R.A.D., Matter of
| Citation | 231 Mont. 143,753 P.2d 862,45 St.Rep. 496 |
| Decision Date | 18 March 1988 |
| Docket Number | No. 86-353,86-353 |
| Parties | In re the Matter of R.A.D. and J.D., Youths in Need of Care. |
| Court | United States State Supreme Court of Montana |
Matteucci & Falcon, Daniel L. Falcon, Patrick F. Flaherty, Great Falls, for appellant.
Mike Greely, Atty. Gen., John Paulson, Asst. Atty. Gen., Helena, Patrick L. Paul, Co. Atty., Barbara Bell, Deputy Co. Atty., E. June Lord, Great Falls, for children.
These appeals arise from a termination of parental rights of E.D. (mother) and R.D. (father) by the District Court of the Eighth Judicial District, Cascade County, and awarding to the Department of Social and Rehabilitation Services permanent custody of the youths, R.A.D. and J.D., with the authority to consent to adoption. Defendants-appellants, natural parents of the youths, each appeal the rulings.
We affirm in part and reverse and remand in part.
The issues we are presented with on this appeal are as follows:
1. Did the District Court abuse its discretion in denying the father's motion to dismiss for reasons of delay and prejudice?
2. Whether the District Court erred in allowing R.A.D. and J.D. to testify as competent witnesses?
3. Whether the District Court abused its discretion in terminating the father's parental rights?
4. Did the District Court err in denying the mother's motion to continue because she could not attend a hearing as she was committed at Warm Springs State Mental Hospital?
A previous history of the mother and father should initially be noted. The two were married in 1978. The mother developed mental problems and was committed numerous times. On November 21, 1983, the father filed a petition for dissolution of marriage. His counsel at the time was Michael Smartt. From 1978 through 1983, the father was largely responsible for raising the children, R.A.D. and J.D., until they were placed in the custody of the Montana Department of Social and Rehabilitation Services (SRS).
On February 1, 1984, the deputy county attorney of Cascade County filed, on behalf of SRS, a petition for temporary investigative authority and protective services and temporary custody of R.A.D. and J.D. The petition alleged that the youths were abused and neglected or in danger of being abused and neglected pursuant to Secs. 41-3-101 and 41-3-102, MCA. An attached affidavit stated that SRS received a referral, sometime in January, that the father had sexually abused his two sons, R.A.D. and J.D. On January 27, 1984, R.A.D. and J.D. told an SRS caseworker, Irene Johnson, that their father had sexual contact with them. The District Court ordered temporary investigative authority and temporary custody of R.A.D. and J.D. to SRS because there was probable cause that the youths were youths in need of care and in immediate or apparent danger of harm. Following a show cause hearing, the court made a specific conclusion of law in an order dated March 12, 1984, that the youths were abused and neglected within the meaning of the statutes. The father was directed to receive a psychological evaluation.
Both children were seen by Dr. Tom Krajacich to whom they related similar stories as they told Johnson. The father was seen by Dr. William Taylor on May 11, 1984, but Taylor did not conduct specific testing to evaluate a sexual abuser because he felt the father did not fit the personality profile of a sexual abuser. At a December 18, 1984 hearing both Krajacich and Johnson stated they believed the children were telling the truth as to the sexual contacts. On December 26, 1984, the District Court issued an order that in the best interests of the youths, the father should be reevaluated by Dr. Phillip Russell of Billings and that "[t]he parties ... agreed to abide by the recommendations of Dr. Russell."
Dr. Russell's evaluation occurred July 16, 1985. His most crucial conclusions are as follows:
1. [The father] is, at least capable of perpetuating the alleged acts. 2. [T]he examiner had the impression that [the father] did not give a candid or honest account of his actual sexual experiences. 3. The statements from the victims in this case were given to competent and experienced professionals and appear to be bonafide reports of sexual abuse and have been substantiated by other behavioral indicators ... It is the examiner's opinion that the sexual abuse reported by [R.A.D. and J.D.] did, in fact, occur and was perpetuated by their father. 4. Due to [the father's] denial of the sexual abuse, he is, by definition untreatable for his sexual deviancy ... and 5. [J.D. and R.A.D.] should not be returned to the custody of their father.
A petition for permanent custody was filed by Cascade Deputy County Attorney Barbara Bell, counsel for SRS on August 26, 1985. From this petition, the court ordered that a hearing be held October 11, 1985. The State was granted a continuance to November 22, 1985 because Dr. Russell was unavailable. The mother, because she was residing at Warm Springs State Hospital at this time and wanted an opportunity to be present and testify, motioned the court for a continuance. In regard to this motion, the District Court stated:
[P]arties stipulate that the hearing set for 11/22/85 $ 9:00 a.m. will go as scheduled, in regard to [the father] only. A hearing as to [the mother] will be held at a later date, due to [the mother] being at Warm Springs State Hospital.
On November 22, 1985, a hearing was held in regard to the permanent custody of the youths limited to their father. Dr. Russell, Dr. Krajacich, Irene Johnson, Helen (Meg) Timblin, foster mother, and R.A.D. and J.D. testified for the State. Pam Tanner, a prior employee of SRS and foster parent who knew the father on a personal basis, testified for the father.
The District Court ordered that another hearing would be held January 6, 1986. After three continuances were granted the mother because her attorney was unavailable due to conflicting criminal trials, the date of the second hearing was set for April 16, 1986. The mother's attorney made a motion for another continuance on April 14, 1986 because the mother was not able to attend the hearing due to her mental condition according to her treating psychiatrist, Dr. Myron Meinhardt. At the April 16, 1986 hearing, the father's attorney made a motion to dismiss the case due to denial of due process. Both motions were denied. At the two-day hearing, the father testified in his own behalf, and a number of witnesses supported his testimony. The State called Dr. Meinhardt and the children's grandmother, Elanor.
On June 5, 1986, the District Court entered its findings of fact, conclusions of law and order permanently terminating parental rights of and giving permanent custody to SRS with the right to consent to adoption. It is from this ruling that these appeals arise.
We have recognized that family integrity is a constitutionally protected interest. Matter of J.L.B. (1979), 182 Mont. 100, 594 P.2d 1127. In J.L.B., we cited the language of the United States Supreme Court case of Stanley v. Illinois (1972), 405 U.S 645, 651, 92 S.Ct. 1208, 1212-1213, 31 L.Ed.2d 551, 558-559:
The Court has frequently emphasized the importance of the family. The rights to conceive and to raise one's children have been deemed "essential", [citation omitted] "basic civil rights of man" [citation omitted] and "[r]ights far more precious ... than property rights", [citation omitted]. "It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder." [Citation omitted.] The integrity of the family unit has found protection in the Due Process Clause of the Fourteenth Amendment, [citation omitted], the Equal Protection Clause of the Fourteenth Amendment [citation omitted], and the Ninth Amendment. [Citation omitted.]
J.L.B., 182 Mont. at 109, 594 P.2d at 1132.
However, the right to maintaining the family unit is not absolute. Absent a clear showing of abuse of discretion by the District Court, we will not reverse.
[T]his Court is mindful that the primary duty of deciding the proper custody of children is the task of the district court. As a result, all reasonable presumptions as to the correctness of the determination by the district court will be made. Foss v. Leifer, 170 Mont. 97, 550 P.2d 1309, 33 St.Rep. 528 (1976). Due to this presumption of correctness, the district court's findings will not be disturbed unless there is a mistake of law or a finding of fact not supported by credible evidence that would amount to a clear abuse of discretion.
Matter of C.A.R. (Mont.1984), 693 P.2d 1214, 1218, 41 St.Rep. 2395, 2398-2399.
The father contends the District Court abused its discretion when it denied (by implication of the order issued June 5, 1986) his motion to dismiss for reasons of delay and prejudice. Granted, a number of motions to continue were allowed in this case, but Sec. 25-4-503, MCA, states that the District Court "[m]ay, in its discretion, postpone a trial or proceeding upon other grounds than the absence of evidence under such conditions as the court may direct." (Emphasis added.) The District Court had the discretion to grant or deny any continuance for justified reasons under the law in Montana.
The father claims that the continuances substantially prejudiced him because the District Court had bifurcated the trial on November 22, 1985 and the hearing was continued as to him only. We find this to be incorrect according to the record. On Monday, November 18, 1985 the following testimony occurred:
Mr. Falcon (Counsel for the father): [I] believe we can stipulate, if the parties will, that the hearing on Friday will be in regards to the State versus [the father's] activities, and will reserve until later all the issues dealing with [the mother].
Ms. Macek (Counsel for the mother): Your Honor, I...
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