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, Attorney General, Helena, Montana 

Patricia J. Jordan, Assistant Attorney General, 

Helena, Montana 

John S. Forsythe, County Attorney, 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, the District Court 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 the marriage, 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 the mother to 

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keep 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 that when she first tried to interview K.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 regarding medical neglect." At that point, pursuant to court 

order, the DFS removed the children from the home and placed them 

in foster care. 

At the hearing in June 1991, the foster mother testified that 

K.M.W. was two years old and M.A.W. was less than one year 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 testified that K.M.W. had constant nightmares and 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 she would even, her voice would 

3 
even change as she began to say things that she was 

repeating and go through the motions of what had 

happened. She would hold her hands together and I'd ask 

her, Why do you have your hands together?" "They are 

tied up." And I would ask her questions with each thing 

she did and she would 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 "bad man" 

did these things to her and that "Mommy was 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. 

Notwithstanding the order forbidding the same, two weeks later 

on June 24, 1988, DFS was informed that the father had left the 

children with the mother for approximately two 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. The children were removed fromthe mother's custody and 

4 
placed in licensed foster care. 

On the basis of the DFSf allegations that K.M.W. and M.A.W. 

were abused, or in danger of being abused and neglected, within the 

meaning of 5 41-3-102, MCA, the District Court granted the DFS 

temporary investigative authority. 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 father had 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 education program; 

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; to understand the children's needs as victims 

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 dependency counselor, and complete a 

treatment program 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 listed 
objectives] ; 

7. Cooperate with the recommendations and requests of 

the local agency; 

8. Contact the children on a monthly basis, by writing 

letters to them; 

9. Confer with the supervising social worker 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] 

only requirement prior to visiting the girls was to agree 

to tell no one where they were, When his relatives 

started writing to the foster homes, [the father] 

indicated he didn't see what it could hurt to tell them. 

While he denies any alcohol problems, he has not 

completed an alcohol evaluation and he continues to be 

involved with other people who do have alcohol problems. . . . [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 recently she was uncooperative 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. She will need to be 

in the program at least another six months. 

Both children continue to need specialized therapeutic 

foster care. Neither parent has obtained adequate 

housing nor completed court approved treatment plans. 

Each girl has made separate and consistent allegations of 

sexual abuse by [the mother]. She continues to deny the 
abuse 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 the petition. 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 petition by the DFS, on November 20, 1989, 

the District Court held a hearing in which 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 decision has 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 

a point where they feel they can safely place one or both 

of the children with you, they will recommend placement 

outside the family? 

A. Yes, I do 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 children with severe scars? 

A. Very much so. It leaves me with severe scars 

knowing that it happened to them and I didn't know it was 

going on. 

Q. No one is asking that you take 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 the mother 

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 the parents rendering them unfit 

is unlikely to change within a reasonable period of time. 

And for whatever the parents including the father, have 

not complied. 

I think it's the position 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 six months. 

This will be avvroximatelv 2 1/2 vears and althoush 
there are verv fundamental riqhts as far as the rishts of 

natural ~arents. those riqhts are secondary to the 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 the part 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 

discipline procedures, which created some of K.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 to place her with another family." Ms. Rolston recommended 

that K.M.W. be placed with her father as soon as possible. 

On June 8, 1990, the deputy county attorney, Gary Ryder, filed 

a stipulation between 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. Immediately upon 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 Health and Welfare social worker 

who had worked with the father since January revealed that she had 
never been informed of the incident with Baby C. Furthermore, the 

father failed to follow through with the Idaho welfare services. 

K.M.W. was removed from his 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 fewer problems 

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 she may 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 

responses that endangered not only his own daughters, 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 creates another potential victim to protect. 

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 as 
possible. On December 31, 1990, a petition for the termination of 

the parental rights of the father was 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, which was denied. He now appeals the termination of 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 (in part): 

(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) In determining whether the conduct or condition 

of the parents is unlikely to change within a reasonable 

time, the court must enter a finding that continuation of 

the parent-child legal relationship will likely result 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 adequate parental 
care. 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) In considering any of the factors in subsection 

(2) in terminating the parent-child relationship, the 

court shall give primary consideration to the physical, 

mental, and emotional conditions and 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 that would amount to a 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 firm and effective methods of discipline, to understand 

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 him how much 

12 

the 

and 

the 

her 

she 
loved 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. He maintains that the 

testimony of Billie Jo and his mother 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: 

[Questioning By Guardian Ad 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 the path with least resistance and 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 in dealing with his children, does assertiveness 

become an issue or a problem, especially as it relates to 

[K.M.W. and M.A.W.]? 

A: [K.M.W.] is probablythe most manipulative preschool 

child I have ever seen. She is very intelligent, very, 

very, very, controlling. And I don'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 having 
special needs. Would you describe them as having 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've never had a child who was that fearful in my 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 appears to be related to her 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 in her 

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 child who would 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's not 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 them as well 

as the other child. . . . 

Ms. Rolston also testified that the family assessment revealed 

things that the father had not shared with them. For instance, she 

testified that when K.M.W. was placed in his care, the father did 

not follow the schedule provided for K.M.W. to follow for even one 
day. 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 

contact K.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., he made promises to send her 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 contact with the social worker, Barbara Ralston 

(sic) ; he has failed to maintain 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 child who has been sexually abused and who 

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 of 
discipline which were required. In addition, such counseling would 

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 in the 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, 

yelling and screaming, of [K.M.W. ] and her new stepsister 

[Baby C]. 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 Billie Jo talking to the children and telling 

them that they should not do such things. 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~riate assistance to help 

IK.M.W.1 with her special needs. (Emphasis added). 

The father contends that the Idaho report demonstrates that he 

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 this 
entire process has wavered with respect to whether he will even 

admit that there has been sexual abuse and testified that he would 

comply "if it was necessaryt'. The record contains uncontradicted 

evidence that K.M.W. was seriously sexually abused. However, in 

spite of the DFS' constant prodding 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 six months to complete the treatment plan, 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 is unlikely to change within a reasonable period 

of time. We therefore hold that the District Court properly 

ordered a termination of the parent-child legal relationship under 

9 41-3-609, MCA. The record clearly demonstrates that K.M.W. is an 

adjudicated youth in need 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 

rendering him unfit is unlikely to change within a reasonable time. 

Although we affirm the District Court's decision to terminate 

parental rights for the reasons stated above, we also point out 

that the District Court could have terminated the father's parental 

rights in this case under 941-3-410, MCA. That section provides 

(in part) : 
The court may terminate parental rights under 41-3-609 (2) 

or order other permanent legal custody that will provide 

for the permanent placement of the child when legal 

custody of a youth has been transferred to the department 

under this part and: 

(2) the child has 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 to be 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-home placement for more than two years. 

Furthermore, as already discussed, the record supports the District 

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 to his 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 she may 

develop, notwithstanding the mistreatment she has received. The 

best interests of K.M.W. clearly outweigh the claim on the part of 

18 
the 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 reports prepared by foster parents, 

claiming the reports were 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 Itin camerav1 

inspection of the entire DFS file by the attorneys for the father. 

An "in cameraw inspection by definition is made by the court--not 

counsel for defendant. While acknowledging this fact, the court 

suggested that counsel describe the type of documents in which the 

father was interested so the DFS had an opportunity to advise the 

court of the parts of the voluminous file which were deemed 

confidential and should not be disclosed. The court suggested that 

after the "in cameratt examination it would then determine what 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 trial 
so 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 

grounds was the denial of inspection of 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, it was 

the Court's understanding at the pretrial conference that 

the Respondent-Father had everything that he needed, 

Counsel should file a prompt motion specifying the 

particular information needed, the Department could then 

mark the information in the voluminous file and also mark 

any information in the relevant portions 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 

examination of the Department of Family Services file was 

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 

the Court that counsel was merely 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 relevant to 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 information needed when they did not know 

what information was 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 cameratf inspection 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 *'fishing expeditionN 

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 identify 
information which he did not need. With little effort, counsel 

could have stated that information was 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, reports by personnel in the state of Idaho, reports by 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 counsel was merely 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. In view of the failure on the part of counsel 

for the father to attempt to limit or specify the information 

requested in any manner, we conclude that the father has failed to 

prove the District Court was clearly erroneous in denying 

disclosure of access to the entire files. We therefore hold that 

the District Court did not err in denying disclosure of evidence to 

the father. 

I11 

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? 

The father contends that the District 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 longer be able to remain 

neutral but would rather, be clouded by the position he should take 

as an attorney for the State. The State maintains 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's attorney, Mr. Houtz, alleges that 

the guardian ad litem, Mr. Bunke, is not sufficiently 

neutral, because Mr. Bunke is also a Deputy Custer County 

Attorney and because 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 Deputy County Attorney for two 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 

this case does not mean he is not adequately representing 

the children. 

We agree with the District Court's reasoning. Furthermore, 3 

41-5-512, MCA, provides that the court may 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 is not 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 replace Mr. 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 or make substantial progress and this is to 

be monitored by the Department of Family Services. 

If the father is not making substantial progress 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 empathize with the natural father in 

this situation and also as stated by the County Attorney, 

but one of the primary needs of the children is for 

stability and continuity and the children are at such an 

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's parental 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 is no evidence that the District Court was biased in favor of 

Rosebud County. 
v 

Did the District Court err in declining 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 issue of 

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. In the making of its findings and 

conclusions the District Court clearly recognized that K.M.W 

desired to live with her father. 

In addition the District Court also mentioned that the parties 

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 

outweighed any possible relevance the testimony as to custody would 

have. 

We agree with the District Courtts reasoning. We hold that 

the District Court did not abuse its discretion in refusing to have 

K.M.W. testify. 

Aff irmed . 
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 the majority opinion relating to Issue I, 

although 1 strongly disagree with much of what is said in that part 

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 

characterization that there is overwhelming evidence that he failed 

to comply with critical parts of the treatment plan 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. 

I also disagree with the majority s statement that Mr. 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 abused while living in his home and under his care, he was 

now completely resigned to the fact that abuse had occurred and 

that his children suffered severe personality disorders because 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 in his own personal life, it took him longer to comply 

with the program than would have been desirable. However, I 

conclude from my review of the evidence in this case, that prior to 

June 1990 when K.M.W. was last placed in her father's custody, he 

had complied in most significant respects with the treatment plan 

that had been designed for him. 

My interpretation of 5 41-3-609, MCA, is that a district court 

may order termination of a parent-child relationship where: 

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 

change within a reasonable time. 

In determining whether a parent is unfit, 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 sufficient evidence 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 same manner as the District Court did, I acknowledge 

that there was a sufficient basis in the record for the District 

Court to make the findings that it made, and I recognize the unique 

position that a District Judge is in to resolve factual issues. In 

spite of these conclusions, I believe the result in this case is 

unfortunate. 

Jack Watson is a father whose daughters were sexually abused 

by his former spouse. He neither participated in the abuse, nor 

was he aware that it was occurring. When he first had 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 

program was comprehensive. It required evaluation and counseling. 
I am sure that Jack Watson, based upon his training and 

instincts as a parent, felt that since he 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 that he made 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 

treatment program. 

Yet, there was evidence that in one respect he did 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 condition renders 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 factor 
which makes this case unique among those cases I have seen dealing 

with the termination of parental rights. From everything 1 have 

seen in this record, Jack Watson 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's mistreatment of his daughters, they have demonstrated severe 

emotional problems which require care and understanding beyond 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 I believe 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 a parent, was unfit to care for K.M.W. who had such 

unique and special needs. 

My interpretation of 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 

adequate parental care. While I find no evidence anywhere in this 

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, I would 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 its perspective, 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 

importance of family relationships that a parent-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 

enable him to deal with the damage inflicted on his children by 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 s inadequacies, I have serious reservations about the wisdom 

of the public policy as set forth in our statutory law which 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 

legislature did 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 the evidence in this case, 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. 

I respectfully dissent from the majority opinion on Issue 11. 

This case concerns one of the most fundamental and important 

rights recognized by the law: the right of a parent to parent 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 obtain and utilize any relevant information contained therein 

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 

precondition not provided 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 seek discovery of documents contained in the 

DFS file must specify or 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 it would reconsider the motion at the 

time of trial ''if counsel can sufficiently identify particular 

documents, types of documents, time frames, and other identifying 

information. 

The majority attempts to reconstruct the record by 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 "could have eliminated" is nothing more than speculation by 

this Court and, again, not responsive to the District Court's 

Memorandum and Order dated June 6, 1991. In any 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 the majority 

suggest how the father could have complied with the District 

courtls precondition. It strikes me that such a precondition 

requires an impossibility; neitherthe father nor his counsel could 

possibly know with particularity what documents and information the 

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 in the statute permitting disclosure 

of DFS files, 5 41-3-205, MCA, requires the act imposed by the 

District Court and affirmed by the majority. To that extent, the 

majority violates its most 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 issue before it. It is undisputed that the records 
concerning the father's children may contain information relevant 

to defending against the State's effort to terminate his parental 

rights. Indeed, the District Court recognized and stated that the 

records may contain relevant information which should be disclosed 

pursuant to the statute. 

Here, the statutory procedure has not occurred; it was 

foreclosed by imposition of the precondition. There has been no b 

camera examination and no release of relevant information to a 

parent seriously and vigorously contestingtermination ofthe right 

to parent his children. The majority concludes that the District 

Court's imposition of a precondition that the father specify what 

information he needed from the file, a requirement not contained in 

the statute, did not constitute an erroneous denial of access to 

the record. Nothing could be further from the truth. I dissent. 
February 2, 1993 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the following 

named: 

JOHN HOUTZ 

Attorney at Law 

P.O. Box 1230 

Forsyth, MT 59327 

Marcey F. Schwarz 

SCHWARZ & GUSTAFSON, P.C. 

P.O. Box 21386 

Billings, MT 59104 

HON. MARC RACICOT, Attorney General 

Patricia J. Jordan, Assistant 

Justice Bldg. 

Helena, MT 59620 

John Forsythe 

County Attorney 

Drawer M 

Forsyth, MT 59327 

Barb Rolston 

Department of Family Services 

P.O. Box 241 

Forsyth, MT 59327 

GARRY P. BUNKE 

Attorney at Law 

P.O. Box 1407 

Miles City, MT 59301 

ED SMITH 

CLERK OF THE SUPREME COURT 

ST MONTANA