In re A.N.W.
Lead Opinion
delivered the Opinion of the Court.
¶1 J.Q. аppeals from the Eleventh Judicial District Court, Flathead County’s order terminating his parental rights to his daughter, A.N.W., and awarding permanent legal custody, with the right to consent to adoption, to the Montana Department of Public Health and Human Services (Department). We affirm.
¶2 We address the following issues on appeal:
¶3 1. Did District Court Judge Stadler’s action in conducting a show cause hearing and entering an order granting the Department emergency protective services and temporary investigative authority (TIA) after he signed an order recusing himself invalidate the subsequent parental termination proceeding?
¶4 2. Did the District Court afford J.Q. a fundamentally fair procedure when it ended the youth in need of care hearing before J.Q. could cross-examine the CASA volunteer and present two additional witnesses?
¶5 3. Did the District Court’s failure to bifurcate the dispositional hearing from the youth in need of care hearing violate J.Q.’s right to a fundamentally fair process?
¶6 4. Did the District Court improperly consider documented evidence regarding J.Q.’s parole status thаt the Department filed after the termination hearing’s conclusion when the evidence accurately reflected J.Q.’s parole status and confirmed his parole officer’s testimony at the hearing?
¶7 5. Do the Department’s alleged failures to comply with all of the statutory and court imposed deadlines surrounding J.Q.’s treatment plan affect the disposition of the case absent a showing of prejudice to J.Q.?
¶8 6. Did the District Court abuse its discretion when it terminated J.Q.’s parental rights?
PROCEDURAL AND FACTUAL BACKGROUND
¶9 J.Q. and his wife, R.W., initiated proceedings to dissolve their marriage in 2000. The custody of their only daughter, A.N.W., represented the major issue in the dissolution. J.Q. revealed during the dissolution proceedings that he had a sexual relationship with a step daughter from a prior marriage from the time the girl was four years old until she was 17. J.Q. admitted also to being sexually attracted to his wife’s niece from the time the niece turned 13 until she was 19. J.Q.’s prior deviant sexual behavior toward his young female family members prompted the District Court to order the Department tо supervise all of J.Q.’s visitation with A.N.W. during the dissolution process. R.W. died in May of 2000, before the court resolved the parenting plan.
¶11 The District Court’s decision to set aside the guardianship prompted the Department to petition the District Court for emergency protective services and TIA on April 4, 2002. The Department alleged that J.Q.’s prior admissions regarding his long-term sexual relationship with his adopted daughter and his long-time sexual attractiоn to his young niece left A.N.W. in danger of being abused and neglected without proper protection. District Court Judge Stewart E. Stadler scheduled the show cause hearing for April 12, 2002.
¶12 Judge Stadler informed the parties before the hearing that he had presided in the earlier dissolution and guardianship proceedings, and, consequently, he deemed himself disqualified from presiding over the case. He had signed a relinquishment and acceptance order the previous day that disqualified him and had invited Judge Katherine R. Curtis to assume jurisdiction. Judge Curtis also had signed the order.
¶13 Judge Curtis was not available to preside at the hearing, however, and the third judge in the Eleventh Judicial District was in trial. Judge Stadler reminded J.Q. that he had a right to a hearing within ten days and then explained J.Q.’s options: either stipulate to an extension or proceed and Judge Stadler would “be the one that makes the... probable cause determination.” J.Q.’s counsel responded that he had no choice but to proceed because J.Q. would not relinquish his right to a hearing within ten days.
¶14 Judge Stadler conducted the hearing and ruled from the bench in granting the Department emergency protective services and TIA. Judge Stadler signed a written order to that effect on April 25, 2002. The clerk of court earlier had filed the relinquishment and acceptance order on April 15, 2002.
¶15 The Department next petitioned the District Court to adjudicate A.N. W. a youth in need of care and to grant the Department temporary legal custody (TLC). The District Court, Judge Curtis now presiding, scheduled a one-day hearing on the Department’s petition for July 1, 2002. At the end of a full day of testimony, the Court warned the parties that it had limited time for the hearing to continue to the next day. Judge Curtis concluded the hearing the following day for lack of time after A.N.W.’s appointed counsel and the court examined the CASA volunteer. The court did not allow J.Q. or the Department to cross-examine the CASA volunteer and the court did not allow J.Q. to present testimony from his remaining two witnesses.
¶16 The District Court entered its order on July 22,2002, adjudicating A.N.W. a youth in need of care and granting the Department TLC for six months. The court also ordered the Department to prepare a treatment plan for J.Q. and to present the court with a written report by December 2, 2002. The Department filed the report on December 10, 2002.
¶17 On November 13, 2002, the Department moved for the District Court to approve its proposed treatment plan for J.Q. The following week the Department also sought to extend its TLC for an additional six months. The District Corut held a hearing on the Department’s two motions on December 18,2002. The hearing did not conclude that day, so the court scheduled it to resume on January 16,2003. The court also granted the Department continued TLC pending the outcome of the hearing.
¶18 In the meantime, the state of Wisconsin issued an arrest warrant for J.Q. relating to 24 separate felony offenses of failure to pay child support for another child. The Flathead County Sheriffs Department arrested
¶19 The District Court once more extended the Department’s TLC until July 16, 2003, and ordered the Department to file a written report by June 16, 2003. The court’s January 29, 2003, order also approved the treatment plan under the condition the Department incorporate eleven specific changes to the plan. The court ordered J.Q. to abide by the amended treatment plan’s terms and conditions upon his release from custody.
¶20 The Department petitioned the District Court again on June 5, 2003, to extend its TLC for an additional six months. The Department asserted that J.Q. remained incarcerated in Wisconsin and was not expected to be released until October of 2003 at the earliest. The Department further stated that it would support J.Q. in completing his court-approved treatment plan if he were released within a reasonable period of time. If J.Q. remained incarcerated, however, the Department informed the court that it would be compelled to petition for termination of his parental rights. The District Court held a hearing on the petition and again extended TLC on June 20, 2003. Neither J.Q. nor his attorney appeared at the hearing. The District Court noted in its order extending TLC that J.Q.’s counsel apparently had not been served with notice of the hearing.
¶21 A Wisconsin jury convicted J.Q. on August 4,2003, and the judge sentenced him concurrently to four years in Wisconsin state prison, followed by ten years on probation. J.Q. remained incarcerated in Wisconsin throughout the rest of the termination proceedings in Montana.
¶22 The Department finally petitioned the District Court on November 17, 2003, to terminate J.Q.’s parental rights and to grant the Department permanent legal custody of A.N.W. The petition alleged alternative bases for termination. The Department alleged first that the evidence would establish that the statutory grounds for termination contained in
¶23 The District Court scheduled a hearing on the Department’s termination petition for March 11, 2004. J.Q. moved to continue this hearing date on the grounds that the treatment plan appended to the petition to terminate did not reflect accurately the changes upon which the District Court conditioned its January 29,2003, order. The District Court denied the continuance.
¶24 J.Q. appeared via telephone from Wisconsin and his counsel appeared in person on March 11, 2004. J.Q. renewed his motion for a continuance on the same grounds as he argued previously. The Department conceded that the treatment plan attached to the termination petition contained some discrepancies from the changes the District Court had ordered in January 2003. The Department conceded further that J.Q. had not received or signed a copy of the amended treatment plan before it served the petition for termination on J.Q. The Department asserted that these problems with the treatment plan proved inconsequential, however, because
¶25 The Department then withdrew its objection to J.Q.’s motion for a continuance so it could amend further the treatment plan to comply with the court’s January 2003 written order and provide J.Q. a copy. The
¶26 The District Court proceeded with the rescheduled termination hearing on April 13, 2004. The cotut entered its findings of fact, conclusions of law and order that terminated J.Q.’s parental rights on July 7, 2004. The District Court found that J.Q. was incarcerated in Wisconsin on a four-year term of commitment and had been incarcerated for more than one year at the time of the termination hearing. The court further found that J.Q.’s incarceration relieved the Department of its requirement to implement a court-approved treatment plan for J.Q. based upon
¶27 The District Court further noted that it had approved a treatment plan, subject to certain modifications, in Januаry of 2003. J.Q. “was given ample opportunity to comply with a very reasonable treatment plan,” and failed to comply with more than ten different provisions of the plan. The court also found that A.N.W. had been in foster care for over 22 months by the date of the hearing. The District Court concluded that terminating J.Q.’s parental rights was in A.N.W.’s best interests and granted permanent custody, with the right to consent to adoption, to the Department. J.Q. appeals.
STANDARD OF REVIEW
¶28 We review a district court’s findings of fact to determine whether those findings are clearly erroneous. In re Custody and Parental Rights of M.A.D.,
¶29 We review a district court’s ultimate decision to terminate parental rights to determine whether the court abused its discretion. A district court abused its discretion only if it acted arbitrarily, without employment of conscientious judgment, or exceeded the bounds of reason resulting in substantial injustice. In re M.A.D., ¶ 12. This Court should not reweigh conflicting evidеnce or substitute its judgment regarding the strength of the evidence for that of the district court. In re A.F.,
DISCUSSION
ISSUE ONE
¶30 Did District Court Judge Stadler’s action in conducting a show cause hearing and entering an order granting the Department emergency protective services and TIA after he signed an order recusing himself invalidate the subsequent parental termination proceeding?
¶31 Judge Stadler informed the parties that he deemed himself disqualified from presiding over the initial show cause hearing because of his involvement in the earlier dissolution proceedings. The previous day he had signed a relinquishment and acceptance order that transferred the case to Judge Curtis. The parties’ arguments focus on the procedural consideration of when the recusal order became effective. J.Q. asserts that Judge Stadler’s disqualification became effective when Judge Stadler signed it on April 11, 2002. The Department responds that Judge Stadler retained his authority to preside until the recusal order was filed three days after thе hearing. We conclude that Judge Stadler’s decision to preside over the hearing does not affect the disposition of this case, however, regardless of when the recusal order became effective.
¶32 We have said that “procedural defects in a temporary custody hearing do not invalidate subsequent permanent legal custody proceedings.” Matter of S.P. (1990),
ISSUE TWO
¶33 Did the District Court afford J.Q. a fundamentally fair procedure when it ended the youth in need of care hearing before J.Q. could cross-examine the CASA volunteer and present two additional witnesses?
¶34 J.Q. contends that the District Court violated his due process rights when it refused to allow him to cross-examine the CASA volunteer and call two additional witnesses at the youth in need of care hearing. A parent's right to the care and custody of a child represents a fundamental liberty interest, and consequently, the state must provide fundamentally fair procedures at all stages in the proceedings to terminate parental rights. In re V.F.A.,
¶35 As a practical matter, however, pre-termination hearings entitle the parent to less process than the actual termination proceedings. In In re A.M.,
¶36 In In re custody of M.W.,
¶37 The District Court afforded J.Q. sufficient opportunity to scrutinize and challenge the evidence at the pre-termination hearing to adjudicate A.N.W. a youth in need of care. Although the hearing concluded before J.Q. could cross-examine the CASA volunteer and present two additional witnesses, the transcript demonstrates that J.Q. dominated the day and a half hearing. The court initially scheduled the hearing for July 1, 2002, and extended it by half a day. J.Q. knew the hearing was scheduled for one day and chose to spend his time cross-examining the Department’s witnesses at length. In fact, J.Q. cross-examined the witnesses for a period equal to the combined total questioning of these witnesses by the Department’s counsel and A.N.W.’s counsel. The District Court did not place J.Q. at a disadvantage during the pre-termination youth in need of care proceedings.
¶38 Moreover, J.Q. fails to assert how the District Court’s refusal to continue the hearing prejudiced him. He simply alleges that the District Court’s action violated his due
ISSUE THREE
¶39 Did the District Court’s failure to bifurcate the dispositional hearing from the youth in need of care hearing violate J.Q.’s right to a fundamentally fair process?
¶40 J.Q. asserts that the District Court’s failure to bifurcate the youth in need of care adjudication and the TLC disposition violated
¶41 This Court does not consider an issue presented for the first time on appeal. In re T.E.,
ISSUE FOUR
¶42 Did the District Court improperly consider documented evidence regarding J.Q.’s parole status that the Department filed after the termination hearing’s conclusion when the evidence accurately reflected J.Q.’s parole status and confirmed his parole officer’s testimony at the hearing?
¶43 The Department filed a document from the Wisconsin parole commission following the conclusion of the termination proceeding that advised that J.Q. had been denied parole. J.Q. alleges that the District Court improperly considered this document in light of the fact the District Court did not “reopen the case.”
¶44 J.Q.’s Wisconsin parole officer testified telephonically at the April 13, 2004, proceeding. She stated that it was “doubtful” the parole commissioner would grant J.Q. parole that month because J.Q. had not completed a pre-parole plan. The parole commissioner denied J.Q. parole after his April 28, 2004, parole hearing. The Department filed a document from the Wisconsin parole commission on May 5, 2004, reflecting J.Q.’s continued incarceration. The District Court issued its findings of fact and conclusions of law on July 6,2004, and included in its conclusions that J.Q. “will not be paroled in April [2004].”
¶45 We fail to see-and J.Q. fails to allege-how the Department’s filing of a document that reflected accurately J.Q.’s parole status in Wisconsin after the April 13, 2004, termination hearing prejudiced J.Q. The fact that J.Q.’s parole officer had provided identical information at the hearing highlights the lack of prejudice to J.Q. Consequently, the District Court’s actions do not warrant reversal. In re S.C., ¶ 29.
ISSUE FIVE
¶46 Do the Department’s alleged failures to comply with all of the statutory and court imposed deadlines surrounding J.Q.’s treatment plan affect the disposition of
¶47 J.Q. alleges three errors the Department made regarding the treatment plan involving time delays as set forth in the procedural and factual background. See ¶¶ 16, 19, 22-25, supra. J.Q. fails once again to demonstrate how the delays prejudiced him.
¶48 The Department did not petition to terminate J.Q.’s parental rights on the lone assertion that J.Q. failed to comply with the treatment plan. The Department premised its petition to terminate alternatively on
¶49 J.Q.’s situation contrasts with In re A.T.,
ISSUE SIX
¶50 Did the District Court abuse its discretion when it terminated J.Q.’s parental rights?
¶51 The District Court must address adequately each applicable statutory requirement before it terminates an individual’s parental rights. In re A.M., ¶ 34. The Department has the burden of proving by clear and convincing evidence that the statutory criteria for termination have been met. In re A.M., ¶ 34. The Legislature and this Court have held consistently that the best interest of the child standard is paramount and “must take precedence over parental rights” when the District Court considers the criteria for terminating parental rights. In re R. T.,
¶52 The Department included
¶53 J.Q. testified that he had known about the outstanding child support obligation for “almost ten years,” but admitted he did nothing to prevent his incarceration. In fact, he stated “[i]f I had it to do over again I would do it exactly as I have.” The District Court found in the termination proceeding that “to be available for ANW, [J.Q.] could have taken care of this responsibility in a legal manner, but instead his choice to ignore his responsibility has resulted in his being incarcerated, convicted and imprisoned.”
¶54
¶55 Additional evidence abounds that terminating J.Q.’s parental rights best serves A.N.W.’s interests. J.Q. has not had significant contact with his daughter for more than five and a half years. J.Q. admittedly
¶56 A.N. W. already has experienced more turmoil than we hope most people suffer in a lifetime. By the time she was six years old, A.N.W. had lived in three households. She has endured her parents’ divorce, her mother’s death, and her father’s incarceration. When she was five years old, A.N.W.’s male cousins further deprived her of her childhood by sexually abusing her. The sexual abuse forced A.N.W. to uproot after she had begun to bond with her maternal grandmother following her mother’s death.
¶57 Despite these challenges, A.N.W. has found a secure and loving home with her maternal aunt and uncle, D.F. and N.F., in Washington. A.N.W. has integrated herself fully in that family over the past four and a half years. A.N.W. views D.F. and N.F.’s two boys as her brothers, has a half brother (an older son of R.W.) living nearby who is involved in her life, and refers to D.F. and N.F. as “mom and dad.” The ten-year-old participates in Girl Scouts, soccer, and basketball. She earns good grades and her teachers’ consistent praise. Five people testified at the termination hearing that remaining with her aunt and uncle best serves A.N.W.’s interest.
¶58 D.F. and N.F. first employed Dr. Klemetson to counsel A.N.W. following her mother’s death. The family requested the counselor’s services again around the time when reunification with J.Q. seemed likely (prior to his incarceration) due to A.N.W.’s apparent anxiety surrounding the reunification. Dr. Klemetson expressed her uneasiness at the prospect of reunifying A.N.W. with her father “given her father’s past behavior.”
¶59 A Department supervisor, Diane Piorek, also emphasized the need for stability in A.N.W.’s life. A.N.W.’s CASA representative-a person appointed for sole purpose of furthering A.N.W.’s best interests-similarly advocated for A.N.W. to remain where she is: ‘What is in [A.N.W.’s] best interests is for her to become well adjusted and maintain the environment she’s in and to have some stability.” ¶60 Mary Widner, a social worker the Department assigned to A.N. W., echoed similar concerns and noted that A.N.W. “is thriving” in her present home. Finally, Kori Taylor, the Department’s social worker most recently assigned to the case, emphasized the potential irreparable effects of removing A.N.W. from the life she has made with her new family:
[bjecause although she has the love, security and stability within this-within this family unit-or the love and stability, the nurturing and the care, she doesn’t have the security to know that this is where she’s gonna stay. And that-even if he’s offered the opportunity to work a treatment plan, we’re looking at a considerable period of time before that cam even start and take place, and then a considerable amount of time that it would take for him to complete that plan. And she’s already waited for this security of permanency for three, four years.
¶61 The abundant testimony that maintaining her current placement serves A.N.W.’s physical, mental, and emotional conditions and needs provides substantial evidence that the District Court did not act arbitrarily or without conscientious reason when it terminated J.Q.’s parental rights. Moreover, the uncontroverted facts that J.Q.’s sentence runs until 2007, and that A.N.W. has been in foster care for more 56 consecutive months, provide clear and convincing evidence that the Department has met the stаtutory criteria for termination. The District Court did not abuse its discretion when it terminated J.Q.’s parental rights.
¶62 Affirmed.
Concurrence Opinion
specially concurring.
¶63 I join the Court’s opinion and offer the following as additional grounds for affirming the District Court.
¶64 Regarding Issue 1, Appellant offered no authority in support of his argument. Appellant advanced about one page of argument and offered as authority only a citation to Daniels v. Thomas, Dean & Hoskins, Inc. (1990),
[Peterson] advances no authority under which these asserted facts would constitute sufficient prejudice to warrant reversal, however. Rule 23(a)(4), M.R.App.P., requires an appellant to support arguments with citations to the record and to relevant authorities; an appellant cannot meet the burden of establishing error absent such citations. See State v. Bailey,2004 MT 87 , ¶ 26,320 Mont. 501 , ¶ 26,87 P.3d 1032 , ¶ 26 (citation omitted).
Alternatively, Peterson asserts а defendant’s constitutional right to due process is violated when the prosecution fails to produce relevant documents that could be used to cross-examine key government witnesses. He cites Davis v. Alaska (1974),415 U.S. 308 ,94 S.Ct. 1105 ,39 L.Ed.2d 347 , and Kyles v. Whitley (1995),514 U.S. 419 ,115 S. Ct. 1555 ,131 L. Ed. 2d 490 , in support of this assertion, but neither discusses nor applies those cases to the present case. It is not this Court’s obligation to develop parties’ arguments for them. State v. Flowers,2004 MT 37 , ¶ 44,320 Mont. 49 , ¶ 44,86 P.3d 3 , ¶ 44 (citation omitted).
City of Billings v. Peterson,
¶65 The same principle applies with regard to Appellant’s argument under Issue 2, as Appellant has cited no authority whatsoever, offering only that he “was denied fundamеntal due process.” We have commonly applied Rule 23’s requirement of developed arguments supported by authority even more fastidiously to constitutional issues. See, e.g., Peterson, ¶ 45; Estate of Spencer,
¶1 No analysis or authority is presented to support this particular contention. Fina also asserts parenthetically that Anderson’s statements were “hardly hearsay;” again, no analysis or authority is advanced for this assertion. Similarly, Fina’s statement that “we believe [the restriction on cross-examination] impairs the due process rights of George Fina” is unsupported by analysis or authority as required by Rule 23(a)(4), M.R.App.P. Counsel’s general statement that the District Court erred in this regard, “based upon case decisions cited in this section of our brief,” is totally inadequate to permit this Court to address the issue as raised, given that “this section” of Fina’s brief is seventeen pages in length and addresses sevеn subissues.
Fina,
Concurrence
concurring in part and dissenting in part.
¶66 I concur in portions of the Court’s opinion in this matter, but respectfully dissent from other portions and from the result the Court reaches. Because it is my view that the District Court violated J.Q.’s due process rights at the hearing in July of 2002, I would conclude under Issue Two that the District Court erred in adjudicating A.N.W. a youth in need of care. As a result, I would farther conclude in Issue Six that the Department did not establish the
¶67 I concur in the Court’s resolution of Issues Three, Four and Five. With regard to these issues, I write primarily to express my continuing frustration with the Department’s-and trial courts’-failures to comply with the explicit statutory mandates set forth by the Montana Legislature for the conduct of abuse and neglect proceedings. At the outset, I observe that the recоrd in this case reveals numerous instances of the Department’s failure to abide by court-imposed deadlines for the filing of documents and reports and the District Court’s failure to require it to comply. While I am aware that the Department handles a large number of abuse and neglect cases, the timely disposition of these cases is of vital importance in protecting the rights of both children and parents. Timeliness is of special import for parents involved in these cases when viewed in light of
¶68 Furthermore, the Department does not dispute that it requested-in a single petition-that the District Court adjudicate A.N.W. a youth in need of care and grant it TLC, and that the District Court conducted one hearing on both the adjudicatory and dispositional issues without properly structuring the hearing to address the issues separately. Indeed, the Department implicitly concedes that it and the District Court failed to ensure that “[t]he hearing process [was] scheduled and structured so that dispositional issues are specifically addressed apart from adjudicatory issues,” as required by
¶69 Such an argument ignores both the mandatory requirements established by the Montana Legislature for the conduct of hearings on the adjudicatory and dispositional phases of an abuse and neglect proceeding, and the Department’s obligation to ensure that these cases are conducted in strict compliance with those statutory requirements. Such an argument also ignores repeated warnings by this Court that the statutory requirements must be met. See, e.g., Matter of F.H. (1994),
¶71 With regard to Issue One, however, I would address the parties’ arguments relating to whether Judge Stadler had authority to conduct the show cause hearing and enter the subsequent order granting the Department TIA, and conclude that he did not. It is my view that a discussion of this issue is appropriate in light of the disadvantage placed on parents in such a situation by having to chоose between going forward with a hearing before a judge who has expressed a bias or prejudice sufficient to disqualify him or her from presiding over the case or stipulating to a continuance which will further delay resolution of the proceeding. Moreover, while I ultimately agree with the Court that this issue is not dispositive of this case, addressing the issue here will provide guidance to the district courts and counsel in addressing matters of judicial disqualification.
¶72 Judge Stadler deemed himself disqualified from presiding over this case and signed a relinquishment and acceptance order the day before the show cause hearing; Judge Curtis also signed the order accepting jurisdiction over the case the day before the hearing. The parties dispute the point at which Judge Stadler’s order became effective-upon the signing of the order or upon the filing of the order with the clerk of court.
¶73 We have held that, for purposes of commencing time periods in which parties to a case must take further action, a judgment or order takes effect from the date on which it is filed with the clerk of court. Firefighters, Local No. 8 v. District Court,
¶74 “It is the policy of our system that no judge should be allowed to sit when he is laboring under bias or prejudice toward one or more of the parties litigant.” In re Woodside-Florence Irr. Dist. (1948),
¶75 I would conclude that Judge Stadler’s sua sponte recusal was effective when he signed the relinquishment and acceptance order-and another judge assumed jurisdiction-on April 11, 2002. From that point, he
¶77 I begin by agreeing entirely with the Court’s statements in ¶ 34 that a natural parent’s right to the care and custody of his or her child is a fundamental liberty interest which must be protected by fundamentally fair procedures during all stages in proceedings involving the termination of the parent/child relationship. See, e.g., In re A.S.,
¶78 I disagree, however, with the remainder of the Court’s approach to, and resolution of, Issue Two. The Court begins by observing that we have held a parent has neither a statutory nor constitutional right to appointed counsel during pre-termination phases of abuse and neglect proceedings. While this may be true, J.Q. does not raise an appointment of counsel argument and, thus, the cases cited by the Court have no application here.
¶79 The Court also observes that we have held parents do not have a due process right to scrutinize and challenge the evidence presented by the Department at a permanency plan hearing. See In re M.W., ¶ 27. In the same paragraph as cited by the Court for this proposition, however, we farther stаted that “the issue of a child’s placement is separate from the issue of terminating parental rights.” In re M.W., ¶ 27. A permanency plan hearing does not relate to, or result in an adjudication on, issues concerning a person’s capabilities to parent a child, and does not require the same degree of due process considerations as is required in other phases of a termination proceeding.
¶80 Due process requires fundamental fairness which, in turn, requires fair procedures. In re B.N. Y., ¶ 21. Thus, due process requires notice of an action which may deprive a person of a liberty interest and the opportunity to be heard regarding that action. See State v. Niederklopfer,
¶81 We all agree that, as a parent, J.Q. has a fundamental liberty interest in the care and custody of his child, A.N.W. As a result, he was entitled to procedural due process
¶82 The Department argues that, even if the District Court erred in this regard, the error was harmless in light of the ample evidence that A.N.W. should be adjudicated a youth in need of care, because the error occurred early in the proceeding, and because J.Q. was given the opportunity to examine the Department’s witnesses and cаll his witnesses at the final termination hearing. The Department’s arguments constitute yet another sad commentary on its approach to abuse and neglect proceedings, in that they totally ignore the import of a district court’s adjudication that a child is a youth in need of care. For example, the Department may not require a parent to complete a treatment plan unless a district court adjudicates the child a youth in need of care. See
¶83 Furthermore, the Montana Legislature requires district courts to give highest preference to abuse and neglect cases when scheduling hearing dates. See
Nope. We have used about four more hours for this hearing than we had set aside for it, and [the] Court has another hearing in less than an hour, and the [C]ourt and staff wants lunch, so that’s the way it’s going to be.
When J.Q. further objected to the District Court ending the hearing before he could present his entire case, the court stated that “the fact of the matter is this hearing was scheduled for a period of one day. The fact of the matter is it’s taken a day and a half, and that’s all I have.” In my view, by denying J.Q. the ability to cross-examine the CASA volunteer and present the testimony of his witnesses, the District Court failed to give the youth in need of care hearing the priority required by law, thereby failing to ensure J.Q. the opportunity to be heard at a meaningful time and in a meaningful manner.
¶84 I would conclude that the District Court violated J.Q.’s right to procedural due process at the hearing to adjudicate A.N.W. a youth in need of care. Consequently, I would reverse the District Court’s youth in need of care adjudication, and I dissent from the Court’s failure to do so.
¶85 Finally, because it is my view that the District Court erred in adjudicating A.N.W. a youth in need of care based on its violation of J.Q.’s due process rights at the hearing, I also must dissent from the Court’s holding in Issue Six that the District Court did not abuse its discretion in terminating J.Q.’s parental rights.
¶86 The Department petitioned to terminate J.Q.’s parental rights based on
the child is an adjudicated youth in need of care and both of the following exist:
(i) an appropriate treatment plan that has been approved by the court has not been complied with by the parents or has not been successful; and
(ii) the conduct or condition of the parents rendering them unfit is unlikely to change within a reasonable time.
The Department contended that the statutory requirements for termination were met because J.Q. had failed to comply with his court-approved treatment plan and, pursuant to
¶87 It is well-established that “[t]he adjudication of a child as a youth in need of care is a threshold requirement without which a court may not ... terminate a person’s parental rights under”
¶88 As stated above, it is my view that the District Court violated J.Q.’s due process rights at the adjudicatory hearing by failing to afford him a full opportunity to be heard and a fundamentally fair procedure. Therefore, the court’s order adjudicating A.N.W. a youth in need of care should be reversed. Absent a valid youth in need of care adjudication, the District Court could not terminate J.Q.’s parental rights pursuant to
¶89 I would reverse. I dissent from the Court’s failure to do so.