IN RE M W

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KO. 01-533 fN THE SCPKEME C:O11R'T OF TL1E STATE OF h/lO'.:TANA . $ ,_ ..>', ~~ , t> . , ,.. .,- ',.a,# M.W. AND L.W. Youths in Xeed of Care APPEAL FROM: District Court of thc Eig\i~eenil~ Judicial District, In and for the County of Gallatin, The l-lonorahle Mike Salvagni, Judgc presiding. For Appellant (Father): Jennifer Wendt Rordy, The Angel Lam i ~rm, Bozernan, Montana For Kespondenl: Hon. Mike McGratli, Attorney General; Micheal S. Wellenstein, Assistant Attolney General, Helena, Montana Marty Larilben, Gallatin County Attorney: Gary Balaz, Deputy County Attorney, Bozernan, Montana Submitted 011 Briefs: I>ecemhcr 20. 200! Decided June 13. 2002 Filed: Justice Terry X. 'i'riesveiler delivered the C!pinion ofthe Cout-t. 1 P.W., the fathel- of34.W. and L-iV.;appcais fiom ci~c Findings oEFact, Conclusions of Law and Order issued by the 1)istrict Court Lbr the Eighteenth .ludicial District in Gallatin County9which awarded long-term custody of M.W. to the 1)e~artmcnt Public Health and of Human Sewices (DPHHS). We affirm the order of the District Court. 72 The sole issue on appeal is whether P.W. was denied fundamentally fair procedures in the proceedings by which the District Court awarded long-term custody of M.W. to DPHHS. FACTUAL AND PROCEDURAL BACKGROUND 413 P.W. is the natural father of M.W. and L.W. M.W. mJasborn on September 30, 19886. L.W. was born on April 16, 1984. P.W. is divorced froin the children's natural mother, R.B., who had not seen her children for the nine years prior to these proceedings, and does not appeal kom the District Court's order. The children have resided solely with P.W. 74 1 DPHHS removedM.W. and L.W. from P.W.'s care on July 19,1999, and placed them in protective custody. On July 23, IC)'f9, DPHHS filed apetition for temporary legal custody pursuant to $3 41-3-401 and -406. MC'A (1999), based on DPHHS' involvement with the children beginning in May of 1995. 'I'he District Court ordered M.W. and L..kV. to remain in protective custody pending a hearing set for August 6, 1999. At that hearing, both P.W. and R.B. agreed to grant DPft1-IStemporary custody, based on their inability to care for the children's special needs. The District Court declared M.W. and L.W. to be youths in need of for of care and granted DPHHS temporary legal custod~ the cl~~ldren slr months 75 1 On February 4, 2000, DPiiitiS filed a pelition for extensio~iof its temporary legal ciistod~ which was set to expire on Febru~ry 6,2000. Neither P.iV. R.B. objected, and nor the guardian ad liten? supported the extension. On February 17, 2000>the District Court grantcd the extension thr another six months. ?I6 On September 1,2000, DPI-1HS filed a petition for long-term custody, and requested: (1) that a pernlanency hearing be held; (2) that following that hearing, the District Court grant DPHHS long-term custody of M.W. and L.W.; and (3) that long-ten custody become the permanency plan for the children. DPHHS explained that the children were not ready to return to their parents' care based on the severity of their ongoing psychological and enlotional problems. 0 1 1 Septcmbcr 12; 2000, the District Court ordered temporary legal st custody to continue "from A ~ ~ g u 17, 2000, uiltil the hearing on the [long-term custody] petition." The hearing was originally set for November 14,2000, but was reschedttled by the District Court for December 4,2000, because of a scheduling conflict. 1 '7 At the start of the December 4, 2000, hearing, DPHHS moved for a continuance, based on its previous belief that the parents were going to agree to the long-term custody petition. Based on that belief, DPHHS did not subpoena the children's therapists as witncsses. The basis for DPHFIS' petition for long-tenn custody was not the parents' refusal or failure to comply with their treatmentplans, but that pursuant to 9 41 -3-412(6)(c)(ij, kICA ( I 90C)), cl~ildren cmotiona! or mental handicaps so severe that the children could not the had function in a hmily setting. Therefore, testimony from the children's therapists would have been neccssary to determine the extent of the children's emotional or mental handicaps. "8 P.W. objected to the conllnrrance as highly prejudicial. The District Court denied DPHIIS' motion for a continuance, stating: [Tlhe Department and the County Attorney's office has had adequate and sufficient time to be prepared for the hearing today, There's not been a pennaneney plan hearing within the twelve months required by law ifwe have to do that. So we're going to proceed. If the Court were to continue this, the Co~trt could not hear this case in December, and I'm not certain if the Court could hear it in January so we're proceeding. DPHHS, therefore, presented its case w ~ t h ~ c ~ t n c s s , State soc~al one the worker asstgned to the casc. The social worker testified that P. W. had completed h ~parenting plan, yet believed s that neither parent mas capable of providing for the needs of the children. Following the social worker's testimony, the DPHHS attorney stated, "1 don't have further questions for Ms. Bennett at this time." P.W., in turn, moved to dismiss the petition based on DPHHS' failure to meet its burden ofproof. DPHHS argued that it had not rested its case and that given the nature of the hearing, the guardian ad litem should be perm~tted test~fy to before any decision \vas made. Furthermore, DPkI-lfIS argued that the guard~an's testimonq could be rehed upon to satisfy its burden of proof. 9 The District Court denied P.W.'s motion to dismiss and the guardian was allowed to test~fy.The guard~an testified that she had not had any contact with the children directly, nor prlmary therapists. Howe\er, based on had she spoken directly w t h either of the ch~ldren's her contact with P.W., P.W.'s therapist, R.B. by telephone, "the guardian program," the prior guardian. and the soclal worker, she recotnmc~idcdthat DPHHS be awarded long-term custody of both childrcn. :;I U P.W, raiscd a hearsay objection because ofthe guardian's lack of direct contact with any professional who could prove the children's rnerrtai or-emotional handicaps. The Court c\ crr~llcd objectroo, siatrng. the Sectior1.11-3-303(3) says that "lnformatjon contained in a report filed by the guardian ad litem or testimony regarding a report filed by the guardian ad litem is not hearsay when it is used to form the basis of the guardian ad liten?'s opinion as to thc best interests of the child." 71 1 In response: P.W. challenged the constitutionality of 3 41-3-303(3), MCA (1099), as a kiolation of his nght to confront the expert wttnesses on mhom the guardlan had based her opinions. Gtven the significance of the legal issue, the District Court admitted that the constitutional issue would habe to be resolbed before a final dccis~on could be madc. In the rnterim, the Drstrict Cout-t heard the guardian's testiinony subject to P.W 's objcctton, and reserved its ruhng on the objectron pending further briefing. The guardian's attorney also called P.W. as a mitncss. He testified that although h ~ children continued to have sebere s mental and emotiorral problems, he would be able to obtain the prot'essional help required to assist his children. 712 During'F W.'s case-in-chief, P.IV.'s therapist testified that P. W. was capable of caring . for M.W. in a family setting pursuant to a reunificatiolt plan which she and P.W. had debeloped at the social worker's suggestion. At the coticlusion of test~mony, IV. renewed P his motion to disn~iss. In ruling on the motion, the District Court eorrsidercd the ramifications of its ciccision. The following exchange occurred: P.W.'s Counsel: If you recall a year and a half ago when w-e first came, hc [P.W.] was willing to submit he's always wanted their - [DPLIII-XS]help and their services. i-ierealizes this isn't a nornlal fanlily where the kids go off to school, come home, eat dinner type of situation. But as rhe Court observed and he strongly kels, they have not gotten better in a year and a halfof total loss of his control so he wants at least some of the control hack. Cout-t: I understand that but it's either the Department or no P.W.'s Counsel: Based on the fact they didn't present the necessarq testimony, yes. Court: KO, no, let's set that aside. If the Court dismisses the petition, the Department [DPHHS] is out of it: they're out of it. P.W.'s Counsel: They [P.W.] can provide services without the Court inten ention. Court: \$'el, P.W.'s Counsel: True. Court: ? hey're [DPHHS] out of it for all pract~ealpurposes, I legal putposes; they're out of rt. .And I'm not hearing hrm say that he vvants tltem out of it. P.W.'s Counsel: Your Honor, he uould~i'tbe saying that to tell you the truth. but there's noth~ng that says that they mould. 'The District Court denied P.W.'s renewed motion to dismiss. 'The District Court granted fYW. \isitation rights to M.W. in thc form of one telephone call per week and one in-person visit every montlt :/I 3 The parties briefed the constitutional issue and on Janriary26,2001, the District Court issued a Memorandum and Order sustaining P.W.'s objection to the use of the hearsay testimony by the guardian. It held that: ['i'jl~e ianguttgc u f S 4 I -3-303(3),which allows the hearsay preseni2ition by the guardian ad litcm of what would otherwise be considered expert testimon)!; violates Articie 11, Seeti011 24, of the Montana Constitution as that section is applied to the objectionable evidence before the Court, in that it is a funda~nentally unfiir violation o f a parent's right to confrontation. Based on that determination, the District Court ordered: Considering that this issue is an issue of first impression and with the intent to determine the best interests ofthe youth on the merits of this matter, the Depal-tment shall be given another opportunity to present its case to the Court. '114 A second hearing mas held on February 28.2001. At that hearing, both P.W. and R.B. agreed that DPIIHS should have long-term custody of L.W. With respect to M.W., P.W. objected to giving DPHHS another opportunity to present its casc whcn it had Fdldtled to sustarn its burden of proof at the December 4, 2000, hear~ng. I he Distrtet Court denled P.W.'s objection. DPtIHS then called M.W-.Is former and present therapists to testlfy, as well as the group home manager of the facility where M.W-. was then residing. On March 28, 200 1, the District Court entered its Findings of Fact, Conclusions of Law and Order, and granted long-term custody of M. W. and L.W. to DPMHS. The District Court concluded that M.U7. "cannot function in a family setting residing with his father." The District Court allowed P.W. continued visitation. '/ 15 On May 24, 2001. P.W. appealed the Dlstrict Court's Find~ngs Fact, Concl~lsions of of La~vand Order of Match 28, 2001. and that portlon of the Memorandun1 and Order DPHHS "another opportun~ik to entered January 20,2001. uliere the Distrlct Court a i l o ~ c d present its casc." SIANl),AR.D OF REVIEW 71 16 WCreview i.adistrict court's conclusions of law to dcterminc whether tliey arc correct. i\4cirteu o f D . l i (19941, 26.1 Vlont. 521, 525. 872 P.2d 803, 805. This Court has recognized that "a natural parent's right to rare and c ~ ~ s t o d y a child is a funda~~~cntal interest, of liberty which must be protected by furtdanrentally fair proccdures." Matter ofli.H. (19881, 217 Mont. 90, 103, 703 P.2d 846, 848. "17 Furthemlore, whet1 determining custody, the district court is "bound to give primary considcration to the physical, mental, and emotional conditions and needs of the children." ~bfatter 0fC.M. (1997), 281 Mont. 183, 187,932 P.2d 1063, 1066. The best interests of the child are paramount in child custody cases arid must take prcccdence over parcntal rights. C.,\f,, Mont. at 187, 032 P.2d at 1066; Mcirter ofH.iV. (1990), 245 Mont. 51 I, 517-IS? 281 802 P.2d 1244, 1248. DISCUSSION 2 18 The sole issue on appeal is whether P.UT.was denied fundamentally fair procedures in the proceedings by which the District Court awarded long-tern1 custody of M.W. to DPIIHS. 0 To begin, we should note that although P.CV. originally challenged DPI1HS' pctition for loftg-tern1custody with rcspect to both M.U . and L.W., mc Interpret thts appeal as related ttl~iy to M.LV. At the February 28.2001, hearing, P W. conccdcd that DPJ-JHS should hale long-term custody of l..llr Furthermore, at the concluston of P.W.'s b r ~ c f filed for thrs appcal. P W. requests t h ~ Court to "rcberse the distr~ct s court's grant of long term custody of M.W. to the Oepartrncnt of 13ublic Health and fluman Services," Accordingly, w e will !!mil our review to kf.W #2O P.Lt', alleges that lie a a s denled filndamentally fa11 procedures III ti\e areas. Specifically, P tl: contends tliat, (1) the D~stnct Court failed to hold a permanency plan hearing uithln the statutory deadline, (2) DPHHS failed to submit a statutorily-required prehearing report to the District Court; (3) DPHHS failed to develop a plan with any elements of pernlanc~icy; DPI-LIIStried to terminate P.W.'s parental rtgllts without satisfying the (4) requisite statutoryerttena and burden ofproof; and ( 5 ) the D~striet Court enoneously granted DPHHS a second chance to prove its ease. We will address each claim in turn. 2 P.W. first eolitends that tlie District Court Failed to hold a permanency plan hearing within the statutory deadline. Section 41-3-41 2(1), MCA (1 999), provided in pertinent part: A permanency plan hearing must be held by the court no later than 12 months after the initial court finding that the child has been subjected to abuse or neglect or 12 months after the child's first 60 days of removal from the home, whichever comes first; unless thc proceeding has bcen dismissed, the child was not removed from the home, or the child has been returned to the child's parent or guardian. On July 19, 1999, M.L\i. mas removed from the home of P.W. On July 23,1999, the District Court found probable cause to belleve that .V.\V. had been abused or neglected or Lcas in danger ofbelng abused or neglected. Tliercfore, by law, the perinanencj plan hearing sl~ould have occurred prior to July 23,2000. On September 1, 20001IIPf~iEIS petitioned the District Court to schedule a permanency plan hearing, and award long-term custody.' The D ~ s t r ~ c t ' However, P.W. did not file a motion to disniiss based on DPHHS' failure to timcly file the petition for long-tcnn custody. In Appellant's hricl; P.Lt'. concedes, "P.W. did not raise C:ou~-rset a Ilearing datc for November 14> 200O7and subsequentiy rcscheduied that hearing for Dcceinbcr 4; 2000. 'Ihereforc. it is undisputed that rhc permanency plan hearing in rllis case occurred after the statutory deadline. 722 P.W. now contends that the District Court's failure to hold a timely permanency plan hearing deprived him of a fundamentally fair procedure. f-lo\vever, before making that argument to this Court. it was necessary that he make the same argument to the District Court as well as advise the District Court of the appropriate remedy. P.W. failed to do so. 7\23 Prior to the hearing, in his Proposed Findings of Fact, Conclusions of Law, and Order filed on December 1, 2000, P.LV.statcd in a proposed conclusion of Ian: Section 41 -3-4 12(1), MCA, requires the Courl to conduct a permanency plan hearing no later than 12 months after its initial finding that a child is abused or neglected, or 14 months after a child has been removed, whieltever comes first. Neither of these deadlines was met in this case. However, P.W. dtd not suggest to the Dlstrict Court that it was without authority to proceed for that reason and did not request dismissal of the petition. Objections primarily serve two purposes: (1) to give the district court an opportunity to correct the problem and (2) to preserve the issue for appeal. State v. Bird, 2001 MT 2,7 54, 308 Mont. 75, Ti 54, 43 P.3d 260,E 54. P.W.'s proposed conclusion merely brought the problem to the District Court's attention. It made no suggestion holv to correct the problem. Therefore: the proposed conelt~sion law did not, by itsel6 constitute a proper objection. of the Department's untimeliness in filing the petition as grounds to dismiss the proceeding in the court below, and is not now asking this Court to do so on that basis." I0 42-4 1 nest contends that he uas denled a tundamentally Ta~r procedure =11cn IIPHHS tBllcd to subrnrt the statutoniy-rcqu~red prc-hear~ng rcporr at least thrce days prior to the p:rn:"'ancncy plan hearmg. Sect~on -3-412(2), klCA (1999 ), pro\ lded: 41 (2j At least 3 days prior to the permanency plan hearing, the department and the guardian ad litem shall each sublitit a report regarding the child to the court for review. The report must contain the: (a) efforts and progress demonstrated by the child's parent or guardian to complete a treatment plan; (b) extent to which the parent or guardian cooperated and used the services provided; (c) status of the child. including tlie child's mental, physical, and psychological health; and (d) plan for permanency for the child, including specific times for achieving the plan. 725 It is undisputed that DPL-IIIS failed to submit the required pre-hearing rcport. ttone\er, l ~ k e D~strict the Court's fallure to hold a ttmely permanency plan hearmg. P.W. failed to properly object to UPHIIS' course of conduct either at the hearing or in a prehearing motlon. At the heartng, the Dlstrict Court qncstloned DPHHS about the absence of the report: Court: You're pctitioning the Court to develop a permanency plan, however, there was no permanency plan and now I'm talking about this case. Where is the report regarding the child for the Court to review with respect to a permanency plan? Where is the report, The statute requires the Lkpartment to do that. DPHHS: Yes, it does Court: 1C'here is that? DPHHS: One has not been done Court: It should have been done at least three days before today. DPIIHS: Ycc. Thatagain is something that i should have reminded rl-rem to do because I read the same statute. Desprte the fact that the C'ot!r& ra~siid issue and LlI'HIiS acknumledged ~ t error, the s P.\V fiiilcd to state an objection at that time and demonstrate or ever1 allcgc resulting prejudice. *26 As with the timeliness of the hearing, P.W. did raise the issue as a proposed conclusion of law in his Proposed Findings of Fact, Conclusions of Law, and Order. stating: Sectioi141-3-412(2), MCA, requires both the Department and the guardian ad litem to each submit a report to the Court at least 3 days before the hearing. The Department and guardian both failed to do so. However, once again, no specitic relief was requested and, as before, we conclude that thc proposed conclusion was an insufficient objection by which to preserve this issue for appeal. 'j27 The third alleged denial of a funda~nentallyfair procedure was DPHHS' Failure to develop a plan with any elements of per~llanency that would enable M.W. to move toward a settled placement. P.W. complains of the frequency with which M.W. was transferred between treatment facilities and the inability of IlPHFiS to "stick to a plan of actioi~." DPHHS, on the other hand, contends that M.W.'s niovemetllbetween treatment facilities was first and foremost in response to his best interests and to treat his severe emotional and behavioral needs. In addition, DPIII-1S notes that it is sometinles difficult to place children due to waiting lists that exist at various treatment facilities. 1/28 We cortclude there was substantial evidence that M.LV. has reasonably progressed toward a settled placement. M.LV. was initially placed at Billings Deaconess Clinic. On August 16, 1999, ltc was admitted into Cltildren's Comprehensive Service (CCS) in Butte, Montarra. Dr. Jeffrey CVatson. a licensed protessionai counscior at C'CS, testified that M.W. had improvcd during his stay at CCS and was now less aggressive. On December 22,2000, hI.LV. was rnoved to Skyview Group Home in Missoula, Montana. Bret Gilleo, M.W.'s Skyvieu therapist, testified of b1.W.'~ progress. stating, "[Illis behaviors arc not as severe as they were when lie first came in and he's only bee11 thcre a little over two months and staff have been able to redircct hirn a little better. They're finding some of the cause for [M.W.'s] problcrns and some of the things that work well with him to help him redirect." When asked to give an estimate as to how much longer M.W. would need specialized care, Gilleo estimated that it would take from a year to a year and a half at a minimum. Finally, the Citizcn's Review Board, a citizen board ofthc Eightecnth Judicial District, found that M.W.'s placement at Skyview was the "safest, most appropriate and least restrictive" placement and that "progress has been made toward achieving permancney." Given the substantial evidence in tlic record and our recognition that it often takes multiple facilities and a hit of trial-anderror to find the appropriate treatment facility, we agree that M.W. has madc reasonable progress toward a settled placement. '129 P.W. next contends that because [>PI-IHSrepeatedly disallowed contact between P. W, and Lf.W., it attempted to terminate P.LV.'s parental rights without adequate grounds and without meeting the necessary burden of proof. From June until Septeniber 2000, DPHHS worked toward reunification of M.W. and P.W., and trrgcd libcral visitation. P.W. and his ihcrapist, with the social worker's approval and input, developed a plan for M.W.'s return custody on September 1. home. Howcver, after L)PHftS filed the petitio~lfor long-te~m 2000, DPtiHS refused to perinit contact between P.W. and M.W., based on the recn~ninendations "tl,W.'s CC'S trcatmcnt team which observed marked progress in Rl.LV.'s of therapy when he had no contact with P.\Y. and regression follobvi~ig contact. 4130 Whether therc was any merit to DPHHS' actions M-ith respect to terminating visitation followi~ig September 1,2000. however, is moot based on the District Court's reinstatement of visitation at the December 4, 2000, hearing. Where this Court can no longer grant effective relief, the issue is moot. Slirzmrock ~Vtotors, v. Ford Motor Co., 1999 MT 2 1, Ittc. ri 10,203 *I31 Mont. 188, !/ 974 P.2d 1150, 19, 10, Accordingly, we move to the next issue. P.U7. claims that he was denied a fundamentally fair procedure when the District Court allowed DPtiEiS a second opportunity at the Fcbruary 28,2001, hearing to prove that M.W. had severe mental and emotional handicaps which required long-tenn custody with DPtIHS. P.W. contends that DPHHS sought to repeatedly litigate the issue, "until it could get its act together sufficiently to support its allegations." Because DPHHS failed to present any evidence that supported long-term custody at the first hearing and failed to meet its burden, P.W. contends that the petition should have been dismissed. 732 We disagree. At the December 4,2000, hearing, P.W. objectedto the constitutionality of S 41-3-303(3), MCA, based on its violation of his right to confront certain experts whose statements were influential in forming the basis ibr the guardian's recornmcndations regarding the children. The District Court reservcd ruling on f'.\V.'s objection until after the parties briefed the issue, but allowed the guardian to testify in the interim. Subsequently, the District Court sustained P.W.'s objection: and i~eld the guardian's report and icsiirilony that violated P.lV.'s right to confrontation. The District Court then held: Considering that this is an issue of first impression and with the intent to detcmine the best intercs& of the youths orr the merits of this matter, the Llepartment shall be given another opportunity to present its case to the Court. second hearing was then set for February 28.2001 733 At the February 28,2001, hearing, P.W. v as pro\ ided the opportrrn~ty confront and to cross-examine kf.W.'s therapists. We agrec with the District Court that a dismissal of the petition after the December 3, 2000, hearing, and after the District Court sustained P.W.'s objection, would have required that the Court overlook the best interests of the child. While fundamentally fair procedures are guaranteed, a district court has a corresponding duty to of consider the best ~nterests the ch~ld.Substantla1 evidence ill thc record extstcd to shou that M. W. continued to suffer both emotionally and mentally. P.W. h~mself admltted that he alone \vas not capable ofdealing with his children's needs. Furthermore, aside from the fact that substantix evidence was offered directly which had previously been offered indirectly but then excluded, prejudice to P.W. has not been demonstrated. Since it mas P.W. who objected to the form of the evidence as first offered and since it was originally offered in a best interests were paramount. form authorized by statute, we conclude that k1.W.'~ $94 For the forego~ng reasons, %%c affirm the judgment of the Distrlct Court We Concur:

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