F.H., Matter of, 93-472

• Decision Date: 12 July 1994
• Docket Number: No. 93-472,93-472
• Parties: In the Matter of F.H., J.K., and B.K., Youths in Need of Care.
• Court: Montana Supreme Court

Page 890

878 P.2d 890

266 Mont. 36

In the Matter of F.H., J.K., and B.K., Youths in Need of Care.

No. 93-472.

Supreme Court of Montana.

Submitted on Briefs May 5, 1994.

Decided July 12, 1994.

Paul E. Toennis, Oliver, Graves & Toennis, Billings, for appellants.

Joseph P. Mazurek, Atty. Gen., Helena, for respondent.

Curtis Bevolden, Billings, for Department of Family Services.

Damon Gannett, Gannett & Ventrell, Billings, for Guardian Ad Litem.

HARRISON, Justice.

S.T., the natural mother of B.K. and F.H., appeals an order of the Thirteenth Judicial District Court, Carbon County, which granted the Department of Family Services (DFS) temporary custody of B.K. and F.H. until age eighteen. We affirm.

Two issues are presented:

I Did the District Court err by failing to dismiss the youth court action after DFS admitted that it failed to follow the statutory procedure of § 41-3-301, MCA (1991)--the 48-hour rule?

II Did the District Court err by awarding DFS temporary custody of B.K. and F.H. until age eighteen?

S.T. is the natural mother of J.K., B.K. and F.H. J.K. is currently eighteen years of age, while B.K. is thirteen and F.H. is five.

DFS has had contact with S.T. and her children since August 3, 1989. From late 1989 through early 1991, DFS was granted temporary custody of the children for four six-month intervals. During this time, S.T. signed four treatment plans, none of which were completed.

In February 1991, DFS requested an additional six months temporary custody of the children. Prior to any hearing on the request, the parties entered a stipulation for family reunification and S.T. signed another treatment plan.

Based on S.T.'s minimal compliance with that treatment plan, and since S.T. signed a voluntary agreement to continue working with DFS, on October 3, 1991, DFS requested dismissal of the temporary custody order. From December 1991, to January 1992, various concerns surfaced over the children's stability, educational, emotional and health needs.

On January 28, 1992, DFS, pursuant to the emergency protection statute--s 41-3-301, MCA--removed B.K. and F.H. from S.T.'s home. J.K. refused placement and remained in the household. On February 10, 1992, DFS filed a petition for the termination of S.T.'s parental rights and permanent custody of the three children. On February 13, 1992, DFS amended the petition to terminate S.T.'s parental rights and sought permanent custody of B.K. and F.H. DFS also petitioned for temporary custody of J.K. until she reached age eighteen. DFS and S.T. also executed another treatment plan which S.T. did not complete during the eight months before trial.

On March 20, 1992, S.T. moved the District Court to dismiss the petition since DFS failed to file the termination and permanent custody petition within 48 hours after using the emergency placement statute--s 41-3-301, MCA--to take the children. The court denied this motion and the trial commenced on November 20, 1992. The court issued its findings of fact and conclusions of law and granted DFS temporary custody of B.K. and F.H. until age eighteen. B.K. and F.H. were put in foster care and S.T. was allowed visitation, while J.K. remained in the physical custody of S.T. subject to DFS supervision.

I

Did the District Court err by failing to dismiss the youth court action after DFS admitted that it failed to follow the statutory procedure of § 41-3-301, MCA (1991)--the 48-hour rule?

DFS conceded that the petition for termination and permanent custody was not filed within 48 hours of the children's emergency placement. On that basis, S.T. moved to dismiss the petition. The District Court denied S.T.'s motion to dismiss and stated:

a sanction of dismissal of a case involving kids to be protected is not appropriate ...[;] there would have to be some other remedies for violating [the 48-hour rule] other than dismissal of a petition....

The court carefully balanced the technical statutory requirements against the children's best interest and ultimately decided to protect the children.

When, as here, a district court "engages in discretionary action which cannot be accurately characterized as a finding of fact or conclusion of law[,]" we review the district court's decision to determine whether the court abused its discretion. Matter of D.H. and F.H. (Mont.1994), 872 P.2d 803, 806, 51 St.Rep. 386, 388 (citation omitted). While we consider DFS' conduct unconscionable--not filing a petition within 48 hours--the conduct does not warrant dismissal of the petition and is not reversible error.

In matters involving abused and neglected children we have consistently held that a district court may protect the children's best interest despite procedural errors. See Matter of S.P. (1990), 241 Mont. 190, 196, 786 P.2d 642, 645-46 (held harmless error when DFS failed to provide father five days notice of hearing); Matter of R.A.D. (1988), 231 Mont. 143, 155, 753 P.2d 862, 869 (held no reversible error when court failed to grant fourth continuance to mother who was in a psychiatric hospital); Matter of R.M.B. (1984), 213 Mont. 29, 33-34, 689 P.2d 281, 283 (held harmless error when court admitted hearsay); Matter of C.L.A. and J.A. (1984), 211 Mont. 393, 399-400, 685 P.2d 931, 935 (held harmless error when court did not allow parents to cross-examine state witness as to the best interest of the children); Matter of M.E.M. (1984), 209 Mont. 192, 195-98, 679 P.2d 1241, 1243-45 (held no error when there were alleged violations of the Indian Child Welfare Act); and Matter of A.J.S. (1981), 193 Mont. 79, 86-87, 630 P.2d 217, 222 (held harmless error when the district court's final order of termination was twenty months after DFS removed the child from the home).

In this case, even though the petition was not filed until thirteen days after the emergency placement of the children, the District Court did not abuse its discretion when it concluded that the children's best interest precluded dismissing the petition. Any error in not following the strict procedure of § 41-3-301, MCA, was harmless since the best interest of the children was the primary concern and since S.T.'s due process rights were not violated. In fact, S.T. received notice of each hearing, was present at each hearing and presented evidence through her court-appointed attorney at each hearing. The final termination hearing was held some eight months after the petition was filed and during that time S.T. was afforded another opportunity to complete a treatment plan. We hold that S.T.'s rights were not prejudiced by the failure to file the petition within 48 hours and, thus, the District Court correctly denied her motion to dismiss the petition. We also sound a stern warning to DFS to strictly follow the statutory procedure in future cases or we will, in no uncertain terms, punish its conduct which may result in potential harm to abused and neglected children--the very children that DFS is supposed to protect.

II

Did the District Court err by awarding DFS temporary custody of B.K. and F.H. until age eighteen?

DFS petitioned the District Court for termination of S.T.'s parental rights and permanent custody of B.K. and F.H. S.T. argues that the petition was factually insufficient to terminate her parental rights, since the petition alleged that she did not comply with a treatment plan. According to S.T. no treatment plan was in effect when the petition was filed and, thus, the District Court erred by not dismissing the petition for failure to state a cause of action. However, we note that after the petition was filed DFS and S.T. agreed to enter a treatment plan which S.T. had eight months to complete. She failed to complete the plan by the time of the final hearing. We conclude that the District Court did not abuse its discretion when it failed to dismiss the petition. The petition, on its face, stated a cause of action and facts were developed to prove that S.T. did not comply with the treatment plan.

Moreover, the District Court did not terminate S.T.'s parental rights. Even though the court found that the evidence justified termination of S.T.'s parental rights, the court--concerned with the children's best interest--granted DFS temporary custody until B.K. and F.H. reached age eighteen.

Once a district court determines that a child is a youth in need of care--abused, neglected or dependent--it may grant DFS temporary custody of that child until age eighteen. Matter of A.H., T.M., and J.A.H. (1989), 236 Mont. 323, 328-29, 769 P.2d 1245, 1249. Here, the District Court properly found that B.K. and F.H. were youths in need of care pursuant to § 41-3-102(11), MCA (1991). After a careful review of the record we hold that the District Court did not abuse its discretion when it granted DFS temporary custody of B.K. and F.H. until age eighteen.

Affirmed.

TURNAGE, C.J., and TRIEWEILER, J., concur.

NELSON, Justice, specially concurring.

I am satisfied that Justice Gray's dissent is more legally correct than is our opinion. I, nevertheless, concur in the Court's opinion only because I cannot conclude, on balance, that the right of the mother to parent should take precedence over the rights of the children to be free from abuse and neglect, when the deciding factor is a technical violation of the 48 hour filing deadline and where the mother has, otherwise, had ample opportunity for notice and hearing. In joining our opinion, however, I do not in anyway condone DFS' failure to comply with the statute; there is simply no justification for a public agency which is charged with the responsibility of protecting fundamental rights, to not comply with both the letter and spirit of the laws that govern its...