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. 

Milleris represenration in a proceeding initiated by the State to 

obtain permanent custody of Ms. Kane's son JEH and to terminate her 

parental rights. Mr. Miller replaced Ms. Kane's former public 

defender, Nancy Belcheff, after Ms. Belcheff resigned her position 

as a Cascade County public defender in early March 1987. Mr. 

Miller was the third attorney to represent Ms. Kane in that matter. 

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. The youth was removed 

from Ms. Kane's home and initially placed in foster care. As early 

as July 18, 1985, Ms. Kane stipulated to a treatment plan with 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 obtain psychological evaluations by a llcensed cllnlcal 

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 treatment plan. A hearing was subsequently 

held on November 12, 1986, to terminate Ms. Kane's parental 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 for April 2, 1987. 

Mr. Miller was appointed to represent Ms. Kane shortly before 

the April 2, 1987 hearing. Testimony at that hearing established 

that Ms. Kane ha6 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 

compliance due to JEH's need for permanency 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. It also established that Ms. Kane had 

L-,-.- Lanrii the boy to docturs since he was a baby iuokiny foi a 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 that went back many 

years. He said the problem developed because the child felt 

abandoned by his mother and by several father figures and because 

the mother had emotional problems. Also assessing Ms. 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 convinced Ms. 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 rights proceeding, Ms. Kane 

attended a foster care review meeting 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 that particular 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 although Ms. 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 she tried to 

reassure Ms. Kane that she did indeed want 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 is wrong; that Judge Mc~ittrick is 

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 to help her son. On October 1, 1986, she mailed another letter 

to Ms. Kane encouraging her to get psychological evaluations and 

reminding her of the upcoming hearing. 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 about the importance of complying with 
the treatment plan before the next court hearing. In that letter 

she wrote: "This is the only way to have your child back with you." 

On March 2, 1987, she again wrote to Ks. Kane, reminding her 

of tne need to compiy wirh rhe courr order, ourlining JEH's visits 

to doctors and their diagnoses and again stating SRSt position that 

the problem was the mother-child relationship. In addition to Ms. 

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 letters and 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 love between Ms. Kane and JEH. 

The hearing went forward with 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. Miller had committed professional negligence. In her complaint 

Ms. Kane alleged that Mr. Miller assured her that he would request 

a continuance and the continuance would be granted, as well as 

numerous other inadequacies relating to Mr. Miller's representation 

in the parental termination proceeding. The District Court granted 
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's motion 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. 

Christopherson v. White, Inc. (1991), 250 Mont. 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 is granted." Christo~herson, 

817 P.2d at 1167. Generally, negligence issues are not 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 

there must be a showing that the attorney 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 proximate 
cause 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 is not sufficient to 

establish liability for professional negligence. 

The third element that Ms. Kane must prove is that Mr. 

Miller's negligence proximately caused her injury and damages. In 

this case, to withstand Mr. Miller's motion for summary judgment, 

Ms. Kane needed to establish that "but for" Mr. Miller's 

negligence, the result of the hearing to terminate parental rights 

would have been different. Failure to prove causation and damages 

is fatal to an attorney malpractice action. Kinniburgh v. Garrity 

(1990), 244 Mont. 350, 355, 798 P.2d 102, 105, Ms. Kane must show 

that "but forM Mr. Miller's conduct, her parental rights would not 

have been terminated as a result of the April 2, 1987 hearing. 

Ms. Kane presented evidence that Nancy 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 treatment plan. The decisive question in this case, 

however, is not whether Ms. Pallares-Hernandez would have agreed to 

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

difference in the result. 

The record establishes that such evidence would not have made 

any UlZierence here. The aeiendant submitted an affidavit by 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 treatment even if she was given yet another chance, 

and (2) that further delay in the resolution of the case would not 

serve the best interests of the child. In his affidavit Judge Roth 

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 they were attempting to get her into a mental health 

program, and that she should be given yet 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 she needed treatment, (2) that she did not 

accept the diagnosis 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 environment provided 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 JEH during his extended stay 

there. Since he has been living in Yellowstone Boys and Girls 

Ranch, JEW has again done well in school and has responded to their 

therapy. 

The record establishes that Mr. Miller did argue that Ms. Kane 

should be given another chance. Although he did not file a written 

motion for a continuance, he stated as follows: 

. . . [Cllearly, your Honor, . . the best interest of 

the child is the paramount objective of this hearing, and 

the fact that we have established, by way of testimony, 

that the love between the mother and child is quite 

extensive, to the point 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 of program . . . for Karren to participate 

in and give us a certain length of time to actually 

comply to the court's order. Therefore, we ask for a 

postponement of your disposition of this case and give us 

an opportunity. Sure, she has had a couple in the past, 

but I feel that what we have here is so unique, it 

requires more 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 question Judge 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 specifically mention 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's parental 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 that Mr. Miller's actions were the proximate cause of the 

District Court's decision to terminate her parental rights with 

regard to JEH. We conclude that Ms. Kane has not established that 

"but for" Mr. Miller's actions, the result in this case would have 

been different. 

We hold that the District Court properly granted Mr. Miller's 

motion for summary judgment 

Af f irmed. 

We Concur: A 

Justice Terry N. Trieweiler dissenting. 

I dissent from the majority opinion. 

In support of its conclusion, the majority cites testimony 

unfavorable to the plaintiff which resulted from a hearing where 

she was effectively unrepresented and had no opportunity to present 

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 conclusive proof that the result would 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 the Montana Bar Examination in February 1986, and 

began practicing in August of the same year. He was appointed 

public defender on April 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. 

Defendant admitted in his deposition that he did not have time 

to go through the normal 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. 

Defendant conducted no pretrial discovery; he interviewed none 

of the State's witnesses; he did not interview plaintiff's child; 

13 
and 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 only preparation for the hearing 

at which plaintiff's parental rights were terminated was 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, in his 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 absolutely necessary. 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~mmended treatrr.ent program; Ins+ead of advi sing 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 Judge made his decision to terminate plaintiff'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 she would not need to prepare to testify or call 

witnesses. She testified that on the following Monday she attended 

the hearing with defendant, and to her surprise, no continuance was 

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's termination of parental rights case had been assigned 

15 
to her in August 1986, and she was in charge of monitoring the 

treatment program at the time that plaintiff's parental rights were 

terminated. She had the most direct involvement in assuring that 

the best interests of plaintiff's son were served, and her 

recommendations would obviously have been important to the District 

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. Excuse me, assuming that Billy would have said 

to you words to this effect -- 

Q. "Nancy, I visited with Karren, and we've really 

had a heart-to-heart talk, and we really understand what 

you are trying to do, and we understand how important the 

psychological evaluation is, we are going to get it, 

would you continue the hearing 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 

relationship between plaintiff and defendant and generously assumes 

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 

defendant may have been negligent, his negligence did not cause any 

d&~.age to 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 

treatment program. However, being unwilling to postpone 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's best interest was served. In fact, in Stafev. Timhlin 

(1992), 254 Mont. 48, 834 P.2d 927, &-here this same attorney moved 

for a continuance which was denied by the same District Judge, we 

reversed after concluding that the judge abused his discretion. We 

held that denial of the continuance in that case denied the 

fundamental fairness to which the defendant was constitutionally 

entitled. Certainly, this mother, whose right to parent her child 

was at stake, was entitled to no less fairness. 

How can this majority disregard the District Court's decision 

in T~rnhlin, even though a proper motion 2nd argument for continuance 

had been presented in that case, and then rely on irrelevant 
comments by the same District Judge in this case when, 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, and had plaintiff, in the interim, submitted 

to the psychological evaluation that she has now completed, it is 

clear that her parental rights would not have been terminated. 

in reviewing a motion for summary judgment, this court must 

view the evidence in the light most favorable to the party opposing 

the motion. Puyne Realty & Housing, Inc. 11. First Securiy Bank ( 19 9 1) , 2 4 7 Mont . 

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 exactly what 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. Fanncn Ins. 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 should have those rights terminated without due 

process. Due process necessarily requires effective 

representation. Where those rights were terminated without 

effective representation, plaintiff has sustained damage beyond the 

imagination of most people. She should hot have been denied 
furxher rights in this proceeding without an opportunity to present 

her evidence to a jury, as was intended by 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.