LEE R. KERR

ROSEBUD COUNTY ATTORNEY

Rosebud County Courthouse

P.O. Box 69

Forsyth, MT 59327

(406) 356-2236

MONTANA SIXTEENTH JUDICIAL DISTRICT COURT, ROSEBUD COUNTY

* * * * * * * * * * * *

IN THE MATTER OF ) CAUSE NO. DN 96 - 19

)

KYLE PEDERSON, ) TEMPORARY LEGAL CUSTODY

) POINTS AND AUTHORITIES

YOUTH IN NEED OF CARE )

The following points and authorities address the issues contained herein:

1. Temporary Legal Custody generally, p.1

2. The Adjudicatory Hearing, p.3

3. The Dispositional Hearing, p.5

4. Temporary Legal Custody Disposition, p.7

5. Matters submitted with petition, p.9

6. Effect of expiration of Temporary Legal Custody order, p.9

7. Mental condition of parent, p.10

8. Continuing court jurisdiction throughout custody hearing, p.10

9. Presence of hearsay not error, p.11

10. Adjudicatory and dispositional hearing may be combined, without notice, p.11

11. Scope of review, p.12

12. Long term temporary custody proper, p.12

13. Youth court jurisdiction concurrent with district court, p.13

Temporary Legal Custody

The State has petitioned for termination of parental rights and permanent custody. The State is now independently petitioning for temporary legal custody of the child beyond the time period necessary to address the issues of termination of parental rights and permanent custody. The child is in need of care, and continued temporary legal custody is necessary for an indefinite period, if parental rights are not terminated or permanent custody is not granted as a result of further proceedings.

Section 41-3-401, MCA, sets forth requirements for petitions for temporary legal custody and permanent custody. Unlike the temporary investigative authority, these remedies seek changes in the legal status of the child and alter the normal parent-child legal relationship. The request for temporary or permanent custody may, and frequently does, follow the failure of the child’s situation to improve during the period of temporary investigative authority obtained under the same statute. Section 41-3-401(10)(d), MCA, allows any combination of relief -- TIA, temporary or permanent custody -- as “may be required for thechild’s best interest.”

The Court in Matter of J.W. and J.C., 736 P.2d 860, 44 St. Rptr. 843, clarified a matter made confusing by the legislature. Prior to 1985, Section 41-3-401(13), MCA, stated that section did not apply to a petition for temporary investigative authority and protective services despite the fact that Section 41-3-401(10)(a), MCA, stated that a TIA was among the relief a person could request in an abuse, neglect, and dependency petition. In the 1985 Legislative Session, the language in (13) was removed. In Matter of J.W. and J.C., the mother alleged that the court had erred in granting a TIA under Sections 41-3-402 and 403, MCA, without holding an adjudicatory hearing under Section 41-3-406, MCA. The Court, however, ruled that show cause hearing under Section 41-3-403, MCA, was all that was required for a TIA.

Thus, to obtain a TIA, petition must be filed under Section 41-3-402, MCA, with a show cause hearing held pursuant to Section 41-3-403, MCA. It is short-term, temporary preventive remedy. On the other hand, to obtain the more long-term relief associated with a finding of abuse, neglect, or dependency, a petition under Section 41-3-401, MCA, must be filed, followed by an adjudicatory hearing under Section 41-3-404, MCA.

The Adjudicatory Hearing

The adjudicatory hearing is a fact-finding hearing designed to determine whether the child is a youth in need of care within the meaning of the statutes. Section 41-3-404(2),MCA prescribes that the court shall hear evidence regarding the residence of the youth, the whereabouts of the parents, guardian or nearest adult relative and any other matters relevant to determining the status of the youth. Adjudicatory hearings are given preference by the court in setting hearing dates. [Section 41-3-401(2), MCA].

The State has alleged in the petition, and shall prove at the adjudicatory hearing, those facts which establish that the child is abused, neglected or dependent within the meaning of the statutes. If, after presentation of the evidence the court finds that the child is not abused, neglected or dependent, the petition shall be dismissed and any protective order previously issued by the court shall also be dismissed. [Section 413404(4)(a), MCA]

Federal statutes governing the expenditure of federal funds for foster care services for abused, dependent or neglected children require that the court must make certain judicial determinations before federal funds may be sued for foster care. First, the court must find that removal from the home is necessary because continuation in the home would be contrary to the welfare of the child. Second, the court must find that, prior to placement, the state has made reasonable efforts to prevent the need for removal. [42 U.S.C. 672 (1) 1989]. Because the State of Montana relies heavily upon federal funding for the payment of foster care costs for abused and neglected children, the state urges that judicial findings arecontained in all orders in dependency and neglect cases involving foster care, to assure adequate funding for the child’s foster care.

If the court determines that, based upon the evidence presented, the child is abused, dependent or neglected, the court shall set a date for a dispositional hearing to be held within 30 days. Section 41-3-404(4)(b), MCA. The court may also order any necessary or required investigations. Where necessary, the court may issues a temporary dispositional order pending the dispositional hearing. This temporary dispositional order is necessary where the child remains in protective care outside the home and may provide for the same kinds of relief allowed in an emergency protective services order under Section 41-3-403(2), MCA.

The adjudication of the child as a youth in need of care justifies the further state intervention which may be necessary to protect the child and to remedy the conditions which may cause future harm to the child. After adjudication, the court assumes jurisdiction over the child for purposes of determining what disposition shall serve the best interests of the child.

The Dispositional Hearing

At the adjudicatory hearing, the essential facts that establish that the child is abused, dependent or neglected will be presented. Upon finding the child a youth in need of care, the court will hold a dispositional hearing for the purpose ofdetermining the appropriate course of treatment and/or proposed disposition which will serve the best interest of the child involved. The dispositional hearing must be conducted within 30 days after the adjudication of the child as a youth in need of care. [Section 41-3-404(2)(b), MCA.] The statutes clearly contemplate separate adjudicatory and dispositional hearings. However, Section 41-3-607(1) MCA, dealing with termination, makes it clear that the adjudicatory hearing and dispositional hearings can be held simultaneously and many county attorneys and courts do just that. The Supreme Court has affirmed this in the case of Custody of R.A.D., 753 P.2d 862, 44 St. Rptr. 2018 (1987), going so far as to state that specific notice that the hearings will be combined is not required.

Section 41-3-406, MCA sets forth the dispositional options available to protect the welfare of the child. Under this section, the court may:

1. Permit the youth to remain with his parents or guardian subject to those conditions and limitations the court may prescribe.

2. Grant an order of limited emancipation of a youth who is 16 years of age or older, as allowed at Section 41-3-408, MCA;

3. Transfer legal custody to any of the following:

a) Department of Family Services;

b) a child-placing agency willing and able to assume responsibility for education, care, and maintenance of the youth and which is licensed or otherwise authorized by law to receive and provide care of the youth; or

c) a relative or other individual who, after study by a social service agency designated by the court, is found by the court to be qualified to receive and care for the youth;

4. Order any party to the action to do what is necessary to give effect to the final disposition, including undertaking medical and psychological evaluations, treatment, and counseling;

5. Order such further care and treatment as the court may deem in the best interest of the youth.

At the dispositional hearing, the county attorney will present the court with the results of the investigation and an assessment of the family’s problems and needs as determined by the social worker’s involvement with the family. Based on this investigation and assessment, the county attorney will present the treatment recommendations for the family, and the proposed disposition which best serves the interest of the child, in support of the request for temporary legal custody to the Department.

Temporary Legal Custody Disposition

As described above, one of the dispositional options available to the court after a child has been adjudicated a youth in need of care is to transfer temporary legal custody of thechild to DFS, although temporary legal custody has already been granted in this case, the state is requesting an additional six (6) month temporary legal custody for six (6) months from the date of hearing, to place the two children covered by this order and DN 96-19, to have the same custody period, for judicial economy. The court’s decision should be supported by the specific factual findings and should incorporate a treatment plan, prepared by the social worker.

Unlike the TIA, the remedy of temporary legal custody changes the legal status of the parent-child relationship. Temporary legal custody allows DFS greater authority to work with the parents in an attempt to improve the child’s condition. In the case of Matter of C.G., 747 P.2d 1369, 45 St. Rptr. 63, (1988), the court affirmed an order granting temporary custody to DFS until the child turned 18 (approximately eight years). While such a long period may be unusual, the court was careful to differentiate between such long-term temporary custody -- allowing the parents frequent visitation and even the possibility of reinstating the physical custody with the parents -- and termination.

In short, by obtaining temporary legal custody, DFS can outline the treatment necessary for the family, obtain specified treatment for the child’s needs, monitor the family’s progress in reaching treatment goals, and provide continued protection for the child. The ultimate goal of treatment plans is to work toward reunifications of the family.

It should be noted that temporary legal custody is meant to be a temporary remedy used to address those problems which initially endangered the child. Where it appears that the treatment objectives for the family are not being followed or are not going to lead to the successful reunification of the family within a reasonable amount of time, it may be necessary to pursue further legal action to provide for a permanent placement for the child, if that proves to be in the best interest of the child. The State has done so by the present pending petition to terminate parental rights, and is seeking permanent custody.

Matter submitted with Petition:

In In re M.R.,J.F., & R.W., the Department of Social and Rehabilitation Services (SRS) (now Department of Family Services) first had contact with the mother of three minor children in 1967. During the period from 1976 through 1981, SRS received numerous complaints alleging abuse and neglect of the children. In 1981, proceedings were begun to terminate the mother’s parental rights. The mother contended that the submissions of a social worker’s report to court, along with the petition for permanent custody, was error. The Supreme Court held that where the report contained information essentially the same as that testified to by the author, who was cross-examined at the hearing, there is a presumption that the trial court has disregarded all inadmissible material in making its decision. The decision of the lower court was upheld. In In re M.R., J.F., & R.W., 201 M 277, 653 P2d 1205, 39 St. Rep. 2103 (1982).

Expiration of Temporary Custody Order -- No Effect on Jurisdiction:

In In re W.L., C.L., & B.K., at the time that the Department of Family Services filed a petition for temporary investigative authority, the mother and her children were not living on the reservation. Subsequently, the mother moved back to the reservation and sought to have the action transferred to the tribal court. The mother argued that the District Court had lost jurisdiction over the matter when its order of temporary custody expired. The Supreme Court ruled that the child abuse and neglect statutes do not make provisions for the expiration of custody in the state or for the loss of jurisdiction by the court, other than by finding by the court that the children are not in danger of being abused or neglected and by vacating any order made pursuant to 41-3-403. In In re W.L., C.L., & B.K., 260 M 325, 859 P2d 1019, 50 St. Rep. 1081 (1993).

Mental Condition of Parent as Sole Factor:

In In re L.F.G. , when the District Court considered the best interest of a child only after first determining that the child was in fact abused or neglected, it met the required standard. Considering the mental condition of the mother as the primary if not the sole factor, but having evidence that the child would not receive even minimally satisfactory maternal care and would be exposed to extremely high chances of developing a mental condition similar to that of the mother, sufficient credible evidence was before the District court to support theDistrict Court’s decision that the child was a youth in need of care. The Supreme Court rejected the view that mental condition of a parent could not be the sole factor supporting a severance of parental rights. In In re L.F.G., 183 M 239, 598 P2d 1125 (1979).

Continuing Court Jurisdiction Throughout Custody Hearings:

In In re H.D., the father contended that, once granted, investigative authority and protective services granted to the Department of Family Services cannot be continued by further order of the District Court. However, the statute permits the court to grant relief as may be required in the best interest of the youth, including the power to make continuing relief as may be required in the best interest of the youth, including the power to make continuing arrangements for the youth’s protection. In In re H.D., 256 M 70, 844 P2d 114, 49 St. Rep. 1141 (1992).

Mere Presence of Hearsay Evidence in Court File Not Reversible Error:

In In re M.L.H., H.M.H., & R.H., the presence in the court file of statements not supported by testimony is not a violation of due process or error when: (1) the authors of the reports did testify and were subject to cross-examination; (2) no evidence was presented to rebut the presumption that any hearsay within the reports themselves was disregarded by the District Court; and (3) the court explicitly asked its findings upon the testimony of the witnesses and upon the reports of only those whotestified. In In re M.L.H., H.M.H., & R.H., 220 M 288, 715 P2d 32, 43 St. Rep. 375 (1986)

Adjudicatory and Dispositional Hearing Combined --Notice Not Required,

In Custody of R.A.D. & J.D., parental rights may be terminated at a dispositional hearing under 41-3-406 and 413607. The dispositional hearing was combined with an adjudicatory hearing under this section, and no specific notice of the combination was required. Custody of R.A.D., 44 St. Rep. 2018 (1987). Opinion withdrawn but issue affirmed in Custody of R.A.D. & J.D., 231 M 143, 753 P2d 862, 45 St. Rep. 496 (1988).

Scope of Review:

In In re G., the findings of the District Court in an abuse or neglect action enjoy a presumption of correctness and will not overturned unless unsupported by credible evidence that would amount to a clear abuse of discretion. In In re C.M.S., A Dependent and Neglected Child, 187 M 115, 609 P2d 240 (1979), following In re G., Youth in Need of Care, 174 M 321, 570 P2d 1110 (1977).

Grant of Long-Term Custody Proper:

In In re B.N. and T.N., findings of Abuse and Neglect: Upon motion by the state to terminate parental rights, the District Court ordered that the “parental custodial rights of [mother, father, and stepfather] in and to the youths [B.N. and T.N.], and to their property, are hereby terminated.” Under the authority of the state, the court then awarded permanent legalcustody to the Department of family Services and gave the Department the right to place the children in foster care. The court also awarded supervised visitation rights to the parents and grandparents -- an award inconsistent with termination of parental rights. The record clearly showed that neither the state nor the court intended to fully sever parental rights, even though the order used the words “terminated” and “permanent custody”. On appeal, the Supreme Court found that the District Court intended to grant the state long-term custody, substantiated by a 10 year history of family turmoil resulting in abuse and neglect of the children, and that placement of the children in foster care was appropriate. In re B.N. & T.N., 245 M 511, 802 P2d 1244, 47 St. Rep. 2225 (1990). See also In re A.H., T.H., & J.A.H., 46 St Rep 395 (1989).

Youth Court Jurisdiction Concurrent with District Court:

In In re C.C., the Youth Court has concurrent jurisdiction with the District Court over all youths who are within the state for any purpose. Upon the petition for temporary custody filed by the Department of Social and Rehabilitation Services (now Department of Family Services), the Youth Court had the authority to determine that the child in question was a youth in need of care, to remove her from her mother’s abusive home, and, following a dispositional hearing, to place her in the custody of her natural father. In re C.C., 237 M 246, 772 P2d 857, 46 St. Rep. 773 (1989).

Further, in In re M.M., the District Court did not abuse its discretion is awarding custody of a child to his father after the parents, while still married, surrendered temporary custody to the Department of Social and Rehabilitation Services (now Department of Family Services) because of the actions of the mother. Subsequent to the surrender of the child but prior to the award of custody, the couple were divorced. The District Court was correct in continuing with the abuse and neglect custody proceeding rather than dismissing it and allowing custody to be determined in the couples divorce action. Once a determination of abuse and neglect has been made, the court proceeds to a dispositional hearing to determine the custody of the child. There was substantial evidence that the father was stable and non-abusive and the mother had potential for further abuse. In re M.M., 200 M 244, 650 P2d 784, 39 St. Rep. 1716 (1982)

Respectfully submitted this day of March, 1997.

LEE R. KERR

ROSEBUD COUNTY ATTORNEY