NO. 91-264 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1992 

IN THE MATTER OF D.S., H.S., R.S., 

R.S., J.S., R.S., and K.S., 

Youths in Need of Care. 

APPEAL FROM: District Court of the Fifth Judicial District, 

In and for the County of Beaverhead, 

The Honorable Frank M. Davis, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Thomas A. Dooling, Dooling Law Office, Dillon, 

Montana. 

For Respondent: 

Hon. Marc Racicot, Attorney General, Helena, 

Montana : Jennifer Anders, Assistant Attorney 

General, Helena, Montana; Thcmas R. Scott, County 

Attorney, Dillon, Montana; Andrew P. Suenram, 

Attorney at Law, Dillon, Montana. 

Submitted on Briefs: February 6, 1992 

Decided: June 25, 1992 

Filed: 

Cuerk 
Justice Fred J. Weber delivered the Opinion of the Court. 

The Montana Fifth Judicial District Court, Beaverhead County, 

terminated the parental rights of James K. Streckert and Ida E. 

Streckert (Streckerts) , the natural parents of D. S . , H. S. , R. S., 

R.S., J.S., R.S., and K.S. Streckerts appeal. We affirm. 

The issues raised on appeal are restated as follows: 

1. Did the District Court deny the Streckerts due process by 

taking judicial notice of collateral proceedings and incorporating 

findings from the temporary custody proceeding into its order 

terminating the Streckerts' parental rights? 

2. Did the State meet the statutory criteria for terminating 

Streckerts' parental rights under 5 41-3-609, MCA? 

In October 1989, the Department of Family Services (DFS) 

received complaints of educational neglect from school officials 

due to the Streckert children's excessive absences. In November 

1989, the DFS received reports of possible sexual abuse, and 

petitioned the court for temporary investigative authority. The 

Streckerts were unrepresented at this hearing in December 1989, 

wherein the District Court appointed Guardians ad litem for the 

children and granted the DFS temporary investigative authority. On 

March 22, 1990, the court heard the State's petition for temporary 

custody of the Streckert children, and granted DFS temporary 

custody. The court ordered D.S. removed to foster care with the 

other children remaining in the Streckert home. The Streckerts 

were not represented at this hearing. In April 1990, the court 

approved the treatment plan proposed by the DFS. The Streckerts 

2 
refused to sign the plan. Further, evidence from the final hearing 

reveals that the Streckerts failed to comply with the plan. 

After working with the Streckerts for over ten months, the 

state of Montana, through the DFS had petitioned the court to 

terminate the parental rights of appellants James and Ida Streckert 

on February 13, 1991. The court conducted a hearing on this 

petition March 15, 20 and 21, 1991. Court appointed counsel 

represented the Streckerts during the termination hearing. 

The facts set forth in this opinion are summaries of the 

testimony presented in the course of the final termination hearing, 

wherein the Streckerts were represented by counsel. Dr. Richard 

Thomas, a licensed professional counselor testified that the oldest 

boy, D.S., was sexually abusing his younger siblings, and that the 

Streckerts were aware of this abuse yet did not accept the 

seriousness of D.S.'s sexual activities. Marjorie Montrose, the 

primary social worker, presented testimony that the Streckerts did 

not appreciate the impact this sexual abuse had on the younger 

children and failed to intervene. Further, both Thomas and 

Montrose testified that the Streckerts did not effectively 

participate in the treatment of D.S. or the other children. They 

missed scheduled meetings and when present they did not 

constructively use the counseling sessions. Streckerts used these 

sessions to air grievances with the DFS rather than address their 

problems. 

Deputy Sheriff William Briggs testified D.S. was stealing 

bicycles, and then dismantling, reassembling and repainting the 

3 
bikes in the shop behind the Streckert house. The Streckerts 

refused to acknowledge or address the thievery by D.S. In 

addition, Deputy Briggs caught R.S., shoplifting. He testified 

that Mr. Streckert ~ogiggled~~ when he learned of the thievery of 

R.S, one of his younger children. 

Neighbors, law enforcement, and social workers all testified 

that the Streckerts' house was filthy. Women from the local church 

attempted to work with Mrs. Streckert to improve her housekeeping 

skills, and a neighbor testified that she laundered the Streckerts' 

clothes for a month. Despite this encouragement, Mrs. Streckert 

made no attempt to keep the house habitable. Mrs. Streckert worked 

neither out of the home nor in the home; rather, she spent her days 

watching television. Mr. Streckert's former employer testified 

that Mr. Streckert was a "first rate'' mechanic. Nonetheless, Mr. 

Streckert chose not to work and depended on the church to pay his 

rent. 

Montrose testified that although the Streckerts made no 

improvement in their home as required by the plan, in her opinion 

the habitability of the home was not as important as the negative 

emotional and psychological influence that the Streckerts had on 

their children. 

Uncontradicted testimony demonstrated the inability of the 

Streckerts to learn parenting skills. R.S.'s teacher testified 

that she kept food at school to feed R.S. The Streckerts' neighbor 

testified that she fed the Streckert children daily. The 

children's clothes as well as the children themselves were filthy. 

4 
The foster parents of the five younger children testified that when 

they were placed into foster care, the children were unaccustomed 

to bathing, that they had an eighth of an inch of "greasy, scaly, 

cruddy stuff on their hair" which took over a week of bathing to 

wash out. The younger boys were hungry when they arrived. The 

children were unaccustomed to eating with utensils and did not know 

how to brush their teeth. In addition, the physician examining the 

children after they were placed with foster parents testified that 

R.S. needed dental care, suffered from a severe ear infection which 

blocked his hearing, and had untreated speech problems. A neighbor 

testified that the Streckerts treated their children with animal 

medication. 

Social workers Montrose and Riley testified that despite the 

DFSIs efforts, Streckerts refused to comply with the treatment 

plan. This testimony was confirmed by Dr. Thomas who testified 

that in his opinion the treatment plan was appropriate, and that 

the Streckerts failed to comply. Thomas testified that the 

Streckerts' behavior was both inappropriate and manipulative. 

Further, he concluded that any continued treatment would be 

detrimental to the children. Finally, he testified that it was in 

the best interest of the children to permanently separate them from 

their parents. 

Social workers Montrose and Riley testified that even if the 

Streckerts engaged in long term treatment, it was unlikely that 

they would successfully complete the treatment plan. They further 

testified that any further delay in permanent placement would be 

5 
detrimental to the children. Accordingly, they recommended 

immediate termination of parental rights. The Streckerts denied 

all evidence presented by the State: however, the court 

specifically found their continued denial was not credible. 

On April 1, 1991, the District Court terminated the 

Streckerts' parental rights. In its findings, the District Court 

took judicial notice of the two collateral proceedings and 

incorporated the findings from the temporary custody proceeding 

into its termination order. The Streckerts appeal from this order 

terminating their parental rights. 

Did the District Court deny the Streckerts due process by 

taking judicial notice of collateral proceedings and incorporating 

findings from the temporary custody proceeding into its order 

terminating the Streckerts' parental rights? 

This Court has previously determined that due process 

requirements are satisfied when the State appoints counsel prior to 

termination hearings. Matter of M.F. J.F. L R.W. (1982), 201 Mont. 

277, 286, 653 P.2d 1205, 1209-1210. Likewise, we have held that 

due process does not require appointment of counsel for parents 

during temporary custody hearings. Matter of T.C. L R.C. (1989), 

240 Mont. 308, 314-315, 784 P.2d 392, 395-396. Thus, the State was 

not required to provide Streckerts with counsel at the proceeding 

granting the DFS temporary investigative authority or the hearing 

granting the DFS temporary custody of the Streckert children. 

In its final order the District Court took judicial notice of 

6 
these prior proceedings and incorporated findings from the 

temporary custody hearing into its order terminating parental 

custody. A district court should not take judicial notice of a 

hearing at which parties were not represented by counsel. Normally 

the taking of such judicial notice would violate the due process 

rights of the parties. Matter of M.F., J.F. & R.F., 201 Mont. at 

286, 653 P.2d at 1209-1210. 

While the District Court was incorrect in taking judicial 

notice of prior proceedings and incorporating those findings into 

its final order, we conclude that the due process rights of the 

Streckerts were not violated. It was unnecessary for the District 

Court to make any reference to the temporary custody proceedings. 

All of the extensive findings of the District Court in connection 

with its final order terminating parental rights are supported by 

evidence submitted in the course of the final hearing. There was 

no necessity to refer back to collateral proceedings at which the 

Streckerts were not represented. We emphasize that the District 

Court should not have made any attempt to incorporate the temporary 

custody hearing matters, at which the Streckerts were 

unrepresented, into the proceedings which resulted in the 

termination of parental rights. However, where the evidence 

presented, without objection, substantiates all of the findings and 

conclusions of the District Court in its order terminating parental 

rights, we conclude there has been no denial of due process as to 

the Streckerts. 

We hold that due process was not denied to the Streckerts by 
the District Court's reference to the collateral proceedings and 

incorporation of findings from the same. 

I1 

Did the State meet the statutory criteria for terminating 

Streckerts' parental rights under § 41-3-609, MCA? 

Section 41-3-609, MCA states 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. . . . 

The District Court determined that the State proved the 

termination criteria under F, 41-3-609, MCA, by clear and convincing 

evidence. We will not set aside the trial court's findings unless 

they are clearly erroneous. Rule 52(a), M.R.Civ.P. 

First, the Streckerts assert that the court used vague 

criteria within the Montana statute to terminate custody. Next, 

they contend that the court based its decision on an intolerance of 

Streckerts' religious beliefs and the Streckerts' inability to 

provide their children with middle class luxuries. Finally, they 

claim the court had insufficient evidence from which to determine 

the Streckerts were Wnf it" parents. 

These allegations are not supported in any manner by the 

record in this case. On the contrary, the court's finding that the 

Streckerts are unfit parents is supported by the testimony of all 

8 
witnesses at the final hearing save the testimony of James and Ida 

Streckert themselves. Here, the record shows that D.S., H.S., 

R.S., R.S., J.S., R.S., and K.S. were adjudicated youths in need of 

care, that the Streckerts had not complied with the court approved 

treatment plan, and that the Streckerts' conduct causing the 

problem could not be rectified within a reasonable time. 

We hold that the State met the statutory criteria necessary to 

terminate Streckerts' parental rights under 5 41-3-609, MCA. 

Affirmed. 

We concur: 

Just ices 

9 
Justice William E. Hunt, Sr., dissenting. 

I dissent. Today the decision by the Court effectively 

sanctions a violation of an individual's due process rights by the 

State. It is flatly wrong for the District Court to incorporate 

judicial notice of temporary custody hearings, where counsel is not 

present or mandatory, into its final order terminating parental 

custody rights. To do so, and prevent the parents from having the 

right to counsel, is to create the grave risk of an erroneous 

decision. In reaching its conclusion, the majority sadly forsakes 

a fair adjudication of the rights of all the persons, both parents 

and children. A parental termination case merits the utmost 

protection of the parents' rights to be adequately represented. 

The court should not use the evidence against the parents to judge 

the legitimacy of their interest based on hearing without counsel. 

In attempting to justify what appears to be a proper and just 

conclusion, the majority is led into unconstitutional methods to 

reach its ends. 

The majority contends the violation of due process is 

negligible in its effect because the evidence supports its 

conclusion, and is thus permissible. The violation of the 

Streckerts' right to counsel should not be swept under the analysis 

of the evidence, nor should it be dismissed as negligible. 

Substantiality of evidence has never been an adequate reason to 

sustain a violation of an individual's right to counsel. The 

majority writes, "[n]ormally the taking of such judicial notice 

10 
would violate the due process rights of the parties." The use of 

the word "normally" makes the right to due process appear arbitrary 

and contingent on social norms proscribed only by the majority 

today. The review of a due process 

violation should be an unequivocal constant which is not subject to 

erratic determination based on norms. At times, the court has 

committed itself to a balance test, concluding, for example, that 

a violation may be outweighed by compelling state interests. The 

Court's discretion to forego that analysis today goes beyond 

permissible limits. Even in the shadow of evidence supporting the 

majority's conclusion, a violation of the due process rights of an 

individual should never be sanctioned. 

This has never been the case. 

I would remand this case to the District Court for findings of 

fact, conclusions of law, and order based on procedures that afford 

the parents due process so that there is no sanction of a violation 

of an individual's due process rights by the State. 

/ 

Justices Karla M. Gray and Terry N. Trieweiler concur in the 

foregoing dissent of Justice Hun 

1 \ 
June 25, 1992 

CERTIFICATE OF SERVICE 

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

following named: 

Thomas A. Dooling 

DOOLING LAW OFFICE, P.C. 

P.O. Box 1339 

Dillon, MT 59725 

HON. MARC RACICOT, Attorney General 

Jennifer Anders, Assistant 

Justice Bldg. 

Helena, MT 59620 

Marge Montrose 

Montana Department of Family Services 

Courthouse 

Dillon, MT 59725 

Thomas R. Scott 

Beaverhead County Attorney 

Courthouse 

Dillon. MT 59725 

Andrew Suenam 

Attorney at Law 

310 E. Sebree 

Dillon, MT 59725 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA