In re AN, 99-071.

• Citation: 2000 MT 35,995 P.2d 427,298 Mont. 237
• Decision Date: 08 February 2000
• Docket Number: No. 99-071.,99-071.
• Court: United States State Supreme Court of Montana
• Parties: In the Matter of A.N. and C.N., Youths in Need of Care.

995 P.2d 427

2000 MT 35

298 Mont. 237

In the Matter of A.N. and C.N., Youths in Need of Care.

No. 99-071.

Supreme Court of Montana.

Submitted on Briefs October 14, 1999.

Decided February 8, 2000.

Bard G. Middleton; Middleton & Stewart, Billings, Montana (attorney for father).

Kevin Gillen; Gillen Law Office, Billings, Montana (attorney for mother).

Hon. Joseph P. Mazurek, Attorney General; Mark W. Mattioli, Assistant Attorney General; Helena, Montana, Dennis Paxinos, Yellowstone County Attorney; Melanie Logan, Deputy Yellowstone County Attorney, Billings, Montana, For Respondent.

Damon Gannett; Gannett Law Firm, Billings, Montana, Guardian Ad Litem.

Justice KARLA M. GRAY delivered the Opinion of the Court.

¶ 1 Eric Nichols (Eric) and Diana Nichols (Diana) appeal from the Findings of Fact, Conclusions of Law and Order entered by the Thirteenth Judicial District Court, Yellowstone County, terminating their parental rights to A.N. and C.N. and awarding permanent legal custody with the right to consent to adoption to the Montana Department of Public Health and Human Services (DPHHS). We affirm.

¶ 2 Eric raises the following issues on appeal:

¶ 3 1. Did the District Court commit reversible error in determining that Eric's third treatment plan was appropriate?

¶ 4 2. Is the District Court's finding of fact that Eric failed to comply with the treatment plans clearly erroneous?

¶ 5 In addition, Eric and Diana both raise the following issue:

¶ 6 3. Did the District Court commit reversible error by admitting hearsay?

BACKGROUND

¶ 7 Eric and Diana are the natural parents of a daughter, C.N., born on November 22, 1992, and a son, A.N., born on July 18, 1996. Dr. Linda Johnson, a pediatrician, first examined A.N. in November of 1996, for a well-child examination and immunizations. Diana informed Dr. Johnson that A.N.'s scrotum had been swollen for a week and Dr. Johnson diagnosed the swelling as hydrocele, an accumulation of serous fluid around the testes. The condition was corrected surgically, but the surgeon informed Dr. Johnson that the fluid was not normal hydrocele, indicating that the fluid was "milky" rather than clear. Dr. Johnson examined A.N. again two months later. In response to Dr. Johnson's questioning at that time, Diana reported that A.N. was not putting any weight on his right leg and had not done so since she started standing him up the previous month. Dr. Johnson also asked if A.N. ever seemed to be in pain, and Diana responded that he did not. Dr. Johnson ordered tests, the results of which were normal.

¶ 8 On January 13, 1997, Dr. Johnson requested an x-ray for A.N. to determine the reason he would not put weight on his right leg and, when informed of the need for an x-ray, Diana volunteered that A.N. bruised easily. Dr. Johnson examined A.N. and found bruises all over his body, a swollen abdomen, and an uncommon "diaper rash," none of which had been present when she examined A.N. twelve days earlier. Dr. Johnson asked Diana about the abdominal swelling, and Diana responded that she had noticed the swelling in A.N.'s abdomen off and on for several months and that she sometimes noticed "red stuff" coming out of his rectum, as well as leakage of "watery stuff." The x-rays revealed a healing leg fracture. Dr. Johnson decided to hospitalize A.N. to discover the cause of the abdominal swelling and make sure he did not have a massive abdominal injury, as well as because of the healing leg fracture and the recent bruises.

¶ 9 DPHHS received a report that A.N. had been hospitalized, and the reasons therefor, on January 13, 1997. A DPHHS social worker interviewed Eric and Diana and they stated that A.N. bruised easily and they did not know the cause of his leg fracture.

¶ 10 While hospitalized, A.N. underwent several more tests. The tests revealed that A.N. had seventeen broken bones in various stages of healing, a bruise over his liver, and massive fluid in his abdomen which was later determined to be chyle leaking from the lymphatic system. Dr. Johnson noted that the "milky" fluid built up around his testes two months earlier was not serous fluid, but also was chyle. The tests further indicated that A.N. did experience pain and did not have any disorder which would explain either easy bruising or excessive broken bones.

¶ 11 DPHHS received a report on January 14, 1997, which included many of the test results and the information that Diana intended to remove A.N. from the hospital. DPHHS placed a 48-hour hold on A.N. and informed Eric. After receiving additional test results, a DPHHS social worker explained to Eric that A.N.'s injuries had been determined to be due to nonaccidental trauma and that A.N. could not be removed from the hospital.

¶ 12 DPHHS petitioned for Temporary Investigative Authority (TIA) and protective services over A.N. and C.N. on January 16, 1997. When A.N. was released from the hospital on January 21, 1997, a DPHHS social worker removed C.N. from Eric and Diana's home, explaining that the diagnosis of nonaccidental trauma to A.N., without a plausible explanation by Eric or Diana, placed C.N. at an unacceptable level of risk. Both children were placed in foster care. The District Court granted DPHHS the TIA for 90 days beginning January 24, 1997, and scheduled a hearing in the event Eric and Diana desired to contest the TIA. The TIA subsequently was continued for an additional 90 days.

¶ 13 During February, both Eric and Diana visited C.N. each week; in March, only Eric visited her. When Eric failed to follow visitation guidelines set by DPHHS social worker Lori Buxbaum (Buxbaum), Buxbaum arranged for future visits to take place in family therapy under the supervision of C.N.'s therapist, and met with Eric to discuss this and other continuing concerns relating to the appropriateness of his visitation. Eric refused to visit under these conditions and the meeting ended before all issues had been resolved. He subsequently called Buxbaum and requested a visit with C.N., but was informed that the issues raised at the previous meeting would have to be resolved prior to a visit and the requested visit would take place in family therapy. Eric refused to meet with Buxbaum to resolve the outstanding issues and again refused to visit C.N. in a therapeutic setting.

¶ 14 DPHHS proposed treatment plans for Eric and Diana for the 90-day period beginning March 24, 1997. These treatment plans focused on stabilizing Eric and Diana's environment and improving their relationship with A.N. and C.N. Both Eric and Diana were required to obtain a psychological evaluation and follow through with all recommendations made by the psychologist. They also were required to meet with the social worker weekly and successfully complete parenting classes. Finally, they were required to visit C.N. as scheduled, abiding by the conditions set by the social worker, working with the social worker to plan appropriate visitation activities and using the information and skills learned at the parenting classes during visitation with C.N. The District Court approved the treatment plans, but neither Eric nor Diana signed them.

¶ 15 Subsequently, Buxbaum met with Eric to obtain social and medical histories on A.N. and C.N. and to provide information regarding available resources for his treatment plan. He promised to return background information within a week, but failed to do so. Some of the requested background information ultimately was obtained through Eric and Diana's attorney.

¶ 16 In June of 1997, Eric and Diana underwent psychological evaluations. The results of Eric's evaluation were

Intelligence testing yielded full scale I.Q. of 121. Personality testing (MMPI-2) indicated a defensive profile with a paranoid scale.... The Beck Depression Inventory indicated a total score of zero indicating the absence of depressive symptomatology.... The Child Abuse Potential Inventory results indicated defensiveness to the extent that the results are considered invalid.

On the Parent Child Relationship Inventory, Eric "scored well above normal with very healthy findings in the following areas: parental support, satisfaction with parenting, involvement, communication, limit setting, and role orientation. He was within the normal range in autonomy; the willingness of Eric to promote a child's independence." On the Adult Adolescent parenting profile, "Eric scored above average in all four parenting dimensions assessed by this test instrument...." Diana's evaluation produced similar results. The psychologist made no recommendations for treatment based on the evaluations. Eric and Diana also completed parenting classes.

¶ 17 DPHHS sent new treatment plans to Eric and Diana for the 90-day period beginning June 24, 1997, with the same terms as the original treatment plans. Again, Eric and Diana did not sign or return the plans, but the District Court approved them. Eric contacted Buxbaum requesting visitation with C.N., but continued to refuse to visit in family therapy as required. As a result, no visitation occurred. On July 9, 1997, DPHHS petitioned for temporary custody of A.N. and C.N.

¶ 18 On August 25, 1997, Buxbaum resigned, notified Eric and Diana that DPHHS social worker Pamela Weischedel (Weischedel) would be taking over their case and requested they contact Weischedel. When Weischedel did not hear from them, she notified Eric and Diana she had taken over the case, first by mail and then via a message left on their answering machine. Finally, on September 30, 1997, Eric returned her call. He subsequently scheduled a meeting with her for October 16. During this meeting, Eric and Diana stated they wanted visitation, but Buxbaum had prohibited it. Weischedel explained that they had been allowed visitation in family therapy but had declined to participate. She discussed new treatment plans with them and made arrangements for visitation in her office rather than in a family therapy setting. Weischedel asked...