In re D.B.J.

• Citation: 286 P.3d 1201,2012 MT 220,366 Mont. 320
• Decision Date: 09 October 2012
• Docket Number: No. DA 12–0069.,DA 12–0069.
• Parties: In the Matter of D.B.J., Youth in Need of Care.
• Court: United States State Supreme Court of Montana

366 Mont. 320

286 P.3d 1201

2012 MT 220

In the Matter of D.B.J., Youth in Need of Care.

No. DA 12–0069.

Supreme Court of Montana.

Submitted on Briefs Aug. 1, 2012.

Decided Oct. 9, 2012.

For Appellant: Kevin E. Vainio, Attorney at Law, Butte, Montana.

For Appellee State of Montana: Steve Bullock, Montana Attorney General; Katie F. Schulz, Assistant Attorney General, Helena, Montana Lewis K. Smith, Powell County Attorney, Deer Lodge, Montana.

For Appellee D.B.J.: Jeffrey W. Dahood; Knight, Dahood, Everett & Sievers, Anaconda, Montana.

Justice MICHAEL E. WHEAT delivered the Opinion of the Court.

[366 Mont. 321]¶ 1 C.R., D.B.J.'s step-grandfather and guardian, appeals the termination of his guardianship. We affirm.

¶ 2 The issues on appeal are as follows:

¶ 3 1. Was C.R. afforded a fundamentally fair process and opportunity to participate in the proceedings despite the District Court's initial belief that he had to intervene to become a party?

¶ 4 2. Did the District Court comply with the timeline requirements for conducting a show cause hearing within 20 days of the filing of an initial child abuse and neglect petition, as stated by § 41–3–432(1)(a), MCA?

¶ 5 3. Did the District Court err by terminating C.R.'s guardianship pursuant to the best interests of the child standard at § 72–5–234, MCA?

Factual Background

¶ 6 This case presents a complex factual record. D.B.J., the son of T.B., the birth mother (“Mother”), and B.J., the birth father (“Father”), was born on April 25, 2003. In February of 2004, Mother and Father successfully petitioned the Teton County District Court to appoint D.R., the maternal grandmother, and C.R., the step-grandfather, as guardians. The Teton County District Court's Order Appointing Guardians did not provide any durational limits on the guardianships and did not terminate either Mother or Father's parental rights. Both Mother and Father were sentenced to prison for drug charges around the time C.R. and D.R. were appointed guardians, and D.B.J. has lived with his guardians since he was approximately five weeks old. Following their appointment as guardians, neither D.R. nor C.R. has sought to adopt D.B.J.

¶ 7 On April 23, 2010, the Department of Public Health and Human Services (“DPHHS”) removed D.B.J. from D.R. and C.R.'s home and placed him in foster care after it received a report from a school-based social worker that D.B.J. feared C.R. would yell at and hit him. Katherine C. Winter (“Winter”), a Child Protection Specialist with DPHHS, interviewed D.B.J. following the report. D.B.J. told Winter that C.R. yelled at and hit D.R. during fights, and that he feared C.R. would hit and kick him if he got in trouble at school. D.B.J. told Winter that C.R. had previously hit and kicked him. Winter also interviewed D.R., and D.R. confirmed that both she and D.B.J. feared potential physical abuse and that she lived in a possible domestic violence situation. Following D.B.J.'s removal from the home, D.R. separated from C.R.

¶ 8 On April 29, 2010, the DPHHS filed a petition (“the petition”) for Emergency Protective Services, Adjudication as Youth in Need of Care (“YINC”), and Temporary Legal Custody (“TLC”). The District Court issued an Order to Show Cause, Granting Emergency Protective Services and Temporary Legal Custody to the DPHHS, and Notice of Show Cause Hearing on April 30, 2010. The court issued summonses to Mother, Father, D.R., and C.R., noticing the parties of a scheduled May 18, 2010, show cause hearing. Both C.R. and D.R. were personally served with a summons.

¶ 9 At the May 18, 2010, show cause hearing, the District Court did not allow C.R., D.R., or their respective counsel to either cross-examine or present witnesses. As justification, the court claimed the guardians were not parties to the proceeding. The court did state the guardians would be allowed to make a motion to intervene, but they were “not going to be allowed to cross examine or otherwise appear in the hearing today.” This was despite the fact that the petition concerned D.B.J.'s care under the guardianship of C.R. and D.R., and not the parents. When counsel for C.R. was offered the opportunity to make a motion to intervene, he was subsequently cut off by the court.

¶ 10 Because Father had not been served, the court agreed to consider the petition only as it pertained to Mother at the May 18 hearing. Mother stipulated to the State's request for TLC and Emergency Protective Services. Despite the stipulation, the court allowed the State to call two witnesses, Fredricka O'Farrell (“O'Farrell”), a licensed clinical social worker in D.B.J.'s school, and Winter. O'Farrell and Winter's testimony was presented as an offer of proof following a request by Mother's counsel. Notwithstanding Mother's request, O'Farrell and Winter's testimony largely centered on D.B.J.'s fear of C.R. and possible abuse by C.R. The court also considered a report by the guardian ad litem (“GAL”) at the May 18 hearing. The GAL report similarly focused on the conduct of C.R. and D.R. and recommended D.B.J. remain in foster care.

¶ 11 At the conclusion of the May 18 show cause hearing, the court found D.B.J. to be a YINC, that D.B.J. was “abused and/or neglected or in danger of being abused and/or neglected,” and granted DPHHS temporary custody. The court noted that “we're only talking about the mother's rights here.” The court did recognize “there's some incongruity to listening to testimony about an individual [C.R.] who's not in the well of the courtroom,” but left the matter unresolved. The court subsequently issued an order setting an additional show cause hearing for D.R., C.R., Mother, and Father on June 22, 2010.

¶ 12 Following a motion by DPHHS, a Permanency Plan hearing was held on June 1, 2010, for the apparent purpose of continuing federal social security foster care funding for D.B.J. DPHHS Child Protection Specialist Gerald Byrd (“Byrd”) testified at the hearing. Byrd stated “the plan” was for D.B.J. “to remain in foster care until a more permanent solution” was reached. This hearing did not establish a Permanency Plan with a definite end goal, but both the State and Byrd supported continued foster care until a long-term plan was developed. The court recognized foster care was not a permanent plan, terming it instead a “current situation of necessity.” Neither C.R. nor D.R., nor their respective attorneys, participated in the hearing or were afforded the opportunity to cross examine the DPHHS witness.

¶ 13 The court attempted to remedy its prior exclusion of the guardians at the June 22, 2010, continued show cause hearing. The show cause hearing was preceded by a status conference to resolve C.R. and D.R.'s status in the case. The State argued the guardians had standing to participate as necessary parties to the action. C.R. argued that because he had been served with the petition and summons, he was a necessary party. C.R. also expressed a belief that the court's prior determination of YINC and TLC with regards to Mother would prejudice his case going forward. The court admitted it was unaware C.R. had been summoned as a party to the case, stating “we may have to start over because I denied [C.R.] the opportunity to cross examine anybody, to otherwise participate in the first [May 18, 2010] hearing.”

¶ 14 The court ended the June 22, 2010, hearing by stating it would grant the guardians separate show cause hearings. C.R. opposed this offer and again expressed concern that the court had already ordered TLC to DPHHS. In response, the court indicated that “[w]e will consider the matter anew as it relates to the grandparents,” and that the State should “be prepared to put your proof on without reliance upon anything that's happened at a previous proceeding in this matter, to give the grandparents the full opportunity to challenge everything.” The court apparently considered it “an open question” as to whether D.B.J. would be returned to the guardians and ordered a show cause hearing for the guardians to be set for June 29, 2010.

¶ 15 After a continuation, the court considered the petition with regards to the guardians on July 6, 2010. Both C.R. and D.R. opposed the petition, presented testimony, and cross examined witnesses. C.R. denied the allegations of abuse. Winter and O'Farrell repeated their testimony concerning D.B.J.'s assertions of fear and physical and verbal abuse. O'Farrell testified that D.B.J. had witnessed domestic violence, had been punched, kicked, and slapped by C.R., and that D.R. had been unable to prevent the abuse.

¶ 16 At the close of the July 6, 2010, hearing the court adjudicated D.B.J. as a YINC, determined he had either been abused or was in danger of being abused, and granted TLC to DPHHS for six months. The court reached these findings by considering the best interests of D.B.J.

¶ 17 The court held a hearing on July 13, 2010, to consider DPHHS's permanency plan between D.B.J. and his guardians. Both D.R. and C.R. were present at the hearing. The permanency plan placed D.B.J. in foster care pending development of treatment plans for the guardians, a determination of whetheror not termination of the guardians' status was appropriate, or whether or not the parents could be suitable placements for D.B.J. The court approved the plan and found it to be in the best interests of D.B.J.

¶ 18 Treatment plans were subsequently developed for D.R., C.R., Father, and Mother. C.R. was required to attend anger management counseling, parenting classes, and couples counseling, and was granted weekly visits with D.B.J. C.R. completed the anger counseling. C.R. was also required to undergo a complete physical and psychological evaluation.

¶ 19 Sometime in October, 2010, C.R. suffered what was termed a psychotic episode and was briefly hospitalized. D.B.J. witnessed this episode, and C.R. apparently instructed D.B.J. to hit him with a Bible in order to “hit the devil back into the ground.” D.B.J. reported being...