No. 95-011 INTHESUPREMECOURTOFTHESTATEOFMONTANA 1995

INTHEMATTEROFINQUIRY 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.

COUNSELOFRECORD:

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 onBriefs: October 19, 1995 Decided: November 21, 1995 .P !9,!P ClebkChief Justice J. A. Turnage, delivered the Opinion of the Court.

P.D., the mother of M.M., A.D. andL.D., appeals the decision of the Tenth Judicial District Court, Fergus County, terminating her parental rights. Weaffirm. P.D. raises the following issues onappeal: 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 GwenGlidewell? 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 acourt-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. hasneither sought nor received child support from any of the fathers. The father of M.M. filed arelinquishment of his parental rights. The fathers of A.D. and L.D. were served by publication, failed to respond, andadefault judgment terminated their parental rights. OnFebruary 1, 1993, the Fergus County Attorney, onbehalf of the Department of Family Services (DFS, nowpart of the Department of Public Health andHumanServices, or DPHHS), filed apetition in the Tenth Judicial District Court for temporary investigative authority and protective services for M.M., A.D. and L.D. Thepetition 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 onFebruary 16, 1993. OnMay3, 1993, the Fergus County Attorney filed apetition for the termination of P.D.'s parental rights and also for DFSto 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 andgranted DFSpermanent 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 beset forth asnecessary below. Issue 1 Did the District Court commit reversible error by admitting hearsay testimony of P.D.'s minor children? Wereview district court evidentiary rulings to determine if the court abused its discretion. Masonv. Ditzel (1992), 255Mont. 364, 370-71, 842 P.2d 707, 712. Wewill not reverse evidentiary rulings absent amanifest abuse of discretion. Mason, 842P.2d at 712. Additionally, "a reversal cannot bepredicated upon anerror in admission of evidence, where the evidence in question wasnot of such acharacter to have affected the result." Mason, 842P.2d at 712 (quoting Laumanv. Lee (1981), 192Mont. 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 atermination of the parentchild legal relationship upon afinding that any of the following circumstances exist: 

### ici the child is anadjudicated 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 bythe 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 achild whose health orwelfare is harmed orthreatened harm byacts or omissions of aperson responsible for the child's welfare. Section 41-3-
102 (8)) MCA(1993), defines "harm to achild's health or welfare"
as: the harm that occurs whenever the parent orother 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 becommitted 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 dosoor offered financial or other reasonable means to doSOL.] [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 byat least two of her male acquaintances, she insists that she did not know of the sexual abuses at the times they occurred. Sheclaims that implicit in the term "a11ow" is the idea that she had someknowledge that the abuse occurred and yet did nothing to prevent it. Shefinally argues that the prosecu4tion's only evidence that she knew that the sexual abuse occurred

wasthe hearsay testimony of atherapist repeating statements made to her by P.D.'s daughters. P.D. maintains that the hearsay
statements of her daughters donot satisfy anyof the exceptions to

or exclusions from the hearsay rule and therefore should not have been admitted at trial. Wedisagree with P.D.‘s argument. First, P.D. presents no authority for her assertion that the phrase "allows tobecommitted 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 andneglect "include harm or threatened harm to achild's health or welfare by the acts or omissions of aperson responsible for the child's welfare." [Emphasis added.] This Court has previously held that acts or omissions of aparent
or guardian are sufficient to satisfy the requirement of abuse and neglect. See In the Matter of C.A.R. andP.J.R., Youths in Needof Care (1984), 214Mont. 174, 184, 693P.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. Thecourt found that "even if shedid not knowof the abuse, she failed to notice what was occurring and repeatedly left the children with persons whowere not competent or safe caretakers." Such afinding is supported bythe evidence presented at trial and satisfies the requirements of 541-3-102(5) (b), MCA(1993).

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

failed todetect the abuse andleft her children with inappropriate supervision. Regardless of P.D.'s knowledge of her daughters' sexual abuse, there is sufficient evidence to support afinding that M.M., A.D. andL.D. are youths in need of care. Thedisputed 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 washarmless. Mason, 842P.2d at 712. Issue 2 Did the District Court err in affording undue weight to the testimony of GwenGlidewell? Glidewell lived with P.D. andher children for ashort 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 oncross-examination, Glidewell was exposed as an incredible witness who had a motive to testify falsely against her. Innonjury trials, the credibility of awitness andthe weight which his or her testimony should beafforded 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, aswell as the other witnesses' testimony, the court determined that Glidewell wasacredible 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 tobeacredible, 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 acontinuance 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. Wereview 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. hadalready presented testimony from
onewitness which tended toimpeach GwenGlidewell's reputation for truth andhonesty. Thecourt determined that P.D.'s trial counsel
wasgiven sufficient notice of GwenGlidewell's testimony andthat additional impeachment testimony wasunnecessary. Weconclude that

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

trial counsel's motion for acontinuance. Issue 4 Did the District Court err in terminating P.D.'s parental rights absent the existence of acourt-approved treatment plan? Section 41-3-609, MCA(1993), states, in relevant part: The court may order atermination of the parentchild legal relationship upon afinding that any of the following circumstances exist: 

### ici the child is anadjudicated youth in need of care and both of the following exist: (i) an appropriate treatment plan that has been approved bythe court has not been complied with bythe 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, DFSprepared andexecuted atreatment plan; however, P.D. refused to sign the plan. The treatment plan was filed with the District Court, but wasnever officially signed bythe District JudgeWhile the District Court never approved the treatment plan, all parties involved apparently proceeded under the assumption that there wasacourt-approved treatment plan in place. In aRequest for Status Report onService 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 aduplicate original of the agreement was signed by the DFS, lP.D.1, and later approved bythe 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. nowargues onappeal that the court cannot terminate her parental rights because it did not first approve atreatment plan. P.D. claims that without acourt-approved treatment plan in place, her parental rights cannot beterminated under any circumstances. This Court has consistently interpreted abuse and neglect statutes toprotect the best interest of the children. "In matters involving abused andneglected children wehave consistently held that adistrict court may protect the children's best interest despite procedural error." In the Matter of F.H., J.K. and B.K., Youths in Needof Care (1994), 266Mont. 36, 39, 878P.Zd 890, 892. Wehave 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., aYouth in Need of Care (1993), 262Mont. 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., 864P.2d at 786. Weheld that court approval of the treatment plan was not necessary due to the parent's incarceration and noncompliance with the treatment
9recommendations. Inthe Matter of the Custodv of M.D., 864P.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., andthe facts andcircumstances of this case, weconclude that the absence of formal court approval of the treatment plan is not abar to terminating P.D.'s parental rights. Wenote, for future termination proceedings, that a courtapproved treatment plan should bein place in every case except as specifically provided in 5 41-3-609(4), MCA. To clarify any confusion caused byour previous opinions, weobserve that 541-3- 609, MCA,does not require that the parent sign the treatment plan in order for the court to approve such aplan. Section 41-3-609, MCA, allows court approval of atreatment plan with or without the parent's signature. Wealso reiterate our warning to DPHHSto abide bythe strict statutory requirements in termination proceedings or risk grave harm to the very children whomthey seek to protect. See In the Matter of F.H., 878 P.2d at 890. Weaffirm the decision of the District Court.



## R Chief Justic

10

### weconcur:

Jutifes

### Justice Charles E.Erdmannspecially concurring.

While I havejoined the majority opinion, it waswith some reluctance. Justice Gray, in her dissent, reviews the statutory requirements of 541-3-609(l) (c), MCA,andthe obvious fact that those requirements were not met in this case since there wasno court approved treatment plan. Indetermining that this error does not warrant reversal, themajority relies onInthe Matter of F.H. (1994), 266Mont. 36, 878P.2d 890, inwhich this Court held that
adistrict court mayprotect thechildren's best interests despite procedural errors. Justice Graydissented in IntheMatter of F.H.
on the samebasis that she does here, noting that repeated "signals" from this Court hadgoneunheededbyDFS(nowDFHHS). I share those concerns. TheLegislature hasestablished certain procedures that must be followed in terminating parental rights. Although the Legislature did not adopt anexception allowing district courts to disregard procedural requirements if the best interests of the children are involved, this Court hasdoneso. Theexistence of this Court-created exception tothestatutory requirements hasthe effect of tolerating if not condoning improper procedures. Ihavejoined with themajority only becausethe actions taken byDFSinthis caseoccurred prior tothe issuance of IntheMatter of F.H. on July 12, 1994. DFSdid not have the benefit of reviewing the cautions contained in Justice Gray's dissent and Justice Nelson's concurring opinion in that caseprior to filing the petition inthis matter. 

### 12The difficulty in this area, andnodoubt the reason for the

creation of the exception in In the Matter of F.H., is that the very children DFHHSis charged toprotect are endangered whenthese
cases are reversed or remanded. With the continuation of this judicially-created exception, however, there is little incentive for DFHHSto comply with the statutory requirements. DFHHSshould heed the warning contained in both the majority anddissenting opinions or risk reversal onthe basis of procedural
errors in the future.

a= Justice

13Justice Karla M.Gray, dissenting

Irespectfully dissent from the Court's opinion because Iwill not beaparty to the Court's continued refusal to require DFS(now DPHHS)tocomply with clear legislative mandates. Iwould reverse the District Court's termination of P.D.'s parental rights without
acourt-approved treatment plan because the law permits noother result in this case. Thedispositive issue in this case is simple andto 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 acourt to terminate parental rights upon afinding that the child is an adjudicated youth in need of care "and both of the followinq exist:" (i) anappropriate treatment plan that has been aooroved bvthe court hasnot been complied with bythe 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 541-3-609(l) (c)(i) and (ii), MCA, is the existence of acourtapproved appropriate treatment plan. Unless anduntil such aplan 14exists, the "nocompliance/not successful" and"unlikely tochange"

criteria never come into play. The legislature's intent and the rationale underlying that intent are clear: aparent's conduct in successfully complying canbemeasured only against anappropriate treatment plan that has been approved bythe court. In this case, the record is equally clear. Noappropriate 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 541-3-609(l) cc), MCA, the requirement of acourtapproved plan clearly contained therein. In doing so, of course, the Court intrudes into anddirectly contravenes the legislature's constitutional authority. 1ncharting such acourse, the Court presents anumber of "red herrings," apparently hoping to draw the reader's attention away from what the law soclearly requires. First, the Court notes that P.D. refused to sign the plan. Theproblem with this statement is that the statute does not require that the parent doso. Next, the Court observes that the plan wasfiled 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 amere ministerial act andis all that 541-3-609(l) (c)(i), MCA,requires or contemplates. Nothing could befarther from the truth.
15Thelegislature's mandate that the treatment plan filed byDFS

beapproved by acourt is neither ministerial nor nonsubstantive. The legislature recognized throughout the statutes regarding termination of parental rights that, while DFSis the state agency in which initial decisions regarding the protection of children is vested, DFScannot 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 byacourt to determine whether it is appropriate; if so, it must be affirmatively approved by the court. The statutory requirement is aclear statement of legislative intent that the court's role is not tomerely "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 andchild. But this Court does not stop with these two efforts to detract attention from its failure to apply clear statutory language. It goes onat somelength topoint out that, during somephases 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 shebelieved 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
16such a case, the parent would have waived any right to later

challenge the outcome onthat basis; if raised in this Court, we would not address the issue because it hadnot been preserved in the District Court andwould not beproperly before us. In fact, the record in this case is clear that P.D. did object to the absence of acourt-approved treatment plan in the District Court. Nor is the fact that P.D. failed to complete the requirements of the treatment plan shebelieved existed during earlier phases of the District Court proceedings pertinent here. Asamatter of law,

*0 statutorily-required court-approved treatment plan existed against which her conduct could bemeasured as to compliance and
success. Finally, byciting to In the Matter of F.H., J.K. andB.K. and In the Matter of the Custody ofM.D., the Court seems to herald and celebrate its nownearly two-decade old refusal to apply the law as enacted bythe legislature andits concomitant permission to DFSto 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 along-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 anagency of the State of Montana is allowed to avoid legal mandates, it becomes harder andharder for the Court to break away from this ill-chosen andinsupportable path, because in every "next

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

legal requirements should finally be applied aswritten 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" DFSand its predecessor agency that it must comply with legal mandates. As early as 1977, this Court "strongly condemned" DFS' disregard of the law. In reGore (1977), 174Mont. 321, 329, 570P.2d 1110, 1115. Inthat case, SRS(DFS' predecessor agency with regard toprotecting children) ignored alegislativelyimposed 4%hour filing requirement for an emergency protective services petition after removing children from ahome. Wenoted that SRShad removed the children under the guise of the law and that it hadaduty to "strictly adhere to the requirements of that
samelaw." In re Gore, 570 P.2d at 1115. Seventeen years later, in oneof the cases to which the Court cites in its opinion here, wesaid we"sound astern warning to DFS to strictly follow the statutory procedure in future cases or we will, in nouncertain terms, punish its conduct

. . _I' Matter of F.H. (19941, 266Mont. 36, 40, 878 P.2d 890, 893. Onecan hardly say that DFShasheeded our strong condemnation and stern warning! Ofat least equal importance, onecanhardly say that in this case the Court is, "in nouncertain 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 samereasons Idissent here: the Court's actions in these regards are not permitted asa
18matter of law and serve only to encourage DFS--and others--to

ignore both the law and this Court. Finally, the Court's reliance onMatter of Custody ofM.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. Wedisagreed, because 541-3-609(4) (b), MCA, provides that acourt-approved treatment plan is not required if the court finds that "the parent is incarcerated for more than 1year and such treatment plan is not practical considering the incarcerationL.1 I' Matter of Custody of M.D. (1993), 262Mont. 183, 186, 864P.2d 783, 786. In Matter of Custody of M.D., aspecific statutory exception to the court-approved treatment plan existed and was properly applied to the facts of record. Here, P.D. wasnot incarcerated. Asaresult, neither Matter of Custody of M.D. nor the statutory exception upon which werelied 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 aDistrict Court proceeding inwhich DFSis required to follow the law. Theappropriate 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. Iwould remand for the filing byDFS (nowDPHHS), within 30days, of anappropriate treatment plan for the District Court's
19timely consideration andfor such other procedures andproceedings

asthe 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, afurther warning to DFS(DPHHS)would suffice. It hasnot; 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 andshould 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.