NO. 92-028 IN THE SUPREME COURT OF THE STATE OF MONTANA 1992

IN RE THE MATTER OF M.A.W. and K.M.W., Youths in Need of Care.

APPEAL FROM: District Court of the Sixteenth Judicial District, In and for the County of Rosebud, The Honorable Joe L. Hegel, Judge presiding.

COUNSEL OF RECORD: For Appellant: John Houtz,Attorney at Law, Forsyth,Montana Marcey F. Schwarz,Schwarz and Gustafson, Billings, Montana For Respondent: Hon.Marc Racicot,AttorneyGeneral,Helena,Montana Patricia J. Jordan, Assistant Attorney General, Helena, Montana John S. Forsythe,CountyAttorney, Forsyth,Montana Garry 

### P. Bunke,Attorney at Law, Miles City,Montana

Submitted on Briefs: June 11, 1992 Filed:Justice Fred J. Weber delivered the Opinion of the Court. After a hearing, theDistrictCourt for the Sixteenth Judicial District, Rosebud County, terminated the parental rights of the mother and the father (who were divorced at the time of the hearing) to their children,M.A.W. and K.M.W. The mother has not appealed the termination of her parental rights as to either child and is not a party to this action. The father appeals the termination of his parental rights as to K.M.W. only. We affirm. The issues for our review are: 1. Were the statutory requirements for termination of parental rights met? 2. Did the District Court err in denying disclosure of evidence to the father? 3. Did the District Court err in refusing to replace Garry Bunke as guardian at litem after he began to work part-time as a deputy county attorney in another county? 4. Was the District Court biased in favor of the county? 5. Did the District Court err in declining to allow the child to testify? Two daughters were born of themarriage,M.A.W. and K.M.W. In June of 1987, the father contacted Barb Rolston, a Department of Family Services (DFS) community social worker, because he was concerned about physical and emotional abuse by the mother of K.M.W. On June 22, 1987, the father filed a petition for dissolution of marriage and a supporting affidavit requesting that the court issue

### a temporary restraining order against themother to 2keep her away from the children. In his affidavit, the father averred that the mother had threatened to physically harm the children. In January of 1988, the District Court requested that Barb Rolston look into the home situation of each parent in connection with the divorce action. Barb Rolston testified that before she could complete her home study the mother made a referral about possible sexual abuse of K.M.W. by the father's sister, Lynnette. Barb testified thatwhen she first tried to interviewK.M.W., "she had one of her screaming tantrums and I think either the next day

or two days after, I received a referral from the Public Health Nurse regardingmedical neglect." At that point,pursuant to court order, the DFS removed the children from the home and placed them in foster care. At thehearing in June 1991, the foster mother testified that K.M.W. was two years old and M.A.W. was less than oneyear old when they came to live with her. She testified that "they were both very maladjusted children,quite upset,not physically cared for.l1 She testifiedthatK.M.W. had constantnightmaresand awoke several times a night screaming. The foster mother testified that K.M.W. would act out different abuses that she had been through including acting out things being put into her vagina, her hands being tied up and trying to have sex with her little sister, M.A.W. The foster mother testified further 

### as follows. Q. Now, how would she act these things out; would she physically do these sorts of things to herself? A. Right, right. And shewould even,her voice would 3even change as she began to say things that she was repeating and go through the motions of what had happened. Shewould hold herhands together and I'd ask her, Why do you have your hands together?" "They are tied up." And 

### Iwould ask her questions with each thing she did and shewould respond.

Q. Now, you stated there was some acting out sexually with [M.A.W.]; what did you observe there? A. She was constantly trying to insert things into

[M.A.W. Is] vagina; whether it was 

### a shampoo bottle sitting on the side of the tub or whatever she could 

# .

. .

The foster mother testified that K.M.W. told her that the "badman" did these things to her and that "Mommywas the bad man". In its June 1988 order declaring the marriage dissolved, the District Court found that the mother was not fit to care for her children and awarded physical and residential custody of the children to the father subject to continuing supervision by the DFS. The District Court specifically ordered that the father should not permit the children to have any unsupervised visitation with the mother. Notwithstandingthe order forbiddingthe same, twoweeks later

on June 24, 1988, DFS was informed that the father had left the children with themother forapproximatelytwo days. Investigation by a social worker for DFS and Detective Skillen disclosed the children in the unsupervised custody of the mother, in direct contradiction to the order of the District Court. On June 28, 1988, the DFS filed a petition for temporary investigative authority. Thechildrenwere removed fromthemother's custody and 4placed 

### in licensed foster care. On the basis of the DFSfallegations that K.M.W. and M.A.W. were abused, or indanger of being abused and neglected,within the meaning of 

### 5 41-3-102, MCA, the District Court granted the DFS temporary investigativeauthority. On August 19, 1988,an amended petition was filed, rewesting continuation of the temporary investigative authority and temporary custody of the children for six months. Both the father and the mother consented to this request. The fatherhad moved to Idaho during 1988 and the mother had moved to Utah. Following a hearing, temporary custody was granted to the DFS. A treatment plan was developed by the DFS and approved by the court on January 26, 1989. The January 1989 treatment plan required that the father complete the following items: 1. Enter 

### and successfully complete a recognized parenting educationprogram; 2, Undergo a complete psychological evaluation and comply with recommended treatment; 3. Enter into counseling with a professional mental health counselor to deal with the client's lack of assertiveness; to develop firm and effective methods of discipline;tounderstand the children'sneeds

### asvictims of sexual offense; as well as physical and emotional abuse; and to deal with other issues identified in the evaluation; 4. Complete 

### a chemical dependency 

### evaluation with a recognized chemical dependencycounselor,and complete a treatmentprogram if recommended; 5. Arrange for a home visit to be done by the local social service agency and for a copy to be forwarded to the Department of Family Services; 6. Request assistance from the local agency to arrange and coordinate services for the [above listedobjectives]; 7. Cooperate with the recommendations and requests of the local agency; 8. Contact the children on amonthly basis, by writing letters to them; 9. Conferwith the supervising socialworker regarding his own and children's current status. On September 12, 1989, Barb Rolston filed a report with the court indicating that Idaho had denied placement of the children with the father because he did not have a place to live and had not completed any of the treatment plan, Ms. Rolston indicated that the father's visits had been sporadic. Her report further stated: [The father] continues to be too passive to parent or protect his daughters. Because [the mother] has threatened to kidnap the 

### girls and she is able to get information from [the father's] mother, [the father's] 

### onlyrequirementprior tovisiting thegirls

### was toagree to tell no one where they were, When his relatives started writing to the foster homes, [the father] indicated he didn't seewhat it could hurt to tell them. While he denies any alcohol problems, he has not completed an alcohol evaluation and he continues to be involvedwith other people who dohave alcoholproblems.



# . . . [the father] will need extensive counseling to be able to comprehend the effects of their abuse 

### on the girls, to parent them effectively, and to protect them from further abuse. 

### [K.M.W.] has been in a therapeutic foster home specializing in sexually abused children since November 7,1988. until recentlyshe

### wasuncooperative in therapy and exhibited a great deal of anger. Since joint sessions with [M.A.W.] began in June, [K.M.W.] has progressed more rapidly 

### in therapy. Shewill need to be in the program at least another sixmonths.

Both children continue to need specialized therapeutic foster care. Neither parent has obtained adequate housing nor completed court approved treatment plans. 

### Eachgirl

### hasmade separateand consistentallegationsof sexual abuse by 

### [themother]. She continues to deny theabuse 

### and 

### is therefore 

### a poor candidate for therapy. Based on that report, on September 19, 1989, the DFS filed a petition 

### for temporary legal custody of both children. K.M.W. was four years old at the time of thepetition. M.A.W. was two and one half years old at the time of the petition. The District Court granted the DFS temporary legal custody of the children in its order of September 21, 1989. Pursuant 

### to another petitionby the DFS,on November 20, 1989, the District Court held a hearing 

### inwhich the father,his current wife Billie Jo, and Barb Rolston 

### all testified. The father testified as follows: Q. [Father], do you realize that 

### we are at a critical time as far as the kids are concerned right now? A. 

### Very much so. Q. The professionals are saying that a decisionhas to be made as to permanent custody within the next six 

### months? A. Yes. 

### Q. You understand that? 

### A. Yes, 

### I do. Q. And that 

### if you can't get your living situation to apoint where they feel they can safely place one or both of the childrenwith you, they will recommend placement outside the family? A. Yes, Ido understand that.

Q. And you understand that no one is blaming you for the sexual molesting? A. Yes, 1 understand that now.Q. 

### But do you also understand that just the fact that it happened that if [the mother] did this that that leaves the childrenwith severe scars? A. Very much so. It leaves me with severe scars knowing that ithappened to them and Ididn't know itwas going on. Q. 

### No one is asking thatyoutake counseling for sexual abuse because you did it; you understand that?

Q. 

### It's because you need that to be able to deal with the children and also your own emotions? A. Yes, I

### understand that. Q. 

### You are willing to submit to such counseling? A. Yes, I 

### am. The court found that it was not in the best interests of the children to be returned to the parental home of either themother

or the father; that the mother had made no attempt to comply with the court approved treatment plan; and that the father had only partially complied with the treatment plan. In its order dated February 8, 1990, 

### the District Court ordered the father to make substantial progress on the treatment plan within 90 

### days, and in pertinent part stated: Now, the criteria for determination are that there was an appropriate treatment plan that's not been complied with. The second part of that is that the conduct or condition of theparents rendering themunfit isunlikelyto changewithin a reasonableperiod of time. And for whatever the parents including the father,have not complied. Ithink it's theposition of [DFS]that two years is a reasonable time. The Court is affording an additional 90 

### days for substantial progress and with the entire treatment plan to be completed in sixmonths. Thiswill be avvroximatelv 2 1/2

### vears and althoushthere areverv fundamentalriqhtsas far astherishtsof natural~arents. those riqhtsare secondarytothe riqhts of the children and what is in the best interest of the children. And at this point, it is imperative that the best interest of the children be served by permanency within a very 

# -- within a fairly short period of time at this time. (Emphasis supplied.) On May 24, 1990, Barb Rolston filed another report with the District Court. That report showed that the father had failed to schedule any of the required treatment for six weeks, notwithstanding the requirement on thepart of the District Court. The report demonstrated that the father had not participated in parenting classes; and that both the father and his wife, Billie Jo, chose not to follow K.M.W. Is daily schedule or familiar disciplineprocedures,which createdsome ofK.M.W.'s inappropriate behaviors. Ms. Rolston further noted that X.M.W. wanted to live with her father and that she would "effectively undermine any attempt toplace herwith another family." Ms. Rolston recommended that K.M.W. be placed with her father as soon as possible. OnJune 8,1990, the deputy county attorney,GaryRyder, filed a stipulationbetween the county and the father, that K.M.W. would be placed with him and that he would assume full financial responsibility for her care. Immediatelyupon being placed in the father's home, which then was in Idaho, five year old K.M.W. sexually assaulted her stepmother's baby girl (Baby C). This was reported to the Rosebud County Attorney by a relative of the father's. The Idaho Department of HealthandWelfare social worker who had worked with the father since January revealed that shehadnever been informed of the incidentwith Baby C. Furthermore, the father failed to follow through with the Idaho welfare services. K.M.W. 

### was removed fromhis home again and returned to foster care in Montana. After K.M.W. was returned to foster care in Montana, Ms. Rolston reported that the father remained in only sporadic contact with K.M.W. and failed to keep a number of promises which he had made to her. Ms. Rolston concluded that K.M.W. had fewerproblems in foster care than she had prior to her Idaho visit and that she had began asking for a new daddy. She concluded that K.M.W. would adjust to an adoptive placement and that because shemay revert to inappropriate sexual behaviors if her situation is too stressed or unstructured, she needed to be in a stable environment,which the father had never provided for her. Ms. Rolston testified to the pattern of conduct on the part of the father which extended over the past three years, stating in pertinent part: Over the past three years [the father] has continued to demonstrate a 

### pattern of denial and inappropriate responsesthat endangered not onlyhis owndaughters,but other young children as well. Aware of services available 

### to deal with his family's crises 

### he has not sought assistance. He has left his young daughters in their natural mother's care, knowing she had molested them; he enrolled [K.M.W.] 

### in a pre-school without advising staff to protect other children; he left his already exhausted wife to deal with issues of protecting her 

### own child from [K.M.W.1. The birth of another child in that home createsanotherpotential victim toprotect. The reconciliation is too recent to be considered stabilized and Billie Jo has expressed serious reservations about parenting [K.M.W.]. Ms. Rolston recommended that the father's parental rights be terminated and that K.M.W. be permanently placed as soon aspossible. On December 31, 1990,a petition for the termination of the parental rights of the fatherwas based upon the failure of the treatment plan. Following a hearing held on June 17, 18 and 19, 1991, the petition was granted. The father filed a motion for a

new trial,whichwas denied. He now appeals the terminationof his rights as to X.M.W.

Were the statutory requirements for termination of parental rights met? Section 41-3-609,MCA, provides the criteria required for the termination of parental rights. It provides (inpart): (1) The court may order a termination of the parent-child legal relationship upon a finding that any of the following circumstances exist:

(c) the child is an adjudicated youth in need of care and both of the following exist: (i) an appropriate treatment plan that has been approved by the court has not been complied with by the parents or has not been successful; and (ii) the conduct or condition of the parents rendering them unfit is unlikely to change within a reasonable time; or (d) the parent has failed to successfully complete a treatment plan approved by the court within the time periods allowed for the child to be in foster care under 41-3-410 unless it orders other permanent legal custody under 41-3-410. (2) Indetermining whether the conductor condition of the parents isunlikely to changewithin a reasonable time,the courtmust enter a findingthat continuationof theparent-child legal relationship will likelyresult in continued abuse or neglect or that the conduct or the condition of the parents renders the parents unfit, unable,or unwilling to give the child adequateparentalcare. In making such determinations, the court shall consider but is not limited to the following:

(g) any reasonable efforts by protective service agencles that have been unable to rehabilitate the parent. (3) Inconsideringany of the factors in subsection (2) in terminating the parent-child relationship, the court shall give primary consideration to the physical, mental, and emotional conditionsand needs of the chile.

The State has the burden of showing by clear and convincing evidence that the statutory criteria for the termination of parental rights have been met. Matter of A.W. (1991), 247 Mont. 268, 806 P.2d 520. A presumption of correctness is afforded the district court's determination, and the decision to terminate parental rights will not be disturbed on appeal unless there is a mistake of law or a finding 

### of fact not supported by substantial credible evidence thatwould amount toa clear abuse of discretion. Matter of S.P. (1990), 241 Mont. 190, 194, 786 P.2d 642, 644. The father vehemently argues that he completed the treatment program. The record demonstrates that the father failed to comply with the January 1989 treatment plan in several respects. In particular, the father failed to enter into counseling with a professional counselor to deal with his lack of assertiveness, to develop firmand effective methods of discipline,tounderstand children as victims of sexual offense as well as physical emotional abuse, and to deal with other issues identified in evaluation. The father emphasizes that K.M.W. had expressed desire to live with him and stated in letters 

### to himhowmuch 12 the and the her sheloved him. He submitted copies of phone bills as evidence of his telephone calls to K.M.W., and photographs of his current home in Idaho as evidence that he had a proper home for K.M.W. to live in. The father acknowledges that he made a mistake in allowing the mother to be with the two children in an unsupervised capacity in 1988. With regard to the sexual assault of Baby C by K.M.W., the father contends that by sitting K.M.W. down and talking to her about it, he properly handled the situation. Hemaintains that the testimony of Billie Jo and hismother that he is a good father who loves his children is further evidence that his parental rights should not be terminated. Ms. Rolston of the DFS, testified at length as to the severe problems on the part of K.M.W. and the inability of the father to deal with such problems. In pertinent part she testified: [QuestioningBy GuardianAd Litem Bunke]: Q: Does it appear to you that a lot of these moves relate to his lack of assertiveness with other people? A: One of the evaluators indicated that [the father] takes thepath with least resistanceand I think that if something comes up that presents an issue then [the father] moves on, either to get away from that issue or because it's the easiest thing to do. Q: And indealing withhis children,doesassertiveness become an issue or aproblem, especiallyas it relates to

[K.M.W. and M.A.W.]? A: [K.M.W.] isprobablythemost manipulative preschool child I have ever seen. She is very intelligent,very, very,very, controlling. And Idon't think [the father] would stand a chance of being the head of the household with [K.M.W] 

# .

[By Father's Attorney]: Q: Now, someone has describe these children as havingspecialneeds. Would youdescribe themashaving special needs? A: Yes. Q: And would you describe what some of these special needs are. For example, maybe you can begin with

[K.M.W.]. 

### A: [K.M.W.], 

# . . . requires a high level of consistency. 

# . . . She 

## -- [K.M.W.] required over six months to become comfortable with me as a therapist. I'veneverhad a childwhowas that fearful inmy sixteen years of practice with children. She is a very easily frightened child, needs security, needs to know that there's predictability in her environment. She can't tolerate instability. That's not good for any children. But [K.M.W.'s] needs 

## -- it's higher than most children. And it appearstobe related toher traumatic experiences prior to placement. She needs to have parents who 

# -- because of that need for consistency and stability, she needs to have parents who can anticipate concerns inher environment, who can realize that she will be upset and prepare her for any kind of change. Without that, she's probably going to regress to the level of behavior that she had when we got her, which was screaming and withdrawing whenever she became uncomfortable. And I'm not talking about a child simply screaming for a few minutes. This is a childwhowould scream for incredible lengths of time. 

# . . . In addition to those behaviors that are a real concern, she will continue to require a high level of supervision. She continues to be sexually aroused by other children. And because of her age and developmental state, she'snot able to completely handle those feelings on her own. So she'll require parents who understand and can supervise her so that she doesn't

# -- is not placed in a situation where she may be sexually aroused by other children and, hence, display sexual behavior toward them. 

### P think it's really important to understand that if we place children with other children and inadequate supervision when they are

## --when they do have an arousal pattern,we really victimize themaswell as the other child. 

# . . . Ms. Rolston also testified that the family assessment revealed things that the fatherhad not shared with them. For instance, she testified that when K.M.W. was placed in his care, the father did not followthe scheduleprovided for K.M.W. to follow for even oneday. She testified that when K.M.W. was not in the father's care he moved without telling the DFS where he was going and failed to contactK.M.W. within two days as he had promised her. Instead it took three weeks before he contacted her. When he did contact K.M.W., hemade promises to sendher things and then failed to keep his promises. The District Court determined that K.M.W. was abused or neglected as defined in 5 41-3-102, MCA, and also adjudicated her to be a youth in need of care as required under 5 41-3-609(1)(c), MCA. In regard to the treatment plan, and the failure on the part of the father to complete the same, the District Court made the following finding: 15. [The father] has failed to complete his treatment plan in that he has failed to maintain the required contactwith the social worker, Barbara Ralston

(sic);hehas failedtomaintain regular contact with the children; he has failed to obtain specialized treatment to increase his awareness and ability to cope with the behaviors of a childwho hasbeen sexually abused andwho may sexually abuse others; he has failed to obtain assertiveness training to bolster his ability to parent an intelligent, manipulative child or an out of control child, both with special needs. We have carefully reviewed the extensive transcript and conclude that there is substantial, 

### if not overwhelming evidence that the father did not comply with critical parts of the January 1989 treatment plan. In particular, while he did receive some psychological evaluation, he failed to complete any treatment as recommended by such evaluations. In addition, he failed to enter into counseling with a professional counselor to deal with his own lack 

### of assertiveness and to develop the effective methods ofdiscipline which were required. Inaddition, suchcounselingwould have helped him to understand the children's needs as victims of sexual offense and the physical and emotional abuse and to deal with other issues identified inthe evaluation. Unfortunately, the father continues to deny various aspects of the sexual offenses against his children and the need for treatment. In that regard, the District Court made the following finding: 16. After [the father] made some progress on the treatment plan, in the late Spring of 1990, at the request of [K.M.W.] and on the recommendation of the treating professionals, [K.M.W.] was temporarily placed with her father, [he] and his current wife, Billie Jo. The placement resulted in some competitive behavior, yellingand screaming,of [K.M.W. ]andher new stepsister

[BabyC]. Ultimately, [K.M.W.] sexually assaulted [Baby C], a younger child,twice. Billie Jo,who had attended special classes for non-offending parents of sexually abused children, wanted to report the incidents to DFS and seek appropriate assistance. [The father], asked Billie Jo not to report the incident as he was afraid that DFS would remove [K.M.W.]. Billie Jo acquiesced in this decision and the matters were handled by [the father] and BillieJotalking to the childrenand telling them that they shouldnot do suchthings. DFS discovered the abuse through other family members, immediately investigated. [K.M.W.] was removed from her father's home in late July 1990 and returned to her specialized foster care home on August 3, 1990. JK.M.W.l was removed, not because of her actinq out, but because of her father's denial and apparent inability or unwillinqness to seek apwro~riateassistance to help IK.M.W.1 with her special needs. (Emphasisadded). The fathercontends that the Idaho report demonstrates thathe and Billie Jo had followed their treatment plan and that a multitude of other documents establish attendance at parenting classes, classes involving care and treatment of sexually abused children, and other things that Idaho requested. However, as the District Court pointed out,the father's testimony throughout thisentire process has wavered with respect to whether he will even admit that therehas been sexual abuse and testified that he would comply "if it was necessaryt'. The record containsuncontradicted evidence that K.M.W. was seriously sexually abused. However, in spite of the DFS' constantprodding of the father in an attempt to get him to comply with the plan, he still refused to do so. Since K.M.W. has returned to her foster home, the father's contact with her has again been sporadic and he has continued to break promises to her. The District Court granted the father an additional sixmonths to complete the treatmentplan,which allowed him a total of more than 2 1/2 years to comply. We agree with the District Court's conclusion that there is overwhelming evidence that the father did not fully comply with the treatment plan and that the condition isunlikely to changewithin a reasonableperiod of time. We therefore hold that the District Court properly ordered a terminationof the parent-child legal relationship under 

### 9 41-3-609,MCA. The record clearlydemonstrates that K.M.W. isan adjudicatedyouth inneed of care and that an appropriate treatment plan had been approved by the court and was not complied with by the father, and that the conduct or condition of the father renderinghimunfit isunlikely to change within a reasonabletime. Althoughwe affirm the District Court's decision to terminate parental rights for the reasons stated above, we also point out that the DistrictCourt couldhave terminated the father'sparental rights in this case under 941-3-410,MCA. That section provides

(inpart) :The courtmay terminateparental rights under 41-3-609(2) or order otherpermanent legal custody that will provide for the permanent placement of the child when legal custody of ayouth hasbeen transferred to thedepartment under this part and:

(2) the childhas been in an out-of-home placement for a cumulative total period of 2 years or longer pursuant to court order, the parent has been unable to remedy the circumstances that cause the child tobe in an out-of-home placement, and there is a substantial likelihood that the parent will not be capable of exercising proper and effective parental care and control in the near future. K.M.W. has been in out-of-homeplacement for more than two years. Furthermore,as alreadydiscussed,therecord supportstheDistrict Court's finding that the father has failed to comply with the treatment plan and there is a substantial likelihood that he will not be capable of exercising proper and effective parental care and control in the near future. We recognize the dilemma in which the District Court was placed in reaching its decision on this issue. The father has testified at length as tohis love of K.M.W. Notwithstanding such love, he has demonstrated his inability to recognize the sexual abuse perpetrated upon his daughter and the extent of the damage which that has caused her, both psychologically and emotionally. As a result, he has not in good faith completed a program which would allow him to deal with this aspect of his daughter's care. Evidence of a loving relationship does not counter balance the extensive need for care on the part of K.M.W. in order that shemay develop, notwithstanding the mistreatment she has received. The best interests of K.M.W. clearly outweigh the claim on the part of 18the father. We hold that the statutory requirements for terminating the parental rights of the father were met by the District Court.

Did the District Court err in denying disclosure of evidence to the father? On April 19, 1991, the father moved for sanctions under Rule 36(b) (2)(B)

### , stating that he had been denied preliminary discovery by the county attorney's office. The State responded by an objection to the disclosure of reportsprepared by fosterparents, claiming the reportswere privileged information. Following that objection, in May 1991, the father moved for an Itin camerau inspection of the entire DFS file. In its pretrial order dated June 6, 1991, the District Court stated that the father's attorney had requested 

### an Itincamerav1 inspectionof the entire DFS fileby the attorneys for the father. An "in cameraw inspectionby definition is made by the court--not counsel for defendant. While acknowledging this fact, the court suggested that counsel describe the type of documents inwhich the father was interested so the DFS had an opportunity to advise the court of the parts of the voluminous file which were deemed confidentialand shouldnot be disclosed. The court suggestedthat after the "in cameratt examination itwould then determinewhat was relevant and necessary to the father. The court emphasized that the father had not in any way identified what he was looking for. The court ordered the DFS to bring the file to the court for trialso that the court could properly reconsider the motion. At trial the father's counsel failed to furnish any type of identifying information and the motion for inspection of the voluminous files

was denied. Subsequently the father moved for a new trial. One of the groundswas thedenial of inspectionof the DFS file. In its order denying the father's motion for a new trial, the court stated: With respect to Counsel's request for disclosure of evidence, the Court has two explanations. First, itwas theCourt's understandingatthepretrial conference that the Respondent-Father had everything that he needed, Counsel should file a prompt motion specifying the particular informationneeded,the Department could then mark the information inthe voluminous file and alsomark any information in the relevantportions of the file, it considered confidential. The Court would then examine the file and decide which information was relevant and should be disclosed. Second, when the request for examinationof theDepartment of FamilyServices filewas repeated by counsel, it did not specify the information requested or delimit it in any way. Counsel for the Respondent-Father wanted to conduct an "in camera" inspection of the entire file himself. It appeared to theCourt that counselwasmerely on a fishing expedition and did not approve the same. The applicable statute on this issue is 

### 5 41-3-205,MCA, which in pertinent part provides: (1) The case records of the department of social and rehabilitation services

# . . . and the court concerning actions taken under this chapter and all records concerning reports of child abuse and neglect shall be kept confidential except as provided by this section. Any person who permits or encourages the unauthorized dissemination of their contents is guilty of a misdemeanor. (2) Records may be disclosed to a court for in camera inspection if relevantto an issue before it. The court may permit public disclosure if it finds such disclosure to be necessary for the fair resolution of an issue before it. The dissent focuses on the impossibility of the father and his

### counsel identifying the informationneeded when they did not know what 

### informationwas contained in the file. The District Court 

### did not require an impossibility on the part of the father or his counsel, but made a practical decision. The court was presented with a lengthy file. 

### District courts have 

### control over the 

### presentation of evidence so as to avoid needless consumption of time. Rule 611(a)(2)

### , M.R.

### Evid. Further, district courts have inherent discretionary power to control discovery; such power is based upon the court's authority to control trial administration. Massaro v. Dunham (19791, 184 

### Mont. 400, 603 P.2d 249. It is 

### essential to look at the record with regard to the events as they took place. The record shows that the father's counsel did not request an 

### "in cameratfinspection by the court. 

### Instead he continued to 

### request that as 

### counsel for the father he should be 

### allowed to conduct an "in cameraM inspection of the 

### entire file. Such inspection was by 

### definition impossible; the 

### court correctly noted that it was not appropriate under the above statute. The record further demonstrates there was 

### no attempt by counsel for the father to in 

### any way delineate the nature of the information desired. 

### This failure to even 

### attempt to comply with 

### the court's concern underscores the court's *'fishingexpeditionN analysis. As the court pointed out at the

### pretrial conference, it 

### understood that the father had 

### everything which he needed to try the 

### case. As 

### requested 

### by the court, counsel could have listed the materials which had been furnished to him and 

### thereby identifyinformation which he did 

## not need. With little effort, counsel could have stated that informationwas desired only as to K.M.W. This would have significantly diminished the volume of material needed for review. In addition, he could have eliminated such elements as the following: reports of foster parents, reports of personnel employed by the various divisions of the State of Montana, reportsbypersonnel in the stateof Idaho,reportsby law enforcement personnel, and reports of psychologists or other medical personnel. We emphasize that after being warned of the necessity to limit or identify the information required, counsel refused to do anything of that nature. The District Court concluded counselwasmerely on a fishing expedition and therefore refused to approve it. Under the statute the District Court is given the discretion to determine if the evidence is relevant to an issue before it. It is given the discretion as to whether to conduct the "in camera" examination at all. Inview of the failure on thepart of counsel for the father to attempt to limit or specify the information requested in anymanner, we conclude that the fatherhas failed to prove the District Court was clearly erroneous in denying disclosure of access to the entire files. We therefore hold that the District Courtdid not err indenyingdisclosureof evidenceto the father. I11 Did the District Court err in refusing to replace Garry Bunke

as guardian at litem after he began towork part-time as a deputy

### county attorney in another county? The father

### contends thattheDistrict Court erred in allowing 

### Garry Bunke to remain as guardian ad litem in this case after he became deputy county attorney in an adjoining county. The father maintains that a 

### conflict of interest arose at that point because

as

### guardian at litem,Garry Bunke would no longerbe 

### able to remain neutral but would rather,be cloudedby thepositionhe 

### shouldtake

as an attorney for the State. The Statemaintains that there was no natural 

### or apparent conflict between representing the State in one county and a child in another. 

### In its order denying the father's motion to appoint an unbiased guardian ad litem, the District Court stated: The

### Respondent-father'sattorney,Mr. Houtz,alleges that the guardian ad litem, Mr. 

### Bunke, is not sufficiently neutral,because

### Mr. Bunke isalso a

### Deputy Custer County 

### Attorneyandbecause at the pretrial,Mr. 

### Bunke indicated that he went 

### along with the contentions of 

### the state. This 

### is insufficient evidence that

### Mr. Bunke is anything less 

### than an impartial guardian ad litem. Mr. 

### Bunke has been a DeputyCounty Attorney fortwo and one-half years. Prior to 

### that, he was 

### a defense counsel and frequently represented

### parents and 

### children 

### in such

### matters. Just 

### because he agrees with the Rosebud County Attorney in thiscase doesnotmeanhe 

### isnot adequatelyrepresenting the children. We agreewith the District Court's reasoning. Furthermore, 3 41-5-512,MCA, 

### provides that the courtmay not appoint an employee

or representative of a

### party as a guardian ad 

### litern. First,at the time that Mr. Bunke was appointed as 

### guardian ad litem,he was 

### not

a 

### deputy county attorney. Second, as 

### Deputy Custer County Attorney,Mr. Bunke 

### isnot an employee or representative of the DFS



### or Rosebud County. He 

### is 

### an employee of Custer 

### County. Therefore,

### the District Court did not err in refusing to replaceMr. 

### Bunke 

### as guardian ad litem.

Was 

### the District Court biased in favor of the county? In the 9 

### hearing on the petition for temporary legal custody, the District Court stated: The Court will continue the temporary custody with the Department for a period of six months and the Court would implore the father to complete his treatment plan and would indicate that 

### he has 90 

### days within which to substantially ormake substantial progress and this is to be 

### monitored by the 

### Department of Family 

### Services. If 

### the father is not making substantialprogress at that point, the Court would urge the Department then to 

### make a decision as 

### to whether or not to move, petition the Court for termination of all parental rights. This is not something that the Court seeks and the 

### Court certainly can 

### empathizewith thenatural father 

### in this situationand also as statedby the

### CountyAttorney, but 

### one of the primary needs of 

### the children is for 

### stabilityand continuityand the children are at 

### suchan age where a decision has 

### to be reached. The 

### father maintains that 

### in the above language, the 

### District Court ordered the Rosebud County Attorney to file a petition for termination of 

### the father'sparental rights, committing reversible

error. 

### We disagree. Read in context with the rest of the court's decision, there is no indication that the court ordered a petition to be 

### filed against the father, or 

### that the court had prejudged the case. Rather, the court empathized with the father and attempted to spur him into action to try to keep his family together. We 

### hold that there isno evidence that the District Court was 

### biased 

### in favorof Rosebud 

### County.

### v Did the District Court err 

### indeclining to allow the 

### child to testify? On May 7, 1991, 

### the father moved to allow K.M.W. 

### to testify that she desired to live with her father. The 

### State opposed the motion arguing that K.M.W. ts

### wishes were irrelevant to the issueof 

### whether the father successfulLy complied with the treatment plan, and that K.M.W. 

### was not competent to testify. The District Court denied the father's motion on the basis that the parties had stipulated that K.M.W. 

### would say that she desired to live with her father. Inthemaking of its findingsand conclusions the District Court clearly recognized that K.M.W 

### desired to live with her father. In

### additionthe DistrictCourt alsomentioned that theparties also stipulated that the father's counsel could observe the interaction between K.M.W. 

### and her therapist if they wished to do so, 

### in order 

### to avoid further traumatization of the child. The District Court concluded that the threatened harm to the child outweighedanypossible relevancethe testimonyas

### to custodywould have.We 

### agree with the District Courttsreasoning. We 

### hold that 

### the District Courtdid not abuse itsdiscretion inrefusingtohave K.M.W. 

### testify. Affirmed

# .We Concur:

Justices

### Justice Terry N. 

### ~rieweiler, concurring in part and dissenting in part.

I concur 

### with those parts of the majority opinion which 

### resolve issues numbered 111, IV, 

### and V. I 

### specially concur with the result arrived at in themajority opinion relating to Issue I, although 1strongly

### disagreewithmuch of

### what is 

### said 

### inthatpart 

### of the opinion. T 

### join Justice Gray's dissent to the 

### majority's conclusion under Issue 11. After personally reviewing the testimony upon which the 

### District Court relied before terminating the parental rights of Jack Watson, I 

### strongly disagree with the majority's characterizationthat there 

### isoverwhelmingevidencethathe 

### failed to comply with critical parts of 

### the treatmentplan he 

### was ordered to 

### follow. There was evidence that 

### in at least one respect he did 

### not comply 

### with a 

### comprehensive and detailed set of 

### obligations imposed upon him. I 

### also disagree with the majority's statement that he failed to complete treatment that was 

### recommended as a result of 

### the evaluations that he underwent. He submitted to psychological evaluations and alcohol abuse evaluations. The conclusions from those who 

### evaluated him was 

### that he 

### had no 

### psychological abnormality which 

### required treatment and that he 

### was not abusing alcohol. Ialso 

### disagree with themajority s statement 

### thatMr. Watson 

### continues to 

### deny various aspects of the 

### sexual offenses against his children. He 

### testified repeatedly during the hearing that

### while it was initially difficult to acknowledge that his children had been abusedwhile 

### living inhis home and 

### underhis care,

### he was

now completely resigned to the fact that abuse had 

### occurred and thathis children suffered severe personalitydisordersbecause of that abuse. Finally, I 

### disagree with the majority's statement that in spite of prodding, Mr. Watson has 

### refused to comply 

### with his treatment plan. 

### It is 

### true that because of 

### relocation, the unavailability of many of the 

### services that were necessary, and instability inhis ownpersonal life, it took him longer to comply with the 

### program than would have been desirable. However, I 

### conclude frommy review of the 

### evidence in this case, thatprior to June 1990 

### when K.M.W. was 

### last placed in her father's custody,he had 

### complied inmost significant respects with the treatment plan that had been designed for him. My 

### interpretationof 5 41-3-609,

### MCA, 

### is that a district court may order termination of 

### a parent-child relationshipwhere: 1. 

### The child has been adjudicated a youth in need of care, and 2. A 

### treatment plan has not been complied with, and 3. 

### A condition rendering a parent unfit 

### is unlikely to changewithin a reasonable time. Indeterminingwhether a parent isunfit, I

### conclude that all that needs 

### to be shown under 41-3-609, MCA, 

### is that some 

### condition of the parent renders 

### him unable to give the child adequate parental care.

### Although I do not agree with the characterization of the evidence set forth in the majority opinion, I 

### do agree that the State offered sufficientevidence to create factual issues on each of these necessary elements. Furthermore, while based on my own review of the transcript, I may not have resolved those factual issues in the samemanner as the District Court did, I

### acknowledge that there was a sufficient basis in the record for the District Court tomake the findings that itmade, and I

### recognize theunique position that a DistrictJudge is in to resolve factual issues. In spite of these conclusions, I

### believe the result in this case is unfortunate. Jack Watson is a fatherwhose daughters were sexually abused by his former spouse. He neither participated in the abuse, nor
was he aware that it was occurring. When he firsthad reason to suspect that his daughters had been abused, he reported his suspicions to the Department of Family Services,which eventually removed his children from his home. As a result of their sexual abuse, his daughters have developed personality disorders to such an extent that their care requires skills over and above those possessed by the average parent. Even though he had never personally abused nor neglected his daughters, Jack Watson was ordered to comply with a treatment program in order to retain his rights as 

### a parent. The treatment programwas comprehensive. It required evaluation and counseling.I am sure that Jack Watson, based upon his training and instincts as aparent, felt that sincehe was not the offender that the treatment program made no sense and was imposed upon him by people who had little understanding of his personal relationship with his daughters. However, it is apparent to me from my review of the record thathemade an effort to technically comply with the program without any conviction that the treatment program would benefit either his daughters or him. It is also clear to me from my review of the testimony that he believes he did comply with the treatmentprogram. Yet, therewas evidence that in one respecthedid not comply. He did not enter into counseling for the specific purpose of dealing with his alleged lack of assertiveness or to develop effective methods of disciplining his daughter and understanding her special needs as a victim of abuse. Whether or not that was a practical requirement, and whether or not it was reasonable to expect there would be any benefit to Jack Watson or his daughters from such counseling, was not an issue in the District Court, and has not been raised as an issue in this Court. Therefore, 

### I conclude that there was 

### a factual basis in the record from which the District Court could find that K.M.W.'s father did not follow the treatment plan. The second requirement under § 41-3-609,MCA, for termination of parental rights is that 

### a conditionrenders the parent unfit to

care for his child and that the condition is unlikely to change within a reasonable time. 

### It is the consideration of this factorwhich makes this case unique among those cases Ihave seen dealing 

### with the termination of parental rights. From everything 1 have

seen in this record, JackWatson is a loving parent who cares for his daughters and is loved by them. There is no evidence that he has ever mistreated his daughters. Yet, because of his former wife'smistreatment of his daughters,theyhavedemonstrated severe emotionalproblemswhich requirecareand understandingbeyond that which the average parent 

### is capable 

### of giving. Therefore, under the unique circumstances of this case, there was, through the testimony of Barb Rolston and Marty Jones, what Ibelieve to be a bare minimum of the credible evidence necessary to sustain the District Court's finding that this father, even though otherwise qualified to be 

### aparent,was unfit to care forK.M.W. who had such unique and special needs. 

### My interpretationof 5 41-3-609(2), MCA, is that a parent may be found unfit to care for his or her child and unlikely to change within a reasonable time if the court finds that the conduct or condition of the parent renders him unable to give the child adequateparental care. While I findno evidence anywhere inthis record to support a conclusion that Jack Watson ever abused or neglected either 

### of his daughters, I do find sufficient evidence, through the testimony of the previous witnesses, 

### for the District Court to find that Jack Watson was unable to provide adequate care for his daughter K.M.W. I must emphasize that reading the same testimony that the District Court heard and observed, Iwould not necessarily resolve the factual dispute 

### as the District Court did.However, it is not my right to resolve that factual dispute when the District Court, from itsperspective,was in a better position to do so. I feel the result of this decision 

### is unfortunate. It should be of concern to everyone who believes in the fundamental importanceof familyrelationships that

### aparent-child relationship

can be terminated, not because of something the parent has done wrong, but because the parent's skills are average or even below average. That is, in effect, the result of the holding in this

case. The father,whose rights are being terminated in this case, is as good a parent and as able to care for his children as most parents. His only inadequacy, at least according to most of the evidence that was presented, is that he has not developed special skills beyond those possessed by the average parent which would enablehim to deal with the damage inflicted onhis childrenby his former spouse. Because of the importance and sanctity with which I regard the parent-child relationship, and because of the degree to which the very nature of the relationship can compensate for 

### a parent 

### sinadequacies, Ihave seriousreservationsaboutthewisdom of the public policy 

### as set forth in our statutory lawwhich would permit termination of the parent child relationship under these circumstances, However, where the legislature's intent is clear,

as it is in this case,and where the constitutionality of what the legislaturedid is not an issue,it is not for this Court to ignore the stated public policy and establish its own.For these reasons, although I strongly disagree with its characterization of theevidence in thiscase, I reluctantly concur with the result of the majority opinion.



### I concur in the foregoing concurrence and dissent of Justice Trieweiler.

### Justice Karla

### M, 

### Gray dissenting.



### Irespectfullydissent from themajority opinion on Issue 11. This 

### case concerns 

### one of the most fundamental and important rights recognizedby the law: the right of 

### a parent toparent his children. Here, 

### in an effort to stave off termination of that right by 

### the State of Montana, the father requested records and files of the Department of Family Services (DFS) 

### in order 

### that he might obtainandutilize anyrelevant informationcontainedtherein in his "defenseg1 to the 

### action to terminate his parental rights. The majority affirms the District Court's imposition of a 

### precondition to an 

## in camera inspection which, as a 

### practical matter, is an impossibility. More 

### importantly, it affirms a 

### preconditionnotprovided for in the controlling statute,and does

so 

### without citation to any authority. 

### I cannot agree. The District Court required the 

### following in denying the father's request for an

## in camera inspection: Counsel

### who seekdiscovery of documents contained 

### in the DFS 

### filemust specifyor describe the documents they are particularly interested in. 

# . . . The Respondent-father has 

### not sufficiently identified 

### what he is looking for. The court went on to say that itwould reconsider themotion at the time of trial ''if counsel can sufficiently identify particular documents, types of documents, time frames, and 

### other identifying information. The

### majority 

### attempts

### toreconstruct

### the recordby 

### suggesting that 

### the court requested 

### counsel to list the materials he already possessed, 

### thereby identifying 

### unneeded information. 

### Such an

### effort by counsel would not have met the court's requirement to specify, describe or 

### identify the information being sought, as 

### quoted above. Similarly, the majority's listing of 

### materials the father "couldhave eliminated" isnothingmore than speculationby this 

### Court and, again, not responsive to the District Court's Memorandumand Order dated June 6, 1991. 

### Inany event, some of the majorityls listed items might well have been relevant and, therefore, sought

### by the father 

### if contained in the DFS file. The 

### Pact is that neither the District Court nor 

### themajority suggest how the father could 

### have complied with the District courtlsprecondition. It strikes 

### me that such a 

### precondition requires

### an impossibility;neitherthe fathernorhis counselcould possiblyknowwithparticularitywhat documentsand 

### informationthe 

### file contained. 

### In this regard, the majority requires an 

### impossible act in contravention of the statutory maxim of jurisprudence that "[tlhe law never 

### requires impo~sibilities.~~ Section 1-3-222,MCA. More importantly, nothing inthe statutepermitting disclosure of DFS 

### files, 

### 5 41-3-205, 

### MCA, requires the act imposed by the District 

### Court 

### and affirmedby the majority. To 

### that extent, the majorityviolates itsmost basic duty,

### as stated in 

### S 1-2-101,MCA: 

### to ascertain and declare what is contained in 

### a statute and 

### to refrain from inserting that which 

### is not found therein. Section 41-3-205, 

### MCA, is clear and straightforward: DFS 

### records 

### may be 

### disclosed to a court for camera inspection if 

### relevant to 

### an issuebefore it. It is undisputed 

### that the recordsconcerning the father's childrenmay contain information relevant to defending against the State's effort to terminate his parental rights. Indeed,the District Court recognizedand stated that the recordsmay contain relevant informationwhich should be disclosed pursuant to the statute. Here, the statutory procedure has not occurred; it was foreclosedby impositionof theprecondition. Therehasbeen no

### b camera examination and no release of relevant information to a parent seriouslyandvigorously contestingterminationoftheright to parent his children. The majority concludes that the District Court's imposition of a precondition that the father specifywhat informationhe needed fromthe file, a requirementnot contained in the statute, did not constitute an erroneous denial of access to the record. Nothing could be further from the truth. Idissent.February

### 2, 1993 CERTIFICATEOFSERVICE Iherebycertify that the followingorderwassentby United States mail,prepaid,tothe following named:

JOHNHOUTZ Attorney at Law P.O. Box 1230 Forsyth,MT 59327 MarceyF.Schwarz SCHWARZ&GUSTAFSON, P.C. P.O. Box21386 Billings,MT59104 HON.MARC RACICOT,AttorneyGeneral PatriciaJ.Jordan,Assistant JusticeBldg. Helena,MT59620 John Forsythe County Attorney DrawerM Forsyth,MT59327 Barb Rolston Departmentof FamilyServices P.O. Box241 Forsyth,MT59327 GARRYP.BUNKE Attorney at Law P.O. Box 1407 MilesCity,MT 59301

EDSMITH CLERKOFTHESUPREME COURT ST MONTANA