Matter of B.B.W.

No. 03-411
IN THE SUPREME COURT OF THE STATE OF MONTANA
2003 MT 377N
IN RE THE MATTER OF B.B.W.,
A Youth in Need of Care.
APPEAL FROM: District Court of the Sixth Judicial District,
In and for the County of Park, Cause No. DN-02-23,
The Honorable Randal I. Spaulding, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Kevin S. Brown, Paoli & Brown, P.C., Livingston, Montana
For Respondent:
Hon. Mike McGrath, Attorney General; Robert Stutz,
Assistant Attorney General, Helena, Montana
Tara DePuy, Park County Attorney, Livingston, Montana
Kellie A. Voyich, Anderson & Voyich, Livingston, Montana (Guardian Ad
Litem)
Submitted on Briefs: December 4, 2003
Decided: December 30, 2003
Filed:
__________________________________________
Clerk
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Justice John Warner delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal
Operating Rules, the following decision shall not be cited as precedent. The decision shall
be filed as a public document with the Clerk of the Supreme Court and shall be reported by
case title, Supreme Court cause number, and result to the State Reporter Publishing Company
and to West Group in the quarterly table of noncitable cases issued by this Court.
¶2 M.W. and K.W. are the natural parents of B.B.W. M.W. and K.W. appeal from an
order of the Sixth Judicial District Court, Park County, denying their Motion to Dismiss.
They seek reversal of the denial of their Motion to Dismiss, and an order dismissing the Park
County Department of Health and Human Services' combined Petition for Emergency
Protective Services, Determination that Preservation or Reunification Services Need Not be
Provided, Termination of Parental Rights, and For Award of Custody and Right to Consent
to Adoption.
¶3 We affirm the District Court.
¶4 The issues on appeal are as follows:
¶5 1. Did the District Court err in finding that the parents were interviewed by
Department personnel prior to the Department's filing of a petition for emergency protective
services, as required by § 41-3-101(1)(i), MCA (2001)?
¶6 2. Did the District Court properly determine that the statutory requirements of § 41-
3-427(1)(c), MCA, were met regarding presentation of evidence to a court?
FACTS
¶7 K.W. and M.W. ("the parents" or "appellants") are the natural parents of B.B.W.
2
B.B.W. was delivered by Caesarean-section on November 11, 2002. At no time prior to the
birth did anyone from the Park County Department of Health and Human Services (the
Department) speak with K.W. or M.W. about the Department's intention to remove B.B.W.
from them. Moments after his birth, B.B.W. was taken into custody by social workers for
the Department. At the time of the removal, two social workers from the Department and
a police officer took M.W. aside and told him they were removing the child. M.W. asked
why and was told that he and K.W. had not made significant progress since the prior
termination of their rights to another child in 2001, and the Department believed that they
would not be able to provide a safe home for B.B.W. The social workers provided M.W.
with a written notice of the Department's intentions toward the baby, which included an
explanation of the Department's reasons for the removal. They asked M.W. if he had any
questions, and M.W. indicated he did not. The social workers then explained to M.W. that
if he had any questions he was free to call their office.
¶8 A Department social worker also spoke to K.W. while she was in the recovery room
after the Caesarean-section, and still groggy from the anesthetic. The social worker entered
K.W.'s room and first asked K.W. if she recognized her. K.W. indicated that she did. The
social worker then explained that B.B.W. was being removed and the reasons for the
removal. K.W. was very upset and asked why. The social worker told K.W. that she would
be willing to come back and speak with her another time, or that K.W. could call the office.
The social worker did not return and neither M.W. nor K.W. called the Department.
¶9 M.W. and K.W. were not present at the initial hearing on the petition on November
12, 2002. At that time, K.W. was still in the hospital. The couple did not see the petition
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until they were served with it four days later, on November 16, 2002.
STANDARD OF REVIEW
¶10 This Court reviews a decision to terminate parental rights to determine whether the
district court's findings of fact supporting the termination are clearly erroneous, and whether
its conclusions of law are correct. In re F.M., 2002 MT 180, ¶ 21, 311 Mont. 35, ¶ 21, 53
P.3d 368, ¶ 21. If the district court's findings of fact are not supported by substantial
evidence; if it misapprehended the effect of the evidence; or, if after reviewing the record this
Court is left with a definite and firm conviction that the district court made a mistake, then
the district court's findings will be held to be clearly erroneous. In re F.M., 2002 MT 180,
¶ 21, 311 Mont. 35, ¶ 21, 53 P.3d 368, ¶ 21.
¶11 While keeping in mind a parent's fundamental liberty interest in the care and custody
of his child, a court's primary consideration, when considering the criteria for termination of
parental rights, is the best interests of the child. A parent's rights must be accorded
fundamentally fair procedures at all stages of termination proceedings, but a child's physical,
mental, and emotional needs are paramount in any determination. In re F.M., 2002 MT 180,
¶ 22, 311 Mont. 35, ¶ 22, 53 P.3d 368, ¶ 22.
DISCUSSION
ISSUE ONE
¶12 Did the District Court err in finding that the parents were interviewed by Department
personnel prior to the Department's filing of a petition for emergency protective services, as
required by § 41-3-101(1)(i), MCA (2001)?
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¶13 Section 41-3-101(1)(i), MCA (2001),1 reads as follows:
(1) It is the policy of the state of Montana to:
(i) require a department social worker to interview the parents of a child to
which a petition pertains, if they are reasonably available, before the state may
file a petition for temporary investigative authority or a petition for immediate
protection and emergency protective services and to require that a judge may
not issue an order granting a petition, except an order for immediate protection
of the youth, until the parents, if they are reasonably available, are given the
opportunity to appear before the judge or have their statements, if any,
presented to the judge for consideration before an order is granted . . . .
This statute requires the Department to interview the parents before the Department files a
petition for immediate protection of a youth. B.B.W. was born during the day on November
11, 2002. The petition was filed at 8:20 a.m. on November 12, 2002. Thus, the time frame
spanning the hours between B.B.W.'s birth and the filing of the petition was not more than
twenty-four hours. The appellants acknowledge that the Department spoke to both parents
concerning the removal shortly after B.B.W.'s birth, and before the petition was filed.
Appellants complain that the interviews conducted were meaningless because of their brevity
and lack of substance, while the Department planned months in advance to take custody of
B.B.W. immediately upon his birth. Appellants argue that their fundamental liberty interests
in the care and custody of their child were infringed upon because the Department did not
ensure that the procedures utilized to remove B.B.W. were fundamentally fair.
¶14 Montana law recognizes that parents facing termination of their parental rights must
not be placed at an unfair disadvantage at any stage of a termination proceeding. Matter of
A.S.A. (1993), 258 Mont. 194, 198, 852 P.2d 127, 129. This guarantee of fundamental
1
The Legislature deleted § 41-3-101(1)(i) in the 2003 session. As the circumstances of
this case occurred before the repeal, the prior law is applicable.
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fairness derives from Article II, § 17, of the Montana Constitution which guarantees that
"[n]o person shall be deprived of life, liberty, or property without due process of law." We
must remember, however, that in proceedings where a youth is in danger of being neglected
or abused, § 41-3-101(4), MCA, mandates that the health and safety of an infant be given
paramount consideration.
¶15 The District Court in this case had a bevy of evidence before it which tended to show
that the Department was correct in its assessment that the best interests of the child would
not have been served had the Department interviewed the parents prior to the birth. The
parents had previously had a child removed from their custody because they did not have the
necessary mental faculties to parent a child. Both were diagnosed with varying degrees of
mental and emotional illnesses, and two separate clinical psychologists testified that neither
of the parents were capable of parenting any child, and would not be able to do so in a
reasonable amount of time. Both had completed parenting classes at the Department's
behest, but were unable to put the knowledge learned into practice with a real child. At the
time of the first child's removal, the child was suffering from malnutrition and water-on-the-
brain.
¶16 In addition to these parenting issues, the District Court was also presented with
evidence that both of the parents had exhibited bizarre and/or threatening behavior towards
each other, Department personnel, members of the community, and the court system. K.W.
wrote a letter describing the social workers' children as "scourge of the earth, unclean,
unpure . . . " and referred to Columbine as a way to get rid of "those people's children”.
M.W. made inquiries with his former employer about whether anyone there knew of
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someone who would perform "in-home" Caesarean-sections. M.W. went to the Republican
Party headquarters and threatened to blow up the courthouse because they had taken away
his guns and his daughter. K.W. told the clerk of court that she and M.W. would fight to
the death for this child. K.W. would also periodically drive by the welfare office pointing
out the window at employees sitting on the deck and cackling "like a witch."
¶17 We agree with the appellants that the timing and circumstances of the hospital
interviews were not ideal, and that it may have been possible to give them more substantial
interviews by telephone. The overwhelming weight of the evidence, however, illustrates to
us that in this extraordinary situation the Department was justified in waiting until the child's
birth to speak to the parents. In ruling on the Motion to Dismiss, the District Court noted
that at the time of the removal the social workers gave the parents written notification of the
reasons for the removal, informed them that the petition would be filed and would be
followed by a hearing, and provided contact information for the social worker assigned to
their case. Additionally, the social workers discussed the removal with both parents and
gave them an opportunity to raise any questions. Neither of them chose to do so. These
actions on the part of the Department, under these circumstances, satisfied the statutory
requirement that an interview be conducted. The District Court was correct in denying the
Motion to Dismiss.
ISSUE TWO
¶18 Did the District Court properly determine that the statutory requirements of § 41-3-
427(1)(c), MCA, were met regarding presentation of evidence to a court?
¶19 The Department filed the Petition for Emergency Protective Services, Determination
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that Preservation or Reunification Services Need Not be Provided, Termination of Parental
Rights, and For Award of Custody and Right to Consent to Adoption, early on November
12, 2002. At 1:22 p.m. on that same day, the District Court entered an order setting
November 26, 2002, as the date for hearing on the Petition. The order also granted the
Department temporary legal custody of B.B.W. until the hearing could be held.
¶20 Section 41-3-101(1)(i), MCA (2001), requires the Department interview the parents
before a petition is filed. This section also provides that the parents be given opportunity to
appear before the judge before the petition is granted. Section 41-3-427(1)(c), MCA,
reiterates that the parents must be given opportunity to present evidence to the court before
the court rules on the petition.
¶21 Appellants, in arguing that the requirements of the statute were not met because they
did not appear before the court before the November 12 order was issued, fail to seize upon
the provision in § 41-3-101(1)(i), MCA (2001), that states, "[A] judge may not issue an order
granting a petition, except an order for immediate protection of the youth, until the parents
. . . are given the opportunity to appear before the judge . . ." (emphasis added).
¶22 The order entered on November 12, 2002, granted the petition only to the extent
allowed by § 41-3-101(1)(i), MCA (2001), for immediate protection of B.B.W. After the
November 12, 2002, order was entered, and after several agreed continuances, the court held
a hearing on the appellants' Motion to Dismiss on January 2, 2003, at which it heard
evidence from both the Department and the appellants. On January 3, 2003, the District
Court entered an order denying the Motion to Dismiss. On March 17, 2003, the court held
a hearing on the merits of the petition at which the appellants again presented evidence in
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support of their position. On April 17, 2003, the court entered its Findings of Fact,
Conclusions of Law, and Order which terminated appellants' parental rights to B.B.W. Thus,
the court did not grant the petition until the appellants had, on two separate occasions,
opportunities to present evidence to the judge.
¶23 On these facts, we hold that the appellants were not denied the procedural rights to
present evidence afforded to them by §§ 41-3-101(1)(i), MCA (2001), and 41-3-427(1)(c),
MCA.
¶24 Affirmed.
/S/ JOHN WARNER
We Concur:
/S/ W. WILLIAM LEAPHART
/S/ JIM REGNIER
/S/ PATRICIA COTTER
/S/ JAMES C. NELSON
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