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                                                                 No. 98-203



                               IN THE SUPREME COURT OF THE STATE OF MONTANA



                                                                1999 MT 42




IN RE INQUIRY INTO A.W., D.G., and M.G., JR.




APPEAL FROM: District Court of the Fourteenth Judicial District,

In and for the County of Musselshell,

The Honorable Roy C. Rodeghiero, Judge presiding.




COUNSEL OF RECORD:



For Appellants:




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Mark L. Guenther; Nash, Guenther & Zimmer; Bozeman, Montana

(for Laurie Grove)



Virginia Bryan; Wright, Tolliver & Guthals; Billings, Montana

(for Mike Grove)



For Respondent:



Hon. Joseph P. Mazurek, Attorney General; C. Mark Fowler,

Assistant Attorney General; Helena, Montana



John V. Potter, Jr., Meagher County Attorney; Vicki Knudson,

Acting Special Deputy; White Sulphur Springs, Montana



Guardian Ad Litem:



Floyd Brower, Attorney at Law; White Sulphur Springs, Montana




                                                                                                Submitted on Briefs: October 29, 1998



                                                                                                                   Decided: March 16, 1999


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Filed:




__________________________________________

Clerk

Justice Terry N. Trieweiler delivered the opinion of the Court.

¶1. The Department of Public Health and Human Services (DPHHS) filed a petition
for temporary investigative authority and protective services in the District Court for
the Fourteenth Judicial District in Mussellshell County, on behalf of the three minor
children of Michael and Leslie Grove. After the children were first removed from
their parents' home and then returned to their parents' care, the District Court
ordered the parents to reimburse the county for the guardian ad litem's fees and
costs. Michael and Leslie appeal from the imposition of fees and costs. We reverse the
order of the District Court.

¶2. We limit our consideration to the issue of whether the District Court had
statutory authority to order parents who are the subject of a parental neglect or
abuse investigation to reimburse the county for costs and fees of the guardian ad
litem.

                              FACTUAL AND PROCEDURAL BACKGROUND

¶3. DPHHS received a report of sexual abuse related to the Groves' minor children
and stepchild. On March 28, 1997, DPHHS filed a petition for temporary
investigative authority and protective services on behalf of A.W., D.G., and M.G., Jr.,
in Meagher County. The venue for the petition was subsequently changed to
Mussellshell County, where the District Court appointed Floyd Brower to be
guardian ad litem for the children. Over the ensuing eight months, Brower submitted
to Meagher County statements of fees and costs totaling almost $20,000. Meagher
County reimbursed Brower based upon those statements.

¶4. In October 1997, DPHHS sought an order from the District Court requiring the
Groves to reimburse the County for the guardian's fees and costs. The parties

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stipulated to the Groves' financial ability to repay the County, but the Groves argued
that they were not responsible for those fees and costs. The District Court ordered
the Groves to reimburse the County.

                                                             DISCUSSION

¶5. Does the District Court have statutory authority to order parents who are the
subject of a parental neglect or abuse investigation to reimburse the county for costs
and fees of the guardian ad litem?

¶6. The District Court concluded that § 41-3-303, MCA, requires parents to pay the
fees and costs of the court-appointed guardian ad litem if they have the financial
resources to do so. We review questions of statutory interpretation as a question of
law to determine whether the district court's interpretation and application of the
law was correct. See State v. Bell (1996), 277 Mont. 482, 486, 923 P.2d 524, 526.

¶7. The Groves contend that nothing in the statute authorizes the court to require
parents to pay for the guardian ad litem, and that the legislative history suggests no
such legislative intent.

¶8. Section 41-3-303(1), MCA, states:

In every judicial proceeding, the court shall appoint for any child alleged to be abused or
neglected a guardian ad litem. The department or any of its staff may not be appointed as a
guardian ad litem in a judicial proceeding under this title. When necessary the guardian ad
litem may serve at public expense.

¶9. The role of courts in applying a statute has always been "to ascertain and declare
what is in terms or in substance contained therein, not to insert what has been
omitted or to omit what has been inserted." Section 1-2-101, MCA. Statutory
language must be construed according to its plain meaning and if the language is
clear and unambiguous, no further interpretation is required. See Lovell v. State
Comp. Mut. Ins. Fund (1993), 260 Mont. 279, 285, 860 P.2d 95, 99.

¶10. The District Court concluded that the permissive language, "may," in the final
sentence of the statute, "bolstered by the addition of the words 'when
necessary'" (emphasis omitted), means that parents must pay for the guardian ad


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litem unless they are financially unable to do so, at which point the guardian may
serve at public expense. However, the District Court's interpretation of the statute is
not supported by its plain language, its legislative history, or its consideration in
combination with other dependent and neglect provisions.

¶11. Section 303 was enacted in response to federal legislation which provided
funding for state-level child abuse prevention programs. Federal rules required
states to insure the appointment of a guardian ad litem in such cases. One of the ways
in which the rule could be satisfied was by passage of a statute which mandated such
an appointment. See 45 C.F.R. § 1340.14 (1997).

¶12. Prior to the enactment of Section 303, DPHHS acted as both the investigator for
the state and as the entity which provided for the best interests of the child.

¶13. The Montana Senate heard testimony from the Director of DPHHS's
predecessor agency that appointment of guardians ad litem would provide better
representation of a child's interest in abuse proceedings, free from any conflict of
interest which may result from DPHHS's dual role. See Testimony before the Senate
Judiciary Committee on Senate Bill 301 (Feb. 13, 1979) (testimony of the Department
of Social and Rehabilitative Services). Although the guardian ad litem statute shifted
responsibility for protecting the child's best interest, there is no indication in the
legislative history that the expense of that service was to be shifted to the child's
parents.

¶14. Furthermore, "[s]tatutes do not exist in a vacuum, [but] must be read in
relationship to one another to effectuate the intent of the statutes as a whole." Marsh
v. Overland (1995), 274 Mont. 21, 28, 905 P.2d 1088, 1092. We are unable to discern
an intent to impose the cost of guardians on parents when considering § 41-3-303,
MCA, in the context of other related statutes.

¶15. There are other provisions within Montana's child abuse statutes which require
parents who are financially able to do so to provide for the costs of care, custody, and
treatment of their children. Section 41-3-406, MCA, was amended by the Legislature
in 1991 to require parents to provide for the costs of caring for their children while in
the custody of the department, and to make DPHHS the payor of last resort. There is
also at least one other guardian ad litem provision in the code which requires parents
to pay the guardian's fees and costs. Section 40-4-205(4), MCA, the guardian ad litem


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statute applicable to child support, custody, and visitation cases, which was enacted
in 1975, states: "The court shall enter an order for costs and fees in favor of the
child's guardian ad litem. The order must be made against either or both parents,
except that if the responsible party is indigent, the costs must be waived." Section 41-
3-303, MCA, was enacted four years later.

¶16. Presumably, if the Legislature had intended that the parents also pay for the
services of guardians ad litem, under the circumstances of this case, it would have
included in § 41-3-303, MCA, language similar to the existing language of § 40-4-205
(4), MCA. Alternatively, when the Legislature was revising the child abuse statutes to
reflect the policy of requiring parents to pay for certain aspects of a child's care, it
could have amended Section 303 to reflect a similar requirement, had it intended that
result. Therefore, we conclude that neither the plain language of the statute, nor its
legislative history, nor its statutory context suggests any intent to require parents to
pay for guardians ad litem appointed to represent children in cases of abuse and
neglect.

¶17. We conclude that the District Court erred when it interpreted § 41-3-303, MCA,
to require the Groves to pay for guardian ad litem services for their minor children
following a petition for protective services, and we reverse the order of the District
Court which required the Groves to reimburse Meagher County for those services.


/S/ TERRY N. TRIEWEILER




We Concur:

/S/ J. A. TURNAGE

/S/ KARLA M. GRAY

/S/ WILLIAM E. HUNT, SR.


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/S/ W. WILLIAM LEAPHART




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