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In the Matter of: D.B.J.

October 9, 2012

IN THE MATTER OF: D.B.J., YOUTH IN NEED OF CARE.


APPEAL FROM: District Court of the Third Judicial District, In and For the County of Powell, Cause No. DN 10-01 Honorable Ray Dayton, Presiding Judge

The opinion of the court was delivered by: Michael E Wheat

October 9 2012

Submitted on Briefs: August 1, 2012

Filed:

Clerk

Justice Michael E Wheat delivered the Opinion of the Court.

¶1 C.R., D.B.J.'s step-grandfather and guardian, appeals the termination of his guardianship. We affirm.

¶2 The issues on appeal are as follows:

¶3 1. Was C.R. afforded a fundamentally fair process and opportunity to participate in the proceedings despite the District Court's initial belief that he had to intervene to become a party?

¶4 2. Did the District Court comply with the timeline requirements for conducting a show cause hearing within 20 days of the filing of an initial child abuse and neglect petition, as stated by § 41-3-432(1)(a), MCA?

¶5 3. Did the District Court err by terminating C.R.'s guardianship pursuant to the best interests of the child standard at § 72-5-234, MCA?

Factual Background

¶6 This case presents a complex factual record. D.B.J., the son of T.B., the birth mother ("Mother"), and B.J., the birth father ("Father"), was born on April 25, 2003. In February of 2004, Mother and Father successfully petitioned the Teton County District Court to appoint D.R., the maternal grandmother, and C.R., the step-grandfather, as guardians. The Teton County District Court's Order Appointing Guardians did not provide any durational limits on the guardianships and did not terminate either Mother or Father's parental rights. Both Mother and Father were sentenced to prison for drug charges around the time C.R. and D.R. were appointed guardians, and D.B.J. has lived with his guardians since he was approximately five weeks old. Following their appointment as guardians, neither D.R. nor C.R. has sought to adopt D.B.J.

¶7 On April 23, 2010, the Department of Public Health and Human Services ("DPHHS") removed D.B.J. from D.R. and C.R.'s home and placed him in foster care after it received a report from a school-based social worker that D.B.J. feared C.R. would yell at and hit him. Katherine C. Winter ("Winter"), a Child Protection Specialist with DPHHS, interviewed D.B.J. following the report. D.B.J. told Winter that C.R. yelled at and hit D.R. during fights, and that he feared C.R. would hit and kick him if he got in trouble at school. D.B.J. told Winter that C.R. had previously hit and kicked him. Winter also interviewed D.R., and D.R. confirmed that both she and D.B.J. feared potential physical abuse and that she lived in a possible domestic violence situation. Following D.B.J.'s removal from the home, D.R. separated from C.R.

¶8 On April 29, 2010, the DPHHS filed a petition ("the petition") for Emergency Protective Services, Adjudication as Youth in Need of Care ("YINC"), and Temporary Legal Custody ("TLC"). The District Court issued an Order to Show Cause, Granting Emergency Protective Services and Temporary Legal Custody to the DPHHS, and Notice of Show Cause Hearing on April 30, 2010. The court issued summonses to Mother, Father, D.R., and C.R., noticing the parties of a scheduled May 18, 2010, show cause hearing. Both C.R. and D.R. were personally served with a summons.

¶9 At the May 18, 2010, show cause hearing, the District Court did not allow C.R., D.R., or their respective counsel to either cross-examine or present witnesses. As justification, the court claimed the guardians were not parties to the proceeding. The court did state the guardians would be allowed to make a motion to intervene, but they were "not going to be allowed to cross examine or otherwise appear in the hearing today." This was despite the fact that the petition concerned D.B.J.'s care under the guardianship of C.R. and D.R., and not the parents. When counsel for C.R. was offered the opportunity to make a motion to intervene, he was subsequently cut off by the court.

¶10 Because Father had not been served, the court agreed to consider the petition only as it pertained to Mother at the May 18 hearing. Mother stipulated to the State's request for TLC and Emergency Protective Services. Despite the stipulation, the court allowed the State to call two witnesses, Fredricka O'Farrell ("O'Farrell"), a licensed clinical social worker in D.B.J.'s school, and Winter. O'Farrell and Winter's testimony was presented as an offer of proof following a request by Mother's counsel. Notwithstanding Mother's request, O'Farrell and Winter's testimony largely centered on D.B.J.'s fear of C.R. and possible abuse by C.R. The court also considered a report by the guardian ad litem ("GAL") at the May 18 hearing. The GAL report similarly focused on the conduct of C.R. and D.R. and recommended D.B.J. remain in foster care.

¶11 At the conclusion of the May 18 show cause hearing, the court found D.B.J. to be a YINC, that D.B.J. was "abused and/or neglected or in danger of being abused and/or neglected," and granted DPHHS temporary custody. The court noted that "we're only talking about the mother's rights here." The court did recognize "there's some incongruity to listening to testimony about an individual [C.R.] who's not in the well of the courtroom," but left the matter unresolved. The court subsequently issued an order setting an additional show cause hearing for D.R., C.R., Mother, and Father on June 22, 2010.

ΒΆ12 Following a motion by DPHHS, a Permanency Plan hearing was held on June 1, 2010, for the apparent purpose of continuing federal social security foster care funding for D.B.J. DPHHS Child Protection Specialist Gerald Byrd ("Byrd") testified at the hearing. Byrd stated "the plan" was for D.B.J. "to remain in foster care until a more permanent solution" was reached. This hearing did not establish a Permanency Plan with a definite end goal, but both the State and Byrd supported continued foster care until a long-term plan was developed. The court recognized foster care was not a permanent plan, terming it instead a "current situation of ...


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