In re Declaring S.P.

786 P.2d 642, 241 Mont. 190, 47 State Rptr. 190, 1990 Mont. LEXIS 34
CourtMontana Supreme Court
DecidedFebruary 1, 1990
DocketNo. 88-571
StatusPublished
Cited by35 cases

This text of 786 P.2d 642 (In re Declaring S.P.) 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 Declaring S.P., 786 P.2d 642, 241 Mont. 190, 47 State Rptr. 190, 1990 Mont. LEXIS 34 (Mo. 1990).

Opinion

JUSTICE HARRISON

delivered the Opinion of the Court.

This matter comes to us on appeal from a Missoula County District Court decision in which the parental rights of the natural father, C.M. were terminated. After finding H.M., J.M., Y.M., and K.M., youths in need of care, Judge Wheelis in his August 31, 1988 order, declared the parent-child relationship between C.M. and his four small children terminated, awarding permanent custody to the Department of Family Services (Department). The children were ordered permanently placed with foster parents J.K. and N.K. The Department, in consultation with the Ks and the children’s Guardian Ad Litem, was granted the right to supervise or restrict contact between the children and C.M. and other relatives.

The maternal grandmother, B.N., also appeals the District Court order. She alleges that the District Court abused its discretion when it awarded permanent custody to the Ks rather than herself.

We find the District Court’s order to be in the best interests of the children and, therefore, we affirm.

C.M., the natural father, presents two issues;

1. Did the District Court have subject matter jurisdiction to declare the M children dependent youths within the meaning of Montana’s child abuse, neglect and dependency statutes?

2. Do the best interests of the M children require termination of C.M.’s parental rights?

B.N., the maternal grandmother, presents three additional issues:

1. Did the District Court abuse its discretion in not awarding permanent custody to the maternal grandmother?

2. Should § 41-3-406, MCA, be interpreted to give relatives priority over non-relatives in custody proceedings?

3. Does permanent placement with concomitant governmental support of the Ks as foster parents violate the First Amendment to the United States Constitution?

The natural mother, D, was first married to J.P., by whom she had a daughter, S.P. and a son, C.P. After divorcing her first husband, D [193]*193married C.M. and the couple had the four children at issue in this case: H.M., J.M., Y,M. and K.M. During this marriage C.M. was convicted of sexually abusing D.’s daughter from her first marriage. C.M. served over two years in the Oregon State Penitentiary for that crime. D subsequently divorced C.M. and began living with J.S. It is not clear from the record whether D. and J.S. were actually married.

J.S. and D and her six children from her two previous marriages eventually moved to Missoula, Montana. On or about October 24, 1986, D was killed and J.S. later confessed to murdering her.

The State, through the Department, placed the four M children in a Missoula receiving home since their natural father was in prison, their natural mother was dead, and their stepfather had confessed to murdering her. The two older children, S.P. and C.P., were eventually returned to their natural father, J.P., in California.

As is the normal procedure, the Department began legal proceedings to obtain temporary investigatory authority (TIA) and protective services. At the first hearing held in mid-November, 1986, the Department orally moved to amend the TIA, asking that the children be declared youths in need of care and that the Department be given temporary legal custody. Several parties were represented: Montana Social and Rehabilitative Services (whose interests in the case were assumed by the newly created Department of Family Services as of July 1, 1987) requested temporary investigative authority for the purpose of determining immediate temporary disposition and eventual permanent placement of the four M children; an attorney acting as the children’s Guardian Ad Litem; B.N., the maternal grandmother from Arkansas requesting custody of the four M children; J.K. and N.K., of Florence, Montana, interested parties and friends of the deceased mother, D, requesting custody of the four M children; J.S.R., C.M.’s mother and the children’s paternal grandmother from Missouri, also requesting custody; C.M., the children’s natural father who came from Oregon to ensure his parental rights continued; and J.S. the stepfather. Later, D’s sister and the children’s aunt, J.R., also sought custody, but eventually joined in asking that her mother, B.N. (maternal grandmother), be given the children.

Following the November 1986 hearing, Judge Wheelis declared the four M children to be youths in need of care and temporarily placed the children with the Ks.

On August 18 and November 13, 1987, the court held a separate hearing in order to put a treatment plan in place for C.M. In accor[194]*194dance with Part 6, Chapter 3 of Title 41, regarding termination of the parent-child legal relationship, the treatment plan for C.M. was approved by the court. C.M. began but did not finish Phase I of the treatment plan.

After the final hearing held in June and July of 1988, permanent custody of the children was given to the Department, permanent placement granted to the Ks, and C.M.’s parental rights terminated in an August 1988 order. These determinations resulted from five days of hearings with testimony from many witnesses, ranging from medical experts to the parties themselves, and a plethora of exhibits.

Of the several parties only two appeal. C.M. appeals that part of the order terminating his parental rights and the maternal grandmother appeals the fact she was awarded neither permanent custody nor permanent placement of the children. Additional facts will be discussed as necessary.

STANDARD OF REVIEW

The same standard of review applies to both termination of parental rights and custodial determinations. In both instances the District Court’s decision is afforded “all reasonable presumptions as to the correctness of the determination” and therefore such decision will not be disturbed on appeal “unless there is a mistake of law or a finding of fact not supported by substantial credible evidence that would amount to a clear abuse of discretion.” In the Matter of R.A.D. (Mont. 1988), [231 Mont. 143,] 753 P.2d 862, 865, 45 St.Rep. 496, 499.

Thus, regarding both C.M.’s parental rights’ claims and the maternal grandmother’s custody objections, we apply the same standard of review. That is, we presume the District Court’s determinations on both matters to be correct, unless such determinations are not supported by credible evidence.

ISSUE I: Subject matter jurisdiction

C.M. contends that the District Court did not have subject matter jurisdiction to declare the M children dependent youths within the meaning of the child abuse, neglect and dependency statutes. These statutes are found in Chapter 3 of Title 41, MCA.

C.M. bases his argument on the fact that certain procedural irregu[195]*195larities occurred. Initially, C.M. appeared pro se, and the District Court denied his request for a court-appointed attorney. At this preliminary hearing held November 14 through November 19, 1986, the Department requested temporary investigative authority and a determination of temporary disposition of the M children. On the second day of the November, 1986, hearings, the District court permitted the Department to amend the pleadings.

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Bluebook (online)
786 P.2d 642, 241 Mont. 190, 47 State Rptr. 190, 1990 Mont. LEXIS 34, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-declaring-sp-mont-1990.