For Respondent: 

Honorable Joseph P. Mazurek, Attorney General; 

Cregg Coughlin, Assistant Attorney General, Helena, 

Montana 

Thomas P. Meissner, County Attorney, Lewistown, 

Montana 

Jon A. Oldenburg, Attorney at Law, Lewistown, 

Montana 

Submitted on Briefs: October 19, 1995 

Decided: November 21, 1995 

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!9 ,! P 

Clebk 
Chief Justice J. A. Turnage, delivered the Opinion of the Court. 

P.D., the mother of M.M., A.D. and L.D., appeals the decision 

of the Tenth Judicial District Court, Fergus County, terminating 

her parental rights. We affirm. 

P.D. raises the following issues on appeal: 

1. Did the District Court commit reversible error by 

admitting hearsay testimony of P.D.'s minor children? 

2. Did the District Court err in affording undue weight to 

the testimony of Gwen Glidewell? 

3. Did the District Court err in refusing to grant P.D. a 

continuance in order to produce a rebuttal witness to Gwen 

Glidewell? 

4. Did the District Court err in terminating P.D.'s parental 

rights absent the existence of a court-approved treatment plan? 

P.D.'s three daughters, M.M., A.D. and L.D., were born out of 

wedlock to three different fathers between January 1987 and July 

1990. P.D. has neither sought nor received child support from any 

of the fathers. The father of M.M. filed a relinquishment of his 

parental rights. The fathers of A.D. and L.D. were served by 

publication, failed to respond, and a default judgment terminated 

their parental rights. 

On February 1, 1993, the Fergus County Attorney, on behalf of 

the Department of Family Services (DFS, now part of the Department 

of Public Health and Human Services, or DPHHS), filed a petition in 

the Tenth Judicial District Court for temporary investigative 

authority and protective services for M.M., A.D. and L.D. The 
petition was in response to allegations of abuse and neglect of 

M.M., A.D. and L.D. Following a hearing, the District Court 

granted DFS's petition on February 16, 1993. 

On May 3, 1993, the Fergus County Attorney filed a petition 

for the termination of P.D.'s parental rights and also for DFS to 

be granted permanent legal custody of M.M., A.D. and L.D. 

Following the June 20 through 21 hearing, the District Court 

terminated P.D.'s parental rights and granted DFS permanent custody 

of M.M., A.D. and L.D. P.D. appeals the termination of her 

parental rights. Other facts, as relevant to the disposition of 

the following issues, will be set forth as necessary below. 

Issue 1 

Did the District Court commit reversible error by admitting 

hearsay testimony of P.D.'s minor children? 

We review district court evidentiary rulings to determine if 

the court abused its discretion. Mason v. Ditzel (1992), 255 Mont. 

364, 370-71, 842 P.2d 707, 712. We will not reverse evidentiary 

rulings absent a manifest abuse of discretion. Mason, 842 P.2d at 

712. Additionally, "a reversal cannot be predicated upon an error 

in admission of evidence, where the evidence in question was not of 

such a character to have affected the result." Mason, 842 P.2d at 

712 (quoting Lauman v. Lee (1981), 192 Mont. 84, 90, 626 P.2d 830, 

834). 

Section 41-3-609, MCA (1993), sets forth the criteria for 

termination of parental rights: 
The court may order a termination of the parentchild legal relationship upon a finding that any of the 

following circumstances exist: 

ici the child is an adjudicated youth in need of 

care and both of the following exist: 

ii) 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 [. 1 [Emphasis added.] 

Pursuant to §§ 41-3-102(17), 41-3-102(2) and 41-3-102(5), MCA 

(1993), the term "youth in need of care" includes a child whose 

health or welfare is harmed or threatened harm by acts or omissions 

of a person responsible for the child's welfare. Section 41-3- 

102 (8)) MCA (1993), defines "harm to a child's health or welfare" 

as: 

the harm that occurs whenever the parent or other person 

responsible for the child's welfare: 

(a) inflicts or allows to be inflicted upon the 

child physical or mental injury; 

(b) commits or allows to be committed sexual abuse 

or exploitation; 

(c) causes failure to thrive or otherwise fails to 

supply the child with adequate food or fails to supply 

clothing, shelter, education, or adequate health care, 

though financially able to do so or offered financial or 

other reasonable means to do SOL.] [Emphasis added.] 

P.D. argues that the District Court terminated her parental 

rights because it found that she had allowed her children to be 

sexually abused or exploited. While P.D. admits that her daughters 

were sexually abused by at least two of her male acquaintances, she 

insists that she did not know of the sexual abuses at the times 

they occurred. She claims that implicit in the term "a11ow" is the 

idea that she had some knowledge that the abuse occurred and yet 

did nothing to prevent it. She finally argues that the prosecu4 
tion's only evidence that she knew that the sexual abuse occurred 

was the hearsay testimony of a therapist repeating statements made 

to her by P.D.'s daughters. P.D. maintains that the hearsay 

statements of her daughters do not satisfy any of the exceptions to 

or exclusions from the hearsay rule and therefore should not have 

been admitted at trial. 

We disagree with P.D.‘s argument. First, P.D. presents no 

authority for her assertion that the phrase "allows to be committed 

sexual abuse or exploitation" requires actual knowledge that the 

acts have been committed. Section 41-3-102(S) (b), MCA (1993), 

explicitly states that abuse and neglect "include harm or threatened harm to a child's health or welfare by the acts or omissions 

of a person responsible for the child's welfare." [Emphasis added.] 

This Court has previously held that acts or omissions of a parent 

or guardian are sufficient to satisfy the requirement of abuse and 

neglect. See In the Matter of C.A.R. and P.J.R., Youths in Need of 

Care (1984), 214 Mont. 174, 184, 693 P.2d 1214, 1220. 

Second, while the District Court found that P.D. knew of her 

daughters' sexual abuse, the court specifically stated that her 

knowledge of the abuse was irrelevant to its ultimate determination. The court found that "even if she did not know of the abuse, 

she failed to notice what was occurring and repeatedly left the 

children with persons who were not competent or safe caretakers." 

Such a finding is supported by the evidence presented at trial and 

satisfies the requirements of 5 41-3-102(5) (b), MCA (1993). 

5 
Finally, P.D. does not challenge the court's finding that she 

failed to detect the abuse and left her children with inappropriate 

supervision. Regardless of P.D.'s knowledge of her daughters' 

sexual abuse, there is sufficient evidence to support a finding 

that M.M., A.D. and L.D. are youths in need of care. The disputed 

hearsay evidence goes only to establish P.D.'s knowledge of the 

sexual abuse of her children. Because the District Court found 

that M.M., A.D. and L.D. were youths in need of care regardless of 

P.D.'s knowledge of the sexual abuse, any error by the court in 

admitting the challenged evidence was harmless. Mason, 842 P.2d at 

712. 

Issue 2 

Did the District Court err in affording undue weight to the 

testimony of Gwen Glidewell? 

Glidewell lived with P.D. and her children for a short period 

of time. Glidewell testified about P.D.'s lifestyle while they 

lived together. Glidewell's testimony described P.D.'s friends, 

acquaintances, social habits and living arrangements. 

P.D. argues that the District Court gave Glidewell's testimony 

undue weight. P.D. claims that on cross-examination, Glidewell was 

exposed as an incredible witness who had a motive to testify 

falsely against her. 

In nonjury trials, the credibility of a witness and the weight 

which his or her testimony should be afforded is left to the sound 

discretion of the district court. Keebler v. Harding (1991), 247 

Mont. 518, 523, 807 P.2d 1354, 1357. In this case, the District 

6 
court was in the best position to hear all of the evidence 

presented and weigh conflicting testimony. After hearing Glidewell's testimony, as well as the other witnesses' testimony, the 

court determined that Glidewell was a credible witness. It is not 

the role of this Court to reweigh the evidence and substitute our 

judgment for that of the District Court under such circumstances. 

We conclude that the District Court did not abuse its 

discretion in finding Glidewell to be a credible, reliable witness. 

Issue 3 

Did the District Court err in refusing to grant P.D. a 

continuance in order to produce a rebuttal witness to Gwen 

Glidewell? 

At the close of trial, P.D.'s attorney requested a continuance 

in order to prepare additional testimony to discredit Gwen 

Glidewell. Particularly, P.D.'s counsel wished to call Gwen 

Glidewell's mother, Cindy Glidewell, to testify as to Gwen's 

reputation for truth and honesty. 

We review discretionary trial court rulings such as motions 

for continuances to determine if the court abused its discretion. 

Montana Rail Link v. Byard (1993), 260 Mont. 331, 337, 860 P.Zd 

121, 125. In this case, P.D. had already presented testimony from 

one witness which tended to impeach Gwen Glidewell's reputation for 

truth and honesty. The court determined that P.D.'s trial counsel 

was given sufficient notice of Gwen Glidewell's testimony and that 

additional impeachment testimony was unnecessary. We conclude that 

7 
the District Court did not abuse its discretion in denying P.D.‘s 

trial counsel's motion for a continuance. 

Issue 4 

Did the District Court err in terminating P.D.'s parental 

rights absent the existence of a court-approved treatment plan? 

Section 41-3-609, MCA (1993), states, in relevant part: 

The court may order a termination of the parentchild legal relationship upon a finding that any of the 

following circumstances exist: 

ici 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[. 1 [Emphasis added.] 

In this case, DFS prepared and executed a treatment plan; however, 

P.D. refused to sign the plan. The treatment plan was filed with 

the District Court, but was never officially signed by the District 

Judge 

While the District Court never approved the treatment plan, 

all parties involved apparently proceeded under the assumption that 

there was a court-approved treatment plan in place. In a Request 

for Status Report on Service Treatment Agreement, P.D.'s counsel 

stated: 

2. It is the understanding of your Petitioner that a 

service treatment agreement was presented to [P.D.] in 

that she has either the original or a copy of such 

document. And apparently a duplicate original of the 

agreement was signed by the DFS, lP.D.1, and later 

approved by the Court. 
3. LP.D.1 believes that she has successfully completed 

nearly all of the requirements of the service treatment 

agreement. [Emphasis added.] 

P.D. and her counsel clearly believed that a court-approved 

treatment plan was in place and that she was required to comply 

with the terms of this treatment plan. A review of the record 

reveals that P.D. failed to complete the requirements of the 

treatment plan which she believed governed these proceedings. 

P.D. now argues on appeal that the court cannot terminate her 

parental rights because it did not first approve a treatment plan. 

P.D. claims that without a court-approved treatment plan in place, 

her parental rights cannot be terminated under any circumstances. 

This Court has consistently interpreted abuse and neglect 

statutes to protect the best interest of the children. "In matters 

involving abused and neglected children we have consistently held 

that a district court may protect the children's best interest 

despite procedural error." In the Matter of F.H., J.K. and B.K., 

Youths in Need of Care (1994), 266 Mont. 36, 39, 878 P.Zd 890, 892. 

We have upheld the termination of parental rights absent a 

court-approved treatment plan. In the Matter of the Custody and 

Parental Rights of M.D., a/k/a/ M.S., a Youth in Need of Care 

(1993), 262 Mont. 183, 864 P.2d 783. In that case, the parent was 

incarcerated, refused to complete the recommended sexual offender 

program and refused to sign the proposed treatment plan. In the 

Matter of the Custody of M.D., 864 P.2d at 786. We held that court 

approval of the treatment plan was not necessary due to the 

parent's incarceration and noncompliance with the treatment 

9 
recommendations. In the Matter of the Custodv of M.D., 864 P.2d at 

786-87. 

While P.D. was not incarcerated, she refused to sign the 

treatment plan and refused to fulfill the requirements contained 

therein. In light of our decision in In the Matter of the Custody 

of M.D., and the facts and circumstances of this case, we conclude 

that the absence of formal court approval of the treatment plan is 

not a bar to terminating P.D.'s parental rights. 

We note, for future termination proceedings, that a courtapproved treatment plan should be in place in every case except as 

specifically provided in 5 41-3-609(4), MCA. To clarify any 

confusion caused by our previous opinions, we observe that 5 41-3- 

609, MCA, does not require that the parent sign the treatment plan 

in order for the court to approve such a plan. Section 41-3-609, 

MCA, allows court approval of a treatment plan with or without the 

parent's signature. We also reiterate our warning to DPHHS to 

abide by the strict statutory requirements in termination proceedings or risk grave harm to the very children whom they seek to 

protect. See In the Matter of F.H., 878 P.2d at 890. 

We affirm the decision of the District Court. 

R 

Chief Justic 

10 
we concur: 

Ju tifes 
Justice Charles E. Erdmann specially concurring. 

While I have joined the majority opinion, it was with some 

reluctance. Justice Gray, in her dissent, reviews the statutory 

requirements of 5 41-3-609(l) (c), MCA, and the obvious fact that 

those requirements were not met in this case since there was no 

court approved treatment plan. In determining that this error does 

not warrant reversal, the majority relies on In the Matter of F.H. 

(1994), 266 Mont. 36, 878 P.2d 890, in which this Court held that 

a district court may protect the children's best interests despite 

procedural errors. Justice Gray dissented in In the Matter of F.H. 

on the same basis that she does here, noting that repeated 

"signals" from this Court had gone unheeded by DFS (now DFHHS). I 

share those concerns. 

The Legislature has established certain procedures that must 

be followed in terminating parental rights. Although the 

Legislature did not adopt an exception allowing district courts to 

disregard procedural requirements if the best interests of the 

children are involved, this Court has done so. The existence of 

this Court-created exception to the statutory requirements has the 

effect of tolerating if not condoning improper procedures. 

I have joined with the majority only because the actions taken 

by DFS in this case occurred prior to the issuance of In the Matter 

of F.H. on July 12, 1994. DFS did not have the benefit of 

reviewing the cautions contained in Justice Gray's dissent and 

Justice Nelson's concurring opinion in that case prior to filing 

the petition in this matter. 

12 
The difficulty in this area, and no doubt the reason for the 

creation of the exception in In the Matter of F.H., is that the 

very children DFHHS is charged to protect are endangered when these 

cases are reversed or remanded. With the continuation of this 

judicially-created exception, however, there is little incentive 

for DFHHS to comply with the statutory requirements. 

DFHHS should heed the warning contained in both the majority 

and dissenting opinions or risk reversal on the basis of procedural 

errors in the future. 

a= 

Justice 

13 
Justice Karla M. Gray, dissenting 

I respectfully dissent from the Court's opinion because I will 

not be a party to the Court's continued refusal to require DFS (now 

DPHHS) to comply with clear legislative mandates. I would reverse 

the District Court's termination of P.D.'s parental rights without 

a court-approved treatment plan because the law permits no other 

result in this case. 

The dispositive issue in this case is simple and to the point. 

It requires only that we apply the plain language of § 41-3- 

609(l) (cl, MCA, to the record before us. Neither this Court's 

refusal to address the statute in discussing issue 4, regarding the 

absence of a court-approved treatment plan, nor the Court's 

repeated efforts to misdirect attention away from clear and 

mandatory statutory language alter the requirement of a courtapproved treatment plan contained in the statute. 

Section 41-3-609(l) cc), MCA, authorizes a court to terminate 

parental rights upon a finding that the child is an adjudicated 

youth in need of care "and both of the followinq exist:" 

(i) an appropriate treatment plan that has been aooroved 

bv 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. [Emphasis added.] 

A straightforward reading of the statute can result only in a 

conclusion that the threshold mandate of the remaining criteria in 

5 41-3-609(l) (c) (i) and (ii), MCA, is the existence of a courtapproved appropriate treatment plan. Unless and until such a plan 

14 
exists, the "no compliance/not successful" and "unlikely to change" 

criteria never come into play. The legislature's intent and the 

rationale underlying that intent are clear: a parent's conduct in 

successfully complying can be measured only against an appropriate 

treatment plan that has been approved by the court. 

In this case, the record is equally clear. No appropriate 

treatment plan approved by the District Court exists. Thus, the 

law permits only one valid legal conclusion by this Court: that 

the District Court erred in terminating P.D.'s parental rights. In 

concluding otherwise, this Court violates the statutory 

responsibility imposed on it by § l-2-101, MCA, by judicially 

deleting from 5 41-3-609(l) cc), MCA, the requirement of a courtapproved plan clearly contained therein. In doing so, of course, 

the Court intrudes into and directly contravenes the legislature's 

constitutional authority. 

1n charting such a course, the Court presents a number of "red 

herrings," apparently hoping to draw the reader's attention away 

from what the law so clearly requires. First, the Court notes that 

P.D. refused to sign the plan. The problem with this statement is 

that the statute does not require that the parent do so. Next, the 

Court observes that the plan was filed with the District Court, but 

not "officially signed" by that court. By means of this 

observation, the Court attempts to suggest that the District 

Court's "official signing" of the plan is a mere ministerial act 

and is all that 5 41-3-609(l) (c) (i), MCA, requires or contemplates. 

Nothing could be farther from the truth. 

15 
The legislature's mandate that the treatment plan filed by DFS 

be approved by a court is neither ministerial nor nonsubstantive. 

The legislature recognized throughout the statutes regarding 

termination of parental rights that, while DFS is the state agency 

in which initial decisions regarding the protection of children is 

vested, DFS cannot be permitted to act in these important areas 

without court involvement. Thus, the treatment plan promulgated by 

DFS--whether or not agreed to by the parent(s) involved--must be 

reviewed by a court to determine whether it is appropriate; if so, 

it must be affirmatively approved by the court. The statutory 

requirement is a clear statement of legislative intent that the 

court's role is not to merely "rubber stamp" agency decision-making 

by "officially signing" DFS' treatment plan; the court's role is to 

ensure that the agency is not given unbridled discretion in areas 

as important as terminating the most fundamental relationship in 

the world--that of parent and child. 

But this Court does not stop with these two efforts to detract 

attention from its failure to apply clear statutory language. It 

goes on at some length to point out that, during some phases of the 

proceedings, all parties operated under the mistaken belief that a 

court-approved treatment plan existed and that P.D. "failed to 

complete the requirements of the treatment plan which she believed 

governed these proceedings." These matters are irrelevant here. 

What this Court fails to point out is that this case does not 

involve the parties' "belief" regarding existence of a courtapproved plan throughout the proceedings in the District Court. In 

16 
such a case, the parent would have waived any right to later 

challenge the outcome on that basis; if raised in this Court, we 

would not address the issue because it had not been preserved in 

the District Court and would not be properly before us. In fact, 

the record in this case is clear that P.D. did object to the 

absence of a court-approved treatment plan in the District Court. 

Nor is the fact that P.D. failed to complete the requirements 

of the treatment plan she believed existed during earlier phases of 

the District Court proceedings pertinent here. As a matter of law, 

*0 statutorily-required court-approved treatment plan existed 

against which her conduct could be measured as to compliance and 

success. 

Finally, by citing to In the Matter of F.H., J.K. and B.K. and 

In the Matter of the Custody of M.D., the Court seems to herald and 

celebrate its now nearly two-decade old refusal to apply the law as 

enacted by the legislature and its concomitant permission to DFS to 

ignore the law. While it is true that the Court ends its opinion 

with a tepid shaking of its collective finger at DFS via a 

"reiteration" of a long-standing "warning" to DFS--and, perhaps, to 

the district courts of Montana--neither the agency nor attorneys 

nor district courts are likely to take this "warning" any more 

seriously than they have taken the previous warnings. And why 

should they? With the addition of every opinion from this Court in 

which an agency of the State of Montana is allowed to avoid legal 

mandates, it becomes harder and harder for the Court to break away 

from this ill-chosen and insupportable path, because in every "next 

17 
case” agency lawyers will argue that it is not fair that clear 

legal requirements should finally be applied as written in their 

case. And so the Court continues to allow a state agency to 

blithely ignore the law with impunity. 

It is important to look back at the cases in which this Court 

has "warned" DFS and its predecessor agency that it must comply 

with legal mandates. As early as 1977, this Court "strongly 

condemned" DFS' disregard of the law. In re Gore (1977), 174 Mont. 

321, 329, 570 P.2d 1110, 1115. In that case, SRS (DFS' predecessor 

agency with regard to protecting children) ignored a legislativelyimposed 4%hour filing requirement for an emergency protective 

services petition after removing children from a home. We noted 

that SRS had removed the children under the guise of the law and 

that it had a duty to "strictly adhere to the requirements of that 

same law." In re Gore, 570 P.2d at 1115. 

Seventeen years later, in one of the cases to which the Court 

cites in its opinion here, we said we "sound a stern warning to DFS 

to strictly follow the statutory procedure in future cases or we 

will, in no uncertain terms, punish its conduct . . _I' Matter of 

F.H. (19941, 266 Mont. 36, 40, 878 P.2d 890, 893. One can hardly 

say that DFS has heeded our strong condemnation and stern warning! 

Of at least equal importance, one can hardly say that in this case 

the Court is, "in no uncertain terms," punishing DFS' continued 

refusal to comply with the very law under which it operates! I 

dissented strongly in Matter of F.H. for the same reasons I dissent 

here: the Court's actions in these regards are not permitted as a 

18 
matter of law and serve only to encourage DFS--and others--to 

ignore both the law and this Court. 

Finally, the Court's reliance on Matter of Custody of M.D., is 

misplaced. In that case, as in this one, no court-approved 

treatment plan existed. The incarcerated parent argued that his 

parental rights could not be terminated. We disagreed, because 

5 41-3-609(4) (b), MCA, provides that a court-approved treatment 

plan is not required if the court finds that "the parent is 

incarcerated for more than 1 year and such treatment plan is not 

practical considering the incarcerationL.1 I' Matter of Custody of 

M.D. (1993), 262 Mont. 183, 186, 864 P.2d 783, 786. 

In Matter of Custody of M.D., a specific statutory exception 

to the court-approved treatment plan existed and was properly 

applied to the facts of record. Here, P.D. was not incarcerated. 

As a result, neither Matter of Custody of M.D. nor the statutory 

exception upon which we relied there applies to the present case. 

I share the Court's concern about the children of Montana. 

Indeed, there is room for concern about returning P.D.'s children 

to her pending a District Court proceeding in which DFS is required 

to follow the law. The appropriate resolution of this case is not 

for this Court to continue to countenance the violation of the law 

by DFS. The appropriate resolution is to reverse the District 

Court and order that the status quo regarding the children be 

maintained pending further proceedings during which legal mandates 

are met. I would remand for the filing by DFS (now DPHHS), within 

30 days, of an appropriate treatment plan for the District Court's 

19 
timely consideration and for such other procedures and proceedings 

as the law requires thereafter 

Justice W. William Leaphart joins the foregoin 

Justice Karla M. Gray. 

Justice James C. Nelson, dissenting. 

I join Justice Gray in her dissent. She was correct in 

dissenting in Matter of F.H., and she is correct in her analysis 

and dissent here. While agreeing with her dissent in Matter of 

F.H. -I I nevertheless signed the Court's opinion in the hope -- 

misplaced, as it turns out -- that, perhaps, a further warning to 

DFS (DPHHS) would suffice. It has not; and, for me, at least, this 

case is the straw that broke the camel's back 

While Justice Erdmann points out that Matter of F.H. was 

issued subsequently to DPHHS' actions here, nevertheless the 

District Court's Findings of Fact and Conclusions of Law were 

entered over two months after our opinion in that case. 

Accordingly, DPHHS' failure to comply with § 41-3-609(l) (c), MCA, 

could have and should have been addressed at that point in time by 

denying the petition to terminate P.D.'s parental rights and, 

instead, requiring compliance with the statute.