In re SM, 00-426.

• Decision Date: 14 February 2001
• Docket Number: No. 00-426.,00-426.
• Parties: In the Matter of S.M., and P.L.M., Youths in Need of Care.
• Court: Montana Supreme Court

19 P.3d 213

2001 MT 11

304 Mont. 102

In the Matter of S.M., and P.L.M., Youths in Need of Care.

No. 00-426.

Supreme Court of Montana.

Submitted on Briefs November 30, 2000.

Decided February 14, 2001.

Kevin T. Sweeney, Sweeney & Healow, Billings, MT, for (Appellant Mother).

Nancy L. Wetherelt, Wetherelt Law Offices, Billings, MT, for (Appellant Father).

Damon L. Gannett, Gannett Law Firm, Billings, MT, Guardian Ad Litem.

Joseph P. Mazurek, Montana Attorney General, Nancy G. Schwartz, Assistant Montana Attorney General, Helena, MT; Dennis Paxinos, Yellowstone County Attorney, Melanie Logan, Deputy Yellowstone County Attorney, Billings, MT, for Respondent.

Justice JAMES C. NELSON delivered the Opinion of the Court.

¶ 1 The biological mother and father of the minor children, S.M. and P.L.M., appeal the judgment of the District Court for the Thirteenth Judicial District, Yellowstone County, terminating their parental rights. We affirm.

¶ 2 We address the following issues on appeal:

¶ 3 1. Whether the District Court properly admitted the hearsay statement of S.M.

¶ 4 2. Whether the District Court's findings that the biological parents had failed to successfully complete their treatment plans and that the conduct or condition rendering them unfit was unlikely to change within a reasonable period of time were clearly erroneous.

Factual and Procedural Background

¶ 5 On May 18, 1999, the Department of Public Health and Human Services (DPHHS) filed a Petition for Permanent Legal Custody, Termination of Parental Rights and Right to Consent to Adoption of a girl, S.M., and her brother, P.L.M., the biological children of Michael and Michelle. S.M. was born on December 12, 1992, and P.L.M. was born on October 24, 1997.

¶ 6 DPHHS first became involved with this family in February 1997, when they received a report concerning illegal drugs in the home. Upon investigation at the home, a DPHHS social worker observed a scale with marijuana on it and a cooler containing approximately half a pound of marijuana. Michael and Michelle claimed to have no knowledge of these items even though the items were discovered in their bedroom. The social worker also noted that the home was filthy and there were pornographic materials on the floor in full view of four-year-old S.M.

¶ 7 DPHHS was granted temporary investigative authority and S.M. was placed out of the home. (P.L.M. had not yet been born.) Both Michael and Michelle were asked to complete treatment plans. Michael failed to complete his treatment plan although he did complete a chemical dependency evaluation wherein he was diagnosed as chemically dependent. It was recommended that he complete an intensive outpatient chemical dependency program, but he did not follow through with this recommendation.

¶ 8 Michael and Michelle separated in March 1997, and Michelle moved in with her mother. In June 1997, DPHHS dismissed the youth-in-need-of-care proceedings and returned S.M. to Michelle. Michael and Michelle divorced in November 1997.

¶ 9 DPHHS became involved with this family again in May 1998, when DPHHS received a report that Michelle's boyfriend, Gerald, who was residing with Michelle and the children, was abusive. DPHHS was concerned because Gerald had a history of being abusive and a history with the Laurel Police Department. DPHHS made a home visit and discussed these concerns with Michelle and Gerald. Michelle denied that any abuse had occurred.

¶ 10 The investigation in the current action was initiated in July 1998, when DPHHS received a police report that Gerald and Michelle had been charged with negligent child endangerment. The charges stemmed from an incident where S.M., age five, had soiled her pants while in the parties' vehicle and Gerald punished her by placing her on top of the vehicle and forcing Michelle, who was in the driver's seat, to drive for several blocks. Gerald maintained that S.M. could not be inside the vehicle because she had soiled her pants. Both Michelle and Gerald entered guilty pleas to the charges of negligent child endangerment.

¶ 11 Around this time, DPHHS also became aware of a June 21, 1998 incident involving Gerald in which Gerald was driving at speeds of 70 to 75 miles per hour in a 35 mile per hour zone while attempting to elude police and while P.L.M. was in the back seat of the vehicle. The arresting officer later testified that Gerald showed "no regard for the baby's safety or welfare." Gerald was subsequently charged with a number of traffic violations. After these incidents, P.L.M., then eight months old, and S.M. were removed from the home and placed in foster care.

¶ 12 After the children were placed in foster care, DPHHS learned that S.M. had been both physically and sexually abused while in her mother's care. S.M. had numerous bruises as well as bite marks on her bottom. During the investigation, Michelle gave conflicting stories regarding the abuse. At first, Michelle claimed that Gerald had never been alone with the children and that it was Michael who had sexually abused S.M. Later, after Gerald left her, Michelle claimed that she had left the children alone with Gerald on several occasions and that it was Gerald who had sexually abused S.M.

¶ 13 Michelle also acknowledged that Gerald was physically abusive to S.M. and that this abuse began within a month of Gerald's moving in with Michelle. Michelle stated that Gerald would pinch S.M. and hit her with his fist. In her testimony at the November 30, 1999 hearing, Michelle admitted that Gerald had left bruises on S.M.'s ankle, knee and stomach prior to DPHHS removing the children. Nevertheless, Michelle continued to live with Gerald until September 1998, when he left her for another woman. Gerald was charged with these offenses and he eventually pleaded guilty to felony assault.

¶ 14 Shortly after Gerald moved out, Michelle moved back in with Michael. However, by early January 2000, Michael and Michelle had again separated.

¶ 15 DPHHS filed a Petition for Temporary Custody on October 26, 1998. After a hearing, the District Court adjudicated the children as youths in need of care and placed the children with DPHHS for a period of six months. On May 18, 1999, DPHHS filed a Petition for Permanent Legal Custody, Termination of Parental Rights, and Right to Consent to Adoption. The petition was tried before the District Court commencing August 27, 1999. Trial continued on November 30, 1999, January 7, 2000, and January 21, 2000. The District Court entered its Findings of Fact and Conclusions of Law on March 21, 2000, wherein the court terminated Michael and Michelle's legal rights to S.M. and P.L.M. From this judgment both parents appeal.

¶ 16 On April 25, 2000, the children's guardian ad litem filed a motion in the District Court requesting a hearing to address the placement of the children. DPHHS planned to place the children with Michael's mother and stepfather in Mississippi. DPHHS also determined that it would be in the children's best interests for them to continue to have access to their father. The guardian ad litem had concerns about Michael's mother's ability to raise the children based on how she had raised Michael. The District Court heard testimony on this motion and on June 5, 2000, the court issued an order directing DPHHS not to place the children pending a final hearing. Pursuant to an order of the District Court, the transcript and exhibits from the hearing on the guardian ad litem's motion are included in the record now before us.

Issue 1.

¶ 17 Whether the District Court properly admitted the hearsay statement of S.M.

¶ 18 We review a trial court's evidentiary rulings to determine if the court abused its discretion. In the Matter of A.N. and C.N., 2000 MT 35, ¶ 22, 298 Mont. 237, ¶ 22, 995 P.2d 427, ¶ 22 (citing Inquiry into M.M. (1995), 274 Mont. 166, 169, 906 P.2d 675, 677). We will not reverse a court's evidentiary rulings absent a manifest abuse of that discretion. A.N., ¶ 22.

¶ 19 When testifying about Michelle's failure to protect S.M. from abuse, social worker Jerri Tate mentioned an incident that occurred in August 1998. S.M. was in the custody of DPHHS and Michelle had scheduled visitation. At one visit, Michelle brought Gerald and a person she introduced as her brother. Tate knew Michelle did not have a brother. When Tate confronted Michelle with this information, Michelle admitted that the person was actually Gerald's brother. Tate asked Gerald and his brother to leave before S.M. and P.L.M. arrived for their visit. The two men left the building, but remained in a car parked outside. When S.M. and her foster mother walked by, Gerald said hello to S.M. Tate testified that this frightened S.M. and when asked how she knew S.M. was frightened, Tate replied, "[b]ecause she stated she was."

¶ 20 Michelle's counsel objected arguing that the statement was hearsay and should be stricken from the record. The District Court overruled the objection. Tate was then asked:

Q: Did you see any behavior that indicated [S.M.] was frightened?

A: Yes, she was hanging onto the foster mother's arm very, very close to her at the side of her body with a very frightened look in her eyes.

Defense counsel did not object to Tate's observations of S.M.'s appearance and behavior.

¶ 21 Michelle now argues on appeal that S.M.'s statement is inadmissible hearsay because she was not testifying before the District Court. Michelle relies on State v. Campbell (1978), 176 Mont. 525, 579 P.2d 1231, wherein this Court determined that the trial court committed reversible error when it allowed Head Start teachers and a police officer to testify to statements made by a four year old to her teachers that the defendant had beaten her and her sister with a wooden plunger. We held in that case that these statements were offered to prove the truth of the matter asserted and were therefore hearsay. Campbell, 176 Mont. at 528, 579 P.2d at 1233.

¶ 22 However, unlike the...