T. Y. K., Matter of
| Decision Date | 09 August 1979 |
| Docket Number | No. 14547,14547 |
| Citation | 183 Mont. 91,598 P.2d 593 |
| Parties | In the Matter of Declaring T. Y. K. and D. A. W. R., youths in need of care. |
| Court | Montana Supreme Court |
Robert B. Allison, Kalispell, for appellant.
Randy K. Schwickert, Patrick D. Sherlock, Kalispell, for respondent.
This is an appeal by the parents of three minor children from a judgment of the District Court, Flathead County, the Honorable Robert C. Sykes presiding. Permanent custody of two of the minor children, T. K. and D. R., with right to consent to adoption was awarded to the Department of Social and Rehabilitation Services (SRS) of the State of Montana.
On March 31, 1977, D. R. suffered an oblique fracture of the right mid-femoral shaft, the large bone connecting the hip to the knee. At the time of this injury, D. R. was five and one-half weeks old. The mother immediately took the child to the hospital and the leg was placed in a cast. On October 7, 1977, D. R. suffered a spiral fracture of the humerus, the large bone between the shoulder and the elbow. He was again taken to the hospital for treatment. Both injuries occurred in the parents' home with no one present other than D. R., T. K. and the parents.
On Friday, October 7, 1977, representatives of the Flathead County sheriff's department and welfare department removed both children from the parents and placed them in foster care pending an investigation.
On Tuesday, October 11, 1977, the Flathead County attorney filed a petition for temporary investigative authority and protective services, and an order was issued on October 13, 1977, granting the same.
Early in the investigation the parents requested a polygraph examination. On October 28, 1977, the parents and their attorney stipulated and agreed with the deputy county attorney to submit to polygraph examinations and psychological stress evaluation tests. There was a further stipulation that the results of said tests could be entered into evidence by either party in this matter. All tests were conducted in accordance with the stipulation.
On March 31, 1978, permanent custody was requested. A hearing was held on June 1 and 2, 1978, by the court sitting without a jury. Notice of the hearing by publication was given to T. K.'s natural father, E. V., on April 17, 24, and May 1, 1978. He failed to appear at the hearing and was defaulted.
The court issued its findings of fact and conclusions of law on June 21, 1978, stating in part: (a) that E. V. is unfit to have the care, custody or control of T. K. and that his rights as a parent should be terminated; (b) that the explanation of the parents of how the fractures were sustained by D. R. are contrary to and against any credible version of the cause of said fractures; (c) that the battered child syndrome doctrine of evidence applies and by reason thereof, by reasonable medical certainty, the fractures were sustained by traumatic blows caused by the father; (d) that the percentile in weight of both children at the time of foster care placement and the improvement of both children after foster home placement establishes emotional and physical damage to both children while in the custody of the parents; (e) that the children are of adoptable age and have sustained physical and emotional damage; (f) that the parents have abused and neglected D. R. and T. K., and are not fit and proper to have the care and custody of these children, and that their parental rights should be permanently terminated; (g) that as a result of the abuse and neglect, these children are youths in need of care and the custody of these children should be permanently awarded to the Welfare Department with the right to consent to their adoption.
On June 26, 1978, the court issued its judgment and an order permanently awarding the care, custody and control of the minor children to the Department of Social and Rehabilitation Services of the State of Montana with authority to consent to their adoption.
On July 6, 1978, the parents filed their motion to amend the findings and conclusions or a motion for a new trial on a number of grounds. All motions were denied by the court. The parents appeal from the judgment of the trial court.
The following issues are before the Court:
(1) Was the filing of the petition for temporary investigative authority and protective services prejudicial to the parents' rights?
(2) Did the District Court err in awarding permanant custody of the children to the Montana Department of Social and Rehabilitation Services? In so ordering, did the court comply with policies set forth in section 41-3-101 et seq., MCA?
(3) Was the admission of the results of a polygraph examination taken by stipulation of the parties proper?
The October 11, 1977, filing of the petition for temporary investigative authority and protective services was timely and proper. Section 41-3-301(2), MCA, provides: "a petition shall be filed within 48 hours of emergency placement of a child . . ." Here, the petition was filed on a Tuesday although the children were removed on the preceding Friday. Rule 6(a), M.R.Civ.P., states: "When the period of time prescribed or allowed is less than 7 days, intermediate Saturdays, Sundays and holidays shall be excluded in the computation." Using this formula, the Department filed the petition within the 48-hour limitation. Therefore, the parents' objection is without merit.
We next consider the District Court order of June 26, 1978, declaring both children to be abused and neglected and awarding permanent custody of the children to SRS. We have discussed at length in many recent decisions the presumptions that the District Court is presumed to have acted correctly...
To continue reading
Request your trial
- In the Interest of K.B. v. N.M.
- Appeal in Cochise County Juvenile Action No. 5666-J, Matter of
- Welfare of J.W., Matter of
- C.A.R., Matter of