### No. 92-317 IN THE SUPREME COURT OF THE STATE OF MONTANA

KA.RREN KANC, 

### Plaintiff



### -vBILLY MILLER, Defendant and Appellant,

?' 

### and Respondent.

APPEAL FROM: District Court of the Eighth Judicial District, In and for the County of Cascade, The Honorable R. D. McPhillips, Judge presiding.

COUNSEL OF RECORD: For Appellant: Patrick F. Flaherty, Great Falls,Montana For Respondent: Joan Cook, Great Falls, Montana

Submitted on Briefs: December 17, 

### 1992 Decided: May 6, 1993 

### Filed:Justice Fred J. Weber delivered the Opinion of the Court. Appellant Karren Kane appeals the order of the District Court of the Eighth Judicial District. Cascade County, which granted defendant Billy Miller's motion for summary judgment in a legal malpractice action. We affirm. We flnd the following issue dlspositlve: Whether the District Court erred by granting defendant's motion for summary judgment. Ms. Kane's legal malpractice action originated from Mr. Millerisrepresenration in a proceeding initiated by the State to obtain permanent custody of Ms. Kane's sonJEH and to terminateher parental rights. Mr. Miller replaced Ms. Kane's former public defender,Nancy Belcheff, afterMs. Belcheff resignedherposition

as a Cascade County public defender in early March 1987. Mr. Millerwas the third attorney to representMs. Kane in thatmatter. The events leading to the parental rights termination proceeding began in 1984 when Ms. Kane called the Department of Social and Rehabilitative Services (SRS) and requested that 

### JEH, her eight-year-old son, be placed in residential placement because she could not control his violent behavior. Theyouth was removed fromMs. Kane's home and initiallyplaced in foster care. As early as July 18, 1985,Ms. Kane stipulated to a treatmentplanwith SRS. At that time, she was represented by her first attorney, Mark Bauer. On July 28, 1985,JEH was transferred to the Yellowstone Boys and Girls Ranch in Billings, Montana. A psychological

### evaluation was subsequently administered there. He has received psychological treatment since then with positive results. The stipulated treatment plan required Ms. Kane and her dauyhter to obtainpsychological evaluations

### by a llcensedcllnlcal psychologist and to follow any of the resultant recommendations. Although she agreed to follow the treatment plan, she did not comply with its provisions. Ms. 

### Kane and her 

### daughter had still not obtained psychological evaluations at the time of the final termination hearing nearly two years later. In July 1986, the District Court allowed Ms. Kane additional time to comply with the treatmentplan. A hearing was subsequently held onNovember 12, 1986, to terminateMs. Kane'sparental rights because she had still not complied with the SRS 

### treatment plan. The court again continued the hearing so as to allow Ms. Kane yet another opportunity to comply with the treatment plan. A final hearing was rescheduled forApril 2, 

### 1987. Mr. Miller was appointed to represent Ms. Kane shortly before the April 2, 1987 hearing. Testimony at that hearing established thatMs. Kaneha6 failed to comply with the court ordered treatment plan after nearly two years. SRS 

### employees testified to zheir opinion that no additional time should be allowed for Ms. Kane's compliancedue toJEH's need forpermanency and further treatment. A social worker and therapist both testified that Ms. Kane refused to comply because she felt that the problem was physical in nature and originated with the child.Other evidence, in the form of eleven separate medical statements from various doctors, indicated that JEH suffered from

no neurological disfunction. Italso established thatMs. Kanehad

L-,-.- Lanrii the boy to docturs since he 

### was a baby iuokiny foia medical explanation for continuing difficulties that she experienced with him. Doctors repeateely diagnosed no neurological disfunctior,, explaining JEH's behavior as the result of a severely disturbed mother-child relationship. Dr. Monte Kuka, a clinical psychologist, concluded in his diagnosis of JEH, that JEH was a deeply disturbed child with emotional problems thatwent back many years. He said the problem developed because the child felt abandoned by his mother and by several father figures and because themother had emotional problems. Also assessingMs. Kane in that

same year, he diagnosed her as having an inconsistent parenting style, angry outbursts and blaming JEH in an attempt to humiliate him with guilt. None of the doctor's diagnoses convincedMs. Kane that JEH's problems were emotional and not medical in nature. In February 1987, less than three months before the final hearing in the termination of parental rightsproceeding, Ms. Kane attended a foster care reviewmeeting at SRS and insisted that JEH had Tourette's syndrome. Ms. Kane had not previously attended any of these meetings which were designed to facilitate services provided by SRS. She explained her attendance thatparticular day

as essential, because if she did not attend the review, SRS would win and she wanted to show them that they were wrong.

### Throughout the duration of that proceeding, Ms. Kane dealt with several social workers from SRS. In 1986 she began working with Nancy Pallares-Hernandez. Ms. Pallares-Hernandez testified that althoughMs. Kane had been invoived with four sociai workers,

none of them had been able to help her. She testified that Ms. Kane resisted help because she refused to accept that she had a problem and continued to place all blame on 

### her son's 

### physical condition. Ms. Pallares-Hernandez testified that when shetried to

reassureMs. Kane that shedid indeedwant to help her and support her, suggesting that Ms. Kane go to mental health, Ms. Kane told her that "she doesn't trust the therapists and that she doesn't trust in the records: that SRS iswrong; that Judge Mc~ittrickis the prosecutor; that all the social workers are crazy; [and! that she is the only one who is okay." Ms. Pallares-Hernandez' efforts to help Ms. Kane included several letters which she wrote to Ms. Kane and home visits to encourage her to get the treatment that she desperately needed to improve the family's emotional environment so that JEH could be reunited with them. In 

### a letter dated August 22, 

### 1986, she told Ms. Kane that contacting a psychologist was at that time the only way tohelp her son. On October 1, 1986, shemailed another letter to Ms. Kane encouraging her to get psychological evaluations and reminding her of theupcominghearing. In February 1987, after the November hearing was continued to give Ms. Kane additional time to comply with the treatment plan, Ms. Pallares-Hernandez wrote another letter reminding her aboutthe importance of complying with

### the treatment plan before the next court hearing. In that letter shewrote: "This is the onlyway to have your child backwith you." On March 2, 

### 1987, she again wrote to Ks. Kane, reminding her of tne need to compiy wirh rhe courr order, ourlining JEH'svisits todoctorsand theirdiagnosesand again stating SRStposition that theproblem was themother-child relationship. In addition toMs. Fallares-Hernandez letters, Ms. Kane's previous attorney, Nancy Belcheff, in a letter dated February 18, 

### 1987,noted that she too had received copies of the SRS 

### lettersand stated: "If you refuse,

no lawyer in the world will be able to help you." Billy Miller began employment with the public defender's office in Cascade County in early March of 1987. He met with Ms. Kane once prior to the termination hearing. He could not locate her file at that time. Mr. Miller testified that he received the file a few days before the hearing. The only witness Mr. Miller called at the hearing to testify on Ms. Kane's behalf was her mother,who testified regarding the lovebetween Ms. Kane and JEH. Thehearing went forwardwith the State calling witnesses and Mr. Miller cross-examining them. The order resulting from that hearing terminated Ms. Kane's parental rights relating to JEH. On April 27, 

### 1990, Ms. Kane filed a complaint alleging that Mr. Millerhad committed professional negligence. In her complaint Ms. Kane alleged that Mr. Miller assured her thathe would request

a continuance and the continuance would be granted, as well as numerous other inadequaciesrelating toMr. Miller's representation in theparental terminationproceeding. The District Courtgranted

### Mr. Miller's motion for summary judgment twelve days before the scheduled trial date of Kay 14, 1992. Did the District Court err in granting defendant'smotion for summary judgment? Summary judgment is proper under Rule 56(c), M.R.Civ.P., when the movant has shown that there is no genuine issue as to any material fact, in light of the substantive legal principles entitling the movant to fudgment as a matter of law. Christophersonv. White, Inc. (1991), 250Mont. 118,120, 817 P.2d 1165, 1167. The purpose of Rule 56,M.R.Civ.P., is to dispose of those actions which do not raise genuine issues of material fact, and to eliminate the expense and burden of unnecessary trials. Berens v. 

### Wilson (1990). 246 Mont. 269, 271, 806 P.2d 14, 16. "Our scope of review is the same as the trial court and is a question of law. If as a 

### matter of law no genuine issue of material fact exists summary judgment isgranted." Christo~herson, 817P.2d at 1167. Generally,negligence issues arenot susceptible to summary judgment motions because of the factual issues involved in such cases. Lorash v. Epstein (l989), 236 Mont. 21, 24, 767 P.2d 1335, 1337. This case, however, does not involve factual issues germane to 

### a negligence determination as our decision is based on an assumption that Mr. Miller may have been negligent. In order to establish a cause of action for legal malpractice theremust be a showing that theattorney owed his client a duty of care, that there was a breach of this duty by a failure to use reasonable care and skill, and that the breach was the proximatecause of the client's injury and resulted in damages. Merzlak v. Purcell (1992),

## -P.2d 

### -, 49 St.Rep. 139, 140. Clearly the first element was met in this case. There is no dlspute that an attorney-cllent relatlonshlp exlsted between MS. Kane and Mr. Killer. The second element requires Ms. Kane to establish that Mr. Miller's conduct constituted a failure to use reasonable care and skill; that is, that he brezched his duty to his client. Here, we have assumed that Mr. Miller may have been negligent. However, such breach of duty alone isnot sufficientto establish liability for professional negligence. The third element that Ms. Kane must prove is that Mr. Miller's negligenceproximately caused her injury and damages. In this case, to withstand Mr. Miller'smotion for summary judgment, Ms. Kane needed to establish that "but for" Mr. Miller's negligence,the result of thehearing to terminateparental rights would have been different. Failure to prove causation and damages is fatal to an attorney malpractice action. Kinniburgh v. Garrity (1990), 244Mont. 350, 355, 798 P.2d 102, 105, Ms. Kane must show that "but forMMr. Miller's conduct,her parental rightswould not have been terminated as a result of the April 2, 1987 hearing. Ms. Kane presented evidence thatNancy Pallares-Hernandez, the SRS social worker, if asked, would have requested that the hearing be postponed, thus giving Ms. Kane a third chance to comply with the stipulated treatmentplan. Thedecisive question in this case, however, isnotwhetherMs. Pallares-Hernandezwould have agreed to

a continuance and the plaintiff would then have complied with thetreatment plan, but whether a continuance would have made 

## anv difference in the result. The record establishes that such evidence would not have made any UlZierencehere. The aeiendant submittedan affidavitby Judge Joel G. Roth, the presiding judge in the ternination hearing. Judge Roth stated that he had two reasons for terminating Ms. Kane's parental rights: (1) he was unpersliaded that she vould comply with the treatmenteven if shewas givenyetanother chance, and (2) that furtherdelay in the resolution of the casewould not

serve thebest interests of the child. Inhis affidavitJudgeRoth stated: Despite argument presented at the final hearing by Billy Miller, on Ms. Kane's behalf, that she had recently become involved in the parenting program at the YWCA, that theywere attempting together intoamental health program, and that she should be givenyet another chance to comply with the treatment plan, this Court was unpersuaded that Ms. Kane would actually comply. The court gave the following reasons for its belief that Ms. Kane would not comply with its prior order: (1) that she had consistently denied that sheneeded treatment, (2)that she did not accept thediagnosis that the child had emotional problems, (3) she continued to seek a medical reason for the child's problems, and

(4) she had a pattern of externalizing any basis for the family's disfunction. Most importantly, Judge Roth stated that only presentation of evidence that Ms. Kane had, in fact, complied with the treatment plan would have altered his decision to terminate her parental

### rights. Ms. Kane's failure to complete her treatment plan was established by uncontradicted evidence. The environmentprovided by 

### Yellowstone Boys and Girls Ranch has provided the structure and 

### stability that Ms. Kane was unable to provide. Uncontested evidence indicates that Yellowstone Boys and Girls Ranch has been beneficial to JEHduringhis extended stay there. Since he has been living in 

### Yellowstone Boys and Girls Ranch,JEW has againdone well in school and has responded to their therapy. Therecord establishes thatMr. Millerdid argue thatMs. Kane shouldbe given anotherchance. Althoughhe did not file awritten motion for a continuance,he stated as follows:



## . . 

# . [Cllearly,your Honor, 

## . . the best interest of 

### the child is theparamount objectiveof thishearing,and the fact that we have established,by way of testimony, that the love between the mother and child is quite extensive, to thepoint that when we talk about the best interests of the child, that is one of the 

## . . 

# . top objectives 

## . 

# . . 

# . Now, we have problems 

## . 

# . . . [JEH] probably will not be adopted. So it's our recommendation, Judge, that you actually permit us to find some type ofprogram 

## . .

# . for Karren toparticipate in and give us a certain length of time to actually comply to the court's order. Therefore, we ask for a postponementofyourdisposition of this caseand giveus an opportunity. Sure, shehas had a couple in thepast, but I feel that what we have here is so unique, it requiresmore than just two opportunities 

## . 

# . . . If 

### we have that opportunity, 

### I feel we would at least have given it our best shot in trying to establish a better home for [JEH] and trying to establish a relationship between mother and child whereby we'll be able to look back 

# . . . and say we have done justice to both individuals, [JEH] and his mother. Ms. Kane argues that the crucial fact questionJudge Roth failed to address in his affidavit is what he would have done if Mr. Miller had asked for a continuance. We do not find this to be 

### a question

### of fact requiring resolution as the above excerpt from the transcript of the hearing indicates that Mr. Miller did ask for another opportunity, although he did not specificallymention the word "continuance.

## " Of paramount importance is the best interest of the child. Judge Roth found it was in the youth's best interest to terminate Ms. Xane'sparental rights so that JEZ 

### could continue treatment in

a therapeutic foster home and be placed in a permanent home when emotionally ready. Ms. Kane failed to present any evidence to prove that the best interests of the child were not served. Ms. Kane also failed to present any facts which would establish thatMr. Miller's actionswere theproximate cause of the District Court's decision to terminate her parental rights with regard to JEH. 

### We conclude thatMs. Kane has not established that "but for" Mr. Miller's actions, the result in this casewould have been different. We hold that the District Court properly granted Mr. Miller's motion for summary judgment Affirmed.

We Concur: A

### Justice Terry N. 

### Trieweiler dissenting. I dissent from themajority opinion. In support of its conclusion, the majority cites testimony unfavorable to the plaintiff which resulted from a hearing where shewas effectively unrepresented and had no opportunitytopresent evidence of her own. in a peculiar form 06 

### logic, the majorlty then cites the conclusion dram by the trial judge under these circumstances as conclusiveproof that the resultwould have been the same even if plaintiff had been adequately represented. So much for traditional notions about the adversary system. The defendant, who formerly represented the plaintiff at the hearing held to determine whether her parental rights should be terminated,took theMontana Bar Examination in February 1986,and began practicing in August of the same year. He was appointed public defender onApril 1, 

### 1987,and represented plaintiff at the hearing in question on the following day. The hearing was held on

a Monday. He received the file several days earlier, and met with his client on only one occasion, on the Thursday or Friday preceding the hearing. The situation defendant found himself in

was unfair to either him or his client. Defendantadmitted inhisdeposition thathedid nothave time togo throughthenormal procedures to prepare for a termination of parental rights proceeding. He felt the only thing necessary for him to do was appear at the hearing. Defendantconductednopretrialdiscovery;he interviewed none of the State'switnesses; he did not interview plaintiff's child; 13and he made no effort to negotiate either a continuance or some other resolution of the underlying proceedings with the county ;.ttor?ey. Defendant testified that his onlypreparation for the hearing at which plaintiff'sparental rightswere terminatedwas to talk to his client on one occasion and review the file. He testified that his plan was to simply call his client as a witness and hope that through her testimony he could persuade the court to give her one more chance to comply with the treatment plan. However, not even plaintiff was called to testify at her hearing. Defendant agreed in his deposition that he had promised plaintiff he would ask the court to continue her hearing, and contends that he did so. However, Julie Macek, who reviewed the transcript of the termination hearing and was listed as an expert

on defendant's behalf, testified that defendant did not ask the court for a continuance at the outset of the hearing. Instead,he allowed the hearing to go forward and allowed the State's unchallenged case to be presented. Then, inhis closing argument, he asked the court to postpone a decision until his client had one

more chance to comply with the treatment program. He made no mention of the fact that he was unprepared for trial, and that a continuance,therefore,was absolutelynecessary. Obviously,under these circumstances, the District Court declined to postpone its decision.After the hearing, the District Court terainaced plaintiff's parental rights based upon her failure to comply with the rec~mmendedtreatrr.ent program; Ins+ead of advising plaintiff of her right to file a motion for rehearing or appeal the District Court's decision, defendant did nothing. He simply waited until she came in to pick up her file and then told her that the time for filing an appeal had passed. He considered his services concluded when the District Judgemade his decision to terminateplaintiff's parental rights. When asked in his deposition whether plaintiff received ineffective assistance of counsel in the proceeding to terminate rights, he declined to answer. In her affidavit in opposition to defendant's motion for summary judgment, plaintiff stated that in her initial interview with defendant she was told that he would be getting the hearing continued and that shewould not need toprepare to testify or call witnesses. She testified that on the followingMonday she attended thehearingwith defendant,and toher surprise,no continuancewas requested. She stated that she was not called to testify,and that other than her mother, neither were any other witnesses called on her behalf. She stated that since the hearing she has obtained a full and complete psychological evaluation which has established that she is a normal, healthy person who is fit to be a mother. Nancy Pallares-Hernandez is a social worker employed by the Department of Family Services for the State of Montana. Plaintiff'stermination of parental rights case had been assigned

15to her in August 1986, and she was in charge of monitoring the treatmentprogram at thetime thatplaintiff'sparental rightswere terminated. She had the most direct involvement in assuring that the best interests of plaintiff's son were served, and her recommendationswould obviously have been important to theDistrict court's decision. When asked what she would have recommended if she had known prior to the April 2, 1987, hearing that plaintiff

was willing to complete the treatment program by getting a psychological evaluation, and that her attorney needed a continuance of the hearing to accomplish the evaluation, she gave the following answers: Q. Excuseme, assuming that Billy would have said to you words to this effect 

## --

Q. "Nancy,Ivisitedwith Karren,andwe've really had a heart-to-heart talk,and we reallyunderstand what youare trying todo,and we understand how importantthe psychological evaluation is, we are going to get it, would you continue thehearing while we go ahead and get it,"would you have then recommended a continuation of the proceedings? 

### A. Yes The majority concedes that there was an attorney-client relationshipbetweenplaintiffand defendantand generouslyassumes that plaintiff would have been able to establish that defendant acted negligently. In fact, two separate attorneys licensed to practice in Montana testified by deposition that defendant's representation of plaintiff was negligent.Iiowever, the majority goes on .co conclude that even though defendantmay have been negligent, his negligencedid not cause any d&~.ageto plair.tiff because the District Court 1 not have continued her case, even if it had been requested to do so. The majority bases that conclusion on an affidavit submitted by the District Judge who decided this case. In his affidavit. he outlines the history of the case and then states that despite the argument presented at the final hearing, he was unpersuaded to postpone his decision, pending plaintiff's compliance with the treatmentprogram. However,being unwilling topostpone a decision after listening to a one-sided hearing about plaintiff's unfitness to be a parent is not the same thing as considering a motion to continue by an attorney who was unprepared to proceed, and which would have been joined in by the case worker in charge of seeing that the child'sbest interestwas served. In fact, inStafev.

### Timhlin (1992),254Mont. 48, 834 P.2d 927,&-herethis same attorneymoved for a continuance which was denied by the same District Judge,we reversed after concluding that the judgeabusedhisdiscretion. We held that denial of the continuance in that case denied the fundamental fairness to which the defendant was constitutionally entitled. Certainly, thismother,whose right toparent her child

was at stake,was entitled to no less fairness. How can thismajority disregard the District Court'sdecision in T~rnhlin,even though aproper motion 2nd argument for continuance had been presented in that case, and then rely on irrelevantcomments by the same District Judge in this casewhen, in fact,no proper motion had been presented and the basis for a continuance had not even been explained to the judge? Had that motion been presented and granted,andhad plaintiff, in the interim,submitted to the psychological evaluation that she has now completed, it is 

### clear that her parental rightswould not have been terminated. in reviewing a motion for summary judgment, this court must view the evidence in the lightmost favorable to theparty opposing themotion. 

### PuyneRealty&

### Housing,Inc. 11.

### FirstSecuriyBank (1991)

### , 247Mont

## . 374, 807 P.2d 177. The majority has done just the opposite. Summary judgment is not a proper tool for resolving disputed issues of fact. 

### Flanagan v. Currult [L974), 164 Mont. 262: 521 P.2d

200. However,that is exactlywhat the District Court relied on in this case;and it did so with the majority's approval. Summary judgment should not be used as a substitute for trial when factual controversies exist. 

### FanncnIns.Exchur~gc v.

### Junier (1985)

### , 215 Mont. 260, 697 P.2d 460. However, the majority, with increasing frequency, finds summary judgment an acceptable alternative to the inconvenience of jury trials. 

### A parent's rights are among the most important rights in our society. No parent shouldhave those rightsterminated without due process. Due process necessarily requires effective representation. Where those rights were terminated without effective representation,plaintiffhas sustaineddamagebeyond the imagination of most people. She should hot have been deniedfurxherrights in thisproceeding without an opportunity to present her evidence to a jury, as was intendedby Article 11, § 26,of the Montana Constitution. For these reasons, 

### I dissent from the majority opinion. 

### I would reverse the judgment of the District Court and remand this

case for a trial by jury to resolve the factual issues which have been resolved by the majority on appeal.

Justice Karla M. Gray joins in the foregoing dissent.