In re of Inquiry into M.M.

CHIEF JUSTICE TURNAGE, delivered the Opinion of the Court. P.D., the mother of M.M., A.D. and L.D., appeals the decision of the Tenth Judicial District Court, Fergus County, terminating her parental rights. We affirm. P.D. raises the following issues on appeal: 1. Did the District Court commit reversible error by admitting hearsay testimony of P.D.’s minor children? 2. Did the District Court err in affording undue weight to the testimony of Gwen Glidewell? 3. Did the District Court err in refusing to grant P.D. a continuance in order to produce a rebuttal witness to Gwen Glidewell? 4. Did the District Court err in terminating P.D.’s parental rights absent the existence of a court-approved treatment plan? P.D.’s three daughters, M.M., A.D. and L.D., were born out of wedlock to three different fathers between January 1987 and July 1990. P.D. has neither sought nor received child support from any of the fathers. The father of M.M. filed a relinquishment of his parental rights. The fathers of A.D. and L.D. were served by publication, failed to respond, and a default judgment terminated their parental rights. On February 1,1993, the Fergus County Attorney, on behalf of the Department of Family Services (DFS, now part of the Department of Public Health and Human Services, or DPHHS), filed a petition in the Tenth Judicial District Court for temporary investigative authority and protective services for M.M., A.D. and L.D. The petition was in response to allegations of abuse and neglect of M.M., A.D. and L.D. Following a hearing, the District Court granted DFS’s petition on February 16, 1993. On May 3, 1993, the Fergus County Attorney filed a petition for the termination of P.D.’s parental rights and also for DFS to be granted permanent legal custody of M.M., A.D. and L.D. Following — 169 — the June 20 through 21 hearing, the District Court terminated RD.’s parental rights and granted DFS permanent custody of M.M., A.D. and L.D. RD. appeals the termination of her parental rights. Other facts, as relevant to the disposition of the following issues, will be set forth as necessary below. Issue 1 Did the District Court commit reversible error by admitting hearsay testimony of P.D.’s minor children? We review district court evidentiary rulings to determine if the court abused its discretion. Mason v. Ditzel (1992), 255 Mont. 364, 370-71, 842 P.2d 707, 712. We will not reverse evidentiary rulings absent a manifest abuse of discretion. Mason, 842 P.2d at 712. Additionally, “a reversal cannot be predicated upon an error in admission of evidence, where the evidence in question was not of such a character to have affected the result.” Mason, 842 P.2d at 712 (quoting Lauman v. Lee (1981), 192 Mont. 84, 90, 626 P.2d 830, 834). Section 41-3-609, MCA (1993), sets forth the criteria for termination of parental rights: The court may order a termination of the parent-child legal relationship upon a finding that any of the following circumstances exist: (c) 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[.] [Emphasis added.] Pursuant to §§ 41-3-102(17), 41-3-102(2) and 41-3-102(5), MCA (1993), the term “youth in need of care” includes a child whose health or welfare is harmed or threatened harm by acts or omissions of a person responsible for the child’s welfare. Section 41-3-102(8), MCA (1993), defines “harm to a child’s health or welfare” as: the harm that occurs whenever the parent or other person responsible for the child’s welfare: (a) inflicts or allows to be inflicted upon the child physical or mental injury; — 170 — (b) commits or allows to be committed sexual abuse or exploitation', (c) causes failure to thrive or otherwise fails to supply the child with adequate food or fails to supply clothing, shelter, education, or adequate health care, though financially able to do so or offered financial or other reasonable means to do so[.] [Emphasis added.] RD. argues that the District Court terminated her parental rights because it found that she had allowed her children to be sexually abused or exploited. While P.D. admits that her daughters were sexually abused by at least two of her male acquaintances, she insists that she did not know of the sexual abuses at the times they occurred. She claims that implicit in the term “allow” is the idea that she had some knowledge that the abuse occurred and yet did nothing to prevent it. She finally argues that the prosecution’s only evidence that she knew that the sexual abuse occurred was the hearsay testimony of a therapist repeating statements made to her by P.D.’s daughters. P.D. maintains that the hearsay statements of her daughters do not satisfy any of the exceptions to or exclusions from the hearsay rule and therefore should not have been admitted at trial. We disagree with P.D.’s argument. First, P.D. presents no authority for her assertion that the phrase “allows to be committed sexual abuse or exploitation” requires actual knowledge that the acts have been committed. Section 41-3-102(5)(b), MCA (1993), explicitly states that abuse and neglect “include harm or threatened harm to a child’s health or welfare by the acts or omissions of a person responsible for the child’s welfare.” [Emphasis added.] This Court has previously held that acts or omissions of a parent or guardian are sufficient to satisfy the requirement of abuse and neglect. See In the Matter of C.A.R. and P.J.R., Youths in Need of Care (1984), 214 Mont. 174, 184, 693 P.2d 1214, 1220. Second, while the District Court found that P.D. knew of her daughters’ sexual abuse, the court specifically stated that her knowledge of the abuse was irrelevant to its ultimate determination. The court found that “even if she did not know of the abuse, she failed to notice what was occurring and repeatedly left the children with persons who were not competent or safe caretakers.” Such a finding is supported by the evidence presented at trial and satisfies the requirements of § 41-3-102(5)(b), MCA (1993). Finally, P.D. does not challenge the court’s finding that she failed to detect the abuse and left her children with inappropriate supervision. Regardless of P.D.’s knowledge of her daughters’ sexual abuse, — 171 — there is sufficient evidence to support a finding that M.M., A.D. and L.D. are youths in need of care. The disputed hearsay evidence goes only to establish P.D.’s knowledge of the sexual abuse of her children. Because the District Court found that M.M., A.D. and L.D. were youths in need of care regardless of P.D.’s knowledge of the sexual abuse, any error by the court in admitting the challenged evidence was harmless. Mason, 842 P.2d at 712. Issue 2 Did the District Court err in affording undue weight to the testimony of Gwen Glidewell? Glidewell lived with P.D. and her children for a short period of time. Glidewell testified about P.D.’s lifestyle while they lived together. Glidewell’s testimony described P.D.’s friends, acquaintances, social habits and living arrangements. P.D. argues that the District Court gave Glidewell’s testimony undue weight. P.D. claims that on cross-examination, Glidewell was exposed as an incredible witness who had a motive to testify falsely against her. In nonjury trials, the credibility of a witness and the weight which his or her testimony should be afforded is left to the sound discretion of the district court. Keebler v. Harding (1991), 247 Mont. 518, 523, 807 P.2d 1354, 1357. In this case, the District Court was in the best position to hear all of the evidence presented and weigh conflicting testimony. After hearing Glidewell’s testimony, as well as the other witnesses’ testimony, the court determined that Glidewell was a credible witness. It is not the role of this Court to reweigh the evidence and substitute our judgment for that of the District Court under such circumstances. We conclude that the District Court did not abuse its discretion in finding Glidewell to be a credible, reliable witness. Issue 3 Did the District Court err in refusing to grant P.D. a continuance in order to produce a rebuttal witness to Gwen Glidewell? At the close of trial, P.D.’s attorney requested a continuance in order to prepare additional testimony to discredit Gwen Glidewell. Particularly, P.D.’s counsel wished to call Gwen Glidewell’s mother, Cindy Glidewell, to testify as to Gwen’s reputation for truth and honesty. — 172 — We review discretionary trial court rulings such as motions for continuances to determine if the court abused its discretion. Montana Rail Link v. Byard (1993), 260 Mont. 331, 337, 860 P.2d 121, 125. In this case, P.D. had already presented testimony from one witness which tended to impeach Gwen Glidewell’s reputation for truth and honesty. The court determined that P.D.’s trial counsel was given sufficient notice of Gwen Glidewell’s testimony and that additional impeachment testimony was unnecessary. We conclude that the District Court did not abuse its discretion in denying P.D.’s trial counsel’s motion for a continuance. Issue 4 Did the District Court err in terminating P.D.’s parental rights absent the existence of a court-approved treatment plan? Section 41-3-609, MCA (1993), states, in relevant part: The court may order a termination of the parent-child legal relationship upon a finding that any of the following circumstances exist: (c) 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[.] [Emphasis added.] In this case, DFS prepared and executed a treatment plan; however, P.D. refused to sign the plan. The treatment plan was filed with the District Court, but was never officially signed by the District Judge. While the District Court never approved the treatment plan, all parties involved apparently proceeded under the assumption that there was a court-approved treatment plan in place. In a Request for Status Report on Service Treatment Agreement, P.D.’s counsel stated: 2. It is the understanding of your Petitioner that a service treatment agreement was presented to [P.D.] in that she has either the original or a copy of such document. And apparently a duplicate original of the agreement was signed by the DFS, [P.D.], and later approved by the Court. — 173 — 3. [P.D.] believes that she has successfully completed nearly all of the requirements of the service treatment agreement. [Emphasis added.] P.D. and her counsel clearly believed that a court-approved treatment plan was in place and that she was required to comply with the terms of this treatment plan. A review of the record reveals that P.D. failed to complete the requirements of the treatment plan which she believed governed these proceedings. P.D. now argues on appeal that the court cannot terminate her parental rights because it did not first approve a treatment plan. P.D. claims that without a court-approved treatment plan in place, her parental rights cannot be terminated under any circumstances. This Court has consistently interpreted abuse and neglect statutes to protect the best interest of the children. “In matters involving abused and neglected children we have consistently held that a district court may protect the children’s best interest despite procedural error.” In the Matter of F.H., J.K. and B.K., Youths in Need of Care (1994), 266 Mont. 36, 39, 878 P.2d 890, 892. We have upheld the termination of parental rights absent a court-approved treatment plan. In the Matter of the Custody and Parental Rights of M.D., a/k/al M.S., a Youth in Need of Care (1993), 262 Mont. 183, 864 P.2d 783. In that case, the parent was incarcerated, refused to complete the recommended sexual offender program and refused to sign the proposed treatment plan. In the Matter of the Custody of M.D., 864 P.2d at 786. We held that court approval of the treatment plan was not necessary due to the parent’s incarceration and noncompliance with the treatment recommendations. In the Matter of the Custody of M.D., 864 P.2d at 786-87. While P.D. was not incarcerated, she refused to sign the treatment plan and refused to fulfill the requirements contained therein. In light of our decision in In the Matter of the Custody of M.D., and the facts and circumstances of this case, we conclude that the absence of formal court approval of the treatment plan is not a bar to terminating P.D.’s parental rights. We note, for future termination proceedings, that a court-approved treatment plan should be in place in every case except as specifically provided in § 41-3-609(4), MCA. To clarify any confusion caused by our previous opinions, we observe that § 41-3-609, MCA, does not require that the parent sign the treatment plan in order for the court to approve such a plan. Section 41-3-609, MCA, allows court approval of a treatment plan with or without the parent’s signature. — 174 — We also reiterate our warning to DPHHS to abide by the strict statutory requirements in termination proceedings or risk grave harm to the very children whom they seek to protect. See In the Matter of F.H., 878 P.2d at 890. We affirm the decision of the District Court. JUSTICES ERDMANN, HUNT and TRIEWEILER concur.