                                      No. DA 06-0317

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                       2007 MT 108


IN THE MATTER OF KIM KELLER
and SETH KNUTH,

              Petitioners and Respondents,

         v.

MICHAEL TRULL,

              Respondent and Appellant.




APPEAL FROM:         The District Court of the Twentieth Judicial District,
                     In and For the County of Sanders, Cause No. DR 2005-018,
                     Honorable Deborah Kim Christopher, Presiding Judge


COUNSEL OF RECORD:

              For Appellant:

                     Carolyn Gill, Attorney at Law, Plains, Montana

              For Respondents:

                     Seth Knuth (pro se), Kimberly Keller (pro se), Thompson Falls, Montana



                                                    Submitted on Briefs: November 28, 2006

                                                                      Decided: May 8, 2007

Filed:

                     __________________________________________
                                        Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.

¶1     In November 2005 Kim Keller, on behalf of her then fourteen-year old son Seth

Knuth, petitioned the Twentieth Judicial District Court for a temporary order of

protection (TOP) against another minor, Michael Trull. In the Petition, Keller asserted

that Trull repeatedly assaulted and intimidated her son on the school grounds. The

District Court issued the TOP on November 28 and subsequently, at Keller’s request,

issued an order making the TOP permanent. Trull appeals. We reverse and remand.

                                          ISSUE

¶2     The dispositive issue on appeal is whether the District Court abused its discretion

by making the temporary Order of Protection permanent.

                 FACTUAL AND PROCEDURAL BACKGROUND

¶3     On November 23, 2005, Kim Keller petitioned the District Court for a temporary

order of protection on behalf of her then fourteen-old son, Seth Knuth. In the Petition,

Keller alleged that Michael Trull, a minor, repeatedly assaulted and intimidated her son

on the grounds of Thompson Falls Junior High School. She also asserted that Trull

created a risk of death or serious injury to her son. The District Court issued the TOP on

November 28. Pursuant to the TOP, Trull was prohibited from committing further

abusive or threatening acts toward Knuth and was required to stay at least 1,500 feet

away from both Knuth and Keller. A hearing was scheduled for December 6, 2005, to

determine whether to dismiss, amend or make permanent the TOP. Notably, there is no

indication that the TOP, which contained notice of the December 6 hearing, was formally

served on Trull or any family member or other designated representative. Keller and

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Knuth later asserted that they had served Trull with the TOP, but Trull and his family

denied receipt of service.

¶4     Trull was also scheduled to attend another hearing on December 6 in the same

District Court in a criminal juvenile matter. Trull did not attend either of the hearings

however, because at some time between November 15 and December 6, he was

involuntarily committed to the Lake County Group Youth Guidance Home. The day

before the hearing the youth court probation officer notified both the county attorney and

Trull’s appointed counsel in the criminal juvenile matter that he—the probation office—

would be unable to attend the December 6 criminal hearing. Trull’s court-appointed

attorney then contacted Trull at the Youth Home and they agreed it would be best to seek

a continuance of the December 6 hearing. When the criminal proceeding then came

before the court early the following morning, Trull’s court-appointed attorney informed

the court of the scheduling problem, and the matter was rescheduled by the court for

December 20. However, by the time the TOP hearing came before the same court later

that morning, Trull’s counsel for the criminal proceeding had left the courtroom. After

acknowledging for the record that Trull could not attend the TOP hearing, the District

Court proceeded to make the TOP permanent, despite Trull’s absence and lack of

representation.

¶5     On January 24, 2006, Trull’s court-appointed attorney in the criminal juvenile

proceeding moved the District Court to reopen the TOP matter and schedule a hearing to

allow Trull to show cause why he should be relieved from the order of protection issued

to Keller and Knuth. In that motion, counsel argued that in addition to being unaware of

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the TOP hearing, Trull was completely dependent on an adult to ensure his presence and

that Trull’s parents were unaware of the hearing as well. Counsel maintained that the

court should have appointed a guardian ad litem and continued the hearing until a time

that Trull’s interests could be properly and fairly represented.

¶6     Keller opposed the motion to reopen. On February 3, the District Court denied the

motion to reopen the matter noting that Keller and Knuth had followed procedure and

met the legal requirements in having Trull served. Trull filed a timely appeal.

                               STANDARD OF REVIEW

¶7     The decision to continue, amend or make permanent an order of protection is for

the district court to determine, and we will not overturn its decision absent an abuse of

discretion. Bock v. Smith, 2005 MT 40, ¶ 29, 326 Mont. 123, ¶ 29, 107 P.3d 488, ¶ 29.

                                      DISCUSSION

¶8     Trull argues that the District Court abused its discretion when it made the TOP

permanent because he was neither present nor represented at the December 6 court

proceeding and that the December 6 proceeding did not constitute a hearing as required

by § 40-15-202, MCA. Trull maintains that the District Court should have appointed a

guardian ad litem for him as required by § 40-15-102(4), MCA.

¶9     Section 40-15-102(4), MCA, requires that in cases where a petition for an order of

protection is filed, a guardian must be appointed for a minor respondent when such is

required by M. R. Civ. P. 17(c) (Rule 17(c)). Rule 17(c) states, in part:

       The court shall appoint a guardian ad litem for an infant or incompetent
       person not otherwise represented in an action or shall make such other
       order as it deems proper for the protection of the infant or incompetent

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       person, or in any case where the court deems it expedient a guardian ad
       litem may be appointed to represent an infant or incompetent person, even
       though the infant or incompetent person may have a general guardian and
       may have appeared by that general guardian. (Emphasis added).

As we noted in Matter of R.A.D., 231 Mont. 143, 156, 753 P.2d 862, 870 (1988), which

dealt with an incompetent person rather than a minor, “[t]he District Court has an

affirmative duty to assure that the rights of a party, who is alleged to be incompetent, are

protected. Rule 17(c), M.R.Civ.P., requires appointment of a guardian ad litem for an

incompetent person whose rights might be abrogated by a lack of proper representation.”

The same rationale applies to minors. The District Court abused its discretion when it

failed to appoint a guardian ad litem for Trull.

¶10    Given the seriousness associated with a permanent order of protection,

§ 40-15-202(1), MCA, provides that

       A hearing must be conducted within 20 days from the date that the court
       issues a temporary order of protection. The hearing date may be continued
       at the request of either party for good cause or by the court. If the hearing
       date is continued, the temporary order of protection must remain in effect
       until the court conducts a hearing. At the hearing, the court shall determine
       whether good cause exists for the temporary order of protection to be
       continued, amended, or made permanent. (Emphasis added).

¶11    Trull asserts that the District Court had good cause to continue the December 6

hearing, pointing out that the court knew he was not present, that he was involuntarily

committed, and that he had no representation in this matter. He maintains that under

§§ 40-15-202(1) and -204, MCA, the purpose of the hearing was for the court to

determine, through evidence presented by the parties, whether good cause existed for the

TOP to be continued, revised or made permanent and that the court’s failure to conduct


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such an evidentiary hearing was an abuse of discretion. Trull directs our attention to

§ 40-15-204, MCA, which authorizes the court to make a TOP permanent based on the

respondent’s history of violence, the severity of the offense at issue, and “the evidence

presented at the hearing.”

¶12    In the case before us, the District Court knowingly conducted the December 6

proceeding without Trull’s presence or representation. Moreover, the court made the

TOP permanent during that proceeding without taking or reviewing any evidence, and

based on nothing more than the statements presented by the Petitioners in their Petition.

We conclude that the proceeding on December 6 did not satisfy the requirements of a

mandatory hearing under § 40-15-202(1), MCA, and the District Court’s action in

making the TOP permanent constituted an abuse of discretion. Bock, ¶¶ 29-30.

                                    CONCLUSION

¶13    For the foregoing reasons, we reverse the District Court’s permanent Order of

Protection, and remand for appointment of a guardian ad litem for Trull and a hearing to

be attended by both Petitioners, Respondent, and their respective representatives, if

applicable, for the purpose of determining whether there is sufficient evidence to justify

granting Keller’s and Knuth’s request for a permanent order of protection.


                                         /S/ PATRICIA COTTER

We Concur:

/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
/S/ BRIAN MORRIS

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