F.H., Matter of, 95-004

• Decision Date: 15 August 1995
• Docket Number: No. 95-004,95-004
• Citation: 901 P.2d 96,272 Mont. 342
• Parties: In the Matter of F.H., A Minor Child.
• Court: Montana Supreme Court

Page 96

901 P.2d 96

272 Mont. 342

In the Matter of F.H., A Minor Child.

No. 95-004.

Supreme Court of Montana.

Submitted on Briefs May 11, 1995.

Decided Aug. 15, 1995.

Ann Gilkey, Sp. Asst. Atty. Gen., Dept. of Family Services, Helena, for appellant.

Leanne M. Schraudner, Schraudner & Hillier, Bozeman, Glenna Kurns, Lewistown Guardian ad litem, for respondent.

WEBER, Justice.

This is an appeal from an adoption order rendered by the Eighteenth Judicial District Court, Gallatin County. We reverse and remand.

We consider the following issues:

I. Does the failure to notify the guardian ad litem of F.H. constitute reversible error?

II. Did the District Court err by issuing an adoption order without notification to and consent from the Department of Family Services?

This case involves a minor child, F.H., whose natural parents lost parental rights to the child because of child neglect and sexual abuse by the father. The parental rights of D.H. and C.C., father and mother of F.H., were terminated on June 2, 1994 in the Tenth Judicial District Court, Fergus County. Permanent custody of F.H. was granted to the Department of Family Services.

F.H. has one great grandparent, Elizabeth Chase, 65 years of age, who is married to Larry Chase, age 53. Larry and Elizabeth Chase filed a petition for permanent adoption on July 1, 1994. F.H. was born February 11, 1987. The District Court of Gallatin County issued an Order for Adoption Hearing and Investigation, which provided that a copy of the order should be served on the DFS "which shall furnish to the Court a written report of its investigation of the petitioners, their family, home, and the circumstances of the minor child ..." On September 15, 1994, DFS presented an investigative report to the court which contained extensive documentation of the involvement of DFS and its personnel from December of 1989 on. That report showed that on February 23, 1993, F.H. was placed in the home of Larry and Betty Chase; and that F.H. was transferred to a Youth Dynamics home in Bozeman on June 8, 1993. On December 21, 1993, F.H. was placed in the foster home of David and Jane Yearous with the intention that it would be a foster-adoptive permanent placement for F.H. The report concludes with the recommendation of the DFS that there is no intention to exclude the Chases as a part of F.H.'s life--they are family and have done their best to continue to stay in constant touch with him. The recommendation on the part of DFS is that the Yearous family would best meet F.H.'s special specific needs. In addition the report described at some length various witnesses which included the following: Youth Dynamics treatment supervisor and Youth Dynamics southwestern regional manager at Bozeman, therapist at Bozeman, and Jim Moe, placing social worker for DFS in Lewistown. The report then emphasized that the foregoing people have a documented and ongoing and therapeutic relationship with F.H. and would be able to update the court as to F.H.'s current progress in the Yearous home. The report was signed by Christy Ruckwardt, Family Resource Specialist, DFS. The findings of the District Court following hearing do not indicate that any of the DFS material was specifically considered.

The hearing on the petition for permanent adoption of F.H. was held in the Gallatin County District Court on September 23, 1994. DFS was not represented at the hearing, nor was the guardian ad litem represented at the hearing. Oral testimony was submitted by the petitioners, which included the testimony of Becky Berglund, who does therapeutic foster care for Youth Dynamics. Both Betty Chase and Larry Chase testified. Dr. David King testified by video deposition. The record of that deposition reflected that a notice of the deposition had been served on the DFS but that no representative of DFS had chosen to participate at the deposition. Following the hearing, the District Court entered its Decree of Adoption dated September 23, 1994, which concluded that there was overwhelming, substantial, credible evidence to support the conclusion that the best interests of the child would be served by placing F.H. permanently with Larry and Elizabeth Chase. The order further provided that F.H. was declared adopted by Larry Chase and Elizabeth Chase, the six-month interlocutory period was waived and the child thereafter was to be treated in all respects as the child of Larry Chase and Elizabeth Chase. It further provided that the DFS should see that F.H. was physically placed in the Chase home immediately. We note that following the entry of this order, F.H. was abruptly removed from the Yearous household and transferred to the Larry and Elizabeth Chase household.

Without detailing the findings and conclusions of the District Court we point out that the court stated in its Decree of Adoption that DFS had been granted custody on June 2, 1994, subject to the requirement of permanently placing the child within 180 days. The court took DFS to task for not placing the child within the time parameters required and admonished the County Attorney for not filing criminal charges against the natural father. The court also found fault with DFS for not appearing in person at the September 23, 1994 hearing. The court concluded that "overwhelming, substantial, credible evidence" existed that the best interests of the child would be served by placing F.H. with his great grandparents, the Chases. The court further concluded that DFS did not act in the best interests of F.H.

In connection with the hearing before the District Court, we note there were over twenty trial exhibits from the DFS records which were admitted by the court. These established the extent and nature of the investigation by various DFS personnel.

DFS filed its Motion to Vacate Decree or Re-hear Petition on October 5, 1994. The motion was supported by the following materials: the affidavit of the chief deputy county attorney of Gallatin County; the affidavit of Eugenia Bellante, a licensed professional counselor, in which she emphasized that she recommended against permanent placement of F.H. with the Chases, the great grandparents; and the affidavit of Christie Ruckwardt, family resource specialist above mentioned, who described how she was unsure how to proceed in conducting the investigation because DFS had custody of the child--that she consulted with counsel for the DFS and other personnel and also consulted with Jim Moe, the Fergus County social worker in charge of recommending permanent placement--that she delivered her report on September 14, 1994, to the office of the district judge and recommended against the adoptive placement of F.H. with the Chases. She stated that she was advised by one of the persons in the judge's office that her presence at the hearing was not required. In addition the affidavit of Hank Hudson, Director of DFS, in which he specifically stated that he had not consented nor did he consent to the adoption of F.H. by Larry and Betty Chase, and the affidavit of Steven Ware, Treatment Manager for Youth Dynamics in Bozeman in which he recommended that F.H.'s best interests would be served by being adopted by Dave and Jane Yearous, due to F.H.'s therapeutic needs, including issues regarding abandonment, sex abuse, lack of socialization skills and medication. He also emphasized that continued visitation with his great grandparents, the Chases, would be in F.H.'s best interests. Also the affidavit of Jim Moe, social worker with DFS in Fergus County, wherein he recommended that F.H. be permanently placed with the Yearous family and not with the Chases. Glenna Kurns, guardian ad litem for F.H., also filed a Motion for Reconsideration on October 3, 1994. The motions for reconsideration were denied by the District Court by...