In re A.N.W.
| Decision Date | 28 February 2006 |
| Docket Number | No. 04-882.,04-882. |
| Citation | 130 P.3d 619,2006 MT 42,331 Mont. 208 |
| Court | Montana Supreme Court |
| Parties | In the Matter of Declaring A.N.W., A Youth in Need of Care. J.Q., Appellant. |
For Appellant: Robert B. Allison, Attorney at Law, Kalispell, Montana.
For Respondent: Hon. Mike McGrath, Attorney General; Ilka Becker, Assistant Attorney General, Helena, Montana, Ed Corrigan, Flathead County Attorney; Peter Steele, Deputy County Attorney, Kalispell, Montana.
¶ 1 J.Q. appeals from the Eleventh Judicial District Court, Flathead County's order terminating his parental rights to his daughter, A.N.W., and awarding permanent legal custody, with the right to consent to adoption, to the Montana Department of Public Health and Human Services (Department). We affirm.
¶ 2 We address the following issues on appeal:
¶ 3 1. Did District Court Judge Stadler's action in conducting a show cause hearing and entering an order granting the Department emergency protective services and temporary investigative authority (TIA) after he signed an order recusing himself invalidate the subsequent parental termination proceeding?
¶ 4 2. Did the District Court afford J.Q. a fundamentally fair procedure when it ended the youth in need of care hearing before J.Q. could cross-examine the CASA volunteer and present two additional witnesses?
¶ 5 3. Did the District Court's failure to bifurcate the dispositional hearing from the youth in need of care hearing violate J.Q.'s right to a fundamentally fair process?
¶ 6 4. Did the District Court improperly consider documented evidence regarding J.Q.'s parole status that the Department filed after the termination hearing's conclusion when the evidence accurately reflected J.Q.'s parole status and confirmed his parole officer's testimony at the hearing?
¶ 7 5. Do the Department's alleged failures to comply with all of the statutory and court imposed deadlines surrounding J.Q.'s treatment plan affect the disposition of the case absent a showing of prejudice to J.Q.?
¶ 8 6. Did the District Court abuse its discretion when it terminated J.Q.'s parental rights?
¶ 9 J.Q. and his wife, R.W., initiated proceedings to dissolve their marriage in 2000. The custody of their only daughter, A.N.W., represented the major issue in the dissolution. J.Q. revealed during the dissolution proceedings that he had a sexual relationship with a step daughter from a prior marriage from the time the girl was four years old until she was 17. J.Q. admitted also to being sexually attracted to his wife's niece from the time the niece turned 13 until she was 19. J.Q.'s prior deviant sexual behavior toward his young female family members prompted the District Court to order the Department to supervise all of J.Q.'s visitation with A.N.W. during the dissolution process. R.W. died in May of 2000, before the court resolved the parenting plan.
¶ 10 The Department placed A.N.W. in the care of her maternal grandmother following R.W.'s death. The Department moved A.N.W. after less than a year, however, based on evidence that her two male cousins had sexually abused the five-year old while she was living with her grandmother. The Department petitioned for TIA in November of 2000, and placed A.N.W. with her maternal uncle and aunt, N.F. and D.F., in Washington state. N.F. and D.F. subsequently petitioned for, and the Department granted them, guardianship over A.N.W. J.Q. challenged the guardianship proceeding and the District Court set aside the guardianship in March of 2002.
¶ 11 The District Court's decision to set aside the guardianship prompted the Department to petition the District Court for emergency protective services and TIA on April 4, 2002. The Department alleged that J.Q.'s prior admissions regarding his long-term sexual relationship with his adopted daughter and his long-time sexual attraction to his young niece left A.N.W. in danger of being abused and neglected without proper protection. District Court Judge Stewart E. Stadler scheduled the show cause hearing for April 12, 2002.
¶ 12 Judge Stadler informed the parties before the hearing that he had presided in the earlier dissolution and guardianship proceedings, and, consequently, he deemed himself disqualified from presiding over the case. He had signed a relinquishment and acceptance order the previous day that disqualified him and had invited Judge Katherine R. Curtis to assume jurisdiction. Judge Curtis also had signed the order.
¶ 13 Judge Curtis was not available to preside at the hearing, however, and the third judge in the Eleventh Judicial District was in trial. Judge Stadler reminded J.Q. that he had a right to a hearing within ten days and then explained J.Q.'s options: either stipulate to an extension or proceed and Judge Stadler would "be the one that makes the . . . probable cause determination." J.Q.'s counsel responded that he had no choice but to proceed because J.Q. would not relinquish his right to a hearing within ten days.
¶ 14 Judge Stadler conducted the hearing and ruled from the bench in granting the Department emergency protective services and TIA. Judge Stadler signed a written order to that effect on April 25, 2002. The clerk of court earlier had filed the relinquishment and acceptance order on April 15, 2002.
¶ 15 The Department next petitioned the District Court to adjudicate A.N.W. a youth in need of care and to grant the Department temporary legal custody (TLC). The District Court, Judge Curtis now presiding, scheduled a one-day hearing on the Department's petition for July 1, 2002. At the end of a full day of testimony, the Court warned the parties that it had limited time for the hearing to continue to the next day. Judge Curtis concluded the hearing the following day for lack of time after A.N.W.'s appointed counsel and the court examined the CASA volunteer. The court did not allow J.Q. or the Department to cross-examine the CASA volunteer and the court did not allow J.Q. to present testimony from his remaining two witnesses.
¶ 16 The District Court entered its order on July 22, 2002, adjudicating A.N.W. a youth in need of care and granting the Department TLC for six months. The court also ordered the Department to prepare a treatment plan for J.Q. and to present the court with a written report by December 2, 2002. The Department filed the report on December 10, 2002.
¶ 17 On November 13, 2002, the Department moved for the District Court to approve its proposed treatment plan for J.Q. The following week the Department also sought to extend its TLC for an additional six months. The District Court held a hearing on the Department's two motions on December 18, 2002. The hearing did not conclude that day, so the court scheduled it to resume on January 16, 2003. The court also granted the Department continued TLC pending the outcome of the hearing.
¶ 18 In the meantime, the state of Wisconsin issued an arrest warrant for J.Q. relating to 24 separate felony offenses of failure to pay child support for another child. The Flathead County Sheriff's Department arrested J.Q. pursuant to the Wisconsin warrant on January 3, 2003. The District Court completed the hearing on the treatment plan and TLC extension as scheduled on January 16, 2003. J.Q. appeared in custody with his counsel.
¶ 19 The District Court once more extended the Department's TLC until July 16, 2003, and ordered the Department to file a written report by June 16, 2003. The court's January 29, 2003, order also approved the treatment plan under the condition the Department incorporate eleven specific changes to the plan. The court ordered J.Q. to abide by the amended treatment plan's terms and conditions upon his release from custody.
¶ 20 The Department petitioned the District Court again on June 5, 2003, to extend its TLC for an additional six months. The Department asserted that J.Q. remained incarcerated in Wisconsin and was not expected to be released until October of 2003 at the earliest. The Department further stated that it would support J.Q. in completing his court-approved treatment plan if he were released within a reasonable period of time. If J.Q. remained incarcerated, however, the Department informed the court that it would be compelled to petition for termination of his parental rights. The District Court held a hearing on the petition and again extended TLC on June 20, 2003. Neither J.Q. nor his attorney appeared at the hearing. The District Court noted in its order extending TLC that J.Q.'s counsel apparently had not been served with notice of the hearing.
¶ 21 A Wisconsin jury convicted J.Q. on August 4, 2003, and the judge sentenced him concurrently to four years in Wisconsin state prison, followed by ten years on probation. J.Q. remained incarcerated in Wisconsin throughout the rest of the termination proceedings in Montana.
¶ 22 The Department finally petitioned the District Court on November 17, 2003, to terminate J.Q.'s parental rights and to grant the Department permanent legal custody of A.N.W. The petition alleged alternative bases for termination. The Department alleged first that the evidence would establish that the statutory grounds for termination contained in § 41-3-609(1)(f), MCA—the child has been adjudicated a youth in need of care, a failed treatment plan, and the condition rendering the parent unfit is unlikely to change—were met. The petition also alleged that § 41-3-609(4)(c), MCA, relieved the Department of its obligation to provide J.Q. with a treatment plan due to J.Q.'s continued incarceration for more than one year. J.Q.'s continued incarceration made him unfit or unable to parent and this impediment was unlikely to change within a reasonable period due to his incarceration and thus termination would be in A.N.W.'s best interest. The Department...
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