No. 81-232 INTHE SUPREBE COURT OF THE STATE OF IIONTANA 1981

INTHE MATTER OF J.H., a youth.

Appeal from: DistrictCourt of theEighthJudicialDistrict, Inand fortheCounty of Cascade Honorable JoelG. Roth, Judge presiding. Counsel of Record: For Appellant: Robert M. Kampfer argued, Great Falls, Montana For Respondent: J. Fred Bourdeau, CountyAttorney, Great Falls, Montana Barbara Bellargued, Deputy CountyAttorney, GreatFalls,

Montana Cameron Ferguson, GreatFalls, Montana Bonnie Sutherland, GreatFalls, Montana

Submitted: December 2, 1951 Decided: 

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# . Justice John Conway darrison delivered the Opinion of the Court. H.H., the father of J.H., appeals a decision of the highth Judicial District, in and for the County of Cascade, finding thatJ.H. 

### is ayoutn inneed ofcareasanabused or neglected child. n October 22, 1980, the Department of Social and Kel~abilitationServices filed a petition in the District Court alleging that J.H. was a youtn in need of care. Hearings were held November 18 and December 4, 1980. 'l'estimonyof the child indicated that he had been sexually abused by his father a couple of times amonth since the age of five or six. The boy's mother and a social worker also testified about sexual abuse of the son that the father had discussed with them. The father testified he £elt his sexual contact witn his son was beneficial, as exposing him to homosexuality at

a young aye would make it distasteful for him and prevent him from becoming homosexual. He noted that he had "helped" many young men in the community with thisproblem. During the December 4, 1980, hearing, the father moved to dismissbecause he had been declared incompetent to proceed in a collateral criminal (deviant sexual conduct) action, presumably was not competent to proceed in this action, and, therefore, could not adequately protect his interests. Hismotion wasdenied. Prior to the instant case, the boy plead true to attempted arson. A dispositionalhearing washeld, and J.H. was placed at Yellowstone Boys Ranch until the age of eighteen. Thus, the court determined there was no need for

a dispositional hearing in this case, and on January 19,1981, the court ruled that J.H. was a youtn inneed of care

asan abused or neglected child. The father appeals. Five issuesareraised on appeal: 1. May a wife testify about her husband's sexual abuseof their son? 2. Is section 41-3-404(3), MCA, unconstitutionally void for vagueness? 3. Is there sufficientevidence tosupport thetrial court's finding that J.H. is a youtn in need of care as an aDused or neglected child? 4. Is it proper to hold a youth in need of care proceeding even though the father was unfit toproceed in a collateralcriminalcase? 5. Should adispositional hearinghave been held?

SPOUSAL PRIVILEGE May a wife testify about her husband's sexual abuse of their son? We hold thatthewifemay testify. Section26-1-802, MCA, provides: "Spousal privileqe. A husband cannot be examingd-for or aqainst hiswife without her - consent or a wife for or against her husband without his consent; nor can either, during the marriage or afterward, be, without the consent of the other, examined as to any communicationmade by one totheother during the marriage; but this exception does not apply to a civil actionor proceeding by one against theother or toa criminal action or proceeding for a crime committed by one againsttheother." The purpose of the spousal privilege is to protect the sanctity of the marriage and home. State v. Taylor (1973),163Mont. 106, 515 P.2d 695. However, once a family member has been sexually abused, the sanctity of the home and thereason for therulehave been destroyed.Sexual abuse of the son by the father is also a "special wrong to the wife and has 'particularly and directly' affected her in a manner other than that suffered by the public in general." Chamberlain v. State (Wyo. 1960), 348 P.2d 280, 284. Thus, the "wrong" against the child is "nothing more nor less than a 'wrong' against the other [spouse]." Chamberlain, 348P.2d at 284. As such, it falls into one of the exceptions to the spousal privilege. Section 26-1-802, MCA. InChamberlainv. State, supra,the courtnoted: "Each of the states, territories and possessions of our country, aswell as the Phillipine Islands, now has statutes relating to competency of a spouse to testify against the other in criminal cases, but they are not uniform. In attempting some general classification of these laws, we find statutes of several jurisdictions making the spouse competent, but not compellable, to testify; a few states where they may be compelled to testify; and a large majority where such testimony is permissible when the accused is charged with violence or crime against the other spouse. Witnin the lastgroupare some states which allow the testimony when the crime, violence or injury is committed against a minor child of the witness. It also appears that about one-fourth of the jurisdictions have statutes which read substantially the same as our own statute. See 2 Wigmore on Evidence, 3d ed., S488 and 1957 Supp.

"In 97 C.J.S. Witnesses S101,p. 504, it is said: "'Under statutory exceptions permitting husband or wife to testify against the other in aprosecution for a crimecommitted by one against the other,the right of one spouse to testify against the other exists in cases of violence against the person, and has by some authorities been limited to such offenses, such authorities construing statutes of this character asmerely declaratory of the common law,although other authorities take the view thatunder such statutory exception awife is competent to testify against her husband in aprosecution for any crime ofhisby which she is particularly and directly injured or affected, the statutue being construed as rendering one spouse competent against the other in the latter's prosecution for any offense against the marriage relation or status, although holding one spouse incompetent to testify against the other where the crime is clearly one not against the person or property of the other,or even against the marital status. "'Statutes permitting either spouse to testify against the other in all cases in which an injury has been done by either against the person or property of either are not limited to cases wherein there is a physical injury the the person of a spouse, but includes prosecutions for crimes especially injuring one spouse, although involving nophysical injury.'

"In 8Wigmore on Evidence, 3d ed., S2239,p. 251, commenting on the exception to the rule of exclusion which was recognized at common law, it is said:

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## ** * Justhow far the concessionwent, in concrete cases, was never precisely settled. Itwas given varying definition at different times; it certainly extended to causes involving corporal violence to the wife; and it certainly did not extend to all wrongs done to the wife. In modern statutes the spirit of the exception has usually been invoked to establish the exception for both husband and wife in all causes involvina a d "crime against the other", or a "personal wrong".' (Emphasis supplied.)" 348 P.2d at 282-283. Since 1960, the time of the Chamberlain opinion, there has been a continual growth in the jurisdictions recognizing an exception in cases such as this. See: People v. Gibson (1957), 152 Cal.App.2d 149, 312 P.2d 705; Jordan v. People (1966), 161 Colo. 54, 419 P.2d 656; Balltrip v. People (1965), 157 Colo. 108, 401 P.2d 259; State v. Whitaker (1975), 112 Ariz. 537, 544 P.2d 219; United States 

### v. Allery (8th Cir. 1975), 526 F.2d 1362; Commonwealth v. Maroney (1964),414 Pa. 161, 199 A.2d 424;Garciav. State (Tex.Crim.App. 1978), 573S.W.2d 12. In a majority of child abuse cases, a parent is the perpetrator. Evidentiary Problems inCriminalChildAbuse Prosecution, 63 Geo. L. J. 257, 258 (1974). Often, spouses are the only witnesses in these cases. Todiscourage sexual

or other abuses of children, spouses should be allowed to testify against each other in child abuse proceedings. See, United States v. Allery (8th Cir. 1975), 526 F.2d 1362, 1366-1367. In any event,part of the testimony the father finds objectionable concerns husband-wife communications with third parties present. Other "objectionable" testimony involves the wife's feelings, rather than actual husbandwife communications. Both are exceptions to the spousal privilege. Thompson

### v. Steinkamp (1947),120Mont. 475, 187 P.2d 1018; State v. Houchin (1967),149Mont. 503, 428 P.2d 971; cf

## ., State v. Roberts (1981),

# -Mont

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# - , 633 P.2d 1214, 38 St.Rep. 1551. Thus, we hold that the wife may testify about the husband's sexual abuse of their son.

11. CONSTITUTIONALITYOF SECTION 41-3-404,MCA Is section 41-3-404(3), MCA, unconstitutionally void for vagueness? Section41-3-404(3),MCA,provides: "(3) In all civil and criminal proceedings relating to abuse, neglect, or dependency, none of the privileges related to the examination or treatment of the child and granted in Title 26, chapter 1, part 8, except the attorney-client privilege granted by 26-1-803, apply." The father claims that it is unclear whether section41-3-404(3), MCA, allowsparents to testify inyouth in need of care proceedings, and it is therefore unconstitutionally void for vagueness. We find no vagueness in the above statute. It provides that, with the exception of the attorney-client privilege granted under section 26-1-803, MCA, no exceptions are granted in civil and criminal proceedings related to abuse, negligence or dependency actions. Having found previously that under section 26-1-802, MCA, that awife may testify againsther husband in a sexual abusehearing,we have, therefore,determined that the above statute isnot unconstitutionallyvoid due to vagueness.

111. SUFFICIENCYOF THEEVIDENCE Is there sufficient evidence to support the trial court's findings that J.H. is ayouth in need of care as an abused or neglected child? We find sufficientevidence. Findings of fact of the trial court shallnot be set aside unless clearly erroneous. Rule 52(a), M.R.Civ.P. Testimony here indicates that there had been a pattern of abuse by the father in the home. Further, the father believes his actions are beneficial, and he consequentlyhas no incentive to change. We therefore conclude that the findings of the trial court were not clearly erroneous and that J.H. is a youth in need of care as an abused or neglected child.

IV. FATHER'S COMPETENCE Due to 

### the unusual nature of this case, it isnecessary to point out that the testimony given by the father in thismatter was at a hearing to determine whether his son was abused and neglected. The father was present with counsel, and at the end of the proceedings requested through counsel that he be allowed tomake apresentation to the court. The father was sworn and testified, giving some sixty-three pages of testimony concerning the family situation. Noobjectionsweremade to this testimony. The trial judge had an opportunity to observe the father and weigh his testimony as it concerned the hearing with regard to the son. While the father claims that since he had been declared unfit to proceed in a collateral criminal action,he is also unfit to proceed in this civil action, the record in no way indicates that he has been declared an incompetent. In fact, the record does not reveal any loss of status which would prevent him from proceeding in this matter. In addition, section 53-21- 141(1), PICA, provides that, "[ulnless specifically stated in

anorder by the court, aperson involuntarily committed to a facility for a period of evaluation or treatment does not forfeitany legal right or suffer any legal.disability. 

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# ." There is nothing in the record to indicate that the father

was declared unfit to proceed in anything except the criminal proceeding. Therefore, he retains his right to proceed ina civilaction. Further

### , the party asserting incompetence has the burden of proving it, Hodges v. Hodges (1967), 150 Mont. 413, 435 P.2d 784, and a person is presumed competent to testify unless the court finds otherwise. See, Rule 601, Mont.R.Evid. Thus, with no affirmative showing ofincompetencetoproceed in thiscivil action, wepresume the fatherwas competent. Finally, the father could have requested a guardian ad litem to be appointed if he felt his attorney was not properly representinghim. See,Rule 17(c),M.R.Civ.P. Therefore,we hold that it wasproper in this case to proceed with the youth in need of care proceeding despite the fact that the father was declared unfit to proceed in a collateral criminal action.



### V. DISPOSITIONAL HEARING Should a dispositional hearing have been held? We hold that a hearing should have been held, but failure in this case tohold onewas harmless error. Montana statute, section41-3-404(4)(b), MCA, clearly mandates adispositional hearing: "If the court determines that theyouth is an abused, neglected, or dependent child, the court shall set a date for a dispositional hearing and order any necessary or required investigations. The dispositional hearing shall be scheduled as soon as practicable. The courtmay issue a temporary dispositional order pending thedispositional hearing. The temporary dispositional order may provide for any of the forms of relief listed in 41-3- 403(2)

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In this case one dispositional hearing had already been held in the arson case, and J.H. was placed at Yellowstone Boys Ranch. Since the trial court held that J.H. was a youth in need of care, it is unlikely that he would have been removed fromYellowstone Boys Ranch even if

a second dispositional hearing had been held. Failure to hold a dispositional hearing cannot be condoned by this Court,but in this case the error was harmless.A£firmed

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Weconcur: 

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# na Chief Justice