In re A.N.S.

828 P.2d 1357, 252 Mont. 279, 49 State Rptr. 250, 1992 Mont. LEXIS 74
CourtMontana Supreme Court
DecidedMarch 24, 1992
DocketNo. 91-168
StatusPublished
Cited by1 cases

This text of 828 P.2d 1357 (In re A.N.S.) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re A.N.S., 828 P.2d 1357, 252 Mont. 279, 49 State Rptr. 250, 1992 Mont. LEXIS 74 (Mo. 1992).

Opinion

CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

M.M. (Mother) appeals the findings of fact, conclusions of law and judgment of the Thirteenth Judicial District, Yellowstone County, terminating her parental rights to her children, A.N.S. and L.M.R. We affirm.

We rephrase the issues presented on appeal as follows:

1. Did the District Court lack jurisdiction to terminate Mother’s parental rights?

2. Did the District Court abuse its discretion in denying Mother’s motion to dismiss?

3. Were the District Court’s findings of fact, conclusions of law, and the judgment supported by clear and convincing evidence?

Mother is the natural mother of three children: L.M., bom October 29, 1983; A.N.S., bom November 19, 1987; and L.M.R., born March 16, 1989. The natural father of L.M. is unknown. L.S. is the natural father of A.N.S. and is incarcerated at Montana State Prison. M.R. is the natural father of L.M.R.

Mother suffers from a chronic schizophrenia, undifferentiated type, and a borderline personality disorder. Her mental illness causes her to suffer paranoia and active hallucinations. On August 19,1985, the District Court terminated Mother’s parental rights to L.M. after finding 1) L.M. to be a youth in need of care under § 41-3-102, MCA, 2) Mother incapable of adhering to any proposed treatment plan, and 3) Mother unfit and unable to provide adequate parental care to L.M. [281]*281with her conduct and condition unlikely to change in a reasonable amount of time. In the Matter of L.M., Thirteenth Judicial District Court, Yellowstone County, Cause No. DJ-85-007 (1985).

A.N.S. and L.M.R. have been under protective custody of Montana Department of Family Services since their births. A.N.S. was placed in foster care and L.M.R. was placed with his father, M.R. Besides periodic visits, A.N.S. has never been in Mother’s custody. L.M.R has never lived with Mother.

From 1984 to 1989, Department of Family Services and other agencies attempted to assist Mother in developing parenting skills with minimal success. Mother’s conduct and condition continued to render her unable to provide adequate parenting skills.

On May 24,1989, a deputy county attorney, on behalf of Montana Department of Family Services, petitioned the District Court for permanent legal custody and termination of Mother’s parental rights to A.N.S. and temporary legal custody and termination of mother’s parental rights to L.M.R. On July 10, 1990, the District Court terminated Mother’s rights to A.N.S. and L.M.R. From this order, Mother appeals.

1. Did the District Court lack jurisdiction to terminate Mother’s parental rights?

Mother argues that § 41-3-607(1), MCA, which provides that a dispositional hearing on termination of parental rights be held within 180 days of the filing of the petition, mandates that a petition be dismissed if a hearing is not held within the prescribed time. Here, the petition was filed May 24,1989. The case was assigned to District Court Judge Barz. Thereafter, Judge Barz was appointed to the Montana Supreme Court. Judge Colberg was appointed as a judge to the Thirteenth Judicial District on November 13,1989. On November 30, 1989, Judge Colberg scheduled a dispositional hearing in this matter for February 14, 1990. Thereafter, Mother moved for a continuance but reserved her rights to assert all defects arising due to the lapse of time period. This matter was then heard on March 20 and 21,1990.

The 1985 Montana Legislature amended § 41-3-607(1), MCA, as shown by the underlined portion which follows:

The termination of a parent-child legal relationship shall be considered only after the filing of a petition pursuant to 41-3-401 alleging the factual grounds for termination. Termination of a parent-child legal relationship shall be considered at a dispositional hearing held pursuant to 41-3-406, following or [282]*282together with an adjudicatory hearing held pursuant to 41-3-404, within 180 days after the filing of the petition.

See, 1985 Mont. Laws, Ch. 388. The Legislature’s intent was to give added protection to children who are the subjects of abuse, neglect, and dependency by encouraging those cases to be handled in a reasonably prompt manner. Nothing in the legislative history of this amendment suggests that the Legislature intended that an action be dismissed when a dispositional hearing is not held within the 180-day time frame or that the amendment was intended to provide a statute of limitation protection for the parents of children who are alleged to be abused, neglected, or dependent.

Mother further argues that the word “shall” in this statute mandates dismissal of this action if the 180-day time limitation is not met. While the word “shall” in a statute is oftentimes mandatory, other factors must be considered to determine a statute’s mandatory or directive effect when a time limitation is involved.

In State v. Nelson (Kan. 1968), 436 P.2d 885, cert. denied, 392 U.S. 915, the court considered a similar challenge to a court’s jurisdiction, wherein a criminal defendant sought discharge from incarceration when the court did not impose sentence within five days of the court’s denial of his motion for a new trial. The court held:

Provisions intended to secure order, system and dispatch in the mode of proceeding by public officials, and by a disregard of which parties cannot be injuriously affected, are not regarded as mandatory unless accompanied by negative words importing the acts required shall not be done in any other manner or time than that designated. [Citations omitted.]

Nelson, 436 P.2d at 887.

The same reasoning was enunciated in Wyoming State Treasurer v. City of Casper (Wyo. 1976), 551 P.2d 687, wherein the court held:

It is a universal holding that a statute specifying a time within which a public officer is to perform an official act regarding the rights and duties of others is directory, unless the nature of the act to be performed, or the phraseology of the statute is such that the designation of time must be considered as a limitation of the power of the officer. [Citations omitted.]
Another aid to construction is in the rule that an affirmative statutory provision relating to the time of performing official acts, unlimited or unqualified by negative words, is generally [283]*283considered as directory rather than mandatory. [Citations omitted.]

City of Casper, 551 P.2d at 698-99.

In Wilson v. Brodie (1966), 148 Mont. 235,419 P.2d 306, this Court considered whether a justice court lost jurisdiction to enter sentence when the sentencing did not meet the statutory requirement that it occur “not more than two days nor less than six hours after the verdict is rendered.” Although deciding the case on other grounds, this Court stated:

Even if the sentencing, arguendo, was imposed irregularly it is still valid for the purpose of determining whether the justice was acting within his jurisdiction.

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Bluebook (online)
828 P.2d 1357, 252 Mont. 279, 49 State Rptr. 250, 1992 Mont. LEXIS 74, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-ans-mont-1992.