C.L.A., Matter of

• Decision Date: 02 August 1984
• Docket Number: No. 83-374,83-374
• Court: Montana Supreme Court
• Parties: In the Matter of C.L.A. and J.A., Youths in Need of Care.

Page 931

685 P.2d 931

211 Mont. 393

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

No. 83-374.

Supreme Court of Montana.

Submitted Feb. 29, 1984.

Decided Aug. 2, 1984.

Patten & Renz, Jeffrey T. Renz argued, Billings, for appellant.

Mike Greely, Atty. Gen., Helena, Robert Smith, Asst. Atty. Gen., Helena, argued for fundamental issues of right to a jury trial, Harold F. Hanser, County Atty., Billings, Greg Mullowney, Deputy County Atty., Billings, argued, Olsen, Christensen, Gannett & Waller, Damon Gannett, Billings, argued as guardian ad litem, for respondent.

THOMAS M. McKITTRICK, District Judge. ^*

Natural parents, Richard and Judy Allmer, appeal from an order of the Yellowstone County District Court finding their minor children, five-year-old C.L.A. and three-year-old J.A., "youths in need of care," and terminating the parents' rights in the children. On July 15, 1981, the Department of Social and Rehabilitation Services took possession of the children pursuant to a trial court order for temporary investigative authority, authorized under section 41-3-402, MCA. On April 15, 1982, the State petitioned the trial court for permanent custody and authority to assent to adopt. The petition alleged basically that the parents were unable and unwilling to properly care for the children.

The parents timely filed a jury demand with the trial court. The trial court denied the demand, citing section 41-3-607(4), MCA. The cause was tried before the court sitting without a jury on November 23, 1982. The trial court consoldiated the adjudicatory and disposition hearings under section 41-3-607(1), MCA, found both youths to be "in need of care," found that the parents had not complied with the approved treatment plan, found them to be beyond rehabilitation, and terminated their parental rights. Parents appeal from these findings and conclusions. We affirm.

The parents present three issues for review. First, whether the parents were entitled to have a jury determine whether their children, C.L.A. and J.A., are abused, dependent, or neglected. Second, whether the findings and conclusions of the trial court are supported by substantial evidence. Third, whether the trial court abused its discretion when it refused to allow the parents to cross-examine the State's witnesses regarding the ultimate placement of the children.

C.L.A. and J.A. are the fifth and sixth children born to the Allmers, and Judy Allmer was pregnant at the time of the hearing. All four older siblings have been taken from the Allmers by order of the court.

The facts of the case are derived for the most part from the testimony of the psychologist, social workers, and special education teacher, all of whom were retained by the State and had substantial contact with the Allmer family. Their testimony will be set forth in detail in discussing the second issue.

The first issue, whether the parents had a right to a jury trial, is strictly a question of law. The trial court denied the parent's demand for a jury trial, relying on section 41-3-607(4), MCA. That section provides that "there is no right to a jury trial at proceedings held to consider the termination of a parent-child legal relationship." The parents argue that section is unconstitutional pursuant to Art. II, Sec. 26 of the Montana Constitution, which provides that "the right to a trial by jury is secured to all and shall remain inviolable." That provision was adopted as part of the original 1889 Constitution and was recodified in the 1972 Constitution. The question is whether that right extends to civil parent-child termination proceedings which are controlled by sections 41-3-401, et seq., MCA.

The rule in Montana is that our state constitution only guarantees the right to a jury trial in the class of cases in which the right was enjoyed when the constitution was adopted. Montana Ore Purchasing Co. v. Montana Consolidated Copper and Silver Mining Co. (1902), 27 Mont. 288, 306, 70 P. 1114; State ex rel. Jackson v. Kennie (1900), 24 Mont. 45, 56-57, 60 P. 589. But in the class of cases where the right is preserved, it "shall remain inviolable" and cannot be revoked by legislative act. Chessman v. Hale (1905), 31 Mont. 577, 79 P. 254.

When our Constitution was first adopted in 1889, there was no right to a jury trial in civil proceedings for termination of the parent-child relationship because there existed no such proceeding. There were only criminal sanctions which could be imposed on abusive or neglectful parents. Ch. I, Sec. 11, 1888 Compiled Statutes of Montana. The parents argue that the present civil proceedings "evolved" from that criminal statute, and therefore derived the "inviolable" right to a jury trial from a right that existed in 1888, before the Constitution was adopted. We disagree. The more likely predecessor of the present day civil proceedings (sections 41-3-401, et seq., MCA) was Section 290, Civil Codes of 1895. That section provided for a civil action by the child or county against the parent for any "abuse of parental authority," and if abuse was established, the child could be "freed from the dominion of the parent ..."

The resulting statutory scheme is that there existed criminal sanctions against the parents in 1888, with a right to a jury trial; our first constitution was adopted in 1889 preserving all existing rights to trial by jury; the 1895 statute creating a civil cause of action by the child or county against the parents, with no express provision regarding a jury trial; and our present day statutes that provide for a civil action to terminate the parent-child relationship, provide expressly that the civil action shall "not foreclose criminal proceedings," and provide there shall be no right to a jury trial. Therefore, because there was no right to a jury trial for civil proceedings to terminate parental rights when our Constitution was adopted in 1889 and recodified in 1972, such a right could not be brought within the protective arms of Art. II, Sec. 26.

There is a second question regarding the jury trial issue. That is whether section 41-3-607(4), MCA, specifically the language "... at proceedings held to consider the termination ..." of parental rights, refers not to the adjudicatory hearing (section 41-3-404) where it is determined whether the child or children are "in need of care," but only to the dispositional hearing (section 41-3-406) where the parental rights may actually be terminated, if the children have been adjudged "in need of care."

There are three reasons why this construction of section 41-3-607 seems too restrictive. First, the "plain language" of the adjudicatory hearing statute, section 41-3-404, expressly provides that "... the court shall determine whether the youth is in need of care ..." Second, section 41-3-607(1) provides the trial court with the option of consolidating the adjudicatory and dispositional hearings, making it unlikely that the legislature intended to allow a jury trial at one stage of the proceedings and not at the other. The...