No. 02-554
IN THE SUPREME COURT OF THE STATE OF MONTANA
2003 MT 57N
IN THE MATTER OF K.M., Jr.,
Youth In Need of Care.
APPEAL FROM: District Court of the Eighth Judicial District, In and for the County of Cascade, Cause No. CDJ 2002-043-Y(a) The Honorable Thomas M. McKittrick, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Lawrence A. LaFountain, Great Falls, Montana
For Respondent:
Mike McGrath, Montana Attorney General, Ilka Becker, Assistant Attorney General, Helena, Montana; Brant Light, Cascade County Attorney, Great Falls, Montana
Submitted on Briefs: January 16, 2003
Decided: March 27, 2003 Filed:
__________________________________________ Clerk Justice James C. Nelson delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal
Operating Rules, the following decision shall not be cited as precedent. The decision shall
be filed as a public document with the Clerk of the Supreme Court and shall be reported by
case title, Supreme Court cause number, and result to the State Reporter Publishing
Company and to West Group in the quarterly table of noncitable cases issued by this Court.
¶2 Appellant, K.M., Sr., appeals an order of the Eighth Judicial District Court, Cascade
County, finding K.M., Jr., to be a Youth in Need of Care and granting the State of Montana’s
(State) petition for temporary legal custody. We affirm.
¶3 We address the following issue on appeal: Did the District Court err in denying
K.M., Sr.’s motion for continuance based on lack of notice?
I. FACTUAL AND PROCEDURAL BACKGROUND
¶4 K.M., Sr. is the father of K.M., Jr., a boy, and the stepfather of S.H. and B.H., two
girls. During the time period at issue here, K.M., Jr. was nine years old, S.H. was thirteen
years old, and B.H. was twelve years old. On December 12, 2001, the Eighth Judicial
District Court issued a no contact order prohibiting K.M., Sr. from contact with S.H. and
B.H. in part due to evaluations which identified him as both a Level 1 Sex Offender and as
dependent on drugs. On March 3, 2002, S.H. and B.H. were reported missing from foster
care. Two notes left by S.H. indicated that the girls were with K.M., Sr.
¶5 On March 4, a social worker assigned to investigate the disappearance interviewed
2 K.M., Jr. at school. K.M., Jr. indicated that his father was out of town. K.M., Jr. also stated
that his father said they would celebrate his March 3 birthday when he returned. Also on
March 4, K.M., Sr. missed an appointment with a social worker. On March 6, K.M., Sr.
missed an appointment regarding K.M., Jr.’s Individual Education Plan (IEP) at school.
Finally, K.M., Sr. also missed an appointment regarding AFDC payments.
¶6 As part of her investigation, the social worker attempted to locate K.M., Sr. at his
parents’ trailer where K.M., Sr., and K.M. Jr., were apparently living. When she visited the
trailer, no one responded to her knocking. Further, the trailer appeared abandoned and all
the windows were blocked with tin foil. The social worker was eventually able to contact
K.M., Sr.’s parents. They indicated that he left their trailer on March 2, that they were not
concerned about K.M., Sr. leaving, that they had no way of contacting him and that they had
no idea when he would return.
¶7 Based on the information discovered as a result of S.H. and B.H.’s disappearance,
K.M., Jr. was removed from the care of K.M., Sr.’s parents on March 7. On March 12, the
Department of Health and Human Services (DPHHS) filed a Petition for Emergency
Protective Services, Adjudication as Youth in Need of Care, and Temporary Legal Custody
and Request for Service by Publication regarding K.M., Jr. Attached to the petition was an
affidavit of the investigating social worker indicating her findings as discussed above. The
affidavit also noted that by missing the IEP, K.M., Sr. created a serious concern, as federal
law requires both that an IEP be created for special educational needs children and requires
the presence and approval of a legal custodian before an IEP can be conducted.
3 ¶8 On April, 13, K.M., Sr. was detained in the state of Washington while attempting to
return to the United States from Canada. S.H. and B.H. were with him. All three were
ultimately returned to Cascade County.
¶9 On June 26, the court held a hearing regarding the petition filed on behalf of DPHHS.
As part of its case, the State sought to enter testimony from the investigating social worker
regarding her findings on the possible neglect of K.M., Jr. However, K.M., Sr. made a
motion for continuance, asserting that the petition only alleged that K.M., Sr. was unable to
parent K.M., Jr. due to his sex offender status, not any other neglect issues. Therefore,
K.M., Sr. argued that he was not given proper notice of the testimony being offered at the
hearing and that he was entitled to a continuance. The District Court denied his motion and
allowed the State’s testimony.
¶10 Specifically, the social worker testified that she learned K.M., Jr. apparently had no
access to clean drinking water at the trailer. Further, she also learned he seemed to be
extremely surprised at the amount of food available to him in foster care. In addition, the
social worker testified that K.M., Sr.’s parents seemed unconcerned that by virtue of K.M.,
Sr.’s absence, K.M., Jr.’s IEP could not be approved. Finally, she also testified that prior
to the events at issue, she learned that K.M., Jr. often arrived at school unkempt and hungry,
that he was often aggressive, and that he was a grade behind for his age.
¶11 Based on this testimony, the testimony of the principal at K.M., Jr.’s school, and the
testimony of another social worker who was transporting K.M., Jr. for visits with his
grandparents, the District Court granted the State’s petition. K.M., Sr. now appeals.
4 II. STANDARD OF REVIEW
¶12 We review discretionary trial court rulings, such as a ruling on a motion for
continuance, to determine if the court abused its discretion. In re R.F., 2001 MT 199, ¶ 21,
306 Mont. 270, ¶ 21, 32 P.3d 1257, ¶ 21.
III. DISCUSSION
¶13 Did the District Court err in denying K.M., Sr.’s motion for continuance based on lack of notice?
¶14 K.M., Sr. asserts that the District Court erred in denying his motion for continuance
because he was not given the notice required by § 41-3-422(2), MCA. Specifically, he
asserts that the petition regarding K.M., Jr. only mentioned that he was a sex offender, but
did not mention any other grounds upon which the DPHHS could base its case for temporary
legal custody of K.M., Jr.
¶15 The State asserts that K.M., Sr. was given proper notice of the basis for the State’s
case as required by § 41-3-422(2), MCA. Specifically, the State points to language in the
petition and the attached affidavit of the investigating social worker. The State also notes
that K.M., Sr. attached a copy of the affidavit to his brief on appeal that was missing a page
with pertinent language. Based on this discrepancy, the State points out that the complete
affidavit was properly entered in the court record and therefore, K.M., Sr. was on notice of
the entire document because a missing page would have been apparent from a reading of the
document.
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No. 02-554
IN THE SUPREME COURT OF THE STATE OF MONTANA
2003 MT 57N
IN THE MATTER OF K.M., Jr.,
Youth In Need of Care.
APPEAL FROM: District Court of the Eighth Judicial District, In and for the County of Cascade, Cause No. CDJ 2002-043-Y(a) The Honorable Thomas M. McKittrick, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Lawrence A. LaFountain, Great Falls, Montana
For Respondent:
Mike McGrath, Montana Attorney General, Ilka Becker, Assistant Attorney General, Helena, Montana; Brant Light, Cascade County Attorney, Great Falls, Montana
Submitted on Briefs: January 16, 2003
Decided: March 27, 2003 Filed:
__________________________________________ Clerk Justice James C. Nelson delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal
Operating Rules, the following decision shall not be cited as precedent. The decision shall
be filed as a public document with the Clerk of the Supreme Court and shall be reported by
case title, Supreme Court cause number, and result to the State Reporter Publishing
Company and to West Group in the quarterly table of noncitable cases issued by this Court.
¶2 Appellant, K.M., Sr., appeals an order of the Eighth Judicial District Court, Cascade
County, finding K.M., Jr., to be a Youth in Need of Care and granting the State of Montana’s
(State) petition for temporary legal custody. We affirm.
¶3 We address the following issue on appeal: Did the District Court err in denying
K.M., Sr.’s motion for continuance based on lack of notice?
I. FACTUAL AND PROCEDURAL BACKGROUND
¶4 K.M., Sr. is the father of K.M., Jr., a boy, and the stepfather of S.H. and B.H., two
girls. During the time period at issue here, K.M., Jr. was nine years old, S.H. was thirteen
years old, and B.H. was twelve years old. On December 12, 2001, the Eighth Judicial
District Court issued a no contact order prohibiting K.M., Sr. from contact with S.H. and
B.H. in part due to evaluations which identified him as both a Level 1 Sex Offender and as
dependent on drugs. On March 3, 2002, S.H. and B.H. were reported missing from foster
care. Two notes left by S.H. indicated that the girls were with K.M., Sr.
¶5 On March 4, a social worker assigned to investigate the disappearance interviewed
2 K.M., Jr. at school. K.M., Jr. indicated that his father was out of town. K.M., Jr. also stated
that his father said they would celebrate his March 3 birthday when he returned. Also on
March 4, K.M., Sr. missed an appointment with a social worker. On March 6, K.M., Sr.
missed an appointment regarding K.M., Jr.’s Individual Education Plan (IEP) at school.
Finally, K.M., Sr. also missed an appointment regarding AFDC payments.
¶6 As part of her investigation, the social worker attempted to locate K.M., Sr. at his
parents’ trailer where K.M., Sr., and K.M. Jr., were apparently living. When she visited the
trailer, no one responded to her knocking. Further, the trailer appeared abandoned and all
the windows were blocked with tin foil. The social worker was eventually able to contact
K.M., Sr.’s parents. They indicated that he left their trailer on March 2, that they were not
concerned about K.M., Sr. leaving, that they had no way of contacting him and that they had
no idea when he would return.
¶7 Based on the information discovered as a result of S.H. and B.H.’s disappearance,
K.M., Jr. was removed from the care of K.M., Sr.’s parents on March 7. On March 12, the
Department of Health and Human Services (DPHHS) filed a Petition for Emergency
Protective Services, Adjudication as Youth in Need of Care, and Temporary Legal Custody
and Request for Service by Publication regarding K.M., Jr. Attached to the petition was an
affidavit of the investigating social worker indicating her findings as discussed above. The
affidavit also noted that by missing the IEP, K.M., Sr. created a serious concern, as federal
law requires both that an IEP be created for special educational needs children and requires
the presence and approval of a legal custodian before an IEP can be conducted.
3 ¶8 On April, 13, K.M., Sr. was detained in the state of Washington while attempting to
return to the United States from Canada. S.H. and B.H. were with him. All three were
ultimately returned to Cascade County.
¶9 On June 26, the court held a hearing regarding the petition filed on behalf of DPHHS.
As part of its case, the State sought to enter testimony from the investigating social worker
regarding her findings on the possible neglect of K.M., Jr. However, K.M., Sr. made a
motion for continuance, asserting that the petition only alleged that K.M., Sr. was unable to
parent K.M., Jr. due to his sex offender status, not any other neglect issues. Therefore,
K.M., Sr. argued that he was not given proper notice of the testimony being offered at the
hearing and that he was entitled to a continuance. The District Court denied his motion and
allowed the State’s testimony.
¶10 Specifically, the social worker testified that she learned K.M., Jr. apparently had no
access to clean drinking water at the trailer. Further, she also learned he seemed to be
extremely surprised at the amount of food available to him in foster care. In addition, the
social worker testified that K.M., Sr.’s parents seemed unconcerned that by virtue of K.M.,
Sr.’s absence, K.M., Jr.’s IEP could not be approved. Finally, she also testified that prior
to the events at issue, she learned that K.M., Jr. often arrived at school unkempt and hungry,
that he was often aggressive, and that he was a grade behind for his age.
¶11 Based on this testimony, the testimony of the principal at K.M., Jr.’s school, and the
testimony of another social worker who was transporting K.M., Jr. for visits with his
grandparents, the District Court granted the State’s petition. K.M., Sr. now appeals.
4 II. STANDARD OF REVIEW
¶12 We review discretionary trial court rulings, such as a ruling on a motion for
continuance, to determine if the court abused its discretion. In re R.F., 2001 MT 199, ¶ 21,
306 Mont. 270, ¶ 21, 32 P.3d 1257, ¶ 21.
III. DISCUSSION
¶13 Did the District Court err in denying K.M., Sr.’s motion for continuance based on lack of notice?
¶14 K.M., Sr. asserts that the District Court erred in denying his motion for continuance
because he was not given the notice required by § 41-3-422(2), MCA. Specifically, he
asserts that the petition regarding K.M., Jr. only mentioned that he was a sex offender, but
did not mention any other grounds upon which the DPHHS could base its case for temporary
legal custody of K.M., Jr.
¶15 The State asserts that K.M., Sr. was given proper notice of the basis for the State’s
case as required by § 41-3-422(2), MCA. Specifically, the State points to language in the
petition and the attached affidavit of the investigating social worker. The State also notes
that K.M., Sr. attached a copy of the affidavit to his brief on appeal that was missing a page
with pertinent language. Based on this discrepancy, the State points out that the complete
affidavit was properly entered in the court record and therefore, K.M., Sr. was on notice of
the entire document because a missing page would have been apparent from a reading of the
document.
¶16 After reviewing the petition, the affidavit and the court record, we agree with the
5 State. Section 41-3-422(2), MCA, requires a petition to “be accompanied by an affidavit by
the department alleging that the child appears to have been abused or neglected and stating
the basis for the petition.” The basis for the petition at issue here is stated in the petition
under part A., subpart V., entitled “Specific Type of Abuse or Neglect.” The petition states
that the nature of the abuse alleged is “emotional abuse and exposure to unreasonable risk.”
Further, the petition specifically incorporates the social worker’s affidavit.
¶17 The affidavit itself relates the facts as stated above before K.M., Jr. was removed.
Specifically, the affidavit mentions that K.M., Sr. failed to appear for the scheduled meeting
regarding K.M., Jr.’s IEP and failed to appear at other scheduled meetings with a social
worker and at the AFDC office. The affidavit also points out that K.M., Sr. apparently left
without celebrating K.M., Jr.’s birthday and that K.M., Sr. was in violation of a court order
regarding S.H. and B.H.
¶18 Further, it appears from the record that the full affidavit was properly entered. A
reading of the version submitted by K.M., Sr. on appeal, indicates that the full document is
missing from his copy because although page numbers are not included, the sentence on
page three is not continued on page four. Also, the roman numerals used to outline the
document are not consecutive on K.M., Sr.’s copy. Therefore, if K.M., Sr. was not in
possession of the full affidavit, he had a duty to retrieve the complete document as it
appeared in the record. Accordingly, the petition regarding K.M., Jr. complied with § 41-3-
422(2), MCA, and K.M., Sr. was properly notified of the basis for the State’s assertion of
temporary legal custody of K.M., Jr. As a result, the District Court’s denial of K.M., Sr.’s
6 motion for continuance was not error and the court properly allowed the State’s testimony
regarding K.M., Jr.’s emotional abuse and exposure to unreasonable risk.
IV. CONCLUSION
¶19 Because the District Court did not abuse its discretion when it denied K.M., Sr.’s
motion for continuance, we affirm.
/S/ JAMES C. NELSON
We Concur:
/S/ JIM REGNIER /S/ PATRICIA COTTER /S/ W. WILLIAM LEAPHART /S/ JIM RICE